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Tax Protestor Cases Exhibit
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Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee.
Kirk W. GENGER, Defendant-Appellant.
No. 87-1043.
United States Court of Appeals, Ninth Circuit.
Submitted: Jan. 14, 1988. [FN*]
Decided: March 21, 1988.
Appeal from the United States District Court for the District of
Nevada (Reno); Edward C. Reed, Jr., District Judge, Presiding. D.Nev.


Before BARNES, KILKENNY and GOODWIN, Circuit Judges.


Kirk Genger appeals his conviction of two counts of failure to file income tax returns. He contends that (1) he was constitutionally entitled to a judicial determination of probable cause to support the filing of an information and the issuance of a summons against him, (2) the district court erroneously exercised admiralty jurisdiction over him, (3) the requirement that he file tax returns violated his First Amendment right to free exercise of religion, and (4) the district court erred in imposing consecutive sentences because his conviction on two counts of failing to file income tax returns amounted to a single offense. In August 1986, the United States Attorney in the District of Nevada filed an information charging Genger with two counts of failing to file tax returns for the years 1982 and 1983, in violation of 26 U.S.C. s 7203. Genger filed an "Asseveration & Demurrer to the Charge," which the district court treated as a motion to dismiss, and it denied this motion. Following a jury trial, Genger was convicted of both counts and sentenced to two consecutive one-year prison terms. He timely appeals.

I. Entitlement to Probable Cause Hearing

The determination of whether the Fourth Amendment requires a judicial determination of probable cause before the issuance of a summons or filing of an information is a question of law that is reviewed de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc)
cert. denied, 469 U.S. 824 (1984).

Genger contends that the filing of an information and the issuance of a summons against him entitled him to a judicial determination of probable cause. This contention lacks merit.

Absent arrest or some other restraint on a defendant's liberty, a prosecution may be maintained without any finding of probable cause. United States v. Yellow Freight System, Inc., 637 F.2d 1248, 1252 (9th Cir.1980), cert. denied, 454 U.S. 815 (1981). See also Gerstein v. Pugh, 420 U.S. 103, 125 n. 26 (1975) ("Because the probable cause determination is not a constitutional prerequisite to the charging decision, it is required only for those suspects who suffer restraints on liberty other than the condition that they appear for trial."); United States v. Bohrer, 807 F.2d 159, 161 (10th Cir.1986) (no probable cause requirement for summons which did not subject defendant to extended pretrial restraint on his liberty).

Genger, like the defendant in Bohrer, was summoned, not arrested, and following his initial appearance was released on his own recognizance. Because he suffered no extended pretrial restraints on his liberty other than the condition that he appear for trial, he was not constitutionally entitled to a judicial determination of probable cause. See Gerstein v. Pugh, 420 U.S. at 125 n. 26.

Further, even if Genger did have a right to a probable cause hearing, the denial of this right is not grounds for reversing his conviction. It is firmly established that an illegal arrest or detention does not void a subsequent conviction. See Gerstein, 420 U.S. at 119; United States v. Studley, 783 F.2d 934, 937 (9th Cir.1986).

II. Jurisdiction

This court reviews de novo a district court's assumption of jurisdiction. United States v. Hill, 719 F.2d 1402, 1404 (9th Cir.1983). Genger challenges the district court's subject matter jurisdiction over him, based on his erroneous assumption that the court's only possible basis of jurisdiction was admiralty jurisdiction and that admiralty jurisdiction was lacking. This contention is frivolous. Under 18 U.S.C. s 3231, federal district courts have exclusive jurisdiction over "all offenses against the laws of the United States." These offenses include the tax crimes defined in Title 26 of the United States Code that Genger was charged with violating. United States v. Studley, 783 F.2d at 937. Thus, the district court unquestionably had subject matter jurisdiction over Genger's tax offenses and Genger's reference to admiralty jurisdiction is irrelevant.

III. First Amendment Issue

The determination whether Genger's First Amendment rights were violated is a mixed question of law and fact, reviewed de novo. See Fraser v. Bethel School District No. 403, 755 F.2d 1356, 1359 n. 2 (9th Cir.1985), rev'd on other grounds, 106 S.Ct. 3159 (1986). Genger contends that the requirement that he file a federal tax return conflicts with his religious beliefs and thus unconstitutionally burdens his free exercise of religion. This argument lacks merit. The Supreme Court's broad statement in United States v. Lee, 455 U.S. 252, 260 (1982), forecloses Genger's argument. Rejecting the free exercise claim of a member of the Old Order Amish who sought to avoid payment of Social Security taxes, the court held that "religious belief in conflict with the payment of taxes affords no basis for resisting the tax." Id.; see also United States v. Cromhurst, 629 F.2d 1297, 1300 (9th Cir.) (rejecting as frivolous defendant's argument that filing a tax return would violate his religious convictions), cert. denied, 449 U.S. 1021 (1980); Welch v. United States, 750 F.2d 1101, 1108 (1st Cir.1985) (religious belief did not excuse taxpayers from liability for failure to comply with tax laws); Graves v. Commissioner of Internal Revenue, 579 F.2d 392, 393 (6th Cir., 1978), cert. denied, 440 U.S. 946 (1979) (holding federal income tax laws did not unconstitutionally burden defendants' free exercise of religion).

IV. Sentencing

This court reviews the legality of a sentence de novo. United States v. Arbelaez, 812 F.2d 530, 532 (9th Cir.1987). Genger contends that the district court's imposition of two consecutive sentences was improper because his convictions for two counts of failure to file returns in 1982 and 1983 amount to only a single offense. [FN1] This contention is meritless. This court summarily rejected an identical argument in United States v. Harris, 726 F.2d 558, 560 (9th Cir.1984) (argument that failure to file for three consecutive years can amount to but one offense has "no logical or precedential support"). The judgment is AFFIRMED.

FN* The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4.

FN** This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit Rule 36-3.

FN1. It is unclear whether Genger is arguing that his sentences violated double jeopardy or Congressional intent. Both arguments fail because both are premised on the erroneous assumption that failure to file tax returns for two years constitutes a single offense.

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