Quatloos! > Tax
Scams > Tax
Protestors > EXHIBIT:
Tax Protestor Dummies > Cases
("Damn, We Lost Again! And why is
it that people who sell
tax protestor materials file their tax returns anyway . . .")
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or orders designated for publication are not precedential and should not be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.
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
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
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).
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
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).
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
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
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.
to Tax Protestor Exhibit