*1 618 federa] designation. proper sion that there was no taxes. See Dietrich v.
spect to (E.D. 135, dissent from Alexander, Accordingly, respectfully 137-38 I F.Supp. Pa.1977). analysis majority court but would Since the district lacked the I declaratory judgment to hear a district court on claim affirm jurisdiction States, relief, v. 595 F.2d Blech United merits. see (9th Cir.1979), to we refuse allow Johnson, jur Inc. to create & Cadwallader 1346(a)(1)by phras section
isdiction under refund request as one for a
ing their erroneously applied.5 Section 2201
money declaratory relief and section
precludes include
1346(a)(1) not so as to broad plaintiffs’ claim. of America ex rel. UNITED STATES reasons, judgment foregoing For the REED, Petitioner-Appellee, Fred and the case court is vacated of the district court with in- to the district is remanded Greer, jurisdic- for lack of LANE to dismiss Michael and James structions Respondents-Appellants. tion. No. 83-2972. dissenting. PELL, Judge, Senior Circuit Appeals, United States pf of the cor- position As I understand Seventh Circuit. proper des- poration, it is there was paid the as- ignation that amount Argued 1984. June taxes, fund applied the trust signee be April Decided 1985. designa- honoring this the IRS had, wording of 28 tion .U.S.C.
§ 1346(a)(1), “illegally collected” corporation and therefore the
amount paid,
entitled to a refund of the amount though take the refund would
even liability for the
form of a setoff its trust IRS, taxes. The if
fund refusal timely designation,
there had been paid me to appears
credit the amount which was on
a collection taxes and one timely designa- illegal
an basis because voluntary payment assignee
tion an is a position by the IRS
contrary to the taken at payment
the time the received. States, F.2d
Muntwyler v. United
(7th Cir.1983). appears me therefore that
While properly in the dis- jurisdiction
there was court, agree I court’s deci-
trict with that dissent, paid the tax and then sued for a refund. In his Pell concludes that cred- paid iting Similarly, amount fund to the non-trust at 1031-32. the Schons F.2d can illegal pur- $52,383.00 taxes is an collection of taxes for misap- claim raise their that the 1346(a)(1). agree poses of section We with the by paying part plied of the trust fund taxes States, Muntwyler holding of United F.2d against bringing them and then assessed ac- Cir.1983), Pell, (7th by Judge the case cited Boynton, in district See 566 F.2d tion court. distinguishable but we think that case is because officer, Muntwyler, responsible corporate
Coffey, Judge, Circuit dissented with
opinion. Fedinets, Gen., Atty.
Kenneth A. Asst. 111., Chicago, for respondents-appellants. Graham, Chicago, 111., plaintiff- Scott appellant. CUMMINGS,
Before Chief Judge, COF FEY, CAMPBELL, Judge, Circuit Sen Judge.* ior District * Campbell, sitting designation. The Honorable William J. Senior Dis- Illinois, trict Northern District of CAMPBELL, apparently Robbins would J. Senior Dis- Hall believed
WILLIAM he trusted Judge. open the door for Reed since trict cooperate Reed if he didn’t him. He told appeals of Illinois the District The State up They come dead.” went he “would Corpus grant of a Writ of Habeas Court’s apartment, Reed knocked and Robbins’ Reed, peti- F.Supp. 530. The to Fred himself, opened the identified and Robbins serving concurrent had been *3 tioner way Hall then forced his into the door. years fifty terms of to one hundred prison apartment up and ordered Reed to tie Rob- an concur- for murders with additional two pillow put Then Hall a over Robbins’ bins. thirty years for twenty rent term of to head and shot twice. robbery. armed The constitutional viola- by the District Court involved tion found apart- Hall and Reed then left Robbins’ judge’s give jury trial failure to a state friend, so, girl ment. As did Robbins’ on the defense. instruction Truitt, Beverly opened asked her door and give judge The trial declined to the instruc- happened. stay Hall told Reed to in what interpretation of Illi- upon tion his based pushed the hall and then he Truitt back statutory provided which nois law apartment. into her He then shot her capital compulsion is not a defense jewel- and returned handful of twice with a ruling Ap- This affirmed case. was ry. request, gave him At Reed’s Hall some Illinois, Reed, People pellate Court of jewelry of the told him if he but revealed Ill.App.3d 60 Ill.Dec. happened kill what had he would him. (1982). Court, N.E.2d 979 The District Thereafter, Reed was indicted for two however, interpreta- held that under that of murder and one count of armed counts tion, put the Illinois statute failed to robbery. At trial his defense was that he requirements on notice toas participating in was coerced into therefore the criminal law and violated crimes. after all evidence process rights. his due Based on that anal- presented, judge trial refused to ysis, Judge granted the District the writ defense, jury on the coercion instruct requiring discharge unless he was concluding applicable that under the properly days. retried within The state statutes coercion was not a defense raising appeals that decision numerous ar- Thereafter, case. found Reed guments. guilty of all three counts. At the trial the state court bulk Appellate upheld Court of Illinois testimony regarding incident the actual presented the trial court’s decision and came from statements of Reed. Those reasoning for defense is it. The presented following statements scenar § 7-11(a): codified in ch. Ill.Rev.Stat. Robbins, io. Michael one of the murder offense, person guilty A is not of an victims, traf became involved a heroin punishable other than an offense with ficking dispute territorial another with death, by of conduct he reason which drug, pusher “Big an named 50”. Since performs under of threat Big impossible, amicable resolution was or menace of the imminent infliction of determined that killed.1 Robbins would be harm, great bodily if death or he reason- Reed, who apartment lived the same ably great bodily believes harm death Robbins, building as had lent him a 32 if upon be inflicted him he does not will gun protection.2 August automatic On perform such conduct. 28, 1977, Lonnie Hall apart entered Reed’s gun The court determined that Reed had com- ment with told him he wanted get capital into offense apartment. use Reed mitted because had Robbins’ any testimony corroborated more because he 1. This was about Robbins would be Taboda, manager "taken care of.” apartment Bobbie building Big in which Robbins and Reed lived. Johns, This was corroborated Denise worry that she 50 told her wouldn't have to victim, Beverly other murder sister Truitt. aggravating This conclu- penalty been involved in two murders. factor under the death 1(b)(3) statute, premised sion on Section the court determined that Gleckler 9— adequate penalty Illinois’ death statute: notice that not a defense his crimes. The court A who at the of the com- defendant time stated, however: mission of the offense has attained distinguishable A age of 18 or more and who has been situation would be presented guilty may process found of murder sentenced here due grounds on if aggravating ... no death if: factor under section 9- 1(b) alleged, were Ibid. the defendant has been convicted of murdering or more under individuals Gleckler, Following (a) of this or under Subsection Section Reed, People noted that since the any any or of law of the United States being charged defendant was with two state is substantially similar to murders, aggravating factor defined (a) regardless Subsection this Section § 1(b)(3) *4 present. Therefore, was it 9— of the deaths as the whether occurred concluded that capital each murder was a same result of the act or of several relat- and crime the coercion defense was una- long ed or acts as unrelated so the vailable as to each of them. the an deaths were result of either intent In ruling petition, on corpus the habeas person sepa- to kill than one or of more Judge District initially the noted the neces- premeditated rate acts ... sary legal person fiction a that faced with a The heavily People court relied on regarding potentially decision criminal con- Gleckler, 145, 483, Ill.2d 44 411 Ill.Dec. provisions duct aware of the of criminal (1980). N.E.2d 849 In the that case defend Thereafter, Judge law. the District stated: teenagers ant had shot in the back of fiction, In necessary terms of that shotgun they the head with while kneeled a Reed looked at the statute when forced on the the road. presented side of He a conjunc- to decide what action take in judge coercion at the trial the defense but tion with Robbins’ he would refused to instruct the that de plain statutory have known from the lan- ruling upheld by fense. Illi This was the guage the defense was avail- Supreme opinion nois Court. In its the able to him. that defense Reed Under legislative court analyzed intent behind yield could to Hall’s death without threat capital defense and (via putting life in jeopardy his own a crime and statutes concluded that com potential sentence) by yielding. death so pulsion any defense was not available to legal That was the matrix in Reed In charge. response defendant’s was entitled to make his about decision argument put that statutes did not surely which action to take. What was on notice not a de that was not obvious from face of the statute fense, the court admitted it was de that then-existing and case law was a parting precise of the from the terms stat gratuitous later murder of event—Hall’s justified stating: ute its action but deprive Truitt —would Reed of the com- enlargement meaning pulsion theory of the on the literal that as a by punisha- of a statute Court of whole two or criminal State more murders are permissible, by last resort is at least where ble death. [Footnotes deleted.] enlargement leg- such an conforms with reasoning, Judge on this Based District islative intent. Ill.Dec. at rights process due concluded Reed’s N.E.2d at 856. violated and that the were issuance Thereafter, realizing process required. ramifi- was due writ the state decision, Supreme cations of its Court moved for to determine clarification wheth- implement it only determined that could its er the court to set three intended aside all Nonetheless, prospectively. Judge since Reed’s decision convictions. The District presented and that he defendant’s double murder denied motion indicated States, 188, 191, 990, 992, discharged 97 S.Ct. to be U.S. intended granted (1977). importantly, a retrial as to all unless was 51 L.Ed.2d More them appeal three counts. This filed. Judge the District did not invalidate or set interpretation aside the state court’s Appellant that there was claims simply He ruled that it not statute. could compulsion present insufficient evidence of applied retroactively to this defendant’s giving justify ed the defendant to proper This remedy conduct. is the and jury instruction. This was not ra previously utilized in has been Bouie sug trial nor was tionale of the court Columbia, City 378 U.S. 84 S.Ct. gested as an (1964). 12 L.Ed.2d In that case decision. Further alternative basis its prohibited statute South Carolina criminal more, persuaded District “entry on another after lands of notice Illinois law com argument. Under petitioners prohibiting same.” The were pulsion but is an affirmative defense though convicted under that statute even only produce need “some evi defendant prior entering had no notice and then the burden shifts dence thereon” property presence prohibit- that their disprove beyond to the state to the defense Supreme ed. The Court of South Carolina doubt, Gleckler, supra, 44 a reasonable see construing upheld the convictions the stat- 487, 411 Ill.Dec. at N.E.2d at include a person ute to situations where threat is cer testimony as to Hall’s death premises receiving remained on the after tainly evidence Hall’s notice to leave. The United States Su- brandishing pistol a reason constitutes *5 Court, however, preme determined the great of that bodily able for fear death or basis by convictions were invalid because vio- supported This is further harm. process due Big lated the clause of the that 50 had ordered Rob Consti- awareness The Connally The that Reed had lent tution. court relied on the bins’ death. fact gun protection suggests although noting for also of that Robbins a line cases the case participate distinguishable: that he had not intended to it was before somewhat killing opposed the but fact the Connally It is true that and Therefore, that idea. we conclude under cases, typical Lanzetta in other appli- and produced Illinois law Robbins sufficient evi of principle, uncertainty cations the the compulsion jury dence of a in to warrant prohibition to the statute’s resulted struction. language vague or overbroad the from arguments appellant’s The itself, constitutional statute and the Court concluded misconception of are both based on a the vague- that the statute “void for Judge’s argues District decision. It that The ness.” instant case seems distin- interpretation pure- of is state statutes guishable, the language since on its face ly § the domain of courts unless within state 16-386 of of the South Carolina Code a violation of fundamental constitutional admirably precise; and narrow ... Furthermore, claims; rights is involved. distinction, however, thrust of The is granted improperly produce potentially greater
The district court
a
depriva-
right
by reject-
corpus
habeas
relief
tion
to fair notice
this sort
case,
ing
placed
the construction
on section
of
where the claim that a
is
statute
7-ll(a)
Appel-
on its
by
precise
the Illinois courts.
face has been unforesee-
p.
ably
retroactively expanded
and
by judi-
lant’s brief
construction,
cial
in the typical
than
requirement that criminal stat
The
vagueness”
“void for
situation. 378 U.S.
warning of the conduct
give fair
utes must
351-352,
at
at
S.Ct.
1701-1702.
proscribed implicates
first essential of
“the
remedy applied
v.
The
was to set
process,”
Connally
see
General
aside the
due
385, 391,
Co.,
but
specifically
46 convictions
the court
Construction
269 U.S.
noted
126, 127,
(1926),
Supreme
and is
that the South
a
Carolina
Court’s
S.Ct.
L.Ed. 322
right,
construction
the statute would
fundamental
see Marks
United
be valid
362, 84 S.Ct.
prospectively,
any
charge
378 U.S. at
murder
in Illinois. That
remedy applied
1707. That is
decision has
been challenged
not
here and
case, although here
District
in this
a
it remains
prospective application.
valid for
retrial was
since the situation in-
Supreme
feasible
under
defense rather
reasoning,
volved the omission of a
principle
Court’s own
that
can-
applied
than the creation of an offense.
not be
to Reed’s actions which oc-
curred in
At
that
time there had
argue
Appellants also
state
judicial pronouncement
no
been
regarding
of a
court’s omission
instruc-
interplay
between the
de-
a
tion does not
to constitutional viola-
rise
fense statute
penalty
death
statute.
did not result
in a
tion because it
funda-
reading
A
of those statutes in 1977 would
miscarriage
justice, citing,
mental
inter
have
revealed that
was not a
alia,
Sielaff,
ex rel.
Peery
United States
defense to
charge
a murder
if “the defend-
Cir.1979). However,
(7th
F.2d
has
murdering
ant
been convicted of
two or
Peery line of cases involve
Amend-
Sixth
reading
more
Such
individuals.”
would
ment
occur when
violations which
not have informed Reed that
could
not
or
judge
trial
evaluates
screens
[T]he
legally yield to the death threat of Hall.
supporting
proposed
evidence
de-
reading
Nor would a fair
of those statutes
upon
fense and
such evaluation declines
subsequent
indicate that
act of Hall
defense,
charge
on that
[as
result]
Truitt,
murdering
act described
he dilutes
defendant’s
trial
Appellate
“spontane-
Illinois as
removing
jury’s
the issue from the
con-
ous,”
deprive
could
sideration,
States,
v. United
Strauss
defense as to
first
murder.
(5th Cir.1967), quoted
F.2d
Peery,
615 F.2d at
supra,
403-404.
As
to Truitt’s
Court of Illinois found Reed to be accounta
case
judice
sub
does not arise under
following reasoning:
under the
ble
Sixth
Amendment but rather under the
process
Accountability
due
clause
the Fifth
can
be es-
Amend-
Therefore,
by proof
ment.
tablished
during
standard
review
before
offense,
Peery
utilized in the
line of
commission of that
cases
with the
*6
it,
Rather,
promote
intent to
or
applicable here.
the
stan-
facilitate
the
relevant
de-
fendant
attempted
is
aided and abetted
dard whether the
instructions accu-
or
to
in
aid and
the
rately
abet
murder.
appeared
reflected the law as it
at
see Marks v. United
the time of the
told him to time, punished by person could be presence, his whether regarding fact exists murdering of accountability, death if he was convicted his basis for 38, or more individuals. Ill.Rev.Stat. ch. compulsion. If Reed was the result § 9-l(b)(3). correctly *7 Despite majority’s well-writ- Robbins. A read- for both murders. literal defense opinion contrary, I ten to the believe § ing 9-l(b)(3) reveals this statute adequate notice that acts; contemporaneous require does not compulsion not be available defense would punishable by rather, may the acts participation his trial because of as a result of the death if “occurred involving the murder witness second related or unrelated same act or of several Thus, respectfully Truitt. I dissent. acts____” Thus, although may initially present crimes in the have been available At the time the Robbins, my opinion committed, murder of August case were subsequent sec- participation provided compulsion defense Reed’s law that the Therefore, robbery crime was thereafter. questionable It is an armed curred 3. whether larceny burglary. actually this could be a or since the committed since either larceny burglary. case either has held it to be Court of Illinois taking clearly occurred first and Truitt robbery, bound its decision. armed we are jewelry, participated, Reed oc- stripped any right ond murder him of he
may have had to assert
defense at trial.
Clearly, guilt for the second mur possibility
der was a real under an account
ability theory relevant Illinois stat provided adequate
utes notice to Reed that
participation the second murder would
cause the defense to be forfeit Thus, entirety.
ed its I believe that
when Reed made his choice to remain and
support Hall during the Truitt
forfeited his Accord defense.. ingly, respectfully I dissent.1 PIAROWSKI,
Albert R.
Plaintiff-Appellant,
ILLINOIS COMMUNITY COLLEGE 515, Prairie
DISTRICT State al.,
College, Defendants-Appellees. et
No. 84-1152. Appeals,
United States Court of
Seventh Circuit.
Argued Feb. April
Decided
Rehearing En Banc Denied 10,1985.
May disagree 1. Even if one would with the conclu- evidence to sustain the conviction for the sec- case, adequate sion that there was notice in this agree ond offense. I do not with the district *8 only Reed’s conviction should be reversed as to court that had the avail- been only complains the murder of Robbins. Reed able for Robbins’ that this would have that he was denied his defense as to necessarily impacted upon Reed's conviction for Robbins; compul- murder of he asserted no the murder of Truitt. As noted the Illinois sion defense as to the murder of Truitt. The Court, Appellate there were sufficient facts in- Court has made a sufficient volving separately the murder of Truitt sus- finding hallway during that Reed’s acts in the tain the conviction for the murder of Truitt subsequent request murder of Truitt and his accountability theory. under the part jewelry enough of Truitt’s constituted The notes compulsion majority de- permitted to raise the were adequate notice of person that a must have to first murder and were be fense to the in order prohibiting the law certain conduct successful, second his involvement charged to with a crimi- person for that be capital crime. not murder could City nal See Bouie Colum- violation. to Therefore, able raise he would be 1697, bia, 347, 12 L.Ed.2d 378 U.S. 84 S.Ct. Therefore, it. we as to defense (1964). participated in the When Reed charge must murder the second find that he arguably did not have Robbins’ also be retried. he charged that if with murder notice robbery respect armed to the With would be unable to raise however, accountability is charge,3 Reed’s reveals, at trial. The record how- defense premised voluntary his involvement on also ever, participated Reed in a second of the crime. asportation element murder, involving the witness Truitt. participation and it does Reed admitted found that Hall appear apartment pushed Truitt into her and told Therefore, con to it. we could be raised hallway. Reed did not Reed to wait robbery retrial of the armed clude that a rather, help; flee attempt get charge necessary. is not Hall, shots, heard the and when waited for Accordingly, we District affirm him for reappeared Hall asked a share stay it of the writ but Court’s issuance taken Truitt. The Illinois jewelry from on pending serving of the sentence Reed’s these Appellate Court ruled that facts were robbery charge days and 120 the armed themselves, sufficient, support in and of him). (for retry thereafter State first-degree mur- conviction for the accountability theo- der Truitt under the COFFEY, dissenting. Judge, Circuit 331, Reed, ry. Ill.App.3d People majority The issue as framed 80, 86, Ill.Dec. 432 N.E.2d court this case whether district (1982). Reed, adequate notice petitioner, Fred purposes of Ill.Rev.Stat. ch. For compulsion defense would not be that the § 9-l(b)(3), I believe Reed had sufficient alleg- he was available to at trial when participation that his the second notice edly participate forced his strip murder would him of