United States v. Nancy E. Wilson, United States of America v. Buddy Rex Wilson

Guild, Inc., In Kerr v. Screen Extras this court established twelve

factors to be considered the district court awarding attorney’s reasonable fees.1

Here the considered each of catalogued

the factors Although Kerr. findings

no formal fact conclusions prepared,

law were transcript does dem

onstrate that the district court considered factors established Kerr. We there

fore cannot say that the district court clear

ly abused its discretion its award of

attorney’s fees.

AFFIRMED. America, Appellee,

UNITED STATES of

Nancy WILSON, Appellant. E. America, Appellee,

UNITED STATES of

Buddy WILSON, Appellant. Rex 80-1255,

Nos. 80-1256.

United States Court of Appeals,

Ninth Circuit.

Submitted Oct. 1980.

Decided Feb. 1981. (9) 1. experience, reputation ability The factors considered the district and court are: attorneys; case; (10) “undesireability” of the the (1) required; the time and labor (11) length professional the nature (2) novelty difficulty ques- of the client; relationship with the involved; tions (12) (3) awards similar cases. requisite perform legal skill Guild, Inc., Kerr v. Screen Extras 526 F.2d at properly; service (4) preclusion employment of other attorney The court need acceptance not consider twelve fac- the case; due to tors, question by those called into (5) customary fee; necessary support case at hand (6) contingent; whether the fee is reasonableness of the fee Daily Zurcher, fixed or award. Stanford imposed by (N.D.Cal. time the limitations client F.R.D. circumstances; (8) the amount involved and the results obtained; Diamos, Tucson, Ariz., for D.

Jo Ann Nancy Wilson. Ariz., Minker, Tucson, for Rex Jeffrey

S. Wilson. Hawkins, Frank, G. Asst. John

Gerald S. Tucson, Ariz., appellee. Attys., U. S. GOODWIN, Cir KILKENNY Before REAL,* Judge. Judges, and District cuit GOODWIN, Judge. Circuit Wilsons, charged with fil- The during ing withholding statements moved 1979 in violation of U.S.C. § grounds of the indictment on to dismiss They argued that prosecution. only because government them had exercised First protest the income they had exercised their The questions. IRS’ not to answer denied the motion district court The first presented. issues are Two jurisdiction under this court whether States, Abney v. United (1977), its interlocutory appeal. hear this progeny, to so, whether the Wilsons If we must decide illegal evidence of presented sufficient pretrial dismissal. warrant JURISDICTION I. ruling

Abney held that a double the collat- immediately appealable under exception judgment final eral order In rule. 1980),this extended the denying exception certain orders prosecution. alleging

motions “vindictive” exception Griffin whether question allegations of applied equally to should be appears to be one impression. fornia, designation. Real, sitting by *The Honorable L. Manuel Judge for District of District the Central Cali- can wholly Little substantive difference an issue collateral actual detected between selective Finally, cause of action asserted.... Vindictive involved the decision would be tion arises where the ‘lost, probably irreparably,’ appellate if severity creases the alleged charges postponed judg- review until final response to a defendant’s exercise of consti Griffin, ...” States ment. Burt, See United States v. tutional F.2d at 1344. gener 831, (9th 1980); 619 F.2d see Cir. prosecution does appeal A selective ally, Groves, United States v. 571 F.2d 450, Griffin satisfy criteria. The trial (9th 1978) (vindictive prosecution Cir. prosecution ruling court’s selective is no less brought charges claim after new were filed complete final than a determination following defendant’s motion to dismiss on prosecution Second, ruling. a “vindictive” speedy United States De- grounds); trial prosecution the selective decision not a Marco, 550 1224, cert. (9th Cir.), step disposition final denied, towards of the merits 827, 434 U.S. 98 S.Ct. merged judg that would be into the final (1977) (vindictive prosecution ment. As in selective when new indictment filed challenge after does not a successfully defendant for constitute the merits moved change venue). accused, of charges brought of disposition affect, could nor of the claim challenges Selective by, be or affected a decision which is based arise when alleges a defendant he that Id. at 1345. The on the merits. of issue being prosecuted initially having exer nothing to do with cised a See United right. constitutional whether the or Wilsons did did not file false Oaks, States v. Last, withholding forms. denied, 1975), cert. tion, prosecution, as as pos much vindictive (1976). 49 L.Ed.2d 1191 The interests sibly pros involves to be “free from involved prose are the same inas itself, ecution rather merely than cution protec cases: the defendant seeks subsequent to be free from a conviction.” tion from criminal pu initiated Thus, Id. because selective nitively, response to the of Griffin-Abney criteria, cases meet they immediately appealable. are heard, To be interlocutory ap We peals note that even must meet three did criteria. attempt distinguish in its brief selec “First, complete there ... to be a [has] tive claims from vindictive and final determination the issue in Instead, prosecution claims. it concentrat court. No may be explaining on Griffin why type ed left, defenses taken if the ‘open, matter was unfin- immediately appealable. should not Second, be We ished or ... inconclusive.’ sympathetic government’s are with decision .... be ar simply ‘step [can] it disposition gument, toward final but must the merits of be addressed the case court en banc. This be merged panel is bound [that would] rather, final judgment’; Griffin.1 resolve must appeals interlocutory interlocutory appeals.

1. Promiscuous resort to these Grif- Once the following counterproductive. established, attorneys, Griffin has been rule was as fin defense frustrating advocates, speedy policy, It is properly prosecu- and the added “vindictive appeals multiply possible strategy the work of this check tion” their list of Many continuance, delay, severance, court. dictive the claims selective or vin- or dismissal. patently pre- frivolous resulting outpouring so of motions was they disposed summarily; can processed This court dictable. 13 Griffin and summary disposition even June, cranks into life Abney appeals during 25 July, August the months of delay. of a district court case several weeks of ap- September Few 1980. Delay, time, calendars, disruption jury loss peared to have merit. expense and needless follow in wake generally 1. That others THE OF SHOWING II. SUFFICIENCY conduct; BELOW same ecuted for the the Wilsons’ mo- The district court denied this de- The decision dismiss, finding they had failed tion to impermis- upon was based fendant showing improper carry their burden race, grounds religion such as sible The Wilsons asserted the exercise of constitutional they selected for ei- rights.” ques- ther because refused answer parties agree proper All this was 1040 tax form and attached a tions test. page 40-odd memorandum the unconsti- laws, tutionality setting pros The initial case the selective had exercised their Boles, Oyler ecution standard rights called on them. when an IRS officer 501, 456, 505, 448, 7 U.S. a case. Their bare assertion does make (1962). It 446 did mention rights, based on exercise of constitutional A. of Review Standard “arbitrary on but based classifi 1347, In 617 F.2d at this Steele, v. 461 F.2d cation.” United States may court have used an abuse of discretion 1148, 1972), next; (9th it 1151 Cir. came motion review the denial of a to standard to expanded the test cover prosecution grounds. dismiss on vindictive based on the defendant’s exercise of While Griffin and the instant case arise in rights. Then came Unit First Amendment procedural posture involve the same Berrios, 1207, 1211(2d ed States v. 501 F.2d issues, we it substantially similar believe is case; 1974), a Circuit Berrios’ Cir. Second “clearly the technically accurate to follow included formulation of the test reviewing erroneous” standard in the fact based exercise of constitutional process finding here.2 1188, Scott, v. 521 F.2d 1195 denied, 955, (9th 1975), Prosecution Test 96 B. The Selective Cir. cert. followed; 1431, (1976), 361 47 L.Ed.2d S.Ct. following The district court used the phrased the in terms of exercise test improper test to decide whether there was rights, cited Berrios First Amendment but prosecution: selective (First (constitutional rights) and Steele places “The law in this Circuit the burden rights) support. as United Amendment prove upon the defendants to in squarely 940, Oaks, supra, 527 F.2d prosecution: a selective States v. them, 1972). appears remedy denying In the court in each of There is no the need for a Cir. decided, novo, truly case, charge deserving no the the but there is evi- de whether have par- injustice resulting by leaving improper dence of was sustained. post-conviction “clearly prefer ties to review. mandamus We erroneous” standard First, though We no evidence that of the tax have seen even selec several reasons. cases, protest most of the claims of which did not articulate tive cases asserted, have been review, we not convinced standard improper reason. The fact-finding stan did not follow very system tax nature self-assessment Second, prosecution, even dard. degree country requires this both a modest prosecution, lends itself more than vindictive cooperation prompt of citizen enforcement finding standard. Vindictive the fact attempt by action those obstruc- “appearance” only requires a substantial tion system. bring tive behavior down the vindictiveness, prosecution re but point. case is a case finding quires the decision to grounds. impermissible United was based 2. Several cases this circuit have raised selec Oaks, 937, (9th 940 Cir. 527 States tive claims on See United question, is a Because this factual Choate, (9th 1980); States 21 Cir. 1307, 619 F.2d witnesses, credibility volving we believe Gillings, 1309 United States v. 568 F.2d clearly erroneous Oaks, (9th 1978); the better standard 527 F.2d Cir. 937, Scott, and bar (9th 1975); well known bench standard 940 United States v. Cir. novelty. 1188, 1975); involving (9th no Cir. 521 F.2d 1195 Steele, 1148, (9th 1151-52 States v. 461 F.2d 504 next, case; protest 1979, came was In people 5140 in Arizona filed test,

the court used the First Amendment W-4’s; “exempt” or excessive facts suggest that a Fifth Amend checked; 2. 1689 of these W-4’s were Vi ment was also involved. United (approximately th of peo- these v. Gillings, (9th States 568 F.2d either; ple) had filed a form denied, Cir.), cert. (un- any given 3. At time in (1978), 56 L.Ed.2d 760 said that clear if in Phoenix all of Ari- test circuit used in Berrios zona) investigations; there 75-100 (constitutional rights), but it cited Oaks percent 30-35 involve violations simi- (First test, Amendment facts) support. (false withholding, In lar as to this case United States v. Choate, 1980), 1040); failure-to-file a court said that the Ninth had ex Circuit two 4. There were 1979 false withhold- panded Oyler test include exercise of ing pending; cases from Tucson there First express We now withholding were two 1980 false cases ly approve prosecutive the selective test as from pending (including Tucson formulated district court and Gil- case); Wilson one lings : prosecution based on con withholding false Tucson pend- from impermissible. stitutional ing; there were three withholding cases from Phoenix C. The Evidence pending; there were three 1980 fail- argue The Wilsons only that if two ure-to-file cases pend- from Phoenix persons out of approximately 425 who filed ing. “exempt” prosecuted, proba- W-4’s are the Investigator Lujan’s survey explanation ble the they has to that were Wilsons’ place employment “chosen” because of their protest, tax re- right. a constitutional Perhaps vealed 25 others who had filed ex- strongest testimony the in the Wilsons’ fa- empt investigation W-4’s. No vor is that elicited the by judge. He prosecution on those is mentioned in investigator: asked the you IRS “[D]o the record. any know you’ve case in Tucson since The Wilsons have made some show been here that involves someone who filed a then, ing, that others whose W-4 forms give form but any didn’t infor- other [W-4] might investigation bear not have been mation their paid tax return and no prosecuted. prevail, The Wilsons not do taxes was and a tax protestor that has not however, they because have not introduced prosecuted?” been Investigator Lujan an- evidence convincingly shows that swered, “No, I know anyone.” don’t they prosecuted were their because of exer Buddy attorney Lujan: Wilson’s asked rights. cise They constitutional have not “Is the most you recent case that know of shown, requires, as the Oaks test that other you’ve that prosecuted the you one that similarly situated have not exercised years mentioned that’s three old in Tuc the prosecuted. their not have been The Lujan answered, son area?” “yes”. The statistics listed above show that there were attorney then asked whether that individual prosecutions other and the Wilsons have not had give refused to information on First that shown those defendants were also tax and grounds Fifth Lujan so, protestors. being This we cannot find again Thus, answered “yes.” was that Wilsons carried their burden of some suggesting evidence that “tax proving that decision protestors” are that IRS they made because exercised their constitu recently prosecuted nonprot . tional estors The argument prosecutions degree Wilsons’ also All relies are to some “se following evidence: lective.” The concedes as argu- prosecution. This cases, budgetary indicates much. Tax because depar- is nonsense. If there were limitations, ment perhaps other institutional procedure, there would have ture from IRS of all. United States the most selective proof departure was motivat- to be that file, get en attorneys, and before the Wilsons because ed animus field, constantly forcement officers in the of their of the exercise selectivity in practice degree of de some findings say We cannot that resources. ploying their limited enforcement clearly erroneous. district court field, returns, In the tax with millions appealed from is affirmed. The order many that reveal some basis thousand investigation, surprising for further REAL, Judge (concurring). District only very prose small number can be surprising It is also not cuted. I concur the result. deployed limited enforcement resources are agree I do not that selective develop strongest cases for same manner as should be treated in the surprising tion. It also not tax the double made protestors, who seek various attention- States,

getting devices attract enforcement at or the vindictive cases, They tention to their succeed. un ecution claims made strongest cases where doubtedly I do 617 F.2d 1342 majority is an cause of concern for “willfully” element share with the interlocutory appeals dispro proliferation expected is to be action. It approach do caused Griffin but portionate protestors will be number of tax questions raised prosecuted. one can show that Unless standpoint. I differ from that deployed against protestors laws head- majority run with rights, of their retaliation for the exercise trap putting vin- long into the semantic prosecution argument will fail.3 prosecution in the dictive and selective have Ninth Circuit case we totally same when come from basket prevailed on a found where defendants gardens. different claim of invidious selective question No one should the distinction Steele, a In tax case. jeopardy ex- a of double between claim supra, at 1150-52, defendant and by the 5th Amendment pressly prohibited refusing prosecuted three others were for Dou- prosecution. a claim selective questions to answer form. All a census its jeopardy from ble —aside notoriously been involved in a four had is underpinnings defendant who a —involves census movement. had resistance Steele expense of a being put to the trauma and statistics, getting difficulty those he sub- already for conduct second produced only were sufficient to show that scrutiny trier of fact jected to a protestors prosecuted had been while against either for or the defendant decided (nonprotestors) six others had committed prosecu- prosecution. in the Selective Steele, Wil the same offense. Unlike single prosecution. Clearly tion involves a similarly sons did not show that others situ courts to declare the distinction could lead speech ated who had not exercised their claiming 5th his the defendant now prosecuted. They did were not rights need double pending show the other cases also gauntlet’ ‘run the. a not be “forced to protestors. volved tax could be tak- second time before Abney, en; argue p. IRS’ at The Wilsons also devia- ...” 431 U.S. procedure p. tion in their case from routine S.Ct. upon says: formation ... thereof, shall ... conviction

3. Title § 26 U.S.C. 7205 $500, or im- be fined not more than “Any required supply individual to infor- year, prisoned both.” than not more employer to mation under section added) (Emphasis willfully supplies in- or fraudulent by guilty The vindictive claim in Grif- the defendant to be of the same fin brought apply this to delayed Court prosecuted or not at all. conduct—is rationale and raise vindictive one, I, for to be eschew invitation such protection claims to of- the same level super prosecutor. fered the Constitution to 5th Amend- If selective reviewa- jeopardy. ment claims of double The wis- bility I believe it does—it can —and dom or unwisdom Griffin aside the Court intelligently be reviewed after facts gave three reasons for the adherence being prosecuted to relevant the conduct to Abney per- rationale none of is prosecu- are disclosed at trial. Otherwise suasive in a claim prosecution. of selective mini-try tors will required be their entire First, the Court said denial of the mo- portfolio investigations justify why tion dismiss brought the vindictively this defendant be was chosen to complete ais and final determi- while others claimed defendant be nation of that claim in the trial court. equally culpable or more of the same kind Second, a is claim prosecuted. are not of conduct Prosecutors wholly guilt collateral to the issue required will be to reveal and rationalize innocence of the defendant on the first strength the relative of their case charge. The collateral nature of the claim compared being this defendant as to others is second for presentation considered to a Grand Jury prosecutor retaliation the exercise rejected or otherwise for legal right some original prosecu- Third, tion. vindictive prosecution claims appealability rulings on selective involve a to be from free the second prosecution ought claims to march hand in prosecution itself. The claim in substance holding hand with the being prosecuted that “I’m in this case MacDonald, I prosecutor made the mad exer- Supreme L.Ed.2d 18 where the Court cising legal or Constitutional in an- considering speedy trial claim declined to other case.” pretrial “exacerbate delay by intruding Selective prosecution, on upon accepted the other hand principles finality ...” to single involves a prosecution. The allow an arises out of the of prosecutorial thought. One last What ultimately discretion in picking defendant victory claiming of a defendant for ecute this crime at this time. The prosecution? None, remedy would search into the prosecutor— motivation of a prosecutor vigor, sincere belief the deterrent value Jury Grand violations the same crimi- requires bad a court to delve into faith — Acceding nal statute. to the majority’s empirical guilt data not vaguely relevant view of selective claims would very innocence bring supervision the Court into direct claim is made. prosecutor’s office. I cannot abide such Prosecutorial certainly discretion is legal logistic mistake. untrammeled. subject- Neither should it be ed to the scrutiny except of a Court for a showing

clear of abuse of discretion. This

is not the stuff from which

appeals subject To made. claims of

abuse discretion the interlocutory ap-

peal rationale of and Griffin would bring effect into chambers appellate judges day day deci- prosecutor

sions of a why as to this defend-

ant was chosen for while the person of some other —claimed

Case Details

Case Name: United States v. Nancy E. Wilson, United States of America v. Buddy Rex Wilson

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 9, 1981

Citation: 639 F.2d 500

Docket Number: 80-1255, 80-1256

Court Abbreviation: 9th Cir.