Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77 CR 906 -- George N. Leighton, Judge.
Before Pell and Sprecher, Circuit Judges, and Campbell, Senior District Judge.*fn*
This appeal is from the conviction of the defendant for failing to supply information to the government relative to his federal income tax.
The defendant was indicted in four counts, the first three charging him with failure to file returns, supply information, or pay federal income tax for the years 1973, 1974 and 1975, in violation of 26 U.S.C. § 7203*fn1 and the fourth count charging him with supplying a false or fraudulent statement or failure to supply information in 1974, in violation of 26 U.S.C. § 7205.*fn2 The jury found the defendant guilty on all counts and he was sentenced to one year incarceration, five years probation and a fine of $6,500.
During the years in question, the defendant was employed by Quaker Oats Company, which issued W-2 forms to the defendant, indicating wages of $30,342.88 in 1973, $23,841.79 in 1974, and $25,741.27 in 1975. During these same years the defendant filed a W-4 form with his employer in which he claimed 34 withholding allowances. The defendant is married and has three children. Due to the 34 allowances, no money was withheld by the employer for federal income tax in the three years. No returns were timely filed for 1973, 1974 or 1975.
On February 17, 1977, the defendant filed a 1973, a 1974 and a 1975 Form 1040, which were completely blank except for taxpayers' (husband defendant and wife) names, address, the defendant's social security number, filing status, claiming of three exemptions, the first name of one dependent child, and two asterisks (* *) opposite each line. Each form had attached to it 48 pages, one of which explained the double asterisks as meaning:
Specific objection is made to this question under the Fifth Amendment, U. S. Constitution, as to Federal Reserve Notes and rights under said Amendment; and similar objection is made to the question under the First, Fourth, Seventh, Eighth, Ninth, Tenth, Thirteenth, Fourteenth, and Sixteenth Amendments.
The other pages of attachments included affidavits by the defendant that he was confused about the meaning of "dollars"; a copy of the Constitution of the United States; copies of what are apparently the partial contents of the Internal Revenue Service's files as of July 20, 1976, relating to the defendant, obtained by him in response to his Freedom of Information and Privacy Act requests; copies of newspaper clippings; copies of letters by the defendant to several Congressmen complaining that the I.R.S. was collecting dossiers of newspaper clippings containing defendant's various letters-to-the-editor critical of the I.R.S. and some of the Congressmen's replies to the defendant.
In none of the above material was any information given in regard to the defendant's or his spouse's income or was any information furnished from which such income could be determined.
The defendant has appealed his conviction upon several grounds, the first of which is that he was selectively prosecuted, relying principally upon United States v. Falk, 479 F.2d 616 (7th Cir. 1973). In Falk the defendant, who was prosecuted for failure to have in his possession a selective service registration card or a draft classification card, had offered to prove that over 25,000 persons had dispossessed themselves of their draft cards, that the government had published its policy not to prosecute violators, that Falk was an active and vocal dissenter to the draft and the Vietnam War, that he was advised by a government prosecutor that he had been singled out for prosecution because of his anti-draft activities and his prosecution had been approved by a chain of high officials of the Justice Department.
The only one of these various Falk facts that the defendant here showed was that he was an active tax protestor, but he did not show that the government has a policy of not prosecuting other persons who fail to file their returns or supply information. All that he showed was that his activity may have attracted attention that he was likely to be violating the tax laws, which situations the government prosecutes to the extent that it has knowledge of the violations and to the extent of its physical capabilities to prosecute the volume of cases presented.
Virtually the same kind of showing in similar cases has uniformly resulted in a holding of failure to establish selective prosecution. United States v. Berrios, 501 F.2d 1207, 1211 (2nd Cir. 1974); United States v. Swanson, 509 F.2d 1205, 1208-1209 (8th Cir. 1975); United States v. Scott, 521 F.2d 1188, 1195 (9th Cir. 1975) ("Appellant fails in his claim of discriminatory prosecution because he had not demonstrated that others similarly situated who have failed to file income tax returns have not been prosecuted."); United States v. Gardiner, 531 F.2d 953, 954 (9th Cir. 1976) ("Appellant was in clear violation of the law and the ...