885 F.2d 547
In re Lowell H. BECRAFT, Jr.
UNITED STATES of America, Plaintiff/Appellee,
Kenneth W. NELSON, Defendant/Appellant.
United States Court of Appeals,
Sept. 6, 1989.
Before FERGUSON, NORRIS and WIGGINS, Circuit Judges.
In February 1988, Kenneth Nelson was convicted in the United
States District Court for the District of Nevada on three counts of
failure to file income tax returns in violation of 26 U.S.C. s 7203.
Nelson, represented by counsel Lowell H. Becraft, Jr., then appealed to
this court claiming, inter alia, that the district court erred in refusing
to give his proposed jury instruction that a United States citizen
residing in the United States is not subject to the federal income tax
By memorandum disposition dated March 22, 1989, this court
affirmed Nelson's conviction, noting that Becraft's argument regarding the
inapplicability of the federal tax laws to resident United States citizens
had no basis in law. Becraft thereafter filed a petition for rehearing
and/or suggestion for rehearing en banc [hereafter "petition for
rehearing"]. In the petition for rehearing, Becraft once again argued
that the federal tax laws are inapplicable to resident United States
Upon receipt of the petition for rehearing, we, sua sponte, issued
a show cause order requesting Becraft to explain why damages in the sum of
$2500 should not be assessed against him for filing a frivolous petition
for rehearing. See Appendix A. We have now reviewed Becraft's
several-hundred- page reply to our show cause order [hereinafter "reply"]
and have reached the conclusion that Becraft's conduct warrants sanctions.
Federal Rule of Appellate Procedure 38 provides this court with
the authority to impose sanctions to deter frivolous appeals and to
conserve limited federal judicial resources. [FN1] See, e.g., Grimes
v. Commissioner, 806 F.2d 1451, 1454 (9th Cir.1986) (per curiam);
Trohimovich v. Commissioner, 776 F.2d 873, 876 (9th Cir.1985); Nunley
v. Commissioner, 758 F.2d 372, 373 (9th Cir.1985) (per curiam). Pursuant
to Rule 38, sanctions may be imposed against pro se litigants, Grimes, 806
F.2d at 1454; Trohimovich, 776 F.2d at 876, litigants represented by
counsel, First Investors Corp. v. American Capital Financial Services,
Inc., 823 F.2d 307, 310 (9th Cir.1987); Wisconsin v. Glick, 782 F.2d 670,
673-74 (7th Cir.1986), and/or directly against appellate counsel. Nevijel
v. North Coast Life Ins. Co., 651 F.2d 671, 675 (9th Cir.1981); Coghlan
v. Starkey, 852 F.2d 806, 818 (5th Cir.1988); Braley v. Campbell, 832
F.2d 1504, 1511 (10th Cir.1987).
FN1. Rule 38 provides: If a court of appeals shall determine that
an appeal is frivolous, it may award just damages and single or double
costs to the appellee.
In assessing the propriety of appellate sanctions, we must
determine whether the issue raised on appeal--or as in this case, a
petition for rehearing--is indeed frivolous. It is well settled that an
appeal is frivolous when the result is obvious or the arguments of error
are wholly without merit. Grimes, 806 F.2d at 1454; Gattuso v. Pecorella,
733 F.2d 709, 710 (9th Cir.1984); Dewitt v. Western Pacific Railroad Co.,
719 F.2d 1448, 1451 (9th Cir.1983). We have no hesitation concluding that
the petition for rehearing filed by Becraft in this case meets the
Notwithstanding Becraft's insistence that his argument regarding
the inapplicability of the federal income tax laws to resident United
States citizens raises numerous complex issues, his position can fairly be
reduced to one elemental proposition: The Sixteenth Amendment does not
authorize a direct non-apportioned income tax on resident United States
citizens and thus such citizens are not subject to the federal income tax
laws. [FN2] We hardly need comment on the patent absurdity and frivolity
of such a proposition. For over 75 years, the Supreme Court and the lower
federal courts have both implicitly and explicitly recognized the
Sixteenth Amendment's authorization of a non- apportioned direct income
tax on United States citizens residing in the United States and thus the
validity of the federal income tax laws as applied to such citizens. See,
e.g., Brushaber v. Union Pacific Railroad Co., 240 U.S. 1, 12-19, 36
S.Ct. 236, 239-42, 60 L.Ed. 493 (1916); Ward, 833 F.2d at 1539; Lovell
v. United States, 755 F.2d 517, 519 (7th Cir.1984); Parker
v. Commissioner, 724 F.2d 469, 471 (5th Cir.1984); United States
v. Romero, 640 F.2d 1014, 1016 (9th Cir.1981). Indeed, in Lovell, one of
the more recent cases explicitly rejecting a Sixteenth Amendment argument
virtually identical to Becraft's position in this case, the court
sanctioned the pro se appellants for raising this and other federal tax
exemption claims on appeal. See Lovell, 755 F.2d at 520. If a claim is
sufficiently frivolous to warrant sanctions against a pro se appellant, it
unarguably supports the assessment of sanctions against a seasoned
attorney with considerable experience in the federal courts.
FN2. While Becraft devotes a good portion of his brief, petition
for rehearing, and reply to a discussion of the structure of the Internal
Revenue Service and the control numbers designated to income tax forms
pursuant to the Paperwork Reduction Act, he does so only to provide
support for his fundamental proposition that the Sixteenth Amendment does
not authorize a direct non-apportioned tax on citizens residing in the
United States. Hence, his entire legal argument hinges on the
constitutionality of directly taxing resident United States citizens.
Additionally, we note that much of Becraft's reply is also devoted to a
discussion of the limitations of federal jurisdiction to United States
territories and the District of Columbia and thus the inapplicability of
the federal income tax laws to a resident of one of the states. We are
somewhat perplexed as to why he included this contention in his reply
since he omitted any reference to this issue in the petition for
rehearing. In any event, as Becraft should be well aware, this claim also
has no semblance of merit. The Eleventh Circuit summarily rejected the
identical argument in United States v. Ward, 833 F.2d 1538, 1539 (11th
Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1576, 99 L.Ed.2d 891
(1988), a case in which Becraft served as the defendant's appellate
In reaching the conclusion the Becraft's petition for rehearing is
frivolous, we rely not only on the fact that the argument is in direct
conflict with "firmly established rules of law for which there is no
arguably reasonable expectation of reversal or favorable modification,"
McDougal v. Commissioner, 818 F.2d 453, 455 (5th Cir.1987), but also on
the fact that this wholly meritless claim was pressed in a petition for
rehearing after this court had already summarily rejected the claim and
characterized it as having no basis in law. Thus, the result of the
petition for rehearing was even more obvious than the initial appeal.
Indeed, it is beyond our comprehension that a competent attorney,
which Becraft certainly is, could harbor a good faith belief that this
panel or the court sitting en banc would reconsider the rejection of
Nelson's claim of federal tax exemption. While a finding of bad faith is
not necessary to impose sanctions under Fed.R.App.P. 38, see Coghlan, 852
F.2d at 814-815 (bad faith not required element of imposition of sanctions
under rule 38); Braley v. Campbell, 832 F.2d at 1512 (finding of
subjective bad faith unnecessary to impose sanctions under Rule 38);
Grimes, 806 F.2d at 1454 ("The purpose of Rule 38 ... is to induce
litigants to conform their behavior to the governing rules, regardless of
their subjective belief."), the fact that Becraft likely filed the
petition for hearing absent a good faith belief of its justification
contributes to our strong conviction that Becraft's conduct warrants the
imposition of sanctions. See Coghlan, 852 F.2d at 814 ("Bad faith may
aggravate the circumstances justifying sanctions....")
Moreover, we believe that Mr. Becraft's litigation record in the
federal appellate courts demonstrates the necessity of sending a message
to Becraft that frivolous arguments will no longer be tolerated. Our
research reveals that we are not the first appellate court in which
Becraft has raised this patently frivolous Sixteenth Amendment claim. In
Ward, a case in which Becraft served as defendant's appellate counsel, see
supra, n. 1, the Eleventh Circuit characterized as "utterly without merit"
the identical argument raised by Becraft here regarding the applicability
of the federal tax laws to resident United States citizens. 833 F.2d at
1539. Moreover, Becraft also advanced the patently frivolous claim in
Ward that the federal income tax laws apply only to residents of federal
territories and the District of Columbia. Id.; see supra, n. 1.
Unfortunately, Becraft's record of advancing wholly meritless
claims does not end with Ward. United States v. Stahl, 792 F.2d 1438 (9th
Cir.1986), cert. denied, 479 U.S. 1036, 107 S.Ct. 888, 93 L.Ed.2d 840
(1987), and United States v. Sitka, 845 F.2d 43 (2d Cir.), cert. denied,
--- U.S. ----, 109 S.Ct. 77, 102 L.Ed.2d 54 (1988), appeals in which
Becraft served as co-counsel and counsel respectively, addressed the claim
that the Sixteenth Amendment was never properly ratified and that
therefore the federal courts lack jurisdiction to entertain tax evasion
prosecutions. Needless to say, both courts soundly rejected this
contention. See Sitka, 845 F.2d 44- 47; Stahl, 792 F.2d 1438-1441.
Becraft's record in the federal courts thus exhibits an alarming
willingness to utilize appellate court resources to adjudicate claims that
a competent attorney should realize have no reasonable possibility of
Based on Becraft's conduct in this case and prior cases, it is
clear to us that Becraft has no appreciation for the limited nature of the
federal judicial resources upon which all aggrieved individuals depend for
vindication of statutory and constitutional rights. For if he did have
respect for the extreme demands constantly placed on the court's
resources, he would not continue to use the courts as testing ground for
revisionist historical theories that have absolutely no basis in law.
While we are in general accord with the Seventh Circuit's
statement that "[c]riminal defendants and their lawyers must abide by the
rules that apply to other litigants, ... including the principle that
litigating positions must have some foundation in existing law or be
supported by reasoned, colorable arguments for change in the law,"
Wisconsin v. Glick, 782 F.2d 670, 673 (7th Cir.1986) (citation omitted),
we are hesitant to exercise our power to sanction under Rule 38 against
criminal defendants and their counsel. With respect to counsel, such
reluctance, as evidenced by the absence of authority imposing sanctions
against defense counsel, [FN3] primarily stems from our concern that the
threat of sanctions may chill a defense counsel's willingness to advance
novel positions of first impression. Our constitutionally mandated
adversary system of criminal justice cannot function properly unless
defense counsel feels at liberty to press all claims that could
conceivably invalidate his client's conviction. Indeed, whether or not
the prosecution's case is forced to survive the "crucible of meaningful
adversarial testing" may often depend upon defense counsel's willingness
and ability to press forward with a claim of first impression. See United
States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 2045, 80 L.Ed.2d 657
(1984). Moreover, because of the significant liberty deprivation often at
stake in a criminal prosecution, courts generally tolerate arguments on
behalf of criminal defendants that would likely be met with sanctions if
advanced in a civil proceeding. See Glick, 782 F.2d at 673.
FN3. Our research did not reveal any case in which the court has
imposed sanctions on defense counsel under Rule 38 and only one case in
which sanctions were assessed against a criminal defendant. See Glick,
782 F.2d at 673-74 (state criminal defendants sanctioned for bringing
frivolous appeal after unsuccessfully attempting to remove their state
criminal prosecutions to federal court).
Notwithstanding the legitimate countervailing concerns that
accompany imposing sanctions against defense counsel, we nevertheless
believe that when a criminal defense counsel reasserts an argument in a
petition for rehearing which was summarily rejected on direct appeal, and
which flies in the face of unambiguous, firmly established law, that
attorney exposes himself to the imposition of sanctions under Rule 38.
Accordingly, we order Becraft to pay $2,500 in damages. With so many
worthy claims waiting to be adjudicated, we are not obliged to stand by
silently when an attorney repeatedly breaches his professional
responsibility to the court.
We are fully confident that our assessment of sanctions for a
frivolous petition for rehearing in this case will have no deterrent
effect on litigants and attorneys' advancement of reasonably based novel
positions in the future. We sincerely hope, however, that this assessment
will deter Becraft from asking this and other federal courts to expend
more time and resources on patently frivolous legal positions. [FN4]
FN4. We wish to emphasize that our decision in this case should
not be read as authority for imposing sanctions against a criminal defense
counsel for a frivolous direct appeal following conviction; we express no
opinion on whether or in what circumstances Rule 38 sanctions may be
imposed for such an appeal.
The Clerk of this Court shall enter a judgment in the sum of
$2,500 in favor of the United States of America and against
Lowell H. Becraft, Jr.
Counsel for the Appellant Lowell H. Becraft, Jr., 209 Lincoln
Street, Huntsville, Alabama 35801, is ordered to show cause why damages in
the sum of $2,500 should not be imposed upon him for filing a frivolous
petition for rehearing and suggestion for rehearing en banc.
The reasons for the issuance of this order to show cause are as
1. Appellant Kenneth Nelson was convicted in the United States
District Court for the District of Nevada on three counts of failure to
file income tax returns in violation of 26 U.S.C. s 7203.
2. By memorandum disposition dated March 22, 1989, this court
affirmed the judgment of the district court.
3. On appeal, Nelson claimed, inter alia, that the district court
erred in refusing to give his proposed jury instructions concerning his
theory that a United States citizen is not a "person" and that his wages
were not "income" within the meaning of the Internal Revenue Code.
4. In affirming Nelson's conviction, this court emphasized that
his construction of the Internal Revenue Code has been consistently
rejected by federal courts and had no basis in law.
5. On April 5, 1989, Lowell H. Becraft, Jr., as attorney for
Appellant Nelson, filed with this court a petition for rehearing and
suggestion for rehearing en banc.
6. In this petition, Nelson realleges the inapplicability of
federal tax laws to income earned by United States citizens.
7. Counsel for Nelson acknowledges in his petition that this issue
had been presented to, and rejected by, this court in its memorandum
disposition of March 22, 1989.
8. While the court did not impose sanctions in its memorandum
disposition, the issue of the applicability of federal tax laws to this
case was and is patently frivolous as it finds no support in the Internal
Revenue Code and ignores clear legal precedent. See Malhiot
v. S. Cal. Retail Clerks Union, 735 F.2d 1133, 1137 (9th Cir.1984),
cert. denied, 469 U.S. 1189, 105 S.Ct. 959, 83 L.Ed.2d 965 (1985) (appeal
frivolous when "result is obvious or [when] the claims of error are wholly
9. Frivolous petitions such as this impose an unjustified burden
on the federal judiciary. To raise the same frivolous contention on a
petition for rehearing and suggestion for en banc review forces this court
to consider sanctions in order to assure that its responsibilities are not
hindered by wasteful, time-consuming petitions requiring consideration by
not only a three- member panel of the court but also the entire court
because of the en banc suggestion.
10. Pursuant to F.R.App.P. 38, this court has the authority to
impose sanctions to deter frivolous appeals and to conserve federal
judicial resources. See, e.g., First Investors Corp. v. American Capital
Financial Services, Inc., 823 F.2d 307, 310 (9th Cir.1987); Trohimovich
v. Commissioner, 776 F.2d 873, 875-76 (9th Cir.1985); Nunley
v. Commissioner, 758 F.2d 372, 373 (9th Cir.1985) (per curiam); Stites
v. United States Government, 746 F.2d 1085, 1086 (5th Cir.1984) (per
Therefore, Lowell H. Becraft, Jr., is ordered to show cause as set
forth in this order.
All documents in opposition to this order must be filed with the
Clerk of this court within 20 days from the date of the filing of this
The Clerk of the Court shall serve a copy of this order upon
Mr. Becraft by United States mail and shall furnish counsel for appellee
with a copy of this order.