United States v. Ralph Bailey, 72 F.3d 138, 10th Cir. (1995)

72 F.
3d 138
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
UNITED STATES of America, Plaintiff-Appellee,

v.
Ralph BAILEY, Defendant-Appellant.
No. 94-5219.
United States Court of Appeals, Tenth Circuit.

Nov. 22, 1995.
Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.

ORDER AND JUDGMENT1
HENRY, Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Ralph E. Bailey appeals his jury conviction of two counts of attempting to

interfere with the administration of internal revenue laws under 26 U.S.C.
7212(a). We affirm.
BACKGROUND
3
Mr. Bailey was originally indicted, along with his wife, for two counts of
"Obstruction of Justice by Interfering with the Administration of the Internal
Revenue Laws" under 26 U.S.C. 7212(a), and for two counts of aiding and
abetting in the commission of these crimes under 18 U.S.C. 2. The indictment
alleged that Mr. Bailey had delayed the collection of his unpaid taxes by filing
fraudulent liens against Internal Revenue Service employees involved in tax
collection. Although the indictment against Mr. Bailey's wife was ultimately
dismissed, his case went to trial, and he was found guilty by a jury of the two
counts under 7212(a). Mr. Bailey now makes several arguments as to why his
conviction should not stand. We discuss each separately below.
DISCUSSION
Aiding and Abetting Charges
4
In his motion for a judgment of acquittal in the district court, Mr. Bailey argued
that the court erred by allowing the jury to consider the aiding and abetting
charges in the indictment. Specifically, because the indictment against Mr.
Bailey's wife was dismissed, the government dismissed the aiding and abetting
charges against Mr. Bailey. The court thereafter directed that the indictment
submitted to the jury be redacted to remove all references to the aiding and
abetting charges. In his motion for a judgment of acquittal, however, Mr.
Bailey maintained that the copy of the indictment submitted to the jury
contained the aiding and abetting language.
In denying Mr. Bailey's motion for acquittal, the district court stated: "No jury
instructions were given on the charge of aiding and abetting, and there was no
reference to aiding and abetting in the copy of the indictment that the jury took
to the deliberation room." Rec. vol. I, doc. 49, at 2. Additionally, the
government has submitted a copy of the jury instructions and the redacted
indictment in the record on appeal. We have thoroughly reviewed the
instructions and the redacted indictment, and we do not find any references to
the aiding and abetting charges. The district court accordingly did not err by
denying Mr. Bailey's motion for a judgment of acquittal.
Sufficiency of the Indictment

6
Mr. Bailey also argues that the indictment was not sufficiently specific so as to
give him proper notice of the charges against him. 26 U.S.C. 7212(a) makes it a
crime to "corruptly ... endeavor[ ] to intimidate or impede any officer or
employee of the United States acting in an official capacity under this title, or
[to] in any other way corruptly ... obstruct[ ] or impede[ ], or endeavor[ ] to
obstruct or impede, the due administration of this title...." The indictment
returned against Mr. Bailey read, in pertinent part:
On or about the 30th day of September, 1992, at Tulsa, Oklahoma, in the
Northern District of Oklahoma, [the defendants] ... did corruptly endeavor to

obstruct or impede the due administration of the Internal Revenue Laws of the
United States, by the following means and methods:
8
....
3. On or about September 30, 1992, in order to divert the time and attention of
the [Internal Revenue] Employees from pursuing the collection of taxes as
noted herein, the defendants illegally and unlawfully attempted to place liens in
the amount of $350,000.00 on the property of each of the Employees, by filing
or causing to be filed in the records of the Clerk of Tulsa County, Oklahoma, a
document entitled "A SECURITY (15 USC) Claim of Commercial Lien and
Affidavit." Said document falsely and fraudulently purported to seize the real
and personal property of each of the Employees for payment of false and
fictitious bond.
10
Rec. vol. I, doc. 1.
11
Mr. Bailey argues that the indictment was insufficient for two reasons: First, he
argues that because the style of the indictment referred to the charged crime as
"Obstruction of Justice by Interfering with the Administration of Internal
Revenue Laws," Rec. vol. I, doc. 1, he was misled and was not sufficiently put
on notice of the nature of the charged crime. In this regard, he points out that
obstruction of justice is a separate crime under 18 U.S.C. 1501 et seq. We do
not, however, agree that the use of this language in the style of the indictment
was misleading. The indictment set forth the elements necessary to constitute
an offense under 26 U.S.C. 7212(a) and stated Mr. Bailey's alleged acts with
particularity. Mr. Bailey has also failed to allege how this purported error
served to prejudice him. He therefore has failed to allege a ground for reversal
of his conviction. See Fed.R.Crim.P. 7(c)(3) ("Error in the citation [of the
charged crime] or its omission shall not be ground for dismissal of the
indictment or information or for reversal of a conviction if the error or omission
did not mislead the defendant to the defendant's prejudice.").
12
Mr. Bailey also argues that the indictment was insufficient because the word
"corrupt" was not contained in the indictment and it is an element of the
offense. However, it is clear from a review of the indictment that Mr. Bailey is
in error. The indictment clearly alleged that Mr. Bailey "did corruptly endeavor
to obstruct or impede the due administration of the Internal Revenue Laws."
Rec. vol. I, doc. 1 (emphasis added).
Constitutionality of 26 U.S.C. 7212(a)

13
26 U.S.C. 7212(a) makes it an offense to "corruptly" obstruct or impede the

administration of internal revenue laws. Mr. Bailey argues that this statute is
unconstitutionally vague because it leaves the definition of "corruptly" open to
conflicting interpretations.
14
"A penal statute is void for vagueness if it: (1) fails to define the criminal
offense with sufficient definitiveness [so] that ordinary people can understand
what conduct is prohibited,' or it (2) fails to establish minimal guidelines to
govern law enforcement' so as to invite arbitrary and discriminatory
enforcement." United States v. Easter, 981 F.2d 1549, 1557 (10th Cir.1992)
(quoting Kolender v. Lawson, 461 U.S. 352, 357, 358 (1983)) (citation omitted)
(alteration in original), cert. denied, 113 S.Ct. 2448 (1993).
15
This court has previously considered the meaning of the word "corruptly" in the
context of the obstruction of justice statute, 18 U.S.C. 1503, which makes it
illegal to "corruptly ... endeavor[ ] to influence, intimidate, or impede" a juror or
an officer of the court. In United States v. Ogle, 613 F.2d 233, 238 (10th
Cir.1979), cert. denied, 449 U.S. 825 (1980), we stated that "corruptly" "really
means unlawful." Thus, in the context of the obstruction of justice statute, "an
endeavor to influence a juror in the performance of his or her duty or to
influence, obstruct or impede the due administration of justice is per se
unlawful and is tantamount to doing the act corruptly." Id. Black's Law
Dictionary defines "corruptly" as follows: "When used in a statute, this term,
generally imports a wrongful design to acquire some pecuniary or other
advantage." Black's Law Dictionary 345 (6th ed.1990). Additionally, the district
court in this case instructed the jury that "[a] person acts corruptly' within the
meaning of the law when he acts with the intention to secure an unlawful
benefit for himself or for another person." Aplee. Supp.App. at 67.
16
The evidence at Mr. Bailey's trial was that he filed liens against IRS agents in
response to a wage levy filed by the IRS. Mr. Bailey admitted that his purpose
was to cause the IRS to cease its lawful tax collection duties. See Aplee.
Supp.App. at 45. We believe an ordinary person would know that attempting to
avoid payment of taxes is unlawful. Unlawful activities clearly fall within the
meaning of "corrupt" acts under any plain construction of the term. The statute
is therefore not unconstitutionally vague as applied in this case.
Acceptance of Responsibility
17
Mr. Bailey contends that he was entitled to a reduction in his offense level
17
Mr. Bailey contends that he was entitled to a reduction in his offense level
under U.S.S.G. 3E1.1 for acceptance of responsibility. Whether a defendant has
accepted responsibility so as to be entitled to this adjustment is a factual
determination, and this court therefore reviews the decision of the district court
only for clear error. United States v. Gacnik, 50 F.3d 848, 853 (10th Cir.1995);
see also U.S.S.G. 3E1.1 comment. (n.5) ("The sentencing judge is in a unique
position to evaluate a defendant's acceptance of responsibility. For this reason,
the determination of a sentencing judge is entitled to great deference on
review.").
18
At Mr. Bailey's sentencing hearing, the district court stated its reason for
denying Mr. Bailey's request for an adjustment under 3E1.1: "I don't think
you're entitled to the [reduction] because you throughout have contested the
authority and jurisdiction of the Internal Revenue Service of the United States
to collect delinquent taxes particularly from you." Rec. vol. IV, at 11. Having
thoroughly reviewed the record, we do not believe the district court's finding is
clearly erroneous.
CONCLUSION
19
The judgment of the district court is accordingly AFFIRMED.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order. 151 F.R.D. 470 (10th Cir.1993)

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72 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals, Tenth Circuit.

Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.

Ralph E. Bailey appeals his jury conviction of two counts of attempting to

Sufficiency of the Indictment

On or about the 30th day of September, 1992, at Tulsa, Oklahoma, in the

Northern District of Oklahoma, [the defendants] ... did corruptly endeavor to

Rec. vol. I, doc. 1.

Constitutionality of 26 U.S.C. 7212(a)

26 U.S.C. 7212(a) makes it an offense to "corruptly" obstruct or impede the

The judgment of the district court is accordingly AFFIRMED.

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