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IRS agent gets nailed with state charges...

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  • Legalbear
    This case will also give you some idea of how IRS agents make money and how they think. Bear VersusLaw Research Database People v. Norman, 703 P.2d 1261 (Colo.
    Message 1 of 2 , Dec 3, 2004
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      This case will also give you some idea of how IRS agents make money and how they think. Bear

       

      VersusLaw Research Database

      People v. Norman , 703 P.2d 1261 (Colo. 06/10/1985)

       

            [1]     Colorado Supreme Court

       

       

            [2]     NO. 83SA290

       

       

            [3]     703 P.2d 1261, 1985.CO.40356 <http://www.versuslaw.com>

       

       

            [4]     June 10, 1985

       

       

            [5]     THE PEOPLE OF THE STATE OF COLORADO , PLAINTIFF-APPELLEE,

            v.

            ROY NORMAN, DEFENDANT-APPELLANT.

       

       

            [6]     Appeal from District Court, Jefferson County , Honorable Ronald J.

            Hardesty, Judge

       

       

            [7]     Duane Woodard, Attorney General, Charles B. Howe, Deputy Attorney

            General, Richard H. Forman, Solicitor General, Dolores S. Atencio,

            Assistant Attorney General, Denver , Colorado , Attorneys for

            Plaintiff-Appellee.

       

       

            [8]     Lee Jay Belstock, Denver , Colorado , Attorney for

            Defendant-Appellant.

       

       

            [9]     Before Justice Kirshbaum. Justice Lohr dissents in part and

            Justice Dubofsky joins in the partial dissent.

       

       

            [10]    Kirshbaum

       

       

            [11]    JUSTICE KIRSHBAUM delivered the Opinion of the Court.

       

       

            [12]    JUSTICE LOHR dissents in part and JUSTICE DUBOFSKY joins in the

            partial dissent.

       

       

            [13]    Defendant, Roy J. Norman, appeals convictions of harassment,*fn1

            felony theft,*fn2 first degree criminal trespass,*fn3 attempt to influence

            a public servant*fn4 and two counts of offering a false instrument for

            recording,*fn5 following a trial to the court. Because defendant asserts

            that section 18-9-111(1)(d), 8 C.R.S. (1978), violates provisions of the

            United States and Colorado Constitutions, the appeal has been transferred

            to this court. See §§ 13-4-102(1)(b), -110(1)(a),*fn6 C.R.S. (1973). We

            affirm in part and reverse in part.

       

       

            [14]    I

       

       

            [15]    This case has its origins in 1969, when defendant, an Internal

            Revenue Service (IRS) revenue officer, and Edytha Lesuer (Lesuer), an IRS

            group clerk, became good friends. Defendant counseled Lesuer concerning

            her work and her personal life, and they and their spouses jointly

            participated in social activities.

       

       

            [16]    In March 1978, the East Continental Industrial Bank (the bank)

            instituted foreclosure proceedings on a parcel of improved land located in

            Jefferson County , Colorado , near the town of Conifer . Lienholders,

            including Pay Center , Nc. (the senior lienor), Arvada Hardwood Floor Co.

            (the junior lienor), and the IRS (the tax lienor) were notified, and

            defendant was assigned to monitor this matter for the IRS. Defendant

            notified the bank that the IRS intended to pursue its interest in the

            property.

       

       

            [17]    Lesuer learned of the impending sale and told defendant she was

            interested in purchasing the property. Recognizing a potential conflict of

            interest, Lesuer decided to purchase the property in her sister's name.

            However, Lesuer later withdrew the bid on the property, and the IRS

            decided not to redeem. On May 31, 1978, the foreclosure sale was held and

            the bank acquired a certificate of purchase for the property from the

            public trustee.

       

       

            [18]    Lesuer then decided to purchase the property from the bank in her

            sister's name. Relying in part upon defendant's advice, she tendered

            $2,334.76 to the bank on August 22, 1978, and the certificate of purchase

            was transferred to her sister. On September 1, 1978, Lesuer and her

            children obtained a quitclaim deed to the mountain property from Lesuer's

            sister. Lesuer was interested in improving the small cabin located on the

            property, but because of the outstanding liens, was hesitant about

            investing additional money in the property. Defendant told Lesuer that the

            junior lien would be extinguished as a result of pending litigation and

            that the $437.08 senior lien was so small no one would pursue it. However,

            in December 1978, defendant purchased the senior lien for approximately

            $228.00.

       

       

            [19]    On December 14, 1978, defendant sent a letter and supporting

            documents, including a writ of execution, to the Jefferson County

            Sheriff's Office requesting execution on the mountain property. That

            office notified the former owner of this property, and Lesuer and her

            children, of the pending sale. However, defendant did not list the junior

            lienor as a party to be notified, and no notice of sale was sent by any

            public official to the junior lienor.*fn7 Defendant was the only bidder at

            the sheriff's sale. For the sum of approximately $800, representing the

            costs of the sale, he acquired a sheriff's deed and certificate of

            purchase for the property on April 25, 1979. Although the calculated bid

            amount was $5,090, this amount included a sum of $4,250 for legal costs

            which, in large part, represented the time defendant indicated that he

            spent conducting legal research.

       

       

            [20]    On May 21, 1979, defendant quitclaimed the mountain property to

            Lesuer; the deed was subsequently recorded. On June 18, 1979, Lesuer

            delivered a check for $2,000 to defendant, who in turn gave Lesuer a

            receipt acknowledging "full payment" for the mountain property. Defendant

            then deposited the $2,000 into his credit union account.

       

       

            [21]    On September 12, 1979, defendant filed a warrantly deed with the

            Office of the Jefferson County Clerk and Recorder conveying the property

            from himself, as holder of the senior lien, to himself as an individual.

            The document contained an allegation that the May 1979 quitclaim deed to

            Lesuer had been removed from defendant's possession "without due

            consideration." Lesuer learned of this filing and confronted defendant

            about it. Subsequently, on March 13, 1980, defendant executed another

            warranty deed, which deed conveyed the mountain property to Lesuer for

            "$10 and other good and valuable consideration."

       

       

            [22]    On August 27, 1980, defendant advised Lesuer by letter that she

            did not own the mountain property because she had taken and recorded deeds

            to the property without his approval. The letter indicated that defendant

            would give Lesuer credit for $2,000, but warned that if a "balance" of

            $28,000 was not paid by September 14, 1980, he would institute legal

            proceedings against her. Defendant also filed another warranty deed with

            the Jefferson County Clerk and Recorder's Office on August 27, 1980. This

            deed, purportedly from defendant and Lesuer as grantors to defendant as

            grantee, indicated that it had been executed for "Correction of Records

            Only" and "to serve notice and correct title." The deed, which was not

            signed by Lesuer, also stated that the March 13, 1980, warranty deed was

            void because it had been "taken[,] stolen, or otherwise removed from my

            possession and recorded without my permission, authority, intent, and

            without due consideration."

       

       

            [23]    In June 1980, Steve Simer, an IRS internal security division

            investigator, began investigating the status of the mountain property.

            Simer contacted Lesuer; Phillip Gay, an investigative auditor with the

            Jefferson County District Attorney's Office; and Diana Tibaldo, a clerk in

            the Jefferson County Assessor's Office, who told Simer that defendant had

            made certain threats against her when he sought to record the August 1980

            warranty deed.

       

       

            [24]    On October 7, 1980, defendant telephoned Lesuer and informed her

            that later in the afternoon he was going to dispose of all of her

            belongings housed in the cabin. Lesuer then called Simer, and the two

            arranged to have lunch to discuss this threat. While driving to the

            designated restaurant, Lesuer noticed defendant following her. Lesuer and

            Simer decided to go to a different restaurant, but defendant again

            followed them. When Lesuer returned to work later that day, defendant

            again telephoned her. As she had done for several months, Lesuer recorded

            the October 7, 1980, telephone conversation with defendant.

       

       

            [25]    When Lesuer left work that afternoon, defendant was waiting for

            her in the parking lot. She and defendant then drove to the property in

            separate vehicles. Earlier in the day, Simer, Gay and another Jefferson

            County District Attorney 's Office investigator had concealed themselves

            near the property. By previously established radio contact, they advised

            Lesuer to enter the cabin, lock the door behind her, exit through the rear

            door and go to a waiting car.

       

       

            [26]    Upon arriving at the cabin, Lesuer entered the front door, told

            defendant to wait outside, locked the front door, and then left through

            the back door and ran to an awaiting car. The investigators observed

            defendant wait for several minutes, then knock and pound on the door, and

            finally walk around the cabin to the sliding glass door at the back of the

            dwelling. Defendant testified that when he looked into the cabin and saw

            that Lesuer was not there, he left without entering. However, the evidence

            established that the front door of the cabin had been unlocked from the

            inside. As defendant attempted to drive away, the investigators stopped

            him and arrested him.

       

       

            [27]    II

       

       

            [28]    Defendant argues that section 18-9-111(1)(d), 8 C.R.S. (1978),

            defining the offense of harassment, violates the due process clauses of

            the Colorado and United States Constitutions*fn8 because its critical

            language is impermissibly vague. We agree.

       

       

            [29]    A penal statute must define an offense with sufficient clarity to

            permit ordinary people to understand what conduct is prohibited and in

            such manner that does not encourage arbitrary and discriminatory

            enforcement of the statute. Kolender v. Lawson, 461 U.S. 352, 75 L. Ed. 2d

            903, 103 S. Ct. 1855 (1983); People v. Schoondermark, No. 84SA99 ( Colo.

            May 6, 1985); People v. Castro, 657 P.2d 932 ( Colo. 1983); People v.

            Allen, 657 P.2d 447 ( Colo. 1983). Thus, the due process clauses of the

            federal and Colorado constitutions require articulation of definite and

            precise standards capable of fair application by judges, juries, police

            and prosecutors. See Smith v. Goguen, 415 U.S. 566, 39 L. Ed. 2d 605, 94

            S. Ct. 1242 (1974); Grayned, v. City of Rockford , 408 U.S. 104, 33 L. Ed.

            2d 222, 92 S. Ct. 2294 (1972); Castro, 657 P.2d 932; Allen, 657 P.2d 447.

            As emphasized in Kolender, "[w]here the legislature fails to provide such

            minimal guidelines, a criminal statute may permit 'a standardless sweep

            [that] allows policemen, prosecutors, and juries to pursue their personal

            predilections.'" 461 U.S. at 358 (quoting Goguen, 415 U.S. at 575).

       

       

            [30]    Section 18-9-111(1)(d), 8 C.R.S. (1978), provides that a person

            commits the crime of harassment if, "with intent to harass, annoy, or

            alarm another person," such person "[e]ngages in conduct or repeatedly

            commits acts that alarm or seriously annoy another person and that serve

            no legitimate purpose." In Bolles v. People, 189 Colo. 394, 541 P.2d 80

            (1975), this court found subsection (1)(e) of the harassment statute,

            which subsection prohibited certain communications, to be facially

            overbroad and, therefore, unconstitutional because the prohibitions

            therein contained impermissibly infringed upon rights of free speech

            protected by the first amendment. We there noted that the terms "annoy"

            and "alarm," when given their conventional meanings, were so broad that

            the most innocuous comment about a debatable or unpleasant topic might

            subject a person to criminal prosecution under subsection (1)(e). Id. at

            397-98, 541 P.2d at 82-83. We also noted in Bolles that engrafting the

            additional phrase "without any legitimate purpose" onto that subsection

            would have injected further uncertainty into the statute. Id. at 398, 541

            P.2d at 83.

       

       

            [31]    Subsection (1)(d) prohibits conduct rather than communication. In

            terms of due process analysis, however, this distinction is one which

            makes no difference. There is no particular legislative concern defined by

            the statute; any and all conduct, by any person, is encompassed by the

            statutory scheme. An actor, a clown, a writer or a speaker all might be

            subject to criminal prosecution because their acts are perceived by some

            official to annoy or alarm others. Protection from such unfettered

            prosecutory discretion is the essence of the due process requirement that

            offenses be legislatively defined with particular standards which ordinary

            citizens who must conform their conduct thereto can understand. See

            Kolender, 461 U.S. 352, 75 L. Ed. 2d 903, 103 S. Ct. 1855 .While some

            degree of generality is admittedly necessary in any legislative efforts to

            prohibit human conduct, see Allen, 657 P.2d at 449, at statute

            articulating a standard so general exceeds the bounds of flexibility

            constitutionally available to the legislature.

       

       

            [32]    Subsection (1)(d) contains no limiting standards to assist

            citizens, courts, judges or police personnel to define what conduct is

            prohibited and, conversely, what conduct is permitted. We therefore

            conclude that the subsection violates the due process clauses of the

            United States and Colorado Constitutions. See Kolender, 461 U.S. 352, 75

            L. Ed. 2d 903, 103 S. Ct. 1855 . In view of this conclusion, we do not

            reach defendant's additional claims that subsection (1)(d) violates his

            first amendment rights and that the evidence was insufficient to support a

            conviction of harassment.

       

       

            [33]    III

       

       

            [34]    Defendant challenges his conviction of theft on the grounds that

            the information failed to give him adequate notice of the offense with

            which he was charged and that the evidence was insufficient to sustain the

            conviction. We agree that the evidence does not support defendant's

            conviction of theft; therefore, we do not reach defendant's claim of

            inadequate notice.

       

       

            [35]    The fourth count of the information charged that on June 18, 1979,

            defendant committed the crime of theft by unlawfully taking and exercising

            control over "money with the value of two hundred dollars or more, but

            less than ten thousand dollars, from Edytha Lesuer," in violation of

            section 18-4-401, 8 C.R.S. (1978).*fn9 In its findings and conclusions the

            trial court noted that this charge presented some difficulty "because of

            the scheme and plan that the defendant used,&q

      (Message over 64 KB, truncated)

    • Dessie Andrews
      I can t believe how the court doesn t sound or seem shocked at the fact that these agents apportion the spoils among themselves. Just business as usual. _____
      Message 2 of 2 , Dec 5, 2004
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        I can’t believe how the court doesn’t sound or seem shocked at the fact that these agents apportion the spoils among themselves.  Just business as usual.

         


        From: Legalbear [mailto:bear@...]
        Sent: Friday, December 03, 2004 12:27 PM
        To: tips_and_tricks@yahoogroups.com
        Subject: [tips_and_tricks] IRS agent gets nailed with state charges...

         

        This case will also give you some idea of how IRS agents make money and how they think. Bear

         

        VersusLaw Research Database

        People v. Norman , 703 P.2d 1261 (Colo. 06/10/1985)

         

              [1]     Colorado Supreme Court

         

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