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United States v. Auen

decided: May 17, 1988.


Appeal from judgment of conviction entered after a jury trial in the United States District Court for the Northern District of New York (McAvoy, Judge) on tax evasion charges. Remanded.

Meskill and Altimari, Circuit Judges, and Mishler, District Judge.*fn*

Author: Altimari

ALTIMARI, Circuit Judge:

Defendant-appellant Donald G. Auen appeals from a judgment of conviction entered in the United States District Court for the Northern District of New York after a three-day jury trial before Judge Thomas J. McAvoy. Auen was tried on a three count indictment that charged him with willfull attempted income tax evasion for the calendar years 1981 through 1983 in violation of 26 U.S.C. § 7201. The indictment specifically alleged that Auen attempted to evade paying federal income taxes by supplying false and fraudulent employee withholding allowance certificates (Forms W-4) to his employers, failing to make income tax returns and failing to pay taxes due and owing.

After a jury trial, Auen was convicted on each count of the indictment, and was sentenced to two-year terms of imprisonment on counts one and two, to run concurrently, a two-year term of imprisonment on count three, which was suspended, and a three-year term of probation commencing upon his release. Auen was also fined $2,000.

On appeal, Auen argues that the district court erred in failing to hold a competency hearing pursuant to 18 U.S.C. § 4241 despite the fact that Auen exhibited bizarre behavior throughout the pretrial, trial and sentencing proceedings. Auen also contends that he was denied his right to assistance of counsel when the district court did not provide him with appointed counsel during the trial and sentencing proceedings.

For the reasons that follow, we remand this matter to the district court to determine Auen's competency to stand trial pursuant to 18 U.S.C. § 4241.


The government's evidence presented at trial overwhelmingly established that Auen had evaded his income tax liability for the years covered in the indictment, 1981 through 1983. The evidence indicated that Auen worked as a boilermaker for various employers during that period, received wages from his employment in the approximate amount of $28,200 for 1981, $58,300 for 1982 and $54,000 for 1983, was issued wage and tax statements (Forms W-2) from his employers indicating the correct amount of his wages for each year, and failed to file an income tax return or otherwise pay his federal income taxes for those years.

To establish the willfulness of Auen's conduct, the government sought to prove that he successfully avoided having federal income tax withheld from his wages for most of the period covered in the indictment by submitting to his employers false information on his withholding allowance certificates (Forms W-4). On the W-4's Auen submitted to his employers, the evidence showed that he falsely claimed that he was exempt from income tax liability for the current year and owed no income tax liability for the preceding year. Auen's employers honored his claimed exempt status and withheld no federal income tax from his wages except for a brief, one and a half month period in late-1983. The government also presented evidence establishing that Auen had been furnished with copies of an income tax instructional booklet for the tax year 1981, had been served with tax delinquency notices and was notified that he had been assessed penalties for submitting the false exempt W-4's.

From 1984 to 1986, the IRS conducted an investigation to determine whether Auen may have committed criminal violations of the Internal Revenue Code. On December 3, 1986, after the investigation was complete, Auen was indicted. Auen was then arrested on December 12, 1986 and between January 26 and February 19, 1987, he was tried, convicted and sentenced.

During the initial phase of the government's investigation into Auen's activity, it became apparent that Auen may not have been entirely rational. In a letter sent to the Special Agent investigating his case, Mark Sweeney, Auen included a strange passage concerning the demise of his cat, also named Sweeney, which amounted to a not-too-veiled threat to Agent Sweeney's life. In that letter, Auen stated:

You know Special Agent Sweeney, I should have an easy time remembering your name as I once had a cat named "Sweeney". Now "Sweeney" (my cat) looked like a real clean gentleman from his outward appearances, everyone used to comment on what a nice looking cat old "Sweeney" was. But, oh boy, did I ever learn learn [sic] the hard way about not being deceived by "Sweeney's" appearances.

First I discovered old "Sweeney" was hosing down all the furniture in the house when he got inside. My neighbors told me this was S.O.P. for tom-cats, so I took old "Sweeney" to the vet and had his tail section lightened. Afterwards I noticed old "Sweeney's" meow went up a couple of octaves. That isn't the end of my rememberence of old "Sweeney".

After "Sweeney" was home a couple of days, he went from bad to worse, it was almost like he was out to get me because I had his balls cut off for peeing on the furniture. Yep, I bet you already guessed it Mr. Sweeney, old "Sweeney" started sneaking into the house and doing round-browns all over the place and walking around looking like an innocent gentleman (tom-cat) (correction, altered tom-cat). Yep, you probably already guessed it again Mr. Sweeney, old "Sweeney" bought the bullet. But I at least gave him a fighting chance as I took him out to the country and dropped him off three times, but old "Sweeney" kept coming back and getting inside the house and leaving his calling card (the round-browns) in the corners. The 3rd trip to the country bought old "Sweeney" the smoking end of the Second Amendment.

Now you know why I said I won't have a hard time remembering your name Mr. Sweeney. It reminds me how the Constitution helped put an end to a dirty cat named "Sweeney" from dumping all over me.

When Auen was arrested, the government agents executing the arrest warrant found various semi-automatic weapons at his home in a cabin located deep in the woods. Sometime after Auen's arrest but before his arraignment, Auen threatened the United States Attorney and the Assistant United States Attorney ("AUSA") responsible for Auen's case. In addition, while Auen was being processed at the jail after his arrest, he would not cooperate with the jail officials and refused to sign his fingerprint cards or an assignment of counsel form.

At the arraignment and pretrial detention hearing before Magistrate Conan, Auen's odd behavior was first brought to the attention of the court. After the government presented its case and the magistrate read the charges in the indictment, Auen was given the opportunity to speak. Auen stated that it was his belief that compliance with the Internal Revenue Code was voluntary ...

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