United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
January 26, 2017, a jury convicted defendant David G. Pflum
of two charges: (1) attempting to evade and defeat the
payment of income tax, a violation of 26 U.S.C. § 7201,
and (2) corruptly endeavoring to obstruct and impede the due
administration of the Internal Revenue laws, a violation of
26 U.S.C. § 7212(a). Doc. 179.
Pflum has filed several post-trial motions that the court
considers below. Through counsel, Mr. Pflum filed a Motion
for Judgment of Acquittal. Doc. 182. This motion moves the
court to set aside the jury's verdict under Fed. R. Crim.
P. 29(c) because, Mr. Pflum contends, the government
presented insufficient evidence for a rational jury to find
him guilty beyond a reasonable doubt of the crimes charged.
Mr. Pflum also has filed several pro se motions after the
trial. Docs. 188, 196, 203. His pro se motions ask the court
for various forms of relief. They include dismissal of the
Indictment, an order releasing him from custody, and transfer
of the case to another judicial district. The government has
responded to some of Mr. Pflum's motions, filing Motions
for Orders denying them. Docs. 197, 199.
reasons explained below, the court denies all of Mr.
Pflum's post-trials motions and grants the
government's motions. In sum, the government presented
sufficient evidence for a rational jury to find Mr. Pflum
guilty beyond a reasonable doubt of the two counts of
conviction. And, as the court already has explained in other
orders denying similar motions, Mr. Pflum's arguments for
dismissal of the Indictment are meritless. The court
repeatedly has rejected Mr. Pflum's assertion that the
court lacks subject matter and personal jurisdiction. Mr.
Pflum nonetheless makes the same assertions again in his pro
se post-trial motions. But, he provides no reason why the
court should reconsider or set aside its earlier rulings. The
court explains its conclusions in greater detail below.
Factual and Procedural Background
4, 2014, a grand jury returned a two-count Indictment
charging Mr. Pflum with (1) attempting to evade and defeat
the payment of income tax in violation of 26 U.S.C. §
7201; and (2) corruptly endeavoring to obstruct or impede the
due administration of the Internal Revenue laws in violation
of 26 U.S.C. § 7212(a). Doc. 1. On May 4, 2016, a grand
jury returned a First Superseding Indictment against Mr.
Pflum, charging the same offenses, but expanding the dates
when he allegedly engaged in illegal conduct to include
additional tax years. Doc. 100.
the grand jury returned the original Indictment in June 2014,
Assistant Federal Public Defender Andrew J. McGowan entered
his appearance for Mr. Pflum. Doc. 6. During Mr.
McGowan's representation, Mr. Pflum asked several times
for the court to discharge Mr. McGowan and allow the
defendant to represent himself. See, e.g.,
Docs. 25, 53. On November 30, 2015, the court granted Mr.
Pflum's request, allowed him to proceed pro se, and
appointed Mr. McGowan as standby counsel. Doc. 55.
March 16, 2016, Mr. Pflum filed another motion asking the
court to withdraw Mr. McGowan's representation as standby
counsel. Doc. 76. But, at a hearing on the motion, Mr. Pflum
reversed course yet again, announcing that he no longer
wished to represent himself. Doc. 89. After conducting an
extensive colloquy to discern whether Mr. Pflum understood
the consequences of his decision, the court found that Mr.
Pflum had waived his right to self-representation.
Id. So, the court reappointed Mr. McGowan as counsel
for Mr. Pflum. Id.
days later, Mr. McGowan filed a motion to withdraw from this
representation because Mr. Pflum had made serious allegations
about Mr. McGowan's loyalties, including that he was
conspiring with the prosecution to undermine Mr. Pflum's
constitutional rights. Doc. 90 at 8. Mr. McGowan asked the
court to grant his motion to withdraw because of this
conflict of interest, irreconcilable differences, and a
breakdown in communications. Id. The court granted
Mr. McGowan's motion and allowed him to withdraw. Doc.
94. The court then appointed Robin Fowler to represent Mr.
Pflum. Doc. 97.
November 17, 2016, Mr. Pflum filed a pro se motion asking the
court to terminate Mr. Fowler's representation. Doc. 128.
The court held a hearing on the motion and conducted yet
another detailed colloquy with Mr. Pflum about his right to
counsel. Doc. 131. The court again concluded that Mr. Pflum
had waived his right to counsel, and it permitted Mr. Pflum
to represent himself with Mr. Fowler serving as standby
court set the case for trial beginning on Tuesday, January
17, 2017. The court held a limine conference on January 10,
2017. Mr. Pflum appeared in person at the conference, still
representing himself with Mr. Fowler serving as standby
counsel. Doc. 153. The following week, the court called the
case for trial, as scheduled, on January 17, 2017, at 9:01
a.m. Doc. 156. Counsel for the government and Mr. Fowler
appeared. Id. But Mr. Pflum did not. Id.
The court directed the clerk to issue a warrant to the United
States Marshal to secure Mr. Pflum's appearance for
trial. Id. Mr. Pflum was arrested the next day, and
he appeared for a status conference. Mr. Fowler again
appeared as standby counsel. Doc. 165. Mr. Pflum changed
course again, asking the court to reappoint Mr. Fowler so he
could try the case and otherwise serve as his counsel going
forward. Id. The court conducted another colloquy
with Mr. Pflum and concluded that he had waived his right to
represent himself in the case. Id. So, the court
reappointed Mr. Fowler as counsel. Id. The court
also scheduled the jury trial to begin on Friday, January 20,
2017, at 9:00 a.m.
jury trial began, as scheduled, on January 20. Mr. Fowler
represented Mr. Pflum throughout the trial. Among other
things, the government presented the following evidence at
trial. In 2004, a jury convicted Mr. Pflum of multiple tax
code violations, including three counts of failing to file
income tax returns for the tax years 1997 through 1999.
Judgment, United States v. David G. Pflum, No.
04-40008-01-SAC (D. Kan. Dec. 10, 2004), ECF No. 94. As a
condition of supervised release, United States District Judge
Sam A. Crow ordered Mr. Pflum to file “truthful and
complete federal and state income tax returns in a timely
manner, according to law, and cooperate with the Internal
Revenue Service and state tax authorities regarding any
manner related to the defendant's past or present tax
liability during the term of supervision.” Id.
2008, the United States Probation Officer
(“USPO”) asked Mr. Pflum to provide certain
financial information as part of his efforts to comply with a
condition of his supervised release. In response, Mr. Pflum
submitted a net worth statement that listed his only asset as
$472.75 in cash and claimed that he had no taxable income.
After the USPO questioned the information provided, Mr. Pflum
submitted a revised net worth statement that identified
substantial monthly income and real estate holdings.
September 19, 2008, Judge Crow issued an order modifying Mr.
Pflum's conditions of supervised release. Order Modifying
Conditions of Supervised Release, United States v. David
G. Pflum, No. 04-40008-01-SAC (D. Kan. Sept. 19, 2008),
ECF No. 149. Among other conditions, Judge Crow ordered Mr.
Pflum to “provide proof of filing a truthful and
complete income tax return for tax years from 1997 to 2007,
to the U.S. Probation Officer and U.S. Attorney's office
prior to December 11, 2008.” Id. at
Mr. Pflum later filed federal income and employment tax
returns for tax years 1997 through 2007. These tax returns
reported Mr. Pflum's total income as $7, 700, 494.00 and
claimed he owed $2, 663, 854.23 in federal income and
employment taxes. In 2008, the Internal Revenue Service
(“IRS”) attempted to collect the taxes that Mr.
Pflum owed the government but never had paid. As part of this
effort, the IRS issued liens against Mr. Pflum's real
estate holdings and levies against the income he was
trial, IRS Special Agent Henry Herron testified about his
investigation into Mr. Pflum's tax filings and payments.
Through Agent Herron's testimony, the government
introduced an exhibit containing a two-page summary chart
showing the information Mr. Pflum had provided on the tax
returns he had signed and filed for tax years 1997 through
2007. The chart shows that the total amount of income
reported by Mr. Pflum on those tax returns exceeds $7.7
million. The chart also includes Agent Herron's
calculation that Mr. Pflum owed more than $2.6 million in
federal taxes for those tax years.
government also presented evidence that Mr. Pflum sold his
business, Coil Springs Specialties, to his son in 2006. The
government introduced a purchase agreement dated October 12,
2006. This agreement provides that Mr. Pflum's son had
agreed to purchase the business for $2, 280, 018.74. Under a
separate secured promissory note, the business agreed to pay
the purchase price to Mr. Pflum in monthly installment
payments of $16, 321.93, beginning January 31, 2007. The
government thus asserted that Mr. Pflum had received income
from his ownership interest in Coil Spring Specialties until
October 12, 2006, and maybe even as late as January 31, 2007.
The government also asserted that Mr. Pflum has received more
than $16, 000 each month in installment payments from the
sale of his business. Indeed, Mr. Pflum identified proceeds
that he received from the business sale in the revised net
worth statement that he submitted to the USPO in 2008. On
that statement, Mr. Pflum reported the sale of Coil Spring
Specialties with a monthly payment of $15, 000.
government also introduced into evidence a Judgment that our
court entered against Mr. Pflum on May 16, 2013. Judgment in
a Civil Case, United States v. Pflum, No.
12-4115-JTM (D. Kan. May 16, 2013), ECF No. 21. This Judgment
reduced Mr. Pflum's unpaid federal tax liabilities to a
judgment against him in the amount of $6, 408, 357.25.
government asserted at trial that Mr. Pflum had evaded and
obstructed the payment of federal tax in five different ways.
First, the government asserted that Mr. Pflum concealed his
net worth when he provided inaccurate information to the USPO
in 2008. Second, the government asserted that Mr. Pflum
attempted to cloud property titles. To support this argument,
the government introduced into evidence several deeds that
clouded the title of property subject to government
foreclosure. The government contended that Mr. Pflum had
created and recorded the deeds. Third, the government
asserted that Mr. Pflum had submitted false documents. The
government introduced into evidence several documents created
by Mr. Pflum, including documents showing purported tax
payments to the IRS. Fourth, the government asserted that Mr.
Pflum had sent threatening and misleading letters and emails.
The government supported this assertion by introducing
several pieces of correspondence authored by Mr.
Pflum. Finally, the government asserted that Mr.
Pflum sent altered IRS documents. To support this argument,
the government presented Release of Levy forms that, it
contended, Mr. Pflum had altered.
the court submitted the case, the jury deliberated and
returned guilty verdicts for both of the counts charged in
the Indictment. Doc. 179. The jury completed a special
verdict form for each charge. The jury agreed that Mr. Pflum
had committed affirmative acts to evade the payment of income
taxes by submitting false financial statements, instructing
third parties to ignore IRS collection efforts, and
threatening legal action against third parties who complied
with the IRS's collection efforts. Id. at 2-3.
The jury also agreed that Mr. Pflum committed affirmative
acts to obstruct the due administration of the Internal
Revenue laws by submitting false financial statements, filing
a grant deed attempting to transfer ownership interest of
property located at 500 MacDonald, San Juan, Washington,
instructing third parties to ignore IRS collection efforts,
and threatening legal action against third parties who
complied with the IRS's collection efforts. Id.
trial, Mr. Pflum filed a Motion to Proceed Pro Se at
Sentencing. Doc. 184. The court held a hearing on the motion
on March 13, 2017. At that hearing, the court conducted yet
another colloquy about the potential disadvantages of a
defendant representing himself. The court granted Mr.
Pflum's motion and so he is representing himself as the
case proceeds into the sentencing phase. Doc. 187. The court
also reappointed Mr. Fowler as standby counsel. Id.
court now turns to the post-trial motions that Mr. Pflum has
filed, both through counsel and pro se.
for Judgment of Acquittal
Mr. Fowler still represented Mr. Pflum, he filed a Motion for
Judgment of Acquittal. Doc. 182. The motion asks the court to
set aside the jury's guilty verdicts on both counts and
acquit Mr. Pflum under Fed. R. Crim. P. 29(c). This motion
asserts that the government presented insufficient evidence
to prove that Mr. Pflum actually earned income during the tax
years alleged in the Indictment. And thus, Mr. Pflum argues
insufficient evidence existed to support the jury's
verdicts that he attempted to evade the payment of income
taxes (as Count 1 charged) or that he corruptly endeavored to
obstruct or impede the due administration of the Internal
Revenue laws (as Count 2 charged).
described above, Mr. Pflum asked the court to terminate Mr.
Fowler's representation after he had filed the Motion for
Judgment of Acquittal on Mr. Pflum's behalf. At a hearing
on March 13, 2017, the court granted Mr. Pflum's request,
allowing Mr. Pflum to proceed pro se at sentencing and
reappointing Mr. Fowler as standby counsel. Doc. 187. Also at
this hearing, the court ordered Mr. Pflum to “file a
statement stating whether he stands on the Motion for
Judgment Notwithstanding Verdict (Doc. 182) or chooses to
file a new motion by March 27, 2017.” Id. at
1. Mr. Pflum never filed any statement expressing his
position on the already-filed Motion for Judgment of
government has filed a Motion for Order asking the court to
deny Mr. Pflum's Motion for Judgment of Acquittal. Doc.
197. The government asserts that Mr. Pflum never has affirmed
or incorporated the Motion for Judgment of Acquittal into the
pro se motions he has filed after terminating Mr.
Fowler's representation. The government thus argues that
Mr. Pflum has abandoned the arguments raised in the Motion
for Judgment of Acquittal. And, the government asks the court
to issue an order denying the Motion for Judgment of
Acquittal for this reason.
court agrees with the government that Mr. Pflum appears to
have abandoned the arguments asserted in the Motion for
Judgment of Acquittal. The court thus denies the motion for
this reason. But the court also denies the motion for another
reason: the government presented sufficient evidence for a
reasonable jury to find Mr. Pflum guilty beyond a reasonable
doubt of the crimes charged. The court thus ...