FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10170
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-00008-LKK-1
DONALD M. WANLAND, JR.,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Argued and Submitted June 15, 2016
San Francisco, California
Filed July 27, 2016
Before: J. Clifford Wallace, Mary M. Schroeder,
and John B. Owens, Circuit Judges.
Opinion by Judge Owens
2 UNITED STATES V. WANLAND
SUMMARY*
Criminal Law
The panel affirmed the district court in all respects in a
case in which the defendant was convicted of tax related
charges, including tax evasion.
The panel held that neither the district court nor the jury
erred in concluding that the defendant’s monthly income from
his law practice qualified as “salary or wages” under 26
U.S.C. § 6331(e), and therefore rejected the defendant’s
contention that the government could not prove concealment
of property subject to a levy, as required for conviction under
26 U.S.C. § 7206(4).
Rejecting the defendant’s contention that the district court
erred in dismissing the levy counts because they exceeded the
three-year statute of limitations, the panel held that the six-
year statute of limitations of 26 U.S.C. § 6531(1), covering
tax offenses “involving the defrauding or attempting to
defraud” the government, applies to prosecutions under
§ 7206(4).
The panel held that the district court properly rejected the
defendant’s argument that res judicata precludes the
government from pursuing a criminal action concerning his
debts that were already discharged in bankruptcy. The panel
held res judicata cannot apply because the IRS in a
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. WANLAND 3
bankruptcy action and the United States government in a
criminal action are not in privity.
The panel resolved several of the defendant’s arguments
in a concurrently-filed memorandum disposition.
COUNSEL
John R. Hurley (argued) and Eduardo G. Roy, Prometheus
Partners LLP, San Francisco, California, for Defendant-
Appellant.
Christopher Hales (argued) and Matthew D. Segal, Assistant
United States Attorneys; Camil A. Skipper, Appellate Chief;
United States Attorney’s Office, Sacramento, California; for
Plaintiff-Appellee.
OPINION
OWENS, Circuit Judge:
Defendant Donald Wanland, Jr. appeals from his jury
convictions and sentence for tax related charges, including
tax evasion. Although Wanland raises many arguments
challenging his convictions and sentence, none has merit, so
we affirm the district court in all respects.1
1
We resolve several of Wanland’s arguments in a concurrently-filed
memorandum disposition.
4 UNITED STATES V. WANLAND
I. Factual Background
Wanland was a successful civil attorney in Sacramento,
California, and his law practice generated considerable
income. In the 1990s, he entered into two partnership
agreements with Richard Bernstein—the Law Offices of
Wanland and Bernstein (from which Wanland drew his
income) and 705 University Partners (which held the real
estate at 705 University Avenue, the partnership’s law office).
Wanland received 75% of the profits, while Bernstein
received 25% of the profits, in scheduled monthly draws.
More specifically, partners were entitled to “withdraw from
the partnership funds in equal monthly installments an
amount equal to four-fifths of his distributive share of
partnership net profits for the preceding year.” 705
University Partners had its own bank account (“705
Account”), which Wanland used as both his business and
personal account.2
Wanland’s disputes with the Internal Revenue Service
(“IRS”) began in the 1990s, and they continued into the new
millennium. For tax years 2000–2003, Wanland filed
personal tax returns reporting many hundreds of thousands of
dollars of income, and owing around $450,000 in taxes.
Wanland never paid these taxes, and then stopped filing
personal tax returns altogether. His law partnership
continued to file returns showing income of around $300,000
each year.
2
Throughout the relevant time period, 705 University Partners had
several different bank account numbers. We refer to them jointly as the
“705 Account.”
UNITED STATES V. WANLAND 5
After several failed attempts to resolve his tax
deficiencies, an IRS Officer was assigned to Wanland’s case.
Following some initial correspondence, the officer sent a
Collection Information Statement (IRS Form 433A) to
Wanland’s personal accountant to complete. Form 433A
discloses an individual’s income, expenses, assets, accounts,
and liabilities so the IRS can assess an individual’s ability to
pay outstanding taxes.
In November 2003, Wanland completed, signed, and
submitted the Form 433A. He listed only one bank account
with a balance of $9. He did not list the 705 Account, even
though, in the previous month alone, he had deposited
$35,000 from his law practice into and spent over $18,000
from the 705 Account. He also did not list his American
Express card, even though he had used roughly $15,000 from
the 705 Account in October and November to pay down its
balance. He also never disclosed the 705 Account to his
accountants, who would have told Wanland that he needed to
disclose it on the Form 433A.
In April 2004, the IRS reassigned Wanland’s case to a
different IRS Officer, who concluded that Wanland had the
ability to pay his tax liabilities, penalties, and interest. In
May 2004, she met with Wanland and his accountant, and
Wanland promised to pay $10,000 per month towards his
outstanding tax balance, and to get a loan to obtain more
funds. He never got the loan, and stopped making payments
after four months.
In April 2005, Wanland provided an updated Form 433A,
which reported the same account as the previous Form 433A,
this time with an account balance of “minimal/unknown.” He
again omitted the 705 Account, even though he had deposited
6 UNITED STATES V. WANLAND
$20,000 into it just a few days earlier. The IRS Officer,
suspicious that Wanland had been hiding accounts, issued a
summons to Wanland’s bank around the same time. She then
learned about the 705 Account, and issued levies on both
partnerships—the Law Offices of Wanland and Bernstein and
705 University Partners. The levies stated:
This levy requires you to turn over to us: this
taxpayer’s wages and salary that have been
earned but not paid, as well as wages and
salary earned in the future until this levy is
released, and (2) this taxpayer’s other income
that you have now or for which you are
obligated.
The levies gave notice that “[w]ages and salary include fees,
commissions, and bonuses.” A levy served on wages and
salary is “continuous from the date such levy is first made
until such levy is released” by the IRS, and therefore covers
property acquired after the date on which it was served.
26 U.S.C. § 6331(e).
Prior to the levies being served, Wanland’s law partner
Bernstein wrote Wanland checks to the 705 Account on
Wanland’s request. After the levies were served, Bernstein
refused to write any more checks for Wanland’s partnership
draws, and shortly thereafter left the partnership. Wanland
then wrote checks to himself from the 705 Account. Donald
Spaulding then joined the partnership, assumed Bernstein’s
check writing responsibilities, and wrote checks to Wanland
at the 705 Account when asked to do so. Wanland never told
Spaulding about the levies, and Spaulding would not have
written the checks had he known about the levies.
UNITED STATES V. WANLAND 7
By now, the amount of unpaid taxes, penalties, and
interest exceeded $900,000. Although he only disclosed one
account with $9 or a “minimal/unknown” amount, from 2000
through 2006 Wanland deposited $1.95 million into the 705
Account ($1.8 million from the law partnership), and spent
$1.92 million from that account. This included spending on
trips to Hawaii, Lake Tahoe resorts and casinos, and Las
Vegas casinos. Additionally, Wanland used about $422,000
to pay off the undisclosed American Express card (which
included spa and tanning charges, clothing purchases, and
other non-business related expenses).
II. Procedural History
A. The Indictments and Pretrial Litigation
A 2009 indictment charged Wanland with tax evasion
(26 U.S.C. § 7201). A January 2012 superseding indictment
charged Wanland with tax evasion, numerous counts of
concealment of property subject to a levy (26 U.S.C.
§ 7206(4)), and several counts of willful failure to file a tax
return (26 U.S.C. § 7203). The superseding indictment
alleged that Wanland committed tax evasion by:
(1) concealing the nature and extent of his assets; (2) making
false statements about his income and ability to pay his taxes;
(3) placing funds and property in the name of a nominee;
(4) defying a tax levy; and (5) paying creditors other than the
United States. As for the levy counts, the superseding
indictment tied each count to a particular transaction,
including checks, debit card purchases, and cash withdrawals.
8 UNITED STATES V. WANLAND
1. Motions to Dismiss the Levy Counts
Wanland moved to dismiss the levy counts, arguing that
under 26 U.S.C. § 6331(e), continuous levies are only
authorized for “salary or wages,” and his partnership draws
did not qualify as such. Therefore, the government could not
prove that Wanland’s partnership profits were “property upon
which levy is authorized,” as section 7206(4) requires. The
district court concluded that the question ultimately was a
factual dispute, and reserved it for trial. Wanland renewed
this argument when he moved for a judgment of acquittal on
the levy counts under Federal Rule of Criminal Procedure
29(a), which the district court again denied.
Wanland also moved to dismiss the levy counts on statute
of limitations grounds, arguing that the limit for these counts
was three years, not six. The district court rejected that
motion. It reviewed the language of 26 U.S.C. § 6531 (which
governs the statute of limitations for tax crimes) to conclude
that the six-year statute of limitations described in section
6531(1) applied to the levy counts, because it applies to “all
offenses where fraud is an essential element.” Section
7206(4), titled “Removal or concealment with intent to
defraud,” fell “under the umbrella of § 6531(1).”
2. Motion to Dismiss for Res Judicata
Wanland filed for bankruptcy in 2007, and listed the IRS
as his biggest creditor. The IRS eventually received limited
proceeds from the liquidation of Wanland’s assets. In June
2011, Wanland obtained his discharge under 11 U.S.C. § 727.
The attached “Explanation Of Bankruptcy Discharge In A
Chapter 7 Case,” however, stated that “[d]ebts for most
UNITED STATES V. WANLAND 9
taxes” are one of the “common types of debts” that are “not
discharged.”
After the return of the superseding indictment, Wanland
moved to dismiss the charges on res judicata grounds. He
argued that “because the Government failed to raise the
claims in the indictment during the bankruptcy proceeding to
prevent nondischargeability, and failed to stay the bankruptcy
proceedings pending the outcome of the current criminal
matter,” res judicata prevented the government from
“pursuing a criminal action concerning the assets and tax
liabilities the bankruptcy court already discharged.” The
district court rejected that argument, explaining that res
judicata “does not apply where the claim in question could
not have been brought in the prior proceeding due to
limitations on the prior court’s jurisdiction.”
B. Trial
At trial, Wanland raised many defenses. He argued that
the levy counts were invalid, as they were continuous levies,
which apply only to “salary or wages.” Because his
partnership draws were neither salary nor wages, he
contended that he lacked the requisite intent by ignoring the
levies. He also said that an attorney opined that the levies did
not apply to him.
In its jury instructions, the trial court defined “salary or
wages” as follows:
The funds levied against were the defendant’s
“salary,” if they represent remuneration paid
to defendant on an annual basis, but were
predetermined, or owed, to be paid out (or
10 UNITED STATES V. WANLAND
advanced) at regular intervals (for example,
weekly, bi-weekly, monthly or quarterly) in a
fixed amount.
The funds levied against were “wages” if they
were remuneration for services performed by
an employee for his employer, including the
cash value of all remuneration (including
benefits) paid in any medium other than cash.
You must use your common-sense
understanding of any terms not specifically
defined here, including “employee” and
“employer.”
The jury returned guilty verdicts on the tax evasion count,
the willful failure to file counts, and 24 of the 26 levy counts.3
The trial court sentenced Wanland to 46 months in prison and
36 months of supervised release.
III. STANDARD OF REVIEW
A district court’s denial of a motion to dismiss an
indictment based on its interpretation of a federal statute and
its denial of a motion for a judgment of acquittal are both
reviewed de novo. United States v. Olander, 572 F.3d 764,
766 (9th Cir. 2009); United States v. Sanchez, 639 F.3d 1201,
1203 (9th Cir. 2011). “We review the district court’s
formulation of jury instructions for an abuse of discretion,
and we review de novo whether the instructions misstated or
omitted an element of the charged offense.” United States v.
Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010) (citation omitted).
“The district court’s conclusion regarding the applicability of
3
The government voluntarily dismissed five levy counts prior to trial.
UNITED STATES V. WANLAND 11
a statute of limitations is a matter of law reviewed de novo.”
United States v. Workinger, 90 F.3d 1409, 1412 (9th Cir.
1996). “Res judicata claims are reviewed de novo.” Intri-
plex Techs., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th
Cir. 2007).
IV. ANALYSIS
A. Legal Sufficiency of The Levy Counts
On appeal, Wanland renews his attacks on the levy
counts, arguing that his partnership draws were neither salary
nor wages as a matter of law and fact. The district court
correctly left that decision to the jury, and ample evidence
supported the guilty verdicts on these counts.
An inquiry into tax evasion does not end with how the
defendant labels his income. Otherwise, evaders could paint
their salary and wages as “fruits of labor,” “donations for
work,” or “gifts from my boss” and avoid the levy process
altogether. The district court put it this way: “[n]obody in his
right mind would think that somehow or other lawyer’s draws
ought to be treated differently than wages and salary in
general.” Wanland cannot point to anything that suggests
Congress had a different take.
Rather than limiting our review to labels, we look at the
substance of Wanland’s partnership draws, which the district
court correctly cast as a jury question. The district court’s
jury instruction, quoted above, captured the essence of the
inquiry. Under the partnership agreement, Wanland was
entitled to receive routine, equal monthly draws that were
remuneration solely for services provided to the partnerships’
clients. These draws were set at a predetermined amount,
12 UNITED STATES V. WANLAND
identical to wages or salary in all relevant respects. This
included a routine $3,000 per month payment for the rent on
his house. That Wanland occasionally withdrew more money
in one month than another does not change the routine
income he was guaranteed and that he received for his work
as a lawyer.
Not surprisingly, other courts agree with our analysis.
For example, in United States v. Jefferson-Pilot Life
Insurance Co., 49 F.3d 1020 (4th Cir. 1995), a civil case, the
Fourth Circuit held that section 6331’s “salary or wages”
language covered commissions paid to an insurance
salesman, rejecting the same argument that Wanland now
makes. Id. at 1021. Even though the defendant did not label
his commissions as “salary” or “wages,” they were payments
made to the individual on a repeat basis and at consistent
amounts. Id. As such, they fit directly within “[t]he
underlying purpose of the [continuous levy] provision,”
which was designed “to provide a means of levying upon
remuneration payable to a taxpayer on a recurring basis for
personal services performed for the payor.” Id. at 1022.
Similarly, in United States v. Moskowitz, Passman &
Edelman, 603 F.3d 162 (2d Cir. 2010), another civil case, the
Second Circuit applied Jefferson-Pilot to law firm partnership
draws. The court explained that the “salary or wages”
provision applies to “compensation for services paid in the
form of fees, commissions, bonuses, and similar items.” Id.
at 168 (quoting 26 C.F.R. § 301.6331-1(b)(1)). Partnership
draws are similar to fees, commissions, or bonuses, and are
compensation directly for services rendered to clients. Id. at
168–69; see also Mission Primary Care Clinic, PLLC v. Dir.,
Internal Revenue Serv., 370 F. App’x 536 (5th Cir. 2010)
(holding that payments remunerated to doctor-members of a
UNITED STATES V. WANLAND 13
PLLC could constitute “salary or wages” because the “critical
characteristics” of the payments were similar to traditional
salaries or wages).
Wanland falls back on the rule of lenity to argue that we
should dismiss his levy convictions because the extent of the
“salary or wages” language was ambiguous. But the rule of
lenity has limited application generally, and none here.
While no previous Ninth Circuit case has addressed this
particular issue, that is not determinative. “[A] lack of prior
appellate rulings on the topic does not render the law vague.”
United States v. Kahre, 737 F.3d 554, 568 (9th Cir. 2013)
(quoting United States v. George, 420 F.3d 991, 995 (9th Cir.
2005)). “The rule of lenity only applies . . . where there is a
grievous ambiguity or uncertainty in the language and
structure of the statute, such that even after a court has seized
every thing from which aid can be derived, it is still left with
an ambiguous statute.” Id. at 572 (quoting United States v.
Carona, 660 F.3d 360, 369 (9th Cir. 2011)).
Lenity is especially inappropriate here, as “[i]nclusion of
a scienter requirement ‘mitigates a law’s vagueness,
especially with respect to the adequacy of notice to the
complainant that his conduct is proscribed.’” Id. (quoting
United States v. Guo, 634 F.3d 1119, 1123 (9th Cir. 2011));
see also Guo, 634 F.3d at 1123 (reasoning that a scienter
requirement in the statute “alleviates any concern over the
complexity of the regulatory scheme”). The jury had to find
that Wanland acted with the intent “to evade and defeat the
collection of the assessed taxes,” a stringent mens rea
element. Moreover, the continuous levy, served on Wanland,
stated that “[w]ages and salary include fees, commissions,
and bonuses.” Wanland was therefore on notice that his rigid
definition of “salary or wages” may have been incorrect. See
14 UNITED STATES V. WANLAND
United States v. Cabaccang, 332 F.3d 622, 635 n.22 (9th Cir.
2003) (explaining that the rule of lenity is concerned with
ensuring that “defendants have notice of the criminality of
their actions” and “that legislatures . . . define criminal
activity” (quoting United States v. Bass, 404 U.S. 336, 348
(1971))). Moreover, as requested by Wanland, the district
court gave the jury advice of counsel and good faith
instructions. Had the jury believed Wanland relied on an
attorney or was genuinely uncertain about his responsibilities
under the law, it could have acquitted him. Accordingly,
neither the district court nor the jury erred in concluding that
Wanland’s monthly income from his law practice qualified as
“salary or wages” under section 6331(e).
Finally, Wanland argues that it is incorrect to treat
partnership draws as “salary or wages” under section 6331(e)
because the Internal Revenue Code treats self-employment
income differently from the salary and wages of employees.
He contends that the “salary” and “wages” referenced in
section 6331 must have the same meanings that they have in
the employment tax code. We disagree. “There is no
indication in the Code . . . that Congress intended to
coordinate the meanings of these terms between the two
separate sets of provisions.” Jefferson-Pilot, 49 F.3d at 1023.
As the Fourth Circuit pointed out, “[i]f Congress had so
intended, it easily could have included in § 6331(e) a cross
reference to the employment tax provisions, as it has done
repeatedly in other sections of the Code.” Id.
Instead, like the district court, we construe “salary or
wages” in section 6331(e) in accordance with its plain or
natural meaning. Black’s Law Dictionary defines a “salary”
as “[a]n agreed upon compensation for services—esp.
professional or semiprofessional services—usu. paid at
UNITED STATES V. WANLAND 15
regular intervals on a yearly basis, as distinguished from an
hourly basis.” The jury instructions closely tracked this
definition. Here, there was ample evidence for the jury to
find that Wanland’s partnership draws were remuneration
paid for professional services (legal services), defined on a
yearly basis (based on the year’s profits), and payable at
regular intervals (monthly), rendering them a “salary.”
B. Statute of Limitations—Levy Counts
Wanland argues that the district court erred in not
dismissing the levy counts because they exceeded the three-
year statute of limitations. All of the levy counts covered
2006 transactions, while the superseding indictment was
returned in January 2012. The district court was correct to
reject this argument and apply a six-year statute of
limitations.
Criminal tax proceedings generally have a three-year
statute of limitations. See 26 U.S.C. § 6531. There are,
though, several exceptions for which a six-year statute of
limitations applies. Id. § 6531(1)–(8). Under section
6531(1), tax offenses “involving the defrauding or attempting
to defraud” the government have a six-year statute of
limitations. “Section 6531(1), by its own terms, does not
require that a defendant be expressly indicted for tax fraud.”
Workinger, 90 F.3d at 1413. Congress intended for a six-year
statute of limitations for “all offenses which are fairly
identifiable as those in which fraud is an essential ingredient,
by whatever words they be defined.” Id. at 1414 (quoting
United States v. Grainger, 346 U.S. 235, 244 (1953)). This
includes statutes not labeled “‘fraud,’ if those offenses did
reflect fraudulent activity.” Id. at 1413.
16 UNITED STATES V. WANLAND
As noted above, section 7206(4) requires one to act “with
intent to evade or defeat the assessment or collection of any
tax imposed by this title.” An individual must know of a tax
liability and a levy on his property to remedy that tax
liability, but still deliberately take some action to “evade or
defeat” that levy. As in Workinger, that is exactly the type of
“defrauding” that section 6531(1) was intended to cover. We
agree with the district court that the six-year statute of
limitations of section 6531(1) applies to prosecutions under
section 7206(4).
Wanland makes several arguments in favor of a three-year
statute of limitations. First, he contends that continuing to
interpret section 6531(1) broadly would allow the six-year
statute of limitations exception to become more prevalent
than the three-year rule. This is not persuasive in light of
Workinger. As this court explained, Congress intended for
the exception for offenses involving fraud to sweep broadly
and “cover most acts that a person could perform in an
attempt to avoid paying taxes.” Workinger, 90 F.3d at 1413;
see also id. (acknowledging the reality that section 6531(1)
and its counterpart, section 6531(2), may be broad enough to
effectively “render the 3-year period almost irrelevant”
(quoting Patricia T. Morgan, Tax Procedure and Tax Fraud
in a Nutshell, § 13.1.7 (1990))). We thus do not hesitate to
apply the six-year statute of limitations to violations of
section 7206(4), which necessarily require fraudulent
conduct.
Second, Wanland argues more specifically that applying
section 6531(1) to section 7206(4) is inappropriate because
one of the eight specifically enumerated exceptions, section
6531(5), is for a crime under another subsection of section
7206—section 7206(1). He argues that because Congress
UNITED STATES V. WANLAND 17
elected to extend the statute of limitations for a particular
subsection of section 7206, it deliberately omitted the other
subsections of section 7206. This argument is likewise
untenable under Workinger. Specifically enumerated
exceptions providing for a six-year statute of limitations were
included so that Congress could be “sure that mere technical
distinctions would not make a difference in the statute of
limitations.” Workinger, 90 F.3d at 1413. In other words,
they reflect a rather-be-safe-than-sorry approach, and are
sometimes duplicative of conduct that would also be
encompassed under sections 6531(1) and (2). Id. That
Congress specifically enumerated that section 7206(1) have
a six-year statute of limitations says little, if anything, about
the statute of limitations for section 7206(4).
Finally, Wanland points out that the Internal Revenue
Manual (IRM) provides that the statute of limitations for
section 7206(4) is three years. IRM § 9.1.3.3.7.3.1. The
IRM, however, does not bind this court. See Fargo v.
Comm’r, 447 F.3d 706, 713 (9th Cir. 2006) (stating that the
IRM “does not have the force of law and does not confer
rights on taxpayers”); see also United States v. Mead Corp.,
533 U.S. 218, 234–35 (2001) (explaining that agency
manuals are “beyond the Chevron pale,” and we afford them
deference only to the extent that we value the “thoroughness,
logic, and expertness” of the writer). For the above described
reasons, we do not conclude that the IRM’s recommendation
is persuasive, and we hold that the six-year statute of
limitations applies to violations of section 7206(4).
C. Res Judicata
Wanland argues that because his debts were discharged in
bankruptcy, he no longer owes the debts for the unpaid taxes
18 UNITED STATES V. WANLAND
from which the criminal charges arose. According to
Wanland, the government should “be precluded from
pursuing a criminal action concerning the assets and tax
liabilities the bankruptcy court already discharged.” The
district court properly rejected this argument.
Res judicata requires Wanland to establish three elements:
(1) privity between parties in the actions; (2) an identity of
claims between actions; and (3) a final judgment on the
merits in the previous action. See Tahoe-Sierra Pres.
Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d
1064, 1077 (9th Cir. 2003).
First, Wanland fails to demonstrate privity between the
parties. Courts have not assumed that all federal agencies are
in privity for res judicata purposes, and instead look to the
substance of claims. See Sunshine Anthracite Coal Co v.
Adkins, 310 U.S. 381, 402–03 (1940) (explaining that while
there are occasions when privity exists between different
officers or agencies of the government, this consideration is
not just a “matter of form, but of substance”); see also United
States v. Ledee, 772 F.3d 21, 30 (1st Cir. 2014) (“[C]ourts
have recognized in the preclusion context the folly of treating
the government as a single entity in which representation by
one government agent is necessarily representation for all
segments of the government.”). For example, in United
States v. Hickey, 367 F.3d 888 (9th Cir. 2004), this court held
that the Securities and Exchange Commission (SEC) and the
United States in a criminal prosecution are not in privity
because when the SEC brings an action under the Securities
Act of 1933 or Securities Exchange Act of 1934, it is “not
acting as ‘the federal sovereign vindicating the criminal law
of the United States.’” Id. at 893 (quoting United States v.
Heffner, 85 F.3d 435, 439 (9th Cir. 1996)).
UNITED STATES V. WANLAND 19
Just as in Hickey, the IRS’s role in pursuing tax debts in
a bankruptcy action is not to act as a “federal sovereign
vindicating the criminal law.” In a bankruptcy proceeding,
the IRS is acting as a creditor trying to recover debts. In this
capacity, its interests will often differ from the interests of the
United States government in a criminal prosecution. For
example, if the IRS were in a position where it had to “make
a claim against the estate and at the same time preserve a
subsequent criminal prosecution” against a defendant, it
“would have to pursue an opposition to the bankruptcy based
on fraud, even if to do so might be contrary to its interest” as
a debtor. United States v. Tatum, 943 F.2d 370, 381 (4th Cir.
1991).
The different roles of the IRS and the United States
government in criminal prosecutions correspond to the
different purposes of bankruptcy and criminal proceedings.
The purpose of a bankruptcy action is to help those in bad
financial positions move forward, not, as with a criminal
prosecution, to resolve harms against society deserving of
punishment. See Gruntz v. County of Los Angeles, 202 F.3d
1074, 1085 (9th Cir. 2000) (“The purpose of bankruptcy is to
protect those in financial, not moral difficulty,” and the
bankruptcy code “reflects [that] philosophy.”); Tatum,
943 F.2d at 381–82 (referring to bankruptcy proceedings and
criminal tax prosecutions, explaining that “[t]he pursuit of
one proceeding will seldom resolve the other”). Thus, the
IRS in a bankruptcy action and the United States government
in a criminal action are not in privity.
While we need not go further because Wanland has failed
on the first prong, he raises several arguments related to the
identity of claims prong that we briefly address. He takes
issue with the district court’s reasoning that res judicata
20 UNITED STATES V. WANLAND
cannot apply here because the bankruptcy court had no
authority to adjudicate criminal matters. He points primarily
to United States v. Liquidators of European Federal Credit
Bank, 630 F.3d 1139 (9th Cir. 2011), to argue that, even if the
government could not have made a particular claim in an
earlier proceeding, it can still be barred from making that
claim in a second proceeding. In Liquidators, this court held
that res judicata barred the government from bringing a
criminal forfeiture proceeding with respect to the same
property involved in a prior civil forfeiture proceeding
because both claims involved the same “transactional nucleus
of facts.” Id. at 1151–52. This was in spite of the fact that
the government could not have brought a criminal forfeiture
action in the civil forfeiture proceeding because the criminal
and civil forfeiture statutes do not permit consolidation. Id.
at 1151.
This court acknowledged that the result of its holding no
longer fit within the pattern reflected in our circuit’s case law
that res judicata only applies where a claim could have been
asserted in a previous action. Id. (citing Tahoe-Sierra,
322 F.3d at 1078). It explained, however, that this decision
was “driven by the unique context of forfeiture.” Id. at 1152.
“Unlike in other contexts, the two types of forfeiture actions
always seek the same result,” “arise from exactly the same
facts,” “necessarily always involve the same potential
plaintiff,” and “involve the same general determination.” Id.
In sum, “[t]he two forfeiture options—civil and criminal—
provide the government two different paths to reaching the
same goal—forfeiture of the property.” Id. For the reasons
described above, the IRS in bankruptcy proceedings and the
United States government in criminal prosecutions are not the
same plaintiff, nor do bankruptcy and criminal actions
purport to achieve the same goal. Accordingly, it would be
UNITED STATES V. WANLAND 21
inappropriate to expand Liquidators, decided for the
peculiarities of the forfeiture context, to the facts here.4
AFFIRMED.
4
We also doubt that there has been a final judgment on the merits with
respect to Wanland’s tax debts. Wanland received a general discharge
under 11 U.S.C. § 727. Under a general discharge order, most debts are
automatically discharged. There are a few exceptions, though, including
for a tax “with respect to which the debtor made a fraudulent return or
willfully attempted in any manner to evade or defeat.” Id. § 523(a)(1)(C).
In accordance with the statutory exceptions to discharge, Wanland was
warned in his discharge order that some types of debt are not discharged,
including “debts for most taxes.” Even if, as Wanland points out, the
intent requirements for demonstrating “willful tax evasion” for non-
dischargeability of debt and willful tax evasion for a criminal tax evasion
charge are the same, Hawkins v. Franchise Tax Bd. of Cal., 769 F.3d 662,
669 (9th Cir. 2014), the issue had likely not been adjudicated prior to the
jury verdict in this trial.