United States v. Springer

FILED
United States Court of Appeals
Tenth Circuit

October 26, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 10-5055
v. (D.C. No. 4:09-CR-00043-SPF-1)
(N.D. Okla.)
LINDSEY KENT SPRINGER,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 10-5057
v. (D.C. No. 4:09-CR-00043-SPF-2)
(N.D. Okla.)
OSCAR AMOS STILLEY,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
Nos. 10-5156 & 11-5053
v. (D.C. No. 4:09-CR-00043-SPF-1)
(N.D. Okla.)
LINDSEY KENT SPRINGER,

Defendant-Appellant.
 ORDER AND JUDGMENT *

Before LUCERO, BALDOCK, and TYMKOVICH, Circuit Judges.

A jury convicted Lindsey Kent Springer of one count of conspiring with

Oscar Amos Stilley to defraud the United States, three counts of tax evasion, and

two counts of willful failure to file a tax return. Mr. Stilley was convicted of one

count of conspiracy and two counts of aiding and abetting Mr. Springer’s tax

evasion.

The district court sentenced both men to fifteen years in prison, three years

of supervised release, and restitution for tax losses exceeding $2 million. In

appeal Nos. 10-5055 and 10-5057, Mr. Springer and Mr. Stilley (“defendants”)

respectively challenge their convictions and sentences. In appeal Nos. 10-5156

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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and 11-5053, Mr. Springer challenges two post-conviction proceedings. 1 For the

reasons discussed below, we affirm. 2

I

The facts adduced at trial established that Mr. Springer’s trouble with the

Internal Revenue Service (“IRS”) began in the 1980s, with a dispute over payroll

taxes. R., Vol. 3 (Tr. Vol. 11) at 3093. Since then, he has maintained a course of

conduct to avoid paying taxes.

In the early 1990s, Mr. Springer founded “Bondage Breakers Ministries,”

which aimed “to get rid of the IRS,” id. at 3114. He also began touring the

country, offering legal and tax advice to individuals embroiled in tax disputes,

and accepting in return tens—sometimes hundreds—of thousands of dollars. In

this capacity, Mr. Springer initiated “[m]aybe a thousand” lawsuits, id. (Tr. Vol.

12) at 3284, many against the government and employees of the government. He

eventually met Mr. Stilley, who is now a disbarred lawyer, and together they

devised a scheme to channel Mr. Springer’s unreported income through

1
Appeal Nos. 10-5055 and 10-5057 share one record; Appeal Nos. 10-5056
and 11-5053 were submitted with their own records. All record-citations
correspond to the particular appeal(s) under discussion.
2
During the pendency of these appeals, Mr. Springer’s attorney, Jerold W.
Barringer, was indefinitely suspended from practicing before this court. See In re
Barringer, No. 11-816 (10th Cir. Sept. 2, 2011), reh’g en banc denied, (10th Cir.
Sept. 28, 2011). Mr. Springer is presently subject to pro se filing restrictions, but
those restrictions are inapplicable to criminal appeals. See Springer v. IRS ex rel.
United States, 231 F. App’x 793, 802-04 (10th Cir. 2007) (unpublished).

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Mr. Stilley’s client trust account. Mr. Springer also used his ministry as a front

for accepting money, despite being the subject of IRS collection-actions for

unpaid income taxes dating back to 1990, and an IRS civil investigation for

promoting abusive tax shelters.

By 2005, Mr. Springer had gained the full attention of the IRS. On June 3,

2005, the IRS referred Mr. Springer to the Justice Department to investigate

potential criminal tax violations. On September 16 of that year, the government

executed a search warrant of Mr. Springer’s residence. And, on February 2, 2006,

Mr. Stilley was served with a grand jury subpoena. During the course of the

investigation, defendants denied receiving any income for their advice,

representing instead that people simply made donations to Mr. Springer’s

ministry, with no expectation of services in return. But at trial, the government

refuted those statements, offering testimony from numerous witnesses who had

paid large sums of money to defendants in exchange for their supposed tax and

legal expertise. Based on this and other evidence, the jury convicted defendants

on all counts.

Defendants have now lodged these appeals.

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 II

Nos. 10-5055 and 10-5057

Defendants’ opening brief 3 can be distilled to advance the following eight

arguments: 1) defendants committed no crimes because there is no government

entity outside of Washington, D.C. with the lawfully delegated power to collect

taxes or enforce the internal revenue laws; 2) the Paperwork Reduction Act

precludes imposition of all penalties arising from their convictions; 3) the district

court erred in denying their motion to suppress; 4) the district court erroneously

instructed the jury as to the definitions of “gift” and “income”; 5) the district

court should have allowed defendants to subpoena employees of the Justice

Department and the IRS; 6) defendants did not waive their right to counsel

voluntarily, knowingly, and intelligently; 7) the district court did not properly

calculate their attributable tax losses under the sentencing guidelines or properly

apply their respective sentencing enhancements; and 8) Mr. Stilley’s conspiracy

conviction cannot be classified as a felony. 4

We address each argument in turn.

3
Mr. Stilley has joined Mr. Springer’s brief, but at times advances his own
arguments. We refer to the briefs jointly as “defendants’ brief” or “Aplt. Revised
Opening Br.” and specify when we address Mr. Stilley’s independent contentions.
4
Defendants make passing references to other potential issues throughout
their opening brief, but such scattered, perfunctory statements are insufficient to
invoke appellate review and, accordingly, those issues are deemed waived. See,
e.g., Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1133 n.4 (10th Cir. 2004).

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 A. Delegation of IRS Collection and Enforcement Authority

Defendants first contend they committed no crimes because no government

entity exists outside of Washington, D.C. with the lawfully delegated authority to

collect taxes or enforce federal tax laws. As we understand their argument,

defendants believe the Secretary of the Treasury is authorized to collect taxes

only within the territorial limits of Washington, D.C. See Aplt. Revised Opening

Br. at 10 (citing 4 U.S.C. § 72 (“All offices attached to the seat of government

shall be exercised in the District of Columbia, and not elsewhere, except as

otherwise expressly provided by law.”)). To accommodate this geographic

restriction, defendants contend, Congress granted the President, pursuant to

26 U.S.C. § 7621, the power to establish internal revenue districts, headed by

district directors, to exercise the Treasury Secretary’s authority beyond

Washington. See Aplt. Revised Opening Br. at 8-9. However, Congress passed

the Internal Revenue Service Restructuring and Reform Act of 1998 (“RRA”),

Pub. L. 105-206, 112 Stat. 685, which, among other things, abolished internal

revenue districts and district directors. See Aplt. Revised Opening Br. at 11

(citing the RRA and asserting that “[w]ithout [internal revenue districts and

district directors] there could never have been any proper delegation of authority

outside the District of Columbia from the [Treasury] Secretary to any U.S.

Attorney.”). Consequently, defendants claim, there is no legally authorized entity

to collect taxes or enforce the tax laws, and no criminal offense stemming from

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their failure to pay taxes. See id. (“Without [internal revenue districts and district

directors] the indictment failed to allege an offense in all Six Counts because no

law required Springer to deliver any Form 1040 . . . to any place required by

law.” (internal quotation marks omitted)).

These types of spurious delegation arguments were rejected as frivolous

before the RRA was enacted, see, e.g., Lonsdale v. United States, 919 F.2d 1440,

1448 (10th Cir. 1990), and they have been rejected as frivolous since, see, e.g.,

United States v. Ford, 514 F.3d 1047, 1053 (10th Cir. 2008). The Secretary of

the Treasury is authorized under 26 U.S.C. § 6091(a) to promulgate regulations

prescribing “the place for the filing of any return, declaration, statement or other

document.” Internal revenue districts are “now defunct,” Allnutt v. Comm’r,

523 F.3d 406, 408 n.1 (4th Cir. 2008), but 26 C.F.R. § 1.6091-2(a) requires

individuals to file returns with “any person assigned the responsibility to receive

returns at the local Internal Revenue Service office that serves the legal residence

. . . of the person required to make the return.” Otherwise, if so instructed,

individuals or corporations must file returns with a specifically designated

internal revenue service center. Id. § 1.6091-2(c).

In short, defendants’ delegation argument is patently frivolous.

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 B. Paperwork Reduction Act

Defendants next contend they were not subject to any penalties because IRS

Form 1040 fails to comply with the Paperwork Reduction Act, 44 U.S.C. §§ 3501,

et seq. (“PRA”). In particular, they cite § 3512(a), which states:

[N]o person shall be subject to any penalty for failing to comply with
a collection of information . . . if . . . (1) the collection of
information does not display a valid control number . . .; or (2) the
agency fails to inform the person who is to respond to the collection
of information that such person is not required to respond to the
collection of information unless it displays a valid control number.

According to defendants, they cannot be penalized for their crimes because IRS

Form 1040 does not comply with § 3512(a).

Initially, defendants make no showing that IRS Form 1040 fails to comply

with § 3512(a). And, we rejected a similar argument in one of Mr. Springer’s

prior appeals. See Springer v. Comm’r, 580 F.3d 1142, 1144-46 (10th Cir. 2009).

In that case, he contested certain failure-to-pay penalties on the ground that Form

1040 violated the PRA, but we recognized that Form 1040 did not give rise to the

penalties because they had an “independent and separate statutory basis under the

Internal Revenue Code . . . that [was] not based on Mr. Springer’s failure to file

Form 1040s.” Id. at 1145. Likewise, here, defendants’ obligation to file a return,

and the crimes associated with their efforts to circumvent that obligation, are

prescribed by statute, e.g., 26 U.S.C. §§ 6012 (requiring the filing of return),

7203 (proscribing the failure to file return); there is no substantive obligation or

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crime arising out of Form 1040 itself. See United States v. Gross, 626 F.3d 289,

295-96 (6th Cir. 2010) (explaining that the obligation to file a tax return and the

criminalization of willful failure to do so represent statutory mandates divorced

from Form 1040); see also United States v. Dawes, 951 F.2d 1189, 1192

(10th Cir. 1991) (affirming convictions for willful failure to file returns on other

grounds but noting that “[w]e would be inclined to . . . hold that the operation of

the PRA in these circumstances did not repeal the criminal sanctions for failing to

file an income tax return because the obligation to file is a statutory one”). In

fact, an actual Form 1040 may not even be necessary to comply with the statutory

obligations. See United States v. Stillhammer, 706 F.2d 1072, 1075 (10th Cir.

1983).

Defendants might have invoked the PRA to avoid any penalties assessed for

submitting faulty information on a non-compliant IRS form, but they cannot use

the PRA to side-step criminal offenses arising under the Internal Revenue Code.

C. Motion to Suppress

Defendants also assert the district court should have suppressed evidence

obtained after their case was referred to the Department of Justice for criminal

investigation. In analyzing the legal aspects of this issue de novo, we view the

evidence in the light most favorable to the government. United States v. White,

584 F.3d 935, 944 (10th Cir. 2009). Defendants’ contention is rooted in United

States v. LaSalle National Bank, 437 U.S. 298, 311-13, 318 (1978), where the

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Supreme Court restricted the IRS from using civil summonses either solely to

further criminal investigations or to investigate any case once it has been referred

to the Justice Department for criminal prosecution. Defendants contend LaSalle

required the court to suppress evidence obtained with a civil summons issued in

2004 because at that time the government was pursuing possible criminal charges.

The problem with this argument is that during most of 2004, the IRS was

conducting a civil investigation into Mr. Springer’s promotion of abusive tax

shelters, and it did not refer him to the Justice Department for possible criminal

violations until June 3, 2005; Mr. Stilley was not referred until January 6, 2007.

There was, therefore, no need to suppress evidence obtained before these dates,

even if the civil investigation led to possible criminal consequences. See id. at

309 (“It is now undisputed that a special agent is authorized . . . to issue an

Internal Revenue summons in aid of a tax investigation with civil and possible

criminal consequences.” (quotation omitted)). That defendants were implicated in

an expanding criminal investigation in a related case is irrelevant to the validity

of the summons, since there had not yet been a referral to the Department of

Justice. See 26 U.S.C. § 7602(d)(2)(A)(i) (“A Justice Department referral is in

effect with respect to any person if--the Secretary has recommended to the

Attorney General a grand jury investigation of, or the criminal prosecution of,

such person for any offense connected with the administration or enforcement of

the internal revenue laws[.]”).

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 D. Jury Instructions

Next, defendants contend the district court improperly instructed the jury

on the meaning of “gift” and “income.” We review de novo whether the court

properly instructed the jury. United States v. Urbano, 563 F.3d 1150, 1154

(10th Cir. 2009). The Internal Revenue Code defines “gross income” as “all

income from whatever source derived.” 26 U.S.C. § 61. “Gifts” are excluded

from gross income, see id. § 102, although the question of whether a particular

transfer is a “gift” depends on the facts of the case, turning primarily on the

transferor’s intent, see Comm’r v. Duberstein, 363 U.S. 278, 285-86, 289-90

(1960); United States v. Kasynski, 284 F.2d 143, 145 (10th Cir. 1960).

Here, the court explained to the jury that the determinative inquiry is

intent: “The intent of the person transferring the money is important in

determining whether the amount received . . . is a gift for income tax purposes.”

R., Vol. 3 (Tr. Vol. 12) at 3400. The court emphasized that “[w]here the person

transferring the money did not act from any sense of generosity but rather to

secure goods, services, or some other such benefit for himself or another, there is

no gift.” Id. The court then reminded the jury that it “should take into account

all the facts and circumstances of [the] case,” id. at 3401, and, ultimately, gave

the jury the task of determining whether any transfers were gifts or income, id. at

3399. We perceive no error in these instructions.

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 Still, defendants assert the district court erred because the term “gift” is not

defined by the Internal Revenue Code. But the absence of a statutory definition

does not, in and of itself, indicate error. Defendants also contend that the court

erroneously instructed the jury on the term “taxable income,” rather than “gross

income.” If defendants mean to suggest that while gross income excludes gifts,

taxable income does not, they are wrong. Taxable income is defined as gross

income less any permissible deductions, including gifts. See 26 U.S.C. § 63.

Therefore, because gifts are excluded from the definitions of both terms, the court

was correct to instruct the jury that “taxable income does not include money or

property acquired by gift.” R., Vol. 3 (Tr. Vol. 12) at 3399.

E. Subpoena of Federal Employees

Defendants argue that their Sixth Amendment rights were violated because

they were unable to subpoena employees of the Justice Department and the IRS.

In United States ex rel. Touhy v. Ragen, 340 U.S. 462, 463 n.1, 468 (1951), the

Supreme Court upheld the validity of a Justice Department regulation prohibiting

an employee of the Department from responding to a subpoena duces tecum

without prior approval from the Attorney General. We applied Touhy in United

States v. Allen, 554 F.2d 398, 406 (10th Cir. 1977), where we upheld the validity

of a regulation requiring the person seeking evidence to submit an “affidavit or

statement summarizing the testimony desired so that the Department could

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consider the [subpoena] request and determine whether to grant permission for the

testimony.”

Here, defendants advance no argument why Touhy should not bar their

subpoena requests. Nor do defendants indicate whether they submitted to the

Department of Justice a summary of the evidence they sought to obtain, as

required by 28 C.F.R. § 16.23(c). And, as the government points out, the IRS

maintains similar regulations for its employees, see 26 C.F.R. § 301.9000-4, but

defendants made no attempt to comply with those provisions either. Under these

circumstances, we have little difficulty concluding that defendants fail to show

their rights were violated.

F. Waiver of Right to Counsel

Defendants also raise a Sixth Amendment issue concerning their waiver of

counsel, which they say was not done knowingly, intelligently, or voluntarily. 5

See Faretta v. California, 422 U.S. 806, 835 (1975). “[A] defendant may waive

the right to counsel and proceed at trial pro se only if the waiver is knowing,

intelligent, and voluntary.” United States v. DeShazer, 554 F.3d 1281, 1288

5
It is unclear to what extent Mr. Stilley joins Mr. Springer in this argument.
He says he adopts Mr. Springer’s argument that he was not properly warned of
the dangers of proceeding pro se, but he does not rely on Mr. Springer’s
reasoning. See “Adoption of Arguments in Springer’s Brief” at 14. To the extent
that Mr. Stilley joins Mr. Springer’s brief, we consider their consolidated
arguments herein. To the extent Mr. Stilley reserves further argument, his failure
to advance those arguments constitutes waiver.

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(10th Cir. 2009) (internal quotation marks omitted). We review this issue

de novo. United States v. Silkwood, 893 F.2d 245, 248 (10th Cir. 1989). A

waiver is voluntary if the defendant was given a clear, alternative choice to the

waiver. See United States v. Burson, 952 F.2d 1196, 1199 (10th Cir. 1991). To

ensure a waiver is made knowingly and intelligently, a trial judge ideally should

conduct a “thorough and comprehensive formal inquiry including topics such as

the nature of the charges, the range of punishment, possible defenses, and a

disclosure of risks involved in representing oneself pro se.” United States v.

Turner, 287 F.3d 980, 983 (10th Cir. 2002) (internal quotation marks and italics

omitted).

Here, defendants’ waiver was voluntary because the district court alerted

them to their clear alternatives to self-representation. See R., Vol. 3 (April 22,

2009 Mot. Hrg.) at 71 (informing defendants that “both of you must understand

that you do have a right to a lawyer” and “[b]oth of you have standby counsel”).

The waiver also was knowing and intelligent because defendants were twice

explained the advantages of being represented by an attorney and the dangers and

disadvantages of proceeding pro se, see Faretta, 422 U.S. at 835, yet they insisted

on relinquishing their right to counsel and forgoing the benefits attendant to that

right. Indeed, the court asked defendants a multitude of questions to evaluate

their understanding of the nature of the charges against them, the dangers and

disadvantages of proceeding pro se, and the consequences of a conviction. See

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R., Vol. 3 (April 22, 2009 Mot. Hrg.) at 82-92. Defendants signaled their

understanding and were steadfast in their intent to represent themselves.

Defendants now contend they were confused at the time, but the record

makes clear they knew what they were doing and made their choice “with eyes

open,” Faretta, 422 U.S. at 835 (internal quotation marks omitted). We are

satisfied that defendants waived their right to counsel knowingly, voluntarily, and

intelligently.

G. Sentencing

Next, defendants contend the district court erred in applying the sentencing

guidelines and the relevant sentencing enhancements. 6 We review criminal

sentences for reasonableness, evaluating both procedural and substantive

components. United States v. Martinez, 610 F.3d 1216, 1223 (10th Cir.), cert.

denied, 131 S. Ct. 543 (2010). “Procedural review asks whether the sentencing

court committed any error in calculating or explaining the sentence. Substantive

review involves whether the length of the sentence is reasonable given all the

circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).”

United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214-15 (10th Cir. 2008)

(internal citations and quotations omitted). We review legal questions de novo

6
Once again, it is unclear to what extent, if any, Mr. Stilley adopts
Mr. Springer’s arguments. Rather than assume a wholesale waiver, we afford
Mr. Stilley’s pro se appellate materials a liberal construction, as we must, and
assume he joins Mr. Springer’s contentions to the extent applicable to him.

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and the substantive reasonableness of the sentence for an abuse of discretion. See

id. at 1215.

1. Tax Loss Calculation

As best we can tell, defendants initially challenge the district court’s tax

loss calculation. “We may overturn the district court’s tax-loss calculation only if

it was clearly erroneous.” United States v. Hoskins, 654 F.3d 1086, 1092

(10th Cir. 2011). The guidelines state that “[i]f the offense involved failure to

file a tax return, the tax loss shall be treated as equal to 20% of the gross income .

. . less any tax withheld or otherwise paid, unless a more accurate determination

of the tax loss can be made.” USSG § 2T1.1(c)(2) n.(A). Given the absence of a

more accurate assessment of defendants’ tax losses, the court multiplied each

defendant’s income for the relevant tax years by 20%. The court then added to

each defendant’s tax loss the loss attributable to the other defendant during the

conspiracy, because the scheme constituted “jointly undertaken criminal activity,”

USSG § 1B1.3(a)(1)(B). The court also added to Mr. Springer’s tax loss his

assessments stemming from tax years 1990 through 1995, as well as the tax loss

attributable to one of his clients whom he helped try to avoid paying taxes. The

court followed the same approach with Mr. Stilley for his involvement with this

client, as well as two other individuals he advised. Lastly, the court added each

defendant’s state tax losses to ascertain their respective aggregate tax losses.

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 Mr. Springer contests the inclusion of his assessments from 1990 through

1995, although he does not explain why. 7 Additionally, citing United States v.

Meek, 998 F.2d 776 (10th Cir. 1993), defendants argue the court should not have

considered conduct “outside the years in the indictment.” Aplt. Revised Opening

Br. at 47. Meek undermines their contention, however, because in that case, we

approved the district court’s consideration of non-charged relevant conduct to

calculate the total tax loss attributable to the defendant. 998 F.2d at 782; see also

USSG § 2T1.1 cmt. n.2 (“In determining the total tax loss attributable to the

offense (see § 1B1.3(a)(2)), all conduct violating the tax laws should be

considered as part of the same course of conduct or common scheme or plan

unless the evidence demonstrates that the conduct is clearly unrelated.”). And

defendants point to no evidence demonstrating that the conduct considered by the

district court was unrelated for purposes of assessing the tax loss. Instead, they

make bald allegations that were clearly rejected by the jury.

We perceive no error in the district court’s tax loss calculation.

7
Mr. Springer makes a cryptic, almost incomprehensible reference to records
showing that “the Secretary had released 1990 through 1995 as extinguished
. . . .” Aplt. Revised Opening Br. at 47. If Mr. Springer is alluding to lien
releases that were accidentally issued by the IRS but subsequently revoked, this
argument was raised and rejected in a prior appeal. See United States v. Springer,
427 F. App’x 650, 652 (10th Cir. 2011).

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 2. Sentence Enhancements

Defendants also challenge their sentence enhancements, beginning with a

two-level increase under USSG § 2T1.1(b)(1) for failing to report or identify

criminal-source income exceeding $10,000. The record clearly supports the

district court’s finding, however, that defendants committed wire fraud by

convincing a client to transfer $250,000 into Mr. Stilley’s client trust account, not

only to hide the money from the government, but also to defraud their client. The

record also supports the court’s application of the enhancement based on

“defendants’ joint representation of [another client, which] was, from its

inception, an exercise in fraud and obtaining money under false pretenses,”

R., Vol. 3 (Sent. Tr. Vol. 3) at 3999.

Defendants next object to a two-level enhancement pursuant to USSG

§ 2T1.1(b)(2) for employing sophisticated means to commit their offenses. But

again, the record supports the district court’s finding that Mr. Stilley used his

highly-regulated client trust account as “an instrument of fraud,” R., Vol. 3 (Sent.

Tr. Vol. 3) at 4001. Additionally, Mr. Springer used his purported ministry to

solicit funds that he reported as donations, and he used a check-cashing service to

avoid maintaining a checking account with reachable assets. And, of course,

underlying all this was defendants’ scheme of fraudulently advising individuals

how to violate the tax code. Based on this evidence, we are satisfied that

defendants’ conduct warranted the enhancement. See USSG § 2T1.1 cmt. n.4

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(“Conduct such as hiding assets or transactions, or both, through the use of

fictitious entities . . . ordinarily indicates sophisticated means.”); cf. United States

v. Ambort, 405 F.3d 1109, 1120 (10th Cir. 2005) (affirming enhancement where

defendant conducted tax seminars to teach ways of delaying discovery of tax

offenses).

Relying on other arguments we rejected above, defendants also contest the

application of USSG § 2T1.9(b)(2) for encouraging others to violate the tax code.

Yet the record is replete with evidence sustaining the court’s application of the

enhancement, and defendants’ unsupported contention otherwise is meritless.

To the extent defendants challenge the court’s application of USSG § 3C1.1

for obstructing justice (or any other remaining enhancement, for that matter),

their arguments advance no reasoned argument and are insufficient to invoke

appellate review.

H. Conspiracy as a Felony Offense

Finally, Mr. Stilley contends his conspiracy conviction under 18 U.S.C.

§ 371 should be a misdemeanor because his underlying substantive offense is a

misdemeanor. The conspiracy statute says that one who conspires to defraud the

United States may be punished up to five years in prison, unless the object of the

conspiracy is a misdemeanor, in which case the punishment for the conspiracy

shall not exceed the punishment for the misdemeanor. Id. Mr. Stilley’s felony

conviction for conspiring to defraud the United States was an independent crime

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punishable by up to five years in prison. See United States v. Gallup, 812 F.2d

1271, 1277 (10th Cir. 1987). There is thus no merit to his claim that the

conviction should be classified as a misdemeanor.

No. 10-5156

In appeal number 10-5156, Mr. Springer challenges the district court’s

denial of his petition for a writ of error coram nobis, in which he claimed his

waiver of counsel was not knowing, voluntary, and intelligent. We previously

denied Mr. Springer’s petition for a writ of mandamus or coram nobis seeking

relief on the same grounds. See United States v. Springer, No. 10-5101 (10th Cir.

Oct. 22, 2010). That decision constitutes the law of the case and bars

Mr. Springer’s contentions raised in appeal No. 10-5156. See United States ex

rel. Bahrani v. ConAgra, Inc., 624 F.3d 1275, 1294 (10th Cir. 2010). The issue is

meritless in any event because Mr. Springer is confined on the conviction he

attempted to challenge by way of his petition, but he has not shown that relief

under 28 U.S.C. § 2255 is unavailable or inadequate. See United States v. Payne,

644 F.3d 1111, 1112-13 & n.2 (10th Cir. 2011) (holding that an inmate is not

entitled to coram nobis relief unless relief under 28 U.S.C. § 2255 is unavailable

or would be inadequate). And, lest there by any lingering doubt whether

Mr. Springer could avail himself of coram nobis relief, the foregoing merits

discussion demonstrates that he is not entitled to this “extraordinary remedy,”

Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989) (quotation omitted).

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 No. 11-5053

After he was convicted, Mr. Springer moved for a new trial and evidentiary

hearing based on what he claimed was newly discovered evidence supporting his

motion to suppress. The district court denied the motions because Mr. Springer

failed to satisfy the five-part test necessary for a new trial. See United States v.

Quintanilla, 193 F.3d 1139, 1147 (10th Cir. 1999) (setting forth five-part test to

ascertain whether newly discovered evidence warrants a new trial). The court

explained that, among other things, the motions were predicated on evidence

available before trial; they were premised on a previously rejected,

non-evidentiary contention that the RRA prevented the IRS from enforcing the

revenue laws outside of Washington, D.C.; and they suggested no possibility of

acquittal. Mr. Springer now challenges those rulings, advancing a host of

irrelevant or unintelligible arguments in support of the suppression issue. We

affirm the denial of these motions for substantially the same reasons articulated

by the district court in its order dated March 17, 2011.

III

In appeal Nos. 10-5055 and 10-5057, Mr. Springer and Mr. Stilley’s

respective convictions and sentences are AFFIRMED. Mr. Springer’s motion to

unseal documents sealed in the district court is DENIED. In appeal No. 10-5056,

the denial of Mr. Springer’s petition for a writ of error coram nobis is

AFFIRMED.

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 In appeal No. 11-5053, the judgment of the district court is AFFIRMED for

substantially the same reasons as stated in the district court’s order dated

March 17, 2011. To the extent defendants raise other issues that we have not

explicitly discussed, we have considered them and find them to be meritless.

Accordingly, any other outstanding requests for relief are DENIED.

Entered for the Court
PER CURIAM

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