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United States of America v. Lowell Baisden.

September 19, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
LOWELL BAISDEN. DEFENDANT.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

FINDINGS AND RECOMMENDATION DENYING WITHOUT PREJUDICE DEFENDANT'S MOTION FOR ACCESS TO COURTS (ECF No. 219)

I. PROCEDURAL HISTORY FOURTEEN (14) DAY DEADLINE

Plaintiff, United States of America, filed its Complaint for Permanent Injunction under sections 7402, 7407, and 7408 of the Internal Revenue Code (26 U.S.C. or I.R.C.) on September 29, 2006, seeking to bar Defendant Lowell Baisden from providing tax advice and preparing income tax returns for others. (ECF No. 1.)

On August 9, 2012, Plaintiff filed a motion for summary judgment. (ECF No. 209). Also on August 9, 2012, Defendant filed a motion for summary judgment. (ECF No. 217). On August 30, 2012, Defendant filed a motion for access to courts pursuant to the Fifth, Sixth and Fourteenth Amendments. (ECF No. 219). On September 18, 2012, Plaintiff filed its opposition to the motion for access to courts. (ECF No. 227.) It is the latter motion which is now before the Court.

II. ARGUMENT

Defendant Baisden contends that the Bureau of Prisons Program Statement and Taft Correctional Institution ("TCI") policy allow the warden to approve legal furloughs. He has been informed his legal furlough application(s) have been denied by the warden. He requires legal furloughs from TCI to access documents and information which are stored at his home in Bakersfield California and which are needed to oppose Plaintiff's motion for summary judgment and also to enable him to appear at hearings and trial in this matter. He claims denial of furloughs deprives him of rights to due process, self-representation and confrontation of witnesses against him. He seeks an order from the court allowing legal furloughs from TCI.

Plaintiff opposes the proposed furloughs, arguing that Defendant is a flight risk and that there is no good cause for granting furloughs.

III. ANALYSIS

A. Sixth Amendment Self Representation and Access to Courts

The Sixth Amendment guarantees a defendant the right to represent himself in criminal proceedings, Faretta v. California, 422 U.S. 806, 834-36 (1975), and that right includes access to law books, witnesses, and other tools necessary to prepare a defense. Taylor v. List, 880 F.2d 1040, 1047 (9th Cir. 1989); Milton v. Morris, 767 F.2d 1443, 1446-47 (9th Cir. 1985).

The Sixth Amendment is meant to assure fairness in the adversary criminal process, and a defendant's Sixth Amendment right to counsel attaches when the government initiates adversarial proceedings against him. United States v. Danielson, 325 F.3d 1054, 1066 (9th Cir. 2003). Here the injunctive relief sought is expressly civil in nature, meant to prevent a recurrence of specified conduct that substantially interferes with enforcement of internal revenue laws;*fn1 it is remedial insofar as designed to protect the public and inherently civil in nature. (26 U.S.C. § 7408(b)(2)). It seeks civil injunctive relief that is not inherently criminal in nature. See U.S. v. Certain Real Property and Premises Known as 39 Whalers Cove Drive, Babylon N.Y., 954 F.2d 29, 35 (2d Cir. 1992) (relief that can not fairly be attributed to remedial purposes "but rather can only be explained as also serving either retributive or deterrent purposes" must be classified a punitive and then may be inherently criminal upon consideration of the proceedings inherent nature, identified through statutory language, structure and intent). "The Sixth Amendment relates to a prosecution of an accused person which is technically criminal in nature." U.S. v. Zucker, 161 U.S. 475, 481 (1896).

Thus, the Court finds that the Sixth Amendment does not provide a basis upon which Defendant can obtain relief in this civil proceeding.

B. First and Fourteenth Amendment Access to Courts

Defendant suggests that a denial of the requested furloughs violates his First and Fourteenth ...


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