Second Circuit Affirms Denial of Post Trial Competency Hearing for Pro Se Defendant with “Sovereign Citizen” Tax Defense.

In United States v. DiMartino, __ F.3d __, 2020 WL 550475 (Feb. 4, 2020) (Jacobs, Sack, Hall), the Circuit affirmed the denial of a post-trial motion for a competency hearing based on the defendant’s persistent adherence to the “Sovereign Citizen” theory that the IRS and Justice Department are private corporations, the tax laws are invalid, and the court had no jurisdiction over him. The defendant had represented himself at trial and his defense was that this theory was true and that he believed it was true. After his conviction, he retained counsel for sentencing. Counsel filed the motion with a psychologist’s report concluding that the defendant had a delusional disorder, based on his continuing insistence on the Sovereign Citizen theory. The Court of Appeals affirmed the district court’s conclusion that, based on DiMartino’s conduct of the trial, he was competent, and that the psychologist’s report was unreliable.

The Second Circuit held that the district court reasonably found that Mr. DiMartino’s actions at trial demonstrated that he understood the proceedings against him and was capable of participating meaningfully in his defense. He argued that he lacked criminal intent, he solicited the jury’s sympathy, and he made a bid for jury nullification. The “red flags” identified by the psychologist were all related to his views that were part of an ideology shared by groups who resist the tax laws. The Court agreed with the First and Ninth Circuits that adherence to such views is not presumptive evidence of mental incompetence.

The Court likewise affirmed as reasonable the district court’s rejection of the psychologist’s report after a Daubert hearing on the ground that it was unreliable under Fed. R. Evid. 702: the psychologist had not read the transcripts of the trial, nor interviewed the defendant’s family or associates, nor considered the context of the Sovereign Citizen movement. The report also overlooked the defendant’s lack of impairment in running his successful accounting business and the PSR report that his siblings were unaware of any mental health issues.

Posted by: Colleen P. Cassidy