United States of America, Plaintiff-appellee, v. Martha Whittenburg, Defendant-appellant, 15 F.3d 1095 (9th Cir. 1993)

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US Court of Appeals for the Ninth Circuit - 15 F.3d 1095 (9th Cir. 1993)

Argued and Submitted Nov. 2, 1993. Decided Dec. 22, 1993

Before: KOZINSKI and O'SCANNLAIN, Circuit Judges, and KELLEHER,*  District Judge.


Appellant Martha Whittenburg appeals her conviction for tax evasion under 26 U.S.C. § 7201.

A. Whittenburg claims she couldn't have owed taxes to the government because the drug trafficking proceeds on which the taxes were due were the separate property of her husband. But Whittenburg had a one-half interest in the drug money just as she did in all of her husband's earnings, see United States v. Wright, 667 F.2d 793, 799-800 (9th Cir. 1982); Fredrickson & Watson Constr. Co. v. Boyd, 102 P.2d 627, 628 (Nev.1940), and was thus liable for taxes on her share, United States v. Mitchell, 403 U.S. 190, 196-97 (1971). Whittenburg's assertion that this money could not be community property because the community never acquired title to it must fail; even if the community must acquire title over an asset, the title to the forfeited property didn't vest in the government until the government obtained a judgment of forfeiture. United States v. 92 Buena Vista Ave., 113 S. Ct. 1126, 1137 (1993).

B. Whittenburg also claims on appeal that this application of section 7201 violates her equal protection and due process rights because, as a spouse residing in a community property state, she is treated differently than spouses in common law states. Although she asserts that this constitutional challenge was implicit in her community property argument, we find otherwise. And because Whittenburg did not raise this challenge below, she has waived it for purposes of this appeal. Lang v. Callahan, 788 F.2d 1416, 1418 (9th Cir. 1986).



The Honorable Robert J. Kelleher, Senior United States District Judge for the Central District of California, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3