Admissibility
1 Page5
[2001-2 USTC
¶50,535]
United States of America
, Plaintiff-Appellee v.
Rob
ert G. Bremner, Defendant-Appellant
(CA-4),
U.S.
Court of Appeals, 4th Circuit, 00-4895, 7/16/2001, 2001
U.S.
App. LEXIS 15924. Affirming, per curiam, an unreported District Court
decision
[Code
Secs. 7201 and 7203
]
Crimes: Attempt to evade tax: Failure to file return: Sufficiency of
evidence.--A nonfiler who concealed commissions he earned as a sales
representative using nominee names on bank accounts was properly
convicted of tax evasion and failure to pay income tax. The government's
uncontroverted evidence established that he received unreported income
that resulted in a substantial tax deficiency. Moreover, the IRS did not
have to assess taxes owed in order to establish that a tax deficiency
existed.
[Code
Secs. 7201 and 7203
]
Crimes: Attempt to evade tax: Failure to file return: Jury
instructions: Willfulness.--A nonfiler who concealed commissions he
earned as a sales representative using nominee names on bank accounts
was properly convicted of tax evasion and failure to pay tax. His
proposed jury instructions regarding the element of willfulness was
properly denied because the instructions as given by the court clearly
established the standard by which that element could be proven.
[Code
Secs. 7201 and 7203
]
Crimes: Attempt to evade tax: Failure to file return: IRS employees:
Cross-examination, scope of.--A nonfiler who concealed commissions
he earned as a sales representative using nominee names on bank accounts
was properly convicted of tax evasion and failure to pay income tax. The
taxpayer was properly denied the opportunity to cross-examine an IRS
agent on the exact amount of the taxes he owed. The issue for
establishing liability under Code Sec. 7201 was merely
whether the evidence supported a conclusion that he owed a
"substantial" amount of tax.
[Code
Secs. 7201 and 7203
]
Crimes: Attempt to evade tax: Failure to file return: Evidence:
Relevancy: Abuse of discretion.--The district court did not abuse
its discretion in preventing a sales representative who was convicted of
tax evasion and failure to pay tax from introducing in evidence the
Internal Revenue Code and a copy of Form 2555, Foreign Earned Income.
Given that the taxpayer was allowed to introduce various laws,
regulations and documents in an attempt to prove that he did not have to
file tax returns or pay tax, these documents would likely have confused
the jury.
Steven
Dwain Goodwin, Goodwin, Sutton & Duval, P.L.C.,
Richmond
,
Va.
, for appellant. Kenneth E. Melson, United States Attorney, John S.
Davis, Assistant United States Attorney, Richmond, Va., for appellee.
Before:
WILLIAMS, MOTZ, and KING, Circuit Judges.
è
Caution: This court has designated this opinion as NOT FOR
PUBLICATION. Consult the Rules of the Court before citing this case.ç
OPINION
Per
Curiam"
EC:
Rob
ert Bremner was convicted by a jury of four counts of willfully evading
income taxes in violation of 26 U.S.C.A. §7201 (West 1989 & Supp.
2000), and sentenced to eighteen months imprisonment. He appeals,
claiming that: (1) the district court improperly limited his
cross-examination of an IRS Agent; (2) the district court abused its
discretion by disallowing the introduction of certain statutory and
regulatory materials; (3) the district court erred in rejecting his
proposed jury instruction regarding "willfulness"; and (4) the
evidence was insufficient to sustain his convictions.
The
evidence presented at Bremner's trial, viewed in the light most
favorable to the Government, United States v. Burgos, 94 F.3d
849, 854 (4th Cir. 1996) (en banc), established the following. For the
tax years at issue (1993 through 1996), Bremner received compensation as
a sales representative for Consumers Buyline, Inc., and Health
Technologies Network, as well as commissions from insurance companies
for policies he had sold in prior years. Based upon income reported to
the IRS from those companies and on Bremner's bank records, the IRS
determined that Bremner received taxable income of: $33,332 in 1993,
$35,000 in 1994, $141,054 in 1995, and $233,245 in 1996. Bremner did not
file income tax returns or pay any taxes for any of those years.
Bremner
first claims that the district court erred in limiting his
cross-examination of an IRS agent. Restrictions on the scope of
cross-examination are within the sound discretion of the trial court,
which has wide latitude to set reasonable limits to prevent harassment,
prejudice, or confusion of the issues or where the information sought is
of marginal relevance. United States v. Turner, 198 F.3d 425, 429
(4th Cir. 1999), cert. denied, 529
U.S.
1061, 146 L.Ed.2d 475, 120 S.Ct. 1573 (2000); see
Delaware
v. Van Arsdall, 475
U.S.
673, 679, 89 L.Ed.2d 674, 106 S.Ct. 1431 (1986). Here, Bremner was
allowed to question the agent at some length about his reasoning in
determining Bremner's gross income. The district court then limited
Bremner's continued cross-examination regarding whether the income at
issue was "taxable income" because the legal definition of
income to be applied to Bremner's receipts was not at issue in the case;
instead, the case concerned only whether substantial taxes were due and
not the amount due as "taxable income." Therefore, the agent's
proffered testimony would have been irrelevant. Accordingly, we conclude
that the district court did not abuse its discretion in limiting
Bremner's cross-examination of the IRS agent.
Next,
Bremner claims that the district court erred in refusing to allow him to
admit into evidence copies of unspecified portions of the Internal
Revenue Code or a copy of IRS Form 2555 (reporting of foreign earned
income). The district court's evidentiary ruling is reviewed for abuse
of discretion.
United States
v. Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996). Bremner was
allowed to describe in detail his research into the tax laws and to
display on an overhead projector various laws, regulations, and tax
forms, which he claimed supported his belief that he did not need to
file returns or pay taxes. The district court only excluded a copy of
the Internal Revenue Code and Form 2555 from being admitted into
evidence. Given the potential to confuse the jury, the district court's
decision was not an abuse of discretion. See United States v.
Hairston [87-1 USTC ¶9356], 819 F.2d 971, 973 (10th Cir. 1987)
(affirming exclusion of tax protest literature and noting that the
district court did not prevent the defendant "from mounting a
defense, as the appellate brief suggests, but rather exercised its
discretion regarding the form in which such evidence should be admitted
so as to minimize jury confusion").
Bremner
argues that the district court erred in rejecting his proposed jury
instruction regarding "willfulness." The inclusion of a
particular instruction and the content of that instruction are reviewed
for an abuse of discretion.
United States
v. Whittington, 26 F.3d 456, 462 (4th Cir. 1994);
United States
v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992). The district
court's refusal to give a requested jury instruction is reversible error
only if, among other things, the instruction "was not substantially
covered by the court's charge to the jury." United States v.
Patterson, 150 F.3d 382, 388 (4th Cir. 1998), cert. denied,
525
U.S.
1086, 142 L.Ed.2d 691, 119 S.Ct. 835 (1999).
Bremner
contends that the jury should have been instructed that willfulness is a
subjective state of mind. See United States v. Cheek [91-1 USTC
¶50,012], 498 U.S. 192, 202-03, 112 L.Ed.2d 617, 111 S.Ct. 604 (1991)
(holding that a good-faith misunderstanding of the law or a good-faith
belief that one is not violating the law negates willfulness, whether or
not the belief is objectively reasonable). While willfulness in a tax
case includes a subjective determination, the use of the word
"subjective" in the instructions is not a requirement, so long
as the nature of the standard is clear.
Id.
at 201-02; United States v. Hauert [95-1 USTC ¶50,045], 40 F.3d
197, 202-03 (7th Cir. 1994). We hold that the jury accurately was
instructed as to the subjective nature of the standard and that
Bremner's proposed instruction was "substantially covered by the
court's charge to the jury." Patterson, 150 F.3d at 388.
Therefore, the district court did not abuse its discretion in refusing
Bremner's proposed instruction.
Finally,
Bremner claims that the evidence was insufficient to support his
convictions. To establish a violation of §7201, the Government must
prove willfulness, a substantial tax deficiency, and an affirmative act
constituting attempted tax evasion. United States v. Goodyear
[81-1 USTC ¶9423], 649 F.2d 226, 227-28 (4th Cir. 1981). The
Government's uncontroverted evidence established that Bremner received
taxable income for the years in question, resulting in a substantial tax
deficiency, and that he willfully failed to report the income or pay any
taxes on that income. The Government also showed that Bremner attempted
to evade any tax due by means of nominee names on his bank accounts and
other property. Bremner argues that, because there were no valid
assessments, there was no tax deficiency. Bremner is incorrect. A tax
deficiency is independent of an assessment, which is merely a step in
the
admin
istrative process of collecting a deficiency. See 26 U.S.C.A.
§§6203, 6211 (West 1989 & Supp. 2000); see also
United States
v. Silkman [98-2 USTC ¶50,724], 156 F.3d 833, 836-37 (8th Cir.
1998) (holding that proof of a valid assessment is not an essential
element of criminal tax evasion). Therefore, the evidence was sufficient
to support Bremner's convictions.
Accordingly,
we affirm Bremner's convictions. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the Court and argument would not aid the decisional
process.
AFFIRMED
[91-1 USTC
¶50,164]
United States
, Appellee v. Joseph Lussier, Defendant, Appellant
(CA-1), U.S. Court of Appeals, 1st
Circuit, 90-1389, 3/29/91, Affirming an unreported District Court
decision
[Code Secs.
6103 and 7203 ]
Confidentiality of returns: Information disclosure actions: Failure
to file return: Evidence: Not admissible: Exercise of
privilege-exclusion from courtroom.--A taxpayer's motion for release
of a jury panel list one month before trial was properly denied where
the process used by the court avoided any unfairness or statutory
noncompliance. Before swearing the jury in, the court questioned each
prospective juror as to whether he had been audited and allowed either
party to disqualify those answering affirmatively. Also, the IRS
confirmed the jurors' answers. Further, there was no error in allowing
the government's witness to remain in court where his testimony
summarized, and was consistent with, the evidence presented at trial.
Finally, evidence offered by the taxpayer to show a lack of willfullness
regarding a failure to pay taxes was properly excluded where the
exhibits lacked a proper foundation or offer of proof.
Lincoln
C. Almond, United States Attorney, Margaret E. Curran, Assistant United
States Attorney, Providence, R.I. 02901, for appellee. Joseph R.
Lussier, pro se.
Before
CAMPBELL, SELYA and CYR, Circuit Judges.
Per
Curiam"
EC:
The appellant, Joseph R. Lussier, was convicted by a jury of three
counts of failure to file a federal income tax return in violation of 26
U.S.C. §7203 . The evidence
presented at trial showed (a) that Lussier owed federal income taxes for
1983, 1984 and 1985, and (b) that in each year Lussier failed to file an
income tax return. The evidence also was sufficient to support an
inference that Lussier acted willfully.
Lussier
does not attack the sufficiency of the evidence. Instead, he challenges
the manner in which the proceedings against him were carried out. Each
of his arguments, however, falls short of its mark, and we affirm the
conviction.
Jurisdiction
Because
Lussier refused to appear willingly in response to a summons from the
government, he was arrested and brought before the magistrate for
arraignment. He contends that the arrest was invalid because it was
performed "outside the territorial limits and jurisdiction of the
United States" (that is, not on land actually owned and
admin
istered by the federal government, "such as a post office or a
fort"), and that the district court consequently lacked
jurisdiction over both his person and the subject matter of the
prosecution. Many courts have rejected this "silly claim." United
States v. Koliboski [85-1 USTC ¶9251 ],
732 F.2d 1328, 1329 (7th Cir. 1984) and cases cited therein. We join
them. It is well settled that a district court has personal
jurisdiction over any party who appears before it, regardless of how his
appearance was obtained. United States v. Stuart [82-2
USTC ¶9602 ], 689 F.2d 759, 762 (8th Cir. 1982); United
States v. Warren, 610 F.2d 680, 684 n. 8 (9th Cir. 1980). 18 U.S.C. §3231 , moreover, gives
the district court subject matter jurisdiction over "all
offenses against the laws of the
United States
." This category of offenses obviously includes the crimes defined
in Title 26. See United States v. Studley [86-1
USTC ¶9390 ], 783 F.2d 934, 937 (9th Cir. 1986).
Self-Incrimination
After
his arrest, Lussier refused to provide the government with routine
"booking" information regarding his name, age, address and so
forth. At the arraignment, the magistrate acknowledged that Lussier had
a constitutional right to remain completely silent, but notified him
that without the booking information he found it impossible to determine
whether Lussier should be released on bail. Consequently, the magistrate
remanded Lussier to the custody of the federal authorities. Twenty-two
days later, when Lussier relented and provided the requisite
information, he was granted bail and released. Lussier challenges what
he characterizes as an attempt to "coerce" him to waive his
Fifth Amendment right against self-incrimination. The magistrate, he
says, should neither have threatened him with incarceration if he did
not provide the booking information, nor actually jailed him when he
stood on his constitutional right to silence.
Whatever
the constitutional propriety of the magistrate's actions, the issue is
now moot. When Lussier provided the requested booking information, the
magistrate released him, and the information was not thereafter used
against Lussier in any way. Lussier currently has no need for or
entitlement to bail, and no claim that the magistrate's actions in any
way affected the fairness of his trial. See Murphy v. Hunt, 455
U.S.
478, 481-82 (1982) (a case becomes moot when the issues presented are no
longer alive or the parties lack a legally cognizable interest in the
outcome); United States v. Vachon, 869 F.2d 653, 656 (1st Cir.
1989).
Nature
and Cause
Lussier
argues that the district court failed to inform him of the "nature
and cause" of the charges against him, but does not identify the
omission specifically. The claim, in any case, is specious. Lussier was
provided with a copy of the criminal information issued by the United
States Attorney, a document that apprised him of the offense charged and
the elements thereof, including the amount of taxes due and owing, and
the actions alleged to constitute willful failure to file a return. The
Sixth Amendment requires nothing more. See United States v. Serino,
835 F.2d 924, 929 (1st Cir. 1987), citing Hamling v. United States,
418 U.S. 87, 117 (1974) (an indictment satisfies the Sixth Amendment if
it contains the elements of the offense charged and fairly informs the
defendant of the charge against which he must defend); United States
v. Little, 321 F.Supp. 388 (D. Del. 1971) (same for criminal
information).
Counsel
of Choice
Lussier
contends that he was deprived of his right to the "effective
assistance of his counsel of choice." He does not, however, make a
coherent argument in support of his claim. The record shows that Lussier
chose to represent himself, but that the court nevertheless appointed
"stand by" counsel to assist him as he desired. The record
also suggests that Lussier wanted, but was denied, the right to use lay
"counsel" to assist him in some manner before or during trial.
We
see no infirmity in the district court's exclusion of lay counsel from
the proceedings. The right to effective assistance of counsel is a
fundamental Sixth Amendment right, but the right to choose counsel is
not absolute.
United States
v. Machor, 879 F.2d 945, 952 (1st Cir. 1989). A criminal
defendant has no right to lay counsel. See Tyree v. United States,
892 F.2d 958, 959 (10th Cir. 1989); United States v. Turnbull,
888 F.2d 636, 638 (9th Cir. 1989); United States v. Tedder [86-1
USTC ¶9426 ], 787 F.2d 540, 543 (10th Cir. 1986); United
States v. Schmitt, 784 F.2d 880 (8th Cir. 1986); United States v.
Brown [79-2 USTC ¶9523 ],
591 F.2d 307 (5th Cir. 1979); United States v. Wilhelm, 570 F.2d
461, 465 and n. 9 (3d Cir. 1978) and cases cited therein.
Continuance
At
a hearing before the magistrate on January 5, 1990, the government
agreed to allow Lussier and a family member to inspect the government's
documents relating to the case. The magistrate issued an order directing
that this inspection take place on January 19, but the order apparently
was lost and Lussier did not appear for the inspection. On January 26 he
called the prosecutor, who invited him to come and inspect the
government's records on January 31. When Lussier insisted on bringing a
"friend" rather than a family member, however, the prosecutor
refused him access, citing the specific terms of the court's order.
Lussier
appeared in court for a calendar call on February 5, having filed a
motion for a continuance of trial the day before. The district court
sorted out the discovery issue, directed that Lussier be allowed to
inspect the government's documents that afternoon, denied the motion for
a continuance, and appointed stand-by counsel. The jury was empaneled
the next day, and the trial took place on February 12, 13 and 14.
Lussier claims that by denying the motion for continuance, the district
court deprived him of adequate time to prepare for his trial. We
disagree.
The
district court has broad discretion to grant or deny continuances. Only
an "unreasoning and arbitrary insistence upon expeditiousness in
the face of a justifiable request for delay" will abuse it. United
States v. Torres, 793 F.2d 436, 440 (1st Cir. 1986), citing Morris
v. Slappy, 461
U.S.
1, 11-12 (1983). In deciding whether denial of a continuance is an abuse
of discretion, we must evaluate each case on its own facts, paying
particular attention to the reasons presented to the trial judge at the
time the request was denied.
Id.
Other factors may also be relevant, including (1) the amount of time
available for preparation, (2) the likelihood of prejudice from the
denial, (3) the defendant's role in shortening effective preparation
time, (4) the degree of complexity of the case and (5) the availability
of discovery from the prosecution.
United States
v. Uptain, 531 F.2d 1281, 1286 (5th Cir. 1976).
The
reason Lussier gave for his motion for a continuance was his inability
to gain access to the government's evidence. It is quite clear, however,
that this was a circumstance at least in part of his own making, and
that the district court rectified the situation on the same day that
Lussier argued his motion. Lussier had nearly sixty days overall to
prepare for trial, including a full week after he saw the government's
evidence. The issues in this case, moreover, were far from complex. We
see no prejudice resulting from the district court's decision, and no
abuse of discretion.
Jury
Panel Information
On
February 2, Lussier filed a "Motion for Order of Court Directing
Jury Clerk to Divulge Jury Panel Information in Advance of Trial."
By this motion he sought a list of the names, addresses and Social
Security numbers of the prospective jurors in his case, for use in
securing information under 26 U.S.C. §6103(h)(5) . When the
United States is a party to a judicial proceeding, 26 U.S.C. §6103(h)(5) directs the
Secretary of the Treasury to divulge, to any party to the proceeding who
inquires, whether "an individual who is a prospective juror . . .
has or has not been the subject of any audit or other tax investigation
by the Internal Revenue Service. The Secretary shall limit much response
to an affirmative or negative reply . . . ." Citing this statute,
Lussier asked that he be provided with information regarding the makeup
of the entire jury panel at least one month before trial began, so that
he would have time to approach the IRS before jury selection began.
Instead,
on February 5, the day before the jury was chosen, the district court
took a more practical approach. It indicated that it would ask each
prospective juror, as he or she was empaneled, whether he or she had
ever been the subject of an audit or tax investigation, and to allow
either party to disqualify those who answered affirmatively. It appears
that the jurors actually selected all responded negatively to those
inquiries. Once the jury had been seated, the court directed the
prosecutor to verify their negative answers by making a §6103(h)(5) request to the
Internal Revenue Service relative to each of the chosen jurors. The
prosecutor did so, and before the jurors were sworn on February 12,
reported that the answers of all jurors had been verified by the
Secretary, except that the IRS could not locate the records of one juror
because of a mistaken Social Security number. As to this juror, the
government later advised the court, just before it charged the jury,
that the IRS had at last located her records and verified her negative
answer as well.
Relying
on United States v. Hashimoto [89-2 USTC ¶9432 ],
878 F.2d 1126 (9th Cir. 1989), Lussier insists that the district court
committed reversible error. In Hashimoto, the district court
ignored the defendant's request that he be provided with the jury panel
list several months before trial. Pursuant to local procedures, the
defendant received such a list seven days before trial, but did not then
make a request under §6103(h)(5) . At voir
dire, according to the majority opinion, the court failed to inquire
sufficiently about the jurors' past dealings with the IRS.
A
majority of the Hashimoto panel ruled that the mandatory language
of §6103(h)(5) gave the
defendant an "absolute right" to juror information. Reasoning
that, "as a general rule, seven days will not be sufficient time in
which to file and receive a response to a written request submitted
pursuant to §6103(h)(5) ," the
panel decided that "the defendant should be permitted to receive
the jury list as soon as it has been drawn." 878 F.2d at 1130.
Having
found an error, the Hashimoto majority then decided that the
error was reversible. It noted two alternative standards for determining
whether denial of §6103(h)(5) information
was reversible error: (1) the "standards used to evaluate whether a
trial court's restrictions on voir dire require reversal," that is,
whether the denial raised "a significant risk of prejudice and
examination of the jurors failed to negate that inference," or (2)
an absolute standard under which reversal would be required in all cases
in which juror tax information was improperly denied, "inasmuch as
Congress thought the right important enough to create, by statute, an
unqualified right to such information in tax cases."
Id.
at 1133.
The
Hashimoto majority did not have to choose between the alternative
standards, since it found that even under the first, less stringent,
test, reversal was necessary. This was because "none of the
questions asked during voir dire was sufficient to counter the
presumption of risk of prejudice that, at a minimum, arises from a
violation of the statute."
Id.
at 1134.
The
Fifth Circuit has also considered the issue, but has rejected Hashimoto's
result. In United States v. Masat [90-1
USTC ¶50,156 ], 896 F.2d 88 (5th Cir. 1990), the defendant
received a list of jurors and made inquiry to the IRS, but had yet to
receive complete information before voir dire. The district court denied
the defendant's motion for a continuance, but asked the prospective
jurors whether or not they had been the subject of an audit or
controversy with the IRS.
The
Fifth Circuit stated that the court should have allowed Masat time to
obtain from the IRS the juror information he sought, but held that any
error committed by the district court was not prejudicial, "for the
jurors were [subsequently] asked the relevant questions by the trial
judge."
Id.
at 95.
We
do not think that §6103(h)(5) requires a tax
defendant to receive the names of the venire a month or more in advance
of trial, as the Hashimoto majority held. The statute itself
makes no provision for such an extreme alteration of normal trial
arrangements. It merely directs the Secretary of the Treasury to make
certain information available upon request. Subject only to review for
abuse, the district court retains discretion to ascertain the relevance
and need for such information in a given case, and the proper measures
to accommodate a §6103(h)(5) request. In a
tax prosecution such as this, we encourage the district court to take
reasonable and feasible steps to enable a defendant, who makes a clear
and timely request, to procure §6103(h)(5)
information prior to the swearing of the jury. But we do not
lay down a hard and fast rule.
In
the circumstances of the present case, we hold that the approach taken
by the district court--winnowing the juror pool through questions on
voir dire, directing the prosecutor to verify the empaneled jurors'
answers by obtaining §6103(h)(5) information
about them from the IRS, and in fact obtaining such verification before
the jury was sworn--adequately enforced both the letter and spirit of
the statute. The process failed only insofar as the Secretary's response
concerning one of the jurors was not obtained before proceeding to
trial. Any error, however, was harmless since when the information as to
the last juror was received, it fully confirmed the juror's response on
voir dire. In the present case, unlike in Masat, all of the
information obtained on voir dire was thus confirmed by the Secretary
pursuant to §6103(h)(5)
. This clearly avoided any question of unfairness or
statutory non-compliance. We need not determine to what extent other,
less sedulous, efforts to ensure that the defendant received the
statutory information would still suffice for affirmance.
Failure
to Sequester
Pursuant
to Fed. R. Evid. 615, the district court sequestered all trial witnesses
except (1) the government's case agent, who served as the government's
designated representative under Fed. R. Evid. 615(2) and therefore was
entitled to remain in court, and (2) an IRS agent named Gary Soares, who
testified at the end of the government's case to his calculation of the
taxes due and owing by Lussier, based on "the testimony and
documents in evidence." Lussier objects to Soares' presence, but
there was no error in the district court's decision to allow him to
remain. Whether one denominates Soares as a "fact" or
"expert" witness, it is clear that his testimony was based on,
summarized, and was consistent with the evidence presented at trial, and
that there would have been "little, if any reason" to
sequester him. Morvant v. Construction Aggregates Corp., 570 F.2d
626, 629-30 (6th Cir. 1978) (little if any reason to sequester a witness
who is to testify in an expert capacity only and not to the facts of the
case). Lussier was not prejudiced by the decision to allow Soares to
remain in court, which consequently was not an abuse of the district
court's discretion. See
United States
v. Jewett, 520 F.2d 581, 584 (1st Cir. 1975).
Exclusion
of Exhibits
In
a supplemental brief, Lussier called attention to the recent Supreme
Court decision in Cheek v. United States [91-1
USTC ¶50,012 ], --
U.S.
--, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). In Cheek, the Court
overturned a tax evasion conviction where the district court had
instructed the jury that a defendant's good-faith misunderstanding of
the requirements of the law would negate willfullness only if the
misunderstanding was "objectively reasonable." The inquiry,
the Court said, should properly focus on what the defendant actually
believed; the reasonableness or unreasonableness of a purported belief
is relevant only inasmuch as it casts light on the credibility of the
defendant's claim. 111 S.Ct. at 610-12. This has long been the rule in
this circuit, see United States v. Aitken [85-1 USTC ¶9209 ],
755 F.2d 188, 191-93 (1st Cir. 1985), and the district court's
instructions to the jury followed the law exactly.
Lussier
contends, however, that the district court violated Cheek when it
excluded three proffered exhibits: (1) a copy of the 1946 Federal
Register, which contained a long-superseded regulation saying that a W-2
form can be filed in lieu of a Form 1040 tax return, (2) a copy of the
tax code, and (3) a copy of the United States Constitution. Lussier says
that he wanted to introduce the exhibits to show that he actually
believed that he was not required to file a tax return.
Since
the critical element in a tax case is often the defendant's mental
state, many courts have given the accused "wide latitude" in
the introduction of evidence which may tend to show a lack of
willfulness or specific intent. United States v. Sternstein [79-1 USTC ¶9338 ],
596 F.2d 528, 530 (2d Cir. 1979). See also
United States
v. Brown [69-2 USTC ¶9479 ],
411 F.2d 1134 (10th Cir. 1969). In Cheek, the Supreme Court noted
that the district court erred when it instructed the jury to disregard
evidence (in that case, the defendant's own testimony) that the
defendant was not required to file a return or to pay income taxes,
"as incredible as such misunderstandings of and beliefs about the
law might be." 111 S.Ct. at 611.
The
evidence at issue here, however, was properly excluded because the
exhibits lacked a foundation of evidence or offer of proof to link them
to the willfulness issue. The exhibits would have been relevant only
insofar as they supported other evidence offered to negate the element
of willfulness, for example, testimony that Lussier knew of the 1946
regulation and relied on it when he decided not to file a tax return, or
that he attempted to consult the tax code and was led astray by its bulk
and confusing language. But no evidence to that effect was introduced or
proffered. Absent such a foundation, the exhibits could only have
confused the jury. See
United States
v.
Wilson
, 798 F.2d 509, 515-16 (1st Cir. 1986).
Affirmed.
[83-1 USTC
¶9349]
United States of America
, Plaintiff-Appellee v. Kenneth V. Stillhammer and Laverne B.
Stillhammer, Defendants-Appellants
(CA-10), U. S. C.ourt of Appeals,
10th Circuit, Nos. 81-2139, 81-2140, 706 F2d 1072, 5/5/83
[Code Secs. 7203 and 7205]
Crimes: Failure to file returns: Fraudulent withholding statement.--A
trial court properly exercised its discretion in striking a prospective
juror for cause, since it appeared that he may have been biased, and in
finding that returns filed with fifth amendment objections to disclosure
of information did not constitute properly filed returns, since there
was no information upon which the IRS could compute the taxpayers' tax
liabilities. Although the IRS made calculations computing the taxpayers'
liabilites, they were not excused from filing returns. Thus documents
containing these calculations were properly excluded from evidence, the
documents being irrelevant in demonstrating that returns did not have to
be filed. Also, there was no fifth amendment privilege permitting
general withholding of information on returns, and the sixteenth
amendment allowed taxation of individuals, not just corporations.
Finally, convictions for filing false withholding exemption statements
were affirmed, since the taxpayers realized that their incomes were
subject to tax liability.
William
L. Lutz, United States Attorney, Wayne G. Chew, Assistant United States
Attorney, Albuquerque, New Mexico 87103, for plaintiff-appellee. Kenneth
Stillhammer, Thoreau, New Mexico, pro se. Lynn Allan, 2613
Espanola, Albuquerque, New Mexico, Frank O. Westerfield, Jr., 1607
Western Bank Building, Albuquerque, New Mexico 87120, for
defendants-appellants.
