USCA1 Opinion
October 14, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-2269
UNITED STATES
Appellee,
v.
PAUL B. BONNEAU
Defendant, Appellant.
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ERRATA SHEET
The opinion of this Court issued on July 21, 1992, is
amended as follows:
On page 12, first full , line 6: insert "each of two"
between "in" and "earlier."
July 21, 1992
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No. 91-2269
UNITED STATES,
Appellee,
v.
PAUL B. BONNEAU,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Roney,* Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Annemarie Hassett, Federal Defender Office, for appellant.
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Mark W. Pearlstein, Assistant United States Attorney, with whom
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A. John Pappalardo, Acting United States Attorney, was on brief
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for appellee.
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*Of the Eleventh Circuit, sitting by designation.
BOUDIN, Circuit Judge. On April 2, 1991, a jury
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convicted the defendant-appellant Paul Bonneau of attempted
tax evasion in violation of 26 U.S.C. 7201. The district
court on June 11, 1991, sentenced Bonneau to three years of
probation with conditions. Bonneau now appeals his conviction
and we affirm.
Bonneau is a boilermaker who has spent many years in the
construction of steel structures, working for different
employers on short or long-term projects. From 1966 through
1979, Bonneau regularly filed tax returns and paid taxes and
regularly filed form W-4 certificates with his employers
stating how many exemptions he claimed. The number of
exemptions claimed on the W-4 form advises the employer how
much of the employee's wages should be withheld from the
employee's pay (and remitted by the employer to the Internal
Revenue Service) as a down payment on the employee's income
taxes.
In late 1979, Bonneau was working in Nevada and heard
from co-workers about an organization called Stop Taxing Our
People ("STOP"). Bonneau attended one of its seminars. As a
result of the seminar, Bonneau sought literature from an
organization called the Golden Mean Society, which Bonneau
described at trial as a group that explains tax laws to
individuals and advises them on what is legal and not legal
in relation to taxes. Based on the seminar, the literature,
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and other information he obtained, Bonneau concluded--
according to his trial testimony--that he was not required to
file income tax returns or pay taxes, and from about 1980
onward he ceased either to file or to pay. He also
eliminated withholding of taxes by his employers by filing W-
4 forms stating that he was exempt from withholding.
On April 12, 1990, Bonneau was indicted for two counts
of willfully attempting to evade taxes in violation of 26
U.S.C. 7201. Count one charged that Bonneau failed to file
an income tax return or pay taxes for calendar year 1983 and
had submitted false W-4 forms claiming to be exempt from
withholding, even though he had in fact received a taxable
income of approximately $27,000 during 1983 and owed taxes in
excess of $5,000. Count two charged a similar offense for
calendar year 1984 when Bonneau had a slightly larger income
and owed slightly more in taxes.
At trial Bonneau did not dispute that he owed taxes for
both of the calendar years in question or that he took steps
to prevent taxes from being withheld or paid, but he did deny
that his actions were willful. Under Cheek v. United States,
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111 S. Ct. 604, 610-11 (1991), the willfulness element of the
crime charged can in some circumstances be defeated where a
taxpayer wrongly but sincerely believed that no tax was due.
Cheek holds, however, that while a misunderstanding of the
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tax laws may negate willfulness, the taxpayer's views about
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the validity of the tax statutes are not relevant to
willfulness. Id. at 613.
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Bonneau testified that his own study after the 1979
seminar had persuaded him that a working man's wages were not
"income" under the Internal Revenue Code's definition (see 26
___
U.S.C. 61) because wages did not represent a gain to the
worker but merely an exchange of labor for payment. During
Bonneau's direct testimony, he was allowed to explain his
view and how he came to it and to introduce certain
documents, including literature from the Golden Mean Society,
on which he relied. The trial judge initially excluded as
irrelevant under Cheek any testimony by Bonneau that he
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believed that the tax laws were unconstitutional, and the
judge ordered that certain exhibits be redacted to remove
references to the validity of the tax laws.
On cross-examination of Bonneau, the prosecution asked
questions and introduced documents in order to show that
Bonneau's true basis for failing to pay taxes was not any
misconstruing of section 61 but rather was Bonneau's belief
that the tax laws were unconstitutional, philosophically
objectionable, or both. In this effort, the government
introduced over a vehement objection exhibit 87, a 1986
letter from Bonneau to the Internal Revenue Service,
objecting to certain penalties and including references to
Bonneau as "a white male citizen" and "a free white male
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citizen." The letter is reprinted as an appendix to this
opinion.
The jury convicted Bonneau, and the district court
sentenced him to three years' probation, conditioned on the
filing of returns and payment of taxes. This appeal
followed. Bonneau now offers three different grounds for
reversal.
l. Bonneau first argues that the trial court unduly
restricted him in presenting his defense by excluding any
testimony that Bonneau believed the tax laws to be
unconstitutional and by redacting exhibits--such as the
Golden Mean Society pamphlet--to remove references to the
Constitution. Under Cheek v. United States, a taxpayer's
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mistaken reading of the tax laws may negate willfulness in a
tax evasion case, but "a defendant's views about the validity
of the tax statutes are irrelevant to the issue of
willfulness, need not be heard by the jury, and if they are,
an instruction to disregard them would be proper." 111 S.
Ct. at 613. Whatever a rigid logician might say, Cheek draws
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a practical distinction between "innocent mistakes caused by
the complexity of the Internal Revenue Code" (id. at 612) and
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constitutional and philosophical objections that taxpayers
may sincerely hold but are likely to know have been rejected
by the courts. In any event, the line drawn by Cheek is
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controlling and thedistrict court properlysought to followit.
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Without making a frontal attack on Cheek, Bonneau argues
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on appeal that the trial court overextended Cheek by
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mechanically excluding all defense references to the
Constitution and by redacting all such references in defense
exhibits. Bonneau contends that the Constitution is
legitimately pertinent to the issues in this case in at least
in two ways. Specifically, Bonneau asserts that the language
in the Sixteenth Amendment ("The Congress shall have power to
lay and collect taxes on incomes, from whatever source
derived . . .") was studied by Bonneau as a gloss on section
61 of the Internal Revenue Code ("gross income means all
income from whatever source derived, including (but not
limited to) the following items . . . ."). Further, says
Bonneau, his study of the constitutional validity of the tax
laws provided evidence of his sincere attempt to grapple with
the legal issues, thus tending to bolster the sincerity of
his belief that wages were not income under section 61.
We agree with Bonneau that in principle Cheek does not
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require that every constitutional reference be omitted or
deleted in a tax evasion case; such evidence may indeed be
relevant for some purpose other than to show that the
defendant thought that the tax laws were unconstitutional.
Still, trial judges have ample latitude under Fed. R. Evid.
403 to weigh the importance of the evidence against the risk
of jury confusion, and confusion is a risk where, as here,
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the most obvious use of such constitutional references is
forbidden by Cheek. In this case, the trial judge denied the
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government's pretrial request for a blanket exclusion of all
evidence concerning Bonneau's views about the
constitutionality of the tax laws and sought to address
objections to testimony or exhibits as they arose at trial.
Our review of the transcript of Bonneau's testimony and
exhibits in question persuades us that the trial judge
imposed only reasonable redactions and did not unfairly
handicap the defense.
At oral argument we asked defense counsel to point out
the most egregious example of undue handicapping and counsel
pointed to a pamphlet of the Golden Mean Society offering a
host of observations concerning the tax laws, constitutional
rights, politics and taxpayer strategy. In this exhibit, the
trial court deleted a paragraph of the pamphlet asserting
that tax returns cannot be filed without waiving
constitutional rights but left in a paragraph asserting that
"payment for services is an even exchange--if the value of
the labor is the same as the value of pay, there is no profit
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or gain to constitute the `income' mentioned in the 16th
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Amendment." Not only did the district court employ
reasonable discretion in redacting exhibits but the trial
testimony given by Bonneau and the exhibits he introduced
certainly gave the jury a fair understanding of his position
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that wages were not income and provided the jury with written
materials on which he might have based such a judgment.
In addition to objecting to redactions, Bonneau contends
that the trial court erred in preventing him from testifying
about Supreme Court rulings described by the speaker who
addressed the STOP meeting that Bonneau attended in 1979.
The district court was apparently concerned that Bonneau's
version of the decisions could be misunderstood by the jury
as representing the actual state of the law. The government
counters Bonneau's claim of error with a string of cases
showing that courts often exclude from evidence copies of
statutes, constitutional provisions, and decisions, which
might invite the jury to substitute its own view of the law
for the judge's instructions. See, e.g., United States v.
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Willie, 941 F.2d 1384, 1395-97 (10th Cir. 1991), cert.
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denied, 112 S. Ct. 1200 (1992). But see United States v.
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Powell, 955 F.2d 1206, 1213-14 (9th Cir. 1992) (suggesting
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that Cheek may require admission of legal materials in some
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circumstances). What is in issue here, however, is not the
admission of written decisions but testimony by the defendant
as to what he was told the decisions held. Such testimony
could bear directly on the defendant's state of mind, and the
risk of confusion may be lessened because the jury takes no
written decision into the jury room to ponder.
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The importance of such testimony can, of course, be
weighed by the trial judge against any residual risk of
confusion, and if the trial judge excludes the evidence, the
ruling can be reviewed for abuse of discretion. Fed. R.
Evid. 403. But this is not a subject that we need to pursue
in the present case because Bonneau's trial counsel made no
offer of proof in the trial court to establish the substance
of the testimony. Since we do not know what Bonneau would
have claimed he was told about the Supreme Court decisions,
there is nothing in the record to show that important
admissible testimony was excluded by this ruling. A party
may not claim that evidence was wrongly excluded unless the
substance of the evidence was made known to the trial court
by offer or was apparent from context. Fed. R. Evid.
103(a)(2); Earle v. Benoit, 850 F.2d 836, 847-48 & n.13 (1st
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Cir. 1988). Both the letter and purpose of the rule would be
frustrated were the claim of error to be allowed now.
2. Bonneau's second ground for reversal also derives
from Cheek. After persuading the trial court to limit the
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defense's direct examination by excluding evidence to show
that Bonneau believed the tax laws to be unconstitutional,
the government itself on cross-examination of Bonneau sought
to show that he objected to the tax laws on constitutional
and philosophical grounds. In this court, Bonneau argues
that evidence of his constitutional beliefs had already been
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ruled irrelevant by the trial court. Bonneau further
contends that he could and did believe both that the tax laws
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were unconstitutional and that they did not classify wages as
income; thus, he argues, there is no inconsistency between
the two views and so no impeachment value in the government's
evidence. Finally, Bonneau objects that barring his
constitutional beliefs on direct examination and then
allowing the government to elicit them on cross made him look
dishonest in the eyes of the jury.
The first two objections can readily be put aside.
Under Cheek a defendant charged with tax evasion cannot
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testify to his view that the tax laws are unconstitutional
because, under the substantive law laid down by Cheek, this
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belief even though sincere does not negate willfulness. Yet
when the defendant takes the stand professing to believe that
wages are not income under the tax laws, the prosecutor is
entitled to prove that the defendant held other beliefs--
whether constitutional or philosophical--that persuaded him
not to pay taxes but do not negate willfulness under Cheek.
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As for Bonneau's claim that there is no inconsistency, it is
surely true that the defendant could hold both sets of
beliefs at the same time, but the force and persistence of
the defendant's views on the constitutional issue certainly
were evidence for the jury to consider in deciding what he
actually believed.
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There is more weight to Bonneau's claim that the
sequence of proof posed a risk of unfairly impairing his
credibility. It would, for example, have been improper for
the prosecutor, having limited the direct examination, to
argue in summation that Bonneau should not be trusted as a
witness because he did not mention his constitutional beliefs
until they were drawn out of him on cross-examination. Of
course, the prosecutor here made no such argument in closing,
but the defense is now suggesting that the jury may have
drawn such an inference on its own.
Whatever force the suggestion might otherwise have, it
is answered by the trial judge's handling of the problem.
When this objection to the government's cross-examination was
made at trial, the judge overruled the objection but declared
that under the "principle of completeness," the defense would
now be permitted to develop more fully Bonneau's view that
the tax laws were unconstitutional, so that the jury could
have a full and accurate picture of Bonneau's beliefs.
Moreover, the trial judge said to defendant's trial counsel:
What this comes down to is an argument on the order
of proof in trial, and I think it's appropriate for
me to explain this to the jury and tell them that I
prohibited the introduction of any evidence at the
time of the Government's case and in cross-
examination by you [sic] with respect to evidence
regarding beliefs in unconstitutionality of the tax
laws, and so this comes into the case only as a
result of the defendant's having elected to testify
rather than standing on his right to remain silent,
and then the evidence becomes relevant solely for
impeachment purposes. I'll explain all that if you
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want me to, but I don't think I can exclude the
evidence.
The trial court's sensible offer to explain that it had
itself limited the defendant's testimony gave the defendant
the chance to erase any mistaken inference that Bonneau had
deceived the jury in his direct testimony. Apparently for
tactical reasons, defense counsel at trial did not ask for
the instruction to be given, nor did counsel accept the
invitation to develop further Bonneau's constitutional views
on redirect (an understandable choice since Bonneau's
constitutional beliefs could not themselves furnish a
defense). Nevertheless, the defense had the opportunity to
obtain the instruction and develop the issue, and this seems
to us to conclude the matter for purposes of appeal.
3. The third and most troubling claim urged by Bonneau
on appeal relates to a specific document, exhibit 87,
reprinted as an appendix to this opinion. Exhibit 87 is a
letter written by Bonneau to the Internal Revenue Service in
June 1986, objecting to $500 in penalties imposed on him for
submitting false W-4 forms in each of two earlier years. The
letter objected to the penalties, made certain references to
the Constitution, and included the following language:
I am a white male citizen of these great
United States and still believe I have certain
unalienable rights . . . .
I have never knowingly given up any of my
rights as a free white male citizen of these great
United States.
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On cross-examination of Bonneau, the prosecutor had him
identify the letter and concede that, in protesting the
penalties, he nowhere in the letter said anything about wages
not being income. The prosecutor then referred in his cross-
examination to the phrase, "I am a white male citizen." The
defense objected both to the oral quotation and to the
prosecutor's subsequent offer of the letter into evidence.
Pointing to the "white male citizen" language, defense
counsel objected that it could be construed as racist and
argued that its prejudicial force far outweighed any
probative value it might have. When the trial judge
overruled the objection, defense counsel then asked that the
two "white male citizen" references be redacted. The trial
judge declined to do so and admitted the letter in full,
allowing both paragraphs containing the reference to be read
to the jury. Shortly afterwards, the court recessed for the
weekend.
On the following Monday, Bonneau's trial counsel filed
in open court a written motion to exclude exhibit 87 and any
further evidence relating to Bonneau's constitutional views.
Arguing that such evidence was irrelevant, the motion
repeated Bonneau's claim that the prejudicial effect
outweighed any legitimate value of the letter, "especially
given the fact the jury includes one black man and seven
women." In an oral colloquy, defense counsel argued again
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that at a minimum the objectionable phrases should be
redacted. The district court declined to redact, finding
that the evidence was relevant and that under Fed. R. Evid.
403, its relevance was not substantially outweighed by the
risk of unfair prejudice. In closing argument, the
prosecutor mentioned exhibit 87 along with other documents,
stating: "He [Bonneau] even talks about the fact that he's a
free, white male as if that somehow has some bearing on his
tax liability, but he never says that wages are not income."
The "white male" references to one side, there is no
proper objection to the letter. It is true that this letter
is directed to the penalties rather than the income tax, that
it was written several years after the tax years in issue
under the indictment, and that the constitutional objections
in the letter can be read primarily as procedural objections.
The fact remains that the prosecutor was entitled to argue,
and the jury to consider, the inference that Bonneau's
failure to make any reference in the letter to his alleged
belief that wages are not income--in the face of the penalty
assessments premised on his underlying tax liability--tended
to undercut his trial testimony that he held such a belief.
But to hold the letter to be relevant does not fully answer
Bonneau's objection on this appeal, for the thrust of the
prosecutor's argument could have been preserved by admitting
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the letter while redacting the "white male" phrases, removing
any risk of prejudice.
In our view redaction would certainly have been a
permissible course. Although not openly an attack on blacks
or women, Bonneau's language has overtones that could have
offended jurors, and not only black or female members of the
jury. Any threat to a fair trial is a matter of concern,
whether or not the threat is founded in the defendant's own
incivility. Nor do we accept the government's suggestion
that any error in admitting the letter was harmless. It is
true that the jury may have been more than usually skeptical
of Bonneau's sincerity in claiming that wages are not income
since the government's evidence also indicated that he did
not pay taxes in a year where unemployment compensation paid
to him exceeded the taxable minimum. But it would stretch
the harmless error concept too far to apply it in this case
in which the merits turned on defendant's state of mind and
Bonneau offered testimony consistent with his professed
belief. Two related considerations persuade us to affirm.
The government has not argued the point directly, but in our
view the letter's "free white male" references are themselves
relevant evidence tending to undercut at least to some degree
Bonneau's claim that he did not pay taxes because he believed
that wages were not income. The references, in the context
of the letter and of other exhibits on which Bonneau relied,
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could be seen by the jury as part of a pattern of rhetoric
suggesting constitutional and philosophical objections,
rather than any technical misreading of the Internal Revenue
Code. This is doubtless what the district judge had in mind
when, in addressing the request for redaction, he said that
"one may read the letter as using those expressions as a part
of a view of the constitutionality issue . . . ." The
phrases did not contribute very much to the government's case
but we cannot find that they were irrelevant.
Once the relevance of the phases is accepted, the
standard for exclusion at trial and the standard of appellate
review combine to favor affirmance of the district judge's
ruling. Fed. R. Evid. 403 provides that relevant evidence
may be excluded where its probative value is "substantially"
outweighed by the danger of unfair prejudice. When it comes
to making that appraisal, the district judge has the special
advantage of sitting in the courtroom and hearing the
evidence face to face with the jury. The government properly
cites to us Freeman v. Package Machinery Co., 865 F.2d 1331,
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1340 (1st Cir. 1988), for the proposition that "only rarely--
and in extraordinary compelling circumstances" should this
court "reverse a district court's on-the-spot judgment
concerning the relative weighing of probative value and
unfair effect." While the district court might have struck
the balance differently, this is not a case for reversal.
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For the reasons stated, the judgment of the district
court is
Affirmed.
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