United States v. Huguenin

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 94-1119

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                 ROBERT L. HUGUENIN,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                    [Hon. Ronald R. Lagueux, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                               Torruella, Selya and Cyr,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Robert L. Huguenin on brief pro se.
            __________________
            Edwin   J.  Gale,  United  States  Attorney  General,  Loretta  C.
            ________________                                       ___________
        Argrett, Assistant  United States  Attorney, Robert  E. Lindsay,  Alan
        _______                                      __________________   ____
        Hechtkopf and Karen  Quesnel, Attorneys,  Tax Division, Department  of
        _________     ______________
        Justice, on brief for appellee.

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                                    July 22, 1994
                                 ____________________

Per Curiam.  Defendant-appellant Robert L. Huguenin
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            appeals  pro se  from  a district  court  order revoking  his

            probation  and  sentencing  him to  an  additional  period of

            incarceration.  For the reasons stated below, we affirm.

                                      BACKGROUND

                      On November 28, 1989, a grand jury returned a three

            count indictment  charging Huguenin with attempting  to evade

            his income tax  obligations for 1984, 1985 and 1986.   See 26
                                                                   ___

            U.S.C.   7201.  Huguenin was convicted of all three counts on

            June 15,  1990.   The district court  sentenced Huguenin,  on

            Count  I, to  forty-two months'  imprisonment  and fined  him

            $5,931.18.  On  Count II, the imposition of  the sentence was

            suspended,  and   the  defendant  was  placed  on  supervised

            probation  upon release from confinement for three years with

            the condition that

                 defendant  is to file all past, present, and future
                 income tax  returns for  those years  where he  had
                 income & pay tax that is due.  Defendant to provide
                 copies of tax returns to probation counselor.

            On Count  III, the imposition  of the sentence  was suspended

            and the defendant  was placed on unsupervised probation to be

            served  consecutively  to  the  three  years   of  supervised

            probation  previously imposed  on  Count  II.    We  affirmed

            Huguenin's  conviction  in an  unpublished  opinion.   United
                                                                   ______

            States v.  Robert L.  Huguenin, No. 90-1795,  1991 U.S.  App.
            ______     ___________________

            LEXIS 32842 (1st Cir. Dec. 4, 1991) (per curiam).

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Appellant's  supervised probation  began on  August

            10, 1993.  On September  7, 1993, his probation officer filed

            a  petition with  the  district  court  charging him  with  a

            failure to "file income tax returns due for all years."    At

            a   revocation  hearing   held  before  a   magistrate  judge

            ("magistrate"), Huguenin  admitted that he receives a pension

            from  the United  States Navy  and did  not dispute  that the

            amount of this pension is approximately $10,000 per year.  He

            also conceded  that he  had not filed  income tax  returns as

            ordered by the district court  but raised as a defense, inter
                                                                    _____

            alia, that  the income  tax laws  do not  apply to  him.   On
            ____

            November  30,  1993,  the  magistrate  issued  a  report  and

            recommendation  finding   that  Huguenin  had   violated  his

            probation  by failing  to  file written  tax returns  for the

            years 1984, 1985 and 1986.  

                      Following  a  hearing on  objections  filed  to the

            magistrate's   report,  the   district   court  adopted   the

            magistrate's  findings and  further  found that  Huguenin had

            violated his probation by failing to file tax returns for the

            years  1987 through  1992.    The  district  court  sentenced

            Huguenin on Count  II of the indictment  to a period  of five

            years' imprisonment, but suspended all  but six months of the

            sentence,  with the balance  of four and  a half years  to be

            spent  on  probation  "upon  the  same conditions  previously

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imposed on  Count  Two."   In  addition, the  district  court

            imposed a suspended fine of $4,000.  This appeal followed. 

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DISCUSSION

                      Huguenin alleges  violations  of his  right to  due

            process,  under the  Fifth  Amendment, and  his  right to  be

            informed of the nature and cause of accusations  against him,

            under  the Sixth Amendment.   In particular, he contends that

            he was  never informed  what type  of tax he  was being  held

            liable for, how  much tax he owed,  or which tax form  he was

            supposed to file.   Huguenin also argues that  the prosecutor

            failed to  prove that  there was  in fact  any  tax "due  and

            owing."  Finally, Huguenin contends that the government never

            proved the law  which required him to file  a tax return, and

            that he was denied the right to question a witness concerning

            this law.  

                      We  note, as an  initial matter, that  the district

            court  acted appropriately  in imposing,  as  a condition  of

            probation,  that  Huguenin  file  delinquent  and future  tax

            returns,  as well  as pay  any tax  due.   See,  e.g., United
                                                       ___   ____  ______

            States   v.  Schiff,  876  F.2d  272,  275  (2d  Cir.  1989).
            ______       ______

            Moreover, this condition  of probation mandates no  more than

            the law requires.  Id.  If appellant earns sufficient income,
                               ___

            he is required to file an income tax return and pay the taxes

            for which he is responsible.   Id.; see also 26 U.S.C.     1,
                                           ___  ________

            6011, 6012, 6151; Treas. Reg.   1.6012-1.

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Huguenin's  complaint that  he  was never  informed

            what  type of tax he was being  held liable for is frivolous.

            A  probationer does  have  a  right,  under the  Due  Process

            Clause,  to  fair  warning  of conduct  that  may  result  in

            revocation.  See, e.g., United States v. Gallo, 20 F.3d 7, 11
                         ___  ____  _____________    _____

            (1st  Cir. 1994).  However,  Huguenin cannot complain that he

            failed  to  receive  fair warning  where  the  district court

            imposed   as  a  formal  probation  condition  that  he  file

            delinquent and future  "income tax returns,"  as well as  pay

            tax due.   See  United States v.  Simmons, 812 F.2d  561, 565
                       ___  _____________     _______

            (9th Cir.  1987) ("Generally, formal  conditions of probation

            provide  notice of  proscribed activities.").   Moreover, the

            Internal Revenue Code and  the regulations promulgated  under

            it provided Huguenin with ample notice of his tax liability. 

Appellant's  complaint that  he was  never informed

            what  form he  was  required to  file  is equally  meritless.

            Conditions of probation  do not have to spell  out every last

            detail.    See  Gallo,  20  F.3d  at  12.    The  regulations
                       ___  _____

            promulgated under the Internal Revenue Code provided Huguenin

            with  notice that  either Form  1040  or Form  1040A was  the

            appropriate form to use in making an  income tax return.  See
                                                                      ___

            Treas. Reg.    1.6012-1(a)(6).1   We need not linger  long on

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            1.  Huguenin also  suggests that  after he  was charged  with
            violating a condition of probation  by failing to file income
            tax returns, the prosecutor was required to  provide him with

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appellant's  contention that he  was never informed  how much

            tax  he owed and that the government  failed to prove any tax

            "due and owing."   The basis of his  probation revocation was

            not  his failure to pay  tax due, but  rather, the failure to

            file his tax returns.  

                      Finally, we reject appellant's argument that he was

            denied due process because (a) the prosecutor failed to prove

            the law  which required him  to file income tax  returns; and

            (b) he was  deprived of the opportunity to  examine a witness

            concerning  the relevant  law.   Appellant  was charged  with

            violating  a probation condition  set by the  district court.

            To  the extent  that federal  statutes  and regulations  were

            relevant in determining whether  a violation occurred,  these

            were subject to  judicial notice by the district  court.  See
                                                                      ___

            10 James W. Moore & Helen I. Bendix, Moore's Federal Practice
                                                 ________________________

              201.02[1] (2d ed. 1994).   Moreover, the record makes clear

            that  appellant was not  prevented from  presenting favorable

            witnesses.   See United  States v. Morin,  889 F.2d  328, 332
                         ___ ______________    _____

            (1st  Cir. 1989)  (probationer entitled to  present favorable

            witnesses  at revocation hearing).   Indeed, he  testified on

            his  own  behalf  and  did  not seek  to  present  any  other

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            citations to  the Treasury regulations  which (independently)
            mandate  that  he file  these returns  and which  specify the
            appropriate form to file.   We have unearthed no authority to
            support  this requirement, and  appellant cites to  none.  We
            observe  that appellant had the benefit of appointed stand-by
            counsel, who was  in a position to provide him with this sort
            of legal assistance.  

                                         -7-

witnesses.     Where,  as  here,  the  government  relied  on

            appellant's concessions  and did  not put  on any  witnesses,

            appellant  cannot  complain  that  he  was  deprived  of  the

            opportunity for cross-examination.

                      Affirmed.
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