UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-2148
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
JAMES E. STAFFORD, Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas
(January 26, 1993) Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.
POLITZ, Chief Judge:
Convicted by a jury of tax evasion, 26 U.S.C. § 7201, James E. Stafford appeals, contending that the trial court erred in
evidentiary rulings, allowing certain prosecutorial comments, and
in its instructions to the jury. He also appeals his sentence,
contending that two conditions of probation are overly broad and
harsh. Finding neither error nor abuse of discretion in the
challenges to his conviction, we affirm. Finding error in the
imposition of the particular conditions of probation we vacate that
portion only of the sentence and remand for its re-imposition.
Stafford, a tax protestor, did not file federal tax returns for the years 1985, 1986, and 1987. He claims a belief that wages
are not income and that filing a tax return is purely voluntary.
Indicted and convicted of three counts of tax evasion he was
sentenced to three years probation, requiring six months in a
community halfway house. The conditions of probation also require
that he provide his probation officer with "access to any requested
financial information" and "cooperate with the Internal Revenue
Service to resolve the tax matter subject of the indictment."
Analysis
1. Jury instructions
Stafford posits two challenges to the jury charge, contending
that the court should have instructed the jury on: (1) the lesser
included misdemeanor offense of willful failure to file a tax
return, 26 U.S.C. § 7203; and (2) that under 26 U.S.C. § 6020(b)(1)
the Secretary may file a return for a taxpayer who fails to do so.
Both challenges founder.
We first consider the lesser included offense challenge.
Albeit his counsel did not object,1 Stafford contends that the
trial court erred in failing to instruct the jury on the lesser
included misdemeanor, the failure-to-file offense. When an
omission from a jury charge is raised for the first time on appeal,
1 Stafford's original counsel, later dismissed, included the section 7203 charge in his requested jury instructions. Stafford's subsequent trial counsel did not request the lesser included charge.
2 we review only for plain error.2 "Error in a charge is plain only
when, considering the entire charge and evidence presented against
the defendant, there is a likelihood of a grave miscarriage of
justice."3
In United States v. Doyle,4 a tax evasion prosecution, we held
that it was reversible error for the district court not to give the
requested instruction on the misdemeanor offense of failure to file
a return. In this case, however, Stafford did not make such a
request. A criminal defendant is entitled to make a strategic
choice to forgo the lesser included offense instruction.5 That
choice obviously was made herein. Stafford's counsel emphasized
during closing arguments that Stafford was charged with tax evasion
and not with the failure to file.6 We conclude that the district
2 United States v. Sellers, 926 F.2d 410 (5th Cir. 1991). 3 926 F.2d at 417 (citing United States v. Welch, 810 F.2d 485, 487 (5th Cir. 1987)). 4 956 F.2d 73 (5th Cir. 1992). 5 United States v. Lopez Andino, 831 F.2d 1164 (1st Cir. 1987), cert. denied, 486 U.S. 1084 (1988). 6 Stafford's counsel made several such comments during his closing argument, including the following:
This case is not about a failure to file. The Government's attorney explained to the jury and even to our client yesterday on the witness stand that this is not a failure to file case.
The issue in our case today is evasion. It's not failure to pay. It's not failure to file. It's evasion.
This case is about evasion. As far as my client is concerned, all we're here today to decide is did he believe that he was within the law. That's our only decision. We're not here to decide whether or not he
3 court did not commit plain error by not giving that instruction.
Nor do we find any merit in Stafford's complaint that the jury
charge did not include the text of section 6020(b) which authorizes
the Secretary to file a return for a taxpayer. Although not a part
of the instruction, the statute was read to the jury. The jury was
correctly charged that although the section authorizes the
Secretary to file for a taxpayer, the statute does not require such
a filing, nor does it relieve the taxpayer of the duty to file.
In United States v. Powell,7 our colleagues in the Ninth
Circuit held that the trial court must instruct the jury on the
correct meaning of section 6020(b)(1). "The jury cannot be allowed
to decide on its own that § 6020(b) somehow makes lawful the
failure to file a return,"8 when in fact it does not. The Powell
court cautioned, however, that "an instruction on § 6020(b) must
not be framed in a way that distracts the jury from its duty to
consider a defendant's good faith defense."9 In this case the jury
was instructed on both the correct meaning of section 6020(b) and
the defendant's good faith defense. "A challenged jury instruction
should or should not have filed a return. The IRS didn't ask you for that one. [Emphasis supplied.] 7 955 F.2d 1206 (9th Cir. 1992). 8 955 F.2d at 1213. 9 Id. The jury should be able to acquit "if it finds that [the defendant] believed in good faith that § 6020(b) removed the obligation to file a tax return, and not because the jury itself has so interpreted the statute."
4 must be assessed in light of the entire jury charge."10 Read as a
whole, we find that the jury instructions given herein were
adequate and appropriate.
2. Exclusion of evidence
Stafford sought to introduce his 1980 tax return together with
copies of judicial opinions and magazine and newspaper articles
that he attached when he filed the return in 1981. He claims that
these materials were relevant to whether he willfully evaded taxes
or had a good faith belief that he did not have to pay same. The
government successfully objected to the admission of any materials
other than the tax form itself, but Stafford was permitted to
testify about these attachments.
Generally, a district court may exclude evidence of what the
law is or should be.11 Nonetheless, "forbidding the jury to
consider evidence that might negate willfulness would raise a
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-2148
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
JAMES E. STAFFORD, Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas
(January 26, 1993) Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.
POLITZ, Chief Judge:
Convicted by a jury of tax evasion, 26 U.S.C. § 7201, James E. Stafford appeals, contending that the trial court erred in
evidentiary rulings, allowing certain prosecutorial comments, and
in its instructions to the jury. He also appeals his sentence,
contending that two conditions of probation are overly broad and
harsh. Finding neither error nor abuse of discretion in the
challenges to his conviction, we affirm. Finding error in the
imposition of the particular conditions of probation we vacate that
portion only of the sentence and remand for its re-imposition.
Stafford, a tax protestor, did not file federal tax returns for the years 1985, 1986, and 1987. He claims a belief that wages
are not income and that filing a tax return is purely voluntary.
Indicted and convicted of three counts of tax evasion he was
sentenced to three years probation, requiring six months in a
community halfway house. The conditions of probation also require
that he provide his probation officer with "access to any requested
financial information" and "cooperate with the Internal Revenue
Service to resolve the tax matter subject of the indictment."
Analysis
1. Jury instructions
Stafford posits two challenges to the jury charge, contending
that the court should have instructed the jury on: (1) the lesser
included misdemeanor offense of willful failure to file a tax
return, 26 U.S.C. § 7203; and (2) that under 26 U.S.C. § 6020(b)(1)
the Secretary may file a return for a taxpayer who fails to do so.
Both challenges founder.
We first consider the lesser included offense challenge.
Albeit his counsel did not object,1 Stafford contends that the
trial court erred in failing to instruct the jury on the lesser
included misdemeanor, the failure-to-file offense. When an
omission from a jury charge is raised for the first time on appeal,
1 Stafford's original counsel, later dismissed, included the section 7203 charge in his requested jury instructions. Stafford's subsequent trial counsel did not request the lesser included charge.
2 we review only for plain error.2 "Error in a charge is plain only
when, considering the entire charge and evidence presented against
the defendant, there is a likelihood of a grave miscarriage of
justice."3
In United States v. Doyle,4 a tax evasion prosecution, we held
that it was reversible error for the district court not to give the
requested instruction on the misdemeanor offense of failure to file
a return. In this case, however, Stafford did not make such a
request. A criminal defendant is entitled to make a strategic
choice to forgo the lesser included offense instruction.5 That
choice obviously was made herein. Stafford's counsel emphasized
during closing arguments that Stafford was charged with tax evasion
and not with the failure to file.6 We conclude that the district
2 United States v. Sellers, 926 F.2d 410 (5th Cir. 1991). 3 926 F.2d at 417 (citing United States v. Welch, 810 F.2d 485, 487 (5th Cir. 1987)). 4 956 F.2d 73 (5th Cir. 1992). 5 United States v. Lopez Andino, 831 F.2d 1164 (1st Cir. 1987), cert. denied, 486 U.S. 1084 (1988). 6 Stafford's counsel made several such comments during his closing argument, including the following:
This case is not about a failure to file. The Government's attorney explained to the jury and even to our client yesterday on the witness stand that this is not a failure to file case.
The issue in our case today is evasion. It's not failure to pay. It's not failure to file. It's evasion.
This case is about evasion. As far as my client is concerned, all we're here today to decide is did he believe that he was within the law. That's our only decision. We're not here to decide whether or not he
3 court did not commit plain error by not giving that instruction.
Nor do we find any merit in Stafford's complaint that the jury
charge did not include the text of section 6020(b) which authorizes
the Secretary to file a return for a taxpayer. Although not a part
of the instruction, the statute was read to the jury. The jury was
correctly charged that although the section authorizes the
Secretary to file for a taxpayer, the statute does not require such
a filing, nor does it relieve the taxpayer of the duty to file.
In United States v. Powell,7 our colleagues in the Ninth
Circuit held that the trial court must instruct the jury on the
correct meaning of section 6020(b)(1). "The jury cannot be allowed
to decide on its own that § 6020(b) somehow makes lawful the
failure to file a return,"8 when in fact it does not. The Powell
court cautioned, however, that "an instruction on § 6020(b) must
not be framed in a way that distracts the jury from its duty to
consider a defendant's good faith defense."9 In this case the jury
was instructed on both the correct meaning of section 6020(b) and
the defendant's good faith defense. "A challenged jury instruction
should or should not have filed a return. The IRS didn't ask you for that one. [Emphasis supplied.] 7 955 F.2d 1206 (9th Cir. 1992). 8 955 F.2d at 1213. 9 Id. The jury should be able to acquit "if it finds that [the defendant] believed in good faith that § 6020(b) removed the obligation to file a tax return, and not because the jury itself has so interpreted the statute."
4 must be assessed in light of the entire jury charge."10 Read as a
whole, we find that the jury instructions given herein were
adequate and appropriate.
2. Exclusion of evidence
Stafford sought to introduce his 1980 tax return together with
copies of judicial opinions and magazine and newspaper articles
that he attached when he filed the return in 1981. He claims that
these materials were relevant to whether he willfully evaded taxes
or had a good faith belief that he did not have to pay same. The
government successfully objected to the admission of any materials
other than the tax form itself, but Stafford was permitted to
testify about these attachments.
Generally, a district court may exclude evidence of what the
law is or should be.11 Nonetheless, "forbidding the jury to
consider evidence that might negate willfulness would raise a
serious question under the Sixth Amendment's jury trial
provision."12 In Barnett we concluded that the delicate balance
required by Rule 403 of the Federal Rules of Evidence would be
satisfied by excluding the challenged documents but allowing the
defendant to testify about their contents and the effect the
10 United States v. Barnett, 945 F.2d 1296, 1298 (5th Cir. 1991), cert. denied, 112 S.Ct. 617 (1992) (citing United States v. Eargle, 921 F.2d 56, 57 (5th Cir. 1991)).
11 Powell. 12 Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991).
5 information had in the formulation of his beliefs.13 In the case
at bar, Stafford was permitted to testify extensively regarding the
information contained in the attachments upon which he claimed to
rely in the formation of his belief that he did not have to pay
taxes. Stafford was not deprived of an opportunity to present this
evidence to the jury.14
3. Prosecutorial comments
Stafford maintains that the district court erred by permitting
the prosecutor to comment on the fact that he had claimed fourth
and fifth amendment rights on the tax returns he filed for the
years 1977 to 1980.15 He complains of the following remarks during
closing argument:
Mr. Stafford testified that he had never been convicted of any crime and he doesn't believe he's committed any crimes. He also testified that he's not received any income from illegal sources. Well, if that's the case, then why did he file tax returns for 1977 through 1980 -- that's before our years -- claiming the Fourth and Fifth Amendments to the Constitution? If he hasn't committed any crime, then what's he afraid of? What's he got to hide?
Although these tax years are for years not involved in our prosecution, his claims to the Fourth and Fifth
13 945 F.2d at 1301 (citing United States v. Flitcraft, 803 F.2d 184, 185-86 (5th Cir. 1986)).
14 By permitting oral evidence, "the documents themselves become cumulative and the potential for jury confusion is minimized." Barnett, 945 F.2d at 1301.
15 On his 1977 return, for example, Stafford noted: "I offer to amend or file again if you can show me how to do so without waiving my Constitutional Rights, especially my Fourth and Fifth Amendment Rights."
6 Amendments are just one more piece of evidence you can consider of just how insincere Mr. Stafford's beliefs really are.
Stafford argues that any probative value these comments may have
had was outweighed by their highly prejudicial effect. Stafford
did not object during trial; we review under the plain error
standard.
Stafford introduced the tax forms and testified at length
about his desire to protect his fourth and fifth amendment rights.
The prosecutor's comments on these matters, therefore, were not
without proper basis or reason. The comments were not likely to
result in a grave miscarriage of justice sufficient to constitute
plain error. This assignment of error lacks merit.
4. Conditions of probation
Stafford's complaint about the conditions of his probation
poses his most serious challenge. The requirements that he give
his probation officer access to any financial information, and that
he cooperate fully with the IRS in resolving tax liability for the
years covered by the indictment, mandate too much.
A condition of probation is not necessarily invalidated merely
because it impairs a probationer's enjoyment of constitutional
rights.16 Discretionary conditions of probation, however, must be
"reasonably related" to the goals of sentencing and involve "only
such deprivations of liberty and property as are reasonably
16 United States v. Tonry, 605 F.2d 144 (5th Cir. 1979).
7 necessary" for these purposes.17 The goals of sentencing have been
characterized as "promoting respect for law, providing just
punishment for the offense, achieving general deterrence, and
protecting the public from further crimes by the defendant."18
To the extent the conditions apply to tax years other than
those which are the subject of this litigation, and for which
Stafford may be held accountable during the period of probation,
the broad obligation to provide access to any requested financial
information interferes with Stafford's fourth and fifth amendment
rights. This interference is not offset by an apparent necessity
to achieve a legitimate goal of sentencing. This condition must,
accordingly, be tempered.
In United States v. Merritt19 we held that requiring the
defendant to file a tax return and pay taxes may be a valid
condition of probation. After Merritt, however, we held that "[a]
trial court may not condition probation upon payment of a specified
sum of taxes when that sum has not been acknowledged, conclusively
established in the criminal proceeding, or finally determined in
civil proceedings."20 Conviction for tax evasion does not strip
17 18 U.S.C. § 3563(b).
18 U.S.S.G. Part 5B, Introductory Commentary; see 18 U.S.C. § 3553(a).
19 639 F.2d 254 (5th Cir. 1981).
20 United States v. Touchet, 658 F.2d 1074, 1076 (5th Cir. 1981).
8 Stafford of his right fairly to litigate his civil tax liability.
To the extent that the two conditions of probation may interfere
with Stafford's ability to fully and fairly question and litigate
his tax liability, the conditions must be revised.
The conditions of probation that Stafford provide financial
information and cooperate with the IRS should be limited to tax
years 1985, 1986, and 1987, and the years for which Stafford may be
held accountable during the period of probation, and may not exceed
that level of cooperation which could be compelled pursuant to
federal civil discovery and trial rules. Once the amount of his
tax liability is finally determined as the result of an agreement
or contested proceeding, Stafford legitimately may be required to
provide financial information regarding his ability to pay, just as
any judgment debtor could be called to task.
For the foregoing reasons we AFFIRM the conviction but VACATE
and REMAND for resentencing on the above discussed conditions of
probation. Otherwise the sentence is AFFIRMED.