U.S. v. Collins

Decision Date27 November 1990
Docket NumberNo. 90-6077,90-6077
Citation920 F.2d 619
Parties-1037, 91-2 USTC P 50,554 UNITED STATES of America, Plaintiff-Appellee v. Roy W. COLLINS, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Robert G. McCampbell, Asst. U.S. Atty., (Timothy D. Leonard, U.S. Atty., with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Susan M. Otto, Asst. Federal Public Defender, Oklahoma City, Okl., for defendant-appellant.

Before SEYMOUR, BALDOCK and BRORBY, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant-appellant Roy Collins was convicted by a jury on three counts of federal income tax evasion, 26 U.S.C. Sec. 7201. He now appeals arguing that the district court improperly instructed the jury on the issue of good faith and violated his sixth amendment right to counsel by revoking the pro hac vice admission of his privately retained attorney. Our jurisdiction over this direct criminal appeal arises under 28 U.S.C. Sec. 1291. We affirm.

I. Good Faith.

Viewing the evidence in the light most favorable to the government, United States v. Spedalieri, 910 F.2d 707, 708 (10th Cir.1990), we summarize the facts as follows. Defendant, a fifty-seven-year-old aircraft structural designer, filed federal income tax returns and paid taxes from the time he began working until 1979. At that time, defendant claims to have become convinced that he was not obligated to pay taxes. Defendant purportedly believed that labor constitutes property which, when exchanged for wages, produces no net gain subject to taxation as "income." At other times, defendant claimed that he was not a "person" under the Internal Revenue Code and argued he was not subject to taxation because he had not entered into a regulatory relationship with the United States. Defendant acknowledged that he developed these views after attending several meetings with like-minded individuals, but denied being a tax protester. Defendant testified that he "disagreed with the philosophy" of the IRS concerning what constituted income, rec. vol. V at 186, and felt that he was not obligated to pay taxes until he received a satisfactory explanation from the IRS concerning his legal beliefs, id. at 233.

While employed at CDI Corp. between 1982 and 1984, defendant stated on his W-4 forms that he had not owed any taxes in the previous year and did not expect to owe any taxes in the present year. Consequently, although he was not eligible to claim exempt status, none of defendant's wages were withheld between 1982 and 1984, with one exception. 1 Defendant earned taxable income of $48,271 in 1982, $35,359 in 1983 and $49,080 in 1984; his estimated tax liability for those years was $17,862, $10,170 and $15,784 respectively. Between 1982 and 1984, defendant failed to file a tax return and paid no federal income taxes.

At the close of trial, the district court instructed the jury on defendant's good faith defense:

Instruction No. 26

GOOD FAITH OF THE ACCUSED

[B]oth the offenses charged in the indictment and the lesser included offenses require proof of the accused's willfulness as an essential element.... If the accused's actions or failure to act was the result of a good faith misunderstanding as the requirements of the law, then the actions or failure to act were not "willful."

....

An accused's disagreement with the law or his own belief the law should be held to be unconstitutional--no matter how earnestly he holds those beliefs--is not a good faith misunderstanding of the law. On the other hand, the accused may hold beliefs concerning his duties under the law which, although not reasonable, are held in good faith. Such a good faith belief is a defense to the charges in the indictment as well as lesser included offenses.

....

[I]f the defendant held a good faith belief that the law did not apply to him, he would not have acted willfully as he is charged. This is so whether or not the defendant's belief was reasonable. However, if you regard his belief as being highly unreasonable, you may consider this along with all other evidence on the question of whether his belief was indeed genuine or merely feigned or made-up....

Rec. vol. I, doc. 99 (emphasis in original). Defendant argues that this instruction confused the jury by improperly focusing its inquiry on the objective reasonableness of defendant's belief instead of whether such belief was genuine. We review jury instructions as a whole to determine whether the instruction in question accurately stated the governing law and provided the jury with an ample understanding of the applicable issues and legal standards. United States v. Bedonie, 913 F.2d 782, 791 (10th Cir.1990).

A good faith misunderstanding of the duty to pay income taxes can negate the willfulness element of tax evasion charge, "and '[t]he misunderstanding need not have a reasonable basis to provide a defense.' " United States v. Harting, 879 F.2d 765, 767 (10th Cir.1989) (quoting United States v. Hairston, 819 F.2d 971, 972 (10th Cir.1987)); but see United States v. Cheek, 882 F.2d 1263, 1270 (7th Cir.1989) (rejecting subjective reasonableness standard followed by other circuits in favor of objective reasonableness standard), vacated --- U.S. ----, 111 S.Ct. 604, --- L.Ed.2d ---- (1991). However, "although not itself the standard by which to evaluate good faith, the reasonableness of a good-faith defense is a factor which the jury may properly consider in determining whether a defendant's asserted beliefs are genuinely held." United States v. Mann, 884 F.2d 532, 537 n. 3 (10th Cir.1989). In the instant case, the district court explained to the jury that, although defendant's subjective belief that he was not obligated to pay taxes did not have to be reasonable to effectuate a valid good faith defense, the objective reasonableness of defendant's belief could be considered, along with other evidence, in determining whether his subjective belief was genuine. We find the court's instruction unambiguous and fully consistent with our holdings in Mann and Harting.

II. Right to Counsel.

Attorney Jeffrey A. Dickstein made his first appearance on defendant's behalf on April 17, 1989 after being admitted pro hac vice by the district court. 2 Defendant apparently retained Dickstein because counsel agreed with defendant's views on the invalidity of federal income tax laws. Rec. vol. IV at 15. Dickstein's obstreperous attitude was first illustrated by his entry of appearance which informed the court that his association with local counsel in compliance with local rules was "under duress." Rec. vol. I, doc. 17. On May 1, 1989, Dickstein filed ten pretrial motions. The first filing was an 84-page motion to dismiss, lavishly larded with citations to the Declaration of Independence, colonial history and a plethora of nineteenth century Supreme Court cases. Rec. vol. IX, doc. 21. Dickstein argued that federal criminal jurisdiction only encompasses acts committed within the District of Columbia, on the high seas or on federal property; consequently the district court lacked jurisdiction over defendant. 3 Id. at 15, 80. Dickstein also argued that federal income taxes must be direct and apportioned to survive constitutional scrutiny. Id. at 37, 81. While acknowledging the "alleged ratification" of the sixteenth amendment, id. at 48, he insisted that the amendment only authorizes an income tax within the District of Columbia and the territorial possessions of the United States. Id. at 48-49. Finally, Dickstein questioned whether defendant was an "individual" subject to taxation under the Internal Revenue Code. 4

Dickstein's second motion to dismiss argued that because the 1040 forms that defendant failed to file were not affixed with expiration dates, the indictment should be dismissed pursuant to the Paperwork Reduction Act, 44 U.S.C. Secs. 3501-20. Rec. vol. IX, doc. 25. Dickstein's third motion sought to strike as surplusage language in the indictment alleging that defendant failed to file income tax returns or pay income tax to the IRS. Rec. vol. IX, doc. 24. His fourth motion sought to suppress all evidence obtained by a third-party summons issued by an IRS special agent. Rec. vol. IX, doc. 27.

Dickstein also filed on defendant's behalf a motion in limine seeking suppression of several items of evidence, including admissions defendant made to an IRS Special Agent. Rec. vol. IX, doc 30. In addition, he filed a motion for bill of particulars, rec. vol. IX, doc. 22, a motion for oral voir dire, rec. vol. IX, doc. 28, a motion to dismiss the indictment for grand jury abuse, rec. vol. IX, doc. 23, a motion for disclosure for exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), rec. vol. IX, doc 29, and a motion for Jencks Act material, rec. vol. IX, doc. 26.

The district court denied each of defendant's pretrial motions. Rec. vol. X, doc. 46. Thereafter, stating that "the defense motions evince a tactic of obfuscation and waste," the court issued an order to show cause why Dickstein's pro hac vice admission should not be revoked. Rec. vol. I, doc. 40 at 1. Dickstein responded with a written motion reiterating the legal positions advanced in his previous motions and arguing that the district judge should recuse himself. 5 After considering Dickstein's motion and the government's response, 6 the district court revoked Dickstein's admission pro hac vice and removed him from the case. Rec. vol. I, doc. 52. The court explained:

The pleadings filed by Attorney Dickstein in this case signal the Court that permitting his future participation will obscure the issues, engulf the case with frivolity, and deflect the proceedings from their object--the orderly determination whether defendant has broken the law or not. Just as a court need not suffer the testimony of a purported expert witness that the moon is made of green cheese, it need not suffer the serving-up of legal swill by Attorney...

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