U.S. v. Masat

• Decision Date: 28 February 1990
• Docket Number: No. 88-2093,88-2093
• Citation: 896 F.2d 88
• Parties: -5081, 90-1 USTC P 50,156, 29 Fed. R. Evid. Serv. 993 UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Joseph MASAT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 88

896 F.2d 88

66 A.F.T.R.2d 90-5081, 90-1 USTC P 50,156,

29 Fed. R. Evid. Serv. 993

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Joseph MASAT, Defendant-Appellant.

No. 88-2093.

United States Court of Appeals, Fifth Circuit.

Feb. 28, 1990.

Scott McLarty, Athens, Ga., for defendant-appellant.

Jeffrey J. Strand, Asst. U.S. Atty., Tyler, Tex., for plaintiff-appellee.

Appeals From the United States District Court for the Eastern District of Texas.

Before HIGGINBOTHAM, SMITH, and DUHE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Kenneth Masat appeals from his conviction for tax evasion, contending that he is entitled to a new trial due to improper questioning on voir dire, errors in jury instructions, duplicitous indictment, excluded expert testimony, improper discovery, ineffective assistance of counsel, and failure to comply with 26 U.S.C. Sec. 6103(h)(5). Because we find that there was a significant error in the jury instructions, we must reverse and remand for new trial.

I

Masat was charged by indictment with three counts of tax evasion, in violation of 26 U.S.C. Sec. 7201, for the years 1979, 1980, and 1981. The indictment charged Masat with evasion of the substantial tax due and owing, and alleged various acts committed toward that end, including failure to file tax returns, transferring assets to nominees, and filing false W-4 forms.

Before trial Masat requested information concerning IRS investigations of potential jurors pursuant to 26 U.S.C. Sec. 6103(h)(5). He did not get complete information prior to trial, and requested a continuance, which was denied. The judge did ask the panel as a whole whether anyone had been the subject of any controversy with the IRS, had any tax liens filed against them or had been audited, but did not specifically ask whether any were the subject of any other IRS investigation.

During voir dire the prosecutor asked the jury panel several questions relating to whether any of them had filed affidavits of free white status or similar documents, whether they had ever declared themselves to be free, white, United States citizens, sought to return to organic status as a free, white, family unit, or had ever been or known a member of the Aryan Nation or Aryan Brotherhood. The judge sustained an objection to the references to the Aryan organizations, but overruled objections to the other questions and denied a motion for mistrial.

During trial Masat sought to introduce the testimony of several psychologists on the issue of intent. The psychologists would have testified that Masat suffered from paranoia and post traumatic stress disorder. Masat's counsel argued at trial that paranoia caused Masat to perform some of the acts on which the government's case of evasion was based. The judge did not permit the psychologists to testify on the ground that questions of sincerity, credibility, and willfulness were not ordinarily the subject of expert testimony, but rather were within the ability of a lay juror to decide.

Masat's trial counsel argued many seemingly ridiculous theories, attempted to question fact witnesses on legal issues, and generally pursued a course of defense that seemed likely to lose the case. The judge specifically asked Masat whether this course was in accordance with his wishes, and Masat answered that it was. Masat now argues that his trial counsel was ineffective.

Masat was found guilty on all counts. Four days prior to sentencing he was given the opportunity to review the presentence report. He had it for only a few hours before putting it into the mail to his new counsel, who was out of state. His counsel was unable to be present at his sentencing hearing. Masat requested a continuance, which was denied. Masat was sentenced to five years imprisonment, to be followed by ten years supervised release on the condition that he file any required income tax returns within six months of his release. Masat appeals from his conviction and sentencing.

II

Masat raises many points of error, some with more merit than others. His contentions that the indictment was duplicitous, that the government was improperly seeking discovery in a civil case for use against him in this case, and that he received ineffective assistance of counsel at trial are all without merit.

A. INDICTMENT

Masat argues that the indictment is duplicitous because it combines in a single count the offenses of "evasion of payment" and "evasion of assessment" of taxes. The government argues that the indictment is not duplicitous, for the acts which Masat argues indicate separate crimes of evasion of assessment and evasion of payment are simply actions commonly taken by taxpayers to evade taxes.

Section 7201 of the Internal Revenue Code provides:

Attempt to evade or defeat tax.

Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony....

26 U.S.C. Sec. 7201. The indictment charging Masat first spells out the offense of evasion of tax by tracking the language of the statute: "Masat ... attempt[ed] to evade and defeat the substantial income tax due and owing...." The indictment then describes the various acts by which Masat was alleged to have committed the offense of evasion of tax, such as failing to make a return, failing to pay substantial income tax, assigning income and property to nominees and filing false W-4 forms. These are acts constituting both evasion of payment and evasion of assessment.

No objection was made to the indictment below, however, so any reversible error must be plain. ¹ Masat contends the indictment and verdict in this case were plainly duplicitous. The government replies that it charged Masat with evasion of taxes, and it is only coincidence that the acts referred to could be acts constituting evasion of payment as well as evasion of assessment.

No other court of appeals has addressed the issue of whether a single count in an indictment alleging violation of 26 U.S.C. Sec. 7201, referring to the attempt to evade or defeat tax or the payment thereof, has alleged two separate crimes, and therefore is duplicitous. Masat's argument, while unique, is not persuasive. The charge in the indictment directly tracked the wording of Sec. 7201. The "two crimes" of which Masat contends he was charged come from one statute, indeed, from one sentence. In truth, there is one crime, the evasion of taxes, and it is of no moment that both assessment and payment might have been evaded. There was no plain error requiring reversal, for the indictment was not duplicitous.

B. DISCOVERY

Masat argues that the government improperly sought to discover information from him through a civil proceeding. Masat implies that the government would have used in the criminal proceeding the information it received in the civil proceeding. The government denies obtaining discovery from Masat in the civil proceeding.

We are directed to no specific information obtained from Masat as a result of the civil proceeding; thus we would have to accept the theory that it was wrong for the government merely to request the information. Masat has not cited any authority for this unlikely argument, and we find no reason to accept it. See United States v. Ballard, 779 F.2d 287, 295 (5th Cir.), cert. denied, 475 U.S. 1109, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986).

C. EFFECTIVE ASSISTANCE OF COUNSEL

Masat argues that his trial counsel, Mr. Dickstein, was ineffective in failing to raise the issue of the duplicitous indictment, in cross examining fact witnesses about the law, and in making legal arguments. Masat concedes that the district judge sought and received Masat's assurance that Mr. Dickstein was proceeding according to Masat's wishes. Nevertheless, Masat argues that although the general right to counsel can be waived, the right to effective counsel probably cannot be waived, and that, in any event, Masat was not competent to make such a waiver. In support of his own incompetence, he states that the psychologists who examined him noted he would not cooperate with counsel who did not pursue his theories of the law, and that he viewed the trial solely as an opportunity to have his view of the law heard.

The government argues generally that the conduct of Masat's counsel did not fall below the standard set by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The government states that there was nothing duplicitous about the indictment, so counsel's conduct in not objecting was reasonable. The government also argues that trial tactics are subject to great deference on review, and that Masat's counsel simply acted according to Masat's wishes.

The assistance of counsel was not ineffective for failure to object to the indictment as duplicitous, for it was not duplicitous. Whether counsel's trial tactics were ineffective assistance presents a more difficult problem. The trial judge did mention out of the presence of the jury that Mr. Dickstein seemed to be proceeding in such a way as to secure a conviction. He noted that Dickstein had asserted that United States citizens owe taxes only on income derived from sources outside the United States, that only aliens have to pay taxes on income derived from within the United States, that the IRS embezzled Masat's tax refund, that either the IRS or the Code was a hoax, and that the Fifth Amendment protected Masat from inquiries relating to years outside of the years in question. While these tactics seem adverse to his client's interests, apparently Masat insisted that his counsel conduct this peculiar defense. Masat told the judge "[Dickstein] is pursuing exactly the issue as I would want to do it myself," and "Fortunately, I've been given my day in court in a rather repressive way because I'm a Defendant, but this is similar to the due process I've requested...."

In Strickland the...