U.S. v. Pilcher, 81-8004

• Decision Date: 05 April 1982
• Docket Number: No. 81-8004,81-8004
• Citation: 672 F.2d 875
• Parties: 82-1 USTC P 9299, 10 Fed. R. Evid. Serv. 303 UNITED STATES of America, Plaintiff-Appellee, v. Charles W. PILCHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 875

672 F.2d 875

82-1 USTC P 9299, 10 Fed. R. Evid. Serv. 303

UNITED STATES of America, Plaintiff-Appellee, v. Charles W. PILCHER, Defendant-Appellant.

No. 81-8004.

United States Court of Appeals,

Eleventh Circuit.

April 5, 1982.

Harold A. Miller, III, Decatur, Ga., for defendant-appellant.

William P. Gaffney, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before RONEY and KRAVITCH, Circuit Judges, and PITTMAN ^*, District Judge.

RONEY, Circuit Judge:

After testifying in his own defense during his trial for willful failure to file income tax returns, defendant Charles W. Pilcher refused to answer certain questions on cross-examination, claiming Fifth Amendment protection. He was held in civil contempt and ordered imprisoned with a $500 daily fine until he agreed to answer the questions, or the jury brought in a verdict. The trial was suspended pending this appeal. Defendant has been released on a personal recognizance bond. We affirm the contempt citation and remand the case for further proceedings.

Defendant is a so-called "tax protester" and filed "Fifth Amendment based" income tax returns for 1977 and 1978, which contained no financial information. He was prosecuted for willful failure to file income tax returns for 1977 and 1978 in violation of 26 U.S.C.A. § 7203. At his jury trial, the defendant testified in his own behalf after the Government rested its case. He stated that in late 1975 he began attending meetings and seminars on taxes and tax forms featuring speakers such as Marvin Cooley. Based upon the information received at these meetings, his understanding of several cases, and the legal advice of a disbarred attorney, defendant stated he filed "no information" returns because he feared incrimination for nontax crimes.

On cross-examination, the Government pursued two lines of inquiry to which the defendant refused to respond on the grounds that the questions exceeded the scope of direct testimony and that he was protected from answering under the Fifth Amendment privilege against self-incrimination. After establishing that the defendant had filed presumably proper returns reporting income for 1973, 1974 and 1975, the Government sought to question him about his 1976 W-4 form in which he claimed 19 allowances. The W-4 form governs the amount of income tax withheld by the employer, and defendant's claim of 19 allowances resulted in no income tax withheld. The Government further sought to question defendant about his 1977 and 1978 returns on a line by line basis to elicit the precise nature of his fear that showing dollar amounts of income on the returns would incriminate him.

The law is reasonably clear. Every income earner is required to file an income tax return. 26 U.S.C.A. § 7203. A taxpayer cannot assert a Fifth Amendment privilege against compulsory self-incrimination to justify the failure to file any return at all. United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927). Protest documents duplicating in part U. S. individual income tax return form 1040's but containing no financial data are not tax "returns" for the purposes of section 7203. United States v. Booher, 641 F.2d 218, 219 (5th Cir. 1981); United States v. Smith, 618 F.2d 280, 281 (5th Cir. 1980); United States v. Johnson, 577 F.2d 1304, 1311 (5th Cir. 1978). ¹ Although the source of income might be privileged, the amount must be reported. United States v. Wade, 585 F.2d 573, 574 (5th Cir. 1978), cert. denied, 440 U.S. 928, 99 S.Ct. 1264, 59 L.Ed.2d 484 (1979). The failure to provide amounts on income tax returns cannot be justified out of a political disagreement with the tax laws or in protest against the policies of the Government. United States v. Smith, 618 F.2d 280, 282 (5th Cir. 1980).

On the other hand, a good faith claim of privilege against self-incrimination, although erroneous, is a defense to the element of willfulness which is necessary for a conviction for willful failure to file under 26 U.S.C.A. § 7203. Garner v. United States, 424 U.S. 648, 663 n.18, 96 S.Ct. 1178, 1187 n.18, 47 L.Ed.2d 370 (1976); United States v. Johnson, 577 F.2d at 1311.

Having failed to provide the amounts of income on his returns, defendant's chance to escape conviction depended upon his demonstrating he had a good faith belief that he need not file returns with the amounts shown, or, in terms of prosecution, his acquittal depended upon the Government's failing to prove willfulness.

When defendant took the stand, his attorney's opening question on direct examination was: "Can you explain to the jury why you have taken the Fifth Amendment as to the amount of income on your tax returns?" Defendant's response, outlining his reasons for asserting the privilege on his tax returns, went to the issues of good faith and willfulness.

Although defendant could have relied on the Government's inability to prove willfulness rather than testify on the issue, once he took the stand voluntarily to testify in his own behalf, he waived the Fifth Amendment privilege to refuse to answer questions properly within the scope of cross-examination under Rule 611(b) of the Federal Rules of Evidence. Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). Under this rule a witness may be cross-examined as to matters "reasonably related" to the subject matter of the direct examination and matters affecting credibility. McGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711 (1971); United States v. Hernandez 646 F.2d 970, 978-79 (5th Cir. 1981). Cross-examination cannot be restricted by merely asserting that the response may be incriminating with respect to an uncharged offense. Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943); United States v. Hernandez, 646 F.2d at 979; United States v. Beechum, 582 F.2d 898, 908 (5th Cir. 1978).

With these principles in mind, we affirm the district court's order requiring defendant to answer and holding him in civil contempt upon refusal. Defendant's testimony related to whether he...