U.S. v. Whiteside, 86-2425

• Decision Date: 21 January 1987
• Docket Number: No. 86-2425,86-2425
• Citation: 810 F.2d 1306
• Parties: -734, 87-1 USTC P 9199, 22 Fed. R. Evid. Serv. 582 UNITED STATES of America, Plaintiff-Appellee, v. Jackie R. WHITESIDE, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1306

810 F.2d 1306

59 A.F.T.R.2d 87-734, 87-1 USTC P 9199,

22 Fed. R. Evid. Serv. 582

UNITED STATES of America, Plaintiff-Appellee, v. Jackie R. WHITESIDE, Defendant-Appellant.

No. 86-2425

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 21, 1987.

Leonard Davis (Court-appointed), Potter, Guinn, Minton, Roberts & Davis, Michael C. Coker, Keith Dollahite, Tyler, Tex., for defendant-appellant.

Michael L. Paup, Chief, Appellate Sec., Tax Div., Roger M. Olsen, Asst. Atty. Gen., Robert E. Lindsay, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

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

Before POLITZ, WILLIAMS and JONES, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Appellant, Jackie Ray Whiteside, was charged with three counts of willful failure to file individual federal income tax returns for the years 1981 through 1983, in violation of 26 U.S.C. Sec. 7203. He is one of a number of tax protesters who undertook to make the wholly fallacious claim that wages are not taxable income. After a jury trial Whiteside was convicted on Counts II and III, the willful failure to file income tax returns for tax years 1982 and 1983. A mistrial was declared as to Count I because the jury could not reach a verdict. Whiteside was sentenced to consecutive one-year terms of imprisonment on each of Counts II and III. He filed a timely notice of appeal.

I.

Appellant contends that the district court erred in admitting government exhibits consisting of a tax protest flier, appellant's W-4 form dated April 6, 1984, and his W-4 form dated May 10, 1984. He argues, first, that the government violated Fed.R.Crim.P. 16(a)(1)(C) by not producing these exhibits prior to the day before trial. Second, he claims that the district court should have granted his motion for a continuance to obtain evidence to counter the material in the exhibits. Third, he argues that the exhibits were not properly admitted during cross-examination and rebuttal because they did not relate to issues raised on direct examination of appellant and because the W-4 forms were inadmissible as containing evidence of other crimes.

As to the first asserted ground for inadmissibility of the exhibits, Fed.R.Crim.P. 16(a)(1) provides as follows:

(C) Documents and Tangible Objects. Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of his defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant.

In order for appellant to prevail under Rule 16 he must make a prima facie showing of the materiality of the evidence; i.e., he must show that the pretrial disclosure of the disputed evidence would have enabled him significantly to alter the quantum of proof in his favor. United States v. Buckley, 586 F.2d 498, 506 (5th Cir.1978), cert. denied, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979), quoting from United States v. Ross, 511 F.2d 757, 762 (5th Cir.), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975).

Appellant has made no such showing here. He has alleged only one action that he would have taken had he known about the three exhibits earlier. That action would have been to locate and call witnesses to testify that he had not distributed the flier, which announced that a speaker would be coming to the area to discuss, inter alia, how to build a defense against willfulness upon failure to pay income taxes and how to file a Fifth Amendment tax return.

There was also other evidence that appellant had willfully refused to file and that he did not merely erroneously believe that he was under no obligation to file. Appellant filed income tax returns each year until 1977, but failed to file any for the years 1978-1984, although appellant earned sufficient money to require him to file a return. Appellant's employers provided him with wage and tax statements, forms W-2, reflecting the amount he had been paid. From 1981 through 1983 defendant filed forms W-4 in which he claimed he was exempt from withholding. Appellant continued to file forms W-4 claiming that he was exempt from withholding even after he received three letters from the Internal Revenue Service questioning his exempt status. One of the letters specifically informed him that he was no longer entitled to claim exempt status because he had not shown the IRS that he was entitled to exempt status.

In 1981, appellant filed a civil suit against one of his employers when the employer began to withhold taxes from his payroll check contrary to his directions. The employer informed Whiteside that the IRS had instructed the withholding. The employer showed appellant the letter and pamphlet sent by the IRS explaining the W-4 form with instructions to withhold taxes. The suit was dismissed, and in its order the court specifically stated that defendant's taxes were properly withheld.

Under all these circumstances, calling a witness to say that Whiteside had nothing to do with the flier mentioning how to build a defense against willfulness would not have significantly altered the quantum of proof in his favor. Thus, admission of the flier did not violate Rule 16. Buckley, 586 F.2d at 506.

Appellant's second argument is that the district court abused its discretion in not granting him a continuance to gather evidence to counter the exhibits. An abuse of discretion has not occurred unless the defendant was seriously prejudiced by the denial of the continuance. United States v. Khan, 728 F.2d 676, 681 (5th Cir.1984). Since the continuance was requested for trial preparation, appellant must show that the court acted with "unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay." United States v. Terrell, 754 F.2d 1139, 1149 (5th Cir.), (quoting Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983)), cert. denied, --- U.S. ----, 105 S.Ct. 3505, 87 L.Ed.2d 635 (1985). Such was not the case here. The district court did not act arbitrarily and unreasonably in denying a continuance to allow the appellant to locate witnesses to testify that the appellant had not passed out the pamphlet, in view of the fact that this was only a small part of the evidence that appellant had willfully failed to file a tax return.

Finally, appellant argues that the exhibits were inadmissible on cross-examination and in rebuttal because they did not pertain to matters he had raised during direct examination and because the W-4 forms were evidence of other criminal offenses. On direct, appellant testified that based on his study of the law, he believed that he was not required to file a tax return. The flier, which stated that the speaker would discuss how to build a defense against willfulness, tended to call into question the sincerity of appellant's belief that he was not required to file a return. The W-4 forms also were relevant to appellant's good faith in refusing to file tax returns. He filed these forms, which stated that he was exempt from federal income tax withholding, three weeks after he had been told by a federal court in Utah that he was required to pay federal income taxes. This court decision further undermined his assertion that the only reason he had not filed his returns was that he believed that he was not required by law to do so.

The appellant also seems to argue that the W-4 forms were inadmissible under Fed.R.Evid. 404(b). Under Fed.R.Evid. 404(b) evidence of other crimes, wrongs, or acts is admissible to prove such things as motive, intent, or knowledge. The admissibility of extrinsic evidence pursuant to Fed.R.Evid. 404(b) is determined in light of the two-part test established by this Court: (1) it must be determined that the extrinsic offense evidence is relevant to an issue other than defendant's character, and (2) the evidence must possess probative value that is not substantially outweighed by its undue prejudice. United States v. Merkt, 794 F.2d 950, 962 (5th Cir.1986). A trial court's decision to admit extrinsic evidence of other offenses will be rejected only for an abuse of discretion. Id. Appellant put his intent in dispute with testimony that he held his beliefs in good faith and believed that parts of the law did not apply to him as a wage earner. Consequently, the W-4 forms were admitted to show intent, state of mind, and willfulness. In light of the other substantial evidence of willfulness its admission did not unduly prejudice appellant. There was no abuse of discretion here. Even if the W-4s were improperly admitted, their admission was harmless in light of the other substantial evidence.

II.

Appellant next contends that the district court erred in refusing to admit in evidence income tax literature, on which appellant based his no-tax-liability belief, and also evidence of his request for an administrative hearing with the IRS. Appellant claims that his primary defense was that his failure to file income tax returns was a result of his good faith misunderstanding of the law, and he attempted to show this by proffering income tax literature which he had studied over a period of years. Appellant lists in his brief the literature he intended to introduce. The proposed evidence includes books, several tax protest articles, and a congressional report. The district court considered the material and ruled that the defendant would be permitted to testify as to the basis of his belief, but that a page-by-page discussion of the items would not be allowed. The district court also stated that the articles could be admitted with an instruction to the jury that the conclusions...