Unpublished Disposition, 872 F.2d 431 (9th Cir. 1989)

MEMORANDUM^** 

The Kalms appeal their convictions for willfully failing to file income tax returns in 1980 and 1981. We affirm.

FACTS AND PROCEEDINGS BELOW

David and Murna Kalms were convicted of willfully failing to file income tax returns in 1980 and 1981. See 26 U.S.C. § 7203 (Supp. IV 1986). Murna Kalms is employed as a registered nurse at UCLA. During 1980 and 1981, she filed W-4E forms with the IRS to prevent any withholdings from her salary. David Kalms has held a variety of odd jobs. In 1980, the couple earned over $50,000. In 1981, they earned over $60,000. Neither filed income tax returns for these calendar years.

IRS Agent Rivera testified at trial that he interviewed the Kalms in April 1984. They admitted they did not file income tax returns in 1980 or 1981. Rivera was told by the Kalms that they did not file returns because of the government's misconduct and that they had no income tax liability because federal reserve notes were worth only five cents.

At trial Murna Kalms testified that her husband did extensive research on tax law and that as a result she believed they were not required to file tax returns. The Kalms were convicted after a jury trial. Murna Kalms was placed on probation for three years on both counts. David Kalms was sentenced to serve one year on count one and three years probation on count two.

JURISDICTION

The district court had jurisdiction under 18 U.S.C. § 3231 (1982). This court has jurisdiction under 28 U.S.C. § 1291 (1982).

MURNA KALMS' APPEAL

Murna Kalms challenges her indictment in three respects. First she argues that the W-4E forms gave the IRS sufficient information to enable the Secretary to "cure" her failure to file. See 26 U.S.C. § 6020 (1982 & Supp. IV 1986) (allowing the Secretary to prepare a return for any person who discloses the necessary information). Second, she argues that the indictment did not track the statutory language. Third, she argues that the language used in the indictment, charging that she failed to "make an income tax return" was vague.

Murna Kalms moved to dismiss the indictment only on the ground that the filing of the W-4Es satisfied the statute. We review the district court's denial of a motion to dismiss the indictment de novo. United States v. Christopher, 700 F.2d 1253, 1257 (9th Cir.), cert. denied, 461 U.S. 960 (1983).

Because Ms. Kalms raised only the first argument ("cure" by W-2E) in her motion to dismiss the indictment, she has waived any error other than plain error. See, e.g., United States v. Kaplan, 554 F.2d 958, 970 n. 7 (9th Cir.), cert. denied, 434 U.S. 956 (1977). We shall consider the first argument on the merits and other suggested deficiencies under the plain error doctrine. Id. at 970.

An indictment must plead sufficient facts to inform the defendant of the charge and allow him to plead double jeopardy. See Hamling v. United States, 418 U.S. 87, 117 (1974). Ms. Kalms' argument that the indictment is insufficient because the Secretary could have filed a return for her does not affect the sufficiency of the indictment. The indictment tracked the statutory language and contained sufficient facts to satisfy Hamling.

Ms. Kalms next argues that she could not be convicted under Sec. 7203 because the indictment did not allege each of the statutory alternatives. Section 7203 criminalizes a number of discrete acts, including failing to pay tax, to keep certain records, to supply certain information, and to make a return. The statutory language is disjunctive. The fact that the government did not charge a violation of every act in the statute does not render the indictment insufficient. See United States v. Bettencourt, 614 F.2d 214, 219 (9th Cir. 1980).

Ms. Kalms also argues that the phrase "make an income tax return" is unconstitutionally vague because it fails to provide sufficient notice of the crime charged. "An indictment which tracks the words of the statute charging the offense is sufficient so long as the words unambiguously set forth all elements necessary to constitute the offense.... The indictment should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied." United States v. Givens, 767 F.2d 574, 584 (9th Cir.), cert. denied, 474 U.S. 953 (1985) (citation omitted). The indictment satisfied this standard. "Make an income tax return" sufficiently specifies the conduct and gives the defendant notice of the crime charged.

Murna Kalms next argues that there was insufficient evidence to support her conviction because the evidence showed that her decision not to file returns was based on her husband's research. In essence, she is arguing that there was insufficient proof that she "willfully" failed to file her tax returns.

In reviewing the sufficiency of the evidence, we determine "whether a reasonable jury, after viewing the evidence in the light most favorable to the government, could have found the defendants guilty beyond a reasonable doubt of each essential element of the crime charged." United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir. 1986).

"Willfulness requires a showing of specific wrongful intent to avoid a known legal duty.... It is a state of mind of the taxpayer wherein he is fully aware of the existence of a tax obligation to the Government which he seeks to avoid." United States v. Conforte, 624 F.2d 869, 875 (9th Cir.) (citations omitted), cert. denied, 449 U.S. 1012 (1980). In this case, the evidence is undisputed that Murna Kalms filed income tax returns before 1980. Thus, she was aware of her legal duty to file. Evidence showing that a defendant at one time filed tax returns and then stopped is sufficient to show willfulness. See United States v. Callery, 774 F.2d 1456, 1458 (9th Cir. 1985). The evidence is sufficient to support the jury's verdict. The "compliant spouse" argument fails.

DAVID KALMS' APPEAL

David Kalms asked the court to allow him to proceed pro se. The Deputy Public Defender representing Kalms told the district court that he was capable of representing himself. At the same time, Kalms asked the court to appoint advisory counsel to assist him. The court refused at that time but indicated that it might reconsider. Kalms renewed his request for advisory counsel five weeks before trial but advisory counsel was never appointed.

Kalms forthrightfully argues that he had an absolute right to have advisory counsel appointed. A trial court may appoint advisory counsel for a defendant who is representing himself, which appointment we review for abuse of discretion. United States v. Williams, 791 F.2d 1383, 1389 (9th Cir.), cert. denied, 479 U.S. 869 (1986). A defendant, however, has no absolute right to "hybrid" representation, i.e., to both represent himself and have counsel appointed. See id.; accord United States v. Bergman, 813 F.2d 1027, 1030 (9th Cir.), cert. denied, 108 S. Ct. 154 (1987).

Kalms acknowledges that this is a correct statement of the law but argues that the Supreme Court's decision in McKaskle v. Wiggins, 465 U.S. 168 (1984), changed the law. McKaskle held that a pro se defendant is not deprived of his Sixth Amendment right to counsel by the participation of stand-by counsel. See id. at 187-88. This holding simply does not address the argument that Kalms makes. The Constitution does not require "hybrid representation." On the contrary, the Court stated: "Faretta [v. California, 422 U.S. 806 (1975) ] does not require a trial judge to permit 'hybrid' representation.... A defendant does not have a constitutional right to choreograph special appearances by counsel." Id. at 183. Thus, a pro se defendant is not entitled to advisory counsel. The district court acted within its discretion in denying Kalms' request.

Kalms also argues that because some defendants can hire stand-by counsel while he could not because of indigency, he was denied equal protection under the Fifth Amendment. See Buckley v. Valeo, 424 U.S. 1, 93 (1976). Kalms' argument is flawed for two reasons. First, the Court in McKaskle suggested that no defendant is entitled to hybrid representation, even a defendant who can afford to hire counsel. Second, the Constitution does not require that an indigent defendant have every advantage enjoyed by an affluent defendant. See, e.g., Pennsylvania v. Finley, 481 U.S. 551, 556 (1987) (" [T]he equal protection guarantee of the Fourteenth Amendment does not require the appointment of an attorney for an indigent defendant just because an affluent defendant may retain one."); United States v. MacCollom, 426 U.S. 317, 324 (1976) (" [N]either the Equal Protection Clause of the Fourteenth Amendment, nor the counterpart equal protection requirement embodied in the Fifth Amendment, guarantees 'absolute equality or precisely equal advantages.' " quoting San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 24 (1973)). This argument is without merit.

Kalms filed a pro se brief raising several more grounds of error.

Kalms argues that Congress may not tax income derived from labor and services. This court has rejected this argument many times. See, e.g., United States v. Buras, 633 F.2d 1356, 1361 (9th Cir. 1981).

Kalms next argues that he was not required to pay income taxes because federal reserve notes are only worth five cents and therefore his total income was exempt from income tax. This court had rejected the same argument. See, e.g., Cook v. Spillman, 806 F.2d 948, 949 (9th Cir. 1986).

Next he makes several arguments in connection with the court's instructions to the jury. First he says that the district court erred in repeatedly instructing the jury that it had to follow the law as given by the court. Second, he complains of the court's failure to give his proposed "good faith" instruction. Finally, he argues that the district court erred in instructing the jury that government misconduct was not a defense to his prosecution. This court reviews the district court's formulation of jury instructions for abuse of discretion. United States v. Hayes, 794 F.2d 1348, 1351 (9th Cir. 1986).

The district court properly instructed the jury that it was bound to follow the law. There is nothing wrong with that. See United States v. Coupez, 603 F.2d 1347, 1352 (9th Cir. 1979). With respect to Kalms "good faith" issue, the district court instructed the jury that a good faith belief of the accused was a defense. See 2 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions Sec. 35.12 (3d ed. 1977). Kalms preferred his own version of this charge, but a defendant has no right to have the jury instructed in the particular language he desires. See United States v. Buras, 633 F.2d 1356, 1360 (9th Cir. 1980). The instruction given by the court adequately covered the good faith defense.

Finally, Kalms argues that the district court erred in instructing the jury that government misconduct was not a defense. There having been no objection to the instructions, we review them for plain error. United States v. Loya, 807 F.2d 1483, 1490-91 (9th Cir. 1987). Plain error occurs when the charge will likely result in a grave miscarriage of justice or seriously affect the fairness or integrity of the judicial proceedings. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986). Government misconduct can be a defense if it is outrageous or shocking. See, e.g., United States v. Pemberton, 853 F.2d 730, 735 (9th Cir. 1988). Kalms never specified any allegations of government misconduct nor is there any government misconduct apparent from the record. There is no error, plain or otherwise.

Finally, Kalms complains of the trial court's exclusion of certain Supreme Court opinions, magazine articles, and other documents. Kalms argues that these materials showed that he lacked the requisite criminal intent to commit the offense. No doubt many of these documents chronicled either eccentric theories on the nature of income, or constitutional battles long since fought and settled, or handy guides to self-help tax relief. This court has held that a defendant in a tax case is not entitled to have these types of documents admitted into evidence. See Cooley v. United States, 501 F.2d 1249, 1253-54 (9th Cir. 1974), cert. denied, 419 U.S. 1123 (1975). The trial court did not abuse its discretion.

AFFIRMED.