Unpublished Disposition, 884 F.2d 1396 (9th Cir. 1985)

MEMORANDUM^** 

George Kusiowski appeals from the judgment entered following his conviction for two counts of willful failure to file an income tax return in violation of 26 U.S.C. § 7203. Kusiowski seeks reversal on the following grounds:

One. The entry of a plea of not guilty on his behalf by the district court violated his right to due process.

Two. The evidence is insufficient to support the judgment.

We disagree with each contention and affirm. We discuss each issue and the facts pertinent thereto under separate headings.

* PROPRIETY OF THE ENTRY OF NOT GUILTY PLEA ON BEHALF OF THE DEFENDANT.

Kusiowski contends that the entry of a plea of not guilty on his behalf, notwithstanding his statement during the arraignment proceedings that he could not enter a plea because he had not had an opportunity to read a copy of the indictment and did not know the law or "the cause or nature of this action," violated his right to due process.

The record shows that Kusiowski was furnished a copy of the indictment prior to the date of his arraignment. The indictment was read to Kusiowski prior to the entry of a plea of not guilty on his behalf. When asked how he wished to plead, Kusiowski advised the court that he would remain silent because he had not had an opportunity to review the indictment and did not understand the law pertaining to these charges.

The district court did not err in entering a plea of not guilty on behalf of the defendant under these circumstances. Instead, the district court scrupulously complied with the procedural requirements of the Rules of Criminal Procedure pertinent to an arraignment. Rule 10 provides as follows:

Arraignment shall be conducted in open court and shall consist of reading the indictment or information to the defendant or stating to the defendant the substance of the charge and calling upon the defendant to plead thereto. The defendant shall be given a copy of the indictment or information before being called upon to plead.

F.R.C.P. Rule 10. Kusiowski received a copy of the indictment. The entire indictment was read to him by the prosecutor.

Rule 11 provides in pertinent part that " [i]f a defendant refuses to plead ... the court shall enter a plea of not guilty." F.R.C.P. Rule 11 (emphasis added). Because Kusiowski advised the district court he would remain silent, the district court was compelled to enter a plea of not guilty by the mandatory language of Rule 11.

Kusiowski has failed to persuade us that he was prejudiced in any way by the entry of a plea of not guilty. Kusiowski was arraigned on October 15, 1985. On that date, he waived his right to be represented by counsel. He was not brought to trial until December 17, 1985. Kusiowski had ample opportunity to inform himself of the nature of the charge and the requirements of section 7203 before trial.

Kusiowski contends that the district court had a duty to order the filing of a bill of particulars when it was made aware that he did not understand the nature of the charges. No motion was made by the defendant for a bill of particulars pursuant to Rule 7(f). The language of the indictment was quite clear. Kusiowski was accused of receiving gross income in excess of $20,000 in 1981 and again in 1982, and of willfully and knowingly failing to file an income tax return for either year. In light of this simple, uncomplicated accusatory pleading, the district court had no duty to order a bill of particulars on its own motion. Kusiowski argues that if he had received a bill of particulars, "he might have then plead 'guilty' and saved expense of trial and appeal." Appellant's Opening Brief, page 11. Kusiowski was informed of the precise words of the indictment. He was offered and refused the assistance of counsel to help him comprehend the charges against him and to prepare and present his defense. He was given adequate time to prepare for trial. He also received a trial by jury. Kusiowski received all the process he was due.

II

SUFFICIENCY OF THE EVIDENCE

Kusiowski argues that the evidence was insufficient to demonstrate that he was a taxpayer who had a duty to file an income tax return or that his failure to do so was a willful violation of a statutory duty. He also asserts that the Government failed to prove that he earned taxable income in excess of $3,000 in 1981 or 1982. "Evidence is sufficient if, viewed in the light most favorable to the government, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Poschwatta, 829 F.2d 1477, 1480 (9th Cir. 1987), cert. denied, 108 S. Ct. 1024 (1988), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).

To prove a violation of section 7203, the government must demonstrate that "the taxpayer was required to file a return, that the taxpayer failed to file, and that the failure to file was willful." United States v. Poschwatta, 829 F.2d at 1481.

In 1981 and 1982, 26 U.S.C. § 6012(a) required any person who received an income in excess of $3,300 to file an income tax return. Kusiowski had a gross income of $20,737.17 in 1981 and $23,605.79 in 1982. Thus, Kusiowski was required to file a tax return in 1981 and 1982. Kusiowski failed to file an income tax return for the years 1981 and 1982.

Kusiowski filed a tax return in 1978. He failed to file returns in 1979 or 1980. In United States v. Ross, 626 F.2d 77 (9th Cir. 1980), we held that a willful failure to file an income tax return can be demonstrated by evidence that the defendant filed income tax returns in previous years. Id. at 79. Our independent review of the record shows that evidence produced by the government was sufficient to convince a rational trier of fact that Kusiowski willfully failed to file a tax return reflecting 1981 and 1982 income.

III

ADDITIONAL CONTENTIONS

Kusiowski also appears to challenge the jurisdiction of the district court over a prosecution under section 7203. This argument is frivolous. A district court has exclusive jurisdiction over all offenses against the laws of the United States including Internal Revenue Code violations. 18 U.S.C. § 3231; United States v. Przybyla, 737 F.2d 828, 829 (9th Cir. 1984), cert. denied, 471 U.S. 1099 (1985).

Kusiowski contends that section 7203 does not apply to him because he is a natural individual rather than a taxpayer. We rejected this argument in United States v. Studley, 783 F.2d 934, 937 (9th Cir. 1986). Kusiowski's claim that wages are not income is also meritless. United States v. Buras, 633 F.2d 1356, 1361 (9th Cir. 1980).

AFFIRMED.