Unpublished Disposition, 923 F.2d 864 (9th Cir. 1991)

MEMORANDUM^* 

Alfred Stinson appeals his conviction and sentence for three counts of violating 26 U.S.C. § 7201 (1988), attempted tax evasion for the tax years 1983, 1984, and 1985. His primary claims are that the trial court erred (1) in excluding the majority of his evidence, (2) in instructing the jury, (3) in not holding an evidentiary hearing prior to sentencing, and (4) in conditioning his probation on the payment of restitution.

The trial court erred in excluding the testimony of Stinson's witnesses. We are therefore compelled to reverse Stinson's conviction. We do not reach Stinson's other claims of error.

The trial court based its exclusion of the testimony of Stinson's court appointed accountant and business partner on its belief that any evidence of tax deductions not disclosed on tax returns filed before Stinson's indictment was irrelevant. We understand but reject the trial court's conclusion. Stinson intended to use these witnesses to show tax deductions which would have resulted in his owing no taxes for the years in question. Even if he ultimately failed, he had a right to try.

We recognize that the relevancy of evidence is within the discretion of the trial court, but that discretion was abused here. See United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir. 1989). In section 7201 prosecutions, a defendant is entitled to rebut the government's showing that tax was owed by proving allowable deductions not shown on the filed tax return, if any. See United States v. Marabelles, 724 F.2d 1374, 1378, 1379 n. 3 (9th Cir. 1984) (citing Elwert v. United States, 231 F.2d 928, 933 (9th Cir. 1956)). Stinson should have been permitted to use the testimony of his accountant and business partner in an effort to show (1) that he owed no taxes in the years in question and (2) that any attempt by him to evade taxes was not willful.

We also find error in the district court's exclusion of Stinson's exhibit 66, tax returns prepared for Stinson for the years 1981-85, on the ground of relevance. The district court judge excluded this exhibit on the ground that the returns had not, in fact, been filed with the IRS and therefore had no bearing on the case. As stated, supra, however, Stinson was entitled to rebut the government's evidence that tax was owed. Because the prepared tax returns were relevant to this issue, the district court should not have excluded them.

We find no error in the exclusion of Stinson's exhibit 8, a series of receipts documenting money transfers, as a sanction for Stinson's discovery violation. Stinson violated Local Criminal Rule 48(G) which provides that " [n]o later than seven days before trial, the parties shall exchange a list of exhibits which they intend to introduce during the presentation of their respective cases-in-chief." Local Rules W.D. Wash. Cr.R. 48(G). Contrary to Stinson's contention, the government properly refused to answer his questions regarding the details of the government's theory of the case. See United States v. Isaacs, 347 F. Supp. 743, 762 (N.D. Ill. 1972). Stinson also argues that the government violated Rule 48(G) because it did not send revised exhibits 7, 8, and 9 until three days before trial and exhibits 16, 21, and 22 through 26, and an updated witness list until four days before trial. Even assuming, arguendo, that this could excuse Stinson from complying with discovery rules, he failed to make a proper objection at trial.

A trial court has discretion to fashion an adequate remedy for a discovery violation. See United States v. Gee, 695 F.2d 1165, 1168-69 (9th Cir. 1983). Pro se status does not excuse a criminal defendant from complying with the procedural rules of the court. United States v. Flewitt, 874 F.2d 669, 675 (9th Cir. 1989); see also United States v. Barron, 575 F.2d 752 (9th Cir. 1978). As Stinson did not properly provide the government with a list of exhibits before trial, it was within the court's discretion to exclude the receipts on that basis.

The trial court's exclusion of Stinson's exhibit 17--a letter written to Stinson's lawyer by the Service declining to meet with Stinson--on the ground that it was irrelevant was not error. The Service's refusal to meet with a delinquent taxpayer on one occasion is not a defense to the crimes charged.

REVERSED.