United States of America, Plaintiff-appellee, v. John M. O'leary, Defendant-appellant, 52 F.3d 339 (10th Cir. 1995)

ORDER AND JUDGMENT¹ 

John M. O'Leary was convicted by a jury of four counts of wilfully failing to file a federal income tax return from 1986 through 1989, in violation of 26 U.S.C. 7203.²  Mr. O'Leary raises two issues on appeal. First, he argues his Sixth Amendment rights were violated because he did not knowingly and voluntarily waive his right to counsel. Mr. O'Leary asserts no valid waiver occurred because he continually objected to the district court's requiring him to proceed pro se instead of under the "hybrid" form of legal representation he requested. Second, Mr. O'Leary contends there was insufficient evidence proving he wilfully failed to file his income tax returns. Mr. O'Leary argues the government did not carry its burden of proof on the intent element of the crime. In response, the government first argues the total circumstances of the case demonstrate Mr. O'Leary knowingly, intelligently and voluntarily waived representation by counsel. Second, the government contends extensive circumstantial evidence supports the jury's finding that Mr. O'Leary acted wilfully in not filing his federal income tax returns. We affirm.

The parties are well acquainted with the facts of this case, so we do not need to restate them in great detail except as they assist our analysis. Mr. O'Leary is a tax protester who believes withholding for income taxes is not required by law. He reached this conclusion after his own extensive research and study of the Internal Revenue Code and the Code of Federal Regulations guided by the book How Anyone Can Stop Paying Income Taxes. Mr. O'Leary acted on his erroneous conclusions by altering his W-4 Employee Withholding Certificates and claiming exempt status. In 1989, the IRS investigated Mr. O'Leary's status and concluded he was not exempt. The IRS ordered the Bureau of Indian Affairs, Mr. O'Leary's employer, to begin withholding taxes from his salary. This misdemeanor criminal prosecution commenced after the government concluded Mr. O'Leary should have paid taxes from 1986 through 1989 based on the amount of income he earned.

Throughout the criminal proceedings, Mr. O'Leary consistently requested a "hybrid" form of legal representation. At his arraignment before a federal Magistrate Judge, Mr. O'Leary stated he did not want to be represented by appointed counsel, but also did not want to represent himself pro se. The Magistrate Judge appointed the Federal Public Defenders Office to represent Mr. O'Leary leaving the resolution of the counsel issue for the district court. Mr. O'Leary, through appointed counsel, filed a motion to proceed pro se. The court held an extensive hearing where it questioned Mr. O'Leary about his competence to waive his right to counsel, his education, his experience with legal proceedings and the nature of the legal representation he desired. Mr. O'Leary requested a hybrid representation where he would retain control over the tactics, strategy, and nature of his defense. His appointed attorney would act in court under Mr. O'Leary's specific direction.

The district court concluded, both at the hearing and in its subsequent order, that Mr. O'Leary wanted to control the tactics and strategy of his defense without affording counsel any independent discretion. Therefore, he should proceed pro se with an appointed attorney acting as standby counsel. Mr. O'Leary objected, both at the hearing and throughout the case, to the court's refusal to allow him to proceed under his hybrid representation scheme.

We review de novo whether a waiver of counsel is knowing, intelligent, and voluntary. United States v. Burson, 952 F.2d 1196, 1199 (10th Cir. 1991), cert. denied, 112 S. Ct. 1702 (1992). A criminal defendant has both a constitutional and a statutory right to act as his own counsel in federal court. Faretta v. California, 422 U.S. 806 (1975) (right located in Sixth Amendment); 28 U.S.C. 1654 and Fed. R. Crim. P. 44(a). The district court must ensure the defendant's waiver of counsel is "clear and unequivocally" asserted. United States v. Bennett, 539 F.2d 45, 50 (10th Cir.), cert. denied, 429 U.S. 925 (1976). The defendant must make this decision with his "eyes open" to its consequences. Faretta, 422 U.S. at 835. To make this determination, " [i]deally, the trial judge should conduct a thorough and comprehensive formal inquiry of the defendant on the record to demonstrate that the defendant is aware of the nature of the charges, the range of allowable punishments and possible defenses, and is fully informed of the risks of proceeding pro se." United States v. Willie, 941 F.2d 1384, 1388 (10th Cir. 1991), cert. denied, 502 U.S. 1106 (1992). Our review of a particular waiver decision turns on "the total circumstances of the individual case including [the] background, experience and the conduct of the accused person." United States v. Padilla, 819 F.2d 952, 958 (10th Cir. 1987) (quoting United States v. Weninger, 624 F.2d 163, 164 (10th Cir.), cert. denied, 449 U.S. 1012 (1980)).

Mr. O'Leary argues his continued objection to proceeding pro se demonstrates his waiver was involuntary. He contends the court coerced him into representing himself. We disagree. At the hearing, the district court listened to and evaluated Mr. O'Leary's request for hybrid representation. The court concluded, correctly in our view, that Mr. O'Leary sought to exert substantial, if not total control over trial tactics and strategy. The only way to facilitate Mr. O'Leary's request for this kind of control over his defense, the court recognized, was for him to proceed pro se. Once the court informed Mr. O'Leary his hybrid representation model was unacceptable, his persistence in wanting to control the tactics and strategy of his defense necessitated the court's ultimate conclusion. Given Mr. O'Leary's insistence, we believe the court correctly determined he should proceed pro se with standby counsel.

Mr. O'Leary's actions involve the kind of "cat and mouse" game we have previously denounced. Padilla, 819 F.2d at 959; United States v. Gipson, 693 F.2d 109, 112 (10th Cir. 1982), cert. denied, 459 U.S. 1216 (1983). The district court was faced with an equivocal waiver because Mr. O'Leary objected to proceeding in any fashion except under his hybrid format.

It follows that if a defendant in a criminal proceeding makes an equivocal demand on the question of self-representation, he has a potential ground for appellate reversal no matter how the district court rules. If the district court denies defendant's equivocal demand to represent himself, the defendant, on appeal, will argue that his constitutional right to self-representation has been denied. And if the district court grants defendant's demand for self-representation, the defendant, on appeal, will argue that his waiver of his right to counsel was not intelligent, knowing and unequivocal.

United States v. Treff, 924 F.2d 975, 979 (10th Cir.), cert. denied, 500 U.S. 958 (1991) (emphasis in original).

We have recognized certain tax protesters appear to relish placing district courts in this impossible position, presumably "to insert built-in error in these proceedings, so as to postpone a final inquiry into [their] failure to comply with the tax laws of this country." Willie, 941 F.2d at 1390-91 (quoting United States v. Romero, 640 F.2d 1014, 1016 (9th Cir. 1981)). " [T]here must be some limit to the defendant's ability to manipulate the judicial system" in this fashion. United States v. Gallop, 838 F.2d 105, 110 (4th Cir.), cert. denied, 487 U.S. 1211 (1988). Taken in their entirety, we believe the facts and circumstances of this case support the conclusion Mr. O'Leary knowingly, intelligently and voluntarily waived his right to counsel.³ 

Next, Mr. O'Leary argues the government failed to present sufficient evidence to demonstrate he wilfully failed to file his federal income tax returns. We review de novo whether sufficient evidence exists in the record to support the jury's verdict. United States v. Pike, 36 F.3d 1011, 1012 (10th Cir. 1994), cert. denied, 115 S. Ct. 1170 (1995). Our inquiry is whether a rational fact-finder, viewing the evidence as a whole, including any reasonable inferences, in the light most favorable to the prosecution, could find the essential elements of the crime beyond a reasonable doubt. Id.

The government must establish three essential elements to obtain a conviction under 26 U.S.C. 7203. These are: (1) the defendant was required to file a return; (2) he failed to do so; and (3) the defendant's failure to file a return was wilful. United States v. Harting, 879 F.2d 765, 766-67 (10th Cir. 1989). Mr. O'Leary only contests the sufficiency of the evidence on the third element--wilfulness.

In Cheek v. United States, 498 U.S. 192 (1991), the Court defined wilfulness in the context of the criminal tax statutes as the "voluntary, intentional violation of a known legal duty." Id. at 200-01 (citing United States v. Bishop, 412 U.S. 346, 360 (1973)); see also United States v. Owen, 15 F.3d 1528, 1532-33 (10th Cir. 1994); United States v. Phillips, 775 F.2d 262, 263-64 (10th Cir. 1985). The government's burden includes, "negating a defendant's claim of ignorance of the law or a claim that because of a misunderstanding of the law, he had a good-faith belief that he was not violating any of the provisions of the tax laws." Cheek, 498 U.S. at 202. A defendant's good-faith understanding need not be objectively reasonable. Id.

Mr. O'Leary argues he had a good-faith subjective belief that he did not have to file income tax returns. He asserts the government never challenged this good-faith defense at trial. The government argues it presented sufficient circumstantial evidence for the jury to conclude Mr. O'Leary wilfully failed to file his returns. Viewing the evidence in the light most favorable to the jury's verdict, as we must, we hold the circumstantial evidence presented in this case, along with the reasonable inferences drawn from that evidence, is sufficient to support the jury's verdict.

The government presented sufficient evidence to support the jury's finding Mr. O'Leary wilfully failed to file his income tax returns. Mr. O'Leary filed income tax returns from 1974 through 1976 and received refunds each of these three years. A pattern of filing and then failing to file is evidence of wilfulness. United States v. Fingado, 934 F.2d 1163, 1168 (10th Cir.), cert. denied, 502 U.S. 916 (1991). The government presented expert testimony Mr. O'Leary earned sufficient income for each of the charged years to owe federal income taxes. Mr. O'Leary's financial benefit from his failure to file is evidence of wilfulness. United States v. Bohrer, 807 F.2d 159, 161-62 (10th Cir. 1986). Mr. O'Leary concluded he no longer had to file income tax returns after his independent research directed by the book, How Anyone Can Stop Paying Income Taxes. Like involvement in a tax avoidance organization, Mr. O'Leary's misplaced reliance on this book is also evidence of his wilful intent. United States v. Turner, 799 F.2d 627, 629-30 (10th Cir. 1986).

Mr. O'Leary's alterations in his W-4 forms and his claiming exempt status provide further evidence of his intent. These actions demonstrate a pattern to avoid paying any federal income tax and are evidence that Mr. O'Leary's intent was wilful. See generally United States v. Dawes, 874 F.2d 746 (10th Cir.), cert. denied, 493 U.S. 920 (1989); United States v. Conley, 826 F.2d 551, 556-57 (7th Cir. 1987). The jury could have reasonably inferred Mr. O'Leary knew he could avoid withholding by altering his W-4 forms and claiming exempt status. This would, of course, facilitate his failure to file income tax returns, which also demonstrates his wilfulness.

In all, we believe the government's circumstantial evidence was sufficient to allow the jury to find Mr. O'Leary wilfully failed to file his income tax returns for the four years in question.

AFFIRMED.