Unpublished Disposition, 848 F.2d 199 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 848 F.2d 199 (9th Cir. 1988)

No. 87-3106.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and CANBY, Circuit Judges, and JOHN P. VUKASIN, Jr.,***  District Judge.

MEMORANDUM** 

Summet was convicted of violating 26 U.S.C. § 7201 (tax evasion). Affirmed.

1. JURY INSTRUCTION.

Summet's theory of defense was that he lacked the section 7201 mens rea element of "willfulness", that in responding "None" or "Object--Self-incrimination" on his Form 1040 filings he acted in good faith. He argues that the court erred in instructing the jury with this charge:

The defendant's conduct is not willful if he acted through negligence, inadvertence, justifiable excuse, or mistake, or due to his good faith misunderstanding of the requirements of the law. You may consider the reasonableness of the defendant's beliefs as one factor in determining whether or not they were held in good faith.

He contends that the second sentence, adverting to the objective reasonableness of his beliefs, deprived him of his theory of defense. He urges reversal of his conviction.1  See United States v. Mann, 811 F.2d 495, 496 (9th Cir. 1987).

The challenged instruction did not deprive Summet of his theory of defense. The second sentence provided only that the jury "may" consider reasonableness as "one factor" in determining the good faith of Summet's beliefs. It did not constitute reversible error under the facts of this case.

Summet's other arguments concerning jury instructions we reject without discussion. The "no financial data is not a return" instruction was a proper statement of the law. The "otherwise required to file" instruction did not deny Summet his theory of defense. The "definition of gross income" instruction was harmless.

2. PRE-TRIAL EVIDENTIARY HEARING.

Summet argues that the IRS violated his Fifth Amendment rights, and its own administrative procedures, by not granting him an evidentiary hearing on his assertion of Fifth Amendment privilege. Neither claim has merit. He had no constitutional right to such a hearing. See Garner v. United States, 424 U.S. 648, 664-65 (1976). And the IRS did not violate its administrative procedures in this case: Summet was not subjected to the type of "examination" entitling him to representation by an attorney. In any event, there is no such entitlement when criminal prosecution is under consideration. See 26 C.F.R. Sec. 601.105(b) (1) and (g). His reliance on United States v. Mendoza-Lopez, 107 S. Ct. 2148, 2154-55 (1987) is wholly misguided. All elements of Summet's crime were proved beyond reasonable doubt in judicial proceedings.

3. CROSS-EXAMINATION.

Summet sought through cross-examination to explore individual witnesses' understanding of the Fourth and Fifth Amendments; to direct the jury's attention to legally insignificant dummy returns on IRS computers; to inform the jury that "all of these witnesses, many from out of state, just did not voluntarily agree to come to testify against the defendant [but were instead subpoenaed]"; etc. Much of that cross-examination would have been irrelevant.

Even assuming that some cross-examination was improperly denied, we find that Summet states no basis for reversal. The documents introduced at trial (including copies of Summet's signed W4 and 1040 Forms)2  provided direct and compelling independent evidence of the facts Summet would controvert. The court properly presented all questions of law.

Summet's challenge to the trial court's control of cross-examination alleges a non-constitutional error that we measure against the "more-probable-than-not that the error materially affected the jury standard." United States v. Feldman, 788 F.2d 544, 555 (9th Cir.) (citation omitted), cert. denied, 107 S. Ct. 955 (1986). We conclude that if error was committed, that error certainly was harmless.

4. EXPERT WITNESS.

A district court "has great latitude in deciding whether to allow expert witnesses to testify and we uphold the court's action unless it is manifestly erroneous." Daily Herald Co. v. Monroe, 838 F.2d 380, 388 (9th Cir. 1988) (citation omitted). The proferred testimony of Bentson was properly excluded under Fed.R.Evid. 403. The existence of dummy returns was irrelevant; the crucial point is that Summet had not filed his own return containing tax information. "Tax forms that do not contain information upon which tax liability may be computed are not returns within the meaning of the Internal Revenue Code." Edwards v. Commissioner, 680 F.2d 1268, 1269-70 (9th Cir. 1982) (citations omitted).

5. LEGAL MATERIALS.

Summet sought to submit to the jury as substantive evidence portions of the Constitution and Supreme Court opinions. Those materials were properly excluded. See United States v. Malquist, 791 F.2d 1399, 1402 (9th Cir.), cert. denied, 107 S. Ct. 445 (1986); United States v. Bergman, 813 F.2d 1027, 1030 (9th Cir.), cert. denied, 108 S. Ct. 154 (1987).

Intermixed with those legal materials were newspaper and magazine articles and other tax protester texts. The decision to admit them lay within the court's discretion. We find no abuse in the decision to exclude them, particularly in light of the fact that Summet was allowed to testify as to his subjective belief in and reliance on them. See Malquist, 791 F.2d at 1402.

6. JUDICIAL BIAS.

Summet fails to demonstrate that any alleged bias or prejudice was extrajudicial. See Thomassen v. United States, 835 F.2d 727, 732 (9th Cir. 1987). Moreover, the alleged bias "must be against the party, not against the attorney for the party." Cintron v. Union Pac. R. Co., 813 F.2d 917, 921 (9th Cir. 1987) (citations omitted).

CONCLUSION

The judgment is affirmed.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 ***

Of the Northern District of California

 1

We point out to Summet and his counsel that they advance this argument from an awkward posture. They concede that they failed to file their proposed instructions in a timely manner. Appellant's Opening Brief at 44. The record reveals that several of the instructions they did propose contained the very language they now challenge. E.g., "If he reasonably believes that...." (Proposed Instruction No. 3); "Under an honest and reasonable belief...." (Proposed Instruction No. 5); "If he did so reasonably and in good faith.... (Proposed Instruction No. 7)

 2

E.g., Plaintiff's Exhibits 1-4, 13, 17, 18, 21, 23, 25, 27, 29