Unpublished Disposition, 849 F.2d 1477 (9th Cir. 1988)

MEMORANDUM^** 

Jerry White appeals his conviction for failure to file income tax returns for the years 1981 through 1985, in violation of 26 U.S.C. § 7203. White contends that the district court abused its discretion in excluding from the jury documents on which he relied in deciding not to file tax returns. He asserts that the documents were relevant to establishing his good faith belief that he was not required to file tax returns.

At his jury trial, the district court excluded various materials such as books, documents, and a Phil Donahue Show videotape which White allegedly relied on in deciding not to file tax returns. The court also ruled, however, that White could testify regarding his good faith belief that he was not required to file tax returns and his reliance on the documents and also that he could read from the documents during his testimony. White declined to testify. The jury convicted. White timely appeals. Upon review, we affirm.

We review a district court's decision to exclude evidence for an abuse of discretion. United States v. Malquist, 791 F.2d 1399, 1402 (9th Cir.), cert. denied, 107 S. Ct. 445 (1986).

A taxpayer's failure to file a return that results from a good faith misunderstanding of the law, is not willful and does not violate section 7203. See United States v. Callery, 774 F.2d 1456, 1458 (9th Cir. 1985). We have consistently held, in numerous tax protestor cases, that a district court does not abuse its discretion where it excludes from evidence legal materials which the defendant seeks to introduce in support of a claim of good faith failure to file, so long as the court provides the defendant with an opportunity to testify that he relied on the materials in forming his belief that he was not required to file his return. See, e.g., United States v. Bergman, 813 F.2d 1027, 1029-30 (9th Cir.), cert. denied, 108 S. Ct. 154 (1987); Malquist, 791 F.2d at 1402; Cooley v. United States, 501 F.2d 1249, 1253-54 (9th Cir. 1974) (distinguishing a Tenth Circuit case where defendant was not allowed to testify and jury was instructed that ignorance of law was no excuse), cert. denied, 419 U.S. 1123 (1975). This court has excluded such evidence because it could confuse the jury as to the state of the law. See Cooley, 501 F.2d at 1254.

Here, after ruling against admitting the documents, the district court provided White with an opportunity to testify regarding his reliance on the materials but White declined to do so. Moreover, the district court instructed the jury as to White's good faith belief that he did not have to file the returns and that a defendant's conduct is not willful if it is based on a good faith misunderstanding of the law (RT II:133-34). Therefore, the district court did not abuse its discretion. See Bergman, 813 F.2d at 1029-30.

AFFIRMED.