Unpublished Disposition, 867 F.2d 614 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 867 F.2d 614 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Otto HURST and Matti Hurst, Defendants-Appellants.

No. 86-1111.

United States Court of Appeals, Ninth Circuit.

Submitted*  Dec. 20, 1988.Decided Jan. 23, 1989.

Before KOELSCH, KILKENNY and FARRIS, Circuit Judges.


Otto and Matti Hurst appeal their convictions for violating 26 U.S.C. § 7201 by attempting to evade payment of income tax. They ask that the judgment be reversed because (1) they were denied effective assistance of counsel, (2) they were prejudiced by prosecutorial misconduct, and (3) the district court improperly admitted the Hursts' W-4 forms as evidence. We reject each of these contentions and affirm.

* In presenting their ineffective assistance of counsel argument, the Hursts fail to address or refer to the authoritative Supreme Court decision on the issue, Strickland v. Washington, 466 U.S. 668 (1984), or any case law subsequent to the decision. Strickland requires "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Additionally, "the defendant must show that the deficient performance prejudiced the defense" by depriving the defendant of a fair trial. Id. Counsel's performance carries a strong presumption of reasonable representation. Id. at 689; United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1986). The "impairment" standard suggested by the Hursts was rejected in Strickland. See 466 U.S. at 693.

The Hursts contend that counsel failed to adequately represent them by (1) failing to object to the admission as evidence of the W-4 forms, (2) failing to object to the prosecution's characterization of the Hursts as "tax protesters," (3) not presenting any defense witnesses other than the defendants, (4) failing to develop Matti Hurst's defense that she was subject to her husband's control, and (5) various other matters regarding the conduct of the trial. Because Otto Hurst chose to represent himself, we may deny his ineffective assistance of counsel claim. See Faretta v. California, 422 U.S. 806, 835 n. 46 (1975) ("a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of 'effective assistance of counsel.' "). Because Matti Hurst was represented by counsel, and because that counsel provided some assistance to Otto Hurst, we consider the ineffective assistance claim for both Otto and Matti Hurst.

Counsel did not err in failing to object to the admission of the W-4 forms. The objection would have been overruled. See United States v. Bergman, 813 F.2d 1027, 1029 (9th Cir. 1987), cert. denied, 108 S. Ct. 154 (1987). Nor did counsel err in failing to object to the characterization of the Hursts as "tax protesters." Given the Hursts' actions concerning their tax returns, use of the term is acceptable. See Bergman, 813 F.2d at 1029. A failure to make an objection that would have been overruled is not ineffective assistance of counsel. See United States v. Steele, 785 F.2d 743, 750 (9th Cir. 1986).

Counsel's decision not to present witnesses is a matter of trial tactics and strategy entitled to a presumption of reasonableness. See Steele, 785 F.2d at 750. Similarly, decisions to stipulate to the admission of documents and whether to object during the testimony of witnesses are a matter of trial tactics and do not support a claim of ineffective assistance of counsel. See Ferreira-Alameda, 815 F.2d at 1253-54; United States v. Murray, 751 F.2d 1528, 1535 (9th Cir. 1985), cert. denied, 474 U.S. 979 (1985).

The Hursts' ineffective assistance of counsel claim also fails because no reasonable probability exists that the result reached would have been different but for the alleged ineffective assistance. The evidence against the Hursts was overwhelming. No demonstration of prejudice has been made. See Murray, 751 F.2d at 1535.


The Hursts contend that they were prejudiced by the prosecutor's tactics in portraying them as wealthy, characterizing them as tax protesters, and forcing Otto Hurst to waive his fifth amendment rights. To justify reversal, prosecutorial misconduct must be so prejudicial that it "likely influenced the jury adversely to the defendant and deprived the defendant of a fair trial." United States v. Patel, 762 F.2d 784, 795 (9th Cir. 1985).

Occasional references to a defendant's income and status are permissible. See United States v. Little, 753 F.2d 1420, 1441 (9th Cir. 1984). The prosecutor did not engage in calculated, persistent efforts to turn the jury against the Hursts because of their wealth. Cf. United States v. Stahl, 616 F.2d 30, 32-33 (2d Cir. 1980). Nor was the prosecutor's characterization of the Hursts as tax protesters inappropriate. See Bergman, 813 F.2d at 1027-29. Reasonable inferences are not prosecutorial misconduct. Patel, 762 F.2d at 795. Hurst's contention that he was forced to waive his fifth amendment privilege against self-incrimination fails because Hurst never claimed the privilege. See United States v. Washington, 431 U.S. 181, 186-87 (1977).


The Hursts argue that the trial judge should not have admitted as evidence the W-4 forms on which the Hursts claimed to be exempt from income tax because the forms showed evidence of other crimes and therefore were unduly prejudicial. The forms are admissible because they are highly probative of the Hurst's willfulness in avoiding taxes. See Bergman, 813 F.2d at 1029. Potential prejudice, if any, is outweighed significantly by the forms' probative value. See Fed.R.Evid. 403.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit rule 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 Circuit Rule 36-3