Unpublished Disposition, 867 F.2d 614 (9th Cir. 1989)

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

UNITED STATES of America, Plaintiff-Appellee,v.Benny B. VERANIA, Defendant-Appellant.

No. 87-1318.

United States Court of Appeals, Ninth Circuit.

Submitted*  Oct. 27, 1988.Decided Jan. 11, 1989.

Before CHOY, TANG and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

Verania appeals pro se his conviction in federal district court on three counts of willful failure to file federal income tax returns in violation of 26 U.S.C. § 7203. On appeal, he contends that the district court erred (1) in exercising subject matter jurisdiction; (2) in finding that he was properly indicted; (3) in finding that he was subject to the requirements of the federal tax code; (4) in refusing to allow him to have a lay advisor as counsel; and (5) in its handling of a question from the jury. In addition, Verania alleges that the district court violated his due process rights. All of Verania's contentions are meritless, and therefore we affirm.

DISCUSSION

Verania contends that the judgment should be vacated because the district court lacked subject matter jurisdiction over his prosecution. The federal statute that provides district courts with jurisdiction "of all offenses against the laws of the United States," however, grants jurisdiction over prosecutions under Title 26, the title under which Verania was prosecuted. United States v. Przybyla, 737 F.2d 828, 829 (9th Cir. 1984), cert. denied, 471 U.S. 1099 (1985); 18 U.S.C. § 3231. Accordingly, the district court did not err in exercising jurisdiction.

Verania contends that the grand jury relied on evidence obtained by constructive fraud and therefore the district court erred in denying his motion to dismiss the indictment. Specifically, he objects to the use as evidence of a W-4 form which he signed not knowing it could be used as evidence. A presumption of regularity attaches to grand jury proceedings. United States v. Claiborne, 765 F.2d 784, 791 (9th Cir. 1985). Indictments will only be dismissed upon a showing of grand jury abuse, such as demonstrating that the prosecutor knowingly used perjured testimony. Id. Verania has made no showing that the prosecutor knowingly used perjured testimony, nor has he established any other grand jury abuse. Therefore, the district court did not err in denying Verania's motion to dismiss the indictment.

Verania contends that the district court erred in subjecting him to the requirements of the federal tax code because (1) he is not a person within the meaning of the tax code; (2) his income was not taxable by the federal government because it derived from "state labor activity"; and (3) the United States has no authority to tax him because God, not the United States government, is his sovereign.

First, we have repeatedly rejected the argument that an individual is not a "person" within the meaning of the Internal Revenue Code. United States v. Romero, 640 F.2d 1014, 1016-17 (9th Cir. 1981). Second, there is no authority for the proposition that income derived from "state labor activity" has been exempted from taxation. Under the sixteenth amendment, Congress has the power to impose a tax on a person's income regardless of its source. See United States v. Buras, 633 F.2d 1356, 1361 (9th Cir. 1980). Third, Verania's view that God, not the United States government, is his sovereign does not exempt him from the mandates of the federal tax code. " [R]eligious belief in conflict with the payment of taxes affords no basis for resisting the tax." Cook v. Spillman, 806 F.2d 948, 949 (9th Cir. 1986) (quoting United States v. Lee, 455 U.S. 252, 260 (1982)).

Verania contends that the district court violated his right to counsel by refusing to allow consultations with a non-lawyer advisor during court proceedings.1  At his arraignment, Verania sought to retain a non-lawyer advisor as counsel. The court did not allow Verania to consult with this advisor during the arraignment although it did eventually provide him with a lawyer to serve as advisory counsel.

The sixth amendment's guarantee of the right to counsel does not require a court to allow one who is not an attorney to act, or try to act, as counsel. United States v. Wright, 568 F.2d 142, 142 (9th Cir. 1978); see also United States v. Kelley, 539 F.2d 1199, 1203 (9th Cir.), cert. denied, 429 U.S. 963 (1976). Therefore, the district court did not violate Verania's right to counsel by disqualifying his lay advisor.

Verania contends that the district court erred when it refused to grant the jury's request to see a section of the tax code, thereby preventing the jury from considering one of his defenses.

While the district court has the responsibility to eliminate confusion when a jury seeks clarification, whether and to what extent additional instructions are necessary are matters within the sound discretion of the trial court. United States v. Hayes, 794 F.2d 1348, 1352 (9th Cir. 1986), cert. denied, 476 U.S. 1986 (1987) (citations omitted). Further, a defendant is entitled to a jury instruction on a defense only if the theory has a basis in law and in the record. Id. at 1350.

The jury asked to see 26 U.S.C. § 3401 of the tax code "dealing with the definition of 'employee.' " The district court refused the request because the section does not provide a comprehensive definition of employee; it merely lists a number of kinds of persons included within the scope of the term "employee," none of which apply to Verania. One of Verania's defenses is that because none of the categories listed describes him, the code does not apply to him.

Verania's defense has no basis in law because the term "includes" in section 3401(c) is not meant to limit the application of the code to the categories of persons listed in the section. See Sullivan v. United States, 788 F.2d 813, 815 (1st Cir. 1986). Therefore, the judge did not abuse his discretion by refusing to provide the jury with the text of this section of the tax code.

Verania contends that the district court violated his due process rights. In support of this contention, he argues that (1) he was not prosecuted by a free and independent prosecutor, and (2) the district court is not an Article III court. Both arguments are frivolous.

The power to dismiss an indictment on the ground of prosecutorial misconduct is used sparingly. United States v. Benjamin, 852 F.2d 413, 415 (9th Cir. 1988). A defendant must show that "the prosecutor engaged in flagrant misconduct that deceived the grand jury or significantly impaired its ability to exercise independent judgment." Id. at 416. Verania's only allegation of misconduct is that the prosecutor was "subject to the will of Congress" and thus not independent. The district court did not err in finding that this was not conduct warranting a dismissal. Second, Article III of the United States Constitution clearly gives Congress the power to establish and confer jurisdiction on federal courts. See U.S. Const. art. III Sec. 1. Congress has used this power to create federal district courts. 28 U.S.C. § 132.

The district court was therefore correct in finding no violation of due process.

AFFIRMED.

 *

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

 1

This court ordered supplemental briefs regarding the right to counsel issue. In addition to the counsel issue, Verania raises numerous other issues for the first time on appeal in his supplemental brief. Because Verania did not raise these other arguments in his opening brief, we do not address them. See Thompson v. Commissioner, 631 F.2d 642, 649 (9th Cir. 1980)