Unpublished Disposition, 931 F.2d 61 (9th Cir. 1990)

MEMORANDUM^** 

Charles Correll appeals his conviction on four counts of failure to file income tax returns in violation of 26 U.S.C. § 7203. Correll challenges the ability of the Internal Revenue Service to require him to file tax returns. In addition, he contends that he was denied due process of law during his trial. We reject Correll's arguments as meritless and affirm the district court's conviction.

For the four years 1982 through 1985, Charles Correll failed to file income tax returns. Correll earned $40,577; $52,418; $42,644; and $40,430 during each respective year. He provided his employers with false social security numbers and claimed exempt status or excess exemptions to prevent federal income tax withholdings on his wages. Correll was indicted on April 11, 1989 and failed to appear for his arraignment on April 24, 1989, but claims to have "specially appeared" before the Clerk of the Court on May 1, 1989 to contest the proceedings against him.

Correll was arrested on January 18, 1990 and arraigned on January 22, 1990. At Correll's request, the district court judge allowed Correll to waive his right to a jury trial and proceed pro se.

On appeal, Correll argues that he should not be required to file income tax returns. He also contends that he was denied his rights under the Speedy Trial Act. Finally, he argues that numerous errors occurred both before and during trial which resulted in an unfair trial.

Correll asserts that he is not required to file income tax returns. For this proposition, he raises several arguments which we dismiss as meritless.¹  This court has repeatedly stated that " [t]he Constitutionality of the taxing system is not a gray area, but one delineated in the black and white of prior decisions...." United States v. Condo, 741 F.2d 238, 240 (9th Cir. 1984), cert. denied, 469 U.S. 1164 (1985); see also United States v. Studley, 783 F.2d 934, 937 (9th Cir. 1986) ("an individual is a 'person' under the Internal Revenue Code" and qualifies as a taxpayer).

Correll's claims under the Speedy Trial Act also fail. The Act mandates that a defendant who is charged in an indictment and pleads not guilty must be brought to trial within seventy days of the indictment. 18 U.S.C. § 3161(c) (1). Correll failed to appear for his arraignment on both April 24, 1989 and May 1, 1989, and a warrant was issued for his arrest. However, he did appear before the Clerk of the Court to challenge the jurisdiction of the district court and the validity of the proceedings against him. He argues that the seventy day time period should be computed from the time of his appearance before the Clerk of the Court on May 1, 1989 because this appearance was a "special appearance." We reject this claim.

We have stated that " [w]hen a defendant is indicated prior to his arrest, the seventy-day pretrial period runs from the date of his arraignment." United States v. Haiges, 688 F.2d 1273, 1274 (9th Cir. 1982). Correll did not appear at either of his scheduled arraignments. Therefore, Correll did not appear before a judicial officer for the purposes of Sec. 3161 until either January 18, 1990, when he appeared after his arrest, or until January 22, 1990, when he was actually arraigned. Under Sec. 3161, the seventy-day time period would have started in late January of 1990. Correll was brought to trial on March 6, 1990, well within the seventy-day period. There was no violation of the Speedy Trial Act.

Finally, Correll alleges that numerous errors occurred prior to and during his trial.²  Many of these arguments relate to the district judge's alleged prejudice and bias towards Correll.

The standard for recusal is "whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983). Correll contends that the district court judge was biased against him because he improperly excluded a defense witness, refused findings of fact and conclusions of law after Correll knowingly and voluntarily waived his rights to a jury trial, and demonstrated an "obvious bias" against him.

First, the judge properly excluded Correll's witness at the government's request pursuant to Federal Rule of Evidence 615. Second, Correll had no right to special findings of fact and conclusions of law after he clearly waived his right to a jury trial. This knowing waiver was demonstrated by the extensive colloquy between the district judge and Correll. Finally, a review of the trial record indicates that the district court judge was not biased or prejudiced. Therefore, the motion for recusal was properly denied.

AFFIRMED.