UNITED STATES of America, Appellee, v. Douglas D. OLSON, Appellant.
No. 77-1725.
United States Court of Appeals, Eighth Circuit.
Submitted March 13, 1978. Decided May 11, 1978.
576 F.2d 1267
One further point remains to consider. Respondents claim that appellant‘s claim of age discrimination is in any event barred by the applicable statute of limitations, and therefore that even had leave to amend been granted she would have been unable to state a claim entitling her to relief. We take no position. The issue of the statute of limitations not having been raised in the court below, this court will not consider it now. See Ohio Casualty Insurance Company v. Rynearson, 507 F.2d 573 (7th Cir. 1974).
For the foregoing reasons, the judgment of the district court is vacated and this cause is remanded to the district court with directions to grant leave to the plaintiff to file an amended complaint, and for such further proceedings as may be deemed appropriate.
John A. Gale of Girard & Gale, North Platte, Neb., for appellant.
Richard J. Nolan, Asst. U. S. Atty., Lincoln, Neb., argued, Edward G. Warin, U. S. Atty., Omaha, Neb., on brief, for appellee.
Before VAN OOSTERHOUT, Senior Circuit Judge, and HENLEY, Circuit Judge, and LARSON, Senior District Judge.*
A two-count information filed in the United States District Court for the District of Nebraska on April 5, 1977, charged appellant Douglas D. Olson with violations of
Olson was tried on the above charges in North Platte, Nebraska on August 8-9, 1977, before the Honorable Warren K. Urbom, Chief Judge, and a jury. The defense was conducted pro se. Guilty verdicts were returned on both counts, and a judgment of conviction was duly entered. Olson was sentenced to one-year concurrent sentences, all but ten days of which were suspended, provided Olson comply with several conditions, including payment of a fine in the aggregate amount of five hundred dollars. Alleging numerous grounds for reversal, Olson appeals. For the reasons hereinafter stated, we affirm.
We discuss the various contentions in the order in which they are raised. The facts of the case will be set out to the extent necessary in the course of this opinion.
First, Olson contends the district court erred in failing to appoint advisory counsel to assist in the conduct of his pro se defense. Prior to arraignment Olson had requested that one Lowell Anderson, who is not an attorney, be allowed to represent him. At arraignment the request was denied, but the court advised Olson as follows:
What I shall do, Mr. Olson, is simply acknowledge your right to defend yourself. I do offer to appoint counsel for you. I cannot permit Mr. Anderson, who is not an attorney admitted to practice in this court, to represent you or to speak for you. He can speak to you, he can speak with you, but he cannot speak for you. That simply means if you want to talk with him, that is your right, and I will not interfere with that. As far as any speaking that is done, you must do that. Now, I repeat, if you want counsel appointed for you, and if you can‘t afford to hire your own counsel, I am not only willing but eager that that be done. So I want you to understand that, not only now, but at any time.
There is no contention that the court erred in denying the request to be represented by Anderson. In any event this court has re-
Olson nevertheless contends the court erred in not appointing advisory counsel. We of course continue to approve the use of advisory counsel in cases where the defense is conducted pro se. See United States v. Pilla, supra at 1093; United States v. Hinderman, supra at 103; United States v. Sturgeon, 501 F.2d 1270, 1275 (8th Cir. 1974); see also Faretta v. California, 422 U.S. 806, 835 n. 46 (1975). But we have never held, and we decline to do so now, that the trial court must appoint advisory counsel even after fairly ascertaining that the defendant will not accept licensed counsel. Indeed, we have rejected the view that a defendant has a right both to represent himself and to be represented by counsel—even if a request for such hybrid representation is made. United States v. Williams, 534 F.2d 119, 123 (8th Cir. 1976). As noted in Williams, the matter is properly left to the discretion of the trial court, and there was no abuse of discretion here. We add that Olson in fact exhibited considerably more courtroom skill than would most lay persons.
Second, Olson contends the trial court erred in certain of its discovery rulings and in refusing to grant a continuance upon the Government‘s alleged failure to make discovery. Discovery matters are committed to the sound discretion of the trial court and are reviewable only upon an abuse of that discretion. United States v. Bailey, 550 F.2d 1099, 1100 (8th Cir. 1977). An error in administering the discovery rules is not reversible absent a showing that the error was prejudicial to the substantial rights of the defendant. Id. Continuance is similarly a matter within the broad discretion of the trial court. United States v. Weaver, 565 F.2d 129, 135 n. 6 (8th Cir. 1977). As nearly as we can discern from the present state of the record, all discoverable materials in the possession of the Government were delivered to Olson at least one week prior to trial. The Government‘s case at trial was short and straightforward, and the trial court could properly have concluded that one week was sufficient time in which to study the items last discovered. There was no prejudicial error.
Third, Olson contends the tax returns and W-4E forms which constituted the basis of the Government‘s case against him should have been suppressed or “quashed” because the United States attorney‘s office allegedly obtained them from the Internal Revenue Service illegally. The argument is not an easy one to follow, but it appears to be predicated in large part upon the general prohibition of
Fourth, Olson contests the admissibility of most of the Government‘s exhibits, on grounds of inadequate foundation and materiality, as well as the sufficiency of the evidence to support the convictions. This contention requires a brief synopsis of the Government‘s case at trial.
As already noted, the Government‘s case was short and straightforward. Olson is a tax protester. Government exhibits 4 and 5 were the W-4E forms signed by Olson on November 22, 1975 and April 29, 1976. On each Olson certified that he had incurred no federal income tax liability for the prior year and anticipated none in the current year. Attached to each was a list of reasons why, in Olson‘s opinion, the federal income tax is unconstitutional or otherwise illegal. Government exhibits 6, 7, 8 and 9 were certain payroll records of the Chicago and Northwestern Transportation Company showing earnings by Olson for the years 1974 through 1977, inclusive; Government exhibits 11, 12 and 13 were the form 1040 tax returns filed by Olson and his wife for the years 1974 through 1976, inclusive. These seven exhibits were offered and received for the purpose of showing that Olson did have income tax liability for the years in question. The Government called four witnesses, largely for purposes of authenticating the exhibits.
Olson contends that no proper foundation was laid for the receipt of any of the above exhibits because it was never shown that any of the exhibits pertained to the same “Douglas Duane Olson” or “Doug-
Fifth, Olson challenges the trial court‘s instruction on the element of willfulness. The jury was instructed that in order to return a verdict of guilty on either count it must find beyond a reasonable doubt that Olson had supplied information to his employer that he had not incurred a federal income tax liability for the years specified, that the information so supplied was false or fraudulent and that such supplying of information was done willfully. The court then defined “false“, “fraudulent” and “willfully” as follows:
Information is fraudulent if it was falsely furnished with the intent to deceive.
Information is false if it was untrue when furnished and was then known to be untrue by the person furnishing it. False means more than merely incorrect.
“Wilfully” requires that the act of furnishing information was done with the belief or knowledge that he had or would have tax liability under the tax laws of the United States. The word denotes an act which is intentional or knowing or voluntary and done with bad faith or evil intent and without justifiable excuse. In determining whether the defendant has acted wilfully, it is not necessary for the United States to show that the defendant knew that he was breaking any particular law. Every person is presumed to know the law.
Olson objected to the last sentence on this instruction at trial and renews the contention on appeal. Because the last two sentences of the instruction are contextually linked and express essentially the same idea, we treat the objection as applicable to both.
The meaning of “willfully” as used in
The certification contained in the W-4E form signed by Olson on November 22, 1975, recited: “Under penalties of perjury, I certify that I incurred no liability for Federal income tax for 1974 and that I anticipate that I will incur no liability for Federal income tax for 1975.” (Emphasis supplied). The certification contained in the W-4E form signed by Olson on April 29, 1976, was identical, except that it referred to the years 1975 and 1976. In addition the statement attached by Olson to each W-4E form began with the sentence: “I wish it expressly understood that I have signed the W-4E exemption from withholding of Federal Income tax under the penalties of perjury. . . .” There was thus no real issue at trial as to whether Olson knew it was illegal to make a false certification. The only real issues were whether he willfully made the certifications and whether he knew they were false or fraudulent at the time he made them. On these two issues, the trial court‘s instructions were correct. Under the circumstances, then, the possibly erroneous instruction that “[e]very person is presumed to know the law” could not have misled the jury. The error, if any, was harmless beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250 (1969); United States v. Trabucco, 424 F.2d 1311, 1320-21 (5th Cir. 1970).
Sixth, Olson contends the trial court erred in striking the testimony of defense witness Kaye Scott and in refusing to give a requested instruction concerning mental capacity. Kaye Scott is an alcoholism and drug therapist. Her testimony was largely to the effect that Olson was not responsible for his actions because of a problem with alcohol. The trial court struck her testimony, instructed the jury to disregard it and refused to give an instruction on mental capacity. These rulings were predicated upon
Seventh, Olson contends under
Eighth and finally, Olson challenges a provision in the District of Nebras-
Affirmed.
LARSON, Senior District Judge, concurring.
I concur.
I do not believe that the instruction “every person is presumed to know the law” can be reconciled with the Supreme Court‘s discussion of “willfully” in United States v. Bishop, supra, 412 U.S. 346, 360-61 (1973):
In our complex tax system, uncertainty often arises even among taxpayers who earnestly wish to follow the law. . . . “It is not the purpose of the law to penalize frank difference of opinion or innocent errors made despite the exercise of reasonable care.” . . . The requirement of an offense committed “willfully” is not met, therefore, if a taxpayer has relied in good faith on a prior decision of the Court. . . . The Court‘s consistent interpretation of the word “willfully” to require an element of mens rea implements the pervasive intent of Congress to construct penalties that separate the purposeful tax violator from the well-meaning, but easily confused, mass of taxpayers.
I am also constrained to disagree with the majority‘s conclusion that the instructions on the question whether Olson knew his certifications to be false or fraudulent at the time he made them were entirely correct. The instruction on presumed knowledge of the law tends to infect the other instructions relating to knowledge.1
Nevertheless, I agree that the error was harmless beyond a reasonable doubt. When read in their totality, the instructions conveyed a clear picture of the nature of the alleged offense and its essential elements. Moreover, the evidence of Olson‘s guilt is overwhelming.
Notes
Any individual required to supply information to his employer under section 3402 who willfully supplies false or fraudulent information, or who willfully fails to supply information thereunder which would require an increase in the tax to be withheld under section 3402, shall, in lieu of any other penalty provided by law (except the penalty provided by section 6682), upon conviction thereof, be fined not more than $500, or imprisoned not more than 1 year, or both.
The instruction on willfulness found in United States v. Hinderman, 528 F.2d 100, 101 (8th Cir. 1976), is immune from the criticisms leveled here and is to be recommended in tax fraud cases such as this.In order to shorten this opinion, we assume arguendo that the transcripts would be inadmissible if they were obtained illegally, but there is, of course, no certainty that the exclusionary rule would be extended to a situation of this kind. Cf. Calandra v. United States, 414 U.S. 338 (1974).
(b) Mental Disease or Defect Inconsistent with the Mental Element Required for the Offense Charged. If a defendant intends to introduce expert testimony relating to a mental disease, defect, or other condition bearing upon the issue of whether he had the mental state required for the offense charged, he shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct, notify the attorney for the government in writing of such intention and file a copy of such notice with the clerk. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or to make such other order as may be appropriate.
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(d) Failure to Comply. If there is a failure to give notice when required by subdivision (b) of this rule or to submit to an examination when ordered under subdivision (c) of this rule, the court may exclude the testimony of any expert witness offered by the defendant on the issue of his mental state.