United States v. Wesley Willie

appeal Steel stated the court Canal moot America,

that case was because UNITED STATES of Plaintiff-Appellee, [a]ppellant appealed, but did not sue out supersedeas, gave a bond costs_ [B]y appel- the failure of the WILLIE, Wesley Defendant-Appellant. supersedeas [stay lant a to obtain 90-2028, Nos. 90-2041. judgment], execution of the the seizure subject was released and there is no mat- Appeals, Court upon judgment ter of this which Tenth Circuit. operate give court could relief to the Aug. appellant. Steel, 48 F.2d at 213. The rule in Canal adopted by

Canal was first the Ninth Steel Bud,

Circuit in Martin v. The Cir.1949). There, the court stated jurisdiction lacking because the supersedeas

res was released and “[n]o filed, any stay

bond was nor was of execu-

tion obtained.” Id. SSA failed to obtain a

stay posting and thus the bond prevent

ineffective to execution of the

judgment. district court is without

jurisdiction provide any relief for SSA as

the res involved in the attachment has been

released.

III.

CONCLUSION plaintiff hold that when a

We asserts

quasi jurisdiction in rem over attachment, B virtue of a Rule and the

plaintiff stay has failed to obtain a of exe- judgment

cution of the which includes the posting supersedeas

condition of bond for stay, once the district court dismisses properly action and releases the securi-

ty, jurisdiction. it loses

DISMISSED. Barth, Atty., Las L. Asst. U.S.

Charles Lutz, Cruces, (William Atty., L. U.S. N.M. Barnett, Atty., Asst. U.S. and Paula G. brief), N.M., him on the Albuquerque, with plaintiff-appellee. Storch, diction over Native Americans to Asst. Federal Public enforce Teresa E. them; (3) Defender, (Wesley against the income tax Albuquerque, N.M. Wil- laws her, briefs), se, judge engaged prejudicial misconduct; lie, on the pro and, (4) petition for Writ defendant-appellant. of Habeas Corpus suspended. illegally ANDERSON, EBEL, SETH and Before Judges. Circuit I. RIGHT TRIAL ANDERSON, TO SPEEDY H. Circuit

STEPHEN Judge. Willie claims that he was denied speedy trial in Speedy violation of the Trial

Wesley appeals his conviction requires Act which failure to that a defendant be of four counts of district court brought to trial years days within 70 of his ar file income tax returns for 3161(c)(1)(1985). raignment. 18 in of 26 7203. U.S.C. to 1985 violation U.S.C. § § began days Willie’s trial after his ar We affirm. However, raignment. periods certain American, Willie, filed Wesley a Native may computing time be excluded in 1975, in personal income tax returns delay commencing the allowable in trial. year. 1977, receiving refund in each 3161(h). 18 U.S.C. § file in 1978 and filed a zero He did not 1985, Delay resulting from in 1980. From 1982 to Willie the submission of return motion, pretrial although filing he earned a “from the also failed to file year1 working through on motion the conclusion of the income each hear- substantial on, of, ing disposition projects prompt at or other such large commercial construction motion,” throughout the United shall be excluded. 18 U.S.C. various locations 3161(h)(1)(F). first mailing his address at the Willie’s motion was far from § Sheet, April 26. R. Docket in New Mexico. On his W- filed on Doc. Navajo Nation ruled required employment, Willie No. 2. The district court 4 forms subsequent exemptions to which he several motions without hear- claimed numerous 7, ing consideration payment on June but reserved was not entitled to avoid proceed pro until it mailed a number of notices of Willie’s motion to se taxes. The IRS recog- regarding fully “satisfied that Defendant address his lack was to Willie’s heavy duty in Subsequently, this action was nizes the undertakes filing. and, being representing himself after so brought in district court and Willie was advised, representing himself.” by jury and convicted on all insists on guilty found I, undisputed that the Tab 11. It is counts of willful failure to file R.Yol. four filing first appeals days from the of Willie’s returns. He now that conviction. disposition April motion on 26 to the court’s appeal, filed two briefs on one Willie has self-representation motion on of all but the pro by counsel and one se. submitted speedy from the June 7 should be excluded (1) he Through argues counsel he that: question The central con- trial calculation. trial; (2) right speedy his to a was denied time allowed for reso- cerns the excludable right his to effective assist he was denied pro representation issue. lution of the se counsel; (3) erred in ance of the trial court that, exhibits; although did argues the court the introduction of his Willie prohibiting and, (4) taking the motion prosecution per exercised its not state that was 7, the motion challenge under advisement on June emptory to exclude one of two was, effect, in under advisement jurors in violation of Bat taken Native American brief, If under ad- In on at a later date. Kentucky. pro se he be ruled son visement, delay (1) excludable argues he lacked suffi the maximum further that: days. is 30 the court’s determination cient notice of the elements of the offense 3161(h)(l)(J); (2) see United States charged; juris- States lacks 18 U.S.C. the United § 1985, $13,963.56. $21,579.79; 926.66; and, Tr. at gross it was 1. Willie’s income was $16,- $32,976.61; it was it was (10th Cir.), Hines, II. S.Ct. find, (1984). We do not how RIGHT TO REPRESENTATION ever, motion was taken under adv that the BY COUNSEL Rather, the motion was still isement.2 argues Willie that he did not make a the district pending until trial when court knowing, voluntary intelligent waiver self-representa discussed the difficulties right to counsel because he made its final determi tion Willie and proceed pro se allowing inadequately Willie to nation informed of the hazards of trial, attorney appointed acting as with his self-representation. objects He also time, By that the court standby counsel. request court’s denial of his near the close itself that apparently had satisfied standby of trial for a substitution of his self-represen understood the difficulties inquiry counsel without into the reasons to conduct de tation and still wished for his dissatisfaction. Ill at R.Vol. 266- pro se. fense disagree arguments. 68. We with both

Although preferable it is for the court to time, possible the earliest A hear motions at defendant has a constitutional filing the until the the entire time between right right to waive his to counsel and to excludable, hearing conclusion of the is re represent himself at criminal trial. Faret gardless delay was “reason of whether the California, ta v. 806, 422 U.S. 95 S.Ct. ably necessary.”3 Henderson v. United 2525, (1975); United States 45 L.Ed.2d 562 States, 321, 330, 1871, 106 S.Ct. 476 U.S. Allen, v. 1577, (10th 895 F.2d 1578 Cir. 1876, (1986); United States 90 L.Ed.2d 299 1990). However, valid, judge to be the trial Cir.1990), Gonzales, 897 F.2d 1312, (5th v. 1316 must ensure that the waiver of counsel is — denied, U.S.-, rt. 111 S.Ct. ce relinquishment “an intentional or abandon (1991); United States 683, 112 L.Ed.2d 675 Unit right privilege.” ment of a known or Cir.1989), 726, (5th Santoyo, v. F.2d 728 890 McConnell, ed v. 1441, States 749 F.2d — denied, U.S.-, rt. 110 S.Ct. ce (10th Cir.1984) (quoting Johnson v. 1450-51 2567, (1990); United L.Ed.2d 749 109 Zerbst, 458, 464, 1019, 304 U.S. 58 S.Ct. 1368, Stafford, 697 F.2d States v. 1373 ns. 1023, (1938)). Ideally, 82 L.Ed. 1461 the 4, Cir.1983). Thus, (11th period 5 the trial should thorough conduct a and the first motion on filing April of the 26 to comprehensive inquiry formal of the defen hearing disposition the and court’s final the dant on record to demonstrate that the representation beginning motion at the aware the nature of the of trial on November 20 is excluded under charges, range punish of allowable 3161(h)(1)(F). United v. States 18 U.S.C. § defenses, possible ments and fully and is Tranakos, 1422, (10th 911 F.2d 1425-26 proceeding pro informed of the se. risks of Santoyo, see United States v. Cir.1990); California, 422 835, Faretta v. U.S. at 95 728; Stafford, United States v. 890 F.2d at Gillies, 2541; Von Moltke v. at S.Ct. 332 days 697 F.2d at 1374. Since 19 708, 724, 316, 323, U.S. 68 S.Ct. 92 L.Ed. elapsed arraignment between and the Allen, (1948); United States v. 309 895 April filing, 26 Willie was not denied a 1578; Mondragon, Sanchez v. F.2d at speedy trial and we need not 858 rule on his 1462, (10th Cir.1988). speedy Regretta- other trial contentions. F.2d 1467 (1990). clearly pro 2. Even if we were to determine that The court se 749 needed more in- advisement, motion had been taken under 30-day upon ruling. which formation to make its Until period begin advisement does not information, to run the court obtains that the advise- necessary until all information is before the period begin ment does not to run. court. Excludable time includes “all time that placing is consumed in the trial court in a judge’s prior discussion with Willie at trial position dispose of a motion." Henderson v. completion selection constitutes a 321, 331, 1871, United 1877, 476 U.S. 106 S.Ct. hearing leading to the final resolution of Wil- (1986); 90 L.Ed.2d 299 see United States v. sufficiency adequacy lie’s motion. The and Cir.1989), (5th Santoyo, 890 F.2d 726 de ni cert. hearing separate is a issue discussed below. —ed, U.S.-, 2567, 110 S.Ct. 109 L.Ed.2d At that hear- plexity process.4 of the fully did not discuss bly, the district court represent ing, the allowed Willie to the record. court on Willie issues with these himself, prompt having apparently satisfied itself However, do deficiencies such the conviction automatically reverse and re- observing Willie’s conduct after us surrounding facts circum viewing throughout petitions where his numerous background and stances, including Willie’s preceding that Willie under- months actually conduct, that Willie demonstrate representa- pro stood difficulties of se right to counsel and his understood him- representing and still insisted on tion representation pro se difficulties I, (court refused self. See R. Vol. Tab intelligently waived knowingly and represent himself until rule motion to Padilla, v. United States right to counsel. understood the difficul- satisfied Willie Cir.1987) (citing (10th 952, 958 representation). Upon of such review ties 458, 464, Zerbst, U.S. v. Johnson record, that decision of the we do not find (1938)); L.Ed. 1461 5.Ct. to be erroneous. McConnell, States United This case is similar United 1451; Weninger, 624 Cir.1980), Weninger, 624 F.2d 163 denied, Cir.), U.S. cert. 1012, 101 S.Ct. 66 L.Ed.2d (1980), protes where a tax did that Willie indicates The record multi represent chose to himself after tor counsel effec right to understand district court urgings pleas ple arraign right. At the tively waived trial, day retain counsel. On charges ment, was notified coun Weninger stated that he would retain penalties potential against him and of sel, 120-day needed a continuance but he at 6. He Arraignment Tr. R. involved. request trial court denied do so. The subsequent petition a asserted in then Weninger day, The next as unreasonable. accept any court-appointed will not “that he counsel. engaged that he had told the court any attempt by the objects to attorney and reasons, lawyer was nev For unknown I, Tab right.” R.Vol. to violate that rep Weninger to continued er retained and addition, least ten submitted at In6. Willie that Wen- This court found resent himself. court, includ- petitions to the pretrial pro se hiring lawyer a intention of inger “had no deny to pleadings, a motion ing amended his views agreed with lawyer unless the reciprocal request government’s at Id. invalidity of laws.” about Abatement, two discovery, a Petition 166. Dismiss, jury sets and two of Motions to that, a whole indicates as The record jury completion Before instructions. Weninger “aware was made although trial, to judge urged Willie selection disadvantages of self- dangers and given the standby counsel his consult with chose to strategically he litigation representation,” and com- pro se difficulties of encourage you as to make something, you I would Let me tell But THE COURT: can, Willie, your you and do that Ms. Storch Willie. I know it’s Mr. Mr. much use it, represent yourself. just We have a lot of that right shy to and I recommend about not might much not make too rules in Court that okay? you, to way system people, but it’s the sense to go ahead I did ask her to MR. WILLIE: works. paperwork. help with table sit at the intruding your ability to not on And I’m Okay. COURT: THE your right, yourself, but I represent that is that— But other than WILLIE: MR. you use of encourage to make as much would Well, fine. COURT: THE highly you is a can. Ms. Storch Ms. Storch as go there. —we’ll WILLIE: MR. competent lawyer. anything occurs—and And if COURT: THE However, help you permitted to she’s you decide that proceedings, throughout the if help. you if she ask her for Because unless partic- you use her active maybe want to ap- possible help, on then it’s volunteers peal encourage And surely that. I would ipation, before, might I said —as you if Storch you consult with Ms. can now volunteering lawyer the de- assistance without do so. wish to it, depriva- seeking can be a that that fendant right self-representation. your to tion of 1390 Cir.1982) However, (defendant’s delaying tactics of after the pro se.

appear refusing competent patriotic unreasonably his counsel uphold protest to refused counsel), tax, cert. Weninger federal income could constitute waiver against denied, 1216, 1218, appeal 459 U.S. S.Ct. counsel to contend on retained (1983); also Richardson v. his trial was constitu- L.Ed.2d see the conduct of Cir.1984) 753, Lucas, We refuse tionally impermissible. (numerous pro motions submitted se indi game played to be type of permit this familiarity with the cated defendant’s Wening- hold that the courts. We Israel, 32, system); to hire an attor- Wilks er’s stubborn failure Cir.1980) (defendant’s unequivocal re knowing and intelli- ney constituted honored), quest proceed pro se must be assistance right gent waiver denied, 449 U.S. S.Ct. cert. counsel. 66 L.Ed.2d 811 added) (citations omit- (emphasis Id. at ted).5 argues that v. Al- United States (10th Cir.1990), len, a recent 895 F.2d 1577 repeated unequivo Similarly, Willie’s case, his situation. tax evasion controls self-represen right cal assertions of in Allen that the trial This court held tation, refusal to stubborn his continuous searching pre- failure to conduct a court’s admittedly competent accept the services of to ensure inquiry trial of the defendant counsel, pro his numerous se and available knowingly of counsel was that his waiver expression that he and his clear petitions defen- intelligently made denied the attorney an who could work with However, right unlike dant his to counsel. taxation, Tr. at shared views Willie, did not un- the defendant Allen implied waiver of his constitute a valid right self-repre- equivocally assert his United States v. right to counsel. See Rather, he stated that sentation. (4th Cir.) (refusal 105, 109 Gallop, 838 F.2d counsel and the trial court wished obtain appointed counsel proceed with able his failure to erroneously determined that waiver), voluntary good is a without cause attorney by the commencement of retain an right to voluntary was a waiver of his trial (1988); 101 L.Ed.2d 895 actively attempt to counsel. Allen did not (7th Cir.1987) Sarsoun, represent as Willie has done. himself (failure cooperate implied court with Rather, only proa motion he submitted se counsel); right to United States waiver of him an permit continuance to to retain for a 1247, (6th Cir.) Grosshans, F.2d 1251 v. 821 put on a defense or attorney and refused to (defendant right knowingly waived to coun addition, in at trial. even participate to obtain an attor sel where she refused case, recognized that this court ney, represent herself and intended right cannot use his to counsel disadvantages where she was aware play game with the “to a ‘cat and mouse’ by numer self-representation as evidenced court, stratagem fraudulently byor ruse or se), denied, pro filed cert. 484 ous motions placed in a judge seek to have the trial 506, 987, 98 L.Ed.2d 505 108 S.Ct. U.S. where, along the busi- position moving in 214, (1987); Kelly, 808 F.2d v. Johnstone appears court, to be ness (2d Cir.1986) (persistent requests 216 of coun- the defendant arbitrarily depriving knowing, voluntary represent self was Allen, v. 895 F.2d at sel.” United States counsel); unequivocal right waiver of McMann, States v. (quoting United 1578 Moore, (5th F.2d United States v. 706 538 Cir.1967)). 611, (2d 618-19 Such F.2d Cir.) (persistent, unreasonable demand for case here. is the appointment of new counsel is functional defendant], by appears his It equivalent knowing voluntary waiv [the actions, 859, intentional counsel), own deliberate and denied, er of cert. 464 U.S. error in these 183, to insert built-in (1983); seeks 104 S.Ct. 78 L.Ed.2d 163 Unit postpone final (10th proceedings, so as to a Gipson, ed v. 693 F.2d 109 States course, appointed lawyer, for him. counsel will be afford a 5. Of if the defendant cannot comply government’s position. Tr. at A his failure to 268-69. inquiry into country right ... defendant does not a of this have to counsel tax laws [H]e political other tax shares following the scenario used who his beliefs or who will appointed discharging blindly interpret coun in the law as he would protestors like. case, accept ap declining Grosshans, this v. sel United States 821 F.2d at [in contending 1251; and then un pointed Padilla, United States v. 819 F.2d at counsel] 956; of counsel. See United knowing waiver Weninger, United States v. 624 F.2d (9th F.2d 1307 Gillings, 568 v. finishing at 166. The choice between 919, Cir.), denied, S.Ct. admittedly competent cert. trial with counsel or proceeding pro deny did not se defen- right dant his to counsel. v. United States Romero, v. Padilla, 955; 819 F.2d at United States v. Cir.1981). Grosshans, at 1251. some limit to the defen- must be “[TJhere manipulate judicial sys- ability to dant’s Gallop, 838 F.2d

tem.” United States III. though the district even comprehensive make a court failed to EXCLUSION OF EXHIBITS knowing- inquiry into the probing formal Willie next contends that the trial court waiver, intelligence of Goddard’s ness prohibiting in introducing erred him from whole, as a looking at the circumstances to show the his exhibits basis for belief record are sufficient this the facts on the required that he was not to file tax returns. intelligently, that Willie case to establish argues that the exhibits were rele- voluntarily right knowingly and waived sincerity good faith vant show the to counsel. he need not file a tax return and belief that argument also Willie’s second that, thereby were relevant to his defense court fails. He contends that trial belief, willfully because of that he did not replace denying request erred argues He violate the tax laws. further inquiring ment counsel without into the — U.S.-, Cheek United thereby fail reasons for his dissatisfaction (1991), 112 L.Ed.2d re- S.Ct. exercising ing ensure that he was not a quires the of the exhibits for admission incompetent choice between counsel and purpose. Appellant’s Brief at 20 appearing pro se. Silkwood, question include the Con- (citing The exhibits United States v. — Cir.1989), stitution, Congress History dated U.S. laws, -, Navajo Treaty, pages 110 L.Ed.2d 274 of the session (1990); Coinage Act of and letters from Mondragon, 858 F.2d the Sanchez (10th Cir.1988)). Departments of Jus- he has the defendant to the 1462 Since waived counsel, Treasury setting and the forth Willie’s right his he cannot now assert tice apply do not replacing court erred in not contentions that the tax laws that the trial All irrelevant and attorney assistance he has to him. were denied as the whose go jury. the We assuming improper But that Willie documents waived. even decision to exclude counsel, properly denied affirm the trial court’s had the trial court because, his due to inade- request replacement without in the documents for has failed to quate proof, Willie quiry. inquiry is not essential offer of “[FJormal appeal and the preserve issue for stated his the ‘where defendant otherwise plain constitute error. ruling did not reasons for on the record.” court’s dissatisfaction’ alternative, district we affirm the at 1466 In Mondragon, 858 F.2d Sanchez unduly were Padilla, the documents (quoting 819 F.2d court because United States v. jury. In the further alter- 1). confusing to the n. the record at 956 stated on native, because that, compe affirm the conviction question he did not we while excluding evidence was counsel, tency ability of his she was error or beyond a doubt. unacceptable harmless reasonable because she “stated ...,” correctly things the trial as terous For Coleman v. Commis- Revenue, 68, sess the of the submitted evidence value sioner Internal 791 F.2d properly and for us to then review Cir.1986), belief their tax-free ruling, exclusionary proffering court’s status, held, no matter sincerely how is not that “the party must ensure substance of necessarily a government’s defense to the made the evidence known to the [was] Rather, only claim willfulness. a belief apparent by court offer or from the [was] possessing those characteristics that coun- context_” 103(a)(2). Fed.R.Evid. In ad ter the elements of willfulness is a valid dition, he must known court “make[ ] and relevant defense. party’s objection ... to the action of “Willfulness” is defined as the “volun- grounds the court and the therefor....” tary, intentional legal violation of a known added); (emphasis Fed.R.Crim.P. 51 see duty.” Cheek v. United Quinones Pennsylvania General Ins. (emphasis added). at 610 To be a relevant Co., 1167, (10th Cir.1986); 804 F.2d willfulness, then, Willie, defense to because Martinez, United 776 F.2d belief or misunderstanding, of his must not (10th Cir.1985); see also United legal duty. have known he had a Id. at 611 Hugh Chevrolet-Toyo States v. Chalmers (defendant “ignorant must be duty”). ta, Inc., Cir.1986); 800 F.2d Thus, descriptive—he his belief must Peters, United States v. (1st Cir.1984); must believe the apply law does not to him. United States v. Jack son, (5th Cir.), A normative cert. de belief the law should not nied, 78 apply U.S. S.Ct. to him fully leaves Willie aware of (1983).6 In the case of docu legal obligations simply amounts to exhibits, here, mentary evidence and disagreement legal duty with his known presented substance of the evidence was and a “studied conclusion ... law [the the court for our and is available review. invalid and unenforceable.” Id. at 612- is] question The we must now address is Cheek, Supreme Court stated purpose whether the for which the evidence that “a defendant’s views about the validi- offered was either clear from the con ty constitutionality] of the tax statutes [or sufficiently explained by text If or Willie. are irrelevant to the issue of willfulness so, ruling the trial court’s under we review by jury.... need not be heard [and] not, the abuse of discretion standard. If makes no difference whether the claims [I]t preserved then the issue has not been invalidity are frivolous or have sub- appeal may plain and we reverse stance.” Id. at 613. a defendant’s 103(a)(2),(d). error. Fed.R.Evid. good faith belief that he has no obli- gation showing to file and evidence problem type with the of mate reasonableness of that state of mind is rial offered Willie is that it can have But, proof relevant. of the reasonableness proper improper purpose both a and an of a duty belief he should not have a insofar as it is intended to offer- show the only proves the reasonableness of the de- or’s belief that he need not file income disagreement existing fendant’s returns. “Belief” is a mischievous and is, therefore, tricky concept properly in this context. It is not law and excluded as single-faceted idea, is better but defined as irrelevant.

having descriptive both a normative and apparent is that it is a delicate

side. A normative belief is how Willie It task to differentiate interpreted wants the law to be and ardent between a belief that ly interpreted. believes it should be the law should be different and a belief How descrip difficulty the law believes the law is constitutes a that is different. The of protestors] discerning tive belief. while the often subtle distinctions is “[tax great [many] prepos- believe magnified by with fervor the fact that much the of proof Corp., 6. For a discussion of offers of in civil Marine Div. of Brunswick cases, Airlines, see Polys (5th Cir.1986). v. Trans-Colorado (10th Cir.1991); F.2d 1404 Mercury Reese v. high years school years, those So prove both can be used evidence same that, file, I did year a after and about “be- the word and because of belief

types wrong I in I if was describing was afraid because loosely in is used lief” itself school, I result, establishing that —when went dichotomy. As a sides of the both it, that Indians are not I had—I read the evidence for which precise purpose taxed. trial to the crucial becomes is offered establish, admissibility, par- firmly no Now I have of determination court’s anything I [sic], right I’m do nature where that before of this ticularly cases here, I’m put me like where supporting that would of evidence admission careless right now. of belief types and irrelevant both relevant issue the relevant easily obfuscate could speculate that jury to tempt the I Dqtfs just that went research for support documentary of existence mere I through, me kind of make believe inde- negates his position defendant’s I’m not one required am not one to file. a he has knowledge that pendent that’s under the laws. Co., 548 Beech duty. Rigby v. Aircraft Cf. going I started into Okay, so when all Cir.1977) (proof 288, 292-93 that, I like paperwork and stuff design main tanks showing defective laws, what’s stated found out these re- confuse mislead or easily could books, you just cannot on the are not— in auxilia- defect issue garding relevant They by their face. have to take them therefore, must, tank). The defendant ry out, legis- find what did the go back that the judge show the trial

persuasively intention, lature, their how—what was permissible a being offered evidence they that law. why did make speci- proffer great by making a purpose it, guess I a lot they after make So seeks type of belief he regarding the ficity well, says, it say, this is what people can evi- that the A mere statement prove. original says, this is what it but sincerity of show is submitted to dence it, intent, I behind is what went what’s particular- enough. a is not Without belief after. likely judge will explanation the trial ized wrong I don’t want to be Because aspects of the impermissible on focus I for it. So day have to suffer some material, unaware of and will be proffered well, way all the back went back into— purpose limited available possible they first started— the 1500’s when into places the trial offering party. This Well, and there’s Indians. discovered respect to a predicament with in an unfair there, I don’t have them but documents ruling. me. not Willie did record shows that I went to the anyway, from those And im- from an clearly proper differentiate or the Federal Congressional records proposed evidence purpose for the proper they were the time during convention informed make an the court could up so that the constitution. trying to write Indeed, re- there, comments ruling. court’s was reference to Okay, and there lay groundwork being failure to being Willie’s taxed or veal Indians not ground. Congress, ruling only proper on house represented either during his his first exhibit true. offered or so—and was testimony as follows: here documents I have some So upon, that re- I came during my research I to be- ... come WILLIE:

MR. [H]ow establish, those convictions that reaffirm file. required I not one am lieve not taxed. an Indian my being I had school, high some [Wjhen I ... (referring to the for- well, A say, the con- Exhibit my teachers would [Willie’s States) excluded this, not mation of the United says these are stitution response to me the trial court irrelevant taxed, They sure. tell I was not but objection to all of prosecution’s earlier paying not might go jail to for you filing. Willie’s exhibits.] taxes or not your ing then that was—there was—I to review and pre So—and Willie has failed to bring up you, they I can’t to so guess his claim appeal. serve for Now, let me. on—at that —in that Martinez, won’t (“Unless F.2d at 1485-86 period they go when were—we to same the context in which evidence is offered wherein—from the same convention the makes clear the proffer, reason for the document, same what’s this doc- error assigned cannot be to the exclusion ument— (em of evidence without proof.”) an offer Willie, going THE I’m added); COURT: Mr. not phasis Polys see v. Trans-Colora permit you persist type to to in this Airlines, 1408; do 941 F.2d at Reese v. said, I Judge narrative. As I am the of Mercury Marine Corp., Div. Brunswick law, apparently you’re try- and what (5th Cir.1986) 793 F.2d (citing ing suggest trying jury to to tell or is Cory., White Motor Huff you going found some law that is (7th Cir.1979)); 290 n. Levy, Mills v. be different than I later what will an- (5th Cir.1976); Quinones F.2d 1331 cf nounce to them. Pennsylvania Co., General Ins. you go testify any

So on and (court about at 1170 unable to find abuse of dis wish, you you’re going matter not but Therefore, proffer). cretion without we testify you be able found some may only plain reverse if find we error. support your posi- sort of document to reviewing plain error, In for we tion. comply note that the “failure to with nor anything, any MR. WILLIE: This is—so requirements mal proof of offers of is like pertaining discussions to the constitution ly produce simply record which does I can’t use? not disclose the error.” Fed.R.Evid. 103 right. THE COURT: That’s advisory committee partic note. This case Okay, MR. WILLIE: what about the ac- ularly highlights Here, that fact. where tual laws itself? evidence is purpose admissible for one but THE I jury COURT: will instruct the on another, inadmissible for absent a suffi applies the law that in this case. showing precise cient foundation per Well, just bring MR. can I WILLIE: out purpose egre missible for the evidence or applies where it to me? gious presented by circumstances not this case, THE COURT: what fashion? wrong can do no in exclud ing the evidence. To hold Well, otherwise would making MR. WILLIE: me what place an undue am, burden on the court to seek I an Indian not taxed. after purpose of the evidence or to THE I COURT: will instruct the imagine some purpose admissible for it applicable any all the law issue in this regard mind, without to the actual state of go go case. You ahead and on and testi- motives, purposes proponent. fy you as to whatever wish. Since such circumstances do not create er Then, upon R.Vol. Ill at 261-265. formal ror, they likely are even plain less to create presentation the remainder of his exhib- error. It is difficult to envision manifest court, that, its Willie stated injustice clearly improper purpose where a understanding “This is my myself anas proffered evidence is not ruled out and Indian not R.Vol. Ill at 271. taxed.” showing a foundation proper purpose As the excerpts foregoing from the Thus, plain laid. we do not find error. indicate, record clarify did not Willie argues whether his v. United prove exhibits Cheek went — -, understanding U.S. the law as it should be or (1991), as he actually perceives Certainly, requires admission it to be. arguably relating context within which evidence Willie submitted objective reasonability Appel- exhibits did not of his belief. clearly establish which belief Willie asserted. Supplemental Brief at 5. We dis- there is no lant’s ruling alleged directed at the Supreme Court purpose agree. While acknowl- Accordingly, evidence. we edged have no rul- that the reasonableness of the defen- an even if Willie had submitted jury’s deter- on the may bear belief dant’s proffer judge regarding to adequate the admissi- sincerity, the issue of of mination relevance of his belief and the evidence the it. The not before was bility of evidence belief, may have the for that shown basis jury should only that the held Court the admission of the exhibits would not be the defendant’s to determine instructed Cheek, required Rather under Cheek. of the lawfulness subjective beliefs to reinforcing subjective while circuit’s this must actions, judge not that trial the his willfulness, determining standard in did not related any all evidence admit abrogate existing regarding the other law those beliefs.7 of basis admissibility documentary evidence nor of essen- make the dissent both Willie and traditional dis- did it alter the trial court’s since, under argument tially a fairness ruling admissibili- cretionary role in on the present” to is “free Cheek, government the ty of that evidence. See provi- and Code of court decisions evidence (10th Cir.1987) Hairston, 819 F.2d of unreasonableness “to establish the sions (direct publi- testimony regarding effect of beliefs, ... the asserted the defendant’s understanding on defendant’s cations to introduce should be able [sim- probative filing requirements more tax law objective support the ... evidence ilar] court publications than themselves beliefs_” Dis- reasonableness regarding properly exercised its discretion rely on the They senting Opinion, at 1402. evidence). Furthermore, form of Cheek language from Cheek: following require the admission of clearly did not to consider jury the would be free compliance procedural evidence absent showing that evidence.... admissible requiring proof an sufficient rules offer to file a duty his aware Cheek was purpose. its inform the trial showing ..., including evidence return inadequate holding Although our on provisions relevant his awareness of hold al- grounds dispositive, we proffer court deci- regulations, code or properly were ternatively that the exhibits interpretation of his rejecting sions 403 because under excluded Fed.R.Evid. rulings of the law, of authoritative danger of confusing, they were because Service, any con- or of Revenue Internal for an evidence jury’s misuse of the tax return personal income tents of the great, and because improper purpose was instructions accompanying forms and by other point provable the relevant was wages should be plain that made it advisory Fed.R.Evid. evidence. See returned as income. relationship ex- (“A note close committee 111 S.Ct. at v. United Cheek Rule 403 which this rule and ists between however, added). excerpt, (emphasis This certain requires exclusion cases].... [in present government does not allow ... re- rule wording present of the decisions, or statutes regulations limiting cura- or implication the court pelfs] any their testimony regarding in all situa- or themselves instructions are sufficient tive added); 403. tions.”) indicates that Fed.R.Evid. (emphasis Rather it contents. court balanced Indeed, otherwise “ad- appears that jury properly could consider poten- against its was evidence the defendant value missible evidence” that detract tendency to and, there- confusion tial for “aware” of those documents proceedings.8 See dignity of the fore, file. duty to “aware” of his that, regardless rele- of their Treasury regard our determination With to his letters vance, officials, Harrold harmless. argues exclusion was that Unit their Justice Willie further Harrold, defendant to from the Cir. hold that letters did not congressmen ed States v. interpretations of regarding 1986), necessarily (1987), relevant and admis- required admission tax laws are their However, recog this court into evidence. while sible. correspon in Harrold that the defendant’s nized defendant, in that the district court noted congressmen regarding 8. The with senators and dence exhibits, "ap- testimony regarding the may of income have been relevant the definition suggest trying tell trying or willfulness, parently ... we did not determine the issue of law that is Rather, found some holding [he had] ... was based that issue. our 1396 Daly, 756 F.2d 1076,

United Kraeger, States States v. 6, (2d 1083 711 F.2d 7-8 Cir. (5th Cir.) (affirmed 1983) (excluded district court’s exclu decisions)); federal court Harrold, testimony be United States v. expert sion of as irrelevant 1275, 796 F.2d sufficiently (10th Cir.1986) (excluded cause court had balanced its 1285 Supreme denied, 403), denied, cert. cert. opinions), value under Rule 474 Court 479 U.S. 574, 575, 1022, 1037, 892, 88 U.S. 106 S.Ct. L.Ed.2d (1987); 107 S.Ct. 93 L.Ed.2d 844 Therefore, (1985). thorough Mueller, 558 after re United States v. 539, 778 F.2d 540 record, (9th to the Cir.1985) (excluded view of the we defer court’s Supreme Court legal implicit doc Specht Jensen, see also opinions); determination 853 inappropriately argue 805, (10th uments the law and Cir.1988) (“In F.2d 810 in no mockery tended to “make a court stance can a permitted be th[e] witness to define room,” affirm, alternative, in the case.”) (en banc), the law of the cert. de nied, grounds.9 1008, those 792, 488 U.S. 109 S.Ct. 102 L.Ed.2d 783 singular law is the given jury by is law “[T]he province judge. Juries decide court and not introduced as evidence.... facts, they to which apply given the law Obviously, confusing most would be to a them See United States v. judge. jury legal to have material introduced as Daly, 756 (“judge F.2d at 1083 jury’s is the argued evidence and then as to what the 10 sole source of regarding information Cooley v. United ought law is or to be.” law”). They may not decide what the law States, 1249, (9th 501 F.2d 1253-54 Cir. given and should not be the opportunity 1974) (excluded portions Congressional to do so. See Johnson Oper v. Colt Ind. Record, Training Supreme IRS Manual and ating Corp., 1530, (10th 797 F.2d 1534 Cir. (cited opinions) approval Court with 1986) (high potential jury will be con Harrold, United 1275, States v. 796 F.2d fused as proper weight give legal denied, (10th Cir.1986), cert. 1285 479 U.S. might evidence and assume law 1037, 892, (1987)), 107 S.Ct. 93 L.Ed.2d 844 presented is weight entitled to as much as denied, 1123, cert. 809, 419 U.S. 95 42 S.Ct. the trial court’s instructions since both (1975); see United States v. L.Ed.2d 824 courts). emanate from Mann, 532, (10th Cir.1989) F.2d 884 538 (cases excluded because defendant’s views The introduction of the Constitution or source); United probative more than their evidence, other historical documents as al- Hairston, States v. 971, (10th 819 F.2d though facially attractive, 973 argues the law Cir.1987) (citing United approval, forcefully confusing and is as jury to a going judge to be different than what Cooley jury regarding [the instructed the the defen later announce to them.” "good R.Vol. Ill upon interpreta would] [ ] dant's faith reliance 264; Furthermore, at see id. at 265. Cooley discuss- tion of the law.” v. United documents, ing Furthermore, the defendant’s noted F.2d at Cooley 1254. was re although everything he would "allow within affirmed in a number of later cases. United power permit put 1027, [his] on a de- Bergman, [Willie] States v. Cir.), F.2d 1029-30 fense,” going he was "not denied, 852, to have make 154, [Willie] cert. 108 S.Ct. mockery system.” of this courtroom or of this (1987); Malquist, United States v. Id. at (9th Cir.), (1986); U.S. 93 L.Ed.2d 394 Mueller, United States v. 778 F.2d may 9. We affirm the decision of a lower court Cir.1985); Kraeger, United States v. record, grounds supported by on other even (2d Cir.1983). 7-8 upon by if not relied the district court. Griess v. Colorado, (10th Cir.1988). Moreover, the claim here is that the excluded sincerity documents on the bear of Willie’s sub- attempts distinguish 10. The Cooley jective they dissent beliefs because demonstrate the ob- by arguing United jective that it reasonability was decided at a of those beliefs. un- rationale, proof time subjective when of the defendant’s der this admission of such doc- intent "[t]hus, required to violate equal, greater, the law was not uments would have been of if not important it was much importance standard, objective less in th[at] in cases decided under an case[ ] that the consider documents where the reasonableness of the de- upon purported which the directly question to base his fendant’s belief answered the subjective ion, willfulness, opinion Dissenting Opin- of the law.” of subjective than in cases decided under the However, employed today. 1402-03. the trial court in standard obviously as more interpretive argu- may confusion compounded by different writings seminars, mentative books given instructions by the court.” Id. vacuum, and cases.11 When viewed in a We acknowledge that this is a difficult the Constitution and other historical doc- issue because of the line-drawing it re- merely uments set forth principles of broad quires. However, it does not become less governance in law its form. raw —the so under the theory of the dissent. While However, “[m]any words the Constitu- [in the dissent argues that this evidence acquire meaning through judicial and tion] admitted, should be it does provide any not administrative construction over the meaningful direction in drawing the line years_” Coleman v. Commissioner of further slippery down the Thus, slope. if a Revenue, Internal 791 F.2d at 71.12 Pre- defendant, under the weight accumulated sentation of language the historical of presented material at a two-week semi- these documents the of a context trial nar, comes to believe that he has duty no to and support as for the defendant’s beliefs file, where would the dissent have us draw fails adequately to account for this evolu- a line as to that seminar material? Would law, tion and argue, tends instead to as the we admit the days first three of mate- interpretation defendant’s own of the his- rial? Twenty-five percent of all written torical documents. Willie’s letters to material? All of argumentative the inter- government officials more expressly set pretations of speakers? The states, dissent argued forth and his version of the law as “To the extent that could [the documents] formed from reading these documents and (albeit be interpreted erroneously) sup- as may be equally confusing to the jury. See port for views, it [the seems to defendant’s] Johnson v. Operating Corp. Colt Ind. 797 me they tend to corroborate the sincer- (a F.2d at 1534 finding that evidence is ity beliefs,” of his Dissenting Opinion, at relevant “does validate the form in 1401, indicating that any evidence that which admitted”). that evidence was goes to show the basis of the defendant’s Furthermore, the legal admission of beliefs, evi- “dubious,” however should be ad- by dence one party opens the to mitted, door refut- id. at 1402. Under theory, ing by evidence Thus, the other. upon would not the entire two-week seminar be admission of the documents to the Yet, show admissible? it is difficult believe belief, reasonableness of Willie’s that even the dissent would countenance government would then seek to introduce placing an entire “education” seminar contradictory law case and historical doc- jury. before the The attempts dissent prove uments to the unreasonableness and draw a distinction between “argumentative insincerity of the defendant’s legal belief.13 See tracts” and official, “documents with Specht Jensen, v. historic, at 809. “The precedential or status.” Id. at potential great jurors will be con- However, 1388 n. 2. the line between the fused differing these opinions, and that two is appears since, not as clear as it first denied, 11.The dissent makes much of the fact that 479 U.S. 107 S.Ct. 93 L.Ed.2d many of the exhibits submitted were historical legal However, or official documents. that fact instance, prosecution cry- in a does not them render immune to exclusion for ing theatre, fire in a crowded the defendant’s relevancy. Harrold, See United States v. attempt to introduce the First Amendment into (citing F.2d at approval, Cooley with improper. evidence would be (court United 501 F.2d at 1253-54 did not abuse its Record, excluding Congressional discretion in 13. argument, dissent's evenhandedness we Training IRS Supreme Manual and assume, applies ways. both opinions)); Court Bergman, United States (9th Cir.) (excluded 14. To 1029-30 support Constitu proposition, its dissent cites tion, Independence, Declaration Internal Rev Fingado, United 934 F.2d 1163 IRS), enue against However, Code and Cir.1991). cases cert. Fingado not seem to does clarify since, L.Ed.2d proposed by the line the dissent (1987); case, United Malquist, States v. packet the district court admitted (9th Cir.) (excluded Constitution, Declara testimony seminar but material excluded re- Independence tion cases), and garding federal a civil case. and that sufficient proof was offer of official above, historical or as discussed excluding his discretion the trial abused jury in submitted documents error, harmless. evidence, any, if was confus- argumentative are as context to submit opportunity Furthermore, ample under had legal briefs. as ing theory faith good of his materi- substance the seminar argument, dissent’s prove unaware probative relevant as would als testify free to He was duty to file. Consti- mind state defendant’s of doc- IRS types communications about his certain To exclude tution. subjective agencies,15his sincerity of belief government other as irrelevant uments understanding of purpose his regard in to the same beliefs admit others but worst, and, the at his research into law, extent of best, inconsistent the seems, the at done, investigation line-drawing has be of his to and the effect laws Since unfair. off, in be difficult, judge should cut was not the trial his He on beliefs. although closing designated here. testimony or his line the direct either his allowed draw between his arguing pursuing distinction or from principled argument,16 no seeWe and other this case obli- personal to his offered as perceptions evidence true the to show submitted may be tax laws. See United that under the gations evidence (defen- his belief. Harrold, at 1284 basis the defendant’s and his beliefs about detail dant testified is, of exhibits end, admission the the how he stud- obligations, of his awareness judgment discretionary be, a and should looked Su- that he at years ied for and of evi- the rules judge as by the trial call decisions, the con- not about preme Court the if even some provide. dence documents); Cooley v. United the tents of relevant, would we were here documents (defendant allowed F.2d at be- court’s exclusion district affirm and with IRS testify conversations about unduly confus- documents were cause law). That understanding about his 403. Fed.R.Evid. ing. See upon his to embellish unable Willie was to the extent his arguments present or case further alternative as a Finally, prejudicial not desired is in the form he and Willie’s to find that we holding, were even exchange with letters, testimony direct admissibility Willie’s arguing for 15. In closing argu- quoted above. His government since the points out that the dissent showing insincerity by as follows: sought prove Willie’s ment is filing, the treatment prior inconsistent his MR. WILLIE: ... should, conversely, es allowed to be defendant researching, re- and all that I started So showing by consistent sincerity his tablish evidence, now into so been denied has search misunderstanding to of assertion written testimony I just that the small have is all I Dissenting Opinion, agencies. government nothing in the records gave you, Iso have 1401-02. just on that testimo- present you, but based that the from clear that it is far first We note not saying am an Indian ny gave you, that I I filing of- prior was evidence of government’s taxed, right. is a as what insincerity of rather belief Willie’s fered to show up something or just I dreamed not It's duty apparent awareness show his than to it, through went behind I anything. I went file, firmly that held conviction despite his were, and intent of those documents what the sinceri- to show even if offered not. But should people that was that the it showed me what opportunity to establish adequate ty, Willie had overseas, they to abide intended came professed consistently with his acted that he had established, my they principle cross-examining government wit- belief my without property not to taken them his conversations about nesses consent, period. regarding his conversations testifying himself why in those says. So that's That’s what trial IRS. The correspondence with words, not you'll Indians see the statutes the letters required to admit court was not themselves, status, fit, Now, my I that’s where taxed. particularly essence when you. have to show all I that’s presented to been correspondence could have that, right have a think I do I And based See through evidence. jury testimonial beyond prove they acquittal, did so not to an Hairston, That F.2d at 973. required to one I am doubt that reasonable effectively the oth- utilized may have not Willie file. to him does proof available er methods of at 296-97. R.Vol. Ill erroneous. decision court’s render trial where, here, prevented he was not from is also a Native However, American. Wil- presenting the substance of his defense to pointed lie has nothing record, in the jury. other removal, than White’s from which to

infer government’s that the use of per- its emptory challenge was racially IV. motivated. The mere fact the prosecution re- PEREMPTORY CHALLENGE moved one of two Native American venire- DISQUALIFYING NATIVE persons does not prima establish a facie AMERICAN JUROR case of race discrimination. United States Lewis, argues prosecutor that the improp Cir.1989). erly exercised one peremptory of its chal In making prima out a case, facie “the lenges to disqualify one of two Native point must to more than the Americans on the in violation of Bat bare fact of the removal certain veni- v. Kentucky, son repersons and the absence of an obvious 90 L.Ed.2d 69 He claims that valid for reason the removal.... prima he established a facie case of racial defendant identify must facts and cir- discrimination prosecution and that the in support cumstances that the inference of adequately explained its reasons dis discrimination, such pattern as a of dis- qualification. disagree. We criminatory strikes, prosecutor’s the Kentucky, Batson v. during statements voir dire suggesting 79, 106 1712, (1986), S.Ct. 90 L.Ed.2d 69 the discriminatory purpose, or the fact that Supreme prohibited government Court the persons white were chosen for petit the using from peremptory its challenges to jury who seemed to have the same quali- remove of the members venire based on ties as black venirepersons.” stricken prevail Batson, race. To under the defen Allison, United 1531, v. States F.2d 908 dant must prima establish a facie case of (11th Cir.) 1538 (quoting United States v. purposeful by discrimination showing: Young-Bey, 178, (8th 893 F.2d 179 Cir. first, that he a cognizable is member of a 1990)),reh’g denied, (1990)(en 920 F.2d 13 group; second, racial prosecutor that the banc); see Dawn, also United v. has exercised States 897 peremptory challenges to re 1444, (8th Cir.) (defendant F.2d race; move venire 1448 members of his obli third, gated that record, “these facts and to develop beyond other rele mere num vant circumstances raise an bers, inference support alleged violation), reh’g prosecutor used peremptory chal denied, [his (8th Cir.), 897 1444 F.2d - lenges] to exclude veniremen from the -, 389, 111 U.S. 112 S.Ct. petit jury on account their race.”17 Id. (1990). presented Willie has 96-97, at 106 at 1723. Only S.Ct. after the no Indeed, such facts. the fact that the defendant prima has established a facie prosecution only exercised four its six case does the prosecu shift to burden peremptory challenges undercuts an infer tion make a “clear reasonably spe ence of govern discrimination since explanation cific” challenging mi ment, chosen, if it had could have excluded nority juror. Id. Tom Nez the jury from as well. United Moore, 484, (8th States v. 486 n. 5 Willie, American, as a Native is a Cir.1990); Allison, United States v. recognizable member of a 908 group, racial Bedonie, at 782, prosecution United States v. F.2d 1537. And the volun (10th Cir.1990), White, tarily 795 and Grace stated sought that the reason potential juror prosecution, removed jury remove from White was on ac- rely “[T]he 17. 96, entitled Batson, on the nate.’" United States v. 476 U.S. at peremptory fact ... challenges constitute (quoting 106 S.Ct. Georgia, at Avery 1723 v. 345 permits 559, 562, practice 891, 892, selection ‘those to U.S. 73 S.Ct. 97 L.Ed. 1244 discriminate (1953)). who are of a mind discrimi- 1400 Constitution quote from United Tr. her race.18 occupation, not of her count However, he taxed.” stating, “Indians not solely It relates phrase. this misinterprets prima established has not Willie Since not restrict and does to state taxation violation, we need a Batson

facie case ability levy income government’s federal govern- of the adequacy not address States, 792 F.2d v. United tax. Dillon per- use of its for its explanation ment’s Cir.1986)(citing Squire v. 849, n. 1 challenge. emptory 611, 1, 76 S.Ct. Capoeman, 351 U.S. denied, 480 U.S. (1956)), cert. L.Ed. V. 1565, 94 L.Ed.2d 757 CHARGED OFFENSE OF NOTICE that “Indians long been established It has ordinary affairs citizens and that supplemental, are in his claims or remedial life, governed by treaties sufficiently not brief, he was pro se payment subject to the legislation, they are offense. of the elements informed citizens.” are other taxes as need of income information An disagree. We 1, 6, 76 U.S. Capoeman, 351 Squire of elements facts and plead those (1956); see 611, 615, 100 L.Ed. de inform the S.Ct. charged sufficient fense Commissioner, F.2d Hoptowit him to en against charges fendant of Cir.1983). exempt, the “To to safe a defense prepare able him ‘directly’ been derived must have Ham income jeopardy. guard him double [tax-exempt] land.” Saunooke from the States, 418 U.S. ling v. United 1053, 1056 reh’g de United 41 L.Ed.2d S.Ct. Capoeman, (D.C.Cir.1986); Squire v. see 42 L.Ed.2d nied, 95 S.Ct. 419 U.S. 616; Hoptowit v. at Bedonie, at 76 S.Ct. 913 351 U.S. (1974); United States 564; Commissioner, F.2d United Cir.1990). does Willie 782, 790 F.2d Cir.1980), Anderson, F.2d 910 unduly surprised or States argue that he was not 101 S.Ct. 450 U.S. rt. deficiency of by alleged prejudiced ce 1367, income The disagrees just he Apparently, information. ques in years during the by Willie earned definition government’s with the employment in way of by defi tion earned was “required.” and “income” terms and Reservation from the Indian places are far of art” “legal of these nitions term[s] from Indian way meaning to not derived legal sufficiently definite in this claimed Nor has Willie trust lands. charge to the defendant. give notice subject to Thus, income is exemption. Hamling v. United See by fed may prosecuted and he be Since informa taxation at 2908. standards, eral courts. Willie’s complied with tion its meaning of disagreement with

mere remain- carefully reviewed the haveWe it defective. not render terms does by brought pro se Willie ing claims sup- and without frivolous reject them as VI. record. port in the reasons, AF- we foregoing NATIVE on OVER Based JURISDICTION FIRM. AMERICANS contend, to seems Willie also dissenting: Judge, EBEL, Circuit courts do not have se, the federal

pro join the respects other I Although all Native Americans prosecute jurisdiction case, I must re- this opinion majority taxes. Willie pay income for failure majority’s con- dissent spectfully tax laws cannot federal income claims that III&emdash;EXCLUSIONOF in Section Americans, clusions relying apply Native prima case of facie has not established may explanation scrutiny not be sufficient this While Dawn, See United Willie established a discrimination. had withstand explanation, requiring an prima case at 1449 n. 5. facie support conclusion that to our lends additional My disagreement EXHIBITS. with the defendant cannot be convicted of willfully majority is not general so much with the failing to file a tax return under 26 U.S.C. legal principles which set are forth there 7203 except upon proof (1) § the de- with clarity admirable as it is fendant duty knew of his to file a return application law these facts. How- covering the in question income (2) he ever, because I believe the district court voluntarily and intentionally violated that in excluding erred many of the exhibits duty. Id. Ill S.Ct. at 611. The Court defendant, tendered by the I because stressed the subjective nature of the test further government believe that the has when it concluded: not established that error such was harm- [I]f asserted that truly [defendant] less, I would judgment reverse the below believed that the Internal Revenue Code and remand for a new trial. did not purport to wages income, treat as and the jury him, believed govern- The excluded copies consist of documents ment would not have carried its burden Constitution, laws, session legisla- prove willfulness, however unreason- history, tive treaties, and Indian as aswell able a court might deem such a belief. letters from defendant to the Treasury De- partment Department and the of Justice Id. apparently which pre-dated the criminal course, Of subjective rarely intent prosecution and in which the defendant set proved by direct Rather, evidence. it must forth his understanding of his tax obli- almost always be established indirect or gations. The documents seem to be direct- circumstantial evidence. in attempt ed 1) toward three paper themes: money is ing to discern the subjective defendant’s legal tender, 2) not private wages are not intent, a fact-finder will often required income, 3) taxable (such Indians (1) look to the following: the consistency defendant) However, are taxed. defen- of past defendant’s positions conduct and dant tendered the exhibits in support taken, (United Harrold, States v. argument that Indians are not taxed. 1275, 1284(10th Cir.1986)); (2) the research A, B, E, G, H, J, Exhibits and M are and information upon which the defendant documents apparently he reviewed and re- predicated has (United opinion, his States lied upon in reaching his conclusion as that Conforte, 869, v. (9th Cir.), 876 an Indian is subject he not to taxation.1 To denied, 1012, cert. 568, 449 U.S. 101 S.Ct. the extent particular that these documents (1980) (“reliance 66 L.Ed.2d 470 on advice (albeit could interpreted be erroneously) as of counsel tax evasion cases is not a support views, for his it seems to me that complete defense, only a but circumstance they tend to corroborate sincerity the of his indicating good which faith the of trier fact beliefs. The defendant’s three letters to is to allowed consider on the of issue will the Treasury Department and De- Justice fulness”)); (3) objective and the reasonable partment (Exhibits N, O, Q) and to tend (United ness of defendant’s beliefs States corroborate the sincerity of his be- beliefs Collins, 619, v. (10th 622 Cir. cause he upon relied argument the he 1990)) (quoting Mann, States v. United could not be taxed as an Indian his 532, (10th 884 Cir.1989)(“Al F.2d 537 n. 3 communications with the au- enforcement though not itself the standard which to thorities before the prosecution criminal good faith, evaluate the reasonableness of began. ever good-faith is a defense factor which the — States, Cheek U.S.-, v. United jury may properly consider in determining 604, 111 S.Ct. 112 (1990), L.Ed.2d 617 the whether a defendant’s asserted beliefs are Supreme United States held genuinely held.”)). Court that a appears C, 1. Exhibit K F, to to relate appear Cherokee hibits argument and I not to relate to his Indians, properly it was taxed, excluded are Indians and conse- grounds irrelevancy. of Exhibit L is an uniden- quently they properly were also excluded as document, tified properly and it was excluded irrelevant. for lack of identification and foundation. Ex- 1402 to instructions” accompanying forms and asserted case, government In this the de- of part the unreasonableness defendant’s on the establish consistency lack believing sincerity in as a basis asserted beliefs fendant’s his proof of lack Specifi- him. apply subjective to be- evaluating do not the defendant’s laws

the tax argued defen- government Cheek, 611-12. It there- cally, the 111 S.Ct. at liefs. filing of tax returns previous dant’s should the defendant clear that fore seems to dis- exemptions tended bogus numerous statutory to introduce evidence able be that he believed claim prove defendant’s history, and similar legislative provisions, The apply to him. laws did not the tax objective support to documents official me, equally should be corollary, it seems to as evidence beliefs reasonableness the defendant To the extent valid. sincerely held. It are beliefs that such taxing au- asserted previously has process comport with due hardly seems apply to do not tax laws that the thorities turning to allow and square-corner arguments same has advanced him and legal doc- such to introduce government prior public upon, that relying is now securing convic- it aids when uments is evidence of his belief profession of sim- defendant use deny tion but Thus, his point view. sincerity of that helpful might they when ilar documents Department and to the Justice three letters Collins, F.2d at the defense. See to be Department seem to me Treasury 622; Mann, F.2d at 537 n. evidence. relevant several cases advances government introduced evi- Similarly, government court does trial proposition that the for the previously advised that it dence had refusing admit its discretion in not abuse government obligations as the filing lay treatises, tracts, opinions of briefs again, the law. Once has construed the of law. United regarding matters ment me, there is that if corollary, it seems 522, F.2d Afflerbach, 547 States statutes, Constitution, legis- in the evidence denied, Cir.1976), 429 U.S. (10th cert. like, this of which history, or lative (1977); Coo 97 S.Ct. upon historically aware and defendant 1249, 1253- F.2d ley v. United in formulat- to have relied he claims which denied, Cir.1974), 419 U.S. (9th cert. views, also material would ing such 42 L.Ed.2d sincerity of defen- relevant seem Hairston, 819 exhib- Although many of the See also dant’s views. Cir.1987); United support of dubious F.2d its tendered are nexus, 1275, 1284 views, Harrold, I can see a defendant's allowed Cir.1986), have been should with that nexus Aside to opportunity establish 93 L.Ed.2d is not jury. proposition that that fact from the exclude of exhibits applicable to most Cheek, in noted Finally, as the Court of those cases d,2 my opinion, none in jury present to to government free was In proposition. absolute stand that of the Af provisions evidence of “relevant prevailing law Cooley, re- of court decisions regulations, Code or flerbach to require government did not the time of interpretations jecting defendant’s] [a subjective had a the defendant prove that of the law, rulings the tax authoritative Thus, it was to violate the intent law. Service, any con- or Internal Revenue that cases important in those much less return personal of the income tax tents legal briefs tract, may more than be little Only appears legal brief which L to 2. exhibit be jury, treatise, to a ordinarily be submitted and would affirm the or I exclusion would not historic, official, prece- grounds or of lack of that exhibit foundation. with documents statutes, "legal" provisions, documents are consti- The other as constitutional such status dential treaties, legislative history provisions, tutional Compare the statutes, legislative histories. legal documents of historic or offi- and similar received district court exhibits significance. draw a I would distinction cial Fingado, 934 rejected in United States those legal argumentative tracts and material between advocating Cir.1991). F.2d 1163 view, legal point particular upon documents which testimony explain consider the content of his re- purported subjec- search, to base his but the court cut him off from that Hairston, opinion tive of the law. In effort as well. The court stated: approved court the exclusion of the ten- Willie, Mr. I going permit am not dered documents extensive oral because you persist type in this of narrative. testimony about those documents suf- said, As I I law, am the of the Harrold, ficient. the Tenth Circuit ac- what apparently you’re trying sug- tually found that it was error to exclude gest, trying or jury, to tell the you is that previously letters the defendant had writ- found some going law that is to be dif- authorities, taxing ten to the it af- but ferent than Iwhat later will announce to ground firmed the conviction on the them. harmless error. you go So testify on and any about government Here I do not think the has wish, you matter you’re but going establishing carried its burden of testify be able to you found some excluding error these documents should sort of document support your posi- regarded Contrary as harmless error. tion. Hairston, to the situation this is not a reading The fair ruling court’s get case where the defendant was able to that the court going was not to allow the through testimony his own the substance engage defendant to in any per- discussions of all the excluded documents. The defen- taining to the Constitution or the actual dant began testify took the stand and legislative laws history upon or which he evolving about his belief that he is not relied. See R.Vol. Ill at 270-271. subject to tax he because is an Indian. He This is ruling, confirmed the court’s begun indicated by researching that he had thereafter, immediately that none of the early Congressional and Constitutional exhibits could be introduced they because records, point began and at that to turn were irrelevant. this case should be to his various tendered exhibits to show Mann, contrasted with Harrold and where what it was that he reviewed and to estab- testify the defendant was able to about lish how that research reaffirmed his be- substance of the excluded exhibits. attempted liefs.3 When he to introduce documents, government A prov- Exhibit as the first of those has the burden of rejected ing the court that Exhibit on the that error is harmless. United States ground relevancy. Rivera, The defendant then 1469 n. apparently attempted Cir.1990) to resort to (“Except possibly narrative for minor tech- statement, opening In his researching, defendant stated: So I started and all that research evidence, has been denied into so all I now years trying All these I’ve been to find out just testimony gave have is the small that I taxed], [whether Indians are I did not hide you saying ... that I am an Indian not from the Internal Revenue Service. I wrote just something taxed.... It’s not I dreamed them, appeared letters to I at their offices.... it, up anything. through or I went I went further, getting And because I wasn’t answers behind what the intent of those documents them, Department. I went to the Justice why were.... So that’s in those statutes Similarly, R.Vol. II at 40-41. on direct exami- words, you’ll see the "Indians not taxed.” presenting nation defendant set about "how I Now, fit, status, my that’s where I and that’s required came to believe that I am not one you. all I have to show Referring file.” R.Vol. Ill at 261. to the exhib- proposed jury R.Vol. Ill at 297. Defendant’s above, its cited stated: defendant instruction, court, rejected by which was So, during I have some documents here that also demonstrated defendant’s assertion of the re-establish, my upon, research I came good-faith defense: my reaffirm those convictions that I had on you You are instructed that if from all find being an Indian not taxed. good the evidence the defendant acted in faith Ill, p. introducing R.Vol. 273. In his exhibits to required and believed that he was not to file court, going the trial defendant stated: "I'm returns ... because of his belief he is an my understanding my- submit these. This is pursuant Indian not taxed to the Constitution taxed_” self as an Indian not R.Vol. Ill at [you of the United States ... must find defen- closing argument, again 271. In his defendant guilty.] dant not good-faith asserted his defense: R.Vol. Ill at 281. is no reason- which there errors

nical verdict could have that the Polys, possibility Marcia able David POLYS ordinarily affected, government been Plaintiffs-Appellants, a non-con- proving that has the burden harmless.”)- also See was error stitutional Jefferson, 925 AIRLINES, TRANS-COLORADO Cir.1991). Here, the na- 1255 n. 15 INC., Defendant-Appellee. intent subjective the defendant’s ture of indeed, contested; it was about hotly was No. 88-1298. in the case. factual issue contested Appeals, States Court United sought bolster the defendant When Tenth Circuit. subjective beliefs sincerity his asserted previously showing that he had Aug. taxing to the those views publicly asserted by showing objective authorities upon and historic authorities

research formulating his sub- relied he had

which views, that evi- rejected court

jective left with defendant was

dence.4 conclusory his naked and more than

little the law that he had researched

statements had lead him to a belief research

and that subject to the tax laws was he was an Indi- because United match for are seldom a

an. Generalities that it I cannot conclude

specifics, and thus deny jury access harmless error by the specific evidence tendered sincerity of to corroborate

defendant

his views. fact, is, wrong

Although the exempt from are that Indians

in his view taxes, from clear far income

all federal he did not hold record that

on this record, I this cannot sincerly. On

beliefs have come would not

conclude that to consid- if it had been able differently

out the sinceri- to corroborate

er these exhibits proffered views.

ty the defendant’s reasons, respectfully I dissent. these

For jury as to how the law to instruct worried court should, that the district court 4. To the extent event, fact, any interpreted. it jury be might the documents confuse law, relatively simple for the would been problem overstated have seems about the and, be event, exhibits could easily govern- that these to instruct cured. sincerity interprets on the issue abundantly considered clear that ment made it subjective genuineness beliefs differently of defendant’s the de- those authorities law. up not as accurate statements that it would therefore fendant

Case Details

Case Name: United States v. Wesley Willie

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Aug 12, 1991

Citation: 941 F.2d 1384

Docket Number: 90-2028, 90-2041

Court Abbreviation: 10th Cir.