                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS

                    FOR THE FIRST CIRCUIT

                                        

No. 92-2478

                        UNITED STATES,

                          Appellee,

                              v.

                      ROBERT G. BEVERLY,

                    Defendant, Appellant.

                                        

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

         [Hon. Francis J. Boyle, U.S. District Judge]
                                                    

                                        

                            Before

                  Torruella, Cyr and Boudin,
                       Circuit Judges.
                                     

                                        

   Robert G. Beverly on brief pro se.
                    
   Lincoln  C. Almond, United States Attorney, James A. Bruton,
                                                              
Attorney General, Robert E. Lindsay, Alan Hechtkopf and  Scott A.
                                                               
Schumacher, Attorneys Tax Division, on brief for appellee.
        

                                        
                         May 11, 1993
                                        

     Per  Curiam.    The appellant,  Robert  G.  Beverly, was
                

convicted,  after a  jury-waived  trial,  of  two  counts  of

failure to  file an  income tax return,  and three  counts of

income tax evasion.  We affirm the conviction.

                              I
                               

     Beverly's principal argument on appeal concerns the fact

that he  represented  himself at  trial.   In  his  pre-trial

appearances, Beverly twice stated that he wanted a lawyer and

was unable to  afford one.   He even filed  a motion  seeking

appointed  counsel.   However,  a  week  after  he filed  the

motion, Beverly withdrew  it without explanation, and  on the

first day  of trial he unequivocally stated  his intention to

go forward without a lawyer. 

     Beverly now argues that the district court "was under an

obligation  of  the  Constitution to  appoint  Assistance  of

Counsel regardless of the defendants  [sic] financial status.

. . ."   This is incorrect.   The Criminal Justice  Act (CJA)

requires appointed  counsel only for  "any person financially

unable to obtain adequate representation. . . ."  18 U.S.C.  

3006A(a).   Although the CJA  requires the district  court to

conduct an "appropriate inquiry" into the financial status of

a   defendant  who  seeks  appointed  counsel,  18  U.S.C.   

3006A(b), the defendant bears the burden of proving financial

inability. United  States v.  Harris, 707  F.2d 653, 660  (2d
                                    

Cir. 1983) and cases cited therein.  

                             -2-

     Beverly appears  to  be arguing  (1)  that, had  he  not

withdrawn  his  motion  for  appointed counsel,  the  court's

"inquiry" would have consisted of scrutinizing a standard CJA

application  and  affidavit  disclosing  Beverly's  financial

status,  and (2)  that such  an inquiry  would not  have been

"appropriate"  because it  would  have  required  Beverly  to

surrender  his  Fifth  Amendment  right  not  to  incriminate

himself in order to obtain  the protection of counsel due him

under the Sixth Amendment. 

     Some courts  have  recognized a  potential for  conflict

between a criminal  defendant's Fifth Amendment right  not to

incriminate  himself  and  his obligation  under  the  CJA to

demonstrate  that he  is unable  to pay  for a  lawyer.   See
                                                             

United States v.  Gravatt, 868 F.2d 585, 589  (3d Cir. 1989);
                         

United States  v. Moore, 671  F.2d 139, 140 (5th  Cir. 1982);
                       

United  States v. Anderson,  567 F.2d  839, 840-41  (8th Cir.
                          

1977).   However,  even  these courts  have  not allowed  tax

defendants  to obtain  free  counsel regardless  of financial

need.   Rather,  they have  required  the defendants  to bear

their  burden  of proof,  subject  to  either (1)  in  camera
                                                             

inspection  of  information  about  their  finances,  or  (2)

assurances that  such information  will not  be used  against

them.  See  United States v. Gravatt,  868 F.2d at 590.   See
                                                             

also United States v.  Davis, 958 F.2d 47,  49 n.4 (4th  Cir.
                            

1992) (district  court avoided Fifth  Amendment challenge  by

                             -3-

examining  defendant ex  parte and  sealing answers);  United
                                                             

States v.  Anderson, 567 F.2d  at 840 (district  court should
                   

have reviewed financial information in camera); United States
                                                             

v. Ellsworth, 547 F.2d 1096,  1098 (9th Cir. 1976) (affirming
            

where  district   court  assured  defendant   that  financial

information could not  be used for further prosecution).  But
                                                             

see  United States v.  Krzyske, 836  F.2d 1013,  1018-19 (6th
                              

Cir.  1988) (district  court not  required to hold  in camera
                                                             

hearing  where  defendant asserted  Fifth  Amendment rights);

United States v. Peister, 631  F.2d 658, 662 (10th Cir. 1980)
                        

(district court not required to grant immunity where conflict

with Fifth Amendment is speculative and prospective only).

     We do not  have to decide here whether  a district court

must  grant immunity  or hold  an  in camera  hearing when  a
                                            

criminal  defendant asks for  appointed counsel but  raises a

legitimate Fifth Amendment concern about providing the needed

financial  information,   because  Beverly   --  unlike   the

defendants in  the cases cited above  -- did not  even make a

"colorable assertion"  to  the  district  court  that  public

disclosure  of his  financial information  would  violate his

Fifth Amendment rights.   Cf. United  States v. Gravatt,  868
                                                       

F.2d  at 588.   Beverly did tell  the court that  he wanted a

lawyer  and could  not  afford one  that would  represent him

"properly,"  but in his conversations with the district judge

about the issue of representation he never asserted his Fifth

                             -4-

Amendment  rights or attempted to explain how his response to

the standard CJA inquiries would compromise those rights.  He

filed   a  motion  for  appointed  counsel  but  provided  no

financial information,  and then withdrew  the motion without

comment, and certainly without suggesting that he had done so

in order to preserve his right not to incriminate himself.1

     In sum, Beverly never suggested, much less demonstrated,

to the district court that there was any real tension between

his  rights under  the Fifth  Amendment  and his  obligations

under the  CJA, and  hence never gave  the district  court an

opportunity either to resolve such tension by allowing him to

produce evidence of his financial status subject to in camera
                                                             

inspection or a  grant of  immunity, or to  refuse to do  so.

His assertion on  appeal that he was put  to an impermissible

"choice"   between    conflicting   constitutional    rights,

therefore,  is too speculative  to merit relief.   See United
                                                             

States v. Peister, 631 F.2d at 662.
                 

                    

1.  Beverly's  statement to  Pre-Trial Services  that he  was
earning $4,000 a  month, the fact that  he was able to  pay a
lawyer  to represent him  during the IRS'  investigation, and
the evidence produced at trial that he owned two condominiums
and a  boat, and  had earned more  than $60,000  in 1985  and
1986,  and more  than $85,000  in 1987, all  suggest, rather,
that Beverly  withdrew the  motion because  he had  concluded
that he would not be able to convince the court to give him a
free  lawyer.   This  evidence also  suggests  that, had  the
district court reviewed Beverly's financial status (either in
                                                             
camera  or after a grant  of immunity), it would nevertheless
      
have concluded that he was  not entitled to appointed counsel
under the CJA.

                             -5-

     Nor do we  find any other suggestion in  the record that

Beverly's decision to  forego counsel was less  than "knowing

and intelligent."   Beverly  argues that  the district  court

should  have followed  a prescribed  series  of questions  in

order to ensure that the waiver was valid.  See United States
                                                             

v. McDowell, 814 F.2d 245, 250, 251-52 (6th Cir.  1987).  But
           

this court  does not require  the district court to  "issue a

particular warning or  make specific findings of  fact before

it allows  a defendant to proceed pro  se."  United States v.
                                                          

Hafen, 726 F.2d  21, 25 (1st Cir.  1984).  We have  said that
     

the   district  court  can  allow  a  criminal  defendant  to

represent himself if all of the information available to  the

court  indicates that  the  defendant  (1)  understands  "the

magnitude  of the undertaking and the 'disadvantages of self-

representation,'"  (2) is  aware  "that  there are  technical

rules governing the conduct of a trial, and that presenting a

defense is not  a simple matter of telling  one's story," and

(3) appreciates "the  seriousness of  the charge  and of  the

penalties  he may  be exposed  to before  deciding to  take a

chance on his own skill."  Maynard v. Meachum, 545  F.2d 273,
                                             

279 (1st Cir. 1976).

     Here,  on the  first day  of trial,  the district  judge

quite  explicitly asked Beverly whether he understood that he

had a right to  a lawyer, and whether he chose nonetheless to

"go ahead without one," and Beverly quite explicitly answered

                             -6-

that he  did.  By that time, moreover,  the court had, in one

pre-trial  hearing,  described  the  charges  to  Beverly  as

"serious," explained the  potential penalties, and  commented

on the  "unique" nature of  some of the motions  that Beverly

had  filed, and  had  heard  Beverly,  in  another  pre-trial

hearing, acknowledge that he was  not an attorney and that he

did not  "know all the procedures that this Court needs me to

perform."  Although the process of review would be simplified

if  the  district  court  would  engage in  a  more  extended

colloquy and give a more specific warning than was done here,

and if it  would "provide[] a short statement  of its reasons

for finding a defendant's waiver of counsel to be knowing and

intelligent,"  United States  v. Hafen,  726 F.2d  at 25,  we
                                      

cannot find, on the record before us, that the district court

erred in allowing Beverly to represent himself at trial.

                              II
                                

     Beverly's remaining  arguments do  not require  extended

discussion.  

     1. Beverly  contends that  the testimony  of IRS  agents

concerning  their interview with him in 1989 was inadmissible

because Beverly had not been properly warned about his  Fifth

Amendment  rights  before  the   interview  began.    Beverly

concedes  that  the  agents  advised  him  of  his rights  in

"absolute  accordance"  with  IRS  procedures  for  so-called

"noncustodial" interviews, but says that his interview was in

                             -7-

fact  "custodial" and therefore  required the agents  to give

him full-blown Miranda warnings.
                      

     "In evaluating whether a suspect was in custody and thus

entitled to Miranda warnings, we look to see, using objective
                   

standards, whether there was a manifestation of a significant

deprivation  of  or  restraint on  the  suspect's  freedom of

movement,  taking into account  such factors as  'whether the

suspect  was questioned  in  familiar  or  at  least  neutral

surroundings, the number of law  enforcement officers present

at  the scene, the  degree of physical  restraint placed upon

the   suspect,  and  the   duration  and  character   of  the

interrogation.'"   United States v. Lanni, 951  F.2d 440, 442
                                         

(1st  Cir. 1991)  (citations  omitted).    Beverly,  who  was

represented by  a lawyer  during the  IRS investigation,  was

interviewed at the lawyer's office, in the lawyer's presence,

by two IRS agents.  There is nothing in the record to suggest

that the  agents physically  restrained Beverly  or gave  him

reason  to  think  he  could  not   leave  or  terminate  the

interview.   The questioning  lasted,  according to  Beverly,

only three hours,  and we see no evidence  that the questions

were coercive in nature, or that the agents were  overbearing

in manner.   In short, there  are no  indicia of a  custodial

interrogation, and  Beverly's protests  that he  nevertheless

felt  intimidated will  not avail  him, because  the  test of
    

custody  is  objective:  "the  only  relevant  inquiry  [with

                             -8-

respect  to  whether a  person  was  in  custody for  Miranda
                                                             

purposes] is how  a reasonable man in  the suspect's position
                              

would have understood  his situation."  Berkemer  v. McCarty,
                                                            

468 U.S. 420, 442 (1984).2

     2.  Beverly  says   that  IRS  and   Justice  Department

procedures required the prosecutor in this case to obtain (a)

a Special Agent's Report, (b) a Criminal Referral Letter, (c)

a Prosecution  Report, and (d)  a signed Form 9131  before he

went to the grand jury for an indictment.  He claims that the

prosecutor did not obtain these documents. 

     We may assume  the truth of these  premises because they

do not  support  Beverly's  conclusion:  that  the  resulting

indictment  was flawed  and that  the  trial court  therefore

lacked  jurisdiction to convict.  "[A]n IRS agent's violation

of a regulation of this sort does not prevent prosecution and

conviction of a defendant. . .  ."  United States v. Michaud,
                                                            

860 F.2d  495, 499 (1st  Cir. 1988).  The  procedures Beverly

describes were not  required by statute or  the Constitution,

nor  can Beverly  reasonably contend  that  he relied  on the

procedures,  or  that their  breach  had  any effect  on  his

conduct.   United States  v.  Caceres, 440  U.S. 741,  749-53
                                     

(1979).  For  similar reasons, we hold  that even if the  IRS

                    

2.  Nor do  we  see  any  evidence that  the  agents  tricked
Beverly into waiving  his Miranda rights.  Beverly  says that
                                 
the IRS  agent who conducted  the interview told him  that he
was investigating the possibility of criminal violations, and
that appears to be exactly what the agent was doing.

                             -9-

violated  the  Privacy  Act  by  failing  to  keep  Beverly's

Individual  Master File  up-to-date,  the delinquency  caused

Beverly  no  prejudice  at  trial  and  does  not  affect the

validity of his conviction.

     3. The  district court did  not deprive  Beverly of  any

discovery to which  he was entitled.  The government complied

with  the  district  court's   uniform  order  for  automatic

discovery, and Beverly has  not shown us that the  prosecutor

withheld anything which  the order required him  to disclose,

or that  he  found and  failed  to disclose  any  exculpatory

material.  Beverly's discovery motions ranged well beyond the

scope of  Rule 16 and  were properly denied.   The prosecutor

complied  with  the  Jencks  Act, 18  U.S.C.     3500(a),  by

supplying  witness statements and  reports to Beverly  on the

morning of trial.

     4. We see no merit in Beverly's  contention that neither

the Attorney  General nor the Bureau of Prisons had statutory

authority  to take  custody  of  him  after  his  conviction.

Beverly  was convicted of five crimes, three committed before

November 1,  1987, and two committed after  that date.  As to

the first group, 18 U.S.C.   4082(a) authorized the  Attorney

General  to take  custody,  because  the  repeal  of  Section

4082(a) did not take  effect until November  1, 1987.  As  to

the  latter  group, 18  U.S.C.    3621(a)  --  which replaced

Section  4082(a)  and  applies  to  crimes  committed   after

                             -10-

November 1, 1987 -- authorized  the Bureau of Prisons to take

custody.

     Affirmed.
             

                             -11-
