     Case: 09-41027 Document: 00511317095 Page: 1 Date Filed: 12/09/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          December 9, 2010
                                     No. 09-41027
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

MALCOLM DAVID MACHAUER,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 5:09-CR-1-1


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Malcolm David MacHauer appeals his convictions for income tax evasion,
in violation of 26 U.S.C. § 7201. MacHauer contends the district court erred in
denying four requested jury instructions. We need not decide the Government’s
plain and harmless error contentions, because MacHauer’s claims fail under our
usual standard of review, discussed below.
       “This court reviews a district court’s refusal to include a defendant’s
proposed jury instruction in the charge under an abuse of discretion standard.”

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 09-41027

United States v. Simkanin, 420 F.3d 397, 410 (5th Cir. 2005). “‘The refusal to
give a jury instruction constitutes error only if the instruction (1) was
substantially correct, (2) was not substantially covered in the charge delivered
to the jury, and (3) concerned an important issue so that the failure to give it
seriously impaired the defendant’s ability to present a given defense.’” United
States v. Clements, 73 F.3d 1330, 1338 (5th Cir. 1996) (internal quotation marks
and citation omitted); accord Simkanin, 420 F.3d at 410 (“Under this test, this
court will not find an abuse of discretion where the instructions actually given
fairly and adequately cover the issues presented by the case.”).
      MacHauer challenges the district court’s general instruction to the jury on
reasonable doubt. The first of his requested instructions at issue stated:
                   The line between honest belief and purposeful
            misrepresentation and deceit is not always clear. Since
            the defendant’s guilt or innocence depends upon where
            that line is drawn, however, you may not convict if the
            evidence is evenly balanced between guilt and
            innocence.
The second stated:
                  When there is an innocent explanation for a
            defendant’s conduct as well as one which suggests that
            the defendant was engaged in wrong doing [sic], the
            Government must produce evidence which would allow
            you, the jury, to conclude beyond a reasonable doubt
            that the Government’s version of the defendant’s
            conduct is the correct one.
      MacHauer acknowledges the district court’s general instruction on
reasonable doubt tracked our court’s pattern instruction, see F IFTH C IRCUIT
P ATTERN J URY I NSTRUCTIONS (Criminal Cases) § 1.05 (2001). Nevertheless, he
contends the concept of reasonable doubt should have been further defined as
provided in the above two instructions. MacHauer maintains jurors need more
concrete, illustrative examples of what constitutes such doubt.




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      The district court had substantial latitude in formulating its reasonable-
doubt instruction, and MacHauer was not entitled to his proposed wording.
United States v. Williams, 20 F.3d 125, 128 (5th Cir. 1994); United States v.
Hunt, 794 F.2d 1095, 1097 (5th Cir. 1986). As discussed supra, “[a] district court
has broad discretion in framing the instructions to the jury and this court will
not reverse unless the instructions taken as a whole do not correctly reflect the
issues and law”. United States v. Clayton, 506 F.3d 405, 410 (5th Cir. 2007)
(internal quotation marks and citation omitted).
      Both of these requested instructions were substantially covered by the
court’s reasonable-doubt instructions. They stated: MacHauer was presumed
to be innocent; the Government bore the burden of proving his guilt beyond a
reasonable doubt; and the jury was required to acquit MacHauer if the
Government failed to meet its burden. The jury was also instructed: “Proof
beyond a reasonable doubt . . . is proof of such a convincing character that you
would be willing to rely and act upon it without hesitation in the most important
of your own affairs”. The district court did not err in denying the above two
requested instructions. See Clements, 73 F.3d at 1338; see also United States v.
Skelton, 514 F.3d 433, 446 (5th Cir.), cert denied, 129 S. Ct. 102 (2008)
(recognizing district court does not err by giving instruction that tracks pattern
instruction and correctly states the law).
      Additionally, to the extent MacHauer contends the court’s reasonable-
doubt instruction was constitutionally deficient, see Sullivan v. Louisiana, 508
U.S. 275, 279-82 (1993), his argument is unavailing. Our court has determined
the reasonable-doubt instruction given by the district court is proper. See United
States v. Alonzo, 681 F.2d 997, 1002 (5th Cir. 1982); see also Williams, 20 F.3d
at 129 n.2.
      The two remaining requested instructions in issue pertain to whether
MacHauer’s conduct was willful. “The elements of a violation of 26 U.S.C. § 7201
are: (1) existence of a tax deficiency; (2) an affirmative act constituting an

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evasion or an attempted evasion of the tax; and (3) willfulness.” United States
v. Miller, 588 F.3d 897, 907 (5th Cir. 2009). The focus of MacHauer’s defense at
trial was the willfulness element. To prove willfulness, the Government was
required to show:      “(1) the law imposed a duty on the defendant; (2) the
defendant knew of that duty; and (3) the defendant voluntarily and intentionally
violated that duty”.    Id.   A defendant’s good faith belief he was acting in
accordance with the law negates willfulness even if such belief was not
objectively reasonable. See Cheek v. United States, 498 U.S. 192, 201-03 (1991);
Simkanin, 420 F.3d at 404. On the other hand, a defendant’s disagreement with
a known legal duty under the tax laws or belief that they are unconstitutional
or otherwise invalid, regardless of how genuinely held, is, needless to say, not a
defense to willfulness. See Cheek, 498 U.S. at 202-04 & n.8; Simkanin, 420 F.3d
at 404.
      The district court instructed the jury: “neither a disagreement with the
requirements of the law, nor a belief that the tax laws are unconstitutional”
constitutes a defense against the element of willfulness. MacHauer contends the
failure of the charge to further define the phrases “disagreement with the
requirements of the law” and “a belief that the tax laws are unconstitutional”,
allowed the jury to return a finding of willfulness merely because MacHauer
disagreed with the tax laws or believed them to be unconstitutional, rather than
because he willfully violated his duty under the tax laws. Along that line, he
contends the district court erred in denying the following requested instruction:
                  To find that the defendant had a “disagreement
            with the law” that would be evidence of the defendant
            acting willfully, you the jury must find that he knew
            that the federal income tax laws imposed a tax on his
            income and he consequently owed such taxes and was
            required to file tax returns.
                  To find that the defendant believed that the
            federal income tax laws were unconstitutional and thus
            show that the defendant was acting willfully, you the


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            jury must find that he knew that the federal income tax
            laws imposed a tax on his income and he consequently
            owed such taxes and was required to file tax returns.
      MacHauer’s argument is unavailing. He takes issue with the denial of this
instruction because he maintains he did not subjectively “know” the federal
income tax laws imposed a tax on his income because his independent research
allegedly revealed he did not have such a responsibility. MacHauer contends he
believed he was not subject to income tax laws because of his status as an
American citizen.
      MacHauer’s proposed instruction was substantially covered by the district
court’s instructions regarding willfulness, which included instructing the jury
that: satisfaction of the willfulness element required the Government to prove
MacHauer “knew of the requirements of the federal law and that he voluntarily
and intentionally failed to comply”; MacHauer was “not presumed to know the
law”; and the Government bore the burden of proving MacHauer’s knowledge
with respect to “any law the Government assert[ed] [he] knew”. Furthermore,
the district court’s charge did not instruct the jury that the element of
willfulness could be satisfied merely by a finding MacHauer disagreed with the
law or believed the law to be unconstitutional; the charge referred to such
disagreement or belief only in terms of not being a “defense” to willfulness.
      The final requested instruction at issue stated:
                   If upon consideration of all the evidence you are
            left with a reasonable doubt whether the defendant
            believed that for the year 2002 his income was not
            taxable, it shall be your duty to acquit him for count 1
            of the indictment.
                   If upon consideration of all the evidence you are
            left with a reasonable doubt whether the defendant
            believed that for the year 2003 his income was not
            taxable, it shall be your duty to acquit him for count 2
            of the indictment.




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                   If upon consideration of all the evidence you are
            left with a reasonable doubt whether the defendant
            believed that for the year 2004 his income was not
            taxable, it shall be your duty to acquit him for count 3
            of the indictment.
      According to MacHauer, the district court was required to include this
instruction because it set forth his defense theory. He also contends the district
court violated his constitutional rights to present a complete defense and to
equal protection by refusing to instruct the jury on that theory.
      This requested instruction is misleading; needless to say, it implies
MacHauer was to be acquitted if he possessed any subjective belief his income
was not taxable, without regard to whether such belief: was held in good faith,
was based on his disagreement with the law, or was based on his opinion that
the federal tax laws were unconstitutional. While defendant’s good faith belief
that he was not violating the tax law negates willfulness, the same is obviously
not true of defendant’s disagreement with a known legal duty under the tax laws
or defendant’s belief that they are inapplicable to him because they are
unconstitutional or otherwise invalid. See Cheek, 498 U.S. at 201-04 & n.8;
Simkanin, 420 F.3d at 404. Because MacHauer’s requested instruction did not
clearly state the applicable law, the district court did not err in denying it. See
Clayton, 506 F.3d at 411-12.
      Further, MacHauer’s theory of defense was substantially covered by the
given charge.    It included the following admonishment:        “[Y]ou heard the
defendant give testimony concerning his belief that his income was or is not
taxable . . . . This testimony was submitted to you as relevant to the defendant’s
defense that he did not act willfully, as that term is used in these instructions”.
The district court later instructed the jury on the defense of good faith, stating:
“A defendant does not act willfully if he believes in good faith that he is acting
within the law, or that his actions comply with the law.” The district court
further instructed regarding good faith:


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            Therefore, if the defendant subjectively believed that
            what he was doing was in compliance with the tax
            statutes, he cannot be said to have the criminal intent
            required by the charges against him. In proving
            willfulness, it is the . . . Government’s burden to prove
            beyond a reasonable doubt that the defendant did not
            act with a good faith belief as to [what] the law required
            of him.
      These instructions placed squarely before the jury MacHauer’s defense
theory. Again, “[w]hile a defendant is entitled to an instruction on his theory of
defense, he has no right to particular wording”.      Clayton, 506 F.3d at 410
(internal quotation marks and citation omitted) (emphasis added). Further,
given MacHauer’s defense theory was covered in the district court’s instructions,
there is no merit to his contentions that the district court violated his
constitutional rights to present a complete defense or to equal protection.
      AFFIRMED.




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