
USCA1 Opinion

	




          October 14, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                        _____          No. 91-2269                                    UNITED STATES                                      Appellee,                                          v.                                   PAUL B. BONNEAU                                Defendant, Appellant.                                     ___________                                     ERRATA SHEET                    The opinion of this  Court issued on July 21,  1992, is          amended as follows:               On page  12, first  full  ,  line 6:   insert "each  of two"          between "in" and "earlier."          July 21, 1992                                 ____________________          No. 91-2269                                    UNITED STATES,                                      Appellee,                                          v.                                   PAUL B. BONNEAU,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Roney,* Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Annemarie Hassett, Federal Defender Office, for appellant.            _________________            Mark W. Pearlstein, Assistant United States Attorney, with whom            __________________          A. John Pappalardo,  Acting United States Attorney, was  on brief          __________________          for appellee.                                 ____________________                                 ____________________          _____________________          *Of the Eleventh Circuit, sitting by designation.                 BOUDIN,  Circuit  Judge.    On  April 2,  1991,  a  jury                          ______________            convicted  the defendant-appellant Paul  Bonneau of attempted            tax evasion in  violation of 26 U.S.C.   7201.   The district            court on June 11,  1991, sentenced Bonneau to three  years of            probation with conditions. Bonneau now appeals his conviction            and we affirm.                 Bonneau is a boilermaker who has spent many years in the            construction  of  steel  structures,  working  for  different            employers on  short or long-term projects.  From 1966 through            1979, Bonneau regularly filed tax returns  and paid taxes and            regularly  filed  form W-4  certificates  with his  employers            stating  how  many exemptions  he  claimed.   The  number  of            exemptions claimed  on the W-4 form advises  the employer how            much  of the  employee's wages  should be  withheld from  the            employee's pay (and remitted by the employer to  the Internal            Revenue  Service) as a down  payment on the employee's income            taxes.                   In late  1979, Bonneau was  working in Nevada  and heard            from co-workers about an  organization called Stop Taxing Our            People ("STOP").  Bonneau attended one of its seminars.  As a            result  of the  seminar,  Bonneau sought  literature from  an            organization called the  Golden Mean  Society, which  Bonneau            described  at  trial as  a group  that  explains tax  laws to            individuals and advises them  on what is legal and  not legal            in  relation to taxes.  Based on the seminar, the literature,                                         -2-                                          2            and   other  information  he  obtained,  Bonneau  concluded--            according to his trial testimony--that he was not required to            file income tax  returns or  pay taxes, and  from about  1980            onward  he  ceased  either  to  file  or  to  pay.   He  also            eliminated withholding of taxes by his employers by filing W-            4 forms stating that he was exempt from withholding.                   On  April 12, 1990, Bonneau  was indicted for two counts            of  willfully attempting to  evade taxes  in violation  of 26            U.S.C.   7201.  Count one charged that Bonneau failed to file            an  income tax return or pay taxes for calendar year 1983 and            had  submitted false  W-4 forms  claiming  to be  exempt from            withholding, even  though he had  in fact received  a taxable            income of approximately $27,000 during 1983 and owed taxes in            excess  of $5,000.  Count  two charged a  similar offense for            calendar year 1984 when Bonneau had a slightly  larger income            and owed slightly more in taxes.                 At  trial Bonneau did not dispute that he owed taxes for            both of the calendar years in question or that he took  steps            to prevent taxes from being withheld or paid, but he did deny            that his actions were willful.  Under Cheek v. United States,                                                  _____    _____________            111 S. Ct. 604, 610-11 (1991), the willfulness element of the            crime charged  can in some circumstances be  defeated where a            taxpayer wrongly but sincerely believed  that no tax was due.            Cheek holds,  however, that  while a misunderstanding  of the            _____            tax laws  may negate willfulness, the  taxpayer's views about                                         -3-                                          3            the  validity  of  the  tax  statutes  are  not  relevant  to            willfulness. Id. at 613.                         __                 Bonneau  testified that  his  own study  after the  1979            seminar had persuaded him that a working man's wages were not            "income" under the Internal Revenue Code's definition (see 26                                                                   ___            U.S.C.   61)  because wages did not  represent a gain to  the            worker but merely an  exchange of labor for payment.   During            Bonneau's  direct testimony,  he was  allowed to  explain his            view  and  how  he  came  to  it  and  to  introduce  certain            documents, including literature from the Golden Mean Society,            on  which he relied.   The trial judge  initially excluded as            irrelevant  under  Cheek any  testimony  by  Bonneau that  he                               _____            believed  that the  tax laws  were unconstitutional,  and the            judge  ordered that  certain exhibits  be redacted  to remove            references to the validity of the tax laws.                   On cross-examination of  Bonneau, the prosecution  asked            questions  and introduced  documents  in order  to show  that            Bonneau's true basis  for failing  to pay taxes  was not  any            misconstruing of  section 61 but rather  was Bonneau's belief            that  the  tax  laws  were  unconstitutional, philosophically            objectionable,  or  both.   In  this  effort, the  government            introduced  over  a vehement  objection  exhibit  87, a  1986            letter   from  Bonneau  to   the  Internal  Revenue  Service,            objecting to  certain penalties and  including references  to            Bonneau  as "a  white male  citizen" and  "a free  white male                                         -4-                                          4            citizen."  The  letter is  reprinted as an  appendix to  this            opinion.                 The  jury  convicted  Bonneau,  and  the  district court            sentenced him to three years' probation,  conditioned on  the            filing  of  returns  and  payment  of  taxes.    This  appeal            followed.   Bonneau  now offers  three different  grounds for            reversal.                 l.   Bonneau first  argues that  the trial  court unduly            restricted  him in  presenting his  defense by  excluding any            testimony  that   Bonneau  believed   the  tax  laws   to  be            unconstitutional  and  by  redacting  exhibits--such  as  the            Golden  Mean Society  pamphlet--to remove  references  to the            Constitution.   Under  Cheek v.  United States,  a taxpayer's                                   _____     _____________            mistaken  reading of the tax laws may negate willfulness in a            tax evasion case, but "a defendant's views about the validity            of   the  tax  statutes  are   irrelevant  to  the  issue  of            willfulness, need not be heard by the  jury, and if they are,            an  instruction to disregard them  would be proper."   111 S.            Ct. at 613.  Whatever a rigid logician might say, Cheek draws                                                              _____            a practical distinction between  "innocent mistakes caused by            the complexity of the Internal Revenue Code" (id. at 612) and                                                          ___            constitutional  and  philosophical objections  that taxpayers            may  sincerely hold but are likely to know have been rejected            by the  courts.   In any  event, the line  drawn by  Cheek is                                                                 _____            controlling and thedistrict court properlysought to followit.                                         -5-                                          5                 Without making a frontal attack on Cheek, Bonneau argues                                                    _____            on  appeal  that  the   trial  court  overextended  Cheek  by                                                                _____            mechanically   excluding  all   defense  references   to  the            Constitution and by redacting  all such references in defense            exhibits.    Bonneau  contends   that  the  Constitution   is            legitimately pertinent to the issues in this case in at least            in two ways.  Specifically, Bonneau asserts that the language            in the Sixteenth Amendment ("The Congress shall have power to            lay  and  collect  taxes  on incomes,  from  whatever  source            derived . . .") was studied by Bonneau as a  gloss on section            61  of the  Internal Revenue  Code  ("gross income  means all            income  from whatever  source  derived,  including  (but  not            limited  to) the  following items .  . . .").   Further, says            Bonneau, his study of the  constitutional validity of the tax            laws provided evidence of his sincere attempt to grapple with            the legal issues,  thus tending to  bolster the sincerity  of            his belief that wages were not income under section 61.                 We agree with Bonneau  that in principle Cheek does  not                                                          _____            require  that every  constitutional reference  be  omitted or            deleted  in a tax evasion  case; such evidence  may indeed be            relevant  for  some  purpose  other than  to  show  that  the            defendant thought that  the tax  laws were  unconstitutional.            Still, trial judges  have ample latitude under  Fed. R. Evid.            403  to weigh the importance of the evidence against the risk            of  jury confusion, and confusion  is a risk  where, as here,                                         -6-                                          6            the  most obvious  use of  such constitutional  references is            forbidden by Cheek.  In this case, the trial judge denied the                         _____            government's pretrial request for  a blanket exclusion of all            evidence    concerning    Bonneau's    views     about    the            constitutionality  of  the tax  laws  and  sought to  address            objections  to testimony or exhibits as  they arose at trial.            Our  review  of the  transcript  of  Bonneau's testimony  and            exhibits  in  question  persuades  us that  the  trial  judge            imposed  only  reasonable  redactions  and  did not  unfairly            handicap the defense.                 At oral argument  we asked defense counsel to  point out            the most egregious example  of undue handicapping and counsel            pointed to a pamphlet  of the Golden Mean Society  offering a            host of observations concerning  the tax laws, constitutional            rights, politics and taxpayer strategy.  In this exhibit, the            trial  court deleted  a paragraph  of the  pamphlet asserting            that   tax   returns   cannot   be   filed   without  waiving            constitutional rights but left  in a paragraph asserting that            "payment for services  is an even  exchange--if the value  of            the labor is the same as the value of pay, there is no profit                                                                   ______            or  gain to  constitute the  `income' mentioned  in the  16th                ____            Amendment."     Not  only  did  the   district  court  employ            reasonable discretion  in  redacting exhibits  but the  trial            testimony  given by  Bonneau and  the exhibits  he introduced            certainly gave the  jury a fair understanding of his position                                         -7-                                          7            that wages were not income and provided the jury with written            materials on which he might have based such a judgment.                 In addition to objecting to redactions, Bonneau contends            that the trial court erred in preventing him from  testifying            about  Supreme Court  rulings  described by  the speaker  who            addressed  the STOP  meeting that  Bonneau attended  in 1979.            The district  court was  apparently concerned  that Bonneau's            version of the decisions could  be misunderstood by the  jury            as  representing the actual state of the law.  The government            counters  Bonneau's  claim of  error with  a string  of cases            showing  that courts  often exclude  from evidence  copies of            statutes,  constitutional  provisions,  and decisions,  which            might invite the jury to  substitute its own view of  the law            for the  judge's instructions.   See, e.g., United  States v.                                             ___  ____  ______________            Willie,  941  F.2d  1384,  1395-97 (10th  Cir.  1991),  cert.            ______                                                  _____            denied, 112  S. Ct.  1200 (1992).   But see United  States v.            ______                              _______ ______________            Powell, 955 F.2d 1206, 1213-14  (9th Cir. 1992)   (suggesting            ______            that Cheek may require  admission of legal materials in  some                 _____            circumstances).  What is  in issue here, however, is  not the            admission of written decisions but testimony by the defendant            as  to what he was  told the decisions  held.  Such testimony            could bear directly on the defendant's state of mind, and the            risk of confusion may  be lessened because the jury  takes no            written decision into the jury room to ponder.                                         -8-                                          8                 The  importance of  such  testimony can,  of course,  be            weighed by  the  trial judge  against  any residual  risk  of            confusion, and if the trial  judge excludes the evidence, the            ruling  can be  reviewed for  abuse of  discretion.   Fed. R.            Evid. 403.  But this is not a subject that we  need to pursue            in  the present case because Bonneau's  trial counsel made no            offer  of proof in the trial court to establish the substance            of the testimony.   Since we do not  know what Bonneau  would            have claimed he was  told about the Supreme Court  decisions,            there  is  nothing  in  the  record to  show  that  important            admissible  testimony was excluded  by this ruling.   A party            may not claim  that evidence was wrongly  excluded unless the            substance of the evidence  was made known to the  trial court            by  offer  or  was apparent  from  context.    Fed. R.  Evid.            103(a)(2);  Earle v. Benoit, 850 F.2d 836, 847-48 & n.13 (1st                        _____    ______            Cir. 1988).  Both the letter and purpose of the rule would be            frustrated were the claim of error to be allowed now.                   2.   Bonneau's second  ground for reversal  also derives            from  Cheek.  After persuading  the trial court  to limit the                  _____            defense's direct  examination by  excluding evidence  to show            that Bonneau  believed the  tax laws to  be unconstitutional,            the government itself on cross-examination  of Bonneau sought            to  show that he objected  to the tax  laws on constitutional            and  philosophical grounds.   In  this court,  Bonneau argues            that evidence of his  constitutional beliefs had already been                                         -9-                                          9            ruled  irrelevant  by  the  trial  court.    Bonneau  further            contends that he could and did believe both that the tax laws                                                   ____            were unconstitutional and that they did not classify wages as            income; thus,  he argues,  there is no  inconsistency between            the two views and so no impeachment value in the government's            evidence.     Finally,  Bonneau  objects  that   barring  his            constitutional  beliefs  on   direct  examination  and   then            allowing the government to elicit them on cross made him look            dishonest in the eyes of the jury.                 The  first  two objections  can  readily  be put  aside.            Under  Cheek  a defendant  charged  with  tax evasion  cannot                 _______            testify to  his view that  the tax laws  are unconstitutional            because, under  the substantive law laid down  by Cheek, this                                                              _____            belief even though sincere does  not negate willfulness.  Yet            when the defendant takes the stand professing to believe that            wages  are not income under  the tax laws,  the prosecutor is            entitled  to prove  that the  defendant held  other beliefs--            whether constitutional or  philosophical--that persuaded  him            not to pay taxes  but do not negate willfulness  under Cheek.                                                                   _____            As  for Bonneau's claim that there is no inconsistency, it is            surely  true  that the  defendant  could  hold both  sets  of            beliefs  at the same time,  but the force  and persistence of            the  defendant's views on  the constitutional issue certainly            were  evidence for the jury  to consider in  deciding what he            actually believed.                                           -10-                                          10                 There  is  more  weight  to  Bonneau's  claim  that  the            sequence  of proof  posed a  risk  of unfairly  impairing his            credibility.  It  would, for example, have  been improper for            the prosecutor,  having limited  the  direct examination,  to            argue  in summation that Bonneau  should not be  trusted as a            witness because he did not mention his constitutional beliefs            until  they were drawn out  of him on  cross-examination.  Of            course, the prosecutor here made no such argument in closing,            but  the defense  is now  suggesting that  the jury  may have            drawn such an inference on its own.                 Whatever force the  suggestion might otherwise  have, it            is answered  by the  trial judge's  handling of  the problem.            When this objection to the government's cross-examination was            made at trial, the judge overruled the objection but declared            that under the "principle of completeness," the defense would            now be permitted  to develop more  fully Bonneau's view  that            the  tax laws were  unconstitutional, so that  the jury could            have  a  full  and  accurate picture  of  Bonneau's  beliefs.            Moreover, the trial judge said to defendant's trial counsel:                 What this comes down to is an argument on the order                 of proof in trial, and I think it's appropriate for                 me to explain this to the jury and tell them that I                 prohibited  the introduction of any evidence at the                 time  of  the  Government's  case   and  in  cross-                 examination by you [sic]  with respect to  evidence                 regarding beliefs in unconstitutionality of the tax                 laws, and so  this comes  into the case  only as  a                 result of the defendant's having elected to testify                 rather than standing on his right to remain silent,                 and then the  evidence becomes relevant  solely for                 impeachment purposes.  I'll explain all that if you                                         -11-                                          11                 want me to,  but I  don't think I  can exclude  the                 evidence.            The  trial  court's sensible  offer  to explain  that  it had            itself limited  the defendant's testimony gave  the defendant            the chance to erase  any mistaken inference that Bonneau  had            deceived the jury  in his direct  testimony.  Apparently  for            tactical  reasons, defense counsel  at trial did  not ask for            the  instruction to  be  given, nor  did  counsel accept  the            invitation  to develop further Bonneau's constitutional views            on   redirect  (an  understandable   choice  since  Bonneau's            constitutional  beliefs   could  not  themselves   furnish  a            defense).   Nevertheless, the defense had  the opportunity to            obtain the instruction and develop the issue,  and this seems            to us to conclude the matter for purposes of appeal.                 3.   The third and most troubling claim urged by Bonneau            on  appeal  relates  to  a  specific  document,  exhibit  87,            reprinted as  an appendix to this  opinion.  Exhibit 87  is a            letter written by Bonneau to the Internal Revenue Service  in            June  1986, objecting to $500 in penalties imposed on him for            submitting false W-4 forms in each of two earlier years.  The            letter objected to the  penalties, made certain references to            the Constitution, and included the following language:                      I  am  a white  male  citizen  of these  great                 United States  and  still believe  I  have  certain                 unalienable rights . . . .                      I  have never  knowingly  given up  any of  my                 rights as a  free white male citizen of these great                 United States.                                           -12-                                          12                 On cross-examination of Bonneau, the  prosecutor had him            identify  the  letter and  concede  that,  in protesting  the            penalties, he nowhere in the letter said anything about wages            not being income.  The prosecutor then referred in his cross-            examination to the  phrase, "I am a white male citizen."  The            defense objected  both  to  the  oral quotation  and  to  the            prosecutor's subsequent  offer of  the letter  into evidence.            Pointing  to  the  "white  male  citizen"  language,  defense            counsel  objected that  it could  be construed as  racist and            argued  that   its  prejudicial  force   far  outweighed  any            probative  value  it  might  have.    When  the  trial  judge            overruled the objection, defense  counsel then asked that the            two "white  male citizen" references be redacted.   The trial            judge  declined to  do so  and admitted  the letter  in full,            allowing both paragraphs containing  the reference to be read            to  the jury.  Shortly afterwards, the court recessed for the            weekend.                 On the following  Monday, Bonneau's trial  counsel filed            in open court a  written motion to exclude exhibit 87 and any            further evidence relating to Bonneau's constitutional views.             Arguing  that  such  evidence   was  irrelevant,  the  motion            repeated   Bonneau's  claim   that  the   prejudicial  effect            outweighed  any legitimate value  of the  letter, "especially            given  the fact  the jury  includes one  black man  and seven            women."   In  an oral colloquy, defense counsel  argued again                                         -13-                                          13            that  at  a  minimum  the  objectionable  phrases  should  be            redacted.   The  district court  declined to  redact, finding            that the evidence was  relevant and that under Fed.  R. Evid.            403, its  relevance was  not substantially outweighed  by the            risk  of   unfair  prejudice.    In   closing  argument,  the            prosecutor mentioned  exhibit 87 along with  other documents,            stating:  "He [Bonneau] even talks about the fact that he's a            free,  white male as if that somehow  has some bearing on his            tax  liability, but he never says that wages are not income."                 The "white  male" references  to one side,  there is  no            proper objection to the letter.  It is true  that this letter            is directed to the penalties rather than the income tax, that            it was written  several years  after the tax  years in  issue            under the indictment, and that  the constitutional objections            in the letter can be read primarily as procedural objections.            The fact remains that the  prosecutor was entitled to  argue,            and  the  jury  to  consider, the  inference  that  Bonneau's            failure  to make any reference  in the letter  to his alleged            belief  that wages are not income--in the face of the penalty            assessments premised on  his underlying tax liability--tended            to undercut his trial  testimony that he held such  a belief.            But  to hold the letter to  be relevant does not fully answer            Bonneau's objection  on this appeal,  for the  thrust of  the            prosecutor's  argument could have been preserved by admitting                                         -14-                                          14            the letter while redacting the "white male" phrases, removing            any risk of prejudice.                  In  our  view  redaction  would certainly  have  been  a            permissible course.  Although not openly an attack on  blacks            or women,  Bonneau's language  has overtones that  could have            offended  jurors, and not only black or female members of the            jury.  Any  threat to a  fair trial is  a matter of  concern,            whether or not the  threat is founded in the  defendant's own            incivility.   Nor  do we  accept the  government's suggestion            that any error in  admitting the letter was harmless.   It is            true  that the jury may have been more than usually skeptical            of Bonneau's sincerity in claiming  that wages are not income            since the  government's evidence  also indicated that  he did            not pay taxes in a  year where unemployment compensation paid            to  him exceeded the taxable  minimum.  But  it would stretch            the harmless error concept too far  to apply it in this  case            in which the merits  turned on defendant's state of  mind and            Bonneau  offered  testimony  consistent  with  his  professed            belief.   Two related considerations  persuade us to  affirm.            The  government has not argued the point directly, but in our            view the letter's "free white male" references are themselves            relevant evidence tending to undercut at least to some degree            Bonneau's claim that he did not pay taxes because he believed            that wages were not  income.  The references, in  the context            of  the letter and of other exhibits on which Bonneau relied,                                         -15-                                          15            could be  seen by the jury  as part of a  pattern of rhetoric            suggesting   constitutional  and   philosophical  objections,            rather than any technical  misreading of the Internal Revenue            Code.  This is doubtless what the district judge had  in mind            when, in addressing  the request for redaction,  he said that            "one may read the letter as using those expressions as a part            of a  view of  the  constitutionality issue  . .  .  ."   The            phrases did not contribute very much to the government's case            but we cannot find that they were irrelevant.                 Once  the  relevance  of  the phases  is  accepted,  the            standard for exclusion at trial and the standard of appellate            review combine  to favor  affirmance of the  district judge's            ruling.  Fed.  R. Evid. 403  provides that relevant  evidence            may be excluded where  its probative value is "substantially"            outweighed  by the danger of unfair prejudice.  When it comes            to making that  appraisal, the district judge has the special            advantage  of  sitting  in  the  courtroom  and  hearing  the            evidence face to face with the jury.  The government properly            cites  to us Freeman v. Package Machinery Co., 865 F.2d 1331,                         ________________________________            1340 (1st Cir. 1988), for the proposition that "only rarely--            and  in extraordinary  compelling circumstances"  should this            court   "reverse  a  district  court's  on-the-spot  judgment            concerning  the  relative  weighing  of  probative value  and            unfair  effect."  While the district  court might have struck            the balance differently, this is not a case for reversal.                                         -16-                                          16                 For  the reasons  stated, the  judgment of  the district            court is            Affirmed.            ________                                         -17-                                          17
