                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      August 14, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,

          v.                                             No. 06-5201
                                                          N.D. Okla.
 R ICHA RD M A Y N O R                              (D.C. No. 06-CR-62-K)
 B LA CK STO CK ,

               Defendant - Appellant.

 ____________

 R ICHA RD M A Y N O R
 B LA CK STO CK ,

               Plaintiff - Appellant,                    NO. 06-5198
                                                          N.D. Okla.
 v.                                                (D.C. No. 06-CV-497-K)

 TERENCE C. KERN, United States
 District Court,

               Defendant - Appellee.




                            OR D ER AND JUDGM ENT *




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      A jury found Richard M aynor Blackstock guilty of thirty-two counts of

aiding and assisting the preparation of fraudulent tax returns in violation of 26

U.S.C. § 7206(2). Blackstock has filed a direct criminal appeal and a habeas

petition claiming numerous errors. 1 W e affirm in part and dismiss in part.

                                I. BACKGROUND

      For several years B lackstock ran an operation whereby he convinced his

clients he could retrieve the entirety of the taxes paid on their income, charging

only a ten percent contingency fee for his services. Eventually the government

indicted Blackstock, alleging thirty-two counts of the wilful preparation of tax

returns, while w orking as a tax preparer, which fraudulently claimed the entire

amount of wages, salaries and other compensation as deductions with knowledge

of such impropriety under tax law.




      1
       Blackstock proceeds pro se on appeal. Thus, we will construe his
pleadings liberally. Freeman v. Watkins, 479 F.3d 1257, 1258 (10th Cir. 2007).

                                         -2-
      On April 18, 2006, the court appointed Jeffrey M cGrew to represent

Blackstock. Disregarding appointed counsel, Blackstock filed a pro se pre-trial

motion to dismiss the indictment for lack of jurisdiction, claiming the district

court lacked jurisdiction over him because, he argued, he was not a United States

citizen but rather a citizen of Oklahoma. The district concluded it had personal

and subject matter jurisdiction and denied the motion.

      At the arraignment on June 15, 2006, Oscar Stilley entered an appearance

as retained counsel and announced he was ready for trial. M cGrew was ordered

to continue as stand-by counsel. At a motion hearing a few days later, Stilley

stated he would represent Blackstock at trial. M cGrew was again ordered to

remain as stand-by counsel. Stilley represented Blackstock at the jury trial, held

on June 19 through 22, 2006.

      The district court instructed the jury to decide whether Blackstock had

“acted willfully, that is, with the voluntary intent to violate a known legal duty”

regarding the tax laws at issue. (R. Vol. I, Doc. 58 at 23.) Blackstock contends

the issue is a question of law. The jury returned a guilty verdict on all counts.

      After trial, Blackstock wished to fire both Stilley and M cGrew and proceed

pro se. The district court granted the attorneys’ subsequent motions to withdraw

and appointed, Dennis Caruso, to represent Blackstock at sentencing. Blackstock

objected to Caruso’s appointment, claiming all his attorneys w ere constitutionally

ineffective.

                                         -3-
      Prior to sentencing, Blackstock filed pro se objections to the Pre-Sentence

Report (PSR ). Although Caruso was present at sentencing, Blackstock objected

and stated he wished to proceed pro se. At the sentencing hearing, Caruso stated

Blackstock refused to meet with him to discuss the case or otherwise cooperate

with him. The district court noted Blackstock’s numerous ineffective assistance

complaints, but determined the trial performance of his previous attorney, Stilley,

was not constitutionally ineffective.

      The court proceeded to sentence Blackstock. Over Blackstock’s objection,

the court applied USSG §§2T1.4 and 2T4.1, setting the base offense level at 20

based on a total loss of $827,587. This total included both actual and intended

losses. The court also applied a 2-level increase under §2T1.4(b)(1) because

Blackstock was in the business of preparing or assisting in the preparation of tax

returns. The adjusted offense level was 22. Based on a criminal history category

of I, the guideline range w as 41 to 51 months. Recognizing the guidelines are

advisory and considering the factors enumerated in 18 U.S.C. § 3553(a), the court

sentenced Blackstock to 36 months imprisonment on Count 1 and 12 months each

on all of the other counts. The court directed these latter sentences to run

concurrently with each other and consecutively to the sentence for count 1,

resulting in a total of 48 months imprisonment.

      Blackstock filed a direct criminal appeal (No. 06-5201) challenging the

sufficiency of the indictment and the jurisdiction of the court, both personal and

                                         -4-
subject matter. He also claims the court’s jury instructions were in error because

the existence of a known legal duty was a question of law rather than a question

of fact. In addition, he protests the district court’s use of judge found facts to

sentence him and maintains his trial counsels’ performance failed to meet the

standards under the Sixth Amendment’s effective assistance of counsel guarantee.

      Blackstock also filed a habeas corpus petition in the district court. The

district court dismissed his petition without prejudice. Blackstock also appeals

from that decision (No. 06-5198). For convenience, we have consolidated both

appeals and consider the cases in turn.

                                  II. D ISC USSIO N

      A.     No. 06-5198, Habeas Appeal

             1.     Appellate Jurisdiction

      As we have noted, the district court dismissed Blackstock’s habeas petition

without prejudice, citing the rule that district courts should not normally consider

collateral proceedings while the underlying criminal case is on direct appeal. See

United States v. Prows, 448 F.3d 1223, 1228 (10th Cir. 2006). Although the

parties have not raised the issue, “a federal court must, sua sponte, satisfy itself of

its power to adjudicate in every case and at every stage of the proceedings.” State

Farm M ut. Auto. Ins. Co. v. Narvaez, 149 F.3d 1269, 1270 -1271 (10th Cir.

1998). 28 U.S.C. § 2253, the jurisdictional statute governing habeas

appeals, requires a “final order” before it vests the Court of Appeals w ith

                                          -5-
jurisdiction. The district court made it clear in its order dismissing the petition

that Blackstock would have the ability to re-file his habeas petition after the

disposition of his direct appeal; therefore, the district court’s disposition was

without prejudice, and consequently non-final. Because we lack jurisdiction over

the appeal, we dismiss Blackstock’s habeas appeal and proceed to consider

Blackstock’s direct appeal.

      B.     No. 06-5201, Direct Appeal

             1.     Sufficiency of the Indictment

      Blackstock alleges the indictment is void because it did not allege “the

ultimate facts” to be presented to the jury and because it failed to charge

“‘crimes’ or ‘offenses’ cognizable in a court of the United States . . . .”

(A ppellant’s Br. at 8.) W e review the sufficiency of an indictment de novo.

United States. v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006).

       “[A]n indictment is sufficient if it provides the defendant with adequate

notice of the charges and an opportunity to prepare his defense.” United States v.

Lotspeich, 796 F.2d 1268, 1273 (10th Cir. 1986). Blackstock’s indictment

included sufficient details for each count to put him on notice of the charges and

give him an opportunity to prepare a defense, including the date of each offense,

the initials of the taxpayers involved, the tax year and form used for the returns,

and the amount of the false deductions claimed.

             2.     District Court’s Jurisdiction

                                          -6-
         Blackstock also argues the district court lacked subject matter jurisdiction

and personal jurisdiction over him because he is a citizen of a state and not a

citizen of the U nited States. W e review a challenge to the district court’s

jurisdiction de novo. United States v. Roberts, 185 F.3d 1125, 1129 (10th Cir.

1999).

         W e need not spend much time on this frivolous claim. In United States v.

Lussier, the court rejected the defendant’s “‘silly claim’” that the district court

lacked personal and subject matter jurisdiction because he was arrested on land

not actually owned and administered by the federal government. 929 F.2d 25, 27

(1st Cir. 1991). The court stated:

         It is well settled that a district court has personal jurisdiction over
         any party who appears before it, regardless of how his appearance
         was obtained. 18 U.S.C. § 3231, moreover, gives the district court
         subject matter jurisdiction over “all offenses against the laws of the
         United States.” This category of offenses obviously includes the
         [tax] crimes defined in Title 26.

Id. (citations omitted). It simply “defies credulity to argue that the district court

lacked jurisdiction to adjudicate the government’s case against defendant.”

United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990).

               3.     Whether the existence of a “known legal duty” is a question of
                      fact or law

         Blackstock argues the district court should have determined whether there




                                            -7-
was a “known legal duty” as a matter of law instead of submitting the matter to a

jury. 2

          “The proliferation of statutes and regulations has sometimes made it

difficult for the average citizen to know and comprehend the extent of the duties

and obligations imposed by the tax laws.” Cheek v. United States, 498 U.S. 192,

199-200 (1991). “Congress has accordingly softened the impact of the

common-law presumption [that every person knew the law ] by making specific

intent to violate the law an element of certain federal criminal tax offenses.” Id.

at 200. Thus, the Supreme Court has held the “willfulness” element requires “the

‘voluntary, intentional violation of a known legal duty.’” Id. at 201. To make

this showing, “the Government [must] prove that the law imposed a duty on the

defendant, that the defendant knew of this duty, and that he voluntarily and

intentionally violated that duty.” Id.

          The Cheek court made clear that “[k]nowledge and belief are

characteristically questions for the factfinder . . . .” Id. at 203. Indeed, the C ourt

disapproved of the Seventh Circuit’s “[c]haracteriz[ation] of a particular belief as

not objectively reasonable [because it] transforms the inquiry into a legal one and

would prevent the jury from considering it.” W e have applied the Cheek

wilfulness standard to the same statute under w hich Blackstock was convicted.

          2
        W e are intrigued that a defendant would argue the question is a matter for
the judge instead of the jury. W ere he successful in his argument, Blackstock
would have ceded a matter from the jury of his peers to a judicial official.

                                           -8-
See U nited States v. Ambort, 405 F.3d 1109, 1114 (10th Cir. 2005). Thus, it

seems plain the district court properly submitted the question of Blackstock’s

knowledge to the jury.

      Blackstock points to a pair of Fourth Circuit cases for the rule that “when

the law is vague or highly debateable, a defendant – actually or imputedly – lacks

the requisite intent to violate it.” United States v. Critzer, 498 F.2d 1160, 1162

(4th Cir. 1974); accord United States v. M allas, 762 F.2d 361, 363 (4th Cir. 1985)

(“Criminal prosecution for the violation of an unclear duty itself violates the clear

constitutional duty of the government to warn citizens whether particular conduct

is legal or illegal.”). However, Blackstock fails to recognize the defendants in

these cases were charged based on conduct that presented difficult questions of

tax law : M allas dealt with “[w]hether annual advance minimum royalties that are

recoupable from warranted coal reserves acquired after execution of a lease but

before payment of the royalty may be deducted from gross income,” M allas, 762

F.2d at 363, and Critzer dealt with whether the defendant was required to report

income derived from land held by the government in trust for the Eastern

Cherokee Indians, a point upon which different branches of government

disagreed. Critzer, 498 F.2d 1161.

      It is easy to see how Blackstock’s citations miss the mark; here, the law

clearly defines the proscribed conduct. Blackstock does not show any legal

authority suggesting it was debatable whether he could legally assist in the filing

                                         -9-
of returns which claimed all of the compensation, wages or other income as

deductions. W e therefore conclude the district court correctly followed the

teaching of Cheek in submitting the issue to the jury.

      4.     Sentencing

      Blackstock argues the district court committed “constitutional Booker

error” by using judge found facts to enhance his sentence. United States v.

Gonzalez-H uerta, 403 F.3d 727, 731 (10th Cir.) (en banc), cert. denied,

126 S.Ct. 495 (2005). Blackstock fails to recognize, however, that a court

commits constitutional Booker error only when the court uses judge found facts to

enhance a sentence under a mandatory guidelines system. Id. In this case, the

district court clearly recognized the guidelines were “advisory and not

mandatory.” (R. Vol. XI at 38.) Thus, the judge’s sentencing could not have

constituted constitutional Booker error.

      5.     Ineffective assistance of counsel

      Finally, Blackstock alleges in his direct criminal appeal that his counsel

was ineffective. “Ineffective assistance of counsel claims should be brought in

collateral proceedings, not on direct appeal. Such claims brought on direct appeal

are presumptively dismissible, and virtually all will be dismissed.” United States

v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc).

      “[I]n rare instances an ineffectiveness of counsel claim may need no further

development prior to review on direct appeal.” Id. This exception is not

                                           -10-
applicable here. Our review would be much aided by the development of

testimony and evidence as well as the district court’s resolution of the issue.

Blackstock’s ineffective assistance claim will be dismissed.

                                III. C ON CLU SIO N

      W e DISM ISS Blackstock’s appeal from the dismissal of his habeas petition

and the ineffective assistance of counsel claim and AFFIRM all remaining

claims. In light of the disposition of these appeals, we also GR ANT counsel’s

pending motion to w ithdraw .

                                                ENTERED FOR THE COURT


                                                Terrence L. O’Brien
                                                Circuit Judge




                                         -11-
