*

 This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 30 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN M. O’LEARY,

Defendant - Appellant.

No. 96-2248

(D.C. No. CR-92-398-JP)

(District of New Mexico)

ORDER AND JUDGMENT*

Before TACHA, HENRY and LUCERO, Circuit Judges.

John O’Leary appeals the revocation of his probation. The district court

found that O’Leary had violated the special condition of his probation that

required him to timely file all income tax returns as required by law. We affirm.
1The record reflects that defendant was ordered to surrender in December 1996 for

service of his sentence. Even if defendant has been released from federal custody and is

no longer on probation, this appeal is not moot because of possible collateral

consequences, United States v. Reider, 103 F.3d 99, 101 (10th Cir. 1996), of the

probation revocation in the event defendant is prosecuted for additional income tax

-2-

I. Background

In 1993, a jury found O’Leary guilty on four counts of willful failure to file

income tax returns, in violation of 26 U.S.C. § 7203. Defendant was given a one

year suspended sentence, with three years probation. The sentencing judge

imposed a special condition of probation, requiring defendant to “comply with all

regulations set forth by the Internal Revenue Service and timely file all income

tax returns required by law.” 

In 1996, a probation officer filed a petition to revoke O’Leary’s probation. 

The petition alleged that O’Leary had not filed his income tax returns for the

years 1993 and 1994, as required by the terms of his probation. After a probation

revocation hearing, the district court found that O’Leary had failed to file income

tax returns for the years 1993 and 1994, and that his total income during those

years was of a magnitude that would have required returns to be filed. 

Accordingly, the court concluded that O’Leary violated the special condition of

his probation that mandated the filing of all income tax returns as required by

law. The court revoked O’Leary’s probation and sentenced him to five months

imprisonment.1
violations. See Transcript of Probation Revocation Hearing, III R. at 12 (summarizing

government’s evidence that defendant failed to file returns from 1986 to 1994). 

-3-

O’Leary argues on appeal that the district court abused its discretion when

it refused to let him introduce testimony from his expert witness. He also

maintains that there was insufficient evidence that he willfully violated the terms

of his probation. 

Revocation of probation is a matter within the district court’s discretion. 

United States v. Reber, 876 F.2d 81, 83 (10th Cir. 1989). “‘Probation may be

revoked if the district court is reasonably satisfied that a violation of probation

conditions has occurred.’” Id. (quoting United States v. Rife, 835 F.2d 154, 156

(7th Cir. 1987). This court reviews the district court’s decision to revoke

probation for an abuse of discretion or for fundamental unfairness. Id. 

II. Analysis

We reject O’Leary’s argument that the district court abused its discretion

when it refused to allow his expert witness, Jack Stagner, to testify. O’Leary’s

attorney made an offer of proof as to Mr. Stagner’s testimony, stating that Mr.

Stagner would have testified that he was not able to find a provision in the tax

code or regulations that required O’Leary to file income tax returns. See III R. at

21.
-4-

The government objected to Mr. Stagner’s testimony, arguing that

O’Leary’s obligation to file tax returns had already been litigated and established

when O’Leary was convicted for failing to file tax returns. The district court

agreed that the issue of O’Leary’s duty to file tax returns had already been

established in the underlying criminal trial and affirmed on appeal. Id. at 24. 

Accordingly, the district court refused to allow Mr. Stagner to testify.

Defendant argues that Mr. Stagner’s testimony was crucial to his defense

that he did not willfully fail to file tax returns. Citing Gagnon v. Scarpelli, 411

U.S. 778 (1973), he argues that disallowance of that testimony amounts to a due

process violation. See id. at 781-82 & n.5 (holding that revocation of probation

requires due process, including the opportunity to present witnesses (citing

Morrissey v. Brewer, 408 U.S. 471 (1972)). 

We disagree. Even without Mr. Stagner’s testimony, the district court knew

that O’Leary was of the view that the tax code and regulations did not require him

to file income tax returns. See e.g., III R. at 19 (defendant’s attorney, addressing

the court, stated, “I am sure you are well aware of Mr. O’Leary’s argument that

there is no regulation or actual requirement in the statutes under the tax code that

a tax form has to be filed. . . . [T]his was brought forward at trial.”). Mr Stagner’s

testimony would have added nothing to the proceedings.
-5-

The district court judge presiding over the revocation hearing was the same

judge who presided at trial over the charges that O’Leary failed to file income tax

returns for the years 1986 through 1989. Then, the jury concluded that O’Leary

willfully failed to file the returns. This court found sufficient evidence of

willfulness to uphold the verdict on appeal. United States v. O’Leary, No. 93-

2224, 1995 WL 230292, at *4 (10th Cir. Apr. 18, 1995) (citing as evidence of

wilfulness defendant’s pattern of filing then failing to file, financial benefit from

failing to file, alterations in his W-4 forms, and reliance on tax avoidance book).

With certain exceptions, the tax code and regulations require every

individual with income exceeding the exemption amount to file a tax return. 26

U.S.C. § 6012; 26 C.F.R. § 1.6012-1(a). O’Leary has not argued that any of the

exceptions exempt him from the filing requirement. The filing requirement has

not changed since O’Leary was convicted in 1993 of failing to file income tax

returns, as the district court noted when it denied O’Leary’s request to have his

expert testify to the absence of any filing requirement. See III R. at 19. 

At the probation revocation hearing, the government introduced a letter

from an Internal Revenue agent to O’Leary, asking him to file his returns for

1986 through 1994. The government also proved that O’Leary earned enough in

wages and unemployment compensation for the years 1993 and 1994 to trigger the

filing requirement. 
-6-

Yet, despite the letter from the revenue agent and his previous conviction

for failing to file, O’Leary “persists in a pattern of simply refusing to

acknowledge that the laws of this nation require the filing of income tax returns

when a person is paid sums of the magnitude that he has been paid,” as the

district court concluded. III R. at 25. Upon our review of the record, we find

ample evidence that O’Leary willfully failed to file his income tax returns for

1993 and 1994. The district court did not abuse its discretion in refusing to let

O’Leary’s expert testify. Nor did it abuse its discretion in revoking probation. 

AFFIRMED.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge