The H onorable John T. Noonan, Jr., United States Circuit Judge for the Ninth 1 Circuit, sitting by designation. The Honorable Richard H. Battey, Chief Judge, United States District Court for 2 the District of South Dakota.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2986

___________ United States of America, * * Appellee, * * Appeal from the United States
v. * District Court for the * District of South Dakota Eugene H. Mathison, * * [UNPUBLISHED] Appellant. *

___________ Submitted: April 27, 1998 Filed: July 14, 1998

___________ Bef ore McMILLIAN, NOONAN, and MORRIS SHEPPARD ARNOLD, Circui t 1 Judges.

___________ PER CURIAM.
Eugene H. Mathison appeals from the final judgment entered in the Distric t Court fo r the District of South Dakota upon a jury verdict finding him guilty o f 2 multiple counts of tax evasion, in violation of 26 U.S.C. § 7201. The district court-2-

sentenc ed appellant to serve twenty-one months imprisonment and three year s sup ervisedrelease, and to pay $51,019.85 in restitution, a $4,000 fine, $1,448.8 0 representing the costs of

prosecution, and a special assessment of $650. For reversal, Mathison raises a number of pro se challenges to his jury-trial convictions and th e resultin g sentence. For the reasons discussed below, we affirm the judgment of th e district court.

Mat hison was the founder, treasurer, and CEO of Golden Age Services Corp., a company that sold living-trust packages to the public. After Gold en Age failed to pay vario us employment taxes, the Internal Revenue Service (IRS) investigated. As a result, Ma thison was later charged with thirteen counts of attempting to evade an d defeat the payment of federal income-withholding and FICA taxes owed by Golde n Age, by concealing and attempting to conceal assets from the IRS through placement of funds and property in the names of nominees, in violation of § 7201. On appea l Mat hisonfirst argues the district court erred in denying his motion to dismiss th e indictment against him, because § 7201 does not apply to the charged offenses. After de novo review, see United States v. Sykes , 73 F.3d 772, 773 (8th Cir.), cert. denied , 517 U.S. 1246 (1996), we reject this argument. Section 7201 clearly covers th e offenses d escribed in the indictment. See 26 U.S.C. § 7201 (stating in relevant par t that “[a]n y person who willfully attempts in any manner to evade or defeat any ta x imposed by this title o r the payment thereof shall . . . be guilty of a felony” (emphasis added)); United States v. McGill , 964 F.2d 222, 230 (3d Cir.) (§ 7201 encompasse s two kinds of affirmative behavior--evasion of a ssessment and evasion of payment--and latter includes, inter alia, placing assets in name of others; c iting Spies v. United States , 317 U.S. 492, 499 (1943)), cert. denied , 506 U.S. 1023 (1992).

Next, Mathison argues the district court erroneously admitted prior-bad-act s evid ence against him at trial. We agree with the district court, however, that th e evidence in question--a false answer Mathison gave during an interview with an IRS official who was investigating Golden Age’s delinquent taxes--was an act of evasion-3-

probative of willfulness, an element of the offenses being tried. We thus conclude the district court did not abuse its discre tion in admitting the testimony. See Fed. R. Evid. 404(b); United States v. Tomberlin , 130 F.3d 1318, 1320 (8th Cir. 1997) (standard of review); United States v. Heidebur , 122 F.3d 577, 579 (8th Cir. 1997) (Rule 404(b ) admits e vidence of other crimes or acts relevant to any issue in trial unless suc h eviden ce tends to prove only criminal disposition; bad acts that form integral part o f crime charged fall outside Rule & s ambit).
Mathison also complains the district court denie d him the right to call his former off ice secretary, who would have testified that she worked for Mathison at a ne w business after he left Golden A ge, and taxes were promptly paid there. Assuming this mat ter is properly before us as an evidentiary issue (the defense did not call thi s witness, and Mathison & s later pro se proffer of her testimony was made for the purpose of discharging counsel), we conclude the evidence was not so probative that the district court abused its broad discretion. See United Sta tes v. Barnes , 140 F.3d 737, 738 (8th Cir. 1998) (pe r curiam). In any event, given the other evidence against Mathison, we conclude any error in not admitting this testimony was harmless. See Fed. R. Crim

. P. 52(a).

Next, Mathison argues the district court improperly denied him the right t o discharge counsel and p resent closing argument pro se. We also reject this argument. Firs t, it is questionable whether Mathison unequivocally asked to proceed pro se , because he stated at one point that he wished to act as co-counsel. In any event, we do not believe the district judge--who w as concerned about jury confusion--abused his discretion in denying the request. See United States v. Einfeldt , 138 F.3d 373, 37 8 (1998) (no constitutional right to hybrid representation; it is available at district court & s discretion); United State s v. Webster , 84 F.3d 1056, 1062 & 1063 n.3 (8th Cir. 1996) (defendant must clearly and unequivocally assert desire to waive counsel and proceed pr o se; right to self-representation is unqualified only if demanded before trial, an d thereafter is subject to trial court & s discretion which requires balancing of defendant & s-4-

le gitimate interests in representing himself against potential disruption and possibl e delay). We likewise reject Mathison’s related contention that he is entitled to relie f because he withdrew his request for a lesser-charge instruction believing he coul d present closing argument pro se.

Mathison also argues the district court should have instructed the jury that, t o convic t him, it had to find more money was due than was reported, Mathison di d something to prevent the correct assessment of the tax owed, and he acted with an evil motive; Ma thison takes further issue with a portion of the instruction permitting th e jury, in determining willfulness, to consider any statements he had omitted. The record does not indicate Mathison preserved these issues by objecting below, and afte r reviewing the instructions as a whole, we find no error, much less plain error. See Fed. R. Crim. P. 52(b); United States v. Barnes , 140 F.3d at 738 (standard of review) ; Cheek v. United States , 498 U.S. 192, 201 (1991) (willfulness requires government to prove law imposed duty on defendant, defendant knew of duty, and defendan t voluntarily and intentionally violated duty); United States v. Clements , 73 F.3d 1330, 1338 (5th Cir. 1 996) (instruction accurately set out elements of § 7201 offense where jury was told evidence had to establish beyond reasonable doubt that defendan t knowingly and intentionally attempted to evade or defeat payment of taxes owed).
Next, Mathison argues the prosecution & s closing remarks injected new and false allegatio ns into the case. We reject this argument for lack of a showing that th e remarks were inconsistent with the evidenc e. Cf. United States v. Robinson , 110 F.3d 1320, 1327 (8th Cir.) (so long as prosecutors do not stray from evidence an d reasonable inferences from it, they may use colorful and forceful language in arguments to jury), cert. denied , 118 S. Ct. 432 (1997). Even if the statements were improper, the defense did not object t o them, and exceptional circumstances warranting reversal are not present here. See id. at 1326.-5-

We also reject Mathison’s sentencing arguments centering around his contention that he accurately reported taxes due and simply did not pay them, and we specifically reject his contention that the district court wrongly assessed a two-level enhancement for using a sophisticated means to impede discovery of the offense. See U.S.S.G

. § 2T1.1(b)(2) (1997); cf. United States v. Becker , 965 F.2d 383, 390 (7th Cir. 1992) (affirming sophisticated-means enhancement where de fendant hid assets under account identified by arbitrary number, eliminated all ban k accounts in his name, and deposited earnings in son & s a ccount), cert. denied , 507 U.S. 971 (1993). Mathison’s suggestion that the district court should have referenced existing tax liens in its restitution orde r is equally meritless.
Mathison raises numerous issues relating to a search warrant affidavit. How ever, he did not file a motion to suppress or object to evidence based on an illegal search

. More over, he challenged the search warrant in another criminal case resulting i n conviction s that are presently on appeal before us. We thus decline to consider th e search warrant issues Mathis on raises here, except to the limited extent we summarily reject his argument that the affidavit was improper for lack of any allegations that he tried to interfere with the assessment of the amount of tax due.

Last , we note Mathison’s claims of ineffective assistance of counsel are mor e prope rly raised in proceedings under 28 U.S.C. § 2255. See United States v

. Reyna-Segovia , 125 F.3d 645, 646 (8th Cir.1997) (per curiam).

Accor dingly, we affirm the judgment of the district court. We also deny, a s meritless or moot, the various motions the parties have filed on appeal.-6-

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.