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

unanimously that oral argument would not materially assist 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.

FILED

United States Court of Appeals

Tenth Circuit

September 25, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JIMMY C. CHISUM,

Defendant-Appellant.

No. 06-7082

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. CR-05-43-001-RAW)

Submitted on the briefs:*

Stephen J. Knorr, Tulsa, Oklahoma, for Defendant-Appellant.

Sheldon J. Sperling, United States Attorney, Robert G. Guthrie, Assistant United

States Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee.

Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.

HARTZ, Circuit Judge.

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Jimmy C. Chisum appeals his conviction and sentence on four counts of tax

evasion. He contends that the district court erred in admitting evidence of his

lawsuits against tax-court judges and in applying a sentencing enhancement based

on his role in the tax-evasion offenses. He also contends that he was not timely

tried under the federal Speedy Trial Act, that the district court lacked

subject-matter jurisdiction, that the federal Paperwork Reduction Act barred his

prosecution, and that the indictment and evidence were insufficient. As explained

below, we affirm Mr. Chisum’s conviction, but we reverse and remand for

resentencing.

BACKGROUND

In April 2005 Mr. Chisum, a self-styled business and estate planner, was

indicted for aiding and abetting the willful attempt to evade income taxes owed

by Brian and Mitzi Chadsey for the calendar years 1997 through 2000. See 18

U.S.C. § 2; 26 U.S.C. § 7201. The government’s theory of the case was

“essentially that [Mr. Chisum] created a sham trust to attempt to conceal income

[Brian] Chadsey earned from his business, Regional Chiropractic Health Care,” a

limited liability company. R., Vol. 1, Doc. 35 at 2-3 (Bill of Particulars). Upon

being informed that Mr. Chisum wished to represent himself, the district court

appointed attorney Stephen Knorr to assist him as standby counsel.

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At trial the government introduced testimony to establish the following: 

Brian Chadsey met Mr. Chisum at one of Mr. Chisum’s seminars on “business

structure, limited liability companies and trusts.” Id., Vol. 4 at 123 (Chadsey

testimony). They later entered into an arrangement in which Mr. Chadsey

allocated 95% of the income from Regional Chiropractic to CSEA Cottage

Limited, a trust established by Mr. Chisum “to take care of tax matters and

anything else that was needed.” Id. at 126. Mr. Chisum told Mr. Chadsey that

taxes would have to be paid only on the money that Mr. Chadsey took from

Regional Chiropractic as a salary and that the rest of the income “would end up in

a non-controlled foreign corporation that was not taxable under U.S. tax law.” Id.

at 129. Mr. Chadsey did “[n]ot intimately” understand the details of how the

income became nontaxable. Id. Mr. Chadsey followed Mr. Chisum’s directions

in filing tax returns for 1997 through 2000, underreporting Regional

Chiropractic’s income by about $207,000. In July 2000 the IRS began auditing

Regional Chiropractic. In accordance with Mr. Chisum’s advice, Mr. Chadsey

filed amended income-tax returns for the years 1997 through 2000, reporting that

Regional Chiropractic had no income.

In July 2001 Mr. Chisum appeared at an IRS office in response to a

summons seeking Regional Chiropractic’s records, but he refused to produce the

requested books and records. Even after a judge ordered production of the

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records, Mr. Chisum advised Mr. Chadsey that he could refuse to produce them. 

Eventually, Mr. Chadsey obtained counsel and began to cooperate with the IRS.

In its case-in-chief, the government also introduced into evidence several

tax-court decisions from 1999 and 2000 holding that trusts created by Mr. Chisum

were shams.

Mr. Chisum testified at trial that he did not intend to commit the crimes

charged:

Whether or not I’ve willfully evaded a known duty is the

question before you. And it’s my opinion, it was my belief through

my own study, my own research, my own history that I never knew

there was a duty. I thought, and still believe in my heart, that the

income tax system in America is written to be a hundred percent

compatible with the scripture, and that it has a very strong voluntary

component to it.

R., Vol. 6 at 490. In rebuttal the government offered evidence of lawsuits filed

by Mr. Chisum in 2002 against tax-court judges who had issued opinions

declaring various Chisum trusts to be shams. The jury returned guilty verdicts

against Mr. Chisum on all four counts in the indictment.

The probation department prepared a presentence report calculating a

United States Sentencing Guidelines (U.S.S.G.) range of 78 to 97 months’

imprisonment based on Mr. Chisum’s category-one criminal history and offense

level of 28. The government objected, seeking a two-level upward adjustment of

the offense level under U.S.S.G. § 3B1.1(c), claiming that Mr. Chisum “was an

organizer, leader, manager, or supervisor of Mr. Chadsey’s (along with many

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others) criminal activity.” R., Vol. 8 (Feb. 26, 2006 letter to Supervising U.S.

Probation Officer at 1). The probation department opposed the adjustment,

stating that § 3B1.1(c) did not apply because “it does not appear that the other

participants initially intentionally entered into any criminal activity with [Mr.

Chisum].” Id. (Addendum to the Presentence Report at 1). At the sentencing

hearing the government asserted that under § 3B1.1(c), “it’s not necessary that

there be another criminal participant [besides Mr. Chisum]. There just has to be

criminal activity.” Id., Vol. 7 at 149.

The district court sustained the government’s objection, ruling that

§ 3B1.1(c) was applicable:

Mr. Chisum provided seminar participants with specific information

and examples of how to set up trusts to protect their property, assets,

and income from taxation. Mr. Brian Chadsey testified during the

trial in this case that his own involvement in filing false income tax

returns was due to the advice and direction of Mr. Chisum. 

Likewise, Mr. Chisum has provided the same or similar directions to

many other persons, which resulted in the filing of income tax

returns which did not . . . contain complete and truthful information

regarding the legitimate taxes owed to the Internal Revenue Service. 

Mr. Chisum assisted individuals in setting up sham trusts to disguise

or hide taxable income and acted as the trustee for many people, in

addition to Brian Chadsey. He also acted as tax matters partner and

interceded with the Internal Revenue Service on behalf of many of

these people when their tax returns were questioned by the IRS. . . . 

[T]he Court finds by a preponderance of the evidence that

Mr. Chisum was a leader and organizer of others in the criminal

activity of tax evasion and filing of false income tax returns.

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Id. at 152-53. Accordingly, the district court increased Mr. Chisum’s offense

level by two, which made the applicable sentencing range 97 to 121 months. The

district court imposed a 97-month sentence.

Mr. Chisum appealed. We directed Mr. Knorr to file an appellate brief. 

Because Mr. Knorr thought that several issues pressed by his client were

meritless, he raised them under Anders v. State of Cal., 386 U.S. 738 (1967)

(describing proper procedure for defense attorney raising meritless arguments

pressed by client). In addition, he raised two non-Anders issues.

DISCUSSION

I. Non-Anders Issues

A. Evidence of Mr. Chisum’s Lawsuits

Mr. Chisum argues that he was extremely prejudiced by evidence of his

lawsuits against tax judges. He asserts that the evidence portrayed him as a tax

protester and that it added nothing relevant because the district court had already

admitted the tax judges’ opinions finding his trusts to be shams. “We review

challenges to admissibility of evidence solely for abuse of discretion.” United

States v. Reddeck, 22 F.3d 1504, 1508 (10th Cir. 1994).

Under Federal Rule of Evidence 403, “[a]lthough relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.”

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Evidence is relevant if it has “any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Fed. R. Evid. 401.

The intent requirement in criminal tax cases is particularly strict. As the

Supreme Court stated in Cheek v. U.S., 498 U.S. 192, 201-02 (1991):

Willfulness, as construed by our prior decisions in criminal tax

cases, requires the Government to 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. . . . [I]f the

Government proves actual knowledge of the pertinent legal duty, the

prosecution, without more, has satisfied the knowledge component of

the willfulness requirement. But carrying this burden requires

negating a defendant’s claim of ignorance of the law or a claim that

because of a misunderstanding of the law, he had a good-faith belief

that he was not violating any of the provisions of the tax laws. . . . 

In the end, the issue is whether, based on all the evidence, the

Government has proved that the defendant was aware of the duty at

issue, which cannot be true if the jury credits a good-faith

misunderstanding and belief submission, whether or not the claimed

belief or misunderstanding is objectively reasonable.

In light of this intent requirement, the district court did not abuse its discretion in

admitting Mr. Chisum’s prior complaints. He had sued the tax judges for

attempting to “put[ ] [him] out of business” by ruling that the income received by

his trusts was taxable. R., Vol. 1, Doc. 69, Ex. 82 (Am. Compl. at 4). The

lawsuits tended to show that he was not acting in good faith in continuing his

scams. In particular, Mr. Chadsey testified that he and Mr. Chisum had talked

“about trusts that were ruled as shams. But he always assured us that they

weren’t the same as the trust that he was using.” Id., Vol. 4 at 223. To rebut any

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inference that Mr. Chisum believed in good faith that the arrangement with the

Chadseys was distinguishable from the trusts upon which the tax court had ruled,

the government was entitled to show Mr. Chisum’s hostile attitude to the prior

rulings. A jury could infer that he simply was unwilling to submit to what he

knew were authoritative statements of the law. Moreover, we see little danger of

unfair prejudice, given that the tax-court decisions had already been admitted as

evidence without objection.

B. § 3B1.1 Enhancement

Mr. Chisum argues that the district court erred in calculating his offense

level under the sentencing guidelines by applying a sentencing enhancement

based on his role as a leader and organizer of a criminal scheme. After United

States v. Booker, 543 U.S. 220 (2005), we review sentences for reasonableness. 

United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). “A sentence

cannot . . . be considered reasonable if the manner in which it was determined

was unreasonable, i.e., if it was based on an improper determination of the

applicable Guidelines range.” Id. at 1055. When considering a district court’s

application of the Guidelines, “we review legal questions de novo and we review

any factual findings for clear error, giving due deference to the district court’s

application of the guidelines to the facts.” United States v. Wolfe, 435 F.3d 1289,

1295 (10th Cir. 2006).

U.S.S.G. § 3B1.1 provides:

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Based on the defendant’s role in the offense, increase the offense

level as follows:

(a) If the defendant was an organizer or leader of a criminal activity

that involved five or more participants or was otherwise extensive,

increase by 4 levels.

(b) If the defendant was a manager or supervisor (but not an

organizer or leader) and the criminal activity involved five or more

participants or was otherwise extensive, increase by 3 levels.

(c) If the defendant was an organizer, leader, manager, or supervisor

in any criminal activity other than described in (a) or (b), increase

by 2 levels.

(emphasis added). “All of the roles defined by § 3B1.1 require the involvement

of more than one participant. Although § 3B1.1(c) does not include the word

‘participant’ as subsections (a) and (b) do, the terms ‘organizer,’ ‘leader,’

‘manager,’ and ‘supervisor’ used in subsection (c) suggest the presence of

participants other than the defendant who were the defendant’s underlings or

subordinates.” United States v. Bauer, 995 F.2d 182, 183-84 (10th Cir. 1993)

(citations omitted). Under the Guidelines, “[a] ‘participant’ is a person who is

criminally responsible for the commission of the offense, but need not have been

convicted.” U.S.S.G. § 3B1.1, commentary (application note 1). See United

States v. Aptt, 354 F.3d 1269, 1285 (10th Cir. 2004).

A district court “must make specific findings and advance a factual basis to

support an enhancement under U.S.S.G. § 3B1.1.” United States v. Ivy, 83 F.3d

1266, 1292 (10th Cir. 1996) (brackets and internal quotation marks omitted).

Thus, the district court was required to find that Mr. Chisum organized, led,

managed, or supervised at least one person who was criminally responsible. But

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Mr. Chisum asserts, and we agree, that it did not do so. The district court appears

to have adopted the government’s view that a subsection (c) enhancement does

not require the involvement of a participant.

On appeal the government contends that it is “obvious” that the district

court believed that Mr. Chadsey was criminally responsible, intending to

participate in the commission of Mr. Chisum’s offenses. Aplee. Br. at 31. But

we do not view the record as that clear. The evidence of Mr. Chadsey’s guilt is

not overwhelming. See, e.g., R., Vol. 4 at 128 (Chadsey testimony that Mr.

Chisum reassured him “[s]omewhere between ten and fifty” times that the tax

arrangements were legitimate); id. at 239 (Chadsey testimony that he considered

Mr. Chisum to be his tax advisor and greatly respected Mr. Chisum’s advice); id.

at 240 (Chadsey testimony that he believed “that the tax code said that what we

had earned wasn’t income”). And “even if the record overwhelmingly supports

the enhancement, appellate fact-finding cannot substitute for the district court’s

duty to articulate clearly the reasons for the enhancement.” Ivy, 83 F.3d at 1292

(internal quotation marks omitted). Consequently, this matter must be remanded

for the entry of specific findings of fact regarding the criminal culpability of any

coparticipants.

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II. Anders Issues

A. Speedy Trial Act

Mr. Chisum argues that “the indictment should be dismissed based on a

violation of the Speedy Trial Act, 18 U.S.C. § 3161.” Aplt. Br. at 24 (emphasis

omitted). He claims that the Act was violated because (1) the trial did not begin

within 70 days of his initial appearance, and (2) the district court did not make

factual findings excluding from the 70-day period the two-month continuance he

requested and obtained. But because Mr. Chisum failed to move for dismissal

before trial, he has “waived his right to that remedy.” United States v. Gomez, 67

F.3d 1515, 1520 (10th Cir. 1995).

B. Subject-Matter Jurisdiction

Mr. Chisum contends that the district court erred in denying his motions to

dismiss for lack of jurisdiction. He claims that the federal district court for the

Eastern District of Oklahoma is “incapable of acting by Article III judicial powers

within the State of Oklahoma’s sovereign territory and without the federal zone.” 

Aplt. Br. at 26-27. Our review is de novo. See Mires v. United States, 466 F.3d

1208, 1209 (10th Cir. 2006). We rejected this “hackneyed tax protester refrain”

17 years ago in United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990), and

we do so again today. The district court did not err in denying Mr. Chisum’s

motions to dismiss for lack of jurisdiction.

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C. The Paperwork Reduction Act (PRA)

The PRA, 44 U.S.C. §§ 3501-20, precludes the imposition of any penalty

against a person for “failing to comply with a collection of information” if either

(1) it “does not display a valid control number” or (2) the agency fails to alert the

person that he or she “is not required to respond to the collection of information

unless it displays a valid control number.” 44 U.S.C. § 3512(a). A § 3512(a)

defense may be raised at any time. See id. § 3512(b). Tax forms are covered by

the PRA. See Dole v. United Steelworkers of Am., 494 U.S. 26, 33 (1990).

Mr. Chisum contends that “[s]ince there was no proof that Form 1040 was a

lawful form under the [PRA], the trial court erred in failing to grant [his] request

[at the sentencing hearing] to dismiss the indictment.” Aplt. Br. at 29. But the

PRA protects a person only “for failing to file information. It does not protect

one who files information which is false.” Collins, 920 F.2d at 630 n.13 (internal

quotation marks omitted). The charges against Mr. Chisum were predicated on

the filing of false information, not the failure to file. He is therefore not entitled

to relief.

D. Sufficiency of the Evidence

In reviewing for sufficiency of the evidence, “our role is limited to

determining whether a reasonable jury could find guilt beyond a reasonable doubt,

based on the direct and circumstantial evidence, together with the reasonable

inferences to be drawn therefrom.” United States v. Sells, 477 F.3d 1226, 1235

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(10th Cir. 2007) (internal quotation marks omitted). Because Mr. Chisum did not

contest the sufficiency of the evidence below, we review for plain error. See

United States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007). Accordingly, he

“must show: (1) an error, (2) that is plain, which means clear or obvious under

current law, and (3) that affects substantial rights. If he satisfies these criteria,

this Court may exercise discretion to correct the error if it seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (internal

quotation marks omitted).

“To obtain a conviction for evasion, the government must prove three

elements: 1) the existence of a substantial tax liability, 2) willfulness, and 3) an

affirmative act constituting an evasion or attempted evasion of the tax.” United

States v. Meek, 998 F.2d 776, 779 (10th Cir. 1993). Mr. Chisum argues “that

there was no evidence presented that the required process to determine an

assessment was followed in this case and thus no tax liability was proven at trial.” 

Aplt. Br. at 30. But “certified transcripts”—what the IRS calls “Certificate[s] of

Assessments”—were admitted at trial, R., Vol. 4 at 96, 97, and are sufficient to

establish the propriety of tax assessments in the absence of conflicting evidence,

see March v. IRS, 335 F.3d 1186, 1188 (10th Cir. 2003) (observing that

“Certificates of Assessments and Payments on Form 4340” constitute

“presumptive proof of a valid assessment” (internal quotation marks omitted));

United States v. Voorhies, 658 F.2d 710, 715 (9th Cir. 1981) (recognizing the

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presumption in a tax-evasion case). Mr. Chisum offered nothing to contradict the

information in those transcripts. There appears to have been sufficient evidence

of the existence of a tax liability. Thus, the district court did not plainly err in

refusing to dismiss the indictment for insufficient evidence.

E. Sufficiency of the Indictment

The federal tax-evasion statute proscribes attempts to evade “any tax

imposed by this title.” 26 U.S.C. § 7201 (emphasis added). Mr. Chisum argues

that the district court erred in denying his postverdict motion to dismiss the

indictment for omitting “what part of Title 26 imposed the tax that was being

evaded or defeated.” Aplt. Br. at 31. “[W]e review indictments liberally when

they are challenged for the first time after a verdict.” United States v. Avery,

295 F.3d 1158, 1176 (10th Cir. 2002); see Fed. R. Cr. P. 12(b)(3)(B).

“An indictment is sufficient if it sets forth the elements of the offense

charged, puts the defendant on fair notice of the charges against which he must

defend, and enables the defendant to assert a double jeopardy defense.” United

States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997). The indictment alleged

that Mr. Chisum violated 26 U.S.C. § 7201 (tax evasion) and 18 U.S.C. § 2

(principal liability) by

willfully attempt[ing] to evade and defeat individual income taxes

due and owing by [the Chadseys] . . . for the calendar year [1997,

1998, 1999, or 2000 in the four counts] by committing various

affirmative acts of evasion, including causing to be prepared false

income tax returns, utilizing trusts, concealing assets and income by

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maintaining bank accounts and off shore accounts in nominee names,

and by attempting to obstruct the [IRS] during an audit of Brian F.

Chadsey and Mitzi P. Chadsey.

R., Doc. 1 at 1, 2, 3. These allegations contain the elements of tax evasion, see

Meek, 998 F.2d at 779, provide sufficient notice of the charges, and are drawn

with sufficient specificity to foreclose further prosecution on the same charges. 

The mere omission of the specific statutory authority for the Chadseys’ tax

liability does not render the indictment insufficient. Cf. United States v. Vroman,

975 F.2d 669, 670-71 (9th Cir. 1992) (indictment for failure to file income-tax

returns that cited the penalizing statutes held sufficient even though it failed to

cite the statute that requires the filing of a tax return).

CONCLUSION

We affirm Mr. Chisum’s conviction, but we reverse his sentence and

remand for further proceedings regarding a § 3B1.1(c) enhancement. We also

deny as moot Mr. Knorr’s motion to withdraw and Mr. Chisum’s motions to

remove Mr. Knorr as counsel and to proceed pro se. Finally, we treat

Mr. Chisum’s motions to amend the opening brief and to nullify United States v.

Magallanez, 408 F.3d 672 (10th Cir. 2005), as submissions under Fed. R. App. P.

28(j), seeking to call our attention to Cunningham v. California, 127 S. Ct. 856

(2007). Mr. Chisum will have the opportunity to argue Cunningham’s

applicability on remand.

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