UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-2148

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES E. STAFFORD,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(January 26, 1993)

Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.

POLITZ, Chief Judge:

Convicted by a jury of tax evasion, 26 U.S.C. § 7201, James E.

Stafford appeals, contending that the trial court erred in

evidentiary rulings, allowing certain prosecutorial comments, and

in its instruction s to the jury. He also appeals his sentence,

contending t hat two conditions of probation are overly broad and

harsh. Finding neither error nor abuse of discretion in the

challenges to his conviction, we affirm. Finding error in the

imposition of the particular conditions of probation we vacate that

portion only of the sentence and remand for its re-imposition.

Stafford, a tax pro testor, did not file federal tax returns1 Stafford's or iginal counsel, later dismissed, included

the section 7203 charge in his requested jury instructions.

Stafford's subsequent trial counsel did not r equest the lesser

included charge.

2 for the years 1985, 1986, and 1987. He claims a belief that wages

are not income and that filin g a tax return is purely voluntary.

Indicted and convicted of three counts of tax evasion he was

sentenced to three years probation, requiring six months in a

community halfway house. The conditions of probation also require

that he provide his probation officer with "access to any requested

financial information" and "cooperat e with the Internal Revenue

Service to resolve the tax matter subject of the indictment."

Analysis

1. Jury instructions

Stafford posits two challenges to the jury charge, contending

that the court should have instructed the jury on: (1) the lesser

included misdemeanor offense of willful fa ilure to file a tax

return, 26 U.S.C. § 7203; and (2) that under 26 U.S.C. § 6020(b)(1)

the Secretary may file a return for a taxpayer who fails to do so.

Both challenges founder.

We first consider the lesser included offense challenge.

Albeit his coun sel did not object, 1 Stafford contends that the

trial court e rred in failing to instruct the jury on the lesser

included misdemeanor, the failure-to- file offense. When an

omission from a jury charge is raised for the first time on appeal,2 United States v. Sellers , 926 F.2d 410 (5th Cir. 1991).

3 926 F.2d at 417 (citing United States v. Welch , 810 F.2d

485, 487 (5th Cir. 1987)).

4 956 F.2d 73 (5th Cir. 1992).

5 United Stat es v. Lopez Andino

, 831 F.2d 1164 (1st Cir.

1987), cert

. denied , 486 U.S. 1084 (1988).

6 Stafford's counsel made several such comments during his

closing argument, including the following:

This case is not about a failure to file. The

Government's attorney explained to the jury and even to

our client yesterday on the witness stand that this is

not a failure to file case.

The issue in our case today is evasion. It's not

failure to pay. It's not failure to file. It's evasion.

This case is about evasion. As far as my client is

concerned, all we're here today to decide is did he

believe that he was within the law. That's our only

decision. W e're not here to decide whether or not he

3 we review only for plain error. 2 "Error in a charge is plain only

when, considering the entire charge and evidence presented against

the defendant, there is a likelihood of a grave miscarriage of

justice." 3

In United States v. Doyle

, 4 a tax evasion prosecution, we held

that it was reversible error for the district court not to give the

requested instruction on the misdemeanor offense of failure to file

a return. In this case, however, Stafford did not make such a

request. A criminal defendant is entitled to make a strategic

choice to forgo the lesser included offense instruction. 5 That

choice obviously was made herein. Stafford's counsel emphasized

during closing arguments that Stafford was charged with tax evasion

and not with the failure to file. 6 We conclude that the districtshould or should not have filed a return

. T he IRS didn't

ask you for that one . [Emphasis supplied.]

7 955 F.2d 1206 (9th Cir. 1992).

8 955 F.2d at 1213.

9 Id. The jury should be able to acquit "if it finds that

[the defendant] believed in good faith that § 6020(b) removed the

obligation to file a tax return, and not because the jury itself

has so interpreted the statute."

4 court did not commit plain error by not giving that instruction.

Nor do we find any merit in Stafford's complaint that the jury

charge did not include the text of section 6020(b) which authorizes

the Secretary to file a return for a taxpayer. Although not a part

of the instruction, the statute was read to the jury. The jury was

correctly charged that although the section authorizes the

Secretary to file for a taxpayer, the statute does not require such

a filing, nor does it relieve the taxpayer of the duty to file.

In United States v. Powell

, 7 our colleagues in the Ninth

Circuit held that the trial court must instruct the jury on the

correct meaning of section 6020(b)(1). "The jury cannot be allowed

t o decide on its own that § 6020(b) somehow makes law ful the

failure to file a return," 8 when in fact it does not. The P owell

court caution ed, however, that "an instruction on § 6020(b) must

not be framed in a way that distracts the jury from its duty to

consider a defendant's good faith defense." 9 In this case the jury

was instructed on both the correct meaning of section 6020(b) and

the defendant's good faith defense. "A challenged jury instruction10 United States v. Barnett , 945 F.2d 1296, 1298 (5th Cir.

1991), cert

. denied

, 112 S.Ct. 617 (1992) (citing United States v.

Eargle , 921 F.2d 56, 57 (5th Cir. 1991)).

11 Powell

.

1 2 Cheek v. United States

, 498 U.S. 192, 111 S.Ct. 604, 112

L.Ed.2d 617 (1991).

5 must be assessed in light of the entire jury charge." 10 Read as a

whole, we find that the jury instructions given herein were

adequate and appropriate.

2. Exclusion of evidence

Stafford sought to introduce his 1980 tax return together with

copies of judicial opinions and magazine and newspaper articles

that he attached when he filed the return in 1981. He claims that

these materials were relevant to whether he willfully evaded taxes

or had a good faith belief that he did not have to pay same. The

government successfully objected to the admission of any materials

other than the tax form itself, but Stafford was permitted to

testify about these attachments.

Generally, a district court may exclude evidence of what the

law is or sho uld be. 1 1 Nonetheless, "forbidding the jury to

consider evidence that might negate willfulness would raise a

serious question under the Sixth Amendment' s jury trial

provision." 12 In B arnett we concluded that the delicate balance

required by Rule 403 of the Federal Rul es of Evidence would be

s atisfied by excluding the challenged documents but allowing the

defendant to testify about their contents and the effect the1 3 945 F.2d at 1301 (citing United States v. Flitcraft , 803

F.2d 184, 185-86 (5th Cir. 1986)).

14 By permitting oral evidence, "the documents themselves

become cumulative and the potential for jury confusion is

minimized." Barnett , 945 F.2d at 1301.

15 On his 1977 return, for example, Stafford noted: "I

offer to amend or file again if y ou can show me how to do so

without waiving my Constitutional Rights, especially my Fourth and

Fifth Amendment Rights."

6 information had in the formulation of his belief s. 1 3 In the case

at bar, Stafford was permitted to testify extensively regarding the

information contained in the attachments upon which he claimed to

rely in the formation of his belief that he did not have to pay

taxes. Stafford was not deprived of an opportunity to present this

evidence to the jury. 14

3. Prosecutorial comments

Stafford maintains that the district court erred by permitting

the prosecutor to comment on the fact that he had claimed fourth

and fifth amendment rights on the tax returns he filed for the

years 1977 to 1980. 15 He complains of the following remarks during

closing argument:

Mr. Stafford testified that he had never been convicted

of any crime and he doesn't believe he's committed any

crimes. He also testified that he's not received any

income from illegal sources. Well, if that's the case,

then why did he file tax returns for 1977 through 1980

--

that's before our years

-- claiming the Fourth and Fifth

Amendments to the Constitution? If he hasn't committed

any crime, then what's he afraid of? What's he got to

hide?

Although these tax years are for years not involved

in our prosecution, his claims to the Fourth and Fifth16 United States v. Tonry , 605 F.2d 144 (5th Cir. 1979).

7 Amendments are just one mor e piece of evidence you can

consider of just how insincere Mr. Sta fford's beliefs

really are.

S tafford argues that any probative value these comments may have

had was outweighed by their highly pr ejudicial effect. Stafford

did not object during trial; we review under the plain error

standard.

Stafford introduced the tax forms an d testified at length

about his desire to protect his fourth and fifth amendment rights.

The prosecutor's comments on these matters, the refore, were not

without proper basis or reason. The comments were not likely to

result in a grave miscarriage of justice sufficient to constitute

plain error. This assignment of error lacks merit.

4. Conditions of probation

Stafford's complain t about the conditions of his probation

poses his most serious challenge. The requirements that he give

his probation officer access to any financial information, and that

he cooperate fully with the IRS in resolving tax liability for the

years covered by the indictment, mandate too much.

A condition of probation is not necessarily invalidated merely

because it impairs a probationer's enjoyment of const itutional

rights. 16 Discretionary conditions of probation, however, must be

"reasonably related" to the goals of sentencing and involve "only

s uch deprivations of liberty and property as are reasonably17 18 U.S.C. § 3563(b).

1 8 U.S.S.G. Part 5B, Introductory Commentary; see 18 U.S.C.

§ 3553(a).

19 639 F.2d 254 (5th Cir. 1981).

20 United States v. Touchet , 658 F.2d 1074, 1076 (5th Cir.

1981).

8 necessary" for these purposes. 17 The goals of sentencing have been

characterized as "promoti ng respect for law, providing just

punishment for the offense, achieving ge n eral deterrence, and

protecting the public from further crimes by the defendant." 18

To the extent the conditions apply to tax years other than

those which are the subject of this litigation, and for which

Stafford may be h eld accountable during the period of probation,

the broad obligation to provide access to any requested financial

information interferes with Stafford's fourth and fifth amendment

rights. This interference is not offset by an apparent necessity

to achieve a legitimate goal of sentencing. This condition must,

accordingly, be tempered.

In United States v. Merritt 19 we held that requiring the

defendant to file a tax return and pay taxes may be a valid

condition of probation. After M erritt

, however, we held that "[a]

trial court may not condition probation upon payment of a specified

sum of taxes when that sum has not been acknowledged, conclusively

established in the criminal p roceeding, or finally determined in

civil proceedings." 20 Conviction for tax evasion does not strip9

Stafford of his right fairly to litigate his civil tax liability.

To the extent that the two conditions of probation may interfere

with Stafford's ability to fully and fairly question and litigate

his tax liability, the conditions must be revised.

The conditions of probation th at Stafford provide financial

information and cooperate with the IRS should be limited to tax

years 1985, 1986, and 1987, and the years for which Stafford may be

held accountable during the period of probation, and may not exceed

that level of cooperation which could be compelled pursuant to

federal civil discovery and trial rules. Once the amount of his

tax liability is finally determined as the result of an agreement

or contested proceeding, Stafford legitimately may be required to

provide financial information regarding his ability to pay, just as

any judgment debtor could be called to task.

For the foregoing reasons we AFFIRM the conviction but VACATE

and REMAND for resent encing on the above discussed conditions of

probation. Otherwise the sentence is AFFIRMED.