NOT RECOMMENDED FOR FULL
- TEXT PUBLICATION File Name: 16a0574n.06
Case No. 1 5

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERIC A , Plaintiff

- Appellee ,

v.
TERRY MYR , Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

O P I N I O N
BEFORE: KEITH, McKEAGUE , and WHITE , C ircuit J udges.
DAVID W. McKEAGUE , Circuit Judge. Terry Myr , a self

- employed auto mechanic with a pr ofessed interest in tax

- proteste r theories, was convicted of one count of tax evasion, 26 U.S.C. § 7201, and four counts of willful failure to file individual income tax returns, 26 U.S.C. § 7203. Myr claims that the district court abused its discretion and violated his constitutional right s by excluding from evidence a civil c omplaint in an unrelated case in which the government accuse d a tax preparer Myr used of falsifying the returns of other customers . He also claims that the court improperly instruct ed the jury on the meaning of “proof beyond a
reasonable doubt

. ” W e AFFIRM

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- I Terry Myr ran an auto

- repair and brokerage business speciali zing in rare and exotic cars from a farm in Port Huron, Michigan

. When he was not fixing luxury vehicles , Myr spent his free time studying the federal income tax laws

. His reading li st included th e Internal Revenue Code as well as various tax

- pro teste r pamphlets and books which opined that the income tax applied to corporations but was “voluntary” or “unconstitutional” as applied to individuals

. Myr file d individual returns until 2001. When the I nternal R evenue S ervice aud ited his 2000 and 2001 returns , however , it determined that he had underreported his business ’s income

. A fter th is audit began , Myr still asked his local accountant to prepare returns for 2002 and 2003.
He neve r filed those returns though ; in fact, he stopped filing individual returns altogether after
2001

. In 2005, after it completed its audit report, the IRS assessed nearly $200,000 in taxes, interest, and penalties on M yr for the years 2000 to 2003. 1 In May 2007, t o recoup this tax debt , the IRS notified Myr that it would issue a federal
t ax lien against his property. The government contends that at this point , Myr began to take evasive measures to conceal his assets. H e started accepting only cash or pre - paid credit cards for his services and mostly c e ase d using his personal bank account

. In September 2007, he conveyed real property to a limited

- liability company in consideration for cash and gold coins

. Most releva nt to his appeal, in 2009 Myr sold a rare, original Ferrari racing engine to a Belgian buyer for $610,000 and concealed the proceeds

. Myr instructed the buyer to pay the purchase price to a bank account that he had opened th at week for On Track Group, Inc., a Nevada nominee corporation Myr had formed the week before the sale was scheduled to occur

. Some m onths after On Track ’s account received the money, Myr used about $330,000 to buy

1 The audit also revealed that Myr had an undiscl osed Costa Rican bank account.Case No. 15

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- gold coins , which remained hidden from the IRS at least through his trial . Another $160,000
flowed to an account he set up for a se cond nominee, Hosea Holdings Trust

. From that account, he withdrew the funds by writing ov er 30 checks made out to cash. In 2010, Myr hired Denise Pope from Uneek B usiness Solutions to prepare On Track’s 2009 corporate return. Although Pope operated out of Detroit , about an hour south of where Myr lived , Myr testified that he chose Pope based on a friend’s recommendation. He drove to Detroit twice to meet with Pope or other Uneek employees concerning On Track’s return. In June 2010, he filed the return after signing under penalty of perjury , as the form demands, that he had reviewed its contents

. Myr would later testify that he never review ed the return’s contents. As it turned out, the return had underreported On Track’s gross receipts from the engine sale by $110,000, deducted $150,000 for salaries paid to non

- existent employees, and wrote off $330,174 in bad debt

— the
exact a mount Myr spent on gold coin s. Based on this underreporting, On Track claimed to ow e no federal income tax for 2009. In May 2013, a grand jury indicted Myr on one count of evading the tax debt assessed against him for by as a result of the audit for the years 2000 through 2003 , see 26 U.S.C. § 7201, and four counts of willful failure to file individual tax returns for the years 2007 through 2010,

see 26 U.S.C. § 7203. Indictment, R. 1, PID 1 , 3

– 4

. For the evasion count, the indictment listed three representative intentionally evasi ve acts: (a) conveying his property to a nominee entity after notice that the IRS intended to place a tax lien on it ; (b) using nominee entities , including On Track and Hosea Holdings, to conceal his income and assets ; and (c) dealing in cash. Id. at 3, P ID 3.Case No. 15

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- Myr went to trial on these counts in April 2015. All the counts required the government to prove Myr acted “willful ly ,” meaning that he acted deliberately in violation of a known legal duty, and that he did not act in good faith. During his trial, Myr’s defense centered on his subjectively held legal theories regarding his liabi li ty to pay federal income tax

. The jury instructions included , at Myr’s request , th e following: “In the late 1990s and the early 2000s, Myr engaged in a s tudy of the federal income tax laws, and as a result, concluded that he was not required to file federal income returns and that he did not owe such taxes. Myr asserts in that failing to pay income taxes assessed against him by the IRS and failing to file income tax returns, he did not act willfully and his beliefs were held in good faith.” Tr. , Vol. 6 at 111, R. 50, PID 1165. During closing arguments, Myr described at length the information and bases that led him
to form these beliefs. During the trial, when Myr testifi ed that he never reviewed On Track’s false return before filing it , he attempted to introduce a civil complaint that the Department of Justice had filed against On Track’s tax preparer, Pope

. The complaint contained allegations that Pope h ad falsified returns for some customers who disclaimed ever supplying her with bad information or knowing their returns were false

. I n one paragraph , for example, the complaint alleges that Pope

“ falsely reported that [ a couple] made $6,000 in cash charitable contributions in both 2010 and 2011, and $5,035 in non

- cash charitable contributions in 2010, and $5,000 in non

- cash charitable contributions in 2011. In fact, the [couple] did not make charitable contributions in those

amou nts, and they did not tell Pope or Jones that they had done so. ” Mot. for New Trial, R. 35

- 1 (Pope Complaint), ¶ 18, PID 229. The district court conditioned the complaint’s admission on Myr showing its relevance , saying it would not be admitted unless i t contained information “specific to [On Track’s] return.”Case No. 15

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- Tr. , Vol. 5 at 117

– 20, R. 49, P ID 1028

– 31 . As nothing in the complaint referred to that return, the court exclud ed it as irrelevant to Myr’s defense. Myr moved for a new trial based on the distr ict court’s exclu sion of the evidence

. The district court denied the motion, reiterating that the Pope complaint did not tend to make any “ facts in th [ e ] case more or less probable.” United States v. Myr , No. 14

- 20633, 2015 WL 5042321, at *5 (E.D. Mich. Aug. 26, 2015)

. This appeal followed.
I I Myr use s the district court’s decision to exclude the Pope complaint from evidence as the basis for two challenges to his conviction . The first a sks us to consider the decision as a n evidentiary matter under Rule 401

. The second asks us to address it as a constitutional issue

. Although these challenges differ somewhat conceptually, both rely on common proposition s : that the complaint supported Myr’s defense and its exclusion possibly affected the tria l’s outcome.
W e find no reversible error under either theory because t he complaint offered

— if anything

— equivocal evidence on an insignificant point

. W e review the district court ’s decision that the complaint was irrelevant for “abuse of discretion.” See United States v. Ray , 803 F.3d 244, 257 (6th Cir. 2015) . “Generally, we will
not disturb a court ’ s evidentiary ruling unless we reach a definite and firm conviction that the court made a clear error of judgment in weighing the relevant factors or that the court improperly applied the law.” United States v. Antonio Ray , 597 F. App’x 832, 839 (6th Cir. 2015) ( citing United States v. Stepp , 680 F.3d 651, 660 (6th Cir. 20012))

. But even if a court ’s ruling was clearly i n error , a merely harmless error leaves a verdict undisturbed

. United States v. Vasilakos , 508 F.3d 401, 406 (6th Cir. 2007). We reverse “only if the erroneous evidentiary ruling affected the outcome of the trial.” United States v. Marrero , 651 F.3d 453, 471 (6th Cir. 2011).Case No. 15

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- Myr’s related contention , that the evidence’s exclusion violat ed his constitutional right to present a meaningful defense , is an issue we review de novo

. S ee Holmes v. South Carolina , 547 U.S. 319, 324 (2006) (holding that, whether rooted in the Due Process Cl ause or in the Compu lsory Process or Confrontation c lauses of the Sixth Amendment , a defendant has a right to a “meaningful opportunity to present a complete defense”); United States v. Reichert , 747 F.3d 445, 453 (6th Cir. 2014) ( applying de novo review t o an appeal based on Holmes )

. A defendant only suffers a violation of his constitutional rights in this context , however, “ if evide nce in which the defense has a weighty interest is impermissibly excluded.” Id. at 453 (quotation marks and citations omitted). That is , “ only if the excluded evidence, evaluated in the context of the entire record[,] creates a reasonable doubt that did not otherwise exist.” Id. (quotation marks and citations omitted). The upshot of these standards : to warrant reversal, there
must be at least a reasonable p ossibility the complaint could have changed Myr’s verdict

. As an initial matter , it is important to keep in mind that Myr was not charged with filing a false return. Rather, he was charged with willfully evading the tax obligation assessed in May 2007 for tax years 2000 to 2003. The On Track tax return

— which was prepared by Pope , underreported the $610,000 proceeds from the engine sale, and took unjustified deductions

— was simply one piece of evidence offered in support of the Government’s theory that Myr hid assets to avoid paying the amounts assessed for back taxes and penalties. The On Track return had no relevance to the charges that Myr willfully failed to file his individual income tax returns, and thus the Pope complaint also had no relevance to those charges. Assuming arguendo that the Pope complaint would have decreased the evidentiary value of the On Track return in relation to the evasion charge, it is clear that the complaint’s exclusion, even if erroneous, was harmless. Myr equates the complaint’s exclusion to a total in ability toCase No. 15

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- offer a defense on willfulness. See United States v. Canty , 499 F.3d 729 , 734 (7th Cir. 2007) (holding that the decision to for bid defendant in a counterfeit ing trial from even testifying about his motive for printing fake bills was harmful when intent was the only issue at trial ). At multiple points in his briefing , he asserts that the complaint was “critically important” or rel ated “directly” to his intent. And e vidence go ing to intent should particularly matter here , he reminds

us, because lack of intent was his only defense

. See id. But these bare assertions belie what actually happened at trial. The jury heard Myr’s intent defense in detail and received instructions on his theory . T hey also heard him testify about his role in the filing of On Track’s return

— a n even t that played a minor role in the proceedings

. The indictment alleged three intentionally evasive acts as part of the tax

- evasion charge : (1) conveying his property to a nominee entity after notice that the IRS intended to place a tax lien on it ; (2); using nominee entities , including On Track and Hosea Holdings, to conceal his income and assets ; and (3) d ealing in cash

. The allegations surrounding the Ferrari transaction

— the use of nominee entities , the dealing in gold coins, the bank

- account withdrawals with checks written to cash, and, yes, the On Track return

— merely evidenced a single act that satisf ied the evading charge. The government p resented overwhelming evidence on all three alleged intentionally evasive acts

. And it specifically offered voluminous evidence that Myr violated a known legal duty

— to pay his tax debt

— in bad faith : it presented mu ltiple direct communications where

- by the IRS informed Myr that, indeed , he was liab le for the federal income tax. The falsity of the On Track tax return was offered by the government as one piece of evidence showing that Myr had used nominees to conceal i ncome, itself one of three core allegations underlying the single tax

- evasion charge. H ad the complaint been admitted into evidence, it would have been

— at most

— evidence that minimally rebutted minor evidenceCase No. 15

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- related to the tax

- evasion charge

. On this record , admitt ing the complaint into evidence would
not have affected the verdict on this or any other charge

. III In his final challenge, Myr asserts the trial court abused its discretion by using the Sixth Circuit’s p attern j ury i nstructions on “proof beyond a reasonable doubt

. ” He also says it erred in refusing his requested addendum : that reasonable doubt encompasses the concept of an “abiding
conviction of the truth of th e charge to a near certainty.” “A trial court has broad discretion in crafting jury instructions and does not abuse its discretion unless the jury charge fails accurately to reflect the law.” United States v. Geisen , 612 F.3d 471, 485 (6th Cir. 2010) (quotation marks and citations omitt ed). “Thus, we may reverse the jury ’ s conviction only if the instructions, viewed as a whole, were confusing, misleading, or prejudicial.” Id. (quotation marks and citations omitted). This circuit’s pattern jury instructions provide in relevant part: “‘Proof beyond a reasonable doubt’ is proof so convincing that you would be willing to rely and act on it without hesitation in the most important of your own affairs.” Sixth Circuit Model Instruction 1.03 (April 2015) . Myr argues that the comparison to one’s own “affairs” tends to mislead the jury and lower the government’s burden. This formulation ha s attracted some criticism

. See, e.g., Victor v. Nebraska , 511 U.S. 1, 24

– 25, (1994) (Gi nsburg, J., concurring); United States v. Gordon , 634 F.2d 639, 644 (1st Cir. 1980) ; Federal Judicial Center, Commentary to Instruction 21 (1987). Mainly, critics believe it leads a jury to compare its decision on a verdict to “choosing a spouse, buying a house, borrowing money, or the like,” all of which involve a “degree of uncertainty and risk taking” that is “wholly unlike” the decision jurors ought to make. Federal Judicial Center, Commentary to Instruction 21

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- The Supreme Court has held, however, th at similar instructions “correctly conveyed the concept of reasonable doubt to the jury.” Holland v. United States , 348 U.S. 121, 140 (1954).
In Holland , the district court defined “reasonable doubt” to mean “the kind of doubt . . . which you folks in th e more serious and important affairs of your own lives might be willing to act upon.” Id. The Court did not bless the Holland district court’s instruction without exception,
however

. To define “ reasonable doubt, ” rather than proof beyond a reasonable doubt, the Court noted, the district court should have phrased its instruction in terms of what would make a person “hesitate to act.” See i d. But the Court saw no actual risk that the jury misunderstood the instruction and so it passed mus ter. Id. Faced with this authority, Myr argues that our circuit’s instructions vary materially from the language approved in Holland . It is an erro r, he contends , to instruct the jury that “proof beyond a reasonable doubt” is such proof that they “ wo uld act on it without hesitation.” Instead, he argues the court must instruct a jury that “reasonable doubt” is a doubt that “would cause
them to hesitate. ” We consider Myr’s action

- versus - inaction point to be a distinction without difference. This vie w is echoed by a leading treatise on jury instructions : “What is a reasonable doubt? . . . It is a doubt that would cause a reasonable person to hesitate to act in a matter of importance in his or her personal life. Proof beyond a reasonable doubt must, therefore, be proof of a convincing character that a reaso nable person would not hesitate to rely upon in making an important decision.” John S. Siffert, 1

- 4 Modern Federal Jury Instructions

- Criminal P 4.01 (Instruction 4

- 2 Reasonable Doubt)

. Because the jury instructions correctly stated the law, we need not c onsider Myr’s proposed additions. See Victor , 511 U.S. at 5 ( “[S]o long as the court instructs the jury on theCase No. 15

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- necessity that the defendant’s guilt be proved beyond a reasonable doubt

. . . , the Constitution does not require that any particular form of w ords be used in advising the jury of the government’s burden of proof.”)

. IV For the reasons stated above, the district court’s judgment is AFFIRMED

.