In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1309

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GLEN MURPHY,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 04-CR-280—J.P. Stadtmueller, Judge.

____________

ARGUED SEPTEMBER 20, 2006—DECIDED DECEMBER 8, 2006

____________

Before EASTERBROOK, Chief Judge, and POSNER and

EVANS, Circuit Judges.

EVANS, Circuit Judge. Benjamin Franklin said it in

1789: “In this world, nothing can be said to be certain

except death and taxes.” Glen Murphy, a chiropractor from

the posh Waukesha County (Wisconsin) suburb of Elm

Grove, didn’t agree with the taxes part of Franklin’s

statement. Inappropriately acting on that belief earned

Murphy an indictment for filing false income tax returns

(seven counts) and willfully not filing any at all (three

counts). After being charged, he tried to game the system and drag out the proceeding as long as possible. But

in the end, a jury found him guilty on all counts. The

district court (Judge J.P. Stadtmueller) sentenced him to
2 No. 06-1309

41 months in prison. Murphy appeals, challenging his

convictions on several grounds.

Murphy starts with his primary argument: The district

court committed reversible error when it denied him courtappointed counsel. He says the judge improperly forced

him to choose between his Fifth and Sixth Amendment

rights when he insisted that Murphy demonstrate his

financial eligibility for appointed counsel and construed

his refusal to do so as a knowing and intelligent waiver of

his right to an attorney. Murphy also contends that the

judge’s instructions to the jury inaccurately stated the law

in several respects.

Murphy’s problems began after he became a client of an

accounting firm calling itself Anderson’s Ark & Associates

(AAA). AAA, from what we can tell, offered no legitimate

services; it instead specialized in international-scale tax

fraud. Murphy, himself no fan of taxes, turned to AAA

in 1997 in an effort to dramatically lower his past and

future income tax liability. AAA obliged, helping Murphy

set up a sham, zero-income partnership that took on huge,

predetermined losses in sums perfectly tailored to eliminate Murphy’s present and past tax liability. AAA also

served as a conduit for Murphy to direct money to offshore

bank accounts under the guise of advertising expenses. As

a grand finale, Murphy did not even file income tax

returns from 2001-2003, despite telling his bank that he

had done so (and even producing a completed 2001 form)

as part of a home refinancing application. In any event, he

says he was a victim of AAA, which took him to the

cleaners to the tune of $274,000.

The government has been prosecuting AAA, its proprietors, and its clients for several years, and many individual defendants have pled guilty to charges filed against

them. But Murphy apparently had his own strategy.

During the 10 months leading up to and including his trial,
No. 06-1309 3

he employed a pattern of delay and misdirection that

would make an NFL offensive coordinator jealous.

Things got started on Pearl Harbor Day in 2004 when

Murphy was charged with seven counts of filing false

tax returns in violation of 26 U.S.C. § 7206(1). In what

was to become a familiar pattern, he made his initial

court appearance without counsel but told a magistrate

judge he was making efforts to find an attorney. Although

without counsel at this event, William Burke, an experienced and savvy attorney from the Federal Defender

Service, appeared with Murphy on an “interim” basis as

sort of a “friend of the court.” The magistrate judge

warned Murphy of the dangers of proceeding without

counsel and urged him to secure representation as soon as

possible. Murphy made no suggestion that he intended to

seek court-appointed counsel.

A short time later, Murphy filed a notice seeking to “fire”

Burke, who had never been formally appointed to represent him in the first place. On February 10, Murphy

reappeared before the magistrate for a hearing regarding the conditions of his pretrial release. He again had no

counsel. Once again the magistrate judge implored him to

secure representation as soon as possible; once again

Murphy promised he was looking for a lawyer and made

no mention of getting court-appointed help.

On March 22, Murphy appeared before District Judge

Stadtmueller. He had no counsel but entered a rambling,

incoherent statement into the record that began:

Affidavit. Denial that a corporation exists. Equality

under the law is paramount and mandatory by law.

I, Glen James clan Murphy, a Wisconsin national of

the republic of Wisconsin, a titled sovereign, am able

to handle and represent me concerning all my affairs.

In commerce when being forced to testify all my

common law rights are reserved.
4 No. 06-1309

The government’s attorney, Matthew Jacobs, understandably confused as to whether Murphy’s statement indicated his intention to waive counsel, told the court that

his own conversations with Murphy and some criminal

defense attorneys in Milwaukee indicated to him that

Murphy sought to retain an attorney. Judge Stadtmueller

gave Murphy yet another warning about proceeding alone

and scheduled another appearance for 3 days later,

indicating to Murphy that he would be expected to declare once and for all whether he wanted a lawyer.

Murphy said nothing about seeking appointed counsel.

Meanwhile the grand jury returned a superseding

indictment adding three counts of failure to file tax

returns under 26 U.S.C. § 7203, and Murphy’s trial,

originally scheduled for March 28, was delayed until

September. Still, the March 25 continuation hearing

went forward. Murphy again appeared alone, and the

judge again warned him. Perhaps expecting this to happen, Jacobs apparently took it upon himself to ask Burke

to join the proceedings and explore whether Murphy

might qualify for court-appointed counsel.

Burke told the court he was willing to meet with

Murphy and discuss his financial eligibility. He also

suggested that the judge offer to seal any financial information that Murphy would provide, which the judge

agreed to do before giving Murphy 3 more days to undertake an accurate accounting of his financial position.

Three days later, on March 28, Murphy finally appeared

with counsel: Burke. As Burke explained to the judge:

The Defendant spent a couple hours in our office going

over his financial affairs, and appears at this point—

without getting certification from a bank, or getting

a formal balance sheet, he appears to easily qualify

for our services. His financial situation is, I would

say, in a bit of a turmoil at the moment. Now, that
No. 06-1309 5

could turn around, and I am hopeful that it will, but

at this point he is eligible by our review so far. I would

advise the Court that would be an ongoing review, but

in the meantime we will provide representation.

The court approved Burke’s appointment as Murphy’s

counsel and proceeded to set a trial date.

Burke’s representation ostensibly lasted for a couple

of months, though Murphy continued to submit his own

filings to the court. Then, on July 12, Burke filed a motion to withdraw in response to Murphy’s belligerent

conduct and demands upon Burke to employ frivolous

arguments—including a challenge to the constitutionality

of the federal tax laws—as a defense. Burke reiterated

that he believed Murphy to be eligible for a court-appointed lawyer but expressed some doubt as to whether

he was willing to accept an attorney whose fees were to

be paid by the government. The judge granted Burke’s

motion and directed him to see if another federal defender

would be willing to accept an appointment as Murphy’s

counsel.

On July 26, Murphy reappeared before the district court

judge for a pretrial hearing. He was without counsel and

moved for adjournment of both the pretrial hearing

and the upcoming trial, now scheduled for September 6,

2005, until he could retain “effective, competent assistance of counsel.” He also denounced Burke and the other

lawyers from the Federal Defender Service and expressed an unwillingness to cooperate with them. After

promptly denying that motion, Judge Stadtmueller

emphatically reiterated to Murphy his need to obtain

counsel and ordered him to do so prior to a July 29 hearing. Murphy arrogantly responded, “I am here to challenge

your jurisdiction.”

Needless to say, when July 29 came, Murphy again

appeared without counsel. He asked for more time to
6 No. 06-1309

seek representation. The judge denied the motion and

expressed frustration that Murphy had not made an effort

to secure court-appointed counsel, having declined to

provide a Pretrial Services officer with a financial statement under oath that would confirm his eligibility.

Murphy responded that he had provided Burke with

some information. Ultimately, however, he promised the

judge that he would meet with Pretrial Services and

provide the necessary financial information, which the

judge ordered him to do immediately. Murphy then met

with Pretrial Services but declined to provide the information.

On September 1, 5 days before trial, the judge held a

hearing to consider another motion by Murphy for an

extension of time to secure representation. Murphy

claimed he had exerted considerable effort trying to obtain counsel. He also listed the names of several lawyers

he had contacted who had declined to represent him. When

Jacobs pressed him for further details, Murphy admitted that some of the lawyers he had spoken to considered his case to be outside their area of practice, while

others requested too much money. He refused to provide

any more specific information, and the judge ultimately

determined that the trial would proceed as scheduled.

When September 6 came, Murphy again moved for a

stay of the trial. This time he presented copies of correspondence that he had apparently exchanged with various

attorneys. In one particularly notable letter, an attorney

thanked Murphy for contacting him but explained that

he would be unable to provide representation for a fee of

$20 as offered by Murphy. The judge denied the motion

and the trial went on. After the evidence was submitted,

the judge submitted instructions to the jury (more on

Murphy’s challenges to these later), and Murphy was

convicted on all 10 counts. Two weeks later, Murphy
No. 06-1309 7

retained paid private counsel, who now represent him on

this appeal.

We first address Murphy’s argument that the court

erred when it insisted that he submit personal financial

information in order to secure court-appointed counsel.

Because this is a criminal tax prosecution, the argument

goes, Murphy was effectively being forced to violate his

Fifth Amendment right not to “be compelled in any

criminal case to be a witness against himself” if he

wanted to exercise his Sixth Amendment right to an

attorney by way of court-appointed counsel.

While the Sixth Amendment guarantees that an accused

has the right to counsel, and counsel free of charge if

indigent, a defendant “may not use this right to play a ‘cat

and mouse’ game with the court, or by ruse or stratagem

fraudulently seek to have the trial judge placed in a

position where, in moving along the business of the

court, the judge appears to be arbitrarily depriving the

defendant of counsel.” U.S. ex rel. Davis v. McMann, 386

F.2d 611, 618-19 (2d Cir. 1967) (citations omitted). As we

shall see, a fair reading of this record establishes that

that was exactly what Murphy was doing.

A defendant also has the right to conduct his own

defense, Faretta v. California, 422 U.S. 806, 819-20 (1975),

so long as he or she has made a knowing and intelligent

waiver of counsel and has been appropriately warned by

the court of the dangers of proceeding pro se. United States

v. Egwaoje, 335 F.3d 579, 584-85 (7th Cir. 2003).

The Criminal Justice Act of 1964, 18 U.S.C. § 3006A,

governs the process in the event appointment of counsel

is necessary. It provides:

Unless the person waives representation by counsel,

the United States magistrate judge or the court, if

satisfied after appropriate inquiry that the person is
8 No. 06-1309

financially unable to obtain counsel, shall appoint

counsel to represent him.

18 U.S.C. § 3006A(b). “The burden of proving inadequate

financial means, however, lies with the defendant,” United

States v. Sarsoun, 834 F.2d 1358, 1361 (7th Cir. 1987). “It

is not enough to claim inability to hire a lawyer . . . ; the

statute provides for ‘appropriate inquiry’ into the veracity

of that claim.” United States v. Bauer, 956 F.2d 693, 694

(7th Cir. 1992) (emphasis in original). The inquiry is

usually addressed by having a defendant fill out a form

financial affidavit. But the Criminal Justice Act requires

“[n]either CJA Form 23 nor any other particular method

of ascertaining a defendant’s financial status,” Sarsoun,

834 F.2d at 1361. The exact nature of the appropriate

inquiry is therefore left to the judge, and we will not reverse a decision on appointment of counsel adverse to the

defendant unless it is clearly erroneous.

It should be immediately clear that Murphy’s argument

is a loser. He continually refused to file a financial affidavit, although he did manage to convince Burke, the federal defender, of his financial eligibility. But Burke himself

admitted that his review of Murphy’s financial information was “ongoing” and that Murphy’s financial situation

was “in a bit of turmoil.” Besides, convincing Burke was

not the end of the line: The Criminal Justice Act makes

eligibility for appointed counsel a judicial determination,

not a decision committed to the discretion of the Federal

Defender Service.

The truth is that Murphy was wrong to rely on his Fifth

Amendment rights (if he even did so—the record suggests

that he was hardly diligent in asserting them) by refusing to provide financial information at the court’s

request because “[u]ntil the government attempts to use

the information against the defendant at trial, any encroachment on the fifth amendment protection against

self-incrimination is speculative and prospective only.”
No. 06-1309 9

Sarsoun, 834 F.2d at 1364. In fact, Judge Stadtmueller

offered to seal any information Murphy provided in

order to avoid the risk that it might be used by the government against him. Murphy tells us that the judge

should have gone further by offering to receive the financial information in camera. But an appropriate inquiry

under the Criminal Justice Act does not require

“[c]ourts . . . to conduct ex parte, in camera hearings to

determine whether a defendant is eligible for appointed

counsel.” Id. at 1363. The judge offered Murphy a way out,

and he did not take it.

Murphy’s conduct recalls the situation we considered

in Sarsoun. Sarsoun involved a defendant charged with

tax evasion, failure to file income tax returns, and filing

a false withholding statement. 834 F.2d at 1359. The defendant repeatedly appeared without counsel and was

regularly and urgently warned by the judges of the dangers of proceeding alone. Id. at 1359-60. On more than

one occasion, when informed of his rights to have appointed counsel, the defendant agreed to fill out a financial

affidavit, only to later refuse, reappear without counsel,

and demand an appointed lawyer all over again. Id. at

1362-63. When the defendant made clear that his refusal

stemmed from his Fifth Amendment right not to selfincriminate, the judge assured him that any financial

information he provided would not be used against

him, and when the judge asked him questions about his

income in lieu of the affidavit, Sarsoun refused to answer.

On appeal, we held that where the information available to the trial judge “did not strongly indicate that [the

defendant] qualified for appointment of counsel,” and the

judge “repeatedly urged the defendant to supply sufficient financial information for the court to determine

whether he qualified for appointed counsel” and assured

the defendant that submitted financial information
10 No. 06-1309

1 Information not available to the district court at the time, but

highly revealing now, is Murphy’s sudden ability to quickly

secure paid private counsel within weeks of his convictions.

would not be used against him, it was not clearly erroneous for the judge to determine that the defendant had

impliedly waived his right to counsel based upon the

defendant’s “refus[al] to cooperate with the court” with

respect to the submission of financial information.

Sarsoun, 834 F.2d at 1361-63.

Murphy’s situation is pretty much the same. His failure

to provide financial information despite assurances that

his Fifth Amendment right would be protected left the

court with nothing to conclude that Murphy was a

pauper. Judge Stadtmueller could only rely on Murphy’s

status as the sole proprietor of a chiropractic business

and his pre-AAA tax returns to create an inference that

he did not qualify for court-appointed counsel.1

 Murphy

had the opportunity to rebut that inference and establish

insufficient financial means, but he did not do so.

Even when he appeared to signal his readiness, at the

July 29, 2005 hearing, to provide a financial affidavit, he

chose instead to stall for more time by filing repetitive

motions that indicated not that he was seeking more

time to secure financial information, but that he was

contacting private lawyers who either did not have any

experience in cases like his or would not work for a $20

fee.

Murphy says that he could not have waived counsel

because he repeatedly insisted that he intended to retain

someone as his attorney. But a defendant can waive his

right to counsel through conduct as well as words. And

insisting that an attorney raise silly, frivolous defenses is

not a sign that a defendant is acting in good faith. Urging

that a lawyer offer the kind of run-of-the-mill arguments
No. 06-1309 11

offered by tax protesters is strong evidence of conduct

which can be viewed as a waiver of Sixth Amendment

rights.

All told, Murphy had 9 months from his arraignment

until the start of his trial to either secure counsel or

demonstrate his financial eligibility for appointed counsel. He did neither. He was just trying to delay things and

game the system. Under the circumstances, there is no

basis for concluding that Judge Stadtmueller erred by

determining that Murphy’s right to counsel was impliedly waived.

We next turn to Murphy’s problem with the jury instructions. He cites three in particular. First, he argues

that they were inaccurate in the way that they conveyed

to the jury what it means for a defendant to have acted

“willfully” under both 26 U.S.C. § 7203 and 26 U.S.C.

§ 7206(1). Next, he insists that the court improperly

failed to submit to the jury his theory of defense instruction. Finally, he contends that the district court committed reversible error when it mistakenly referred to

“evading taxes” (a crime under 26 U.S.C. § 7201 for

which he was not charged) in its instruction on good-faith

belief as a defense to willfulness.

“We review jury instructions de novo to determine

whether they provide fair and accurate summaries of the

law.” United States v. Alhalabi, 443 F.3d 605, 612 (7th Cir.

2006). “In order to receive a new trial based on erroneous

instructions, a defendant must show both that the instructions did not adequately state the law and that the error

was prejudicial to him because the jury was likely to be

confused or misled.” United States v. White, 443 F.3d 582,

587 (7th Cir. 2006) (citations, alterations, and quotations

omitted). We evaluate the correctness of an instruction

by considering a judge’s charge to the jury as a whole.

United States v. Tingle, 183 F.3d 719, 729 (7th Cir. 1999).
12 No. 06-1309

With respect to Murphy’s first argument, “willfully”

under § 7206 and its related statutes, including § 7203,

means “a voluntary, intentional violation of a known legal

duty.” United States v. Pomponio, 429 U.S. 10, 12 (1976);

see also United States v. Bishop, 412 U.S. 346, 356 (1973).

It “requires proof of a specific intent to do something

which the law forbids; more than a showing of careless

disregard for the truth is required.” United States v.

Hooks, 848 F.2d 785, 790 (7th Cir. 1988) (quotations

omitted).

Judge Stadtmueller instructed the jury separately for

each statute. On the § 7206(1) charge for willfully filing

false tax returns, the jury was told:

The word willfully means voluntary and intentionally,

with the specific intent to make a statement that

the defendant knew was false, when it was the legal

duty of the defendant to answer truthfully and the

defendant knew it was his legal duty to answer truthfully.

We read this instruction as nothing more than a perfectly

accurate—if slightly more verbose—statement of the law

as described in Pomponio and Hooks. We are apparently

not alone in this regard: the language is taken verbatim

from the § 7206(1) model instruction provided in Judge

Leonard Sand’s treatise on jury instructions. See Leonard

B. Sand et al., Modern Federal Jury Instructions Inst. 59-

24.

The § 7203 willfulness instruction provided:

The word willfully means the voluntary and intentional violation of a known legal duty or the purposeful

omission to do what the law requires. The defendant

acted willfully if he was required by law to file an

income tax return and intentionally failed to do so.
No. 06-1309 13

Murphy objects that the instruction failed to make clear

that for him to have acted willfully he must have known

that he was required to file a tax return. We fail to see how

a jury could not understand from the words “known legal

duty” that Murphy was required to know of his legal duty;

that is, the duty to file an income tax return. As with the

§ 7206(1) instruction, the second sentence is merely

an effort to more clearly apply the abstract definition of

willfulness to the particular conduct that constitutes the

crime charged. (This effort also explains the entirely

appropriate disparate language of the two instructions,

something which Murphy incorrectly interprets as indicating two different definitions of “willfulness.”)

We likewise find nothing to support Murphy’s second

contention: that Judge Stadtmueller improperly refused

to submit an instruction on his theory of defense. Not only

did Murphy never request any such instruction, he never

even offered at trial the theory of defense that he now

argues should have been instructed. “[T]he court has no

duty to offer an instruction sua sponte on behalf of a

defendant.” United States v. Hughes, 213 F.3d 323, 331

(7th Cir. 2000) (quotations omitted).

Murphy’s final argument regarding the jury instruction holds a bit more water, thanks to an unfortunate error

concerning a defendant’s good-faith belief. He argues

that the judge committed reversible error by mistakenly

referring to the crime of tax evasion, for which Murphy

was not charged, in the following jury instruction:

A defendant does not act willfully if he believes in good

faith that he is acting within the law, or that his

actions comply with the law. Therefore, if the defendant actually believed that what he was doing was in

accord with the tax statutes, he cannot be said to have

had the criminal intent to willfully evade taxes. This

is so even if the defendant’s belief was not objectively
14 No. 06-1309

reasonable, as long as he held the belief in good faith.

However, you may consider the reasonableness of the

defendant’s belief together with all the other evidence

in the case in determining whether the defendant

held the belief in good faith.

The inclusion of “evade taxes” probably occurred from the

use of the Seventh Circuit pattern criminal jury instruction for good faith in income tax cases. That model instruction perfectly mirrors this one except that in lieu of “evade

taxes” the instruction brackets the three alternative

income tax crimes that might be at issue in a given

case: “[evade taxes; fail to file tax returns; make a false

statement on a tax return].” Pattern Criminal Federal

Jury Instructions for the Seventh Circuit 92 (1998).

Despite this mistake, we conclude from our review of the

instruction as a whole that the error is not material—that

is, the instruction accurately stated the law in a way that

would not have created a likelihood of confusion for a

reasonable jury.

Even setting aside the fact that the challenged instruction perfectly mimicked our pattern good-faith instruction

except for two words intentionally designed to be readily

interchangeable, the substantive correctness of the instruction is clear from a comparison of its language with

the primary articulation of the legal principle found in

Cheek v. United States, 498 U.S. 192 (1991):

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.

Id. at 202.
No. 06-1309 15

The three key components of good faith in income taxes

cases are clear from each: a defendant’s belief must be

actual, it need not be reasonable, and it shall be evaluated

in conjunction with all of the other evidence. The judge’s

error, by contrast, was made in what is the least important

part of the instruction. The instruction is not about the

broader legal definition of tax evasion, failure to file taxes,

and filing false tax returns. It is about a defense to the

criminal intent of willfulness—an intent that the Supreme

Court has already found to require the same showing

regardless of whether § 7201, § 7203, or § 7206(1) is the

basis of the criminal charge. United States v. Bishop, 412

U.S. 346, 356 (1973). The rest of the jury instructions

made clear the statutes with which Murphy was charged

and the key elements needed to establish their violation.

Murphy could not have been prejudiced by this regrettable,

but insignificant, slip of the tongue.

For these reasons, the judgment of the district court is

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-8-06