United States v. Brian Small , 487 F. App'x 302 ( 2012 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 27, 2012*
Decided June 28, 2012
Before
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 11-1614
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Western Division.
v.
No. 09 CR 50016
BRIAN K. SMALL,
Defendant-Appellant. Frederick J. Kapala,
Judge.
ORDER
Brian Small, who believes he is a nontaxable “sovereign citizen,” appeals pro se
from a jury verdict finding him guilty of tax evasion, see 26 U.S.C. § 7201, and failing to file
tax returns, see 26 U.S.C. § 7203. We affirm.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2)(C).
No. 11-1614 Page 2
In 2003 and 2005 Small gave his employer documents resembling Internal Revenue
Service Form W-4, on which he claimed to be exempt from federal income taxes. For these
years (2003 through 2005) his employer did not withhold federal income tax from his
wages, and Small did not file federal tax returns. He did file a 2006 return—two years
late—upon learning that he was being investigated by the IRS. Altogether Small failed to
pay about $55,000 in federal income taxes. He eventually was charged with four counts
each of tax evasion and failing to file tax returns between 2003 and 2006.
The case proceeded to trial, and Small’s participation was unconventional. Small,
who insisted on representing himself, stayed in the spectators’ section of the courtroom
(out of a belief that advancing to the defense table would give the district court
“jurisdiction” over him). Small described himself as the “executor of an estate” that he had
established in his own name; this estate, he said, was the party actually charged and could
not be prosecuted without his written authority. Small declined to participate meaningfully
in the proceedings and left the courtroom before closing arguments. The jury found him
guilty on all counts, and the judge sentenced him to concurrent prison terms of 21 months
and 12 months, respectively, on each of the tax evasion and failure-to-file counts.
On appeal, Small argues that the district court improperly asserted subject-matter
jurisdiction over his case because, he says, the federal criminal jurisdiction statute, 18
U.S.C. § 3231, was passed without a quorum in the House of Representatives and is
therefore invalid. But Small’s argument is foreclosed by the “enrolled-bill rule,” under
which a bill certified by the presiding officer of each chamber—as was the case with § 3231,
see 94 C ONG. R EC. 568 (1948)—is “complete and unimpeachable.” See Marshall Field & Co. v.
Clark, 143 U.S. 649, 672 (1892); United States v. Thomas, 788 F.2d 1250, 1252 (7th Cir. 1986);
United States v. Farmer, 583 F.3d 131, 151–52 (2d Cir. 2009); Public Citizen v. U.S. Dist. Court
for Dist. of Columbia, 486 F.3d 1342, 1349–50 (D.C. Cir. 2007).
Small next argues that his conviction should be vacated because, he says, the
prosecution failed to satisfy an unspecified statute requiring it to obtain approval from the
Attorney General before prosecuting tax cases. Small seems to have in mind provisions of
the United States Attorneys’ Manual, which indeed require the Department of Justice’s Tax
Division to approve Title 26 prosecutions that result from grand jury investigations. See
United States Attorneys’ Manual, §§ 6-4.010, 6-2.000, 6-4.200; see also 28 C.F.R. § 0.70; United
States v. Benson, 941 F.2d 598, 612 (7th Cir. 1991). But Small has not shown that the
government here failed to secure this approval, and in any event the U.S. Attorneys’
Manual does not confer substantive rights. See United States Attorneys’ Manual, § 1-1.00;
United States v. Schwartz, 787 F.2d 257, 267 (7th Cir. 1986); United States v. Lopez-Matias, 522
F.3d 150, 155 n.11 (1st Cir. 2008).
No. 11-1614 Page 3
Small also hints at a due-process violation when he challenges the district court’s
decision to allow the proceedings to continue upon his departure from the courtroom
before the government’s closing argument. It is true that Small had a due process right to
be present at his trial, see Kentucky v. Stincer, 482 U.S. 730, 745 (1987); United States v. Benabe,
654 F.3d 753, 768 (7th Cir. 2011), but his choice to absent himself from the proceedings
waived this right. See Benabe, 654 F.3d at 768 (citing Taylor v. United States, 414 U.S. 17, 18–19
(1973); Diaz v. United States, 223 U.S. 442, 455 (1912)); see also FED. R. C RIM . P. 43(c)(1)(A).
Small suggests that the district court failed to comply with the Court Reporter Act,
28 U.S.C. § 753(b), by furnishing him with trial transcripts that were somehow incomplete.
This claim fails, however, because Small fails to demonstrate prejudice as a result of the
alleged omissions. See United States v. Nolan, 910 F.2d 1553, 1560 (7th Cir. 1990); United
States v. Weisser, 417 F.3d 336, 342 (2d Cir. 2005).
Small lastly maintains that paying federal income taxes is optional, but federal
courts have roundly rejected such arguments. See, e.g., United States v. Raymond, 228 F.3d
804, 812 (7th Cir. 2000); United States v. Sloan, 939 F.2d 499, 500–01 (7th Cir. 1991); United
States v. Middleton, 246 F.3d 825, 841 (6th Cir. 2001).
Small’s remaining arguments are frivolous and do not warrant further discussion.
AFFIRMED .