United States v. Philip E. Roberts ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-3405
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Arkansas
*
Philip E. Roberts, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 10, 2001
Filed: May 16, 2001
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Before HANSEN and BYE, Circuit Judges, and MELLOY,1 District Judge.
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PER CURIAM.
A jury convicted Philip Roberts of willfully failing to file income tax returns for
the years 1993 and 1994. The district court2 sentenced Roberts to 16 months in prison
and a one-year term of supervised release. The court also imposed restitution of
1
The Honorable Michael J. Melloy, United States District Judge for the Northern
District of Iowa, sitting by designation.
2
The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.
$58,868.19, a $30,000 fine, and a $50 special assessment. Roberts now appeals
several aspects of his conviction and sentence. We affirm.
In 1987, Roberts opened a chiropractic clinic in Forth Smith, Arkansas. For the
next three years, Roberts paid federal and state income taxes. Starting in 1990,
however, Roberts didn’t file federal income tax returns or pay taxes. In 1993, Roberts
earned approximately $123,000 in gross income, and in 1994, Roberts earned roughly
$207,000. In March 2000, a grand jury indicted Roberts on two counts of failing to file
income tax returns for the 1993 and 1994 tax years, violations of 26 U.S.C. § 7203.
Roberts proceeded to trial in late June 2000; following a three-day trial, the jury
convicted him on both counts.
Roberts raises five categories of claims in this appeal. We find that none of
these claims of error has merit.
1. Roberts contends that the requirement to file a tax return under penalty of
perjury violates his Fifth Amendment rights. He argues that if he had filed returns for
1993 and 1994, he would essentially have incriminated himself by demonstrating
knowledge of the filing requirements for the other years when he failed to file a return,
1990, 1991, and 1992. We reject this argument because “[a] taxpayer cannot rely on
the privilege against self-incrimination to refuse to disclose any information or to fail
to file a tax return.” Ueckert v. Comm’r of Internal Revenue, 721 F.2d 248, 250 (8th
Cir. 1983) (per curiam) (citing United States v. Sullivan, 274 U.S. 259, 263-64 (1927)).
2. Roberts alleges that his indictment was defective because it failed to cite the
statute requiring him to pay income taxes, 26 U.S.C. § 6012. An indictment is
ordinarily sufficient if it states each material element of the offenses charged. See
Hamling v. United States, 418 U.S. 87, 117 (1974). Though Roberts’s indictment did
not mention § 6012, the document cited 26 U.S.C. § 7203, which explicitly imposes
punishment for willfully failing to file a tax return, and recited the various elements of
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§ 7203. Roberts was fully aware of the charges he faced because, in addition to the
plain language in the indictment, the district court required the government to file a bill
of particulars. Thus Roberts received constitutionally proper notice of the charges
levied against him. See United States v. Vroman, 975 F.2d 669, 670-71 (9th Cir. 1992)
(“The government was not required to cite [] § 6012 in the indictment in order to give
[defendant] notice of the charges filed against him.”); United States v. Kahl, 583 F.2d
1351, 1355 (5th Cir. 1978) (same).
3. Roberts contends that the district judge should have recused himself. Roberts
recites a laundry list of “bad acts”: the district judge denied bail for improper reasons,
dismissed related civil tax suits brought by Roberts without justification, improperly
reviewed the magistrate judge’s reports and recommendations, limited Roberts’s
objections at trial and at sentencing, and made improper comments at arraignment.
Roberts also claims that the district judge “acted as an accuser” by listing the statutes
Roberts had violated. These accusations amount to disagreements with court rulings,
which do not form a proper basis for recusal. Harris v. State of Mo., 960 F.2d 738, 740
(8th Cir. 1992). We have reviewed the record in this case and we conclude that the
district judge presided in a fair and impartial manner. The district judge therefore
properly declined to recuse himself.
4. Roberts argues that the district court miscalculated the tax loss and imposed
too harsh a sentence. We disagree. “[T]he guidelines contemplate that the court will
simply make a reasonable estimate [of the tax loss] based on the available facts.”
U.S.S.G. § 2T1.1, app. n.1. The Presentence Report calculated the total tax loss at
$18,771 for 1993 and $40,096 for 1994, and IRS Special Agent Tom Bryan testified
to these amounts at the sentencing hearing. Roberts objected, and he cross-examined
Agent Bryan at the hearing. After considering both the evidence and the objections,
the district court adopted the tax loss estimate contained in the Presentence Report as
its finding. Roberts has not shown that the court’s findings were erroneous; he has only
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claimed (oddly) that the government suffered no loss as a consequence of his failure
to pay income taxes. We find that the court’s tax loss calculations were not in error.
Roberts also argues that his sentence is erroneous because the IRS failed to
submit a formal assessment of his tax liability. A valid, formal assessment was not
required in this instance, and we therefore reject Roberts’s argument. See United
States v. Dack, 747 F.2d 1172, 1174-76 (7th Cir. 1984) (per curiam).
5. Finally, Roberts raises a farrago of (mostly) constitutional claims of error.
He charges that the government violated his rights to compel the attendance of, and to
cross-examine, certain government witnesses; that the district court lacked venue; that
the jury instructions, the composition of the jury pool, and the court’s conduct during
voir dire were improper; and that the court erred in ruling on a variety of related
matters. We have reviewed the record and we believe that Roberts’s claims of error
are unfounded. See 8th Cir. R. 47B.
AFFIRMED.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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