United States v. Boyd

FILED
United States Court of Appeals
Tenth Circuit
May 19, 2010
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-6156
GEORGE EDWARD BOYD, (D.C. No. 5:08-CR-00237-C-1)
(W. D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, HAWKINS** and MURPHY, Circuit Judges.
Defendant George Boyd was convicted by a jury of seven counts of signing false
personal federal income tax returns, in violation of 26 U.S.C. § 7206(1), and seven counts
of making false claims for tax refunds, in violation of 18 U.S.C. § 287. Boyd now
appeals his convictions, claiming the district court erred in denying his motion to dismiss
the § 287 charges as multiplicitous, and in rejecting several of his proffered jury
instructions. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
The Honorable Michael D. Hawkins, Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
I
Factual background
Defendant Boyd graduated from the United States Air Force Academy in June of
1971, and subsequently spent 22 years of active duty in the Air Force, retiring in
September of 1993. In February 1998, Boyd, who at the time was living in Albuquerque,
New Mexico, began working as a pilot for Atlas Air, a New York-based commercial
freight company. Boyd continued to work as a pilot for Atlas Air until April 2009.
Throughout his career with the Air Force, as well as during the first year following
his retirement from the Air Force, Boyd filed federal income tax returns on behalf of
himself and his wife. In the summer of 1995, Boyd received a notice from the Internal
Revenue Service (IRS) indicating they had recalculated the gross income he had reported
on his 1994 tax return and that, as a result, he owed an additional $2,000 in federal
income taxes. After attempting unsuccessfully to communicate with the IRS regarding
this matter, Boyd ultimately paid the additional taxes.
Shortly thereafter, Boyd spoke with a friend at church, Jim Gillespie, who told him
that “most Americans are not made liable for the income tax and therefore it’s voluntary.”
Supp. App. at 561. Gillespie subsequently invited Boyd to join him in attending a
meeting of a “constitutional law study group” that was meeting at a law library in
Albuquerque. Id. Boyd accepted the invitation, and ultimately attended at least two more
meetings of the group in 1995.
By early 1996, Boyd had concluded, based upon his own review of the Internal
2
Revenue Code (IRC), that any “private income,” which he classified as income from
sources other than the federal government, was not federally taxable. Id. at 595.
Consequently, Boyd filed a federal tax return for 1995 reporting as income only the
military retirement pay he received from the federal government. Boyd continued his
personal research of the IRC and, by the end of 1996, remained convinced that his
“private income” was not federally taxable. Id. Boyd also concluded that, in any event,
the payment of individual federal income taxes was voluntary.
Boyd’s subsequent conduct was consistent with his views of the IRC. Boyd did
not file federal income tax returns for the years 1996 through 2002. Further, when he
began his employment with Atlas Air, Boyd submitted a W-4 form declaring himself
exempt from federal taxes. Similarly, Boyd submitted to the Defense Finance &
Accounting Service (the entity responsible for paying retirement benefits to veterans) W-
4 forms either declaring himself exempt from federal income taxes or listing numerous
exemptions.
Boyd’s failure to file federal income tax returns did not go unnoticed by the IRS.
In 1998, the IRS sent Boyd a statutory notice of tax deficiency for the tax year 1996. The
IRS subsequently sent Boyd similar notices for the tax years 1997 and 1998. Boyd
responded by asserting he was not responsible for federal income taxes for those years.
The IRS in turn assessed the tax, penalties and interest for those three tax years and sent
Boyd notices of the balances due ($26,190 for 1996, $17,252 for 1997, and $29,763 for
1998). In May 2002, the IRS mailed to Boyd final notices of intent to levy and of the
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right to a collection due process hearing pursuant to 26 U.S.C. § 6330.
Boyd requested a collection due process hearing and declared his intent to make an
audio recording of the proceeding. The IRS Appeals Office scheduled a hearing for
January 9, 2003, and informed Boyd of its policy prohibiting any recording. When Boyd
arrived for the scheduled hearing, the hearing officer gave him copies of transcripts of his
accounts for the relevant tax years, but refused to conduct a face-to-face hearing because
of Boyd’s insistence upon recording any hearing. An IRS appeals officer subsequently
issued a notice of determination sustaining the proposed levy.
Boyd appealed to the Tax Court. The Tax Court entered summary judgment in
favor of the IRS and imposed a penalty of $2,500 against Boyd for instituting a
proceeding primarily for purposes of delay. Boyd unsuccessfully appealed the Tax
Court’s ruling, first to federal district court, and then to this court. Boyd v. United States,
Nos. 04-2124, 04-9001, 2005 WL 237754, at **1 (10th Cir. Feb. 2, 2005).
On April 15, 2005, little more than two months after this court’s decision, Boyd
filed with the IRS a tax return for the year 2001. On that return, Boyd reported zero
wages and zero federal income tax withheld, and claimed a refund of $5,853. Five days
later, on April 20, 2005, Boyd filed with the IRS a tax return for the year 2002. The 2002
return reported zero wages, $6,554 in federal income tax withheld, and claimed a refund
of $6,318. On May 5, 2005, Boyd filed with the IRS a tax return for the year 2003,
reporting zero wages, $24,640 in federal income tax withheld, and claiming a refund of
$22,309. On or about that same date, Boyd filed with the IRS a tax return for the year
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2004. The 2004 return listed zero wages, $32,953 in federal income tax withheld, and
claimed a refund of $32,819. On June 8, 2006, Boyd filed with the IRS a tax return for
the year 2005. Line 7 of the 2005 return, indicating wages earned, was blank. The 2005
return listed $34,012 in federal income tax withheld and requested a refund of $33,349.
On November 28, 2005, two IRS special agents went to Boyd’s house and asked to
speak with Boyd. Boyd agreed to speak with the agents in the parking lot of a nearby
restaurant. During the ensuing two-hour meeting, the agents reviewed with Boyd, on a
line-by-line basis, his tax returns for 2001, 2002, 2003 and 2004. When asked about the
federal income tax withholdings reported on each return, Boyd explained that he
calculated those numbers by adding together the federal income tax withholdings, the
Social Security taxes, and the Medicare taxes listed on his annual W-2 forms. Boyd
could not, however, identify any IRC sections that supported his inclusion of Social
Security and Medicare withholdings as part of federal income tax withholdings, or as part
of his requested refund amounts. Boyd did state “that he did not have wages based on his
interpretation of the Internal Revenue Code and cited two [IRC] sections to support that.”
Supp. App. at 480. The two IRS special agents told Boyd that, in the opinion of IRS
attorneys, his legal conclusions were wrong.
On July 9, 2007, Boyd filed with the IRS a tax return for the year 2006. It listed
zero wages, a withholding of federal income tax in the amount of $30,894, and requested
a refund of $30,934. On October 17, 2008, Boyd filed with the IRS a tax return for the
year 2007. The wage box on the return was left blank. The return listed $34,422 of
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federal income tax withholdings, and requested a refund of $32,145.
In total, Boyd excluded from his tax returns for the years 2001 through 2007
$712,559.68 in total wages, and reported a total of $6,102 in federal income taxes owed
to the government. Boyd’s claims for refunds for those seven years included $49,498 of
Medicare and Social Security withholdings.
Procedural background
On September 10, 2008, a federal grand jury indicted Boyd on twelve criminal
counts arising out of his filing of tax returns for the years 2001 through 2006. On
December 2, 2008, a federal grand jury returned a fourteen-count superseding indictment
against Boyd. Counts 1 through 7 of the superseding indictment charged him with
violating 26 U.S.C. § 7206(1) by signing false personal federal income tax returns for the
years 2001 through 2007. Counts 8 through 14 charged him with violating 18 U.S.C. §
287 by making false claims for tax refunds during each of those same seven years (i.e.,
requesting refunds of his annual Medicare and Social Security withholdings).
Boyd moved to dismiss Counts 8 through 14 of the superseding indictment,
arguing that these eight counts were lesser-included offenses of the charges alleged in
Counts 1 through 7 of the superseding indictment and were therefore multiplicitous. The
district court denied Boyd’s motion.
The case proceeded to trial on April 13, 2009. After two-and-a-half days of
testimony, including testimony from Boyd himself, the jury found Boyd guilty of all
fourteen charges alleged in the superseding indictment. The district court subsequently
6
sentenced Boyd to a term of imprisonment of 33 months, to be followed by a 3-year term
of supervised release. The district court also ordered Boyd to make restitution in the
amount of $113,053.
II
Denial of Boyd’s motion to dismiss on multiplicity grounds
In his first issue on appeal, Boyd challenges the district court’s denial of his
motion to dismiss Counts 8 through 14 of the superseding indictment. According to
Boyd, “counts 8 through 14 of the superseding indictment were plainly lesser-include[d]
offenses, and thus multiplicitous, to those charged in counts 1 through 7.” Aplt. Br. at 15.
We review de novo a district court’s ruling on a motion to dismiss an indictment on
grounds of multiplicity. United States v. Farr, 591 F.3d 1322, 1324 (10th Cir. 2010)
(“We review the district court’s denial of a motion to dismiss an indictment on double
jeopardy grounds de novo[.]”); United States v. Platter, 514 F.3d 782, 785 (8th Cir. 2008)
(“We review de novo the district court’s determination that counts in an indictment are
multiplicitous.”) (italics omitted).
“Multiplicity refers to multiple counts of an indictment which cover the same
criminal behavior.” United States v. Morehead, 959 F.2d 1489, 1505 (10th Cir. 1992)
(alterations, quotations and citations omitted). Because multiplicity “poses the threat of
multiple sentences for the same offense,” it “raises double jeopardy implications.” Id.
The controlling test for multiplicity was outlined by the United States Supreme
Court in Blockburger v. United States, 284 U.S. 299, 304 (1932):
7
[W]here the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are
two offenses or only one, is whether each provision requires proof of a fact
which the other does not.
Id. at 304. In other words, “if each offense for which the defendant is tried or punished
contains a separate element not present in the other, double jeopardy does not bar the . . .
prosecution” of both offenses. Farr, 591 F.3d at 1326.
Here, Counts 1 through 7 of the superseding indictment charged Boyd with
violating 26 U.S.C. § 7206(1) by filing false tax returns for the tax years 2001 through
2007. Section 7206(1) makes it illegal for any person to “[w]illfully make[] and
subscribe[] any return . . . which contains or is verified by a written declaration that it is
made under the penalties of perjury, and which he does not believe to be true and correct
as to every material matter . . . .” According to the allegations supporting Counts 1
through 7 of the superseding indictment, on each of the seven tax returns at issue, Boyd
reported zero wages, even though the W-2 forms issued to him by his employer Atlas Air
indicated he earned annual wages of between $84,000 and $113,000.
Counts 8 through 14 of the superseding indictment charged Boyd with violating 18
U.S.C. § 287. Section 287 provides that “[w]hoever makes or presents to any person or
officer in the civil, military, or naval service of the United States, or to any department or
agency thereof, any claim upon or against the United States, or any department or agency
thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not
more than five years . . . .” According to Counts 8 through 14 of the superseding
8
indictment, Boyd filed tax returns for the tax years 2001 through 2007 “that claimed
refunds” in amounts “substantially more than any refund due to him . . . .” App. at 14.
More specifically, the refund claimed by Boyd in each of those tax years was derived by
adding together the federal income tax withholdings, Medicare tax withholdings, and
Social Security tax withholdings made by his employer Atlas Air. In other words, Boyd
sought a refund of not only all of his federal income tax withholdings, but the Medicare
and Social Security withholdings as well.
Turning to the essential elements of each of these two categories of crimes, §
7206(1) requires the government to establish: (1) the defendant made and subscribed a
federal tax return; (2) the return contained a written declaration that it was being signed
subject to the penalties of perjury; (3) the defendant did not believe the return to be true
and correct as to every material matter detailed in the indictment; and (4) in filing the
false return, the defendant acted willfully. United States v. Winchell, 129 F.3d 1093,
1095-96 (10th Cir. 1997). Section 287, on the other hand, requires the government to
prove “that (1) the defendant[] knowingly made and presented to a department or agency
of the United States a false, fraudulent or fictitious claim against the United States; and
(2) the defendant acted with knowledge that the claim was false, fraudulent or fictitious.”
United States v. Abbott Washroom Sys., Inc., 49 F.3d 619, 624 (10th Cir. 1995); see
United States v. Okoronkwo, 46 F.3d 426, 430 (5th Cir. 1995) (noting that the elements
of a § 287 offense include “(1) that the defendant presented a false or fraudulent claim
against the United States; (2) that the claim was presented to an agency of the United
9
States; and (3) that the defendant knew that the claim was false or fraudulent”).
Applying the Blockburger test to these elements, it is apparent that the two
statutory provisions at issue give rise to two offenses, even in situations where, as here,
the offenses arise out of the same transaction(s). More specifically, § 7206(1) requires, in
pertinent part, proof that the defendant (1) made and subscribed a federal tax return, and
(2) the return contained a written declaration that it was being signed subject to the
penalties of perjury. In contrast, § 287 requires proof that the defendant made a false
claim against the United States for payment. Although in this case the false claims at
issue were contained in Boyd’s federal tax returns, § 287 does not require the claims to be
in any particular form, nor does it require the claim to include a written declaration that it
was being signed subject to the penalties of perjury. In short, the two statutes require
proof of different elements. As both the government and the district court have noted, “it
is quite possible to file a false tax return without also making a false claim,” and vice
versa. App. at 22. Moreover, the false statements alleged in Counts 1 through 7, i.e.,
Boyd’s statements as to his federal wages, were different from the false statements
alleged in Counts 8 through 14, i.e., Boyd’s statements as to the amount of federal income
tax withholdings he was entitled to be refunded.
For these reasons, we conclude the district court properly denied Boyd’s motion to
dismiss Counts 8 through 14 as multiplicitous.
Theory of defense instructions
In his second issue on appeal, Boyd contends the district court erred in rejecting
10
two of his proffered theory of defense instructions, requested instructions Nos. 30 and 33.
“We review a district court’s decision to give [or deny] a particular instruction for an
abuse of discretion and consider the instructions as a whole de novo to determine whether
they accurately informed the jury of the governing law.” United States v. Gwathney, 465
F.3d 1133, 1142 (10th Cir. 2006).
At trial, Boyd’s theory of defense was that he believed in good faith, based upon
his own review of the IRC, that his wages from Atlas Air were not federally taxable.
Consistent with that theory of defense, Boyd proffered instructions Nos. 30 and 33.
Instruction No. 30 stated as follows:
If upon consideration of all the evidence you are left with a reasonable
doubt whether the defendant Boyd believed in good faith that for the year
2001 his wages were not taxable, it shall be your duty to acquit him for
count 1 of the indictment.
If upon consideration of all the evidence you are left with a reasonable
doubt whether the defendant Boyd believed in good faith that for the year
2002 his wages were not taxable, it shall be your duty to acquit him for
count 2 of the indictment.
If upon consideration of all the evidence you are left with a reasonable
doubt whether the defendant Boyd believed in good faith that for the year
2003 his wages were not taxable, it shall be your duty to acquit him for
count 3 of the indictment.
If upon consideration of all the evidence you are left with a reasonable
doubt whether the defendant Boyd believed in good faith that for the year
2004 his wages were not taxable, it shall be your duty to acquit him for
count 4 of the indictment.
If upon consideration of all the evidence you are left with a reasonable
doubt whether the defendant Boyd believed in good faith that for the year
2005 his wages were not taxable, it shall be your duty to acquit him for
count 5 of the indictment.
If upon consideration of all the evidence you are left with a reasonable
doubt whether the defendant Boyd believed in good faith that for the year
2006 his wages were not taxable, it shall be your duty to acquit him for
11
count 6 of the indictment.
If upon consideration of all the evidence you are left with a reasonable
doubt whether the defendant Boyd believed in good faith that for the year
2007 his wages were not taxable, it shall be your duty to acquit him for
count 7 of the indictment.
App. at 27-28.
Similarly, Boyd’s requested instruction No. 33 stated:
If upon consideration of all the evidence you are left with a reasonable
doubt whether the defendant Boyd believed in good faith that for the year
2001 his wages were not taxable, it shall be your duty to acquit him for
count 8 of the indictment.
If upon consideration of all the evidence you are left with a reasonable
doubt whether the defendant Boyd believed in good faith that for the year
2002 his wages were not taxable, it shall be your duty to acquit him for
count 9 of the indictment.
If upon consideration of all the evidence you are left with a reasonable
doubt whether the defendant Boyd believed in good faith that for the year
2003 his wages were not taxable, it shall be your duty to acquit him for
count 10 of the indictment.
If upon consideration of all the evidence you are left with a reasonable
doubt whether the defendant Boyd believed in good faith that for the year
2004 his wages were not taxable, it shall be your duty to acquit him for
count 11 of the indictment.
If upon consideration of all the evidence you are left with a reasonable
doubt whether the defendant Boyd believed in good faith that for the year
2005 his wages were not taxable, it shall be your duty to acquit him for
count 12 of the indictment.
If upon consideration of all the evidence you are left with a reasonable
doubt whether the defendant Boyd believed in good faith that for the year
2006 his wages were not taxable, it shall be your duty to acquit him for
count 13 of the indictment.
If upon consideration of all the evidence you are left with a reasonable
doubt whether the defendant Boyd believed in good faith that for the year
2007 his wages were not taxable, it shall be your duty to acquit him for
count 14 of the indictment.
Id. at 29-30.
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The district court rejected these two proposed instructions, along with several
others, noting as follows:
And I have reviewed all of these proposed instructions. In large part, they
do not comply with binding Tenth Circuit precedent. They either are not
approved by the Tenth Circuit, are fairly covered by other instructions, or
are not relevant under the facts of this case, so I will not give those
proposed instructions.
Supp. App. at 672.
As the district court’s ruling suggested, the actual instructions given by the district
court to the jury effectively encompassed the concepts contained in proposed instructions
30 and 33. To begin with, the district court, in Instruction No. 5, instructed the jury that
“[t]he government ha[d] the burden of proving [Boyd] guilty beyond a reasonable doubt,”
and that if the government “fail[ed] to do so, [the jury] must find [Boyd] not guilty.”
App. at 44. With respect to Counts 1 through 7 of the superseding indictment, the district
court, in Instruction No. 14, instructed the jury that the government had to prove that
Boyd knew the statements in the returns at issue indicating he earned zero wages were
“false,” id. at 56, and it explained that “[a] statement is ‘false’ if it is known to be untrue
or is made with reckless indifference as to its truth or falsity,” id. at 57. The district court
also instructed the jury regarding Counts 1 through 7 that it had to find that Boyd “acted
willfully,” id. at 56, and it explained that if the jury “ha[d] a reasonable doubt as to
whether [Boyd] acted in good faith, sincerely believing himself to be exempt by the law
from reporting his wages accurately, then [he] did not intentionally violate a known legal
duty — that is, [he] did not act willfully,” id. at 58-59.
13
Similarly, with respect to Counts 8 through 14 of the superseding indictment, the
district court instructed the jury that the government had to prove that Boyd “knowingly
made and caused to be presented to the [IRS] a false or fraudulent claim against the
United States,” and that he “knew that the claim was false or fraudulent.” Id. at 63. In
defining for the jury the words “knowing” and “knowingly,” the district court explained
that if the jury “ha[d] a reasonable doubt as to whether [Boyd] acted in good faith,
sincerely believing that he was entitled to the tax refund claims at issue in Counts Eight
through Fourteen, then the element of knowledge would not be established.” Id. at 66.
Because the instructions given by the district court to the jury accurately stated the
law and encompassed the concepts contained in Boyd’s proposed instructions Nos. 30
and 33, we conclude the district court did not abuse its discretion in refusing to give those
proposed instructions.
The “innocent explanation” instruction
In his third issue on appeal, Boyd contends the district court erred in rejecting his
proffered instruction No. 5. That instruction, entitled “INNOCENT EXPLANATION,”
stated as follows:
When there is an innocent explanation for a defendant’s conduct as well as
one which suggests that the defendant was engaged in wrong doing [sic],
the Government must produce evidence which would allow you, the jury, to
conclude beyond a reasonable doubt that the Government’s version of the
defendant’s conduct is the correct one.
Supp. App. at 25.
Boyd apparently based this proffered instruction on several older Ninth Circuit
14
cases, most notably United States v. Vasquez-Chan, 978 F.2d 546, 549 (9th Cir. 1992),
overruled on other grounds by United States v. Nevils, 598 F.3d 1158, 1166 (9th Cir.
2010). In Vasquez-Chan, the two codefendant-appellants challenged the sufficiency of
the evidence supporting their convictions. In addressing these challenges, the Ninth
Circuit stated that “[w]hen there is an innocent explanation for a defendant’s conduct as
well as one that suggests that the defendant was engaged in wrongdoing, the government
must produce evidence that would allow a rational jury to conclude beyond a reasonable
doubt that the latter explanation is the correct one.” Id. at 549.
Importantly, however, the Ninth Circuit has since held that an instruction tracking
this quoted language from Vasquez-Chan is unnecessary if, under the other instructions,
the jury could not have convicted the defendant if they believed an innocent explanation
existed for his conduct. United States v. Govan, 152 F.3d 1088, 1093 (9th Cir. 1998);
United States v. Melvin, 91 F.3d 1218, 1224 (9th Cir. 1996). As we have already
discussed, the jury in this case could not have, under the instructions actually given by the
district court, convicted Boyd of the charged crimes unless the government proved
beyond a reasonable doubt that he acted willfully and knowingly in submitting the false
tax returns and in making false claims for refunds to the government.1 Thus, we conclude
the district court did not abuse its discretion in rejecting Boyd’s proposed “innocent
1
Although Boyd complains that our pattern criminal jury instruction defining
reasonable doubt fails to provide jurors with “concrete examples of what is reasonable
doubt,” Aplt. Br. at 35, his only remedial suggestion is that the district court should have
given his proposed Instruction No. 5. That proposed instruction, however, adds little, if
anything, to the reasonable doubt instruction actually given by the district court.
15
explanation” instruction.
Instruction regarding Boyd’s knowledge of the law
In his fourth and final issue on appeal, Boyd contends the district court erred in
rejecting his proffered instruction No. 25, which read as follows:
In this case, the defendant is not presumed to know the law. For any law
the government asserts the defendant knew, the government must prove
beyond a reasonable doubt that the defendant knew it.
Supp. App. at 26.
It is true that, in order to establish willfulness, the government had to prove beyond
a reasonable doubt that Boyd had knowledge of the law. More specifically, “the standard
for willfulness ‘require[d] the Government to prove that the law imposed a duty on the
defendant, that the defendant knew of this duty, and that he voluntarily and intentionally
violated that duty.’” United States v. Ambort, 405 F.3d 1109, 1114 (10th Cir. 2005)
(quoting Cheek v. United States, 498 U.S. 192, 201 (1991)). But the instructions actually
given by the district court adequately outlined this governmental burden, thus making the
additional language proposed by Boyd unnecessary.
To begin with, Instruction No 15 defined for the jury the concept of willfulness:
If you find beyond a reasonable doubt that the acts constituting the
crimes charged in Counts One through Seven were committed by the
defendant voluntarily as an intentional violation of a known legal duty —
that is, with specific intent to do something the law forbids or with bad
purpose either to disobey or disregard the law — then the element of
willfulness as defined in these instructions has been satisfied even though
the defendant may have believed that the conduct was politically or morally
required, or that ultimate good would result from such conduct.
16
On the other hand, if you have a reasonable doubt as to whether the
defendant acted in good faith, sincerely believing himself to be exempt by
the law from reporting his wages accurately, then the defendant did not
intentionally violate a known legal duty — that is, the defendant did not act
willfully — and that essential part of the offense would not be established.
Supp. App. at 58-59 (emphasis added).
Further, Instruction No. 16 defined the meaning of “good faith,” and explained, in
pertinent part:
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. A good faith
belief is one which is honestly and genuinely held, even if wrong.
Therefore, if the defendant actually believed that what he was doing was in
accord with the tax statutes, he cannot be said to have the criminal intent to
subscribe to a false income tax return. A belief need not be objectively
reasonable to be held in good faith. Nevertheless, you may consider
whether the defendant’s stated belief about the tax statutes was reasonable
as a factor in deciding whether the belief was honestly or genuinely held.
***
The defendant has not established his good faith if the government has
proved beyond a reasonable doubt that he knowingly used false
representations or pretenses with intent to deceive in connection with the
conduct described in Counts One through Seven.
Id. at 60.2
Thus, in sum, because the instructions actually given by the district court
adequately informed the jury that the government had to prove beyond a reasonable doubt
that Boyd was aware of the duties the law imposed upon him and that he intentionally
2
We emphasize that the language of Instruction No. 16 is not contained in our
Criminal Pattern Jury Instructions, nor have we ever required the giving of such language
in a tax evasion or false claims case.
17
violated those duties, the district court did not abuse its discretion in refusing to give
Boyd’s proffered instruction No. 25. See United States v. Pflum, No. 04-3508, 2005 WL
2476245, at **3 (10th Cir. Oct. 7, 2005) (rejecting a similar instruction proffered by the
same defense counsel).
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Chief Judge
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