LOGAN, Circuit Judge.
Steven L. Peister was found guilty by a jury of violating I.R.C. § 7205, 26 U.S.C. § 7205, for willfully supplying false or fraudulent information to his employer on a withholding exemption certificate form W-4. Peister raises a number of issues on appeal which we treat under the following categories: (1) infringement upon right to counsel; (2) prosecutorial misconduct; (3) admissibility of certain testimony; (4) sufficiency of the evidence to sustain the verdict; (5) the judge's interpretation of willfulness and a good faith defense; (6) failure of the judge to rule on whether defendant was exempt from withholding under I.R.C. § 3401(a)(9); and (7) the prosecution as a violation of Peister's First Amendment rights.
In the latter part of 1976, Peister formed a church called the Life Science Church of Friendly Hills using materials he purchased from William Drexler. Peister became the minister of the church, and his wife and parents became its trustees. The church held services on Wednesday nights with prayers and sermons.
In connection with organizing the church, Peister took a vow of poverty and purportedly made an irrevocable gift of all his worldly possessions to the church as a requirement of his admission to the Order of Almighty God. Pursuant to the vow, the Peisters executed a quitclaim deed conveying their home to the church. According to the testimony, members of the Order of Almighty God were required to hold assigned outside jobs to raise funds for the church. Frederick Meyer, a bishop in the Order, assigned Peister to continue working as a pressman at Rocky Mountain Bank Note Company, the job he held prior to admission to the Order.
Peister maintained checking accounts in the church name at a succession of banks, and he deposited all but one of his pay-checks received during this period in a church bank account. Peister and his wife were the only authorized signators on these accounts. There was substantially no difference between the expenditures made with checks drawn on the Peisters' individual accounts prior to this time and the expenditures from the church accounts, which included payment of personal living expenses of the Peisters.
In December 1976 Peister attempted to stop tax withholding from his wages by submitting a statutory notice to his employer stating he had taken a vow of poverty and so was not subject to withholding. The employer refused to comply with the request directly, but told him he could contact the Internal Revenue Service (IRS). Peister corresponded with the IRS, which informed him he was not exempt from withholding under I.R.C. § 3401(a)(9).
I.R.C. § 3402(f) lists the exemptions an employee can claim on the withholding certificate. These are limited to a personal exemption and exemptions for a spouse, dependents, old age, blindness and for excess itemized deductions. The government's expert testified at trial that under this provision Peister at most would be entitled
Peister represented himself at the arraignment and pretrial hearings he attended. In a pretrial motion for continuance he declared that he was seeking "effective and competent counsel ... who can be expected to exercise loyalty to his client's interests," counsel with whom he was comfortable, agreeable, and compatible. In a pretrial hearing he made the following statement to the judge concerning his attempts to find a lawyer:
The judge then informed Peister of his right to have counsel appointed upon showing his inability to pay for one by the required financial affidavit. Asserting he could not fill out the affidavit disclosing his assets without incriminating himself on matters at issue in this criminal prosecution, Peister asked the judge to guarantee him immunity on the answers. The court refused to do so, ruling that it could not grant immunity and that any "choice" between right to counsel and right against self-incrimination did not violate Peister's constitutional rights. Peister then proceeded pro se throughout the trial and this appeal. We decide that Peister's constitutional rights were not violated.
Arguably, defendant never represented here that he could hire no lawyer, but only that he could not find a lawyer compatible with his views who would represent him for a charge he was willing to pay. There is no absolute right to counsel of one's choice. See United States v. Weninger, 624 F.2d 163 (10th Cir. 1980). Nevertheless, for purposes of this case we assume that Peister desired appointed counsel because he could not afford any lawyer.
In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court held that testimony given by a criminal defendant in support of a motion to suppress cannot be used against that defendant at trial; otherwise defendant would be
Id. at 394, 88 S.Ct. at 976. In United States v. Salvucci, ___ U.S. ___, ___, 100 S.Ct. 2547, 2554, 65 L.Ed.2d 619 (1980), the court referred to, with approval, the "use immunity" granted by Simmons. The Supreme Court has not yet decided whether this principle should be applied to Sixth Amendment claims for counsel, see United States v. Kahan, 415 U.S. 239, 243, 94 S.Ct. 1179, 1181, 39 L.Ed.2d 297 (1974), but several circuit courts have so applied it. See United States v. Anderson, 567 F.2d 839 (8th Cir. 1977); United States v. Ellsworth, 547 F.2d 1096
Peister's claim of Fifth Amendment protection against self-incrimination is based on the assumption that execution of the financial disclosure form would incriminate him. On the record presented, we do not know whether it would or not. We know neither the financial ability of the defendant nor what use, if any, might ever be made by the government of defendant's statements with regard to financial ability. The burden is on the defendant to demonstrate financial inability in order to obtain counsel. United States v. Ellsworth, 547 F.2d 1096 (9th Cir.), cert. denied, 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 247 (1977). We hold defendant should not be relieved of this burden when any conflict with the Fifth Amendment right is speculative and prospective only. The time for protection will come when, if ever, the government attempts to use the information against the defendant at trial. We are not willing to assume that the government will make such use, or if it does, that a court will allow it to do so.
Peister claims it was error for the prosecutor to cross-examine him on the identity of the other members of his church. Because Peister claimed First Amendment protection from answering, it is argued the jury could have inferred that the members of the church had something to hide. Peister objected to the prosecutor's question when it was asked, and the court sustained the objection. The court later informed the jury that the reason for the ruling was to protect the members' rights to freedom of association and religion. We do not believe this exchange requires reversal. Any negative inference that arose was only indirectly connected with Peister. Also, the judge's explanation legitimized defendant's objection.
The second alleged error concerns the following statement made by the prosecuting attorney in closing argument:
This inarticulate statement might have left the impression with the jury that mere disagreement with the IRS, rather than a willful intention to violate the law, is sufficient to establish a violation. The jury, however, was adequately instructed by the court on willfulness and a good faith defense, and the instructions made it clear that mere disagreement was not sufficient. See, discussion in Part V, infra. We hold, therefore, that any misleading impression was cured.
Peister objects to the testimony of two witnesses, Dennis Clark and Randy DeLano, called in rebuttal by the government. Clark and DeLano had known Peister and attended his church. Each of them had set up a church similar to Peister's, with the same materials from William Drexler. They both testified in response to cross-examination by Peister that their intention in forming the churches was tax avoidance, and that they had been offered immunity by the local United States Attorney's Office if they would testify in this case. After their testimony the trial judge warned both witnesses, outside of the presence of the jury, that the promise of immunity they had received was not binding on the court or on the United States government. The government attorney responded that what was given them was not "formal" immunity,
Peister first contends it was prejudicial error for the government to induce witnesses to testify on "false pretenses." We find no evidence that the prosecution acted in bad faith here or overstepped the bounds of propriety and fairness; it apparently believed that a promise not to prosecute by the District of Colorado Office was of value, even though not binding elsewhere. That Clark and DeLano had been offered immunity was certainly relevant to the probative weight of their testimony, but this fact was adequately brought out by Peister at trial. We hold there was no error here.
The second contention is that Clark's and DeLano's testimony was irrelevant and prejudicial because statements concerning their tax avoidance intent implied guilt by association. We see no merit in this argument. Clark and DeLano were used only as rebuttal witnesses to refute Peister's testimony about his church. Peister, not the government attorney, questioned them about their intent in setting up the church. Further, since Peister did not object to the testimony at trial, reversal is not proper unless the error is "plain error" under Fed. R.Crim.P. 52(b). It is not.
We next consider whether there was sufficient evidence of willfulness. The standard applied on appeal is whether the evidence, viewed in the light most favorable to the government, is sufficient for the jury to find defendant guilty beyond a reasonable doubt. United States v. Wright, 450 F.2d 992, 993-94 (10th Cir. 1971). In the instant case the record contains adequate evidence from which the jury could infer that Peister set up the church to avoid taxes. Viewed most favorably to the government, the evidence showed the church was a shell entity, fully controlled by Peister and his wife, or at the least by them together with Peister's parents. The vow of poverty was one in form only, and had no substantive effect on defendant's lifestyle. The use of the purchased forms to establish the church and the sequence of events all indicate a deliberate plan to manufacture a religious order exemption. The jury apparently chose to disbelieve Peister's testimony of his belief in the church, and that was within the jury's power as the fact finder.
Peister raises two contentions concerning interpretation of the willfulness requirement of I.R.C. § 7205. First, he argues that mere disagreement with the IRS on the applicability of I.R.C. § 3401(a)(9) does not constitute willfulness; and second, he asserts he cannot be convicted here because he relied in good faith on being exempt from withholding under that section. The jury was correctly instructed on willfulness.
Whether Peister acted in good faith was a question for the jury, of course. The following instructions were given concerning Peister's good faith defense:
We hold these instructions allowed the jury to acquit Peister if they found he held a good faith belief that he was exempt from withholding and that using 99 exemptions was the way to prevent withholding.
Peister next argues it was error for the judge not to rule on whether he was actually exempt from withholding under I.R.C. § 3401(a)(9). The judge treated the question as a collateral issue not essential to the case. We agree. The issue here was whether Peister willfully provided false information
Peister's final argument is that his prosecution under I.R.C. § 7205 violates his right to freedom of religion under the First Amendment. This argument is without merit. Section 7205 does not involve religion directly. Peister injected his religious beliefs into the lawsuit by asserting a defense of good faith reliance on an I.R.C. § 3401(a)(9) exemption. It was necessary for the government to refute this defense by showing Peister did not have a sincere belief in the church, but set it up for tax avoidance purposes. This is within the government's power and does not violate First Amendment rights. See United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 863, 13 L.Ed.2d 733 (1965); Christian Echoes Nat'l Ministry, Inc. v. United States, 470 F.2d 849, 856-57 (10th Cir. 1972), cert. denied, 414 U.S. 864, 94 S.Ct. 41, 38 L.Ed.2d 84 (1973).
The judgment is affirmed.