UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4751
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES A. DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:11-cr-00032-RLV-DSC-1)
Submitted: August 21, 2013 Decided: September 25, 2013
Before TRAXLER, Chief Judge, and KING and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant. Anne M. Tompkins, United States
Attorney, Charlotte, North Carolina; Kathryn Keneally, Assistant
Attorney General, Frank P. Cihlar, Criminal Appeals & Tax
Enforcement Policy Section, Gregory Victor Davis, Thomas J.
Sawyer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Charles Davis was convicted of willfully filing
false federal income tax returns from 1996 through 2000 and from
2004 through 2008, see 26 U.S.C. § 7206(1), and obstructing the
administration of federal tax laws, see 26 U.S.C. § 7212(a).
Davis raises various challenges to his convictions, but he does
not challenge his sentence. We affirm.
From 1996 through 2008, Davis was employed by US Airways as
a pilot. Each year during that period, Davis earned between
$125,000 and $190,000. In 1996, Davis stopped filing income tax
returns on a regular basis. He submitted to US Airways a W-4
tax form claiming “exempt” status from federal tax withholding,
and US Airways essentially stopped withholding any income tax
from Davis’s wages. Davis also sent numerous communications to
the Internal Revenue Service maintaining that he was not subject
to the internal revenue laws. Davis eventually filed returns
for tax years 1996 through 2000, reporting either zero or almost
no income for each year.
In 2008 and 2009, Davis filed income tax returns for tax
years 2004 through 2008. For each of these tax years, Davis
attempted to avoid paying income tax by relying on false
documents that indicated significant income tax withholdings.
Such documents included 1099-OID forms that were purportedly
issued by financial institutions such as Washington Mutual Bank,
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Alaraon Trading Corp., and National Financial Services, LLC.
Uncontroverted testimony at trial, however, established that no
such forms were ever submitted to the IRS by these financial
institutions. By 2008, the fabricated withholding figures Davis
reported to the IRS had grown to a total of approximately
$2,294,862.
The IRS conducted civil tax examinations of Davis and
assessed tax deficiencies against him for the years 1996 through
2000. The IRS took measures to collect these deficiencies, but
Davis engaged in several tactics designed to hinder the IRS’s
collection efforts. For example, Davis twice initiated
bankruptcy proceedings, thereby halting the IRS from taking
action to collect pursuant to the automatic stay provision. See
11 U.S.C. § 362. Both times, however, Davis’s petition was
dismissed quickly when he made no effort to advance his case or
obtain relief. Additionally, Davis purported to pay his tax
liabilities to the IRS with fictitious financial instruments
drawn on non-existent accounts, and he also attempted to conceal
funds from the IRS by using accounts opened with false tax
identification numbers.
Davis was charged with ten counts of willfully filing false
federal income tax returns from 1996 through 2008. See 26
U.S.C. § 7206(1). Counts one through five related to Davis’s
income tax returns for the years 1996-2000, and counts six
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through ten related to the years 2004-2008. Davis was also
charged with one count of corruptly endeavoring to obstruct and
impede the due administration of federal tax laws based on
Davis’s filing of fraudulent IRS forms; filing of bankruptcy
petitions “to defeat IRS levies”; submitting fraudulent
documents to the IRS in satisfaction of Davis’s tax
deficiencies; and using false tax identification numbers to open
a bank account. See 26 U.S.C. § 7212(a).
During Davis’s initial appearance, the magistrate judge
explained the charges against Davis and the potential penalties
he faced if convicted. The magistrate judge further explained
Davis’s right to be represented by a lawyer and that the court
would appoint counsel if Davis could not afford one. Davis told
the magistrate judge that he did not want the court to appoint
counsel and that he wished to represent himself. Although Davis
stated that he wanted “assistance of counsel,” Davis defined
this term to mean clerical or administrative help with legal
matters: “I’m not asking for [a lawyer] to represent me. . . .
Not for [a lawyer] to represent me, but assistance. . . . I need
someone to be on the outside to . . . do my research and file
documents for me.” J.A. 85. Davis disclosed that he had a
“legal advisor” who was not a licensed attorney but who would
file documents and perform other tasks Davis was unable to
perform while incarcerated. Davis argued that his right to
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“assistance of counsel” required the court to appoint his
advisor as his legal representative because his advisor
performed tasks that “assisted” him in conducting his own
defense.
The magistrate judge denied Davis’s request to have a non-
lawyer act as legal counsel and then asked several questions to
clarify whether Davis in fact wanted to waive his right to an
attorney. Following this colloquy, the magistrate judge
concluded that Davis did not actually want an attorney and
wished to represent himself, and that his waiver of legal
counsel was knowing and voluntary.
The magistrate judge also directed the Federal Public
Defender to appoint standby counsel to answer legal questions
for Davis. Subsequently, however, a conflict developed between
standby counsel and Davis as to standby counsel’s proper role.
Davis wanted him to perform administrative tasks, but counsel
refused on the basis that his appointed role was merely to make
himself available to answer legal questions from Davis. The
magistrate judge relieved standby counsel, and again instructed
Davis that the court could only appoint a trained lawyer to
represent Davis, not a layperson to provide clerical assistance
and to run errands. The magistrate judge repeated that Davis
could choose to represent himself with standby counsel available
to answer questions or explain legal principles. Davis then
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stated on the record that, “I completely, intentionally, and
knowingly understand and waive an attorney.” J.A. 129.
Davis filed a document purporting to grant “power of
attorney” to his advisor to file legal documents on his behalf
in the criminal case. Concerned that this filing cast doubt on
whether Davis understood the ruling of the magistrate judge, the
government requested that the district court conduct another
hearing to clarify whether Davis was knowingly and voluntarily
forgoing the right to counsel as required by Faretta v.
California. See 422 U.S. 806, 835 (1975).
The district court granted the request for another Faretta
hearing, at which the district judge thoroughly explained the
charges against Davis and the criminal penalties he faced, and
advised him that a “trained lawyer would defend you far better
than you could defend yourself.” J.A. 155. The district judge
admonished Davis that it would be “unwise . . . to try to
represent yourself” and that the court “would strongly urge you
not to try to represent yourself.” Id. The district court
asked, “In light of the penalties that you face if you are found
guilty and . . . the difficulties of representing yourself, do
you still desire to represent yourself and give up your right to
be represented by a lawyer?” Id. Davis reiterated that he did
not want an attorney, and the district court concluded that
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Davis had “knowingly and voluntarily waived the right to
counsel.” Id.
Prior to trial, the government moved in limine for an order
precluding Davis in part from (1) arguing to the jury that the
federal tax laws are unconstitutional or otherwise invalid; and
(2) arguing that he is not subject to the internal revenue code
based on any interpretation of the federal tax laws that he did
not actually rely upon at the time he engaged in the charged
conduct. The district court granted the motion in a written
order that provided in pertinent part: “[B]ecause a lack of
willfulness is a defense to counts one through ten in the
indictment, Defendant may offer his interpretation of the law to
the extent he actually had adopted such interpretation at the
time he committed the acts charged.” J.A. 190.
At trial, Davis did not actively participate. Whenever
it was his turn to question or cross-examine any witnesses or
otherwise participate, Davis stated: “I respectfully decline in
order to reserve my rights and privileges.” Davis was convicted
on all eleven counts, and he received a sentence of 120 months.
On appeal, Davis first contends that his waiver of legal
representation was not knowing or voluntary. A defendant has a
Sixth Amendment right to defend himself in a criminal case so
long as he “knowingly and intelligently” elects to do so. See
Faretta, 422 U.S. at 835 (internal quotation marks omitted). A
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defendant who asserts the right of self-representation must do
so (1) clearly and unequivocally; (2) knowingly, intelligently,
and voluntarily; and (3) in a timely fashion. See United States
v. Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000). A defendant
“should be made aware of the dangers and disadvantages of self-
representation, so that the record will establish that he knows
what he is doing and his choice is made with eyes open.”
Faretta, 422 U.S. at 835 (internal quotation marks omitted). We
review a district court’s determination that a defendant has
waived his Sixth Amendment right to counsel de novo. See United
States v. Singleton, 107 F.3d 1091, 1097 n.3 (4th Cir. 1997).
The court reviews the findings of historical fact underlying the
district court’s determination for clear error. See United
States v. Bush, 404 F.3d 263, 270 (4th Cir. 2005).
Davis argues that his waiver of the right to counsel was
not knowing and intelligent because he mistakenly believed that
the Sixth Amendment right to “assistance of counsel” included
the right to an “assistant” regardless of whether such assistant
was a lawyer. Davis argues that because he did not understand
the limits of the constitutional guarantee to the “assistance of
counsel,” he could not have knowingly and intelligently waived
such right. Throughout Davis’s pre-trial proceedings, however,
both the magistrate judge and the district judge court corrected
Davis’s misunderstanding by instructing Davis that he did not a
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have a right to the appointment of a “person [who] is not a
lawyer” but that, if appointed, standby counsel could assist
with various practical tasks and would be available to answer
questions.
Davis objected to the appointment of standby counsel as
well as full-time legal counsel. Indeed, in each pre-trial
proceeding, Davis expressly stated that he did not want an
attorney. Davis, a well-educated and successful pilot for a
major commercial airline, was advised in two separate hearings
of the potential criminal penalties he faced and the dangers of
self-representation. Nonetheless, Davis stated on multiple
occasions that he did not want a lawyer and declared that he
“completely, intentionally, and knowingly underst[ood] and
waive[d] an attorney.” We have thoroughly examined the record
and, finding no clear error in the district court’s
determination of fact, we conclude that the district court
properly held that Davis understood his right to an attorney but
unequivocally, voluntarily and intelligently waived that right.
Next, Davis contends that he was denied his right to a fair
trial under the Due Process Clause because the district court’s
ruling on the government’s motion in limine had a chilling
effect on his ability to pursue his trial strategy. We review
the district court’s ruling on a motion in limine for abuse of
discretion. See United States v. Hornsby, 666 F.3d 296, 309
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(4th Cir. 2012). This court “give[s] substantial deference to a
district court’s decision to exclude evidence” and will find an
abuse of discretion “only if the district court acted
arbitrarily or irrationally.” United States v. Achiekwelu, 112
F.3d 747, 753 (4th Cir. 1997) (internal quotation marks
omitted).
The district court properly limited Davis’s evidence,
explaining that “a defendant’s views about the validity of the
tax statutes are irrelevant to the issue of willfulness and need
not be heard by the jury.” Cheek v. United States, 498 U.S.
192, 206 (1991). The district court reasoned that “because a
lack of willfulness is a defense to [the counts charging Davis
with willfully filing materially false tax returns], [Davis] may
offer his interpretation of the law to the extent he actually
had adopted such interpretation at the time he committed the
acts charged.” J.A. 190. The district court made clear that
“evidence may be presented as to [Davis’s] actual, relied-upon
understanding of tax law at the relevant times.” Id.
Davis does not identify any error in the district court’s
ruling, and, having reviewed the record, we likewise perceive no
error. Moreover, the district court’s ruling clearly allowed
Davis to pursue his purported trial strategy of “demonstrat[ing]
that, based upon his own interpretations of [the] tax code, he
had a good faith belief that his filings were accurate.” Brief
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of Appellant at 28. The district court stated its ruling
clearly and unambiguously, and Davis’s professed failure to
understand the district court’s ruling affords him no basis for
relief.
Finally, Davis contends that we should vacate his
convictions and dismiss the indictment for lack of subject
matter jurisdiction based on the fact that the indictment was
not signed by the foreperson. The Western District of North
Carolina follows the practice of redacting the signature of the
grand jury foreperson. Davis received a copy of the redacted
indictment. He does not suggest that the indictment failed to
adequately inform him of the charges, nor does he explain how
the absence of the foreperson’s signature prejudiced him.
Even if we assume the unredacted version of the indictment
does not bear the foreperson’s signature, this argument is of no
avail to Davis. It is true that under the Federal Rules of
Criminal Procedure, the foreperson of a grand jury must “sign
all indictments.” Fed. R. Crim. P. 6(c). But because this duty
is only ministerial, the foreperson’s failure to sign will not
invalidate the indictment. See Hobby v. United States, 468 U.S.
339, 345 (1984). “[T]he absence of the foreman’s signature is a
mere technical irregularity that is not necessarily fatal to the
indictment.” Id. The lack of a signature has been roundly
rejected as a basis for invalidating an indictment. See, e.g.,
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United States v. Morse, 613 F.3d 787, 793 (8th Cir. 2010);
United States v. Willaman, 437 F.3d 354, 360-61 (3d Cir. 2006);
United States v. Irorere, 228 F.3d 816, 830-31 (7th Cir. 2000).
Davis attempts to revive this losing argument by contending
that the foreperson’s signature is missing because the case was
never actually presented to a grand jury and a grand jury never
actually issued an indictment. Davis claims the government
simply filed the indictment without going through the grand jury
process. Davis fails to identify anything in the record
suggesting that the indictment is not bona fide or that the
government knowingly filed a document that is not what it
purports to be. We reject this frivolous argument.
For the foregoing reasons, we affirm Davis’s convictions.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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