specially concurring:
I concur in the panel’s excellent opinion. I write separately to suggest that the panel’s holding reached in Part II.B, dealing with Clayton’s requested jury instructions, can be supported by a separate rationale, and to distinguish the probative weight to be given some of the evidence mentioned in Part II.C, where the panel opinion discusses the sufficiency of evidence to establish Clayton’s guilt.
Clayton’s proposed instructions need not have been included by the district court because of their likelihood to mislead jurors. First and foremost, these instructions do not give the jury any guidance as to what the government must prove, or what Clayton may legitimately raise in defense, specifically generating confusion as to the willfulness element under § 7206(1). The proposed instructions suggest that his use of a Form 1040X impacts the willfulness of his action, and thus his criminal liability under § 7206(1). By providing information about an irrelevant refund lawsuit process that allows a taxpay*415er to pursue “whatever legal arguments he believes are valid,” these instructions draw attention away from the willfulness vel non of Clayton’s use of the Form 1040X. Clayton acted wilfully in his false filing regardless of the form used. Further, Clayton cannot undermine willfulness in a § 7206 prosecution based on any argument he chooses. See Cheek v. United States, 498 U.S. 192, 206, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991); United States v. Ambort, 405 F.3d 1109, 1115-16 (10th Cir.2005) (excluding defendants’ testimony that they believed they were following proper procedures to challenge the existing law as irrelevant to willfulness under § 7206). Merely invoking the unrelated process of a refund lawsuit does not change this fact. In fashioning jury instructions, the district court should clearly instruct jurors as to the applicable issues of law and fact confronting them. See United States v. Simmons, 374 F.3d 313, 319 (5th Cir.2004). Clayton’s instructions would have misguided jurors as to the willfulness element of his crime. For this reason, I agree that the district court did not abuse its discretion in denying Clayton’s proposed instructions.
Concerning the evidence supporting Clayton’s guilt discussed in Part II.C, I agree that each item of evidence included in the panel opinion provides some proof of Clayton’s willfulness. Fed.R.Evid. 401. However, it should be noted that Clayton’s own statements are much more probative of his willfulness than information given to him by a newspaper reporter. While the latter provides some evidence, standing alone it could not establish Clayton’s willfulness.