USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1119
UNITED STATES,
Appellee,
v.
ROBERT L. HUGUENIN,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Torruella, Selya and Cyr,
Circuit Judges.
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Robert L. Huguenin on brief pro se.
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Edwin J. Gale, United States Attorney General, Loretta C.
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Argrett, Assistant United States Attorney, Robert E. Lindsay, Alan
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Hechtkopf and Karen Quesnel, Attorneys, Tax Division, Department of
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Justice, on brief for appellee.
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July 22, 1994
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Per Curiam. Defendant-appellant Robert L. Huguenin
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appeals pro se from a district court order revoking his
probation and sentencing him to an additional period of
incarceration. For the reasons stated below, we affirm.
BACKGROUND
On November 28, 1989, a grand jury returned a three
count indictment charging Huguenin with attempting to evade
his income tax obligations for 1984, 1985 and 1986. See 26
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U.S.C. 7201. Huguenin was convicted of all three counts on
June 15, 1990. The district court sentenced Huguenin, on
Count I, to forty-two months' imprisonment and fined him
$5,931.18. On Count II, the imposition of the sentence was
suspended, and the defendant was placed on supervised
probation upon release from confinement for three years with
the condition that
defendant is to file all past, present, and future
income tax returns for those years where he had
income & pay tax that is due. Defendant to provide
copies of tax returns to probation counselor.
On Count III, the imposition of the sentence was suspended
and the defendant was placed on unsupervised probation to be
served consecutively to the three years of supervised
probation previously imposed on Count II. We affirmed
Huguenin's conviction in an unpublished opinion. United
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States v. Robert L. Huguenin, No. 90-1795, 1991 U.S. App.
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LEXIS 32842 (1st Cir. Dec. 4, 1991) (per curiam).
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Appellant's supervised probation began on August
10, 1993. On September 7, 1993, his probation officer filed
a petition with the district court charging him with a
failure to "file income tax returns due for all years." At
a revocation hearing held before a magistrate judge
("magistrate"), Huguenin admitted that he receives a pension
from the United States Navy and did not dispute that the
amount of this pension is approximately $10,000 per year. He
also conceded that he had not filed income tax returns as
ordered by the district court but raised as a defense, inter
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alia, that the income tax laws do not apply to him. On
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November 30, 1993, the magistrate issued a report and
recommendation finding that Huguenin had violated his
probation by failing to file written tax returns for the
years 1984, 1985 and 1986.
Following a hearing on objections filed to the
magistrate's report, the district court adopted the
magistrate's findings and further found that Huguenin had
violated his probation by failing to file tax returns for the
years 1987 through 1992. The district court sentenced
Huguenin on Count II of the indictment to a period of five
years' imprisonment, but suspended all but six months of the
sentence, with the balance of four and a half years to be
spent on probation "upon the same conditions previously
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imposed on Count Two." In addition, the district court
imposed a suspended fine of $4,000. This appeal followed.
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DISCUSSION
Huguenin alleges violations of his right to due
process, under the Fifth Amendment, and his right to be
informed of the nature and cause of accusations against him,
under the Sixth Amendment. In particular, he contends that
he was never informed what type of tax he was being held
liable for, how much tax he owed, or which tax form he was
supposed to file. Huguenin also argues that the prosecutor
failed to prove that there was in fact any tax "due and
owing." Finally, Huguenin contends that the government never
proved the law which required him to file a tax return, and
that he was denied the right to question a witness concerning
this law.
We note, as an initial matter, that the district
court acted appropriately in imposing, as a condition of
probation, that Huguenin file delinquent and future tax
returns, as well as pay any tax due. See, e.g., United
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States v. Schiff, 876 F.2d 272, 275 (2d Cir. 1989).
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Moreover, this condition of probation mandates no more than
the law requires. Id. If appellant earns sufficient income,
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he is required to file an income tax return and pay the taxes
for which he is responsible. Id.; see also 26 U.S.C. 1,
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6011, 6012, 6151; Treas. Reg. 1.6012-1.
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Huguenin's complaint that he was never informed
what type of tax he was being held liable for is frivolous.
A probationer does have a right, under the Due Process
Clause, to fair warning of conduct that may result in
revocation. See, e.g., United States v. Gallo, 20 F.3d 7, 11
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(1st Cir. 1994). However, Huguenin cannot complain that he
failed to receive fair warning where the district court
imposed as a formal probation condition that he file
delinquent and future "income tax returns," as well as pay
tax due. See United States v. Simmons, 812 F.2d 561, 565
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(9th Cir. 1987) ("Generally, formal conditions of probation
provide notice of proscribed activities."). Moreover, the
Internal Revenue Code and the regulations promulgated under
it provided Huguenin with ample notice of his tax liability.
Appellant's complaint that he was never informed
what form he was required to file is equally meritless.
Conditions of probation do not have to spell out every last
detail. See Gallo, 20 F.3d at 12. The regulations
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promulgated under the Internal Revenue Code provided Huguenin
with notice that either Form 1040 or Form 1040A was the
appropriate form to use in making an income tax return. See
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Treas. Reg. 1.6012-1(a)(6).1 We need not linger long on
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1. Huguenin also suggests that after he was charged with
violating a condition of probation by failing to file income
tax returns, the prosecutor was required to provide him with
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appellant's contention that he was never informed how much
tax he owed and that the government failed to prove any tax
"due and owing." The basis of his probation revocation was
not his failure to pay tax due, but rather, the failure to
file his tax returns.
Finally, we reject appellant's argument that he was
denied due process because (a) the prosecutor failed to prove
the law which required him to file income tax returns; and
(b) he was deprived of the opportunity to examine a witness
concerning the relevant law. Appellant was charged with
violating a probation condition set by the district court.
To the extent that federal statutes and regulations were
relevant in determining whether a violation occurred, these
were subject to judicial notice by the district court. See
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10 James W. Moore & Helen I. Bendix, Moore's Federal Practice
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201.02[1] (2d ed. 1994). Moreover, the record makes clear
that appellant was not prevented from presenting favorable
witnesses. See United States v. Morin, 889 F.2d 328, 332
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(1st Cir. 1989) (probationer entitled to present favorable
witnesses at revocation hearing). Indeed, he testified on
his own behalf and did not seek to present any other
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citations to the Treasury regulations which (independently)
mandate that he file these returns and which specify the
appropriate form to file. We have unearthed no authority to
support this requirement, and appellant cites to none. We
observe that appellant had the benefit of appointed stand-by
counsel, who was in a position to provide him with this sort
of legal assistance.
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witnesses. Where, as here, the government relied on
appellant's concessions and did not put on any witnesses,
appellant cannot complain that he was deprived of the
opportunity for cross-examination.
Affirmed.
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