Appeal from a jury conviction before Chief Judge Urbom of the United States District Court for the District of Nebraska, on charges of aiding and abetting the willful filing of fraudulent withholding forms by others. We affirm.

Defendant-appellant Alton Moss, also known as John L. Freeman (Freeman), travels throughout the United States giving a speech in which he challenges the constitutionality of the federal income tax laws and describes how to avoid the federal withholding tax.

Defendants Vanosdall, Gronewold, Lilienthal, Spencer, and Sanne (principal defendants) are employees of Van's Electric Company (Van's).

In late February 1978, Gronewold, Sanne, and Vanosdall heard Freeman in a radio interview. On March 8, Gronewold attended and recorded a speech given by Freeman at a local hotel. In mid-March, Gronewold played his recording for the principal defendants. On April 8, Freeman came to Van's and spoke to all the principal defendants except Spencer, and advised them that, were they to run afoul of the law, he would defend them for a stated fee.

Motivated by Freeman's speech, the principal defendants filed falsified W-4 forms. All were charged by information with violation of 26 U.S.C. § 7205 (§ 7205),1 and pleaded guilty.2 Each information also charged Freeman in a second count with violation of 18 U.S.C. § 2.3

During his arraignment, Freeman, acting Pro se, asked that his case be submitted to a grand jury. When his request was denied, Freeman filed a corresponding motion, which was also denied.

Immediately prior to trial, Freeman moved for, Inter alia, reduction of the charges to a single charge and dismissal on grounds of illegal selective prosecution. Those motions were denied.

The jury found Freeman guilty on all five counts. The court sentenced him on each count to the custody of the Attorney General for a period of one year, the sentences to run concurrently.

The issues are whether: (1) Freeman's actions are protected by the first amendment, (2) an indictment is required to charge aiding and abetting in violation of 18 U.S.C. § 2, and (3) Freeman was illegally selectively prosecuted.4

1. Freeman's actions are not protected by the First Amendment.

Freeman alleges that his speeches "(challenge) the constitutionality of the income tax laws as . . . enforced in this country . . .," that he "espouses a political cause aimed at changing the tax law in the United States . . .," and that his actions were "absolutely protected" by the first amendment, any conviction founded on the present record being "outside the . . . perview of . . . the laws of this country."

Freeman's objection was answered by this court in United States v. Buttorff, 572 F.2d 619 (8th Cir. 1978), on facts similar to those here, 572 F.2d at 623-24:

(T)he Supreme Court has distinguished between speech which merely advocates law violation and speech which incites imminent lawless activity. See Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969). The former is protected; the latter is not.

Although the speeches here do not incite the type of imminent lawless activity referred to in criminal syndicalism cases, the defendants did go beyond mere advocacy of tax reform. They explained how to avoid withholding and their speeches and explanations incited several individuals to activity that violated federal law and had the potential of substantially hindering the administration of the revenue. This speech is not entitled to first amendment protection and, as discussed above, was sufficient action to constitute aiding and abetting the filing of false or fraudulent withholding forms.

Freeman also alleges that his conviction must be overturned because § 7205, on which it is based, is unconstitutionally vague.5 Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972), on which Freeman bases his argument, requires that the proscribed actions be constitutionally protected.6

Because we find Freeman's actions not so protected, that argument is without merit.

2. An indictment was not required.

Freeman was charged by information. Fed.R.Crim.P. 7(a).7 Because violation of § 7205 is punishable by "a" prison sentence, and because under 18 U.S.C. § 2 Freeman may be punished as a principal, he alleges that his crime was infamous. Hence, says Freeman, the government's failure to obtain a grand jury indictment was a violation of the fifth amendment's requirement therefor in relation to "capital or otherwise infamous" crimes.

An infamous crime is one punishable by death, or by imprisonment in a penitentiary or at hard labor. United States v. Moreland, 258 U.S. 433, 436-37, 42 S. Ct. 368, 66 L. Ed. 700 (1922); Ex parte Wilson, 114 U.S. 417, 426-29, 5 S. Ct. 935, 29 L. Ed. 89 (1885). Under 18 U.S.C. § 4083: "Persons convicted of offenses against the United States . . . punishable by imprisonment for more than one year may be confined in any United States penitentiary. A sentence for an offense punishable by imprisonment for one year or less shall not be served in a penitentiary without the consent of the defendant." If punished as a principal under § 7205, Freeman could not be imprisoned for more than one year. Because he could not therefore be required to serve his sentence in a penitentiary without his consent his crime cannot be deemed infamous8 and an indictment was not required.9

3. Freeman was not illegally selectively prosecuted.

Freeman alleges that the government's only purpose in prosecuting the principal defendants was to enable the government to prosecute and "convict him for exercising his First Amendment rights," in violation of his rights to due process and equal protection set forth in the fifth and fourteenth amendments. He cites as evidence the guilty pleas of the principal defendants, their light sentences, their promises in writing to testify at Freeman's trial, and the acquittal of Boruch.

In Olyer v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 506, 7 L. Ed. 2d 446 (1962), the Supreme Court stated:

Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged. Oregon v. Hicks, supra (213 Or. 619, 325 P.2d 794); Cf. Snowden v. Hughes, 321 U.S. 1 (, 64 S. Ct. 397, 88 L. Ed. 497) (1944); Yick Wo v. Hopkins, 118 U.S. 356 (, 6 S. Ct. 1064, 30 L. Ed. 220) (1886) (by implication).

This court stated the test in United States v. Catlett, 584 F.2d 864, 866 (8th Cir. 1978):

To establish the essential elements of a Prima facie case of selective discrimination, a defendant must first demonstrate that he has been singled out for prosecution while others similarly situated have not been prosecuted for conduct similar to that for which he was prosecuted. Second, the defendant must demonstrate that the government's discriminatory selection of him for prosecution was based upon an impermissible ground, such as race, religion or his exercise of his first amendment right to free speech. United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974). We approved of this two-pronged test of "intentional and purposeful discrimination" in United States v. Swanson, 509 F.2d 1205, 1208-09 (8th Cir. 1975). See also United States v. Ojala, supra, 544 F.2d (940) at 943.

Catlett involved a Quaker long active in protesting certain government policies by refusing to file federal income tax returns. Upon being prosecuted for willfully and knowingly failing to file income tax returns, Catlett produced evidence that the Internal Revenue Service had adopted a selective approach to its investigations of tax noncompliance, centering on "individuals who have achieved notoriety as tax protestors." 584 F.2d at 865-67. This court concluded, 584 F.2d at 867, that, even assuming the government's selective policy had been applied to Catlett, he had:

(F)ailed to establish a Prima facie case of purposeful discrimination. While the decision to prosecute an individual cannot be made in retaliation for his exercise of his first amendment right to protest government war and tax policies, the prosecution of those protestors who publicly and with attendant publicity assert an alleged personal privilege not to pay taxes as part of their protest is not selection on an impermissible basis.

Here, Freeman has not shown that he was (1) singled out for prosecution, or (2) selected for prosecution upon the impermissible ground of an exercise of his first amendment rights. "The prosecution of those (who) publicly and with attendant publicity (encourage people to file fraudulent withholding forms in violation of the law) as part of their protest is not selection on an impermissible basis." Id. at 867.

Finding no error, we affirm the judgment.