939 F.2d 499

                UNITED STATES of America, Plaintiff-Appellee,
                                    v.
                   Lorin G. SLOAN, Defendant-Appellant.
                               No. 90-3154.
                     United States Court of Appeals,
                             Seventh Circuit.
                          Argued June 14, 1991.
                          Decided Aug. 9, 1991.
                    Rehearing and Rehearing En Banc
                          Denied Sept. 10, 1991.

	Andrew B. Baker, Jr. (argued), Asst. U.S. Atty., Dyer, Ind., for
plaintiff-appellee.
	Lorin G. Sloan (argued), pro se.

	Before POSNER, MANION and KANNE, Circuit Judges.

	KANNE, Circuit Judge.
	Like moths to a flame, some people find themselves irresistibly
drawn to the tax protestor movement's illusory claim that there is no legal
requirement to pay federal income tax.  And, like the moths, these people
sometimes get burned.  Lorin G. Sloan believed these claims and because he
acted upon them now faces four months in a federal prison;  there can be
little doubt that he has been burned.
	Mr. Sloan describes himself as a "blue collar working man" employed
by the Fisher Body Division of General Motors at its plant in Marion,
Indiana.  After studying anti-tax literature he received at meetings of
the Sons of Liberty and Patriots for Liberty, two organizations of
like-minded tax protestors, Mr. Sloan became adamant in his belief that he
was not obligated to pay federal income taxes.  Consistent with this
new-found conviction, Mr. Sloan did not pay any federal income taxes on
his wages for the years 1981, 1982 and 1983 (a total tax due of
approximately $8,000.00) and took the affirmative step of filing false W-4
forms to ensure that his "exemption" from the income tax continued.
	Because he put this theory into practice, in due course Mr. Sloan was
charged with, tried on, and convicted by a jury of three counts of tax
evasion, 26 U.S.C. s 7201.  The district judge sentenced him to four
months imprisonment on one count to be followed by four months of work
release.  Sentences of two and three years imposed on the other two counts
were suspended.  In addition, Mr. Sloan was placed on follow-up probation
of five years, required to pay his tax deficiency and repay the costs of
prosecution, and fined $200,000 (which was later suspended).  The
execution of Mr. Sloan's sentence was stayed pending the outcome of this
appeal.
	Mr. Sloan ostensibly pursues this matter on his own behalf--or
perhaps more correctly without trained legal counsel.  In any event, he
appeared before us personally to argue his appeal.  The primary position
taken by Mr. Sloan is that he has been unable to learn from any
authoritative source--the tax code, the Internal Revenue Service, or the
federal courts--the exact statutory provision which imposes upon him a
legal duty to file a federal tax return. This position is, no doubt,
formulated to show that he did not willfully violate a "known legal duty."
Moreover, in demonstrating to him the existence of this duty, Mr. Sloan
insists that our analysis of his obligation to pay the federal income tax
be consistent with certain fundamental principles or "standards" which he
says he has learned through his studies.  Unfortunately, for Mr. Sloan,
his "standards" are inapplicable because they have previously been
rejected by the federal courts.
	One such fundamental and immutable principle, he maintains, is
that the revenue laws of the United States do not impose a tax on income.
But we have squarely rejected this tax protestor argument before, holding
that the Internal Revenue Code imposes a tax on all income, Coleman
v. Commissioner, 791 F.2d 68, 70 (7th Cir.1986);  Lovell v. United States,
755 F.2d 517, 519 (7th Cir.1984), and that wages are income, United States
v. Koliboski, 732 F.2d 1328, 1329 & n. 1 (7th Cir.1984).
	As another cornerstone of his position, Mr. Sloan cites Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984), for the proposition
that the tax code provisions establishing an income tax are an unlawful
agency interpretation of a statute because the Congress clearly did not
intend to impose a tax on income.  His argument, of course, is based on
the false premise described above.  Congress lawfully enacted the Internal
Revenue Code and the Internal Revenue Code lawfully imposes a tax on
income.  See, e.g., Coleman, 791 F.2d at 70;  United States v. Studley,
783 F.2d 934, 940 (9th Cir.1986); Wheeler v. United States, 744 F.2d 292,
293 (2d Cir.1984);  Koliboski, 732 F.2d at 1329.  Thus, the prosecution of
persons for tax evasion under federal criminal law presents no issue of
deference to an agency's interpretation of federal statutes.
	Also basic to Mr. Sloan's "freedom from income tax theory" is his
contention that he is not a citizen of the United States, but rather, that
he is a freeborn, natural individual, a citizen of the State of Indiana,
and a "master"--not "servant"--of his government.  As a result, he claims
that he is not subject to the jurisdiction of the laws of the United
States.  This strange argument has been previously rejected as well.  "All
individuals, natural or unnatural, must pay federal income tax on their
wages," regardless of whether they requested, obtained or exercised any
privilege from the federal government.  Lovell, 755 F.2d at 519;
cf. Studley, 783 F.2d at 937 (Studley's argument that "she is not a
'taxpayer' because she is an absolute, freeborn and natural individual
... is frivolous.  An individual is a 'person' under the Internal Revenue
Code.").  Moreover, the tax code imposes a "direct nonapportioned [income]
tax upon United States citizens throughout the nation, not just in federal
enclaves," such as postal offices and Indian reservations.  United States
v. Collins, 920 F.2d 619, 629 (10th Cir.1990), cert. denied, ---
U.S. ----, 111 S.Ct. 2022, 114 L.Ed.2d 108 (1991) (citing Brushaber
v. Union Pacific R.R., 240 U.S. 1, 12-19, 36 S.Ct. 236, 239-42, 60
L.Ed. 493 (1916)).  Mr. Sloan's proposition that he is not subject to the
jurisdiction of the laws of the United States is simply wrong.
	The foregoing recitation of federal court rulings rejecting his
taxation principles really comes as no surprise to Mr. Sloan for he has
shown himself to be aware of existing case law in this area.  In fact, in
order to make plain his position Mr. Sloan states categorically that "I DO
NOT 'misunderstand the law.'  I am not raising a constitutional challenge
to the taxing statutes. This is a question of whether I can be charged
with a crime for violating a legal duty when no one will show me where
that legal duty exists."  See "Appellant Sloan's Notice of Standard" at 10
(filed July 1, 1991).
	We will treat Mr. Sloan's question as a challenge to the legal
sufficiency of the indictment which charged him with tax evasion.  To meet
the standards imposed by the fifth and sixth amendments to the
Constitution, an indictment must "[1] state[ ] all of the elements of the
offense charged, [2] inform[ ] him of the nature of the charges so that a
defense can be prepared, and [3] enable[ ] the defendant to evaluate any
possible double jeopardy problems presented by the charge."  United States
v. Glecier, 923 F.2d 496, 499 (7th Cir.1991) (quoting United States
v. Neapolitan, 791 F.2d 489, 500- 01 (7th Cir.), cert. denied, 479
U.S. 939, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986));  United States v. Foster,
789 F.2d 457, 459 (7th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 273,
93 L.Ed.2d 249 (1986).  All the requirements were readily met in this
case.
	First, the three-count indictment stated all the essential elements
required to be proved by the government to convict the defendant of
federal tax evasion.  Glecier, 923 F.2d at 499.  "To establish a violation
of s 7201, the government must prove willfulness, the existence of a tax
deficiency and an affirmative act constituting an evasion or attempted
evasion of [the] tax." United States v. Copeland, 786 F.2d 768, 770 (7th
Cir.1985) (citing Sansone v. United States, 380 U.S. 343, 351, 85
S.Ct. 1004, 13 L.Ed.2d 882 (1965));  see also United States v. Davenport,
824 F.2d 1511, 1516 (7th Cir.1987).  Here, all three counts of the
indictment established the first required element by alleging that
Mr. Sloan "did willfully and knowingly attempt to evade and defeat said
income tax due and owing to the United States."  The indictment's first
count further stated that he "owed approximately $4,142.30 to the United
States of America in income tax," providing him notice of the existence of
a tax deficiency. [FN1]  Finally, the act of filing a false Form W-4
constitutes an affirmative act of evasion or attempting to evade.  See
Copeland, 786 F.2d at 770.  And, once again, all three counts of the
indictment indicated that Mr. Sloan had committed this affirmative act.

	FN1. The tax deficiencies differed for each of the three years.
Count 2 indicated that Sloan owed $3,618.00 to the United States
government for 1982, while count 3 covering 1983 revealed that Sloan was
obligated to pay $653.53 to the government.

	Second, the indictment was sufficient to inform Mr. Sloan of the
charges against him.  Glecier, 923 F.2d at 499.  The indictment cited the
statute he was accused of violating (26 U.S.C. s 7201) and identified the
specific tax (the income tax) he was obligated to pay.  It also provided
other information--including the tax year, his taxable income, the amount
of tax due, his failure to file an income tax return, his filing of a
false Form W-4, and his failure to pay the tax--pertinent to the charges
against him. [FN2]  Thus, the second requirement was satisfied in the
present case.

	FN2. We also note that this information satisfies the requirements
imposed by the Federal Rules of Criminal Procedure.  See
FED.R.CRIM.P. 7(c)(1) ( "the indictment or information shall be a plain,
concise, and definite written statement of the essential facts
constituting the offense charged....  The indictment or information shall
state for each count the official or customary citation of the statute,
regulation or other provision of law which the defendant is alleged
therein to have violated.").

	Third, the indictment sufficiently designated the tax, the tax year,
and the specific false W-4 forms (those Sloan filed with his employer,
Fisher Body Division of General Motors) to eliminate any possibility of
objection on the grounds of double jeopardy.  Mr. Sloan's indictment was
therefore legally sufficient in all respects to support his convictions
for tax evasion for the years 1981, 1982 and 1983.
	We also note that the Supreme Court's recent decision in United
States v. Cheek, --- U.S. ----, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991),
does not help Mr. Sloan.  The jury in this case was given what was later
determined in Cheek to be an erroneous "objectively reasonable good faith
misunderstanding of the law" instruction.  However, Mr. Sloan did not
object to that instruction at trial and therefore the issue was not
preserved for appeal--unless the giving of the instruction constituted
plain error.  United States v. Witvoet, 767 F.2d 338, 340 (7th Cir.1985).
	Plain error, as our cases teach, is error of such "great
magnitude that it probably changed the outcome of the trial."  United
States v. Kerley, 838 F.2d 932, 937 (7th Cir.1988) (citation omitted).
But it is rare for an improper instruction to "justify reversal of a
criminal conviction when no objection has been made in the trial court."
Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203
(1977).  To determine whether a jury instruction was plain error, we must
examine the entire trial record to see if the instruction had a probable
impact on the jury's finding.   United States v. Bressler, 772 F.2d 287
(7th Cir.1985), cert. denied, 474 U.S. 1082, 106 S.Ct. 852, 88 L.Ed.2d 892
(1986);  Witvoet, 767 F.2d at 339-40;  United States v. Verkuilen, 690
F.2d 648, 653 (1982). In Bressler, another tax protestor case, the court
held that the district court's instruction on the good faith
defense--which required the misunderstanding to be "objectively
reasonable"--did not constitute plain error because the court had properly
instructed the jury that willfulness is a "voluntary and intentional
violation of a known legal obligation," and because the "evidence clearly
established that the defendant did not 'misunderstand' the law."
Bressler, 772 F.2d at 291.
	The same considerations are present in this case.  The jury
received the correct definition of willfulness and Mr. Sloan specifically
concedes that he does not misunderstand the law.  Moreover, this
concession is consistent with the evidence introduced at trial showing
that he filed correct tax returns and paid the appropriate amount of
income tax in 1978, 1979 and 1980.  In the following years, because of his
disagreement with the federal income tax law he did not file tax returns
and submitted false W-4 forms which claimed he was exempt and had owed no
income tax the previous year.  We therefore conclude that even if the
defective jury instruction had not been given, the outcome of the trial
would have been the same and thus there was no plain error.
	The real tragedy of this case is the unconscionable waste of
Mr. Sloan's time, resources, and emotion in continuing to pursue these
wholly defective and unsuccessful arguments about the validity of the
income tax laws of the United States.  Despite our rejection of
Mr. Sloan's legal analysis of the tax laws, we are not unmindful of the
sincerity of his beliefs.  On the other hand, we are less sure of the
sincerity of the professional tax protestors who promote their views in
literature and meetings to persons like Mr. Sloan, yet are unlikely ever
to face the type of penalties incurred by him.  It may be that our
decision will not alter Mr. Sloan's views regarding the tax laws of this
country, for he has stated that if we affirm his conviction without
applying the law as he understands it, our decision will be "a sham to
which I WILL NOT SUBMIT."  It may also be that serving his sentence in
prison will not alter Mr. Sloan's view.  We hope this pessimistic
assessment is incorrect.
	We AFFIRM the conviction of Lorin G. Sloan on all counts.