United States of America v. Glen Murphy

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1309
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
G LEN M URPHY ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04-CR-280—J.P. Stadtmueller, Judge.
____________
A RGUED S EPTEMBER 20, 2006—D ECIDED D ECEMBER 8, 2006
____________
Before E ASTERBROOK , Chief Judge, and P OSNER and
E VANS , Circuit Judges.
E VANS , Circuit Judge. Benjamin Franklin said it in
1789: “In this world, nothing can be said to be certain
except death and taxes.” Glen Murphy, a chiropractor from
the posh Waukesha County (Wisconsin) suburb of Elm
Grove, didn’t agree with the taxes part of Franklin’s
statement. Inappropriately acting on that belief earned
Murphy an indictment for filing false income tax returns
(seven counts) and willfully not filing any at all (three
counts). After being charged, he tried to game the sys-
tem and drag out the proceeding as long as possible. But
in the end, a jury found him guilty on all counts. The
district court (Judge J.P. Stadtmueller) sentenced him to

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2 No. 06-1309
41 months in prison. Murphy appeals, challenging his
convictions on several grounds.
Murphy starts with his primary argument: The district
court committed reversible error when it denied him court-
appointed counsel. He says the judge improperly forced
him to choose between his Fifth and Sixth Amendment
rights when he insisted that Murphy demonstrate his
financial eligibility for appointed counsel and construed
his refusal to do so as a knowing and intelligent waiver of
his right to an attorney. Murphy also contends that the
judge’s instructions to the jury inaccurately stated the law
in several respects.
Murphy’s problems began after he became a client of an
accounting firm calling itself Anderson’s Ark & Associates
(AAA). AAA, from what we can tell, offered no legitimate
services; it instead specialized in international-scale tax
fraud. Murphy, himself no fan of taxes, turned to AAA
in 1997 in an effort to dramatically lower his past and
future income tax liability. AAA obliged, helping Murphy
set up a sham, zero-income partnership that took on huge,
predetermined losses in sums perfectly tailored to elimi-
nate Murphy’s present and past tax liability. AAA also
served as a conduit for Murphy to direct money to offshore
bank accounts under the guise of advertising expenses. As
a grand finale, Murphy did not even file income tax
returns from 2001-2003, despite telling his bank that he
had done so (and even producing a completed 2001 form)
as part of a home refinancing application. In any event, he
says he was a victim of AAA, which took him to the
cleaners to the tune of $274,000.
The government has been prosecuting AAA, its propri-
etors, and its clients for several years, and many individ-
ual defendants have pled guilty to charges filed against
them. But Murphy apparently had his own strategy.
During the 10 months leading up to and including his trial,

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No. 06-1309 3
he employed a pattern of delay and misdirection that
would make an NFL offensive coordinator jealous.
Things got started on Pearl Harbor Day in 2004 when
Murphy was charged with seven counts of filing false
tax returns in violation of 26 U.S.C. § 7206(1). In what
was to become a familiar pattern, he made his initial
court appearance without counsel but told a magistrate
judge he was making efforts to find an attorney. Although
without counsel at this event, William Burke, an experi-
enced and savvy attorney from the Federal Defender
Service, appeared with Murphy on an “interim” basis as
sort of a “friend of the court.” The magistrate judge
warned Murphy of the dangers of proceeding without
counsel and urged him to secure representation as soon as
possible. Murphy made no suggestion that he intended to
seek court-appointed counsel.
A short time later, Murphy filed a notice seeking to “fire”
Burke, who had never been formally appointed to repre-
sent him in the first place. On February 10, Murphy
reappeared before the magistrate for a hearing regard-
ing the conditions of his pretrial release. He again had no
counsel. Once again the magistrate judge implored him to
secure representation as soon as possible; once again
Murphy promised he was looking for a lawyer and made
no mention of getting court-appointed help.
On March 22, Murphy appeared before District Judge
Stadtmueller. He had no counsel but entered a rambling,
incoherent statement into the record that began:
Affidavit. Denial that a corporation exists. Equality
under the law is paramount and mandatory by law.
I, Glen James clan Murphy, a Wisconsin national of
the republic of Wisconsin, a titled sovereign, am able
to handle and represent me concerning all my affairs.
In commerce when being forced to testify all my
common law rights are reserved.

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4 No. 06-1309
The government’s attorney, Matthew Jacobs, understand-
ably confused as to whether Murphy’s statement indi-
cated his intention to waive counsel, told the court that
his own conversations with Murphy and some criminal
defense attorneys in Milwaukee indicated to him that
Murphy sought to retain an attorney. Judge Stadtmueller
gave Murphy yet another warning about proceeding alone
and scheduled another appearance for 3 days later,
indicating to Murphy that he would be expected to de-
clare once and for all whether he wanted a lawyer.
Murphy said nothing about seeking appointed counsel.
Meanwhile the grand jury returned a superseding
indictment adding three counts of failure to file tax
returns under 26 U.S.C. § 7203, and Murphy’s trial,
originally scheduled for March 28, was delayed until
September. Still, the March 25 continuation hearing
went forward. Murphy again appeared alone, and the
judge again warned him. Perhaps expecting this to hap-
pen, Jacobs apparently took it upon himself to ask Burke
to join the proceedings and explore whether Murphy
might qualify for court-appointed counsel.
Burke told the court he was willing to meet with
Murphy and discuss his financial eligibility. He also
suggested that the judge offer to seal any financial infor-
mation that Murphy would provide, which the judge
agreed to do before giving Murphy 3 more days to under-
take an accurate accounting of his financial position.
Three days later, on March 28, Murphy finally appeared
with counsel: Burke. As Burke explained to the judge:
The Defendant spent a couple hours in our office going
over his financial affairs, and appears at this point—
without getting certification from a bank, or getting
a formal balance sheet, he appears to easily qualify
for our services. His financial situation is, I would
say, in a bit of a turmoil at the moment. Now, that

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No. 06-1309 5
could turn around, and I am hopeful that it will, but
at this point he is eligible by our review so far. I would
advise the Court that would be an ongoing review, but
in the meantime we will provide representation.
The court approved Burke’s appointment as Murphy’s
counsel and proceeded to set a trial date.
Burke’s representation ostensibly lasted for a couple
of months, though Murphy continued to submit his own
filings to the court. Then, on July 12, Burke filed a mo-
tion to withdraw in response to Murphy’s belligerent
conduct and demands upon Burke to employ frivolous
arguments—including a challenge to the constitutionality
of the federal tax laws—as a defense. Burke reiterated
that he believed Murphy to be eligible for a court-ap-
pointed lawyer but expressed some doubt as to whether
he was willing to accept an attorney whose fees were to
be paid by the government. The judge granted Burke’s
motion and directed him to see if another federal defender
would be willing to accept an appointment as Murphy’s
counsel.
On July 26, Murphy reappeared before the district court
judge for a pretrial hearing. He was without counsel and
moved for adjournment of both the pretrial hearing
and the upcoming trial, now scheduled for September 6,
2005, until he could retain “effective, competent assis-
tance of counsel.” He also denounced Burke and the other
lawyers from the Federal Defender Service and ex-
pressed an unwillingness to cooperate with them. After
promptly denying that motion, Judge Stadtmueller
emphatically reiterated to Murphy his need to obtain
counsel and ordered him to do so prior to a July 29 hear-
ing. Murphy arrogantly responded, “I am here to challenge
your jurisdiction.”
Needless to say, when July 29 came, Murphy again
appeared without counsel. He asked for more time to

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6 No. 06-1309
seek representation. The judge denied the motion and
expressed frustration that Murphy had not made an effort
to secure court-appointed counsel, having declined to
provide a Pretrial Services officer with a financial state-
ment under oath that would confirm his eligibility.
Murphy responded that he had provided Burke with
some information. Ultimately, however, he promised the
judge that he would meet with Pretrial Services and
provide the necessary financial information, which the
judge ordered him to do immediately. Murphy then met
with Pretrial Services but declined to provide the infor-
mation.
On September 1, 5 days before trial, the judge held a
hearing to consider another motion by Murphy for an
extension of time to secure representation. Murphy
claimed he had exerted considerable effort trying to ob-
tain counsel. He also listed the names of several lawyers
he had contacted who had declined to represent him. When
Jacobs pressed him for further details, Murphy ad-
mitted that some of the lawyers he had spoken to con-
sidered his case to be outside their area of practice, while
others requested too much money. He refused to provide
any more specific information, and the judge ultimately
determined that the trial would proceed as scheduled.
When September 6 came, Murphy again moved for a
stay of the trial. This time he presented copies of corre-
spondence that he had apparently exchanged with various
attorneys. In one particularly notable letter, an attorney
thanked Murphy for contacting him but explained that
he would be unable to provide representation for a fee of
$20 as offered by Murphy. The judge denied the motion
and the trial went on. After the evidence was submitted,
the judge submitted instructions to the jury (more on
Murphy’s challenges to these later), and Murphy was
convicted on all 10 counts. Two weeks later, Murphy

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No. 06-1309 7
retained paid private counsel, who now represent him on
this appeal.
We first address Murphy’s argument that the court
erred when it insisted that he submit personal financial
information in order to secure court-appointed counsel.
Because this is a criminal tax prosecution, the argument
goes, Murphy was effectively being forced to violate his
Fifth Amendment right not to “be compelled in any
criminal case to be a witness against himself” if he
wanted to exercise his Sixth Amendment right to an
attorney by way of court-appointed counsel.
While the Sixth Amendment guarantees that an accused
has the right to counsel, and counsel free of charge if
indigent, a defendant “may not use this right to play a ‘cat
and mouse’ game with the court, or by ruse or stratagem
fraudulently seek to have the trial judge placed in a
position where, in moving along the business of the
court, the judge appears to be arbitrarily depriving the
defendant of counsel.” U.S. ex rel. Davis v. McMann, 386
F.2d 611, 618-19 (2d Cir. 1967) (citations omitted). As we
shall see, a fair reading of this record establishes that
that was exactly what Murphy was doing.
A defendant also has the right to conduct his own
defense, Faretta v. California, 422 U.S. 806, 819-20 (1975),
so long as he or she has made a knowing and intelligent
waiver of counsel and has been appropriately warned by
the court of the dangers of proceeding pro se. United States
v. Egwaoje, 335 F.3d 579, 584-85 (7th Cir. 2003).
The Criminal Justice Act of 1964, 18 U.S.C. § 3006A,
governs the process in the event appointment of counsel
is necessary. It provides:
Unless the person waives representation by counsel,
the United States magistrate judge or the court, if
satisfied after appropriate inquiry that the person is

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8 No. 06-1309
financially unable to obtain counsel, shall appoint
counsel to represent him.
18 U.S.C. § 3006A(b). “The burden of proving inadequate
financial means, however, lies with the defendant,” United
States v. Sarsoun, 834 F.2d 1358, 1361 (7th Cir. 1987). “It
is not enough to claim inability to hire a lawyer . . . ; the
statute provides for ‘appropriate inquiry’ into the veracity
of that claim.” United States v. Bauer, 956 F.2d 693, 694
(7th Cir. 1992) (emphasis in original). The inquiry is
usually addressed by having a defendant fill out a form
financial affidavit. But the Criminal Justice Act requires
“[n]either CJA Form 23 nor any other particular method
of ascertaining a defendant’s financial status,” Sarsoun,
834 F.2d at 1361. The exact nature of the appropriate
inquiry is therefore left to the judge, and we will not re-
verse a decision on appointment of counsel adverse to the
defendant unless it is clearly erroneous.
It should be immediately clear that Murphy’s argument
is a loser. He continually refused to file a financial affida-
vit, although he did manage to convince Burke, the fed-
eral defender, of his financial eligibility. But Burke himself
admitted that his review of Murphy’s financial informa-
tion was “ongoing” and that Murphy’s financial situation
was “in a bit of turmoil.” Besides, convincing Burke was
not the end of the line: The Criminal Justice Act makes
eligibility for appointed counsel a judicial determination,
not a decision committed to the discretion of the Federal
Defender Service.
The truth is that Murphy was wrong to rely on his Fifth
Amendment rights (if he even did so—the record suggests
that he was hardly diligent in asserting them) by re-
fusing to provide financial information at the court’s
request because “[u]ntil the government attempts to use
the information against the defendant at trial, any en-
croachment on the fifth amendment protection against
self-incrimination is speculative and prospective only.”

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No. 06-1309 9
Sarsoun, 834 F.2d at 1364. In fact, Judge Stadtmueller
offered to seal any information Murphy provided in
order to avoid the risk that it might be used by the gov-
ernment against him. Murphy tells us that the judge
should have gone further by offering to receive the finan-
cial information in camera. But an appropriate inquiry
under the Criminal Justice Act does not require
“[c]ourts . . . to conduct ex parte, in camera hearings to
determine whether a defendant is eligible for appointed
counsel.” Id. at 1363. The judge offered Murphy a way out,
and he did not take it.
Murphy’s conduct recalls the situation we considered
in Sarsoun. Sarsoun involved a defendant charged with
tax evasion, failure to file income tax returns, and filing
a false withholding statement. 834 F.2d at 1359. The de-
fendant repeatedly appeared without counsel and was
regularly and urgently warned by the judges of the dan-
gers of proceeding alone. Id. at 1359-60. On more than
one occasion, when informed of his rights to have ap-
pointed counsel, the defendant agreed to fill out a financial
affidavit, only to later refuse, reappear without counsel,
and demand an appointed lawyer all over again. Id. at
1362-63. When the defendant made clear that his refusal
stemmed from his Fifth Amendment right not to self-
incriminate, the judge assured him that any financial
information he provided would not be used against
him, and when the judge asked him questions about his
income in lieu of the affidavit, Sarsoun refused to answer.
On appeal, we held that where the information avail-
able to the trial judge “did not strongly indicate that [the
defendant] qualified for appointment of counsel,” and the
judge “repeatedly urged the defendant to supply suf-
ficient financial information for the court to determine
whether he qualified for appointed counsel” and assured
the defendant that submitted financial information

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10 No. 06-1309
1 Information not available to the district court at the time, but
highly revealing now, is Murphy’s sudden ability to quickly
secure paid private counsel within weeks of his convictions.
would not be used against him, it was not clearly errone-
ous for the judge to determine that the defendant had
impliedly waived his right to counsel based upon the
defendant’s “refus[al] to cooperate with the court” with
respect to the submission of financial information.
Sarsoun, 834 F.2d at 1361-63.
Murphy’s situation is pretty much the same. His failure
to provide financial information despite assurances that
his Fifth Amendment right would be protected left the
court with nothing to conclude that Murphy was a
pauper. Judge Stadtmueller could only rely on Murphy’s
status as the sole proprietor of a chiropractic business
and his pre-AAA tax returns to create an inference that
he did not qualify for court-appointed counsel. 1 Murphy
had the opportunity to rebut that inference and establish
insufficient financial means, but he did not do so.
Even when he appeared to signal his readiness, at the
July 29, 2005 hearing, to provide a financial affidavit, he
chose instead to stall for more time by filing repetitive
motions that indicated not that he was seeking more
time to secure financial information, but that he was
contacting private lawyers who either did not have any
experience in cases like his or would not work for a $20
fee.
Murphy says that he could not have waived counsel
because he repeatedly insisted that he intended to retain
someone as his attorney. But a defendant can waive his
right to counsel through conduct as well as words. And
insisting that an attorney raise silly, frivolous defenses is
not a sign that a defendant is acting in good faith. Urging
that a lawyer offer the kind of run-of-the-mill arguments

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No. 06-1309 11
offered by tax protesters is strong evidence of conduct
which can be viewed as a waiver of Sixth Amendment
rights.
All told, Murphy had 9 months from his arraignment
until the start of his trial to either secure counsel or
demonstrate his financial eligibility for appointed coun-
sel. He did neither. He was just trying to delay things and
game the system. Under the circumstances, there is no
basis for concluding that Judge Stadtmueller erred by
determining that Murphy’s right to counsel was im-
pliedly waived.
We next turn to Murphy’s problem with the jury in-
structions. He cites three in particular. First, he argues
that they were inaccurate in the way that they conveyed
to the jury what it means for a defendant to have acted
“willfully” under both 26 U.S.C. § 7203 and 26 U.S.C.
§ 7206(1). Next, he insists that the court improperly
failed to submit to the jury his theory of defense instruc-
tion. Finally, he contends that the district court com-
mitted reversible error when it mistakenly referred to
“evading taxes” (a crime under 26 U.S.C. § 7201 for
which he was not charged) in its instruction on good-faith
belief as a defense to willfulness.
“We review jury instructions de novo to determine
whether they provide fair and accurate summaries of the
law.” United States v. Alhalabi, 443 F.3d 605, 612 (7th Cir.
2006). “In order to receive a new trial based on erroneous
instructions, a defendant must show both that the instruc-
tions did not adequately state the law and that the error
was prejudicial to him because the jury was likely to be
confused or misled.” United States v. White, 443 F.3d 582,
587 (7th Cir. 2006) (citations, alterations, and quotations
omitted). We evaluate the correctness of an instruction
by considering a judge’s charge to the jury as a whole.
United States v. Tingle, 183 F.3d 719, 729 (7th Cir. 1999).

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12 No. 06-1309
With respect to Murphy’s first argument, “willfully”
under § 7206 and its related statutes, including § 7203,
means “a voluntary, intentional violation of a known legal
duty.” United States v. Pomponio, 429 U.S. 10, 12 (1976);
see also United States v. Bishop, 412 U.S. 346, 356 (1973).
It “requires proof of a specific intent to do something
which the law forbids; more than a showing of careless
disregard for the truth is required.” United States v.
Hooks, 848 F.2d 785, 790 (7th Cir. 1988) (quotations
omitted).
Judge Stadtmueller instructed the jury separately for
each statute. On the § 7206(1) charge for willfully filing
false tax returns, the jury was told:
The word willfully means voluntary and intentionally,
with the specific intent to make a statement that
the defendant knew was false, when it was the legal
duty of the defendant to answer truthfully and the
defendant knew it was his legal duty to answer truth-
fully.
We read this instruction as nothing more than a perfectly
accurate—if slightly more verbose—statement of the law
as described in Pomponio and Hooks. We are apparently
not alone in this regard: the language is taken verbatim
from the § 7206(1) model instruction provided in Judge
Leonard Sand’s treatise on jury instructions. See Leonard
B. Sand et al., Modern Federal Jury Instructions Inst. 59-
24.
The § 7203 willfulness instruction provided:
The word willfully means the voluntary and inten-
tional violation of a known legal duty or the purposeful
omission to do what the law requires. The defendant
acted willfully if he was required by law to file an
income tax return and intentionally failed to do so.

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No. 06-1309 13
Murphy objects that the instruction failed to make clear
that for him to have acted willfully he must have known
that he was required to file a tax return. We fail to see how
a jury could not understand from the words “known legal
duty” that Murphy was required to know of his legal duty;
that is, the duty to file an income tax return. As with the
§ 7206(1) instruction, the second sentence is merely
an effort to more clearly apply the abstract definition of
willfulness to the particular conduct that constitutes the
crime charged. (This effort also explains the entirely
appropriate disparate language of the two instructions,
something which Murphy incorrectly interprets as indicat-
ing two different definitions of “willfulness.”)
We likewise find nothing to support Murphy’s second
contention: that Judge Stadtmueller improperly refused
to submit an instruction on his theory of defense. Not only
did Murphy never request any such instruction, he never
even offered at trial the theory of defense that he now
argues should have been instructed. “[T]he court has no
duty to offer an instruction sua sponte on behalf of a
defendant.” United States v. Hughes, 213 F.3d 323, 331
(7th Cir. 2000) (quotations omitted).
Murphy’s final argument regarding the jury instruc-
tion holds a bit more water, thanks to an unfortunate error
concerning a defendant’s good-faith belief. He argues
that the judge committed reversible error by mistakenly
referring to the crime of tax evasion, for which Murphy
was not charged, in the following jury instruction:
A defendant does not act willfully if he believes in good
faith that he is acting within the law, or that his
actions comply with the law. Therefore, if the defen-
dant actually believed that what he was doing was in
accord with the tax statutes, he cannot be said to have
had the criminal intent to willfully evade taxes. This
is so even if the defendant’s belief was not objectively

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14 No. 06-1309
reasonable, as long as he held the belief in good faith.
However, you may consider the reasonableness of the
defendant’s belief together with all the other evidence
in the case in determining whether the defendant
held the belief in good faith.
The inclusion of “evade taxes” probably occurred from the
use of the Seventh Circuit pattern criminal jury instruc-
tion for good faith in income tax cases. That model instruc-
tion perfectly mirrors this one except that in lieu of “evade
taxes” the instruction brackets the three alternative
income tax crimes that might be at issue in a given
case: “[evade taxes; fail to file tax returns; make a false
statement on a tax return].” Pattern Criminal Federal
Jury Instructions for the Seventh Circuit 92 (1998).
Despite this mistake, we conclude from our review of the
instruction as a whole that the error is not material—that
is, the instruction accurately stated the law in a way that
would not have created a likelihood of confusion for a
reasonable jury.
Even setting aside the fact that the challenged instruc-
tion perfectly mimicked our pattern good-faith instruction
except for two words intentionally designed to be readily
interchangeable, the substantive correctness of the in-
struction is clear from a comparison of its language with
the primary articulation of the legal principle found in
Cheek v. United States, 498 U.S. 192 (1991):
In the end, the issue is whether, based on all the
evidence, the Government has proved that the defen-
dant was aware of the duty at issue, which cannot be
true if the jury credits a good-faith misunderstand-
ing and belief submission, whether or not the claimed
belief or misunderstanding is objectively reasonable.
Id. at 202.

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No. 06-1309 15
The three key components of good faith in income taxes
cases are clear from each: a defendant’s belief must be
actual, it need not be reasonable, and it shall be evaluated
in conjunction with all of the other evidence. The judge’s
error, by contrast, was made in what is the least important
part of the instruction. The instruction is not about the
broader legal definition of tax evasion, failure to file taxes,
and filing false tax returns. It is about a defense to the
criminal intent of willfulness—an intent that the Supreme
Court has already found to require the same showing
regardless of whether § 7201, § 7203, or § 7206(1) is the
basis of the criminal charge. United States v. Bishop, 412
U.S. 346, 356 (1973). The rest of the jury instructions
made clear the statutes with which Murphy was charged
and the key elements needed to establish their violation.
Murphy could not have been prejudiced by this regrettable,
but insignificant, slip of the tongue.
For these reasons, the judgment of the district court is
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-8-06

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