United States v. Wallace Ward

973 F.2d 730 36 Fed. R. Evid. Serv. 291 UNITED STATES of America, Plaintiff-Appellee, v. Wallace WARD, Defendant-Appellant. No. 91-10293. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 11, 1992. Decided Aug. 19, 1992. Wallace Ward, in pro per, defendant-appellant. Robert Bork, Asst. U.S. Atty., Reno, Nev., for plaintiff-appellee. Appeal from the United States District Court for the District of Nevada. Before: FLETCHER, POOLE and T.G. NELSON, Circuit Judges. FLETCHER, Circuit Judge: 1 Wallace Ward appeals his conviction of three counts of attempt to evade income tax in violation of 26 U.S.C. § 7201 and three counts of failure to file income taxes in violation of 26 U.S.C. § 7203 . Ward argues that a new trial is necessary because the district court did not allow him to swear to an oath of his own creation, thereby precluding him from testifying in his own defense. We reverse and remand for a new trial. BACKGROUND 2 Ward is the president of I & O Publishing Company, a mail-order house and publisher located in Boulder City, Nevada. The prosecution presented evidence at trial that despite having substantial income, neither I & O nor Ward…

Wallace Ward appeals his conviction of three counts of attempt to evade income tax in violation of 26 U.S.C. § 7201 and three counts of failure to file income taxes in violation of 26 U.S.C. § 7203 . Ward argues that a new trial is necessary because the district court did not allow him to swear to an oath of his own creation, thereby precluding him from testifying in his own defense. We reverse and remand for a new trial.

BACKGROUND

Ward is the president of I & O Publishing Company, a mail-order house and publisher located in Boulder City, Nevada. The prosecution presented evidence at trial that despite having substantial income, neither I & O nor Ward filed tax returns or paid income taxes for the years 1983, 1984 and 1985.

On March 29, 1990 a grand jury indicted Ward on three counts each of tax evasion and failure to file income tax returns. Ward chose to represent himself at trial. On July 9, 1990, Ward filed a “Motion to Challenge the Oath,” which proposed an alternative oath that replaced the word “truth” with the phrase “fully integrated Honesty.” The oath would read, “Do you affirm to speak with fully integrated Honesty, only with fully integrated Honesty and nothing but…

dissenting:

The majority seizes upon the defendant’s semantic objection to the word “truth” and concomitant preference for the term “honesty” to reverse a conviction, but this result is not commanded by the Free Exercise Clause and runs afoul of the rule that any oath taken must convince the court that a witness is committed to truthful testimony and is aware of the cost of dishonesty on the stand. I would hold that the district court did not abuse its discretion in failing to provide a customized oath for Ward.

It is axiomatic that even the most sincere of beliefs is not entitled to the protection of the Free Exercise clause unless it is rooted in religion. See, e.g., Thomas v. Review Board, 450 U.S. 707, 713 , 101 S.Ct. 1425, 1429 , 67 L.Ed.2d 624 (1981); Wisconsin v. Yoder, 406 U.S. 205, 215 , 92 S.Ct. 1526, 1533 , 32 L.Ed.2d 15 (1972). We do not require a belief in God, but we do require a belief to “occup[y] a place in the life of its possessor parallel to that filled by the orthodox belief in God.” Mason v. General Brown Central School Dist., 851 F.2d 47 , 51 (2d Cir.1988). A “purely secular philosophical concern” is not enough to override the state’s interest in uniform…