Appeal from the United States District Court for the District of Nevada. D.C. No. CR-90-0057-LDG. Lloyd D. George, District Judge, Presiding.
Before: Betty B. Fletcher, Cecil F. Poole and Thomas G. Nelson, Circuit Judges. Opinion by Judge Fletcher; Dissent by Judge Poole.
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.
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 fully integrated Honesty?" For reasons we will not attempt to explain, Ward believes that honesty is superior to truth. Magistrate Lawrence R. Leavitt ruled on August 2, 1990 that "the oath or affirmation which has been administered in courts of law throughout the United States to millions of witnesses for hundreds of years should not be required to give way to the defendant's idiosyncratic distinctions between truth and honesty." The district court overruled Ward's objections to the magistrate's order on August 28, 1990, and again on October 8, 1990. Ward pursued an interlocutory appeal on the issue, which was dismissed for lack of jurisdiction. United States v. Ward, No. 90-10534 (9th Cir. April 24, 1991).
A three-day trial commenced on February 11, 1991. Ward made a lengthy opening statement and actively cross-examined government witnesses. At a sidebar during the second day of trial, Ward offered to take both the standard oath and his oath. The prosecutor was amenable to the compromise, but the district court refused to allow it. "This is an oath that has been used for a very long time," the district court said, "And I'm not going to establish a precedent where someone can come in and require the court to address that matter differently." At the close of the government's case on the third day of trial, Ward asked once again to testify under his oath. The Judge again refused, saying "The oath has been used for a very long time. . . . That's the oath that will be administered." Ward did not testify and presented no witnesses. The jury convicted Ward of all counts after an hour's deliberation.
Ward now appeals. He argues that the district court's insistence on an oath that violated his beliefs abridged his First Amendment right to free exercise of religion and his Fifth Amendment right to testify in his own defense.
Questions of trial management are ordinarily reviewed for abuse of discretion. United States v. Goode, 814 F.2d 1353, 1354 (9th Cir. 1987). However, this case turns on the defendant's First and Fifth Amendment rights. We review questions of constitutional law de novo. United States v. McConney, 728 F.2d 1195, 1203 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 83 L. Ed. 2d 46 , 105 S. Ct. 101 (1994).
Judges may not determine the truth or falsity of matters of faith. Even so, we must determine as a threshhold matter whether Ward's beliefs are within the ambit of the First Amendment. In order for Ward to invoke "the protection of the Religion Clauses, [his] claims must be rooted in religious belief." Wisconsin v. Yoder, 406 U.S. 205, 215, 32 L. Ed. 2d 15 , 92 S. Ct. 1526 (1972). "Religious" beliefs are those that stem from a person's "moral, ethical, or religious beliefs about what is right and wrong" and are "held with the strength of traditional religious convictions." Welsh v. United States, 398 U.S. 333, 340, 26 L. Ed. 2d 308 , 90 S. Ct. 1792 (1970).*fn1 While Ward does not describe his beliefs in terms ordinarily used in Discussions of theology or cosmology (although he at one point uses the term "atheistic"), he clearly attempts to express a moral or ethical sense of right and wrong. Ward's actions are evidence of the strength of his convictions. He strongly professes innocence of the crimes charged, yet he preferred to risk conviction and incarceration rather than abandon his version of the oath. We conclude that Ward professes beliefs that are protected by the First Amendment.
The court's interest in administering its precise form of oath must yield to Ward's First Amendment rights. To begin with, there is no constitutionally or statutorily required form of oath. Federal Rule of Evidence 603 requires only that a witness "declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so." The advisory committee notes to Rule 603 explain that "the rule is designed to afford the flexibility required in dealing with religious adults, atheists, conscientious objectors, mental defectives, and children. Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required." This rule represents no break with the common law, which recognized that
the oath's efficacy may depend upon both the general name and nature of the witness' faith and the formula of words or ceremonies which he considers as binding, i.e., as subjecting him to the risk of punishment. But it cannot matter what tenets of theological belief or what ecclesiastical organization he adheres to, provided the above essentials are fulfilled, and it cannot matter what ...