40.03[11]  Jury Nullification

      "Jury nullification" is the concept that a jury has the right to ignore a

judge's instructions on the law in a trial, if it feels the law is unjust, and

acquit the defendant even if the government has proven guilt beyond a reasonable

doubt.  Protesters often argue that the authors of the Bill of Rights intended

the Sixth Amendment to incorporate such a right.  There is, however, no

constitutional right to a jury nullification instruction.  

United States

v. Powell, 955 F.2d 1206, 1213 (9th Cir. 1992); 

United States

 v.

Krzyske, 836 F.2d 1013, 1021 (6th Cir. 1988) (upholding court's response

to jury's inquiry about meaning of "jury nullification" that "[t]here is no such

thing as valid jury nullification.  Your obligation is to follow the instructions

of the court as to the law given to you."); 

United States

 v.

Drefke, 707 F.2d 978, 982 (8th Cir. 1983); 

United States

 v.

Buttorff, 572 F.2d 619, 627 (8th Cir. 1978). 

See also 

United States

 v. Dougherty, 473 F.2d

1113, 1130-1137 (D.C. Cir. 1972), for a thorough discussion of the issue of jury

nullification and its historical origins.

---

                        40.04 WILLFULNESS

      Willfulness, the voluntary, intentional violation of a known legal duty

(Cheek v. United States, 498 U.S. 192, 201 (1991)), may be proved

entirely by circumstantial evidence.  

United States

 v. McCaffrey,

181 F.3d 854, 856 (7th Cir. 1999); 

United States

 v. Threadgill, 172

F.3d 357, 367 (5th Cir.1999); 

United States

 v. Tucker, 133 F.3d

1208, 1218 (9th Cir. 1998); 

United States

 v. King, 126 F.3d 987,

993 (7th Cir. 1997); 
United States
 v. 

Rosario

, 118

F.3d 160, 164 (3d Cir. 1997); 

United States

 v. Klausner, 80 F.3d

55, 62 (2d Cir. 1996); 

United States

 v. Wynn, 61 F.3d 921, 925

(D.C.Cir. 1995); 

United States

 v. Daniel, 956 F.2d 540, 543 (6th

Cir. 1992); 

United States

 v. Fingado, 934 F.2d 1163, 1167

(10th Cir. 1991); 

United States

 v. Grumka, 728 F.2d 794, 797

(6th Cir. 1984); 

United States

 v. Gleason, 726 F.2d 385, 388

(8th Cir. 1984); 

United States

 v. Schiff, 612 F.2d 73, 77-78

(2d Cir. 1979); Hellman v. 

United States

, 339 F.2d 36, 38 (5th Cir.

1964).

      [T]rial courts should follow a liberal policy in admitting evidence 

      directed towards establishing the defendant's state of mind.  No 

      evidence which bears on this issue should be excluded unless it 

      interjects tangential and confusing elements which clearly outweigh 

      its relevance.

United States

 v. Collorafi, 876 F.2d 303, 305 (2d Cir. 1989).

      In protester cases, admissible evidence of willfulness includes:

      1.    Tax protest activities and philosophies.  

United States

 v.

            Eargle, 921 F.2d 56, 58 (5th Cir. 1991); 

United States

            v. Grosshans, 821 F.2d 1247, 1252 (6th Cir. 1987);

            

United States

 v. Bergman, 813 F.2d 1027, 1029 (9th Cir.

            1987); 

United States

 v. Turano, 802 F.2d 10, 11-12

            (lst Cir. 1986); United States v. Marchini, 797 F.2d

            759, 766 (9th Cir. 1986). [FN9]  But see United

            States v. Knapp, 25 F.3d 451, 456 n.1 (7th Cir. 1994)

            (declining to review propriety of court's instruction that tax

            protester status could be considered in determining willfulness

            because issue not raised below).

      2.    Filing blatantly false IRS Forms W-4.  

United States

 v.

            Johnson, 893 F.2d 451, 453 (1st Cir. 1990).  See

            also 

United States

 v. Brooks, 174 F.3d 950, 955 (8th

            Cir. 1999); 

United States

 v. Kassouf, 144 F.3d 952, 955

            (6th Cir. 1998); Hanson v. Commissioner, 975 F.2d 1150,

            1153 (5th Cir. 1993); 

United States

 v. Mal, 942 F.2d

            682, 685 & n.3 (9th Cir. 1991); 

United States

 v. Sloan,

            939 F.2d 499, 502 (7th Cir. 1991); 

United States

 v.

            Pabisz, 936 F.2d 80, 81 (2d Cir. 1991); 

United States

            v. Williams, 928 F.2d 145, 148-49 (5th Cir.

            1991); 

United States

 v. Connor, 898 F.2d

            942, 945 (3rd Cir. 1990); 

United States

 v. Johnson, 893

            F.2d 451, 453 (1st Cir. 1990); 

United States

 v.

            Schmitt, 794 F.2d 555, 560 (10th Cir. 1986); United

            States v. 

Ferguson

, 793 F.2d 828, 831 (7th Cir. 1986);

            Granado v. Commissioner, 792 F.2d 91, 93-94 (7th Cir.

            1986); 

United States

 v. Shivers, 788 F.2d 1046, 1048

            (5th Cir. 1986); 

United States

 v. Carpenter, 776 F.2d

            1291, 1295 (5th Cir. 1985); Zell v. Commissioner, 763

            F.2d 1139, 1146 (10th Cir. 1985); 

United States

 v.

            Williams, 644 F.2d 696, 701 (8th Cir. 1981).

      3.    Prior taxpaying history, such as the prior filing of valid tax

            returns followed by the filing of a protest return and receipt of a

            letter from the Internal Revenue Service telling the defendant that

            his return "did not comply with tax laws and might subject him to

            criminal penalties."  

United States

 v. Shivers,

            788 F.2d 1046, 1048 (5th Cir. 1986).  See also

            

United States

 v. Daniel, 956 F.2d 540, 543 (6th Cir.

            1992); 

United States

 v. Fingado, 934 F.2d 1163 (10th

            Cir. 1991); 

United States

 v. DeClue, 899 F.2d 1465

            (6th Cir. 1990); 

United States

 v. Poschwatta, 829 F.2d

            1477, 1483 (9th Cir. 1987); 
United States
 v. 

Upton

,

            799 F.2d 432, 433 (8th Cir. 1986); 

United States

 v.

            Green, 757 F.2d 116, 123-24 (7th Cir. 1985); United

            States v. Grumka, 728 F.2d 794, 796 (6th Cir. 1984);

            
United States
 v. 

Moore

, 627 F.2d 830, 832 (7th Cir.

            1980); 

Hayward

 v. Day, 619 F.2d 716, 717 (8th Cir.

            1980); 

United States

 v. Francisco, 614 F.2d 617, 618

            (8th Cir. 1980);  

United States

 v. Karsky, 610 F.2d

            548, 551 (8th Cir. 1979).

      4.    Subsequent taxpaying conduct.  Fed. R. Evid. 404(b); United

            States v. Bank of 
New England
, N.A., 821 F.2d 844, 858 (1st.

            Cir. 1987); 
United States
 v. 

Upton

, 799 F.2d 432, 433

            (8th Cir. 1986); 

United States

 v. Sempos, 772 F.2d 1,

            2 (1st Cir. 1985); 

United States

 v. Richards, 723 F.2d

            646, 649 (8th Cir. 1983); 

United States

 v. Serlin, 707

            F.2d 953, 959 (7th Cir. 1983); 

United States

 v.

            McCorkle, 511 F.2d 477, 479 (7th Cir. 1974).

      5.    The amount of a defendant's gross income. Fingado, 934

            F.2d at 1168; 

United States

 v. Bohrer, 807 F.2d 159,

            161-62 (10th Cir. 1987); 

United States

 v. Payne,

            800 F.2d 227 (10th Cir. 1986).  The higher the defendant's gross

            income, the less likely the defendant was unaware of the filing

            requirement and the more likely the defendant's failure was

            intentional rather than inadvertent.

      6.    Proof that knowledgeable persons warned the defendant of tax

            improprieties.  

United States

 v. Dack, 987 F.2d 1282,

            1285 (7th Cir. 1993); Fingado, 934 F.2d at 1168;

            

United States

 v. Collorafi, 876 F.2d 303, 305 (2d Cir. 1989);

            

United States

 v. Sempos, 772 F.2d 1, 2 (1st Cir. 1985);

            

United States

 v. Grumka, 728 F.2d 794, 797 (6th Cir.

            1984).

---

40.05 DEFENSES

40.05[1]  Good Faith 

      A defendant's conduct is not willful if the jury finds it resulted from

"ignorance of the law or a claim that because of a misunderstanding of the law,

he had a good faith belief that he was not violating any of the provisions of the

tax laws."  Cheek v. 
United States
, 498 

U.S.

 192, 202 (1991). 

Cheek claimed that he did not file tax returns because he believed that: (1) he

was not a taxpayer within the tax laws, (2) wages are not income, (3) the

Sixteenth Amendment did not authorize the taxation of individuals, and (4) the

Sixteenth Amendment was unenforceable.  Cheek, 498 

U.S.

 at 195. 

The Court explained that:

      In the end, the issue is whether, based on all the evidence, the 

      Government has proved that the defendant was aware of the duty at 

      issue, which cannot be true if the jury credits a good-faith 

      misunderstanding and belief submission, whether or not the 

      claimed belief is objectively reasonable.

Cheek, 498 

U.S.

 at 202 (emphasis added).  The Supreme Court held

the trial court's jury instructions that Cheek's good faith beliefs or

misunderstanding of the law would have to be objectively reasonable to negate

willfulness were erroneous, stating: 

      It was therefore error to instruct the jury to disregard evidence of 

      Cheek's understanding that, within the meaning of the tax laws, he was 

      not a person required to file a return or pay income taxes and that 

      wages are not taxable income, as incredible as such misunderstandings 

      of and beliefs about the law might be.

Cheek, 498 

U.S.

 at 203.

      The trial court did not err, however, in instructing the jury not to

consider Cheek's claims that tax laws are unconstitutional:

      We thus hold that in a case like this, a defendant's views about the 

      validity of the tax statutes are irrelevant to the issue of 

      willfulness, need not be heard by the jury, and if they are, an 

      instruction to disregard them would be proper.  For this purpose, it 

      makes no difference whether the claims of invalidity are frivolous or 

      have substance.

Cheek, 498 

U.S.

 at 206.  See also United

States v. Saussy, 802 F.2d 849, 853 (6th Cir. 1986); 

United States

v. Payne, 800 F.2d 227, 229 (10th Cir. 1986); 

United States

 v.

Mueller, 778 F.2d 539, 541 (9th Cir. 1985); 

United States

 v.

Latham, 754 F.2d 747, 751 (7th Cir. 1985); 

United States

 v.

Burton
, 737 F.2d 439, 442 (5th Cir. 1984); 

United States

 v.

Kraeger, 711 F.2d 6, 7 (2d Cir. 1983); 

United States

 v.

Pilcher, 672 F.2d 875, 877 (11th Cir. 1982); 

United States

 v.

Moore, 627 F.2d 830, 833 n.l (7th Cir. 1980); 

United States

 v.

Karsky, 610 F.2d 548, 550 (8th Cir. 1979).

      The 

Cheek Court

 stated that a jury considering a good faith

belief claim:

      would be free to consider any admissible evidence from any source 

      showing that . . . [the taxpayer] was aware of his . . . [duties under 

      the tax laws], including evidence showing his awareness of the Code or 

      regulations, of court decisions rejecting his interpretations of the 

      tax law, of authoritative rulings of the Internal Revenue Service, or 

      any contents of the personal income tax return forms and accompanying 

      instructions . . . .

Cheek, 498 

U.S.

 at 202.

      In determining whether a subjective good faith belief was held, a jury

should not be precluded from considering the reasonableness of the taxpayer's

interpretation of the law.

      [T]he more unreasonable the asserted beliefs or misunderstandings are, 

      the more likely the jury will consider them to be nothing more than 

      simple disagreement with known legal duties imposed by the tax laws 

      and will find that the Government has carried its burden of proving 

      knowledge.

Cheek, 498 

U.S.

 at 203-04.  After remand and retrial, the Seventh

Circuit upheld Cheek's conviction, 

United States

 v. Cheek, 3 F.3d

1057 (7th Cir. 1993), finding that the trial court's instruction that the jury

could "consider whether the defendant's stated belief about the tax statutes was

reasonable as a factor in deciding whether he held that belief in good-faith" was

proper.  Cheek, 3 F.3d at 1063. 

See also 

United States

 v. Becker, 965 F.2d

383, 388 (7th Cir. 1992); 

United States

 v. Powell, 955 F.2d 1206,

1212 (9th Cir. 1992) (jury may consider "the reasonableness of the interpretation

of the law in weighing the credibility" of defendants' subjective belief that

they were not required to file tax returns). 

      Tax protesters often claim to believe, allegedly based on a careful study

of legal decisions, statutes, legal treatises, and the like, that they are not

required to file returns or pay taxes, and attempt to introduce such materials

into evidence.  See, e.g., 

United States

 v.

Bonneau, 970 F.2d 929, 931 (1st Cir. 1992); 

United States

 v.

Willie, 941 F.2d 1384, 1391 (10th Cir. 1991).  In order to introduce such

materials into evidence, the taxpayer must lay a sufficient foundation of

reliance.  Even if he lays such a foundation, the materials may not be admitted

into evidence because of competing interests.  For example, such material may:

(1) confuse the jury as to the law (see 

United States

 v.

Stafford, 983 F.2d 25, 28 n.14 (5th Cir. 1993); 

United States

 v.

Payne, 978 F.2d 1177, 1181-82 (10th Cir. 1992);

United States

 v. Barnett, 945 F.2d 1296, 1301 (5th Cir. 1991);

Willie, 941 F.2d at 1395-97; 

United States

 v.

Gleason, 726 F.2d 385, 388 (8th Cir. 1984); 

United States

 v.

Kraeger, 711 F.2d 6, 7-8 (2d Cir. 1983)), (2) assist a defendant who

wishes to undermine the authority of the court, and (3) turn the trial into a tax

protester circus (see Willie, 941 F.2d at 1395 &

n.8).

      If such materials are not admitted into evidence, the defendant can still

convey his core defense to the jury through testimony about his beliefs and how

he arrived at them.  See Barnett, 945 F.2d at 1301;

United States

 v. Hairston, 819 F.2d 971, 973 (10th Cir. 1987).  It

is for the district court to weigh the various competing interests and determine,

in its discretion, whether, to what extent, and in what form, legal materials

upon which a defendant claims to have relied should be admitted in any given

case.  See Willie, 941 F.2d at 1398; Fed. R. Evid.

403. [FN10]

      A prosecutor should not seek to exclude such evidence in all situations. 

See 

United States

 v. Gaumer, 972 F.2d 723, 725

(6th Cir. 1992) (error not to allow defendant to read relevant excerpts of court

opinions and Congressional Record upon which he assertedly relied in determining

that he was not required to file tax returns); 

United States

 v.

Powell, 955 F.2d 1206, 1214 (9th Cir. 1992) ("In section 7203

prosecutions, statutes or case law upon which the defendant claims to have

actually relied are admissible to disprove that element [willfulness] if

the defendant lays a proper foundation which demonstrates such reliance."

(emphasis in original)).  Restraint should be exercised where appropriate so as

not to jeopardize convictions on appeal.  This is particularly true where the

defendant has made a specific claim of reliance on a relatively limited amount

of material.  See Barnett, 945 F.2d at 1301 n.3

(noting that exclusion of specific proffer of one or two sentences from an IRS

handbook may have been error, albeit harmless, and contrasting this specific

proffer with the "voluminous,' cover the waterfront' exhibits" that defendant had

originally offered).  In such a situation, the prosecutor should consider

requesting a limiting instruction rather than opposing the admission of such

evidence. [FN11]

      For examples of jury instructions on willfulness and the good faith defense

that have been upheld, see 

United States

 v. Dykstra,

991 F.2d 450, 452-53 (8th Cir. 1993); 

United States

 v. Dack,

987 F.2d 1282, 1285 (7th Cir. 1993); 
Stafford
, 983 F.2d at

27; 

United States

 v. Becker, 965 F.2d 383, 388 (7th Cir. 1992);

United States

 v. Droge, 961 F.2d 1030, 1037-38 (2d Cir. 1992);

United States

 v. Masat, 948 F.2d 923, 931-32 (5th Cir. 1991);

United States

 v. Fingado, 934 F.2d 1163, 1166-67 (10th Cir. 1991);

United States

 v. Collins, 920 F.2d 619, 622-23 (10th Cir. 1990).

      40.05[1][a]  Reliance on Return Preparer/Accountant

      "Reliance on a qualified tax preparer is an affirmative defense to a charge

of willful filing of a false tax return."  

United States

 v.

Charroux, 3 F.3d 827, 831 (5th Cir. 1993) (citation omitted).

      Reliance on the advice of third parties, such as preparers or accountants,

may negate the element of willfulness in prosecutions for: (1) tax evasion in

violation of 26 U.S.C. § 7201 (

United States

 v. Fawaz, 881

F.2d 259, 265 (6th Cir. 1989)); (2) willful failure to pay, keep records, or

supply required information, in violation of 26 U.S.C. § 7203 (United

States v. Civella, 666 F.2d 1122, 1126 (8th Cir. 1981); United

States v. Wilson, 550 F.2d 259, 260 (5th Cir. 1977)); (3) tax perjury,

in violation of 26 U.S.C. § 7206(1) (

United States

 v.

Brimberry, 961 F.2d 1286, 1290 (7th Cir. 1992)).

      In order to claim successfully third-party reliance, a defendant must show

that he truthfully and completely: (1) disclosed all relevant facts to the

preparer or accountant, and (2) in good faith relied on the preparer's or

accountant's advice. 

United States

 v. Masat, 948 F.2d 923, 930 (5th

Cir. 1991); 
United States
 v. 

Wilson

, 887 F.2d 69, 73 (5th Cir.

1989); 

United States

 v. Michaud, 860 F.2d 495, 500 (1st Cir. 1988);

United States

 v. Meyer, 808 F.2d 1304, 1306 (8th Cir. 1987);

United States

 v. Whyte, 699 F.2d 375, 379 (7th Cir. 1983);

United States

 v. Samara, 643 F.2d 701, 703-704 (10th Cir. 1981);

United States

 v. Pomponio, 563 F.2d 659, 662 (4th Cir. 1977);

United States

 v. Lisowski, 504 F.2d 1268, 1272 (7th Cir. 1974);

United States

 v. Stone, 431 F.2d 1286, 1289 (5th Cir. 1970).  In

other words, "to avail himself of the defense, a defendant must demonstrate that

he provided full information to the preparer and then filed the return without

having reason to believe it was incorrect."  Charroux, 3 F.3d at

831 (citation omitted).

      "In a tax evasion case in which the defendants assert that blind reliance

on their accountant, not criminal intent, caused an under reporting, the critical

datum is not whether the defendants ordered the accountant to falsify the return,

but, rather, whether the defendants knew when they signed the return that it

understated their income."  

United States

 v. Olbres, 61 F.3d 967,

971 (1st Cir. 1995).  A defendant who knew the return's contents and knews that

the income figure reported on the return was understated, cannot claim to have

blindly relied on a preparer.  

Id.

  "A jury may permissibly infer

that a taxpayer read his return and knew its contents from the bare fact that he

signed it."  

Id.

      Good faith reliance on third parties is an issue to be determined by the

jury.  Meyer, 808 F.2d at 1306.  Therefore, a jury instruction on

this issue should be submitted if credible evidence of third-party reliance is

presented at trial.  A defendant who demonstrates that he (1) made full

disclosure of all pertinent facts, and (2) relied in good faith on this advice

is entitled to a reliance-on-advice-of-accountant jury instruction.  United

States v. Ford, 184 F.3d 566, 579 (6th Cir. 1999), cert.

denied, 528 

U.S.

 1161 (2000).  A reliance-on-advice-of-accountant

instruction may be warranted "even without per se testimony that the

defendant relied on the accountant's advice, so long as the circumstances support

an inference that he did so rely."  

Id.

  See also 

United States

 v. 

Duncan

, 850 F.2d 1104, 1115-19 (6th Cir. 1988).

      Where there is no evidentiary basis for a reliance defense, however, a

defendant is not entitled to a jury instruction.  

United States

 v.

Evangelista, 122 F.3d 112, 118 (2d Cir. 1997).

      The defendant's education, sophistication, and degree of reliance are

relevant to a reliance defense.  See 

United States

 v. Estate Preservation

Services, 202 F.3d 1093, 1103 (9th Cir. 2000) (defense unavailable to a

physicist who received training in taxation at the University of Southern

California
 
Law
 
School

).  A defendant who seeks advice, but chooses to: (1) ignore

advisors skeptical as to the legality of his statements, and (2) follow the

advice of others who "unquestioningly agree[d] to further his scheme" will not

succeed in asserting third-party reliance.  Estate Preservation

Services, 202 F.3d at 1103.

      Furthermore, a taxpayer may not successfully assert this defense when

certain information -- such as filing deadlines -- is common knowledge. 

United States
 v. Boyle, 469 

U.S.

 241, 251-52 (1985).

      40.05[1][b]  Reliance on Advice of Counsel

      Reliance on the advice of an attorney in the preparation of incomplete or

"Fifth Amendment" returns is a defense raised by some protesters.  If the

evidence presented at trial is sufficient to warrant it, the court should

instruct the jury that the defendant's conduct is not "willful" if he acted with

a good faith misunderstanding based on the advice of counsel.  See

United States

 v. Becker, 965 F.2d 383, 387-88 (7th Cir. 1992)

(upholding refusal to give reliance instruction where there was no testimony

that: (1) defendant told lawyer everything about his situation, (2) attorney gave

defendant specific advice in response, and (3) defendant followed that advice);

United States v. Benson, 941 F.2d 598, 615 (7th Cir. 1991) (proper

to instruct jury that reliance on counsel was a "circumstance" to consider in

determining willfulness); 

United States

 v. Snyder, 766 F.2d 167,

169 (4th Cir. 1985) (testimony not sufficient to justify instruction concerning

good faith reliance).

      The Seventh Circuit, in 

United States

 v. Cheek, 3 F.3d 1057

(7th Cir. 1993), used the following test to determine whether Cheek was entitled

to a reliance on counsel defense instruction:

      In order to establish an advice of counsel defense, a defendant must 

      establish that: " (1) before taking action, (2) he in good faith 

      sought the advice of an attorney whom he considered competent, (3) for 

      the purpose of securing advice on the lawfulness of his possible 

      future conduct, (4) and made a full and accurate report to his 

      attorney of all material facts which the defendant knew, (5) and acted 

      strictly in accordance with the advice of his attorney who had been 

      given a full report."

Cheek, 3 F.3d at 1061 (citing Liss v. United States,

915 F.2d 287, 291 (7th Cir. 1990)).  The Seventh Circuit held that Cheek was not

entitled to the instruction because he did not seek advice on possible future

conduct, but "merely continued on a course of illegal conduct begun prior to

contacting counsel".  Cheek, 3 F.3d at 1062.  Cheek did not make

a full disclosure to his attorney nor follow his attorney's advice that he should

obey the tax laws until told by a court that the laws were not valid. 

Cheek, 3 F.3d at 1062.

      40.05[1][c]  No Defense in Non-Tax Cases

      In Cheek v. United States, 498 U.S. 192 (1991), the Supreme

Court carefully limited the "good faith" defense to tax cases, emphasizing "the

complexity" of the Internal Revenue Code, 498 U.S. at 200, the

"average citizen's" difficulty in comprehending duties it imposes, 498 U.S. at

199, and the construction of "willfulness" in the tax context, 498 U.S. at 201.

      Various appellate courts have confirmed Cheek's limited

application.  See United States v. Boots, 80 F.3d

580, 594 (1st. Cir. 1996) ("defendant's initially weak contention [that

Cheek defense is available in wire fraud case] is not even arguably

tenable"); In re Air Disaster at Lockerbie Scotland, 37 F.3d 804,

818 (2d Cir. 1994) ("our subsequent decisions and those of other courts

acknowledge Cheek's limited application"); United States v.

Gay, 967 F.2d 322 (9th Cir. 1992) (mail and property fraud); United

States v. Chaney, 964 F.2d 437, 453-54 (5th Cir. 1992)

(false statements on bank records).  But see

Ratzlaf v. United States, 507 U.S. 1060 (1993) (The word "willfully" in

31 U.S.C. § 5322(a) requires that the government prove in a prosecution for

structuring cash transactions that the defendant knew that structuring is

unlawful). [FN12]

40.05[2]  Constitutional Challenges

      40.05[2][a]  Fourth Amendment -- Unreasonable Search and Seizure

      The statutory requirement to file tax returns does not violate the Fourth

Amendment.  Flint v. Stone Tracy Co., 220 U.S. 107, 177 (1911).

      Likewise, the government's use at trial of a defendant's filed income tax

returns or Forms W-4 does not violate the Fourth Amendment right against

unreasonable searches and seizures.  United States v. Amon,

669 F.2d 1351, 1358 (10th Cir. 1981); United States v. Warinner,

607 F.2d 210, 212-13 (8th Cir. 1979).

      The IRS has authority to obtain evidence through the execution of search

warrants.  United States v. Rosnow, 977 F.2d 399, 409 (8th Cir.

1992).  In Rosnow, the court noted that "Congress gave the IRS wide

authority to conduct criminal investigations, including the execution of search

warrants, regarding those individuals suspected of violating the tax laws." 

Rosnow, 977 F.2d at 399.  See also Donaldson v. United

States, 400 U.S. 517, 522, 537 (1971) (IRS third-party summons do not

violate Fourth Amendment); United States v. Scott, 975 F.2d 927,

928 (1st Cir. 1992) (IRS systematic search, seizure, and reconstruction of

shredded documents from garbage bag in front of defendant's home did not violate

Fourth Amendment); United States v. Dunkel, 900 F.2d 105, 106

(7th Cir. 1990), vacated on other grounds, 111 S.Ct. 747 (1991)

(use of financial records obtained from taxpayer's dumpster does not violate

Fourth Amendment).

      40.05[2][b]  Fifth Amendment -- Due Process; Freedom from

      Self-incrimination

      Tax protesters sometimes claim that taxes constitute a "taking" of property

without due process of law, in violation of the Fifth Amendment.  Schiff

v. United States, 919 F.2d 830, 832 (D.Conn. 1989); Irwin Schiff, The

Federal Mafia: How It Illegally Imposes and Unlawfully Collects Income Taxes

21, 26 (1992).  But the Supreme Court held that the government's need for

revenues justifies use of summary procedures to collect taxes.  Phillips

v. Commissioner, 283 U.S. 589, 595 (1931).  The Internal Revenue Code

itself provides methods to ensure due process to taxpayers: (1) "the refund

method," set forth in 26 U.S.C. § 7422(e) and 28 U.S.C. §§ 1341,

1346(a), whereby a taxpayer must pay the full amount of the tax and then sue in

district court or in the Federal Court of Claims for a refund, and (2) "the

deficiency method," set forth in 26 U.S.C. § 6213(a), whereby a taxpayer

need not pay the contested tax if he immediately petitions U.S. Tax Court to

redetermine the deficiency.  Courts have found both methods to provide due

process.  Flora v. United States, 362 U.S. 145 (1960);

Schiff, 919 F.2d at 832.

      To similar effect, tax protesters often submit tax returns on which they

refuse to provide any financial information, asserting their Fifth Amendment

right against self-incrimination.  U.S. Const. amend. V.  However, the Supreme

Court has long held that the statutory requirement to file tax returns does not

violate the Fifth Amendment.  Flint v. Stone Tracy Co., 220 U.S.

107, 177 (1911).

      Section 6702 of Title 26 of the United States Code ("Frivolous Income Tax

Returns") imposes a civil penalty against any individual who, motivated by "a

position which is frivolous" or "a desire (which appears on the purported return)

to delay or impede the administration of Federal income tax laws," files an

incomplete return.  Courts repeatedly have found Fifth Amendment privilege claims

on incomplete forms frivolous.  See Sochia v. Commissioner,

23 F.3d 941 (5th Cir. 1994) (return frivolous where defendant supplied only names

and claimed Fifth Amendment privilege by inserting phrase: "Object -- Fifth

Amendment"); Mosher v. IRS, 775 F.2d 1292 (5th Cir. 1985) (taxpayer

struck jurat from return); Eicher v. United States, 774 F.2d 27

(1st Cir. 1985) (blanket claim of privilege on return

frivolous); Ricket v. United States, 773 F.2d 1214 (11th Cir. 1985)

(return containing only signature and date, and invoking privilege was

"frivolous"); Peeples v. Commissioner, 771 F.2d 77 (4th Cir. 1984)

(words "refused" and Fifth Amendment claim rendered return frivolous);

 Hudson v. United States, 766 F.2d 1288 (9th Cir. 1985)

(taxpayer's statement that complete return could be used to prosecute false

claims action insufficient to invoke Fifth Amendment protection).

      Return forms containing little or no financial information from which a tax

can be computed are sometimes referred to as "Fifth Amendment returns."  The

filing of a so-called Fifth Amendment return may constitute an affirmative act

for the purpose of proving evasion.  See United States v.

Waldeck, 909 F.2d 555, 559 (1st Cir. 1990) ("filing of returns containing

only name, a signature, a figure for federal income tax withheld, asterisks at

numbered lines in lieu of information and the statement '[t]his means specific

exception is made under the Fifth Amendment, U.S. Constitution,'" is an

affirmative act of evasion); United States v. DeClue, 899 F.2d

1465, 1471 (6th Cir. 1990) (filing of return with no financial information, on

which was typed, "object: self-incrimination," is affirmative act of evasion).

      In United States v. Sullivan, 274 U.S. 259 (1927), the Court

held that the privilege against compulsory self- incrimination is not a defense

to prosecution for failing to file.  The Court indicated, however, that the

privilege could be claimed against specific disclosures sought on a return,

saying (274 U.S. at 263):

      If the form of return provided called for answers that the defendant 

      was privileged from making he could have raised the objection in the 

      return, but could not on that account refuse to make any return at 

      all.

See also Garner v. United States, 424 U.S.

648, 650 (1976).

      Sullivan is frequently cited for the proposition that a

taxpayer may not use the Fifth Amendment to justify the failure to file any

return at all.  See, e.g., Garner,

424 U.S. at 650; United States v. Dack, 987 F.2d 1282, 1284

(7th Cir. 1993); United States v. Wunder, 919 F.2d 34, 37 (6th Cir.

1990); United States v. Poschwatta, 829 F.2d 1477, 1482 n. 3

(9th Cir. 1987); United States v. Leidendeker,

779 F.2d 1417, 1418 (9th Cir. 1986); United States v. Stillhammer,

706 F.2d 1072, 1076-77 (10th Cir. 1983); United States v. Pilcher,

672 F.2d 875, 877 (11th Cir. 1982); United States v. Lawson,

670 F.2d 923, 927 (10th Cir. 1982) (cases cited); United States v.

Reed, 670 F.2d 622, 623-24 (5th Cir. 1982); United States v.

Booher, 641 F.2d 218, 219 (5th Cir. 1981); United States v.

Edelson, 604 F.2d 232, 234 (3d Cir. 1979).

      A taxpayer may refuse to answer specific questions or disclose specific

information  if such disclosure would be incriminating.  The courts have

uniformly held, however, that disclosure of routine financial information on a

tax return ordinarily does not, in itself, incriminate an individual, and does

not violate one's Fifth Amendment right against self-incrimination. 

Garner, 424 U.S. at 651; California v. Byers, 402

U.S. 424, 428, 430 (1971) ("the mere possibility of incrimination is insufficient

to defeat the strong policies in favor of a disclosure"); United States v.

Warner, 830 F.2d 651, 653-54 (7th Cir. 1987); United States v.

Heise, 709 F.2d 449, 451 (6th Cir. 1983); United States v.

Drefke, 707 F.2d 978, 982-83 (8th Cir. 1983); Lawson,

670 F.2d at 927; Reed, 670 F.2d at 623-24; United States v.

Carlson, 617 F.2d 518 (9th Cir. 1980) (no valid Fifth Amendment privilege

excusing failure to file Form 1040 to cover up false Form W-4 previously filed

by defendant); United States v. Neff, 615 F.2d 1235, 1238-41

(9th Cir. 1980); United States v. Schiff, 612 F.2d 73, 77-83

(2d Cir. 1979); Edelson, 604 F.2d at 234; United States v.

Irwin, 561 F.2d 198, 201 (10th Cir. 1977).  See also

United States v. Saussy, 802 F.2d 849, 854-55 (6th Cir. 1986);

United States v. Green, 757 F.2d 116 n.7 (7th Cir. 1985) (affirming

use of jury instruction that reporting income from legitimate activities would

not fall within the Fifth Amendment privilege).

      In appropriate situations, a Fifth Amendment claim may be asserted as to

specific line items on tax forms.  Sullivan, 274 U.S. at 263;

United States v. Harting, 879 F.2d 765, 770 (10th Cir. 1989);

United States v. Flitcraft, 863 F.2d 342, 344 (5th Cir. 1988);

United States v. Shivers, 788 F.2d 1046, 1049 (5th Cir. 1986)

(amount of taxpayer's income not privileged though source may be);

Heise, 709 F.2d at 450-51;  United States v.

Turk, 722 F.2d 1439, 1441 (9th Cir. 1983); United States v.

Verkuilen, 690 F.2d 648, 654 (7th Cir. 1982); Edelson,

604 F.2d at 234.

      In order to assert validly a Fifth Amendment privilege against self-

incrimination, a defendant must:

            *     Claim the privilege on his return (Garner v. United

                  States, 424 U.S. at 665; Sullivan, 274

                  U.S. at 263-64);

            *     As an objection to a specific question (Heligman v.

                  United States, 407 F.2d 448, 450-51 (8th Cir. 1969));

            *     Demonstrate a real and substantial danger of self-incrimination

                  (Daly v. United States, 393 F.2d 873, 878 (8th

                  Cir. 1968));

            *     Submit to the reviewing court's arbitration of the claim

                  (Heligman, 407 F.2d at 450-51).

      A court's determination that the defendant's claim of the Fifth Amendment

privilege against self-incrimination is invalid does not, however,

prohibit the defendant from offering evidence to the effect that he believed in

good faith he could properly assert the privilege.  Such a good faith claim, even

if erroneous, is a valid defense to the element of willfulness, if believed by

the jury.  Saussy, 802 F.2d at 854-855; Poschwatta,

829 F.2d at 1482 n.3; Shivers, 788 F.2d at 1048 n.1; United

States v. Goetz, 746 F.2d 705, 710 (11th Cir. 1982).

      Whether the defendant validly exercised the privilege against

self-incrimination is a question of law for the court.  Turk,

722 F.2d at 1440.  On the other hand, whether the defendant asserted the

privilege in good faith, thereby entitling the defendant to acquittal, is a

question of fact for the jury to resolve.  United States v. Smith,

735 F.2d 1196, 1198 (9th Cir. 1984); Turk, 722 F.2d at 1440;.

      40.05[2][c]  Tax Laws Are Unconstitutionally Vague

      Sections 7203, 7205 and 7206 have withstood challenges that they are

unconstitutionally vague. United States v. Cochrane, 985 F.2d 1027,

1031 (9th Cir. 1993) (section 7206) ("The void-for-vagueness doctrine requires

[only] that a penal statute define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is prohibited")

(citation omitted)); United States v. Dunkel, 900 F.2d 105, 107

(7th Cir. 1990) ("it is enough that a reasonable person can see what Congress is

driving at"), vacated on other grounds, 498 U.S. 1043 (1991)

(section 7203);  United States v. Price, 798 F.2d 111, 113

(5th Cir. 1986) (section 7205); United States v. Pederson, 784 F.2d

1462, 1463-64 (9th Cir. 1986) (section 7203); United States v.

Parshall, 757 F.2d 211, 215 (8th Cir. 1985) (section 7203); United

States v. Damon, 676 F.2d 1060, 1062 (5th Cir. 1982) (section

7206(2));  United States v. Annunziato, 643 F.2d 676, 677-78

(9th Cir. 1981) (section 7205); United States v. Russell, 585 F.2d

368, 370 (8th Cir. 1978) (section 7203); United States v. Buttorff,

572 F.2d 619, 624-25 (8th Cir. 1978) (section 7205); United States v.

Lachmann, 469 F.2d 1043, 1046 (lst Cir. 1972) (section 7203).

      40.05[2][d]  Sixteenth Amendment Never Ratified 

      Using various arguments, tax protesters claim that the Sixteenth Amendment,

which grants Congress the power to collect taxes without consideration to

apportionment, is not part of the United States Constitution.  See 

Christopher S. Jackson, The Inane Gospel of Tax Protest: Resist Rendering 

Unto Caesar -- Whatever His Demands, 32 Gonz. L. Rev. 291, 301-302 

(1997) (reciting litany of tax protester arguments).  

      The Supreme Court has stated that such assertions are political questions

beyond federal court jurisdiction.  Coleman v. Miller, 307 U.S.

433, 450-56 (1939) (Black, J., concurring); see also Baker v.

Carr, 369 U.S. 186, 214-15 (1962).

      Lower courts, however, have repeatedly rejected the contention that the

Sixteenth Amendment was never properly ratified, and that the federal government

therefore lacks the authority to collect an income tax.  Socia v.

Commissioner, 23 F.3d 941 (5th Cir. 1994);  United States v.

Benson, 941 F.2d 598, 607 (7th Cir. 1991) (rejecting argument based on

clerical errors and state protocols); United States v. Collins,

920 F.2d 619, 629 (10th Cir. 1990); In re Becraft, 885 F.2d 547,

549 (9th Cir. 1989); Miller  v. United States, 868 F.2d 236, 239-41

(7th Cir. 1989); United States v. Sitka, 845 F.2d 43, 44-47

(2d Cir. 1988) (rejecting clerical errors argument); United States v.

Ward, 833 F.2d 1538, 1539 (11th Cir. 1987); United States v.

Dube, 820 F.2d 886, 891 (7th Cir. 1986); Pollard v.

Commissioner, 816 F.2d 603, 604-05(11th Cir. 1987); United States

v. Stahl, 792 F.2d 1438, 1439 (9th Cir. 1986); Coleman v.

Commissioner, 791 F.2d 68, 70-71 (7th Cir. 1986); Sisk v.

Commissioner, 791 F.2d 58, 61 (6th Cir. 1986) (rejecting clerical errors

and "Ohio not a State" arguments); United States v. Thomas, 788

F.2d 1250, 1253 (7th Cir. 1986) (rejecting view that literal text is essential

to proper adoption); Biermann v. Commissioner, 769 F.2d 707 (11th

Cir. 1985);  Knoblauch v. Commissioner, 749 F.2d 200, 201-202 (5th

Cir. 1984) (variant wording in state ratification resolution without consequence;

"Ohio not a State" argument rejected).

      As stated in United States v. House, 617 F.Supp. 237, 240

(W.D. Mich. 1985):

      The sixteenth amendment and the tax laws passed pursuant to it have 

      been followed by the courts for over half a century.  They represent 

      the recognized law of the land.

40.05[3]  Selective Prosecution and Freedom of Speech

      40.05[3][a]  Generally

      Tax protesters have asserted that their prosecution violates their First

Amendment right of freedom of speech.  Protesters commonly argue that they are

being prosecuted merely because they are outspoken, prominent critics of the

Internal Revenue Code.  This is actually a selective prosecution defense, not a

First Amendment defense.  There is consensus among the circuits that liability

for a false or fraudulent tax return cannot be avoided by invoking the First

Amendment.  United States v. Rowlee, 899 F.2d 1275, 1279 (2d Cir.

1990).

      On the other hand, where the protester is prosecuted under an aiding or

abetting charge, e.g., 18 U.S.C. § 2 or 26 U.S.C. § 7206(2), or

a conspiracy charge, the protester may claim that his or her counseling or advice

to others was limited to speech, not action and is, therefore, protected by the

First Amendment.  In certain limited instances, a First Amendment freedom of

speech may be presented.  See Brandenburg v. Ohio, 395 U.S. 444,

448-49 (1969); United States v. Fleschner, 98 F.3d 155, 158-59 (4th

Cir. 1996); United States v. Kelley, 769 F.2d 215, 217 (4th Cir.

1985) (construing Brandenburg).

      In Brandenburg, 395 U.S. at 448-49,  the Supreme Court held

that speech that advocates law-breaking, but incites no imminent unlawful

activity, is protected.  Brandenburg, 395 U.S. at 448-49. If,

however, an advisor willfully assists the preparation of  a actual false return,

in violation of 26 U.S.C. § 7206(2), by advising a tax return preparer to

claim a deduction on the return of the taxpayers, which the advisor knew the

taxpayers were not entitled to take, the advisor cannot successfully argue that

this conduct was protected speech.  United States v. Knapp, 25 F.3d

451, 457 (7th Cir. 1994).  Nor can a tax shelter promoter who advises others to

prepare actual false returns successfully claim First Amendment protection.

See Fleschner, 98 F.3d at 158-59;

Kelley, 769 F.2d at 217; United States v. Kelley, 864 F.2d

569, 576-77 (7th Cir. 1989).

      40.05[3][b]  Selective Prosecution Defense 

      "A selective prosecution claim is not a defense on the merits to the

criminal charge itself, but an independent assertion that the prosecutor has

brought the charge for reasons forbidden by the Constitution."  United

States v. Armstrong, 517 U.S. 456, 464 (1996).  

      The test for selective prosecution is rigorous.  In order to overcome the

presumption of prosecutorial regularity, a defendant must prove, "by clear

evidence," that the decision to prosecute was based on "an unjustifiable

standard, such as race, religion, or other arbitrary classification  . . .

directed so exclusively against a particular class of persons . . .  with a mind

so unequal and oppressive" that prosecution amounts to a "practical denial" of

equal protection.  Armstrong, 517 U.S. at 464 (citations omitted). 

The defense that protesters are being selectively prosecuted because they are

outspoken opponents of the Internal Revenue Code rarely succeeds.  

      The defendant who asserts selective prosecution  carries a heavy burden. 

In United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974),

the Second Circuit defined the defendant's burden:

      To support a defense of selective or discriminatory prosecution, a 

      defendant bears the heavy burden of establishing, at least 

      prima facie, (1) that, while others similarly situated 

      have not generally been proceeded against because of conduct of the 

      type forming the basis of the charge against him, he has been singled 

      out for prosecution, and (2) that the government's discriminatory 

      selection of him for prosecution has been invidious or in bad faith, 

      i.e., based upon such impermissible considerations as race, 

      religion, or the desire to prevent his exercise of constitutional 

      rights.

      Other circuits have adopted this rigorous standard.  United States

v. Aguilar, 883 F.2d 662, 705 (9th Cir. 1989); United States v.

Michaud, 860 F.2d 495, 499-500 (lst Cir. 1988); United States v.

McMullen, 755 F.2d 65, 66 (6th Cir. 1984); United States v.

Dack, 747 F.2d 1172, 1176 n.5 (7th Cir. 1984); United States v.

Holecek, 739 F.2d 331, 333-34 (8th Cir. 1984); United States v.

Mangieri, 694 F.2d 1270, 1273 (D.C. Cir. 1982); United States v.

Damon, 676 F.2d 1060, 1064 (5th Cir. 1982); United

States v. Amon, 669 F.2d 1351, 1356 n.6 (10th Cir. 1981); United

States v. Rice, 659 F.2d 524, 527 (5th Cir. 1981).

      The defendant must overcome the presumption that the prosecution has been

legitimately undertaken prior to being entitled to discovery or a hearing on the

issue of selective prosecution.  United States v. Bennett, 539 F.2d

45, 54 (10th Cir. 1976).  The IRS is not required to treat similarly all who

engage in roughly the same conduct.  Michaud, 860 F.2d at 499. 

Vigorous prosecution is not selective prosecution.  United States v.

Brewer, 681 F.2d 973, 974 (5th Cir. 1982).  

      The defendant has the initial burden of establishing the two parts of a

prima facie case of selective prosecution.  He must present  "some

evidence tending to show the existence of the essential elements of the defense

and that the documents in the government's possession would indeed be probative

of these elements."  Berrios,  501 F.2d at 1211-12.  See

also United States v. Bohrer, 807 F.2d 159, 161

(10th Cir. 1986); United States v. Moon, 718 F.2d 1210, 1229

(2d Cir. 1983).

      The Sixth, Seventh, and Eighth Circuits have held that the defendant must

"raise a reasonable doubt about the prosecutor's purpose" to be entitled to a

hearing.  United States v. Hazel, 696 F.2d 473, 475 (6th Cir.

1983); United States v. Catlett, 584 F.2d 864, 866 (8th Cir. 1978);

United States v. Falk, 479 F.2d 616, 623 (7th Cir. 1973).

      The Third, Fifth, Sixth, and Ninth Circuits have used such phrases as

"colorable entitlement" to the defense, "some credible evidence," and enough

facts "to take the question past the frivolous stage" in setting the threshold

for requiring discovery or a hearing.  United States v. Hazel,

696 F.2d 473, 475 (6th Cir. 1983); Damon, 676 F.2d at 1064-65;

United States v. Torquato, 602 F.2d 564, 569-70 (3d Cir. 1979);

United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir. 1974)

United States v. Berrigan, 482 F.2d 171, 181 (3d Cir. 1973).

      If the defendant  makes such a showing, the burden shifts to the government

to show that there was no selective prosecution.  

      As a practical matter, the government should resist discovery or a hearing

on this issue until the defendant has made the requisite showing of selective

prosecution:  defendants may use frivolous claims of selective prosecution to

obtain documents -- such as internal government memoranda -- they otherwise would

not be entitled to under Fed. R. Crim. P. 16. 

      Generally, courts have upheld government targeting of vocal tax protesters

for prosecution against defendants' selective prosecution attacks.  United

States v. Johnson, 577 F.2d 1304, 1309 (5th Cir. 1978); United

States v. Pottorf, 769 F. Supp. 1176, 1184 (D. Kan. 1991).  The

government's initiation of prosecution because of a defendant's "great notoriety"

as a protester would not, as a matter of law, be an impermissible basis for

prosecution.  United States v. Hazel, 696 F.2d 473, 475 (6th Cir.

1983).  See also United States v. Kelley, 769 F.2d 215, 217 (4th

Cir. 1985).

      The fact that some tax evaders and protesters elude prosecution is

insufficient to establish selective prosecution.  Brewer, 681 F.2d

at  974.  The defendant must show that others similarly situated were not

prosecuted and that the prosecution was based on some impermissible

consideration, such as race or religion.  United States v. Amon,

669 F.2d 1351, 1356-57 (10th Cir. 1981). 

See also United States v. Rice, 659 F.2d 524,

527 (5th Cir. 1981) ("selection for prosecution based in part upon the potential

deterrent effect on others serves a legitimate interest in prompting more general

compliance with the tax laws").  

      As the Fourth Circuit stated in Kelley, 769 F.2d at 218:

      There is no impermissible selectivity in a prosecutorial decision to 

      prosecute the ringleader and instigator, without prosecuting his 

      foolish followers, when a prosecution of the instigator can be 

      expected to bring the whole affair to an end.

"Unless one can show that the tax laws are deployed against protesters in

retaliation for the exercise of their rights, a selective prosecution argument

will fail."  United States v. Wilson, 639 F.2d 500, 505 (9th Cir.

1981).

      40.05[3][c]  Freedom of Speech

      In Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), the Supreme

Court held that "the constitutional guarantees of free speech and free press do

not permit a state to forbid or proscribe advocacy of the use of force or of law

violation except where such advocacy is directed to inciting or producing

imminent lawless action and is likely to incite or produce such action."  Thus,

the Court created an exception to First Amendment protection for speech that

incites imminent lawless activity, as opposed to speech that merely advocates

violation of law, which may still be constitutionally protected.

      Where a defendant's speech is combined with action, e.g., where a

protester both encourages and is actually involved in the preparation of protest

returns for others, the defendant has gone beyond the protection of the First

Amendment and may be subject to criminal prosecution.  United States v.

Fleschner, 98 F.3d 155, 158-59 (4th Cir. 1996); United States v.

Knapp, 25 F.3d 451, 456-57 (7th Cir. 1994) (conduct beyond mere advocacy

exists where defendant knowingly advised clients to claim deductions to which

they were not entitled); United States v. Citrowske, 951 F.2d 899,

901 (8th Cir. 1991) ("freedom of speech is not so absolute as to protect speech

or conduct which otherwise violates or incites a violation of the tax law");

United States v. Rowlee, 899 F.2d 1275, 1279-80 (2d Cir.

1990); United States v. Kelley, 769 F.2d 215, 217 (4th Cir. 1985);

United States v. Freeman, 761 F.2d 549, 552 (9th Cir. 1985);

United States v. Damon, 676 F.2d 1060, 1062 (5th Cir. 1982).  

      A taxpayer cannot claim protection under the First Amendment simply by

characterizing his filing of false information and tax returns as "petitions for

redress."  United States v. Kuball, 976 F.2d 529, 532 (9th Cir.

1992).  Yet, where the protester's activity is arguably limited to the mere

giving of advice or counsel and there is no involvement in the actual preparation

of tax returns or causing returns to be prepared, there may be a viable First

Amendment defense.  But see United States v.

Barnett, 667 F.2d 835, 842 (9th Cir. 1982) ("The first amendment does not

provide a defense to a criminal charge simply because the actor uses words to

carry out his illegal purpose.").

      There are a few tax protester cases that address the issue of when

providing advice or counsel steps beyond the protection of the First Amendment. 

In United States v. Buttorff, 572 F.2d 619, 624  (8th Cir. 1978),

the Eighth Circuit held that the defendant's activities went beyond the scope of

protection of the First Amendment, stating: 

      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.

See also United States v. Moss, 604 F.2d 569,

571 (8th Cir. 1979); Freeman, 761 F.2d at 551 (section 7206(2)

charges based on Freeman's instructional seminars reversed due to trial court's

failure to instruct that First Amendment defense was a question of fact for the

jury).

      "Counseling is but a variant of the crime of solicitation, and the First

Amendment is quite irrelevant if the intent of the actor and the objective

meaning of the words used are so close in time and purpose to a substantive evil

as to become part of the ultimate crime itself."  Freeman, 761 F.2d

at 552.  See also Kelley, 769 F.2d at 217.

      In United States v. Turano, 802 F.2d 10, 12 (1st Cir. 1986),

the defendant in a section 7203 failure-to-file case claimed that his First

Amendment rights had been violated by the introduction of evidence of his "tax

protest" activities and instructions to the jury about "tax protesters."  The

court rejected this argument, explaining that the defendant (802 F.2d at 12):

      . . . was not convicted of speaking out against taxation or for 

      encouraging others not to file but rather for willfully failing to 

      file his own returns.  In order to determine his state of mind, the 

      jury was entitled to know what he said and did regarding federal 

      income taxation.  The First Amendment protects the appellant's right 

      to express beliefs and opinions; it does not give him the right to 

      exclude beliefs and opinions from a jury properly concerned with his 

      motivations for failing to file.

40.05[4]  District Court Lacks Jurisdiction of Title 26 Offenses

      40.05[4][a]   Generally

      Despite protesters' claims to the contrary, it is clear that United States

District Courts have jurisdiction over criminal offenses enumerated in the

Internal Revenue Code, notwithstanding want of a statute within Title 26

conferring such jurisdiction.  Section 3231 of Title 18 of the United States Code

gives the district courts original jurisdiction over "all offenses against the

laws of the United States" and the Internal Revenue Code defines offenses against

the laws of the United States.  United States v.

Rosnow, 977 F.2d 399, 412 (8th Cir. 1992); Salberg v. United

States, 969 F.2d 379, 384 (7th Cir. 1992); United States v.

Huguenin, 950 F.2d 23, 25 n.2 (1st Cir. 1991); United States v.

Masat, 948 F.2d 923, 934 (5th Cir. 1991); United States v.

Collins, 920 F.2d 619, 629 (10th Cir. 1990) (citing cases) ("it defines

credulity to argue that the district court lacked jurisdiction to adjudicate" 26

U.S.C. § 7201 action); United States v. Ward, 833 F.2d 1538,

1539 (11th Cir. 1987);  United States v. Bressler, 772 F.2d 287,

293 n.5 (7th Cir. 1985); United States v. Isenhower, 754 F.2d 489,

490 (3d Cir. 1985); United States v. Przybyla, 737 F.2d 828, 829

(9th Cir. 1984); United States v. Eilertson, 707 F.2d 108, 109

(4th Cir. 1983).  See also United States v.

McMullen, 755 F.2d 65, 67 (6th Cir. 1984).

      The argument that the United States has jurisdiction only over the District

of Columbia, federal enclaves and territories, and possessions of the United

States has also been rejected.  See  26 U.S.C.

§§ 7701(a)(9) ("The term 'United States' when used in a geographical

sense includes only the States and the District of Columbia") and 7701(c) ("The

term 'includes' . . . when used in a definition contained in this title shall not

be deemed to exclude other things otherwise within the meaning of the term

defined");  District of Columbia v. John R. Thompson Co., 346 U.S.

100, 109 (1953);  United States v. Mundt, 29 F.3d 233, 237 (6th

Cir. 1994) (argument that district court lacks jurisdiction over Michigan

resident "completely without merit and patently frivolous"); United States

v. Steiner, 963 F.2d 381, (9th Cir. 1992);  Collins, 920

F.2d at 629; Lonsdale v. United States, 919 F.2d

1440, 1448 (10th Cir. 1990); Ward, 833 F.2d at 1539.

      40.05[4][b]  The Gold-Fringed Flag ("The American Maritime Flag of War") [FN13]

      Various litigants, including tax protesters, argue that the placement in

a court room of a gold-fringed American flag denotes: (1) admiralty jurisdiction;

(2) suspension of constitutional governmental functions; and/or (3)  martial law. 

Litigants call the gold-fringed American flag the "maritime flag of war," and

claim its display signifies "[d]eprivation of rights under color of law." 

McCann v. Greenway, 952 F.Supp. 647, 649 (W.D.Mo. 1997).  They

maintain that a court that flies a gold-fringed flag: (1) lacks jurisdiction over

those coming before it; and (2) deprives the litigant of due process rights.

      Not surprisingly, courts uniformly reject such claims.  See Salman 

v. Nevada, 104 F.Supp.2d 1262, 1266 (D.Nev. 2000) ("Plaintiff's argument 

that the gold fringe around an American flag in a courtroom designates 

admiralty jurisdiction is  . . .  wholly frivolous"); Schneider v. 

Schlaefer, 975 F.Supp. 1160, 1161-64 (E.D.Wis. 1997) (contention that 

court proceedings were conducted unconstitutionally because of flag form 

rejected; claims or defenses based upon preeminence of American "flag of 

peace" over all other flags frivolous and sanctionable);  Hovind v. 

Kelly, No. 3:96CV579/RV, 1997 WL 327100 (N.D.Fla. Mar. 17, 1997); 

Jones v. Watson, No. 5:96CV0640, 1997 WL 162990 (N.D.Ohio Feb. 4, 

1997); Goode v. Foster, No. 96-1348-WEB, 1996 WL 740707 (D.Kan. Sept. 

30, 1996); Leverenz v. Torluemlu, No. 96 C 2886, 1996 WL 341468, at 

*1 & n.3 (N.D.Ill. June 17, 1996); United States v. Greenstreet, 912 

F.Supp. 224, 229 (N.D.Tex. 1996) (rejecting argument that display of fringed 

flag limits federal court to admiralty jurisdiction); Moeller v. 

D'Arrigo, 163 F.R.D. 489, 491 & n.1 (E.D.Va. 1995);  Vella v. 

McCammon, 671 F.Supp. 1128, 1129 (S.D.Tex. 1987) (rejecting contention 

that federal court flying fringed flag lacks jurisdiction to impose penalty 

for criminal contempt).

      "[I]n the interests of killing this argument for good, and to facilitate

appellate review," Judge Whipple of the United States District Court for the

Western District of Missouri has provided a history of the flag, and concluded

that the litigant's claims of constitutional deprivation:

      . . . must be dismissed because his factual predicate is incorrect as 

      a matter of law.  Even if the Army or Navy do display United States 

      flags surrounded by yellow fringe, the presence of yellow fringe does 

      not necessarily turn every such flag into a flag of war. Far from it: 

      in the words of the Adjutant General of the Army, "[i]n flag 

      manufacture a fringe is not considered to be a part of the flag, and 

      it is without heraldic significance." . . .  If fringe attached to the 

      flag is of no heraldic significance, the same is true a 

      fortiori of an eagle gracing the flagpole.  Nor are the fringe or 

      eagle of any legal significance. . . . Jurisdiction is a matter of 

      law, not a child's game wherein one's power is magnified or diminished 

      by the display of some magic talisman.

McCann v. Greenway, 952 F.Supp. at 650-651 (citations omitted). 

      Trial attorneys responding to a motion to dismiss based on a gold-fringed

flag jurisdictional argument should utilize Judge Whipple's history and

arguments.

40.05[5]  Filing Income Tax Returns Is Voluntary, Not Mandatory 

      In Flora v. United States, 362 U.S. 145, 175 (1960), a case

in which the Supreme Court held that the government could, if it so

desired, collect taxes by distraint, the Court noted that "[o]ur tax system is

based upon voluntary assessment and payment and not upon distraint."  

      Protesters, taking the Court's observation out of context, often argue that

the filing of income tax returns is voluntary.  United States v. Gerads,

999 F.2d 1255, 1256 (8th Cir. 1993) ("Any assertion that the payment of

income taxes is voluntary is without merit"); Lonsdale v. United

States, 919 F.2d 1440, 1448 (10th Cir. 1990);  Wilcox

v. Commissioner, 848 F.2d 1007, 1008 (9th Cir. 1988); Newman v.

Schiff, 778 F.2d 460, 467 (8th Cir. 1985); United States v.

Witvoet, 767 F.2d 338, 339 (7th Cir. 1985).

      To the contrary, the filing of tax returns is not voluntary.  Section

6012(a)(1)(A) of Title 26 of the United States Code requires that "every

individual who earns a threshold level of income must file a tax return."  If the

taxpayer received more than the statutory amount of gross income, then he or she

is obligated to file a return.  United States v. Tedder, 787 F.2d

540, 542 (10th Cir. 1986); United States v. Richards, 723 F.2d 646,

648 (8th Cir. 1983).  See also United States v.

Pilcher, 672 F.2d 875, 877 (11th Cir. 1982) ("Every income earner is

required to file an income tax return"); United States v. Hurd,

549 F.2d 118 (9th Cir. 1977).

      A taxpayer who does not file faces both civil and criminal penalties:

      In assessing income taxes, the Government relies primarily upon the 

      disclosure by the taxpayer of the relevant facts . . . in his annual 

      return.  To ensure full and honest disclosure, to discourage 

      fraudulent attempts to evade the tax, Congress imposes sanctions . . . 

      . criminal or civil.

Helvering v. Mitchell, 303 U.S. 391, 399 (1938).

      Under Cheek v. United States, 498 U.S. 192 (1991), a

protester could, of course, present evidence that he holds a good faith belief

that the payment of taxes is "voluntary."  See United States

v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).

40.05[6]  Wages Are Not Income

      A common defense raised by protesters is that salaries and wages are not

"income" within the meaning of the Sixteenth Amendment, which grants Congress the

power "to lay and collect taxes on incomes, from whatever source derived . . ."

      The Supreme Court has defined income as "the gain derived from capital,

from labor, or from both combined."  Eisner v. Macomber, 252 U.S.

189, 207 (1920).  Section 61(a) of Title 26 of the United States Code defines

gross income as "all income from whatever source derived, including  . . . (1)

Compensation for services."  Wages or salaries received in exchange for services

rendered are income that must be reported on a tax return.  Metcalf & Eddy

v. Mitchell, 269 U.S. 514, 519 (1926); Davis v. United

States, 742 F.2d 171, 172 (5th Cir. 1984); United States v.

Moore, 692 F.2d 95, 97 (10th Cir. 1979); Funk v.

Commissioner, 687 F.2d 264, 265 (8th Cir. 1982); United States v.

Lawson, 670 F.2d 923, 925 (10th Cir. 1982); United States v.

Romero, 640 F.2d 1014, 1016 (9th Cir. 1981); United States v.

Buras, 633 F.2d 1356, 1359-61 (9th Cir. 1980); Wilson

v. United States, 412 F.2d 694, 695 (1st Cir. 1969).

      Courts uniformly interpret "income" to include wages and salaries. 

United States v. Becker, 965 F.2d 383, 389 (7th Cir. 1992);

United States v. Sloan, 939 F.2d 499, 500 (7th Cir. 1991);

United States v. Connor, 898 F.2d 942, 943-44 (3d Cir. 1990);

United States v. Sassak, 881 F.2d 276, 281 (6th Cir. 1989);

United States v. Tedder, 787 F.2d 540, 542 n.3 (10th Cir.

1986); United States v. Burton, 737 F.2d 439, 441 (5th Cir. 1984);

United States v. Richards, 723 F.2d 646, 648 (8th Cir. 1983);

Buras, 633 F.2d at 1361.  See also Jones v. United

States, 551 F. Supp. 578, 580 (N.D.N.Y. 1982), for a list of cases

holding that wages are included in gross income.

40.05[7]  Defendant Not A "Person" or "Citizen"; District Court Lacks Jurisdiction 

          Over Non-Persons and State Citizens

      40.05[7][a]  Generally

      Protesters have often argued that they are not liable for federal income

taxes because they are not "persons" subject to taxation under the Internal

Revenue Code.  A citizen or resident of the United States is included in the

Internal Revenue Code definition of a United States person.  26 U.S.C.

§7701(a)(30)(A).  The "not a person" argument has been dismissed by the

courts as "frivolous," "patently frivolous," "fatuous," and "obviously

incorrect."  See Lonsdale v. United States, 919 F.2d 1440, 1448

(10th Cir. 1990); United States v. Karlin, 785 F.2d 90, 91 (3d Cir.

1986); Biermann v. Commissioner of Internal Revenue, 769 F.2d 707,

708 (11th Cir. 1985); United States v. Rice, 659 F.2d 524, 528 (5th

Cir. Unit A 1981); United States v. Romero, 640 F.2d 1014, 1016

(9th Cir. 1981);.  Similar arguments asserting that the defendant was an

"individual" and therefore not a "taxpayer" have also been rejected.

See United States v. Collins, 920 F.2d 619, 629

(10th Cir. 1990); Lonsdale, 919 F.2d at 1448; United States

v. Ward, 833 F.2d 1538, 1539 (11th Cir. 1987); United States v.

Studley, 783 F.2d 934, 937 (9th Cir. 1986).  "All individuals, natural

or unnatural, must pay federal income tax on their wages."  Lovell v.

United States, 755 F.2d 517, 519 (7th Cir. 1984).  

      Another popular protester argument is the contention that the protester is

not subject to federal law because he or she is not a citizen of the United

States, but a citizen of a particular "sovereign" state.  This argument seems to

be based on an erroneous interpretation of 26 U.S.C. §3121(e)(2), which

states in part: "The term 'United States' when used in a geographical sense

includes the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American

Samoa."  The "not a citizen" assertion directly contradicts the Fourteenth

Amendment, which states "all persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the United States and

of the state wherein they reside." The argument has been rejected time and again

by the courts.  See United States v. Cooper, 170 F.3d

691, 691(7th Cir. 1999) (imposed sanctions on tax protester defendant making

"frivolous squared" argument that only residents of Washington, D.C. and other

federal enclaves are citizens of United States and subject to federal tax laws);

United States v. Mundt, 29 F.3d 233, 237 (6th Cir. 1994) (rejected

"patently frivolous" argument that defendant was not a resident of any "federal

zone" and therefore not subject to federal income tax laws); United States

v. Hilgeford, 7 F.3d 1340, 1342 (7th Cir. 1993) (rejected "shop worn"

argument that defendant is a citizen of the "Indiana State Republic" and

therefore an alien beyond the jurisdictional reach of the federal courts); 

United States v. Gerads, 999 F.2d 1255, 1256-57 (8th Cir. 1993)

(imposed $1500 sanction for frivolous appeal based on argument that defendants

were not citizens of the United States but instead "Free Citizens of the Republic

of Minnesota" not subject to taxation); United States v. Silevan,

985 F.2d 962, 970 (8th Cir. 1993) (rejected as "plainly frivolous" defendant's

argument that he is not a "federal citizen"); United States v.

Jagim, 978 F.2d 1032, 1036 (9th Cir. 1992) (rejected "imaginative"

argument that defendant cannot be punished under the tax laws of the United

States because he is a citizen of the "Republic" of Idaho currently claiming

"asylum" in the "Republic" of Colorado) United States v. Masat,

948 F.2d 923, 934 (5th Cir. 1991); United States v. Sloan, 939 F.2d

499, 500-01 (7th Cir. 1991) ("strange argument" that defendant is not subject to

jurisdiction of the laws of the United States because he is a "freeborn natural

individual" citizen of the State of Indiana rejected); United States v.

Price, 798 F.2d 111, 113 (5th Cir. 1986) (citizens of the State of Texas

are subject to the provisions of the Internal Revenue Code).

      40.05[7][b]  Filing U.S. Nonresident Alien Income Tax Return

(Form 1040NR)

      Some protesters who argue that they are citizens of a "sovereign state"

also claim to be exempt from federal taxes because they are nonresident aliens. 

This argument is flawed because (1) persons who were born in a state within the

United States are citizens of the United States, not nonresident aliens (U.S.

Const., Amend. XIV, §1; 26 U.S.C. §7701(b)(1)(B)); and (2) nonresident

alien individuals are taxed on income from sources within the United States and

on sources outside the United States effectively connected with a trade or

business in the United States (26 U.S.C. § 871; Treas. Reg. §1.871-

1(b)).  See also Hofstetter v. Commissioner of Internal Revenue,

98 T.C. 695, 697 (1992).  Courts have ruled the non-resident alien arguments put

forth by individuals born in the United States to be frivolous. 

See United States v. Hilgeford, 7 F.3d 1340, 1342

(7th Cir. 1993);  Betz v. United States, 40 Fed. Cl. 286, 294-95

(1998);  United States v. LaRue, 959 F. Supp. 959, 961 (C.D. Ill.

1997); In re Weatherley, 169 B.R. 555, 558-559 (1994).

      Sometimes protesters file false Forms 1040NR (U. S. Nonresident Alien

Income Tax Return)  claiming to be exempt from federal income taxation. 

See, e.g., United States v. Ambort, 193 F.3d 1169,

1170 (10th Cir. 1999) (dismissal of denial of interlocutory appeal of motion to

dismiss indictment charging defendants with violations of 18 U.S.C. §371 and

26 U.S.C. §7206(2) for teaching seminar attendees how to complete false

Forms 1040NR), cert. denied, 528 U.S. 1190 (2000).  One way to

prove the protester's bad motive is to show that he or she did not file state tax

returns or pay state or local taxes.  Another way is to show the protester's U.S.

citizenship through a birth certificate, passport application, military record,

job application, federal voting record, or receipt of social security or other

federal benefits.

      Depending on what information is included on the form, the filing of a

false Form 1040NR may be charged as a false claim for refund (18 U.S.C.

§287), a false income tax return (26 U.S.C. §7206(1)), or a false

statement (18 U.S.C. §1001).  For further guidance on whether the Form

1040NR filed in a particular case can be charged as a false return, 

See Chapter 40.03, supra, for a discussion of what

constitutes a return.  A violation of 18 U.S.C. § 1001 can be an appropriate

charge for a false Form 1040NR when it either lacks the required signature or

does not include enough information to be regarded as a tax return.  For a

discussion of section 1001, see Chapter 24.00, supra.

40.05[8]  IRS Has Duty to Prepare Returns for Taxpayer (26 U.S.C. §

6020(b))

      Protesters have argued that 26 U.S.C. § 6020(b)(1) [FN14] obligates

the Internal Revenue Service to prepare a tax return for an individual who does

not file.  There is no merit to this claim.  This provision merely provides the

Internal Revenue Service with a civil mechanism for assessing the tax liability

of a taxpayer who has failed to file a return.  The civil mechanism is often

referred to as the preparation of a "substitute for return" or "SFR."  Section

6020(b) does not require the Internal Revenue Service to prepare tax returns for

individuals who fail to file, nor does it excuse the taxpayer from criminal

liability for that failure. See United States v. Cheek, 3 F.3d

1057, 1063 (7th Cir. 1993); In re Bergstrom, 949 F.2d 341, 343

(10th Cir. 1991); United States v. Barnett, 945 F.2d 1296, 1300

(5th Cir. 1991); United States v. Schiff, 919 F.2d 830, 832 (2nd

Cir. 1990); United States v. Poschwatta, 829 F.2d 1477, 1483

(9th Cir. 1987); United States v. Verkuilen, 690 F.2d 648, 657

(7th Cir. 1982); United States v. Millican, 600 F.2d 273, 278

(5th Cir. 1979); United States v. Tarrant, 798 F. Supp. 1292, 1302-

03 (E.D. Mich. 1992).

      When a defendant raises this argument during trial, the court may properly

instruct the jury that while section 6020(b) "authorizes the Secretary to file

for a taxpayer, the statute does not require such a filing, nor does it relieve

the taxpayer of the duty to file."  United States v. Stafford,

983 F.2d 25, 27 (5th Cir. 1993); accord United States v.

Powell, 955 F.2d 1206, 1213 (9th Cir. 1992).  However, an instruction

pertaining to section 6020(b) "must not be framed in a way that distracts the

jury from its duty to consider a defendant's good-faith defense." 

Powell, 955 F.2d at 1213.  It may be wise to request that an

instruction on the meaning of section 6020(b) be coupled with a reminder to the

jury that the issue in a criminal tax case is not the validity of the defendant's

interpretation of §6020(b), but whether the defendant had a good faith

belief that his or her actions were in compliance with the tax laws. 

Powell, 955 F.2d at 1213.

40.05[9]  Violation of the Privacy Act

      Courts have also rejected Privacy Act (Title 5, U.S.C. § 552(a))

challenges to the IRS Form 1040 instruction booklet and to Forms W-4. 

United States v. Bressler, 772 F.2d 287, 292 (7th Cir. 1985) ("the

IRS notice . . . adequately and clearly informs taxpayers that filing is

mandatory"); United States v. Dack, 747 F.2d 1172, 1176 n.5

(7th Cir. 1984) (not error to refuse to dismiss for failure to publish, pursuant

to Privacy Act, notice of specific criminal penalty which might be imposed);

United States v. Bell, 734 F.2d 1315, 1318 (8th Cir. 1984) (Privacy

Act does not require IRS to inform taxpayer of specific penalties for failure to

file);  United States v. Wilber, 696 F.2d 79, 80 (8th Cir. 1982)

("the Privacy Act does not require notice of a specific criminal penalty which

might be imposed on the errant taxpayer"); United States v. Amon,

669 F.2d 1351, 1358 (10th Cir. 1982); United States v. Annunziato,

643 F.2d 676, 678 (9th Cir. 1981) (notice in Form W-4 instructions adequate);

United States v. Rickman, 638 F.2d 182, 183 (10th Cir. 1980) (Form

1040 instructions adequate); Field v. Brown, 610 F.2d 981, 987-88

(D.C. Cir. 1079).

40.05[10]  Federal Reserve Notes Are Not Legal Tender

      Some protesters have argued that because their wages were paid in Federal

Reserve Notes,  i.e., U.S. currency, they need not pay tax on those wages. 

Schiff v. United States, 919 F.2d 830, 831 (2d Cir. 1990);

United States v. Davenport, 824 F.2d 1511, 1521 (7th Cir. 1987);

United States v. Ware, 608 F.2d 400, 402 (10th Cir. 1979);

United States v. Edelson, 604 F.2d 232, 233 (3d Cir. 1979);

United States v. Rifen, 577 F.2d 1111, 1115 (8th Cir. 1978);

Mathes v. Commissioner, 576 F.2d 70, 71 (5th Cir. 1978);

United States v. Gardiner, 531 F.2d 953, 955 (9th Cir. 1976);

United States v. Whitesel, 543 F.2d 1176, 1180 (6th Cir. 1976);

Milam v. United States, 524 F.2d 629 (9th Cir. 1974); United

States v. Scott, 521 F.2d 1188, 1192 (9th Cir. 1975); United States

v. Daly, 481 F.2d 28, 30 (8th Cir. 1973); United States v.

Porth, 426 F.2d 519, 523 (10th Cir. 1970).

      They argue that the Constitution requires coins in gold and silver, and

that Federal Reserve Notes are therefore not valid currency or legal tender. 

Thus, reason the protesters, those who possess Federal Reserve Notes cannot be

subject to a tax on them.  United States v. Ellsworth, 547 F.2d

1096, 1097 (9th Cir. 1976).  This argument has been uniformly rejected. 

See cases, supra, and Sanders v.

Freeman, 221 F.3d 846, 849, 855 (6th Cir. 2000); Miller v. United

States, 868 F.2d 236, 239-41 (7th Cir. 1989);  United States v.

Brodie, 858 F.2d 492, 498 (9th Cir. 1988); United States v.

Buckner, 830 F.2d 102, 103 (7th Cir. 1987); United States v.

Dube, 820 F.2d 886, 891 (7th Cir. 1987); United States v.

Martin, 790 F.2d 1215, 1217 (5th Cir. 1986);  United States v.

Condo, 741 F.2d 238, 239 (9th Cir. 1984); United States v.

Moore, 627 F.2d 830, 832 (7th Cir. 1980).  

      Congress is empowered "[t]o coin Money, regulate the value thereof, and of

foreign coins, and fix the Standard of weights and measures" (U.S. Const. art.

I, § 8, cl. 5), and 12 U.S.C. § 411 and 32 U.S.C. § 5103 state

that Federal Reserve Notes are legal tender.  

      The Supreme Court long ago held that "[t]he constitutional authority of

Congress to provide a currency for the whole country is . . .  firmly

established."  The Legal Tender Cases (Julliard v. Greenman), 110

U.S. 421, 446 (1884).  See also The Legal Tender Cases (Knox v.

Lee), 79 U.S. 457, 462 (1871); United States v. Anderson,

584 F.2d 369, 374 (10th Cir. 1978); Rifen, 577 F.2d at 1112,

1120.

40.05[11]  Form W-2 As Substitute for Form 1040

      Some protesters have relied on a 1946 Federal Register regulation, allowing

the filing of a Form W-2 in lieu of a Form 1040 tax return, to argue that they

were not required to file a return because their employer sent the IRS a copy of

their W-2 form.  See United States v. Lussier,

929 F.2d 25, 31 (1st Cir. 1991); United States v. Birkenstock,

823 F.2d 1026, 1030 (7th Cir. 1987); Manka v. United States, No.

CIV.A.89N49, 1993 WL 268386, at *4 (D.Colo. Apr. 6, 1993) ("merely allowing one's

employer to file a W-2 form does not fulfill the requirements set forth by the

treasury regulations.  See Treas. Reg. § 1.6011-1(b) . . ."). 

      The court in Birkenstock noted two problems with this

argument:  (1) that particular 1946 Federal Register regulation was eliminated

when the Federal Register was codified in the 1949 CFR; and, (2) even if the 1946

regulation survived the CFR codification, the regulation provides that the

employee's original Form W-2 can substitute for a Form 1040; therefore, the

employer's filing of a copy of the W-2 would not suffice. 

Birkenstock, 823 F.2d at 1030.

      However, the defendant could testify regarding his good faith reliance on

the regulation in deciding not to file a return.  The 1946 regulation itself

could not be admitted as an exhibit.  Lussier, 929 F.2d at 31.

40.05[12]  Paperwork Reduction Act ("PRA") Defense

      The Paperwork Reduction Act of 1980, 44 U.S.C. § 3501

et seq. ("PRA"), was enacted to limit federal agencies' information

requests that burden the public.  The "Public Protection" provision of the PRA

states that no person "shall be subject to any penalty for failing to maintain

or provide information to any agency if the information collection request

involved does not display a current control number assigned by the Office of

Management and Budget [OMB] Director."  44 U.S.C. § 3512.

      Protesters claim that they cannot be penalized for failing to file Form

1040 because the instructions and regulations associated with the Form 1040 do

not display any OMB control number.  Courts uniformly reject this argument on

different theories.  Some courts have simply noted that the PRA applies to the

forms themselves, not to the instruction booklets, and because the Form 1040 does

have a control number, there is no PRA violation.  See

Salberg v. United States, 969 F.2d 379, 383-84 (7th Cir. 1992);

United States v. Holden, 963 F.2d 1114, 1116 (8th Cir. 1992);

United States v. Dawes, 951 F.2d 1189, 1191-93 (10th Cir. 1991);

United States v. Wunder, 919 F.2d 34, 38 (6th Cir. 1990).  Other

courts have held that Congress created the duty to file returns in 26 U.S.C.

§ 6012(a) and "Congress did not enact the PRA's public protection provision

to allow OMB to abrogate any duty imposed by Congress."  United States v.

Neff, 954 F.2d 698, 699 (11th Cir. 1992).  See also United

States v. James, 970 F.2d 750, 753 n.6 (10th Cir. 1992) (lack of OMB

number does not violate PRA); Salberg v. United States, 965 F.2d

379, 383-84 (7th Cir. 1992); United States v. Hicks, 947 F.2d 1356,

1359 (9th Cir. 1991) (failure to display OMB number on tax form is not PRA

violation and does not render governmental action void); United States v.

Bentson, 947 F.2d 1353, 1355 (9th Cir. 1991) (defendant convicted of

violating a statute requiring him to file, not a regulation lacking OMB

number); United States v. Kerwin, 945 F.2d 92 (5th Cir. 1991)

(per curiam) (defendant was convicted under statutory requirement that he

file return and since statute is not an information request, there is no

violation of the PRA);  Lonsdale v. United States, 919 F.2d 1440,

1443-45 (10th Cir. 1990) ("PRA" not enacted "to create loophole in the tax

code").

40.05[13]  Lack of Publication in the Federal Register

      Protesters have occasionally argued that Form 1040 and its instructions

constitute a "rule" for purposes of the Administrative Procedure Act (APA) and

therefore must be published in the Federal Register.  This defense has been

deemed "meritless."  United States v. Bentson, 947 F.2d 1353, 1360

(9th Cir. 1991).

      The tax code itself, a statute and not a regulation, imposes the duty to

file a return.  See 26 U.S.C. 6012.  See also

United States v. Bowers, 920 F.2d 220, 221-23 (4th Cir. 1990) (APA

protects only those with no notice: to reverse conviction, court would need to

find that: (1) the statutes provided no notice of obligation to pay taxes, (2)

the IRS forms and offices were secret -- although 200 million Americans know

about them, and (3) the defendants, who had previously filed returns, had

forgotten about the required forms and the IRS offices); United States v.

Kahn, 753 F.2d 1208, 1222 (3d Cir. 1985) (claim that IRS failure to

publish interpretive guidelines in Federal Register violates Title 5, U.S.C.

§ 552(a)(1)(D), "totally devoid of merit").

40.05[14]  Taxpayer's Name in Capital Letters or Misspelled

      A tax protester will sometimes argue that he is not the individual named

in the indictment or in court proceedings because his name is therein

capitalized.  To similar effect, the protester will sometimes add strange

punctuation to his name, again claiming that the individual named in the

documents is not he.

      In United States v. Lindsay, 184 F.3d 1138, 1144 (10th Cir.),

cert. denied, 528 U.S. 981 (1999), the reviewing court affirmed a

district court's decision not to accord such a protester a sentencing reduction

for acceptance of responsibility, where he refused to: (1) comply with court

procedures; (2) review court documents; and (3) respond to questions the court

posed, because he claimed not to be the named party.  See also Wilcox v. 

Commissioner, 848 F.2d 1007, 1008 (9th Cir. 1988) (calling "baseless" 

defendant's contention that the indictment must be dismissed because his 

name, spelled in capital letters, "is a fictitious name used by the 

government to tax him improperly as a business"); United States v. 

Washington, 947 F.Supp. 87, 92 (S.D.N.Y. 1996); United States v. 

Feinstein, 717 F.Supp. 1552, 1557 (S.D.Fla. 1989). 

      As a practical matter, the prosecutor should have at the ready certified

copies of public documents, such as the defendant's birth certificate, passport

application, or driver's license, to rebut assertions that the defendant is not

the person named in the proceedings.

40.05[15]  Tax Protest Against Government Spending

      Courts have long held that a taxpayer's convictions do not entitle him to

refuse to file or to pay.  United States v. Lee, 455 U.S. 252, 260

(1982) ("[t]he tax system could not function if denominations were allowed to

challenge the tax systems because tax payments were spent in a way that violates

their religious beliefs"); United States v. Neff, 615 F.2d 1235,

1237, 1240 (9th Cir. 1980); Packard v. United States, 7 F.Supp.2d

143, 144 (D.Conn. 1998), aff'd, 198 F.3d 234 (2d Cir. 1999).  

      Failure to furnish information on income tax returns cannot be justified

by an asserted disagreement with tax laws or in protest against government

policies.  United States v. Pilcher, 672 F.2d 875, 877 (11th Cir.

1982).  A taxpayer who contends that paying taxes would require him to violate

his pacifist religious beliefs cannot take refuge in the First Amendment.  A

taxpayer "has no First Amendment right to avoid federal income taxes on religious

grounds."  United States v. Ramsey, 992 F.2d 831, 833 (8th Cir.

1993).

      A protester who contends that his refusal to pay taxes or file returns is

justified by his disagreement with government policies or spending plans is not

entitled to a jury instruction on his theories.  In fact, arguments challenging

"the constitutionality of or validity of the tax laws are precluded because they

are necessarily premised on a defendant's full knowledge of the law . . . and

therefore make irrelevant the issue of willfulness."  Cheek v. United

States, 498 U.S. 192, 203 (1991).

---

                           APPENDIX

                 SAMPLE MOTION IN LIMINE

                  Motion In Limine Regarding Anticipated

                  Defense "Evidence" and Argument

      The government respectfully requests that the Court preclude the 

defendant from presenting at trial "evidence" and/or legal arguments, as 

described below, which are irrelevant and/or would invade the Court's 

province in instructing the jury with regard to the law.

      It is anticipated, from documents the defendant has submitted to the 

government both prior to and subsequent to indictment, that the defendant 

will attempt to present "evidence" and/or legal arguments regarding the 

following defenses:

      [Here, any frivolous arguments the defendant has put forth may be 

      listed, along with cases discrediting such arguments.]

      Defendant Should Be Precluded from Offering "Evidence" and/or 

      Argument Which is Irrelevant and Which Would Invade The Court's 

      Province of Instructuring The Jury Regarding The Law

      Under the Federal Rules of Evidence, the jury should not be exposed to 

inadmissible evidence.  Fed. R. Evid. 103(c).  It is fundamental that 

"evidence which is not relevant is not admissible." Fed. R. Evid. 402.  

"Relevant evidence" is defined as "evidence having any tendency to make the 

existence of any fact that is of consequence to the determination of the 

action more probable or less probable than it would be without the 

evidence."  Fed. R. Evid. 401. Even if evidence is arguably "relevant," the 

court should still exclude the evidence "if its probative value is 

substantially outweighed by the danger of  unfair prejudice, confusion of 

the issues, or misleading the jury."  Fed. R. Evid. 403; United States v. 

Johnson, 820 F.2d 1065, 1069 (9th Cir. 1987); United States v. 

Willie, 941 F.2d 1384, 1395-96 (10th Cir. 1991); United States v. 

Buckner, 830 F.2d 102 (7th Cir. 1987).

      It is also well established that "[t]he court acts as a jury's sole 

source of the law."  United States v. Poschwatta, 829 F.2d 1477, 1483 

n. 4 (9th Cir. 1987) (citation omitted).  As the court said in Cooley v. 

United States, 501 F.2d 1249, 1253-54 (9th Cir. 1974):

      The law is given to the jury by the court and not introduced as 

      evidence. . . . Obviously, it would be most confusing to a jury to 

      have legal material introduced as evidence and then argued as to what 

      the law is or ought to be.

Accord Willie, 941 F.2d at 1396.

      A. The defense should be precluded from presenting "evidence" or 

            argument relating to what the law should be

      Federal trial courts have struggled over precisely how to allow a 

criminal tax defendant to present a good faith defense to the element of 

willfulness.  Perhaps the best discussion of the line between permissible 

and impermissible evidence of good faith was offered by the court in 

Willie, 941 F.2d 1384, a case involving tax protester defenses.  The 

court noted (941 F.2d at 1392-93):

      'Willfulness' is defined as the "voluntary, intentional violation of a 

      known legal duty."  Cheek v. United States, 111 S. Ct. 

      at 610 (emphasis added).  To be a relevant defense to willfulness 

      then, [a defendant] because of his belief or misunderstanding, must 

      not have known he had a legal duty. Id. at 611 (defendant must 

      be "ignorant of his duty") . . . .  In Cheek, the Supreme Court 

      stated that "a defendant's views about the validity [or 

      unconstitutionality] of the tax statutes are irrelevant to the issue 

      of willfulness [and] need not be heard by the jury . . . [I]t makes no 

      difference whether the claims of invalidity are frivolous or have 

      substance."  Id. at 613 . . . [P]roof of the reasonableness of 

      a belief that he should not have a duty only proves the reasonableness 

      of the defendant's disagreement with the existing law and is, 

      therefore, properly excluded as irrelevant.

      Cheek, as elucidated in Willie, defines the good faith 

defense to willfulness in tax cases: a mistaken belief by the defendant that 

the law did not require him or her to file a tax return or pay a tax.  

See United States v. Dack, 987 F.2d 1282, 1285 (7th Cir. 

1993); United States v. Powell, 955 F.2d 1206, 1212 (9th Cir. 1991).  

Therefore, any testimony by the defendant as to what he or she thinks or 

previously thought the law should be, as well as his or her current 

or prior views on the constitutionality and validity of the law, is 

irrelevant and must be excluded.

      B. Defendant Should Be Precluded from Presenting "Evidence" or 

            Argument Relating to the Constitutionality and Validity of the 

            Tax Laws

      In criminal tax cases, a defendant should be precluded from presenting 

evidence or argument regarding the constitutionality or validity of the tax 

laws.  See Powell, 955 F.2d at 1212.  A defendant's view 

regarding the constitutionality and validity of the tax laws is irrelevant 

because a mere disagreement with the tax laws is no defense to the charged 

crime.  Cheek, 498 U.S. at 202-03; United States v. Dack, 987 

F.2d 1282, 1285 (7th Cir. 1993) (holding that "[a]rguments which challenge 

the constitutionality or validity of the tax laws" should be precluded); 

Powell, 955 F.2d at 1212.  In Cheek, the Supreme Court held 

that "a defendant's views about the validity of the tax statutes are 

irrelevant to the issue of willfulness and need not be heard by the jury, 

and, if they are, an instruction to disregard them would be proper."  

Cheek, 498 U.S. at 206.  The Court affirmed the district court's use 

of the following instruction (498 U.S. at 204):

      An opinion that the tax laws violate a person's constitutional rights 

      does not constitute a good-faith misunderstanding of the law.

Id. at 204.  Similarly, in Powell, the Ninth Circuit Court of 

Appeals affirmed the use of the following instruction (955 F.2d at 1212):

      Mere disagreement with the law, in and of itself, does not constitute 

      good faith misunderstanding under the requirements of law.  Because it 

      is the duty of all persons to obey the law whether or not they [agree 

      with] it.

      In view of the above, a defendant should be precluded from presenting 

"evidence" and/or argument regarding defenses which relate to the 

constitutionality and/or validity of the tax laws. Such defenses are 

irrelevant and would tend to confuse or mislead the jury.  The anticipated 

defenses are also frivolous and have been repeatedly rejected by the courts.  

If a defendant in any way interjects into these proceedings his or her 

disagreement with the law, it will be entirely proper for the Court to 

instruct the jury as follows:

      A person's opinion, good faith belief, and/or mistaken belief that the 

      tax laws are invalid or unconstitutional does not constitute a good 

      faith misunderstanding of the law and is not a defense to the crime 

      charged in this case.  Thus, defendants' claimed belief that the tax 

      laws are invalid or unconstitutional because the 16th Amendment was 

      allegedly never properly ratified is not a defense.  The 16th 

      Amendment was properly ratified and the tax laws are valid, 

      constitutional and allow for the direct taxation of salaries, wages 

      and profit from business.  Any evidence that you have heard to the 

      contrary in this regard is irrelevant and should be ignored.

See Cheek, 498 U.S. at 205; In re Becraft, 885 F.2d 

547, 548 (9th Cir. 1989); Stahl, 792 F.2d at 1441.  Under these 

circumstances, this instruction would help abate the potential for jury 

confusion stemming from the mention of these irrelevant issues.

      C. Defendant Should Be Precluded from Offering Testimony or 

            Documents Relating to Alternative Interpretations of the Tax 

            Laws if the Offered Evidence Was Not Actually Relied Upon by 

            Defendant or if Admitting such Evidence Would Confuse the Jury 

            Regarding the Law or Undermine the Authority of the Court

      Testimony or documents relating to alternative interpretations of the 

tax laws must be carefully analyzed to determine the purpose for which it is 

being offered.  Although a district court may exclude evidence of "what the 

law is or should be," as discussed above, it ordinarily cannot 

exclude evidence relevant to the jury's determination of "what a defendant 

thought the law was."  Powell, 955 F.2d at 1214; 

Willie, 941 F.2d at 1392-94.  It is anticipated that the defendant  

will attempt to offer the following evidence relating to the issue of 

"willfulness:" case law, statutes, regulations, treatises, video or audio 

tapes, pamphlets, brochures and/or other types of documents.  This material 

is potentially problematic because it can have both a proper purpose 

(i.e., "what a defendant thought the law was") and an improper 

purpose (i.e., "what the law is or should be"). 

Willie, 941 F.2d at 1392.  Thus, before such material is offered, a 

defendant must show the trial judge that "the evidence is being offered for 

a permissible purpose by making a proffer of great specificity 

regarding the type of belief [he or she] seeks to prove."  Id. 

(emphasis added).

      As a threshold matter, in order for material relating to willfulness 

to be admissible, a defendant must first lay a proper foundation which 

demonstrates that he or she "actually relied" upon the specific material 

that is being offered.  Powell, 955 F.2d at 1214.  In the absence of 

actual reliance, such materials and testimony have no probative value.  

Therefore, the Court should not admit this evidence absence a showing of 

actual reliance. United States v. Bostian, 59 F.3d 474, 480 (4th Cir. 

1995); Powell, 955 F.2d at 1214.  The danger is that admission of 

both relevant and irrelevant beliefs "could easily obfuscate the relevant 

issue and tempt the jury to speculate that the mere existence of documentary 

support for the defendant's position negates his independent knowledge that 

he has a legal duty."  Willie, 941 F.2d at 1393.

      If the proper foundation is established, then the court must determine 

whether the material should be admitted or excluded because admission of 

such materials could confuse the jury as to the law or might assist a 

defendant who wishes to undermine the authority of the court.  United 

States v. Barnett, 945 F.2d 1296, 1301 (5th Cir. 1991); Willie, 

941 F.2d at 1395.  The exclusion of such material from evidence does not 

prevent a defendant from conveying the core of his or her  defense to the 

jury because the defendant may still testify as to his or her asserted 

beliefs and how he or she supposedly arrived at them. See 

Barnett, 945 F.2d at 1301; United States v. Hairston, 819 F.2d 

971, 973 (10th Cir. 1987).  It is for the district court to weigh the 

various competing interests and determine, in its discretion, whether, to 

what extent, and in what form, legal material upon which a defendant claims 

to have relied should be admitted in any given case. See 

Willie, 941 F.2d at 1398; Fed. R. Evid. 403.   Among the factors 

which would be relevant to such a determination would be the following: (1) 

the centrality of these materials to a defendant's  claimed misunderstanding 

of the tax laws; (2) the materials' length and potential to confuse the 

jury; (3) the degree to which such materials are merely cumulative to a 

defendant's testimony or to other evidence; (4) the extent to which a 

defendant may be attempting to use them to instruct the jury on the law or 

to propagate tax protestor beliefs; and (5.) the potential utility of 

limiting instructions.  See Powell, 955 F.2d at 1214; 

Barnett, 945 F.2d at 1301 n.3; Willie, 941 F.2d at 1395.

      Among the evidence that should be excluded is expert testimony 

regarding alternative interpretations of the tax laws, if a defendant did 

not actually rely on the expressed views of the expert.  United States v. 

Burton, 737 F.2d 439, 443 (5th Cir. 1984).  In Burton, the court 

affirmed the exclusion of a tax professor's proposed "expert" testimony that 

defendant's theory and belief that wages were not taxable income was not 

implausible.  Id.  The district court had excluded the testimony 

pursuant to Fed. R. Evid. 403 after weighing its "marginal relevance" with 

regard to the Section 7203 charges to the "potential prejudice and 

confusion, keeping in mind that the judge remains the jury's source of 

information regarding the law." Id.  The court indicated that 

"[t]estimony such as that offered by Burton's 'expert' is not admissible as 

an explication of plausible readings of the statutory language." Id.  

In so ruling, the court noted that the defendant's proffer did not suggest 

that he actually relied upon the expressed views of the tax professor in 

failing to file tax returns. Id. at 444.

      Likewise, courts have precluded defense attorneys from raising such 

issues through their cross-examination of government witnesses regarding 

their interpretation of the tax laws.  In Poschwatta, 829 F.2d at 

1483, the Ninth Circuit Court of Appeals upheld the district court's 

granting of a motion in limine precluding cross-examination of IRS 

employees, who were government witnesses, regarding the requirements of 26 

U.S.C. Section 6020(b).  Id.  The district court concluded, and Ninth 

Circuit agreed, that such cross-examination would have invaded the province 

of the court by having a witness testify as to the meaning of Section 

6020(b).  Id.

      In view of the above, the defendant should be precluded from offering 

testimony or documents relating to alternative interpretations of the tax 

laws if the offered evidence was not actually relied upon by the defendant 

or if admitting such evidence would confuse the jury regarding the law or 

undermine the authority of the Court.  Before any such testimony or 

documents are allowed to be offered, the defendant should be forced to make 

a "proffer of great specificity" regarding actual reliance.

      Moreover, if such "evidence" or argument is interjected into the 

proceedings, the Court should immediately instruct the jury regarding the 

applicable law and remind the jury that legal material admitted at trial is 

relevant only to the defendant's state of mind and not to the requirements 

of law.  If a defendant interjects into the proceedings his or her argument 

that salaries and wages are not income, the Court should instruct the jury 

as follows:

      Gross income means all income from whatever source derived, including 

      compensation for services, and gross income derived from business, 

      wages and salaries.

See 26 U.S.C. Section 61.  If a defendant interjects into the proceedings 

the argument that he or she is not a"citizen" within the meaning of the Tax 

Code, but rather is a "nonresident alien," the Court should instruct the 

jury as follows:

      According to the Tax Code, a person is a "nonresident alien" only if 

      he or she is neither a citizen of the United States nor a resident of 

      the United States.  A person is a citizen if he or she was born in the 

      United States or naturalized as a United States citizen.  A person is 

      a resident of the United States during a tax year if he or she resided 

      in the United States for 31 days during the tax year and at least 183 

      days during the tax year and previous 2 tax years.  Thus, defendants 

      were either citizens or residents of the United States during a tax 

      year, then they were not and could not have been nonresident aliens.

See 26 U.S.C. Section 7701(b); United States Constitution, 14th Amendment; 8 

U.S.C. 1401; INA Sec. 301(a), (b) and (f); 26 U.S.C. Sections 1, 

6012(a)(1)(A).

      If the foregoing arguments are interjected into the proceedings, these 

instructions would help clarify the purpose for which the evidence is being 

admitted and reduce the risk of any improper inference being drawn from the 

fact that there is documentary support for the defendant's positions.

                         CONCLUSION

      For the foregoing reasons, the defendant should be precluded from 

presenting "evidence" or argument regarding the following: (1) the 

constitutionality and validity of the tax laws; (2) alternative 

interpretations of the tax laws if not actually relied upon or if to allow 

it would confuse the jury as to the law.

---

FN 1. The IRS Restructuring Act of 1998, Section 3707, precludes the IRS 

from labeling a taxpayer as an "illegal tax protester" or using any other 

similar designation.  The Department of Justice is not included in this 

legislation and, therefore, the preclusion does not apply to it.  Government 

prosecutors, however, should be careful not to solicit the phrase 

characterizing a person as "tax protester" from an IRS employee.

FN 2. The Tax Division maintains a "Criminal Tax Protest Case Issues List," 

which tracks recurring issues in these prosecutions.  The list is updated 

annually and contains more than 40 issues.  Prosecutors interested in 

obtaining a copy of the protest list should contact the Criminal Appeals and 

Tax Enforcement Policy Section of the Tax Division at (202) 514-5396.

FN 3. Typically, perpetrators of the current scheme file these forms  in 

conjunction with filing bogus financial instruments, entitled "sight draft" 

or "bill of exchange." See Chapter 40.02[1][b], supra.

FN 4. Section 6103(l)(16) authorizes the Secretary of Treasury, upon written 

request, to disclose to officers and employees of any federal agency, any 

agency of a State or local government, or any agency of the government of a 

foreign country, information contained on Forms 8300, on the same basis, and 

subject to the same conditions, as apply to disclosures of information on 

reports filed under 31 U.S.C. § 5313; except that no disclosure shall 

be made for purposes of the administration of any tax law.

FN 5. Section 514 essentially punishes anyone who with the intent to defraud 

uses a fictitious instrument appearing to be an actual security or financial 

instrument.

FN 6. See Chapter 17, supra, for a more complete discussion of 

26 U.S.C. § 7212(a).

FN 7. The Tax Division and the IRS have taken the position that the repeal 

applies to cases commenced after August 5, 1997, not to cases 

pending on that date.  Thus, a defense request for juror audit 

information should be complied with in cases in which an indictment was 

returned or an information was filed on or before August 5, 1997, if there 

are any active cases that fit this criterion. If there are any such cases 

remaining, the following cases are pertinent and should prove helpful. 

United States v. Copple, 24 F.3d 535 (3d Cir. 1994); United States 

v. Nielsen, 1 F.3d 855 (9th Cir. 1993);  United States v. 

Callahan, 981 F.2d 491, 495 (11th Cir. 1993); United States v. 

Axmear, 964 F.2d 792, 793 (8th Cir. 1992); United States v. 

Droge, 961 F.2d 1030 (2nd Cir. 1992); United States v. Masat, 948 

F.2d 923 (5th Cir. 1991); United  States v. Huguenin, 950 F.2d 23 

(1st Cir. 1991); United States v. Spine, 945 F.2d 143 (6th Cir. 

1991); United States v. Lussier, 929 F.2d 25 (1st Cir. 1991); 

United States v. Sinigaglio, 925 F.2d 339 (9th Cir. 1991); United 

States v. Masat, 896 F.2d 88, 95 (5th Cir. 1990); and United States 

v. Hashimoto, 878 F.2d 1126 (9th Cir. 1989).  Obviously, if the previous 

law does not apply because of the repeal date, the response to a request for 

juror information is simple.

FN 8. The FSIP was created by Congress pursuant to 5 U.S.C. § 7119, the 

Federal Service Labor-Management Relations Statute.  As detailed therein, 

the Decision and Order of the FSIP was the result of a negotiation impasse 

under Section 7119 between the National Treasury Employees Union and the 

Department of the Treasury, Internal Revenue Service. 

FN 9. Note that a protester may rebut a charge of willfulness by 

testifying about or quoting from materials on which he allegedly based his 

good faith belief (United States v. Nash, 175 F.3d 429, 435 (6th Cir. 

1999) (defendant may briefly mention or quote from documents forming basis 

for his belief, but court need not admit documents themselves); United 

States v. Gaumer, 972 F.2d 723, 725 (6th Cir. 1993) (defendant entitled 

to read into evidence legal materials he claimed support his beliefs). 

But see United States v. Hauert, 40 F.3d 197, 202 (7th Cir. 

1994) ("defendant's beliefs about the propriety of his filing returns and 

paying taxes ... are ordinarily not a proper subject for lay witness opinion 

testimony"); United States v. Willie, 941 F.2d 1384, 1392 (10th Cir. 

1991) (no error to exclude confusing documents).

FN 10. Among the factors which would be relevant to such a determination 

would be the centrality of these materials to a defendant's claimed 

misunderstanding of the tax laws, the materials' length and potential to 

confuse the jury, see 

United States

 v. Barnett, 945 F.2d 1296, 

1301 n.3 (5th Cir. 1991), the degree to which such materials are merely 

cumulative to a defendant's testimony or to other evidence, the extent to 

which a defendant may be attempting to use them to instruct the jury on the 

law or to propagate tax protester beliefs, and the potential utility of 

limiting instructions, see and compare 

United States

 v. 

Powell, 955 F.2d 1206, 1214 (9th Cir. 1992), and Willie, 

941 F.2d 1384, 1404 n.4 (10th Cir. 1991) (Ebel, J., dissenting), with 

Willie, 941 F.2d at 1395 (majority opinion).

FN 11. The prosecutor may be able to utilize the proffered evidence to 

demonstrate the implausibility of a defendant's claim of good-faith 

reliance.

FN 12. In 1994, Congress amended 31 U.S.C. § 5322 to omit the 

willfulness requirement for violations of the structuring statute, 31 U.S.C. 

§ 5324.

FN 13. McCann v. Greenway, 952 F.Supp. 647, 648- 49 (W.D.Mo. 1997).

FN 14. Section 6020(b)(1) of the Code (Title 26) provides that if a person 

fails to make a return required by law, then the Internal Revenue Service 

"shall" make a return based on information available to it.