# Petition for Writ of Certiorari — Simkanin v. United States (No. 05-948)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005

## Text

public official) for services performed by an
employee for his employer ....
*n* *
(d) Employer.
For purposes of this chapter, the term
“employer” means the person for whom an
individual performs or performed any service, of
whatever nature, as the employee of such person,
except that --
(1) if the person for whom the individual
performs or performed the services does
not have control of the payment of the
wages for such services, the term
“employer” (except for purposes of
subsection (a)) means the person having
control of the payment of such wages ....

§ 3402. Income collected at source.

(a) Requirement of withholding.
(1) In general. Except as otherwise
provided in this section, every employer
making payment of wages shall deduct and
withhold upon such wages a tax
determined in accordance with tables or
computational procedures prescribed by
the Secretary.

* 4+ + *

26 U.S.C. §§ 3401-3402.
Chapter 75 of the Internal Revenue Code (“Crimes,
Other Offenses and Forfeitures”) provides, in part:
§ 7202. Willful failure to collect or pay over tax
Any person required under this title to collect,
account for, and pay over any tax imposed by
this title who willfully fails to collect or truthfully
account for and pay over such tax shall, in

be

addition to other penalties provided by law; be
guilty of a felony and, upon conviction thereof,
shall be fined ..., or imprisoned not more than 5
years, or both, together with the costs of
prosecution.
26 U.S.C. § 7202.
As used in § 7202 and related statutes, the term
“person” is defined as follows:
§ 7343. Definition of the term “person”

The term “person” as used in this chapter
includes an officer or employee or a corporation,
or a member or employee of a partnership, who
as such officer, employee, or member is under a
duty to perform the act in respect of which the
violation occurs.

26 U.S.C. § 7343.

STATEMENT OF THE CASE

Following an initial mistrial due to a hung jury, peti-
tioner was convicted at a retrial of willful failure to file
personal income tax returns for four years, of willfully
failing to withhold and pay over employment taxes on
employees of a business he owned and controlled, and of
making false claims against the United States by seeking
refunds of past taxes his business had paid. His efforts at
the retrial to present a defense of good faith belief in the
legality of his actions were severely hampered. The court
of appeals affirmed both the judgments of conviction and
the resulting upward departure sentence, which expressly
doubled the recommended guideline range based on peti-
tioner’s political statements, associations and beliefs.

a. Procedural History

A grand jury sitting in the Northern District of Texas
returned an indictment in June 2003 charging petitioner
Simkanin with 12 counts of willful failure to collect,
account for and pay over employment taxes imposed under
Subtitle C of the Internal Revenue Code, in violation of 26
U.S.C. § 7202, and 14 counts of false claims against the
United States by filing various amended IRS Forms 941 and
940-EZ, in violation of 18 U.S.C. § 287. An initial trial in
November 2003, at which the court instructed on “good
faith” as explained by this Court in Cheek v. United States,
498 U.S. 192 (1991), ended in a hung jury.

On December 17, 2003, a second superseding indict-
ment added four counts of willful failure to file personal
income tax returns for the years 1998 through 2001, in
violation of 26 U.S.C. § 7203. The remaining counts
reiterated the twelve under § 7202 of failure to withhold
taxes from the employees of Arrow Custom Plastics, Inc.,
on a quarterly basis, from March 2000 through December
2002, and 15 counts under 18 U.S.C. § 287 of filing false
claims in January 2000 for refunds of amounts previously
withheld and paid over by Arrow. CAS RE 3.

The second trial was held in early January 2004. In its
instructions for the retrial, the court advised the jury that
Arrow Custom Plastics had a legal duty in 2000-2002 to
collect, by withholding from the wages of its employees,
the employee’s share of social security taxes, Medicare
taxes, and federal income taxes, and to account for those
taxes and pay over the withheld amounts to the United
States. CAS RE 10, at 252. At the same time, it instructed
the jury to determine whether Arrow was an employer that
paid wages. Id. 254. The court did not charge on good
faith. Id. 259-60. During deliberations, the jury requested
clarification with respect to the issue of willfulness, CAS RE

12, at 2-5, and on whether Arrow was an employer. Id. 9-
10. On the latter occasion, Judge McBryde expressly
directed the jury, over objection, that Arrow was an
employer obligated to withhold. Id. 11-14.

The jury eventually hung on counts 1 and 2 (willful
failure to file and pay over employment taxes in March and
June 2000) but found petitioner guilty on counts 3 through
31 of the second superseding indictment.

On April 30, 2004, Judge McBryde sentenced peti-
tioner Simkanin to serve a total of seven years’ imprison-
ment, based on a substantial upward departure from the
U.S. Sentencing Guideline term. CAS RE 14, at 77-80.
The court also ordered petitioner to pay $302,076.33 to
the IRS as restitution. Id. 80-81.

Following the entry of judgment, petitioner appealed
to the Fifth Circuit. The panel held that the trial court had
not improperly answered a question from the deliberating
jury by instructing that the court had found true a fact that
was for the jury to decide. The court of appeals concluded
there was no reasonable likelihood that the jury would
understand the trial judge’s instruction to mean what it said
in that regard. Appx. A19, 420 F.3d at 408. Alternatively,
the court found the instruction, if erroneous, to be
harmless beyond a reasonable doubt. Appx. A20, 420 F.3d
at 408. The court below further concluded that it was
unnecessary for the trial court to instruct on “good faith”
under Cheek, because a correct instruction had been
delivered defining “willfulness.”. Appx. A22-27, 420 F.3d
at 410-12. Finally, the court of appeals found no abuse of
discretion in the imposition of a sentence substantially
above the Guidelines range, even though that sentence was
expressly predicated on petitioner’s political beliefs and
associations. Appx. A38-43, 420 F.3d at 417-19. The
court en banc refused to rehear the case. Appx. B.

This petition follows. Petitioner Simkanin has been
incarcerated since his arrest on June 20, 2003. He is pres-
ently serving his sentence in the Federal Correctional
Institution at Texarkana, Texas.

b. Statement of Facts

Petitioner Richard Simkanin owned Simkanin, Inc.,
d/b/a Arrow Custom Plastics; until 1997, he was also
Arrow’s President. At that time, he made his sister-in-law
president, although he continued to exercise authority over
the company. In December 1999, petitioner decided that
Arrow would not withhold taxes from its employees’
wages. Arrow made quarterly filings concerning with-
holding from employees’ pay through the end of 1999, but
none from March 2000 through September 2003.

In January 2000, petitioner submitted 15 claims on
behalf of Arrow Custom Plastics for refund of employment
taxes paid over from 1997-1999. The IRS concluded that
the claims “had no merit.” A government witness testified
that petitioner had “a library of material” pertaining to
withholding, and that in the witness’s opinion petitioner
thought his position was actually a correct understanding of
the law, and that the defendant was not “just trying to get
vut of paying taxes.”

Petitioner engaged in extensive correspondence with
the IRS regarding the status of his workers. The IRS
witness testified that the workers were, in “our opinion,”
employees. Inquiry into the basis for the witness’s legal
conclusion was precluded by the trial judge as either
beyond the scope of direct or because the definition of an
employee under the IRC was not to be developed.

Arrow’s former accountant testified that he prepared
and filed corporate income tax returns beginning in 1994.
He also prepared and filed individual returns for petitioner
and his wife in 1993, 1994, and 1995. He filed no returns

-10-

for 1996 and 1997 for them, because petitioner said he had
no taxable income in those years. Petitioner said he was
relying on information that supported his position, giving
his accountant copies of those documents.

The accountant’s employer, a CPA, gave a legal
opinion that petitioner, “as the owner of Arrow Custom
Plastics,” was the responsible party to collect taxes on
Arrow’s employees’ taxable income. He said that in March
2000 he discussed Arrow’s failure to withhold and remit
employment taxes with petitioner. Simkanin expressed the
opinion that the Internal Revenue Code did not apply to
him, basing that view on his own studies.

The IRS case agent testified that based upon the
amounts of gross income that petitioner stipulated for
1998 thrugh 2001, he was legally required to file individual
income tax returns for each of those years.

Petitioner took the stand in his own defense. He
attempted to tell the jury about his research into the tax
law, including particular Supreme Court cases on which he
said he relied. He also testified that he relied on advice
from an accountant with whom he talked in 1997 or 1998
after hearing her speak as a guest on a radio talk show.

Explaining his exclusion from evidence of exhibits
upon which petitioner testified he had relied in reaching his
conclusions about tax liability, Judge McBryde stated he
had “made some mistakes” during the first trial that it was
“going to try not to make them again.” Petitioner testified
that the Internal Revenue Code is some 7000 pages in
length; one reason it is so lengthy, he said, is that “it names
a lot of industry and activity that is taxable.” If Arrow
Custom Plastics were engaged in any of those industries,
petitioner testified, he would pay the income and/or

employment taxes required.' Petitioner also testified that
after consulting the applicable Treasury Regulations, he
concluded that “the employees at Arrow Plastics” did not
fit the definition of “employee” for withholding purposes.
The district court prohibited petitioner from “using or
making reference to the text of the Internal Revenue Code”
to back up these statements.

The defense called several witnesses, including a
former IRS agent and a California attorney. Based on
conversations with petitioner during the pertinent time
frame, these witnesses agreed that petitioner had specific
statutory grounds for his opinions about his tax obligations.

Robert Schulz, founder of the We the People Founda- .
tion for Constitutional Education, also testified that he
spoke with petitioner several times between July and
November 1999, directed him to the Foundation’s website,
and advised him that he had a right under the Petition
Clause of the First Amendment to ask questions of the
government and to expect answers. Schulz testified he had
advised petitioner that the Foundation’s research supported
the conclusion that “there is no law that requires most
Americans to file and pay an income tax, or most
companies to withhold an income tax from the paychecks
of the men and women working for them.” Petitioner’s
name and likeness had been used in a full-page USA Today
ad, sponsored by We the People, proclaiming his opinions
and conclusions regarding the income tax.

' Had the prosecutor cross-examined petitioner on his
underlying factual assertions, it would have supported the
Cheek defense by showing that petitioner’s position was
based, at least in part, on mistaken beliefs about both the
length and content of the Code. Allowing this testimony to
stand unchallenged led to jury confusion, as discussed below.

as.

—

c. Statement of Lower Court Jurisdiction Under Rule
14.1(g) (ii) The United States District Court for the
Northern District of Texas had subject matter jurisdiction
of this case under 18 U.S.C. § 3231. The court of appeals
had jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a).

REASONS FOR GRANTING THE WRIT

1. This Court should either overrule its 1999 decision in

Neder v. United States, or else distinguish it and reaffirm

the 1983 plurality decision in Johnson v. Connecticut that
prejudice is presumed from an instruction which takes an

unstipulated factual question away from the jury.

The court below upheld petitioner’s convictions for
failure to withhold income and employment taxes and for
filing “false” refund claims for such taxes, previously paid.
It was “a fact necessary to constitute the crime” in each of
those counts, if not an element of each offense,” that peti-
tioner’s company, Arrow-Plastics, had a duty under the
Internal Revenue Code to withhold such taxes (and that
petitioner was someone who could be held criminally
responsible for any failure of Arrow to do so). Yet the trial
court instructed, in response to a question during delibera-
tions about whether the jury needed to peruse “those 7,000
[pages]” to determine whether Arrow had to withhold:

The Court has made the legal determination that
within the meaning of Title 26, United States
Code, Section 7202, during the years 1997,

* See Apprendi v. New Jersey, 530 U.S. 466, 477 (2000),
quoting In re Winship, 397 U.S. 358, 364 (1970).

-} 3-

1998, 1999, 2000, 2001, and 2002, Arrow
Custom Plastics, through its responsible officials,
had a legal duty to collect by withholding from
the wages of its employees, the employees’ share
of social security taxes, Medicare taxes, and
federal income taxes, and to account for those
taxes and pay the withheld amounts to the
United States of America. You are to follow that
legal instruction without being concerned
whether there are certain employers who are not
required to collect and withhold taxes from the
wages of their employees.

Of course, you will bear in mind in your delib- -
erations all other instructions the Court has given
you concerning the law applicable to this case.

R.E. 12, at 14.7 Defense counsel objected to this response
on the ground, inter alia, that “it amounts to an instructed
verdict of guilty by instructing them on that point[,] since
that is the disputed issue and the basis for his defense.”
The defense objections were overruled. Shortly thereafter,
the jury returned verdicts of guilty on counts 3 through 31,
and reported they were hung as to counts 1 and 2. Several
interrelated questions warranting this Court’s , view are
implicated.

The challenged instruction directed a verdict as to the
first part of an essential element the government had to
prove; f.e., as stated in the court’s charge, “First: That
Arrow Custom Plastics was an employer that paid wages to
its employees.” The instruction unequivocally told the jury
that Arrow Custom Plastics was, as a matter of fact, an
“employer,” for only “employers” have a duty to with ’:old

3 Some of this language had been included in the trial court’s
initial instructions, without objection from the defense.

-14-

from the wages of an employee. See 26 U.S.C. §§ 3111(a),
(b), 3301, 3401(a)(1).4 The jury then had nothing to
decide but whether Arrow’s employees were paid wages.°
The Fifth Circuit opinion pointed out that the trial court’s
instructions also twice required the jury to make a deter-
mination whether Arrow paid wages, and that the jury had
been advised to remember the rest of the instructions.
Thus, the court reasoned, “there was not a reasonable like-
lihood that the jury applied the instruction as if it were a
directed verdict on that element of the offense.” Appx.
A19, 420 F.3d at 408. Yet as the court be.ow conceded,
“This reading of the court’s response” is “plausible in a
literal sense.” Appx. A17; 420 F.3d at 407. That rationale
is not consistent with this Court’s controlling decisions.

Surely, there is at least “‘a reasonable likelihood that
the jury has applied the challenged instruction in a way’
that” is unconstitutional, that is, as they were told to. See
Estelle v. McGuire, 502 U.S. 62, 72 (1991), quoting Boyde
uv. California, 494 U.S. 370, 380 (1990). An appellate
court is therefore bound to assume that the jury so undei-
stood it, rather than the opposite. See also Victor v.
Nebraska, 511 U.S. 1, 6 (1994); Francis v. Franklin, 471
U.S. 307, 322 (1985). After all, a “jury is presumed to
follow its instructions,” Weeks v. Angelone, 528 U.S. 225,
234 (2000), not to set them aside as contrary to some other
principle. “A reviewing court has no way of-knowing
which of the two irreconcilable instructions the jurors
applied in reaching their verdict.” Franklin, id.

* These provisions are reproduced in excerpted form in the
Statutes Involved ante, and in full in Appendix C.

> By statutory definition, one becomes an “employer” only by
having “employees” working for him. See 26 U.S.C.
§§ 3401 (c)-(d).

tS.

Invoking the maxim that the jury instructions must be
considered as a whole, see Appx. A17, 420 F.3d at 407,
does not avoid the error here. “Language that merely
contradicts and does not explain ... will not suffice to
absolve the infirmity.” Franklin, 471 U.S. at 322. This is
particularly so where the erroneous language was repeated
in response to a jury question, and the error was reinforced
with new, mistaken wording. Bollenbach v. United States,
326 U.S. 607, 612-13 (1946). The trial court may have
intended by its supplemental instruction to explain the law
of withholding to the jury, and to remind the jury that
ascertaining the law was for the court not the jury to
resolve, while applying the law to the facts, after finding
those facts, was for the jury. The import of its words, on
_ the other hand, was instead to tell the jury that Arrow’s
relationship to its workers during the years charged in the
indictment was in fact that of “employer” and “employee”
within the meaning of the federal tax laws.

The court below also deviated from this Court’s prece-
dent in ruling that the fundamental error in this case was,
in any event, harmless. In petitioner’s case, the defendant
testified (as best he could, given all the restrictions Judge
McBryde imposed) that after diligent study he did not
believe (or at least had not believed, during the time
periods charged in the indictment) that Arrow Custom
Plastics was a “employer” under § 3402. It was up to a
properly instructed jury, then, to decide, beyond a reason-
able doubt, inter alia, (a) whether Arrow was in fact an
“employer” under the tax law, and, if it was, (b) whether
Simkanin actually knew this during the time in question
and did not sincerely profess otherwise. Yet the trial judge
told the jury he had made this determination himself
“within the meaning of Title 26, United States Code,
Section 7202,” the criminal statute under which the jury

14.

knew petitioner was charged (in other words, not simply
under the tax-imposing statute, id. § 3402), and that
Arrow’s status as “employer” obtained “during the years
1997, 1998, 1999, 2000, 2001, and 2002,” which of
course were the charged years.® It is uncontested that the
trial court has no authority to make any such determina-
tion, regardless of the nature of the element or the state of
the evidence. United States v. Gaudin, 515 U.S. 506
(1995). Even if a rule of harmless error could apply, the
error in this case could not be treated as harmless.

In the court below, the government eventually
conceded that if a harmless error rule applies to such an
instruction, it is the government that bears the burden (as
petitioner had stated from the beginning) to establish the
trial court’s error was “harmless beyond a reasonable
doubt.” Post-Arg. Ltr.Br. 3. If such an instruction can be
harmless constitutional error, the government did not meet
its burden in this case. The evidence on the subject
consisted solely of an unexplained, conclusory “opinion” cf
an IRS employee, stated as such. For example, the govern-
ment offered no evidence to allow a jury determination
under “the usual common law rules applicable in deter-

° In the present case, it must be recalled, although petitioner
was prosecuted under 26 U.S.C. § 7202 for willful failure to
withhold and pay over employment taxes, he was not, on
either side’s theory of the case, the “employer” in question.
The alleged “employer” was Arrow Custom Plastics, the
company which Simkanin owned (a status which would not
make him liable for Arrow’s employment tax obiigations) and
(according to the government’s evidence) controlled (a fact
which could make him liable; id. §§ 3401(d)(1), 7343). Yet
the district court did not instruct the jury on the criteria made
pertinent by the latter two statutes.

mA

mining the employer-empioyee relationship,” 26 U.S.C.

§ 3121(d)(2), nor did the trial court instruct the jury on
those rules. Instead, the court below dismissed the error as
harmless because the defendant “did not, and apparently
could not, bring forth facts contesting” the government’s
position, Appx. A21, 470 F.3d at 409, quoting from Neder
v. United States, 527 U.S. i, 18-19 (1999). The court of
appeals thus shifted the burden impermissibly.”

As this Court’s majority explained in Neder, that
decisic 1 concerns a “narrow class of cases” where the trial
court omits, over objection, to charge the jury on one
element of the offense, which the court has instead decided
for itself. 527 U.S. at 17 n.2 (discussing Rose v. Clark, 478
U.S. 570, 578 (1986)). The Court declared such cases
distinguishable from those in which the court directs a
verdict of guilty. See United Bhd. of Carpenters & Joiners
v. United States, 330 U.S. 395, 408 (1947) (treating as
equivalent to directed verdict the court’s omission, as in
this case, of any explanation for the jury of the statutory
criteria for the defendant to be held vicariously liable).

’ The court of appeals also overlooked a separate manner in
which the trial court’s instructional error was prejudicial. A
minimally sufficient explanation of the legal rules governing
the definition of “employer” and “employee” in this setting --
rules which are not even the same among the five different
taxes involved (income withholding tax, IRC § 3402; Social
Security, IRC § 3101(a); Medicare, IRC § 3101(b); and the
employer’s Social Security and Medicare excise taxes, IRC
§§ 3111(a),(b)) -- would have revealed their complexity, and
thus have supported the plausibility of petitioner’s “good
faith” misunderstanding defense under Cheek. See Appx. C
(to reprint just the text of the statutes involved consumes
some 89 pages).

ie.

In Neder-type cases, the Court permits an appellate
tribunal to find the omission of an element harmless
beyond a reasonable doubt if the element “is supported by
uncontroverted evidence ....” 527 U.S. at 18. Only “where
the defendant did not, and apparently could not, bring
forth facts contesting the omitted element, answering the
question whether the jury verdict would have been the
same absent the error does not fundamentally undermine
the purposes of the jury trial guarantee.” Id. 19. The court
below did not demonstrate that the instant case comes
within that narrow category. Instead, it focused on peti-
tioner’s principal legal defense (lack of willfulness), Appx.
A14-15, 420 F.3d at 406, even though the employer status
issue was never stipulated and was treated as contested.

The starting point must be what evidence the govern-
ment brought forth on the element. The decision of the
court below disregards that at trial the government placed
in evidence exhibits numbered 136 through 147. Its
witness, a “tax compliance officer” with the IRS, testified
that these exhibits constituted correspondence between the
IRS and petitioner regarding the status of workers as either
employees or independent contractors.® On cross-
examination the IRS witness testified that the workers
were, in “our opinion,” employees. No explanation was
allowed.” In addition to petitioner’s own testimony, this is
the totality of the relevant evidence on the subject.

¥ Since the letters from Simkanin were introduced by the
government, they constituted “admissions” under Fed.R.Evid.
801(d)(2)(A) which the jury could take for their truth.

? Had defense counsel not cross-examined on this point,
there would actually have been no evidence in support of this
fact essential to proof of the government’s case.

-19-

A reasonable jury could have found the IRS’s answers
to petitioner’s concerns, as expressed in Exhibits 136-147,
to be unsatisfying. Similarly, the jury could easily have been
unpersuaded by the unexplained expression of a conclusory
“opinion” on the subject. The jury’s doubt on this score
may then have been reinforced by petitioner’s sincere
demeanor while testifying.'° The jury could thus readily
have entertained a reasonable doubt on the “employer”
element, given the weakness of the government’s case on
the issue. The jury’s note shows that at least some jurors
had questions whether the withholding obligation was
inapplicable to some “employers” of some “employees” (as,
indeed, it is; see Appx. C (setting forth pertinent statutes at
length)), and thus whether Arrow had been proven to be
subject to a legal duty under that law. Thus, the instant
case does not come within the “narrow class” in which such
error as Judge McBryde committed at this trial could be
found harmless beyond a reasonable doubt, and the
government’s letter brief does not demonstrate otherwise.

Whether error which deprives a defendant of his Sixth
Amendment right to trial by jury on a fact which is essential
to the punishment (whether or not that fact is labeled an
“element” of the offense) should be presumed to be
prejudicial, or whether the government can be allowed to
establish harmlessness, has often divided this Court by the
narrowest of margins. See Connecticut v. Johnson, 460

10 That the jury used the word “employees” on its note
seeking further instructions (like petitioner’s own use of the
same term in his testimony), Appx. A18, 420 F.3d at 408 n.9,
does not establish that the jury had resolved the issue as a
legal matter, but rather shows only that the word is
commonly used in a non-technical sense to mean “workers.”

U.S. 73, 83-88 (1983) (plurality opinion).!! Neder was
decided by a 5-1-3 vote. The dissenting opinion viewed the
decision as a major constitutional error. Neder, 527 U.S. at
30-40 (Scalia, J., with Souter & Ginsberg, JJ., dissenting);
see also id. 28-29 (Stevens, J., concurring). Arguably, the
Neder dissenters’ view of the Sixth Amendment jury trial
right has since prevailed. See United States v. Booker, 543
U.S. 220, 125 S.Ct. 738, 769 (2005) (shifting majority of
five suggests no more than that in cases “not involving a
Sixth Amendment violation,” whether relief is required on
appeal “may depend upon application of the harmless error
doctrine”); see generally Blakely v. Washington, 542 U.S.
296 (2004); Ring v. Arizona, 536 U.S. 584 (2002);
Apprendi v. New Jersey, 530 U.S. 466, 477 (2000). The
time has come for the Court to confront the issue squarely.

The decision of the court below raises this grave
constitutional question (which “operat[es] upon the spinal
column of American democracy,” Neder, 527 U.S. at 30
(dissent)), by the manner in which it applied the harmless
error doctrine. The Court should grant certiorari to
determine whether that rule was applied too loosely. Alter-
nately, this Court should grant certiorari to consider over-
ruling the decision in Neder and holding that a jury instruc-
tion purporting to determine a question of fact which is
essential to conviction must be presumed prejudicial,
requiring automatic reversal.

'l Jobnson lacked a fifth vote for a structural error approach
to the problem only | ecause Justice Stevens, concurring,
found the harmless error question not properly presented on
certiorari to the supreme court of a state, when that court had
not employed a lower standard.

a. #

2. The Circuits are divided on the question whether a
minimal but correct jury charge on willfulness is sufficient
to protect a tax defendant’s right to an instruction
supporting a “good faith” defense under this Court’s
decision in Cheek.

The petitioner’s principal defense at trial was “good
faith” under this Court’s decision in Cheek v. United States,
498 U.S. 192 (1991). At the first trial, the court delivered a
jury charge explaining good faith; the jury hung. Instead of
charging under Cheek at the retrial, however, the trial court
delivered, over objection, only a two-sentence statement on
willfulness, as defined by this Court in United States v.
Bishop, 412 U.S. 346, 360 (1973), and United States v.
Pomponio, 429 U.S. 10 (1976) (per curiam): “To act will-
fully means to act voluntarily and deliberately and inten-
ding to violate a known legal duty.” See Appx. A21, 420
F.3d at 409 (quoting instruction). The Fifth Circuit found
this charge sufficient to avoid reversal, because “willful-
ness” as defined in tax cases is logically inconsistent with
“good faith.” Id. 410-11. In at least two other Circuits,
the refusal of this instruction would be reversible error. See
United States v. Morris, 20 F.3d 1111, 1114-18 (11th Cir.
1994); United States v. Regan, 937 F.2d 823, 826-27, as
amended, 946 F.2d 188 (2d Cir. 1991). Certiorari should
be granted to resolve this split among the courts of appeals.

In Cheek, the Court held that “willfulness,” as long
defined for purposes of criminal tax cases, depends on the
defendants’ actual beliefs regarding their statutory obliga-
tions, without regard to whether those beliefs are “reason-
able.” Such-beliefswere consistently discussed in terms of
“good faith.” 498 U.S. at 201-02. As this Court has long
noted in similar contexts, “Without the knowledge, the
intent cannot exist.” Direct Sales Co. v. United States, 319

U.S. 703, 711 (1943); accord, Anderson v. United States,
417 U.S. 211, 224 (1974). As the Court pointed out in
Cheek, 498 U.S. at 200, the holding of United States v.
Murdock, 290 U.S. 389, 396 (1933), was that the defen-
dant in a federal tax case, upon request, is entitled to an
instruction on “good faith” belief. Yet, as the Court further
acknowledged, the holding of the per curiam in Pomponio,
429 U.S. at 13, some four decades later, is stated as follows,
“The trial judge in the instant case adequately instructed
the jury on willfulness. An additional instruction on good
faith was unnecessary.” (quoted in Cheek, 498 U.S. at 201).
The latter holding was misconstrued by the court below to
mandate affirmance.

The willfulness charge in this case recited the mini-
mally mandated words of Pomponio, and identified what
the defendant had to “know,” but completely failed to elab-
orate or explain the rule, as required by the decisions in
Murdock and Cheek. A jury would have to listen very care-
fully (and have an outstanding memory, as it was denied a
written copy of the charge) to find in the one sentence
quoted from Pomponio the tripartite requirement of Cheek,
much less the point emphasized there that the defendant’s
belief, if genuine, need not be found to be reasonable.

Indeed, its seems the jury did not understand. After
less than 90 minutes of deliberation, the jury issued a note
asking “what is the definition of “willful?”” The court’s
response again did not include a good faith defense instruc-
tion. It is simply unrealistic to suggest, as does the court
below, that petitioner’s request for a good faith instruction
was “substantially covered.” Appx. A25, 420 F.2d at
411.'* If it were actually obvious that Cheek follows from

!2 On the second day of jury deliberations, the defense filed a
motion for reconsideration and request for (1) the pattern

=

a mere recitation of the Bishop/Pomponio test, then the
split in the Circuits which led this Court to grant certiorari
and decide the Cheek case itself would never have devel-
oped. Rather, the jury charge in this case represents a
wholesale rejection of the entire idea of elaborating on
“willfulness” in the Cheek sense. Where, as here, the
defendant’s requested instruction, see CAS RE 11, was
substantially correct, reversal should have resulted.

The court below misleadingly discusses Pomponio as if
it stood itself for the proposition that a correct “willful-
ness” charge substitutes for an instruction on good faith in
the sense requested by petitioner at trial. Appx. A24-25,
420 F.3d at 411. But if that were so, Pomponio would
have overruled Murdock, while the per curiam opinion
contains no such suggestion. In fact, all that Pomponio
held is that a charge requiring “bad purpose” or “evil
motive” for conviction, as had been sought by the
defendant in that case, was unwarranted. The reference to
“good faith” in Pomponio was simply shorthand for the
erroneous request that the defendant had made there; it is
no authority for what occurred here. To refuse a charge on
“good faith” in petitioner’s case was to refuse to instruct on
the defense theory with respect to the key contested
element of the charged offenses. The court below thus
affirmed the violation of another fundamental of a fair trial,
as guaranteed by this Court. See United States v. Mathews,
485 U.S. 58, 63 (1988) (right to an instruction on theory of
defense, whenever supported by some evidence).

The government did not demonstrate (nor did the
court below find) that the denial of a “good faith” instruc-

(cont'd)

jury instruction regarding mistake, ignorance, negligence or
gross negligence and (2) a good faith instruction under Cheek.
This was again denied.

-24-

tion in this case was or could have been harmless error.
Most of the defendant’s corroborating evidence was
excluded, and his own testimony and that of his witnesses
was substantially limited.!? Worse, the trial court placed
counsel under a strict 15-minute limit for closing argu-
ment.!* In the transcript, the defense closing occupies less
than eight pages. During this period it was hardly possible
even to marshal the main evidence adduced from 14
witnesses and numerous documents, much less to fully ~
argue the inference of good faith or elaborate the meaning
of reasonable doubt concerning willfulness, as applied to
three different types of statutory offenses. Thus, this is not
a case where a generous approach to the defendant’s testi-
mony and witnesses or to counsel’s argument might excuse
the refusal to charge on the defense theory of good faith.

Because seemingly conflicting language in this Court’s
Murdock and Pomponio decisions has ied to a split in the
Circuits over the defendant’s right to a “good faith”
instruction under Cheek, and because the trial court’s jury
charge, read as a whole, denied essential support to peti-
tioner’s legitimate theory of defense, certiorari should be
granted.

!3 As the judge explained, he had “made some mistakes”
during the first trial, which resulted in a hung jury, and was
“going to try not to make them again.”

14 Defense counsel’s request for just three minutes more was
denied with a facetious remark. Judge McBryde then rigidly
policed the 15-minute limit at trial, including interruptions to
announce the elapsed time.

3. The Court should consider whether the First
Amendment permits a sentence to be substantially
increased on the theory that a defenaant’s deepiy held
anti-government political views create a risk of recidivism
equivalent to that of a career criminal.

Over a four-year period, petitioner Simkanin failed to
file federal tax returns. This conduct arose out of his
prominent involvement with groups and individuals
espousing unconventional opinions about the U.S. tax
system. Petitioner had no criminal record. Yet the district
court imposed an upward “departure,” 18 U.S.C.

§ 3553(b), to equate his sentence with that of a defendant
in the least favorable “criminal history category” under the
U.S. Sentencing Guidelines, see USSG § 4A1.3 (p.s.), and
imposed a term of seven years’ imprisonment. The judge
expressly predicated this doubling of the sentence on “the
defendant’s radical beliefs relative to the laws of the United
States.” Petitioner argued on appeal that the severity of the
sentence violated his First Amendment rights. The Fifth
Circuit’s rejection of his claim warrants this Court’s review.

The court below concluded that:

Simkanin’s specific beliefs that the tax laws are
invalid and do not require him to withhold taxes
or file returns (and his association with an organ-
ization that endorses the view that free persons
are not required to pay income taxes on their
wages) are directly related to the crimes in
question and demonstrate a likelihood of recidi-
vism. Thus, the district court did not constitu-
tionally err in considering these factors.
Simkanin, 420 F.3d at 417-18. This Court should
address the important question whether a bare
showing of relevance of a person’s political associations

(as support) and beliefs (as a motive) for the crime of
conviction is sufficient under the Constitution to justify
a doubling of his sentence.

The district court’s inference that petitioner had
“immersed” himself in a “movement” that the court
likened to a “cult” does not make an increased
sentence permissible, much less necessary. See 18
U.S.C. § 3553(a) (any federal sentence must be “no
greater than necessary” to achieve lawful objectives of
criminal justice). The court below does not even
attempt to justify treating petitioner’s “association with
an organization” as a constitutionally allowable senten-
cing factor. The opinion of the Fifth Circuit throws to
the winds the careful analysis in this sensitive area
endorsed by this Court in Wisconsin v. Mitchell, 508
U.S. 476, 485 (1993) and Dawson wu. Delaware, 503
U.S. 159 (1992). Under the First Amendment, an
intent to commit future crimes cannot be inferred from
bare association or membership. See Elfbrandt v.
Russell, 384 U.S. 11, 15-16 (1966); Scales v. United
States, 367 U.S. 203, 229-30 (1961).

Where the defendant’s conduct involves a mixture
of alleged crime and protected First Amendment
activity, a court must review questions of intent
“strictissimi juris” (by the strictest standard known to
the law). Noto v. United States, 367 U.S. 290, 299-
300 (1961). The idea that unprotected conduct, when
interconnected with First Amendment activity, requires
a highly cautious approach is pervasive in this Court’s
cases. See McDonald v. Smith, 472 U.S. 479 (1985)
(malice and absence of good faith necessary to destroy
First Amendment privilege with respect to defamatory
letter sent to public official); Watts v. United States,
394 U.S. 705 (1969) (per curiam) (strict construction

of “threat” required in political context, to avoid First
Amendment issues). Under our Constitution, a
person’s opinions, including “radical beliefs” in oppo-
sition to government authority, simply cannot justify
increased criminal punishment. R.A.V. v. City of St.
Paul, 505 U.S. 377 (1992). The court below attempts
to distinguish all these cases on purely factual grounds,
Appx. A40, 420 F.3d at 418 n.23, and does not apply
the governing principles for which they stand.

The First Amendment “strictissimi juris” doctrine,
as announced and applied by this Court in Noto, 367
U.S. at 299-300, has been followed in several circuits as
a tool for evaluating the sufficiency of the evidence,
not limited to cases where membership is itself the
charged offense, as in the Smith Act cases. See United
States v. Dellinger, 472 F.2d 340, 392 (7th Cir. 1972);
accord, United States v. Dodge, 538 F.2d 770, 780
n.16 (8th Cir. 1976); United States v. Spock, 416 F.2d
165, 172 (1st Cir. 1969).!° The courts below impro-
perly gave short shrift to the application of that funda-
mental doctrine at sentencing. eae

As this Court has put it, “a defendant’s abstract
beliefs, however obnoxious to most people, may not be
taken into consideration by a sentencing judge.”
Mitchell, 508 U.S. at 485 (explaining Dawson).'°

15 The doctrine is a pervasive one under the First
Amendment, and can even require strict caution in applying
the ordinary rules in civil cases. See NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 918-19 (1982) (discussing and
applying doctrine to invalidate award of damages against
organization for losses arising out of boycott led by group).

'6 This constitutional rule necessarily operates as an exception
to 18 U.S.C. § 3661, which states, “No limitation shall be

-28-

There is simply no denying that in this case, peti-
tioner’s “abstract beliefs” were “taken into considera-
tion.” Indeed, “beliefs” were explicitly made the
centerpiece of Judge McBryde’s rationale for increasing
petitioner’s sentence.

Petitioner Simkanin is a stable, 60-year-old busi-
nessman and engineer. The offenses for which he was
convicted are nonviolent property offenses against the
government. They were committed openly, even defi-
antly, and were thus easy to detect and relatively easy
to prove. It was unreasonable for the court below to
conclude that petitioner’s risk of recidivism -- on
account of his deeply held political beliefs, as the
district court viewed and interpreted them -- was
equivalent to that of a career criminal, or of a defen-
dant with more than four prior felony sentences of
imprisonment (the typical Category VI offender).!”

The district court’s analysis that the lawful
purposes of sentencing demanded at least seven years’
imprisonment, and that petitioner would not be
deterred or reformed by less had no lawful basis. The
inflation of petitioner’s criminal history category more

(cont'd)

placed on the information concerning the background,
character, and conduct of a person convicted of an offense
which a court of the United States may receive and consider
for the purpose of imposing an appropriate sentence.”

1” The court below also found no “plain error” under United
States v. Booker, 543 U.S. 220 (2005). Appx. A43-44, 420
F.3d at 419-20. While the circuits are split on the proper
application of that doctrine to pre-Booker sentencings,
petitioner does not present this as a separate basis for
certiorari in his case.

99.

than doubled his sentence, adding three years or more
of imprisonment, based expressly upon his disfavored
expression of dissident political opinion.
As Judge Farris wrote, while dissenting from the

Ninth Circuit’s reversal of two tax convictions:

Unfortunately, these defendants have been

labeled by some as “tax protesters.” That label

has no use in a court of law. America was built

by “protesters.” Their input should always be

considered.
United States v. Wadsworth, 830 F.2d 1500, 1511 (9th Cir.
1987) (dissenting opinion). That view is more consonant
with Congressional command’ and the Constitution than
was the district court’s justification for doubling peti-
tioner’s punishment, as endorsed by the court below. To
define and enforce the First Amendment limitations on
sentencing enhancement, the writ of certiorari should be
granted to review the decision of the Fifth Circuit below.

CONCLUSION
For the foregoing reasons, petitioner RICHARD

SIMKANIN prays that this Court grant his petition for a
writ of certiorari.

Respectfully submitted,

By: PETER GOLDBERGER

Attorney for Petitioner

January 25, 2006.

18 Dart of the Internal Revenue Service Restructuring and
Reform Act of 1998 prohibits the “officers and employees of
the Internal Revenue Service” from “designat[ing}] taxpayers
as illegal tax protesters (or any similar designation) ....”
Pub.L. 105-206, § 3707(a), 105th Cong., 2d Sess., 112 Stat.
685 (“Taxpayer Bill of Rights III”).

-30-

APPENDIX A

420 F.3d 397, 96 A.F.T.R.2d 2005-5577,
2005-2 USTC 4 50,507

United States Court of Appeals,
Fifth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Richard Michael SIMKANIN, Defendant-Appellant.
No. 04-10531.

Aug. 5, 2005.
*399 Alan L. Hechtkopf, Samuel Robert Lyons

(argued), U.S. Dept. of Justice, Washington, DC, for
U.S.

Peter Goldberger (argued), Law Office of Peter
Goldberger, Admore, PA, Robert G. Bernhoft, The
Law Office of Robert G. Bernhoft, Milwaukee, WI, for
Simkanin.

Appeal from the United States District Court for the
Northern District of Texas.

Before KING, Chief Judge, DAVIS, Circuit Judge,
and ROSENTHAL’, District Judge.

KING, Chief Judge:

Defendant-Appellant Richard Michael Simkanin
appeals his conviction for ten counts of willfully
failing to collect and pay over employment taxes in
violation of 18 U.S.C. § 7202, fifteen counts of

* District Judge of the Southern District of Texas,
sitting by designation.

knowingly making and presenting false claims for
refund of employment taxes in violation of 18 U.S.C.
§ § 287 and 2, and four counts of *400 failing to file
federal income tax returns in violation of 26 U.S.C. §
7203. He also appeals his sentence of eighty-four
months imprisonment. For the following reasons,
we AFFIRM Simkanin's conviction and sentence.

I. BACKGROUND

Defendant-Appellant Richard Simkanin owned
Arrow Custom Plastics, Inc. ("Arrow") since its
incorporation in 1982. In 1993, Simkanin met with
an accountant, Jim Kelly, who advised him that he
would need to change Arrow's accounting method
and that this change would result in an increase in
Arrow's corporate income tax. Simkanin thereafter
began to question the federal tax system's
applicability to him and its validity in general. On
his 1994 and 1995 individual income tax returns,
he made notations (i.e., "UCC 1-207") apparently in
an attempt to indicate that the returns were filed
under protest. He did not file individual tax returns
for the years 1996-2001.

With respect to the 1996 and 1997 returns,
Simkanin told Kelly that he was not required to file
returns because he did not receive any income but
rather lived entirely off of his savings. However, this
statement was false--Simkanin did in fact receive a
salary from Arrow during these years, and his salary
was sufficiently high such that Simkanin owed
federal income taxes. On Arrow's books, Simkanin’'s
salary was initially identified as "officer salary” and
then later as "remuneration," without any reference
to Simkanin being the recipient of the funds.
During these years, Simkanin also received payment
from Arrow for his personal expenses, which were
booked as "repair and maintenance."

In 1996, Simkanin surrendered his’ Texas

- Appx. A2 -

driver's license, and when stopped by the police
while driving, he showed a card styled "British West
Indies International Motor Vehicle Qualification
Card," which he had acquired from a mail order
business in Connecticut. He also mailed to the U.S.
Treasury Secretary a statement that he had
expatriated himself from the United States and
repatriated to the Republic of Texas. He posted the
same statement on Arrow's internet website, where
he also vowed to ignore the laws of the United
States.

In 1997, Simkanin removed his name from
Arrow's checking and credit card accounts,
replacing his name with the name of Arrow's
bookkeeper Dianne Clemonds. Simkanin told '
Clemonds that he did not want his name to appear
on documents requiring his social security number.
Simkanin then listed Clemonds as Arrow's president
on various legal documents, although he retained
complete de facto responsibility for the company's
affairs and continued to make all of the decisions
regarding finances and taxes.

By May 1999, Simkanin had become involved
with an organization called We The _ People
Foundation for Constitutional Education ("WTP"),
which promotes the view that, despite common
misconceptions, there is actually no law that
requires most Americans to pay income taxes or
most companies to withhold taxes from employees’
paychecks. WTP also espouses the view that the
Sixteenth Amendment was fraudulently deciared to
have been ratified. In accordance with these views,
Simkanin told accountant Kelly and others that he
was not required to pay taxes and that filing returns
was purely voluntary. Kelly advised Simkanin that
filing returns was not voluntary and that Simkanin
could get into trouble if he did not file. Simkanin
rejected this advice, and he began to pressure

- Appx. A3 -

Arrow's employees to attend seminars sponsored by
WTP.

*401 In November 1999, Simkanin told Kelly
that Arrow would no longer withhold employment
taxes from employees’ paychecks. Kelly counseled
against this course of action. In response to
Simkanin's stated intentions, Clemonds consulted
with an attorney. She was advised that she could
be personally liable if she went along with
Simkanin's plan to stop collecting and paying over
taxes. Clemonds therefore resigned from her
position at Arrow, and Simkanin returned his name
to the Arrow bank accounts as sole signatory. He
then stopped Arrow's withholding of federal taxes
from the wages paid to its employees.

In January 2000, Simkanin filed with the IRS
fifteen claims for tax refunds. He claimed he was
owed refunds for taxes paid by Arrow in 1997-99
and also for the taxes collected from, and paid by,
Arrow's employees. The IRS denied all of these
claims, and Simkanin did not seek further review.

In March 2000, Kelly and Fred Taylor, a named
partner in Kelly's accounting firm, went to
Simkanin's office to discuss his refusal to withhold
and pay federal taxes or file returns. Simkanin
reiterated that he had no intention of paying taxes.
Taylor advised Simkanin that he could be criminally
prosecuted for his actions and, by letter dated
March 28, 2000, terminated Simkanin and Arrow as
clients.

On March 2, 2001, a full page advertisement by
WTP appeared in USA Today. The ad prominently
displayed the photographs of five men, including
Simkanin. The advertisement stated, inter alia, that
Simkanin and the other men pictured had stopped
withholding taxes from their workers’ paychecks
and that they were part of a "growing number of
people” who believe that:

- Appx. A4 -

1. There is no law that requires workers, as
U.S. citizens earning their money from
domestic companies, to pay income or
employment taxes; nor to have those taxes
withheld;

2. The 16th Amendment (the "Income Tax
Amendment") was fraudulently declared to be
ratified by the Secretary of State in 1913.

The ad concluded with a request for "donations" to
WTP.

On March 14, 2001, Simkanin was advised that
he was the target of a criminal investigation
regarding his failure to file individual income taxes
since 1995 and his failure to collect and pay over
employment taxes since January 2000. In July
2001, Simkanin was served with a grand jury
subpoena that sought the corporate records of
“Arrow Custom Plastics, Inc." In response to the
subpoena, Simkanin dissolved the corporation and
operated Arrow as a sole proprietorship. Despite
Simkanin's refusal to produce Arrow’s corporate
records, the government was able to obtain
information about the amount of wages paid to
Arrow’s employees from the Texas state agency that
collected unemployment taxes from Arrow.

On June 19, 2003, an indictment was returned,
charging Simkanin with twelve counts of willfully
failing to collect and pay over federal income taxes
and Federal Insurance Contribution ("FICA") taxes
from the total taxable wages of Arrow employees in
violation of 26 U.S.C. § 7202,' and *402 fifteen

: Section 7202 provides:

Any person required under this ttle to collect, account
for, and pay over any tax imposed by this title who
willfully fails to collect or truthfully account for and
pay over such tax shall, in addition to other penalties
provide’. by law, be guilty of a felony and, upon

- Apps. AS -

counts * of filing false claims for tax refunds in
violation of 18 U.S.C. § 287. On August 13, 2003,
a superceding indictment was returned, charging
Simkanin with the same substantive crimes but
stating the applicable law more fully.

On September 3, 2003, the parties filed a plea
agreement and a factual resume in which Simkanin
pled guilty to four counts of the superceding
indictment. However, the plea agreement misstated
the maximurn penalty to be lower than the actual
maximum of five years imprisonment and three
years supervised release. The government notified
the court that Simkanin had not actually agreed to
plead to a count with the maximum penalty of five
years incarceration. The court ultimately ordered a
deadline for completing a plea agreement, and when
the government and Simkanin had not agreed to a
new plea agreement by that date, the case went to
trial.

Simkanin's first trial began on November 25,
2003. A number of Simkanin's supporters were
present outside the courthouse handing out
pamphlets on jury nullification. The jury was
unable to reach a unanimous verdict, and the
district court declared a mistrial. One of the jurors
subsequently contacted the court's. staff and
expressed concern about the behavior of Simkanin's
supporters and one of the members of the jury. It
was later revealed that some of the jurors had been
contacted by Simkanin's supporters.

On December 17, 2003, a second superceding
indictment was returned, charging Simkanin with
the same offenses in the first superceding
indictment plus four additional counts of failure to

conviction thereof, shall be fined not more than
$10,000, or imprisoned not more than 5 years, or
both, together with the costs of prosecution.

- Appx. A6 -

file individual income tax returns. Counts One
through Twelve charged Simkanin with willfully
failing to collect and pay over federal income taxes
and FICA taxes from the total taxable wages of
Arrow employees in violation of 26 U.S.C. § 7202
(with each count pertaining to a different tax
quarter). Counts Thirteen through Twenty-Seven
charged Simkanin with knowingly making and
presenting fifteen false claims for the payment of
refunds of the employer's share of FICA taxes paid
by Arrow and of the employees’ share of FICA taxes
and income taxes collected from Arrow's employees
in violation of 18 U.S.C. § § 287 and 2. Finally,
Counts Twenty-Eight through Thirty-One charged
Simkanin with failing to file federal income tax
returns in violation of 26 U.S.C. § 7203.

The second trial began on January 5, 2004.2
Simkanin primarily attempted to establish that he
did not willfully violate the tax laws because he held
a good-faith belief that he was not obligated to pay
individual income taxes or to withhold employment
taxes from the wages paid to Arrow's employees.
Simkanin took the stand and testified that, inter
alia, according to his own research: (1) the
Constitution provides for two types of taxes--a direct
tax and an indirect tax; (2) the income tax is an
indirect tax; (3) a man's labor is his own property
and cannot be subject to an indirect tax; and (4) the
wages that a person receives for his labor are not
subject to the income tax. Simkanin further
testified that he stopped paying his income taxes
and stopped withholding employment taxes from the

2 Simkanin's supporters were again outside the
courthouse and inside the courtroom. However,
security measures were taken to prevent the
supporters from contacting members of the jury pool
or the selected jurors.

- Appx. A7 -

wages of Arrow's employees because he "could not
find out what the tax was on."

To support his defense, a number of other
witnesses testified that they had informed Simkanin
that the federal income *403 tax laws, as written,
did not require Simkanin to pay taxes and that the
income tax was constitutionally invalid. Joseph
Banister, a supporter of WTP, testified that he met
Simkanin at a conference entitled "Citizens’ Summit
to End the Unlawful Operations of the Internal
Revenue Service," at which Banister was a speaker.
Robert Schultz, founder and CEO of WTP, testified
that he advised Simkanin that his research showed
that the Sixteenth Amendment had _ been
fraudulently declared to have been ratified and that
the constitutional definition of the word “income” is
different than the common _ understanding of
income. Larken Rose testified that, through phone
conversations with and emails to Simkanin, he
explained that the income of the average American
is not subject to the federal income tax and that the
law merely applies to people engaged in certain
types of international trade. Banister, Schultz, and
Rose all testified that they did not advise Simkanin
to stop withholding taxes or to stop filing tax
returns. Eduardo Rivera, an attorney from
California, testified that he had consulted with
Simkanin in 1999, that Simkanin had paid him over
$10,000, and that he told Simkanin that his
employees had no legal duty to pay a tax and that
Simkanin only had a duty to send money on their
behalf to the government if he contracted with them
to do so.3
3 Rivera admitted on cross-examination that in 2003 a
permanent injunction had been entered against him,
barring him from making such statements.

- Appx. A8 -

A government witness, a district director for
Congressman Joe Barton, testified that Simkanin
had corresponded with Barton's office regarding
taxes and the IRS. Barton's office had received, and
forwarded to the IRS, letters written by Simkanin
expressing his view that he was not required to
withhold taxes from his workers’ paychecks and
that wages are not a source of income subject to
federal taxation. The district director testified that
Barton's office responded with a letter stating that
Simkanin's stated opinions were based on a flawed
interpretation of the Internal Revenue Code (the
"IRC"), that wages are indeed taxable under federal
laws and _ regulations, and that Simkanin's
interpretation had been rejected by the courts. .

The jury began its deliberations on January 6,
2004, and on January 7, it returned a verdict of
guilty as to Counts Three through Thirty-One. The
jury was unable to reach a verdict as to Counts One
and Two, and the government moved to dismiss
those counts, which the district court did.

At sentencing, the district court applied the 2v03
version of the United States Sentencing Guidelines,
and it determined Simkanin's criminal history
category to be | and his offense level to be Twenty-
Two, with a corresponding sentencing range of forty-
one to fifty-five months imprisonment. The court
decided to depart upwardly from that range,
concluding that a range of eighty-four to 105
months more appropriately reflected the likelihood
that Simkanin would re-offend. The court then
imposed a_ sentence of eighty-four months.
Simkanin appeals both his conviction and his
sentence.

Il. DISCUSSION
A. The District Court's Response to the Jury Note
[1)[2} Simkanin argues that the district court,

- Appx. A9 -

when providing a supplemental jury instruction in
response to a note from the jury, directed a verdict
in favor of the prosecution with respect to one or
more essential elements of the offense. We review
de novo whether a jury instruction *404 directed a
verdict on an element of the offense. See United
States v. Bass, 784 F.2d 1282, 1284 (Sth Cir.1986).
In light of the particular circumstances involved in
this case, we conclude that the district court did not
direct a verdict for the government on an element of
the offense.

In Cheek v. United States, 498 U.S. 192, 201-03,
lil S.Ct. 604. 112 LEd2d 617 (1991), the
Supreme Court defined “willfulness" for
prosecutions under the IRC as _ requiring a
"voluntary, intentional violation of a known legal
duty." The Court reasoned that because of the
complexity of the tax laws, willful criminal tax
offenses must be treated as an exception to the
general rule that ignorance of the law or a mistake
of law is no defense to criminal prosecution. Id.
Moreover, the Court found that a defendant's good-
faith belief that he was not violating the law need
not be objectively reasonable to negate willfulness.
Id. However, the Court distinguished a defense
based on the defendant's good-faith belief that he
was acting within the law from a defense based on
the defendant's views that the tax laws are
unconstitutional or otherwise invalid. Jd. at 204-06,
111 S.Ct. 604. The Court held that the latter belief,
regardless of how genuinely held by the defendant,
does not negate the willfulness element. Thus, the
Court concluded that evidence pertaining to a
defendant's beliefs that the tax laws are invalid is
irrelevant to establishing a legitimate good-faith
defense. Jd.; see also FIFTH CIRCUIT PATTERN
JURY INSTRUCTIONS: CRIMINAL §_ 1.38 (West

- Appx. Al0 -

2001).

The availability of the good-faith defense, while
undeniably sound,* creates a number of
complications and challenges for a district court
beyond those arising in the usual criminal trial, in
which the defendant's beliefs about what the law
requires are not at issue. The defendant in a
criminal tax trial, unlike most other defendants,
must be permitted to present evidence to show what
he purportedly believed the law to be at the time of
his allegedly criminal conduct. At the same time,
however, the district court must be permitted to
prevent the defendant's alleged view of the law from
confusing the jury as to the actual state of the law,
especially when the defendant has constructed an
elaborate, but incorrect, view of the law based on a
misinterpretation of numerous IRC provisions taken
out of proper context. See, e.g., United States uv.
Barnett, 945 F.2d 1296, 1300 (5th Cir. 1991) (stating
that "(t]he jury must know the law as it actually is
respecting a taxpayer's duty to file before it can
determine the guilt or innocence of the accused for
failing to file as required”). The district court in this
case, like other courts in similar cases, struggled to
balance these two competing concerns when it
answered the jury's confusion as to the correct
interpretation of the law, which unsurprisingly
resulted from Simkanin's testimony about his own
erroneous beliefs about the law. Thus, it is with
this set of circumstances in mind that we consider
Simkanin's arguments on appeal.

4 See, e.g., United States v. Burton, 737 F.2d 439, 441
(Sth Cir. 1984) (noting “the pervasive intent of Congress
to construct penalties that separate the purposeful tax
violator from the well-meaning, but easily confused,
mass of taxpayers.” (internal quotation marks
omitted)).

- Appx. All -

OT es

In its initial instructions, the district court
instructed the jury that, in order to convict
Simkanin on Counts One through Twelve (willfully
failing to collect and pay over federal taxes from the
total taxable wages of Arrow employees in violation
of 26 U.S.C. § 7202), the jury must find beyond a
reasonable doubt that: (1) Arrow was an employer
that paid wages to its employees; (2) Simkanin was
an official of *405 Arrow who had responsibility for
its decisions regarding the withholding from its
employees’ wages of Medicare, social security, and
federal income taxes, the accounting for such taxes,
and the payment of such taxes over to the IRS; (3)
Simkanin caused Arrow not to withhold and not to
account truthfully for and pay over such taxes; and
(4) Simkanin's conduct in causing Arrow not to
withhold, account for, and pay over such taxes was
willful. The court further instructed the jury that:

Within the meaning of [26 U.S.C. § 7202],
during the years 2000, 2001, and 2002,
[Arrow], through its responsible officials, had
a legal duty to collect, by withholding from
the wages of its employees, the employees’
share of social security taxes, Medicare taxes,
and federal income taxes, and to account for
those taxes and to pay withheld amounts to
the United States of America.
Simkanin did not object to these instructions at
the time they were given.

At trial, Simkanin testified that one reason
behind his decision not to withhold taxes from
Arrow’s employees was his belief that the IRC, which
is over 7,000 pages long, contains an extensive (and
exclusive) list of industries and activities. Simkanin
stated that because Arrow did not operate in any of
the listed industries or perform any of the listed
activities, he concluded that Arrow’s workers were
not employees under the IRC and that he therefore

- Appx. Al2 -

was not required by law to withhold taxes. He
further stated that he believed that the definition of
an "employee" under the IRC was limited only to
persons who worked for a governmental entity
including the state or a political subdivision
thereof.5
During its deliberations, the jury sent a note to
the district judge asking the following question:
Since no proof has been made that the
defendant and his employees are in an
occupation listed in those 7,000 [pages], are
we to conclude that they are, in fact, not in
that 7,000, or do we need to read all 7,000 to
see what the defendant was referring to, and
in fact, wasn't listed in the 7,000[?]
The court responded to the jury's question by
stating:
Now, in answer to your note: You are
instructed that you do not need to concern
yourself with whether defendant's employees
are in an occupation "listed in those 7,000."
The Court has made a legal determination
that within the meaning of Title 26, United
States Code, Section 7202, during the years

5 Simkanin's position, as defense counsel concedes,
was based on an incorrect view of the law. See, e.g.,
26 U.S.C. § § 3121 (a)-(d), 3306(a)-(c), 340 1(a)-(d); 26
C.F.R.§ § 31.3121 (a)-(d), 31.3306(a)-(c), 31.3401 (a)-
(d); Breaux & Daigle, Inc. v. United States, 9OO F.2d
49, 51-53 (5th Cir.1990); see also Otte v. United
States, 419 U.S. 43, 50-51, 95 S.Ct. 247, 42 L.Ed.2d
212 (1974). This fact is undisputed on appeal, and it
is abundantly clear that Simkanin's testimony on his
views regarding the definition of an “employer” and
“employees” was elicited to support his defense of a
good-faith belief, not to show that Arrow was not an
emplover under the IRC.

- Appx. Al3 -

1997, 1998, 1999, 2000, 2001, and 2002,
[Arrow], through its responsible officials, had
a legal duty to collect, by withholding from
the wages of its employees, the employees’
share of the social security taxes, Medicare
taxes, and federal income taxes, and to
account for those taxes and pay the withheld
amounts to the United States of America.
You are to follow that legal instruction
without being concerned whether there are
certain employers who are not required to
collect and withhold taxes from the wages of
their employees.

*406 Of course, you will bear in mind in your
deliberations all other instructions the Court
has given you concerning the law applicable
to this case.

Defense counsel objected to the court's response
on the ground that, inter alia, the response
"amountied] to an instructed verdict of guilty by
instructing [the jury] on that point since that is the
disputed issue and the basis for his defense."®

The trial transcript, as well as Simkanin's initial
brief, make perfectly clear that the disputed issue at
trial was whether Simkanin willfully violated the
federal tax laws. The basis for his defense was that
he did not willfully fail to collect and pay over taxes
in violation of § 7202 (and that he did not
Knowingly present faise claims for refund) because

6 We assume, without deciding, that Simkanin's
objection to the district court's response to the jury
note preserved the alleged error, even though he did
not object to the district court's original instruction
containing the same language. Thus, we do not review
the alleged error under the considerably less
defendant-friendly plain-error standard under Fed.
R.Crim. P. 52(b).

- Appx. Al4-

he bélieved in good faith that he was not required by
law to withhold such taxes.

Simkanin argues on appeal that the district
court's response to the jury note constituted a
directed verdict on an essential element of the
offense, and therefore reversible error, for two
reasons. First, Simkanin argues that the court's
response erroneously instructed the jury to
disregard Simkanin's good-faith defense. Second,
he asserts that the court directed a verdict for the
prosecution on the first element of the § 7202
offense--that Arrow was an employer that paid
wages to its employees. He contends that the
district court's error in this regard warrants the
vacatur of his conviction as to Counts 3-12 (willful
failure to withhold) and Counts 13-27 (false claims
of refund for taxes withheld).

As we stated in United States v. Cantu, 185 F.3d
298, 305-06 (Sth Cir. 1999):

The district court enjoys wide latitude in
deciding how to respond to questions from a
jury .... Overall, we seek to determine
whether the court's answer was reasonably
responsive to the jury's questions and»
whether the original and supplemental
instructions as a whole allowed the jury to
understand the issue presented to it.

(internal citation and quotation marks omitted). "It
is well established that the instruction may not be
judged in artificial isolation, but must be considered
in the context of the instructions as a whole and the
trial record." Estelle _v. McGuire, 502 U.S. 62, 72,
112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (internal
quotation marks omitted).

In arguing that the district court's response
directed the jury to disregard his good-faith defense,
Simkanin relies on United States v. Burton, 737 F.2d
439 (Sth Cir.1984), a case involving a defendant's

- Appx. Al5-

failure to file income tax returns. In Burton, the
district court instructed the jury that "[t]he court
has ruled as a matter of law that a good faith belief
that wages are not income is not a defense to the
charges in this case." 737 F.2d at 440. We
reversed, holding that a defendant's good-faith belief
that the tax laws did not require him to file returns
(as opposed to a belief that the tax laws are invalid
or unconstitutional) would have negated the willful
element of the charged offense and _ therefore
constituted a valid defense.” Id. *407_at_ 441-42.
Burton is easily distinguishable, however, because
unlike the district court in Burton, the district court
in the present case did not explicitly instruct the
jury to disregard the defendant's beliefs about the
applicability of the tax laws. Rather, the court
instructed the jury that the defendant's purported
view of the law--that the fact that the IRC did not
list his business activities alleviated him from a legal
duty to withhold taxes--was incorrect. Thus, the
district court acted properly under _ the
circumstances. See Barnett, 945 F.2d at 1300. We
see nothing in the district court's instruction that
would have led the jury to believe that it must
disregard Simkanin's good-faith defense on the
willfulness element, especially because the court
specifically instructed the jury to keep in mind the
other instructions, which included its instruction on
willfulness.8 Thus, the jury remained free to decide

? Similarly, Simkanin cites Cheek, 498 U.S. at 192,
111 S.Ct. 604, for the proposition that a district court
errs when it instructs a jury to disregard the
defendant's evidence of a good-faith misunderstanding
of the tax laws.

8 As we discuss below, the district court adequately
instructed the jury on the wilifulness element to allow
Simkanin to advance his good-faith defense.

- Appx. Al6-

the contested issue in the ttrial, i.e., whether
Simkanin's violations of the tax laws were willful as
that term was properly defined in the jury
instructions.

Second, in a clever reconstruction of the district
court's response to the jury note, Simkanin argues
that the court's response constituted a directed
verdict on another element of the offense, which was
uncontested at trial-- namely, the requirement that
Arrow was an employer that paid wages to its
employees. Counsel contends that, after the court
informed the jury of its legal determination that
Arrow had a legal duty to withhold, the jury logically
could no longer find that Arrow was not an employer
that paid wages to its employees--for if the jury
found that Arrow was not an employer that paid
wages to its employees, then it would mean that
Arrow, in effect, did not have a legal duty to
withhold taxes. This reading of the court's
response, while plausible in a literal sense, is
entirely divorced from a reading of the instructions
as a whole, as well as from the context in which the
jury asked its question and the court responded.

Simkanin relies heavily on this court's decision
in Bass, 784 F.2d at 1282. In Bass, the defendant
was charged with willfully submitting false or
fraudulent income tax withholding exemption
statements to employers in violation of 26 U.S.C. §
7205. 784 F.2d at 1283. The defendant asserted as
one of his defenses that he could not be held
criminally liable under § 7205 because he was not
an "employee" for the purpose of supplying
withholding information on a W-4 to his employer.
Despite this defense, the district court in Bass
instructed the jury that "as a matter of law the

defendant ... was an employee of" the company in

question. /d. at 1284. We found this instruction to

be constitutionally erroneous’ because, “by
- Appx. Al? -

instructing the jury that Bass was an employee, the
district court relieved the prosecution of its duty of
proving, beyond a reasonable doubt, Bass's guilt of
every element of the offense charged." /d. at 1284-
85.

Unlike in Bass, however, the district court in the
present case did not explicitly direct a verdict on an
essential element of the offense. At most, the
court's response, when viewed in isolation, could be
interpreted as implicitly requiring the jury to find
that Arrow was an employer that paid wages to its
employees, lest the jury's finding on that element
logically conflict with the district court's instruction.
However, the district court also expressly instructed
the jury at least twice that, in order to convict
Simkanin under § 7202, it must determine beyond
a reasonable doubt that Arrow was an employer that
paid wages to its employees. Furthermore, *408
when the court answered the jury's question, it
reminded the jury to consider all the other
instructions that had been given. Thus, when
viewed in the context of the entire jury charge, the
district court's response merely instructed the jury
that Simkanin's belief that he was not required to
withhold taxes because Arrow's activities were not
listed in the 7,000 pages of the IRC was an incorrect
view of the law, and that, if the jury found that
Arrow was an employer that paid wages to its
employees, Simkanin had a legal duty to withhold
despite his professed belief to the contrary.? Hence,
the district court's answer was_ reasonably
responsive to the jury's question and was a correct
Statement of the law--it instructed the jury that
whether or not Arrow’s business activity appears on

9 Moreover, it is of no event that the district court used
the term “employees” in its response because the jury's
own question referred to Arrow's “employees.”

- Appx. Al8 -

a list in the IRC is irrelevant to whether Simkanin
had a legal duty to withhold. See Cantu, 185 F.3d
at 305-06. The original and supplemental
instructions as a whole allowed the jury to
understand the issue presented to it and required
the jury to decide whether the government had
proven each essential element beyond a reasonable
doubt. See id. Accordingly, we conclude that, when
the district court's response is viewed in the context
of the instructions in their entirety, there was not a
reasonable likelihood that the jury applied the
instruction as if it were a directed verdict on that
element of the offense. See United States v. Phipps,
319 F.3d 177, 189-90 (Sth Cir.2003) ("The question
is ... whether this single misstatement makes the
instruction defective as a whole .... [Tjhe proper
inquiry is not whether the instruction could have
been applied in an unconstitutional manner, but
whether there is a reasonable likelihood that the
jury did so apply it." (internal citation and quotation
marks omitted)); United States v. Musgrave, 483
F.2d 327, 335 (Sth Cir.1973). Accordingly, we find
no error in the district court's response to the jury
note.

[3] Moreover, even if we were to conclude that the
district court's response to the jury note was
erroneous, which we do not, we still would not
reverse on this ground. In this case, both parties
agree that we should affirm if the government proves
that the alleged error was harmless beyond a
reasonable doubt.!° See Neder v. United States, 527

10 Although at oral argument Simkanin's defense
counsel argued that the type of error alleged here is
not subject to harmless-error review, defense counsel,
in supplemental briefing submitted after oral
argument, reverted to the position taken in its initial
briefs--i.e., that if the district court’s response directed

- Appx. Al9 -

U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999);
Chapman uv. California, 386 U.S. 18, 23, 87 S.Ct.
824, 17 L.Ed.2d 705 (1967). Therefore, we would
proceed under that assumption, and we would
conclude that the government has met its burden to
establish that any error here was harmless. In
Bass, 784 F.2d at 1285, we stated that we could not
deem the court's explicit directed verdict on the
"employee" element harmless "[blecause one of
Bass's defenses was that he was not an ‘'employee|
|'...." Here, however, one of Simkanin's defenses was
not that Arrow was not an employer that paid wages
to its employees under the IRC (although one of his
defenses was that he did not willfully violate the law
because he erroneousiy believed that Arrow was not
an employer that paid wages to its employees under
the IRC). During the course of the trial, defense
*409 counsel introduced no evidence that Arrow
was not an employer that paid wages to its
employees, and defense counsel did not argue or
otherwise suggest during the trial that the
prosecution had not established this element
beyond a reasonable doubt. On appeal, Simkanin
does not point to any evidence introduced
supporting the notion (or any conceivable basis
upon which a rational juror could conclude) that
Arrow was not an employer that paid wages to its
employees under a legally accurate interpretation of
the relevant sections of the IRC. Rather, Simkanin
falls back on the argument that it is possible that
the jury could have decided that the government's
evidence, although uncontradicted, did not establish
that element beyond a reasonable doubt. However,

a verdict on an essential element of the offense, the
error is subject to harmless-error analysis and that we
may affirm only if the government establishes that the
error was harmless beyond a reasonable doubt.

- Appx. A20 -

we believe that it would have been irrational for the
jury to do so, and Simkanin's argument does not
suffice to raise a reasonable doubt in our minds that
the jury might have concluded that Arrow was not
an employer that paid wages to its employees. This
is an instance in which the relevant element was
“supported by uncontroverted evidence” and in
which the "defendant did not, and apparently could
not, bring forth facts contesting the omitted
element." Neder, 527 U.S. at 18-19, 119 S.Ct. 1827.
Accordingly, applying the harmless-error standard
agreed upon by the parties, we would find any error
here to be harmless beyond a reasonable doubt.

B. Instruction on Good-Faith
Simkanin next argues that the district court
erred by refusing to include a_ specific jury
instruction on his good-faith defense. As noted
above, the district court's instructions with respect
to Counts 1-12 (failure to withhold) stated that the
jury must find beyond a reasonable doubt that
Simkanin's conduct in causing Arrow not to
withhold and not to account truthfully for and pay
over such taxes was willful. In elaborating on the
meaning of the term “willful,” the court instructed
the jury that:
To act willfully means to act voluntarily and
deliberately and intending to violate a known
legal duty. For the government to establish
willfulness as to Counts 1-12 of the
indictment, it must prove beyond a
reasonable doubt as to the count in
consideration that defendant knew of the
requirements of federal law that [Arrow]
collect, by withholding from its employees
wages, Medicare taxes, social security taxes,
and federal income taxes, and to account for
such taxes and pay them over to the [IRS],

- Appx. A2l -

and that he voluntarily and _ intentionally
caused [Arrow] to fail to comply with these
requirements.

With respect to Counts 13-27 (false or fraudulent
refund claims), the court instructed that the
government must prove beyond a reasonable doubt
that: (1) Simkanin "knowingly presented to an
agency of the United States a false or fraudulent
claim against the United States;" (2) Simkanin
"knew that the claim was false or fraudulent;" and
(3) the false or fraudulent claim was material. The
court instructed that "knowingly, as that term has
been used in these instructions, means that the act
was done voluntarily and intentionally, not because
of a mistake or accident.”

Finally, with respect to Counts 28-31 (failure to
file returns), the court instructed the jury that it
must find beyond a reasonable doubt that: (1)
Simkanin received gross income in the amounts
stated in the indictment for the year in question
(this element was satisfied by a stipulation); (2)
Simkanin failed to file an income tax return, as
required, by the date stated in the indictment; (3)
Simkanin knew he was required to file a return;
and (4) Simkanin's failure to file was willful. The
court then reminded the jury “that to act willfully
means to act voluntarily and deliberately *410 and
intending to violate a known legal duty." The court
further stated that "[flor the government to establish
willfulness as to Counts 28-31 of the indictment, it
must prove beyond a reasonable doubt as to the
count under consideration that the defendant knew
of the requirement of federal law that he file an
income tax return, and that he voluntarily and
intentionally failed to do so."

Defense counsel objected to these instructions on
the ground that thev did not include a specific
instruction on good faith under Cheek, 498 U.S. at

- Appx. A22 -

192, 111 S.Ct. 604. Counsel argued that, for this
reason, the district court failed to instruct the jury
on the defense's theory of the case. Defense counsel
also objected to the use of the phrase "known legal
duty,” rather than "known to the defendant." The
district court overruled these objections.

[4][5][6] This court reviews a district court's
refusal to include a defendant's proposed jury
instruction in the charge under an abuse of
discretion standard. United States v. Rochester, 898
F.2d 971, 978 (5th Cir.1990). The district court
abuses its discretion by refusing to include a
requested instruction only if that instruction: (1) is
substantively correct; (2) is not substantially
covered in the charge given to the jury; and (3)
concerns an important point in the trial so that the
failure to give it seriously impairs the defendant's
ability to present effectively a particular defense.
United States v. St. Gelais, 952 F.2d 90. 93 (5th
Cir.1992). Under this test, this court will not find an
abuse of discretion where the instructions actually
given fairly and adequately cover the issues
presented by the case.!! Rochester, 898 F.2d at
978.

[7] As we discussed above, in Cheek, 498 U.S. at
201-04, 111 S.Ct. 604, the Supreme Court defined

'! Relying on language from Mathews v. United States,
485 U.S. 58, 63, 108 S.Ct. 883. 99 L.Ed.2d 54 (1988),
Simkanin argues that he was entitled to an instruction
on any defense supported by the evidence. However,
Mathews addresses whether a defendant can
simultaneously raise contradictory defenses, and the
broader language from Mathews has no bearing on the
issue presented here because the district court did not
deny Simkanin's requested instruction on the basis
that it was not supported by sufficient evidence. See
Mathews, 485 U.S. at 63, 108 S.Ct. 883.

- Appx. A23 -

“willfulness" for prosecutions under the IRC as
requiring a “voluntary, intentional violation of a
known legal duty.". The Court further found that,
because of the complexity of the federal tax laws,
criminal tax offenses with willfulness as an element
must be treated as an exception to the general rule
that a mistake of law is not a valid defense. Id.
Thus, a defendant's good-faith belief that he is
acting within the law negates the _ willfulness
element. On the other hand, a defendant's good-
faith belief that the tax laws are unconstitutional or
otherwise invalid does not negate the willfulness
requirement, and such evidence is_ therefore
irrelevant to a good-faith defense. Jd.; see also
FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS:
CRIMINAL § 1.38.

The Supreme Court in Cheek derived its
definition of willfulness from United States ov.
Pomponio, 429 U.S. 10, 97 S.Ct. 22, 50 L.Ed.2d 12
(1976) (per curiam). In Pomponio, a case involving
criminal charges of falsifying tax returns, the district
court instructed the jury that a willful act meant
“one done voluntarily and intentionally and with the
specific intent to do something which the law
forbids, that is to say with [the] bad purpose either —
to disobey or to disregard the law.” 429 U.S. at 11,
97_S.Ct. 22 (internal quotation marks omitted)
(alterations in original). The district court also
instructed the jury that " ‘[glood motive alone is
never a defense where the act done or omitted is a
crime, and that consequently *411 motive was
irrelevant except as it bore on intent.” Jd. (alteration
in original). The court of appeals held that the final
instruction was improper because the relevant
statute required a finding of bad purpose or evil
motive. Jd. The Supreme Court reversed, noting
that the court of appeals incorrectly assumed that

- Appx. A24 -

the reference to "evil motive” in an earlier Supreme
Court case meant something more than specific
intent to violate the law. Id. The Court stated that
“willful,” as the term is used in the tax statutes,
means “a voluntary, intentional violation of a known
legal duty." Jd. The Court determined that because
the district court had instructed the jury as to that
definition, the jury had been adequately instructed
on willfulness, and an additional instruction on
good faith was thus unnecessary. Jd.

[8] Accordingly, the district court in the present
case was not required to include a_ specific
instruction on good-faith because it adequately
instructed the jury on the meaning of willfulness
under Cheek and Pomponio. In other words,
Simkanin's requested instruction was "substantially
covered in the charge given to the jury" regarding
willfulness. See St. Gelais, 952 F.2d at 93. In
addition, taken together, the trial, charge, and
closing argument laid the theory of the defense
squarely before the jury, and the lack of the
requested instruction did not seriously impair
Simkanin's ability to present effectively his good-
faith defense.!2 /d.; United States v. Proctor, 118

Se re ne

12 As discussed more fully below, Simkanin argues
that the district court restricted his ability to present
his good-faith defense at trial. However, we address
here Simkanin’s argument’ concerning closing
argument. Simkanin notes that the distnct court
limited defense counsel to only fifteen minutes for
closing argument. However, he concedes that he did
not object below on this basis, and he explicitly states
that he does not challenge on appeal the district
court's limitation of closing argument. At the same
time, however, Simkanin argues that the limitation on
closing argument should shade our analysis of the
issues that he actually raises on appeal. In light of the

- Appx. A25 -

Fed.Appx. 862, 863 (5th Cir.2004) (per curiam)
(unpublished) (quoting United States v. Gray, 751
F.2d 733, 735-36 (Sth Cir. 1985)).

Finally, Simkanin complains that the phrase
"known legal duty" in the instructions did not make
it clear that the legal duty must have been known to
the defendant. This claim ignores the next sentence
of the instructions, which stated: "For the
government to establish willfulness as to Counts 1-
12 of the indictment, it must prove beyond a
reasonabie doubt as to the count in consideration
that defendant knew of the requirements of federal

law ... and that he voluntarily and intentionally
caused [Arrow] to fail to comply with these
requirements.” Similarly, Simkanin ignores the

actual language of the district court's instructions
when, citing FIFTH CIRCUIT PATTERN JURY
INSTRUCTIONS: CRIMINAL § 1.37, he asserts that
the district court did not instruct the jury that a

particular circumstances of this case, we do not agree
that the limitation on closing argument somehow
rendered the instruction on willfulness erroneous.
Defense counsel was entirely free to argue, and did in
fact argue, the good-faith defense to the jury during
the allotted time period, and, as discussed below, the
district court did not unfairly restrict Simkanin's
presentation of evidence to establish that defense. The
restriction on closing was applied evenhandedly to
both the defense and the prosecution. The trial lasted
only two days and involved relatively few witnesses _ It
involved a single theory of the defense, which was
based on Simkanin’'s beliefs about the requirements of
the federal tax laws (not the validity of those laws,
which are irrelevant to willfulness under Cheek).
Thus, we are not persuaded that the limitation on
closing unfairly curtailed defense counsel's ability to
present Simkanin's good-faith defense.

- Appx. A26 -

defendant did not "knowingly" commit a *412 tax
offense if he acted by mistake. In fact, as noted
above, the district court explicitly instructei the
jury that "knowingly, as that term has been used in
these instructions, means that the act was done
voluntarily and intentionally, not because of a
mistake or accident." Thus, Simkanin's argument
fails.

C. Evidentiary Rulings

[9] Simkanin's last argument with respect to his
conviction is that the district court unfairly and
arbitrarily excluded defense evidence and restricted
the scope of cross-examination, thus hampering the
presentation of his good-faith defense. We review a
district court's rulings on the admission or
exclusion of evidence for an abuse of discretion.
United States v. Flitcraft, 803 F.2d 184, 186 (5th
Cir. 1986).

{10} Simkanin argues that the district court erred
because it allowed him only briefly to say what he
knew, believed, and understood, but that it did not
allow him to corroborate his sincerity in these
assertions because it excluded from evidence certain
documents on which Simkanin allegedly relied for
his beliefs about the tax laws.!3 The district court,
however, explained that it did so because the
documents would tend only to confuse the jury
about the relevant issues in the case and were
cumulative of Simkanin's testimony about what the
documents said and how he relied upon them in
forming his beliefs about what the tax laws required

'3 Simkanin does not specifically identify all of the
evidentiary rulings that he claims were erroneous;
rather, he advances a broader contention that the
district court's evidentiary rulings as a whole
prejudiced his ability to assert his defense.

- Appx. A27 -

of him. Rule 403 of the Federal Rules of Evidence
states that “[ajlthough relevant, evidence may be
excluded if its probative value is_ substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." In
this instance, the district court did not abuse its
discretion in concluding that the probative value of
this evidence was far outweighed by its tendency to
confuse the jury as to the correct state of the law
and by its cumulative nature.

In Flitcraft, 803 F.2d at 185-86, we addressed the
defendants’ claim that the district court had erred in
excluding the documents upon which they allegedly
relied in forming their beliefs about the tax laws;
the defendants argued that such documents would
increase the likelihood that the jury would credit the
sincerity of the defendants’ purported beliefs. This
court held that the district court did not abuse its
discretion in excluding the evidence under
Fed.R.Evid. 403 because the documents had little
probative value, as they were largely cumulative of
the defendants’ testimony as to their contents and
the defendants’ reliance on them. Flitcraft, 803 F.2d
at 186. Furthermore, we stated that "the documents
presented a danger of confusing the jury by
suggesting that the law is unsettled and that it
sheuld resolve such doubtful questions of law." Id.

in Barnett, 945 F.2d at 1301, we once again
addressed the problem confronting a district court
called upon to engage in "the delicate balancing
required by Rule 403" when determining the
admissibility of evidence to support a defendant's
good-faith beliefs in a tax evasion case. We noted
"the need to allow the defendant to establish his
beliefs through reference to tax law sources and the

- Appx. A2S -

need to avoid unnecessarily confusing the jury as to
the actual state of the law." Jd.. Relying on Flitcraft,
we determined that the district court did not abuse
its discretion in excluding *413 documentary
evidence because the district court had allowed the
defendant to explain his understanding of the
documents’ while excluding the documents
themselves to avoid unnecessarily confusing the
jury. _Id. Thus, as in Flitcraft and Barnett, we
conclude that the district court in the present case
did not abuse its discretion in making the
evidentiary rulings of which Simkanin complains. '*

[11}{12] With respect to the more _ specific
evidentiary errors alleged by Simkanin, we similarly
conclude that the district court did not abuse its
discretion. Simkanin claims that the distnct court
erred by admitting a document entitled
"Proclamation of Warning,” which Simkanin had
posted on his website. In summary, the document
declared that Simkanin is a servant of God and that
public officials should be warned not to harm him or
his household, lest they wish to enter “into a state of
war against Almighty God" and to suffer “the fury of
a fire which will consume [them]." The government
responds that Simkanin opened the door to this
evidence when defense counsel questioned
Simkanin about now his religious beliefs told him

'¢ Simkanin avers that the district court's evidentiary
rulings were not evenhanded because it permitted the
government to introduce § 3402 as proof that
Simkanin had been shown, and therefore actually was
aware of, the correct law concerning withholding.
However, we do not find this disparity dispositive
because the admission of § 3402 did not raise the
possibility of confusing the jury in the same manner as
the defense exhibits.

- Appx. A29 -

not to withhold taxes from the paychecks of his
employees. When defense counsel requested that he
be able to question Simkanin on his religious
beliefs, the government replied that it would open
the door to the admission of the Proclamation. The
district court acknowledged that it probably would,
but it allowed defense counsel the option to proceed
with the testimony on Simkanin's religious views.
Simkanin testified that the Bible told him that God
is entitled to the first fruits of a person's labor and
that if he withheld taxes from his employees, then
he was stealing the first fruits of their labor. It is
not clear why defense counsel introduced
Simkanin's own testimony on this issue because his
statements that the tax laws contradicted his
religious views were irrelevant to his good-faith
defense under Cheek. It is perhaps less clear what
probative value the Proclamation had on the
relevant issues, but defense counsel was warned
that testimony concerning Simkanin's religious
views about the tax laws might open the door to
other evidence concerning his religious views. In
any event, even if the district court did abuse its
discretion in admitting the Proclamation, we are
convinced that it was harmless in the overall
scheme of the trial. At most, the Proclamation
showed that Simkanin held certain beliefs, which
would tend to support his good-faith defense rather
than refute it.

[13] Next, Simkanin complains that the district
court erred by admitting IRS press releases warning
taxpavers about various “scams” and "schemes"
(including employers who claim that they need not
withhold taxes). However, we do not agree that the
potentially prejudicial nature of the documents
outweighed the probative value of these documents,
which showed that Simkanin had been explicitly
warned about the illegality of his activities. Thus,

- Appx. A30 -

the district court did not abuse its discretion.

[14] Simkanin also argues that, in an in limine
ruling, the district court unfairly restrained defense
counsel from introducing any documentary evidence
without first approaching the _ bench. The
government responds that the district court's ruling
*414 was justified by the nature of the documents
on the defense exhibit list, which included the
Communist Manifesto,. multiple versions of the
Bible, and various publications translating Greek
and Hebrew. We agree with the government that the
district court did not abuse its discretion given this
exhibit list. Moreover, the documents actually
excluded on the basis of the in limine ruling would
have been properly excluded under Rule 403 for the
reasons stated above (i.e., they were cumulative and
potentially confusing).

[15] Next, Simkanin claims that the district court
unfairly restricted the cross-examination of
government witnesses, such as IRS agents Cooper
and Eastman. The district court prohibited certain
questions by defense counsel because the questions
were beyond the scope of direct and because, in the
court's opinion, the questions attempted to show
that the IRS agent's views of the law were incorrect
and that Simkanin's views were actually correct.
Simkanin argues that defense counsel's questions
merely attempted to demonstrate the
reasonableness of Simkanin's beliefs. Citing Olden
v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102
L.Ed.2d 513 (1988) (per curiam), Simkanin claims
that these rulings violated the Confrontation Clause
of the Sixth Amendment. However, the district
court did not abuse its discretion in determining
that the questions were beyond the scope of direct,
see Fed.R.Evid. 611(b), and Simkanin was free to
recall the witnesses during his presentation of
evidence, although he did not attempt to do so.

- Appx. A3l -

Thus, his Confrontation Clause rights were not
implicated. Moreover, the district court did not
abuse its. discretion because Simkanin was
permitted to testify (and present the testimony of
other witnesses) about his beliefs and because this
line of questioning may have served to confuse the
jury unnecessarily.

D. Upward Departure

With respect to his sentence, Simkanin argues
that the district court erred by upwardly departing
from the sentencing range established by the
Guidelines. Prior to the upward departure, the
sentencing range established by the Guidelines was
forty-one to fifty-one months imprisonment (for a
criminal history category of I and an offense level of
Twenty-Two). Simkanin does not contend that the
district court erred in calculating this range.
However, the district court decided to depart
upwardly, and it imposed a sentence of eighty-four
months imprisonment. At the sentencing hearing,
the district court stated that USSG. §
2K2.0(a)(2}(B)'5 justified an upward departure
because: (1) Simkanin "has displayed contempt and
disrespect for the laws of the United States of
America, the State of Texas, and the city of Bedford,"

'SU.S.S.G.§ 5K2.0(a}(2)(B) (2003) provides:

(a) Upward Departures in General and Downward
Departures in Criminal Cases Other Than Child
Crimes and Sexual Offenses....

(2) Departures Based cm Circumstances of a Kind not
Adequately Taken into Consideration....

(B) Unidentified Circumstances.--A departure may be
warranted in the exceptional case in which there is
present a circumstance that the Commission has not
identified in the guidelines but that nevertheless is
relevant to determining the appropriate sentence.

- Appx. A32 -

and he has further confirmed that contempt in his
conduct since his bail was revoked; (2) he and
those who share his views have a cult-iike belief that
the laws of the United States do not apply to them;
(3) Simkanin has entrenched himself in anti-
government groups and is part of a movement
whose members question the power of the federal
government and its instrumentalities, including the
federal *415 courts, to exercise jurisdiction and
authority over them; (4) his beliefs have led him to
act in a manner inconsistent with the laws of the
United States (ranging from giving up his driver's
license, threatening to kill federal judges,'© and
failure to comply with the federal tax laws);- and (5)
the court was satisfied that Simkanin would
continue to act on those beliefs in the future. In
addition, the district court stated that U.S.S.G. §
4A1.3(a}{1)!7 further justified the departure because,
despite Simkanin's lack of a prior criminal record,
"based on defendant's radical beliefs relative to the
laws of the United States, it is likely that he will
commit future tax-related crimes."

The district court explained that in determining
the extent of the departure in accordance with

16 A person present at a meeting at Simkanin’s place of
business reported that Simkanin stated "I think we
need to knock off a couple of federal judges. That will
get their attention."

'7U.S.S.G. § 4A1.3(a)(1) provides:

(a) Upward Departures.--

(1) Standard for Upward Departure.--If reliable
information indicates that the defendant's criminal
history category substantially under-represents the
seriousness of the defendant's criminal history or the
likelihood that the defendant will commit other crimes,
an upward departure may be warranted.

- Appx. A33 -

CO)

U.S.S.G. § 4A1.3(a)(4),'8 the court used “as a
reference, the criminal history category applicable to
defendants whose likelihood to recidivate most
closely resembles that of the defendant's." The
court concluded that, for the reasons already
discussed, Simkanin's likelihood to recidivate most
closely resembles that of defendants whose criminal
history category is VI. This produced a total offense
level of Twenty-Two and a criminal history category
of VI, resulting in a sentencing range of 84-105
months. The district court then sentenced at the
bottom of that range and imposed an eighty-four
month sentence.

Simkanin argues that the district court erred in
imposing an upward departure on the grounds
articulated at the sentencing hearing because: (1) it
did not include a written statement of reasons in the
judgment as required by 18 U.S.C. § 3553(c)(2);!9
(2) the district court impermissibly based its

i8U.S.S.G.§ 4A1.3(a}(4) provides:
(4) Determination of Extent of Upward Departure.--
(A) In General.--Except as provided in subdivision (B),
the court shall determine the extent of a departure
under this subsection by using, as a reference, the
criminal history category applicable to defendants
whose criminal history or likelihood to recidivate most
closely resembles that of the defendant's.
'Y Section 3553(c) provides:
(c) Statement of reasons for imposing a sentence.--The
court, at the time of sentencing, shall state in open
court the reasons for its imposition of the particular
sentence, and, if the ‘sentence--
(2) is not of the kind, or is outside the range, described
in subsection (a)(4), the specific reason for the
imposition of a sentence different from that described,
which reasons must also be stated with specificity in
the written order of judgment and commitment ....

- Appx. A34-

departure on grounds. involving Simkanin's
associations and beliefs, in violation of the First
Amendment; and (3) the district court's belief that
Simkanin posed a danger of recidivism was not
supported by evidence.
[16] We recently discussed the appropriate
standard of review to employ when reviewing a
district court's decision to depart upwardly from the
sentencing range established by the Guidelines. See
United States v. Smith, 417 F.3d 483, 489-92, 2005
WL_ 1663784, *4-6 (Sth Cir. July 18, 2005). *416
There, we explained that the Supreme Court's
decision in United States v. Booker, --- U.S. ----, 125
S.Ct. 738, 160 L.Ed.2d 621 (2005), directed us to
return essentially to the abuse-of-discretion
standard employed prior to 2003:
Prior to 2003, our review of departure
decisions was for abuse of discretion,
pursuant to § 3742(e). In Apml 2003,
Congress amended § 3742(e), altering our
standard of review with respect to the
departure decision to de novo. Under this
scheme, while the decision to depart was
reviewed de novo, the degree of departure was
still reviewed for abuse of discretion. Then, in
January 2005, the Supreme Court in Booker
excised § 3742(e), leaving the appellate
courts to review sentences for
reasonableness. The Court explained that it
was essentially returning to the standard of
review provided by the pre-2003 text, which
directs us to determine whether the sentence
is unreasonable with regard to § 3553(a).
Section 3553(a) remains in effect, ard its
factors guide us in determining whether a
sentence is unreasonable.

Smith, 417 F.3d at 489-90, 2005 WL 1663784 at *4

- Appx. A35 -

(footnotes and internal quotation marks omitted);2°
see also id. at 490 n. 24, 2005 WL 1663784 at *4 n.

24; United States v. Harris, 293 F.3d 863, 871 (Sth
Cir.2002).2!_|[FN21{ Applying this standard, we

20 As the Smith court noted, 18 U.S.C. 3553(a) states:
(a) Factors to be considered in imposing a sentence.--
The court shall impose a sentence sufficient, but not
greater than necessary, to comply with the purposes
set forth in paragraph (2) of this subsection. The
court, in determining the particular sentence to be
imposed, shall consider--

(1) the nature and circumstances of the offense and
the history and characteristics of the defendant;

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;

(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and

(D) to provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective manner;
(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range
established for ... the applicable category of offense
committed by the applicable category of defendant as
set forth in the guidelines ...;

(S) any pertines? {sentencing guidelines] policy
statement ... [;}

(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the
offense.

2! In Harris, 293 F.3d at 871, the court stated:

We review a district court's departure from the range
established by the Guidelines for abuse of discretion.

- Appx. A36 -

conclude that Simkanin is not entitled to
resentencing.

{17] First, Simkanin argues that the district
court did not include its written statement of
reasons in its judgment of conviction and sentence
as required by 18 U.S.C. § 3553(c)(2). We disagree.
The judgment clearly states that the Statement of
Reasons and personal information about *417 the
defendant are set forth in an attachment to the
judgment. Although Simkanin argued in his
principal brief that the district court never drafted a
written statement of reasons, he concedes in his
reply brief that the court did so and that the written
statement is virtually identical to the oral reasons
given by the district court at sentencing. He also
concedes that, after he filed his initial brief, he
received a copy of the written statement, which was
in the sealed part of the appellate record, as is the
common practice in this circuit, and was available
to defense counsel. Thus, Simkanin's argument
that the district court did not author and include in
the record a written statement of reasons is wrong.
Furthermore, we find no merit in Simkanin's
unsupported argument in his supplemental brief

The district court's decision is accorded substantial
deference because it is a fact intensive assessment and
the district court's findings of fact are reviewed for
clear error. However, the district court's interpretation
of the Guidelines is a question of law, reviewed de
novo; a district court abuses its discretion by
definition when it makes an error of law. Determining
whether a factor is permissible to take into account
when considering a departure is one of these questions
of law. A district court abuses its discretion if it
departs on the basis of legally unacceptable reasons or
if the degree of the departure is unreasonable.
(internal citations omitted).

- Appx. A37 -

that he is entitled to resentencing simply because
the written reasons were attached to the judgment
and referenced after the judge's signature, as
opposed to appearing before the judge's signature.
[18] Second, Simkanin argues that the district
court erred because it upwardly departed on an
impermissible basis--namely, because of his
associations and beliefs. Given the particular facts
of this case, however, his argument fails. In
Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093,
117 L.Ed.2d 309 (1992), the Supreme Court held
that it was constitutional error to admit a
stipulation of the defendant's membership in a
racist prison gang, The Aryan Brotherhood, as an
aggravating factor for consideration in sentencing.
Dawson, 503 U.S. at 164-67, 112 S.Ct. 1093. The
Court reasoned that the defendant's membership
had no relevance whatsoever to the crime in
question, which was not racially motivated or
otherwise connected to the beliefs of the gang, and it
noted that the prosecution had ‘ntroduced (via a
Stipulation) evidence’ establisning only that
defendant was a member and that the gang held
white supremacist views, not any evidence showing
the gang's violent and unlawful tendencies. /d. The
Court explicitly recognized, however, _ that
consideration of a defendant's beliefs and
associations might be appropriate in some instances
in making sentencing decisions about the likelihood
that the defendant will engage in future criminal
activity. Jd. at 165-66, 112 S.Ct. 1093. The Court
stated that "the Constitution does not erect a per se
barrier to the admission of evidence cencerning
one's beliefs and associations at sentencing simply
because those beliefs and associations are protected
by the First Amendment." /d. at 165, 112 S.Ct.
1093. Moreover, the Court explained that "[{i]n many

- Appx. A38 -

cases, for example, associational evidence might
serve a legitimate purpose in showing that a
defendant represents a future danger to society|;][a]
defendant's membership in an organization that
endorses the killing of any identifiable group, for
example, might be relevant to a jury's inquiry into
whether the defendant will be dangerous in the
future." Jd. at 166, 112 S.Ct. 1093.

Simkanin's beliefs and associations may be
considered if they were "sufficiently related to the
issues at sentencing.” Boyle v. Johnson, 93 F.3d
180, 183-85 (Sth Cir.1996). Here, Simkanin's
sentence was not increased merely because of his
abstract beliefs or associations. Rather, Simkanin's
specific beliefs that the tax laws are invalid and do
not require him to withhold taxes or file returns
(and his association with an organization that
endorses the view that free persons are not required
to pay income taxes on their wages) are directly
related to the crimes in question and demonstrate a
likelihood of recidivism.22 Thus, *418 the district
court did not constitutionally err in considering

22 This court reached a similar conclusion in an
unpublished opinion, United States v. Tampico, 297
F.3d 396 (5th Cir.2002) (per curiam) (unpublished), a
child pornography case in which the court upheld an
upward departure that was based in part on the
defendant's membership in the North American Man
Boy Love Assvciation, which advocates sexual
relationships between men and underage boys. The
court concluded that the defendant's membership in
the organization was relevant to sentencing because it
may indicate the increased likelihood of recidivism.
Tampico, 297 F.3d at 402-03. As Simkanin correctly
points out, Tampico is not binding precedent.
Nonetheless, its reasoning is persuasive in light of
Dawson and Boyle.

- Appx. A39 -

these factors. See id. at 183-85; see also Fuller _v.
Johnson, 114 F.3d 491, 497-98 (Sth Cir.1997}
(finding that the defendant's membership in a racist
gang was properly considered in sentencing because
it went to future dangerousness in light of the
evidence showing the gang's violent tendencies).?°

Simkanin also briefly argues that the district
court's finding that he held “contempt and
disrespect for the law" was not a proper basis for
upward departure. Relying solely on United States
v. Andrews, 390 F.3d 840, 847- 48 (5th Cir.2004),
he claims that the appropriate action for the district
court to take in response to such contempt is the
23 The other Supreme Court cases cited by Simkanin
on the constitutional question are inapposite. See
Wisconsin v. Mitchell, 508 U.S. 476, 485, 113 S.Ct.
2194, 124 L.Ed.2d 436 (1993) (upholding a statute
thai increases punishment for crimes committed with
a racially motivated intent); McDonald v. Smith, 472
U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985)
(holding that the First Amendment right to petition is
no shield against liability for libel); Watts v. United
States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664
(1969) (per curiam) (holding that a statute prohibiting
threats against the President did not constitutionally
apply to criminalize the defendant's conditional and
hyperbolic political comment); Noto v. United States,
367 U.S. 290, 297-98, 299-300, 81 S.Ct. 1517, 6
L.Ed.2d 836 (1961) (addressing a conviction under the
membership clause of the Smith Act and finding
evidence insufficient to show a present advocacy of
overthrow); R.A.V. v. Minnesota, 505 U.:.. 377, 112
S.Ct. 2538, 120 L.Ed.2d 305 (1992) (holsting
unconstitutional on First Amendment grounds a law
criminalizing conduct such as placing a burning cross
or Nazi swastika, which one knows to arouse anger,
alarm, or resentment on the basis of race, religion,
etc.).

- Appx. A440 -

denial of a downward adjustment for acceptance of
responsibility. However, Andrews involved a district
court's upward departure expressly based in part on
the defendant's failure to take responsibility (i.e., his
lack of paid restitution, attempts to blame others for
his behavior, and insincerity in his proffered words
of remorse). The district court in the present case
did not base its upward departure on the
defendant's lack of acceptance of responsibility, but
rather on the likelihood that he would recidivate.
Andrews, therefore, is inapposite.?4

At oral argument, defense counsel contended
that the district court erred because it departed
upwardly on the basis of Simkanin's firmly held
beliefs and that this reasoning contradicted the
government's position, and the jury's finding, that
Simkanin did not hold good-faith belief that he was
not obligated to file income returns or withhold
taxes from the paychecks of Arrow's employees.
However, as the government correctly responded,
the district *419 court's decision to depart upwardly
did not contradict the jury's finding that Simkanin
did not have a valid good-faith defense under Cheek.
As discussed above, Simkanin's avowed position
was that he would not comply with the tax laws,

24 Simkanin also challenges the district court's ability
to predict the likelihood of recidivism, stating that even
trained scientists cannot accurately make such
predictions. The Guidelines, however, clearly permit a
district court to depart upwardly if it believes that
reliable information suggests that the defendant's
likelihood to recidivate is not adequately represented
by the range established. See U.S.S.G. § 4A1.3/(a)(1).
Obviously, nothing in the Guidelines or our case law
suggests that the district court must be able to predict
recidivism with scientific certainty. e

- Appx. A4l -

and the reason for his position was that the tax laws
were both inapplicable to him and invalid for a
number of reasons beyond the boundaries of a
legitimate good-faith defense under Cheek. At
sentencing, Simkanin made clear to the district
court that he continued to hold these beliefs when
he stated that he still “firmly believed" that the
Bible, the Constitution, and the Declaration of
Independence all agree that "the wages of a laborer
are withheld through fraud." Thus, the district
court was convinced that Simkanin's likelihood to
recidivate was not adequately reflected by the
Guidelines range, and it did not abuse its discretion
in upwardly departing from that range.

[19][20} Finally, Simkanin contends that the
extent of the upward departure was unreasonable.
The district court upwardly departed from a range of
forty-one to fifty-one months imprisonment to
impose a sentence of eighty-four months. Simkanin
argues that the district court failed to articulate the
reasons "why a sentence commensurate with a
bypassed criminal history category was not
selected." United States v. Lambert, 984 F.2d 658,
663 (Sth Cir.1993) (en banc). Simkanin is correct
that the district court did not specifically state why
it rejected each of the preceding criminal history
categories. However, as the government correctly
notes, this court does "not require the district court
to go through a ‘ritualistic exercise’ where ... it is
evident from the stated grounds for departure why
the bypassed criminal history categories were
inadequate.” United States v. Ashburn, 38 F.3d 803,
809 (Sth Cir.1994) (en banc} (quoting Lambert, 984
F.2d at 663). Simkanin correctly notes that it was
clearer in Ashburn why the district court had
decided that defendant's criminal history category
did not adequately reflect his prior history--the

- Appx. A42 -

district court in Ashburn noted that the defendant
had committed a series of robberies for which he
was never convicted. Jd. However, the district court
in the present case explained that it was convinced
that Simkanin's membership in a group with radical
views rejecting the laws of the United States and his
professed beliefs that he is not required to abide by
the tax laws would lead him to commit other tax-
related crimes. Moreover, the mere fact that the
upward departure nearly doubled the Guidelines
range does not render it unreasonable. See United
States v. Daughenbaugh, 49 F.3d_171, 174-75 (Sth
Cir.1995) (upholding departure from Guidelines
range of fifty-seven to seventy-one months to a
sentence of 240 months); Ashburn, 38 F.3d at 809
(upholding departure from range of sixty-three to
seventy-ecight months to sentence of 180 months).
Therefore, we are persuaded, guided by the factors
in § 3553(a), that the sentence imposed was
reasonable for the reasons given by the district
court.

E. Booker Error

[21] Simkanin argues that he is entitled to
resentencing under Booker. He concedes that he
did not object on relevant grounds in the district
court and that our review is therefore for plain error.
See United States v. Mares, 402 F.3d 511, 520 (Sth
Cir.2005). The basis of Simkanin’s Booker
argument is that the district court erred by
enhancing his sentence based on facts not admitted
by the defendant nor found by the jury. He claims
that this court should focus solely on this alleged
enhancement error without considering the effect of
the Guidelines’ mandatory nature at the time that
he was sent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0760%3A1. Public record. Not legal advice.