U.S. v. Cheek, 92-1668

• Decision Date: 23 August 1993
• Docket Number: No. 92-1668,92-1668
• Citation: 3 F.3d 1057
• Parties: -5727, 93-2 USTC P 50,473 UNITED STATES of America, Plaintiff-Appellee, v. John L. CHEEK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1057

3 F.3d 1057

72 A.F.T.R.2d 93-5727, 93-2 USTC P 50,473

UNITED STATES of America, Plaintiff-Appellee, v. John L. CHEEK, Defendant-Appellant.

No. 92-1668.

United States Court of Appeals Seventh Circuit.

Argued June 7, 1993.

Decided Aug. 23, 1993.

Barry R. Elden, Asst. U.S. Atty., Stephen Heinze (argued), Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Cynthia Giacchetti, Chicago, IL (argued), for defendant-appellant.

Before BAUER, Chief Judge and KANNE, Circuit Judge and ALDISERT, Senior Circuit Judge. ^*

ALDISERT, Senior Circuit Judge.

Like most of us, John Cheek, does not like to pay taxes. Unlike most of us, however, he has refused to pay them. As a result of his refusal to pay federal income taxes, Mr Cheek has been a frequent visitor to our courts.

On several occasions, Mr. Cheek has attempted to persuade the district courts of this Circuit and, on one occasion, this court to declare federal income taxes and the withholding of Social Security and tax contributions unconstitutional. Not only were his attempts unsuccessful, but he was required to pay $1,500 in attorney's fees, $5,000 in sanctions under Rule 11, Federal Rules of Civil Procedure, for filing a frivolous lawsuit and $1,500 as sanctions under Rule 28, Federal Rules of Appellate Procedure, for filing a frivolous appeal. ¹

Mr. Cheek has been party to criminal proceedings before us as well. In 1987, Cheek was charged in a superseding indictment with six counts of willfully failing to file a federal income tax return for the years 1980, 1981, and 1983 through 1986, in violation of 26 U.S.C. Sec. 7203. He was further charged with three counts of willfully attempting to evade his income taxes for the years 1980, 1981 and 1983 in violation of 26 U.S.C. Sec. 7201. On November 12, 1987, Cheek was convicted by a jury on all counts and sentenced to jail for a year and a day. On appeal, we affirmed his conviction, United States v. Cheek, 882 F.2d 1263 (7th Cir.1989), but the Supreme Court reversed it on the basis of erroneous jury instructions, Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991), the Court holding that a good-faith misunderstanding of the law or a good-faith belief that one is not violating the law negates willfulness, irrespective of whether the claimed belief is objectively reasonable.

In 1992, following a second jury trial before another district judge, who instructed the jury in strict accordance with the Supreme Court's new formulation of willfulness, Cheek was again convicted on all counts, was sentenced to jail for a year and a day and was fined $62,000. It is from the conviction upon retrial and sentence that he now appeals.

Other questions are presented, but essentially Cheek argues that the district court erred by refusing to instruct the jury on a reliance of counsel defense, that his due process rights were violated when a heavier penalty was imposed after his second trial, and that his indictment should have been dismissed because the time limitations of the Speedy Trial Act were not observed. We will affirm the judgment of the district court in all respects.

Jurisdiction was proper in the trial court based on 18 U.S.C. Sec. 3231. This court has jurisdiction under 28 U.S.C. Sec. 1291 following the filing of a timely appeal under Rule 4(b) of the Federal Rules of Appellate Procedure.

I.

Cheek had been a pilot for American Airlines since 1973 and filed federal income tax returns through 1979 but thereafter ceased to file returns, except for 1982, when he filed a frivolous return. Prior to 1980, while employed by American Airlines, Cheek filed an Internal Revenue Service W-4 form claiming 25 withholding allowances. In 1980, he changed the number of withholding allowances on his W-4 first to 39 and then to 60. ² The IRS and Cheek exchanged correspondence regarding his bizarre W-4 forms. The IRS eventually sent a letter to Cheek stating that his W-4 with 39 exemptions was unacceptable. In December of 1980, an American Airlines tax attorney advised Cheek that he was not exempt from withholding and suggested that he seek advice of competent counsel.

From 1981 through 1984, with Cheek continuing to file W-4 forms claiming totally exempt status, Cheek and American Airlines corresponded regularly. Eventually, the IRS notified American Airlines not to honor the W-4s filed by Cheek, and American Airlines thereafter withheld the proper deductions from Cheek's wages. What followed over the course of several years was a series of lawsuits filed by Cheek against various defendants, including his employer, individual employees of American Airlines, the Commissioner of Internal Revenue and various IRS employees, in an attempt to prevent the withholding of any taxes from his wages. For example, in 1984 he joined with others in an abortive attempt to seek a judgment against the Commissioner of Internal Revenue declaring that the withholding of taxes from their wages and the payment of these taxes violated the Sixteenth Amendment. Schaut v. United States, 585 F.Supp. 137 (N.D.Ill.1984). In 1985, he sued several IRS employees, seeking reimbursement of income and social security taxes withheld by American Airlines, contending that "the withholding of income and social security taxes amounted to an unconstitutional taking of property and that his wages [were] not taxable income." Cheek v. Doe, 110 F.R.D. 420, 421 (N.D.Ill.1984). All of these suits were dismissed with prejudice.

Cheek described his various lawsuits as an attempt to prove his belief that the law did not require him to pay tax on what he described as his right to work. In addition to pursuing his own lawsuits, Cheek also attended the criminal tax trials of various friends and associates. All of these trials resulted in convictions. See United States v. Kalita, 712 F.2d 1122 (7th Cir.1983).

Cheek testified that many of his actions were based on legal advice. Throughout the time period covered in the indictment, Cheek claims to have conferred with several attorneys regarding his research, beliefs and lawsuits.

On March 13, 1992, after his second trial, Cheek was sentenced by Judge Zagel to one year and one day imprisonment, and he was placed on five years probation. The conditions of probation were that he cooperate with the IRS in a civil determination of his tax liabilities, that he pay all back taxes, interest and penalties, and that he file current tax returns. Finally, Cheek was ordered to pay a fine of $62,000 immediately, a fine that included costs of incarceration and supervision.

The sentence imposed by Judge Zagel in the second trial was essentially the same as that imposed by Judge Plunkett in the first trial, except for the imposition of the fine.

II.

The standards utilized in reviewing the issues presented are familiar. " '[W]hether a jury has been properly instructed is to be determined not upon consideration of a single paragraph, sentence, phrase or word, but upon the charge as a whole.' " United States v. Doerr, 886 F.2d 944, 960 (7th Cir.1989) (quoting United States v. Alexander, 743 F.2d 472, 478 (7th Cir.1984)). So long as the instructions " 'treat the issues fairly and accurately,' they will not be disturbed on appeal." Id. (quoting United States v. Thibodeaux, 758 F.2d 199, 202 (7th Cir.1985)). If the defendant fails to object to a jury instruction in the trial court, the standard of review is plain error. United States v. Windsor, 981 F.2d 943, 946 (7th Cir.1992). "A plain error is not just one that is conspicuous but one whose correction is necessary to prevent a 'miscarriage of justice.' " United States v. Young, 470 U.S. 1, 15 and n. 12, 105 S.Ct. 1038, 1046 and n. 12, 84 L.Ed.2d 1 (1985).

In reviewing the district court's refusal to give Cheek's proposed jury instruction, we seek to determine if Cheek was prejudiced by the refusal. United States v. Grier, 866 F.2d 908, 932 (7th Cir.1989). However, "[i]n order to preserve for appeal an objection to a district court's refusal of a proposed jury instruction, 'a defendant must object, on the record, to the judge's refusal to tender the defendant's instructions, and must clearly state the reasons for his or her objections.' " United States v. Marrinson, 832 F.2d 1465, 1473 (7th Cir.1987) (quoting United States v. Douglas, 818 F.2d 1317, 1320 (7th Cir.1987), cert. denied sub nom. Pruitt v. United States, 493 U.S. 841, 110 S.Ct. 126, 107 L.Ed.2d 87 (1989)). Merely submitting alternative instructions is not sufficient. Id. If the objection does not amount to a clear statement, then the district court's refusal to tender an instruction must be analyzed under the plain error standard of review. Id.

Congress has mandated that the clearly erroneous standard of review be applied to findings of fact in the sentencing context. 18 U.S.C. Sec. 3742(e); see also United States v. Beal, 960 F.2d 629, 632 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 230, 121 L.Ed.2d 166 (1992).

"Our determination of whether the Speedy Trial Act was violated requires us to review the district court's interpretation of that act." United States v. Montoya, 827 F.2d 143, 146 (7th Cir.1987). Thus, an appellate court reviews de novo a district court's speedy trial calculation. United States v. Nesbitt, 852 F.2d 1502, 1512 (7th Cir.1988), cert. denied, 488 U.S. 1015, 109 S.Ct. 808, 102 L.Ed.2d 798 (1989).

III.

Cheek first argues that the district court erred in its jury instructions in three respects: in refusing to give an instruction based on an advice of counsel defense, in not properly instructing according to the Supreme Court's teachings in Cheek and in not instructing as to the appropriate use of certain evidence.

A.

At trial Cheek testified that his actions after 1982 were the result of "bum legal advice." Tr. at 1140. He argues that three different attorneys advised him that the tax system was based on voluntary compliance and that his many previous...