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No. 05-948

In the Supreme Court of the United States

RICHARD M. SIMKANIN, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
EILEEN J. O'CONNOR
Assistant Attorney General
ALAN HECHTKOPF
S. ROBERT LYONS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the district court directed a verdict on an element of the offense under 26 U.S.C. 7202.

2. Whether, in a prosecution for criminal tax of fenses, the district court abused its discretion in decid ing not to give petitioner's proposed instruction on good faith, where the court had already covered the substance of that instruction when it instructed the jury on willfulness.

3. Whether the district court violated the First Amendment when it determined, based in part on peti tioner's avowed beliefs, that he was likely to recidivate and therefore should be given a longer sentence.

In the Supreme Court of the United States

No. 05-948

RICHARD M. SIMKANIN, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A1- A44) is reported at 420 F.3d 397.

JURISDICTION

The judgment of the court of appeals was entered on August 5, 2005. A petition for rehearing was denied on October 27, 2005 (Pet. App. B1-B2). The petition for a writ of certiorari was filed on January 25, 2006. The jurisdiction of this Court is invoked under 28 U.S.C. 1254.

STATEMENT

Following a jury trial in the United States District Court for the Northern District of Texas, petitioner was convicted on ten counts of willfully failing to collect and pay over employment taxes, in violation of 26 U.S.C.

7202, 15 counts of 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 failing to file federal income tax returns, in violation of 26 U.S.C. 7203. He was sentenced to 84 months of imprisonment. Pet. App. A1-A2.

1. Section 7202 of the Internal Revenue Code pro vides that "[a]ny person required [under Title 26] to collect, account for, and pay over any tax imposed by this title who willfully fails to collect or truthfully ac count for and pay over such tax shall, in addition to other penalties provided by law, be guilty of a felony and, upon 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." 26 U.S.C. 7202.

In United States v. Bishop, 412 U.S. 346, 360 (1973), this Court interpreted the term "willfully," for criminal tax offenses, to mean "a voluntary, intentional violation of a known legal duty." See United States v. Pomponio, 429 U.S. 10, 12 (1976) (per curiam) (reaffirming that standard). In Cheek v. United States, 498 U.S. 192, 202 (1991), the Court elaborated that "the issue is whether, based on all the evidence, the Government has proved that the defendant was aware of the duty at issue, which cannot be true if the jury credits a good-faith misunder standing and belief submission, whether or not the claimed belief or misunderstanding is objectively reason able."

The definition of "willfulness" in criminal tax stat utes-"a voluntary, intentional violation of a known legal duty"-is an exception to the general rule that igno rance of the law or a mistake of law is no defense to criminal prosecution. Cheek, 498 U.S. at 199-201 (quot ing Bishop, 412 U.S. at 360). The basis for the excep tion, the Court observed, was that in "our complex tax system, uncertainty often arises even among taxpayers who earnestly wish to follow the law," and "[i]t is not the purpose of the law to penalize frank difference of opin ion or innocent errors made despite the exercise of rea sonable care." Id. at 205 (internal quotation marks and citations omitted.)

Consistent with that rationale, the Court held in Cheek that a defendant who knows what the law requires and who merely disagrees with it does not present a good-faith defense. 498 U.S. at 202. The Court further held that "[c]laims that some of the provisions of the tax code are unconstitutional" cannot constitute a good faith defense, because such claims "do not arise from innocent mistakes caused by the complexity of the Internal Rev enue Code," but from "a studied conclusion, however wrong, that those provisions are invalid and unenforce able." Id. at 205-206.

2. Beginning in January 2000, petitioner stopped withholding employment taxes from the wages of work ers employed by his company, Arrow Custom Plastics, Inc. Pet. App. A5. He also filed claims for refund with the IRS, claiming a refund not only of the employment taxes previously paid by Arrow, but also the employ ment taxes that Arrow collected from its employees and paid to the IRS. Id. at A4. During his trial, petitioner testified that he stopped withholding taxes because he came to believe the following: (a) that "the Constitution provides for two types of taxes-a direct tax and an indi rect tax"; (b) that, according to Brushaber v. Union Pacific Railroad, 240 U.S. 1 (1916), the income tax is an indirect tax; (c) that a person's labor is his own property and cannot be subject to an indirect tax; and (d) that the wages a person receives for his labor are not subject to the income tax. Petitioner also stopped paying his own income taxes. Pet. App. A7.

In August 2003, a superseding indictment was re turned charging petitioner with 12 counts of willfully failing to collect and pay over employment taxes, in vio lation of 26 U.S.C. 7202, and 15 counts of filing false claims for tax refunds, in violation of 18 U.S.C. 287. The parties filed a plea agreement in which petitioner agreed to plead guilty to four counts, but the agreement mis stated the maximum penalty and the parties were not thereafter able to reach a new plea agreement. Pet. App. A6.

Supporters of petitioner were in front of the court house before the beginning of jury selection, handing out pamphlets supporting jury nullification. After a ju ror contacted the court's staff to express concern about the behavior of petitioner's supporters and one member of the jury, it was revealed that some jurors had been contacted by petitioner's supporters. The trial resulted in a mistrial by reason of the jury's inability to reach a unanimous verdict. Pet. App. A6.

In December 2003, a second superseding indictment was returned, which added four counts of failure to file individual income tax returns, in violation of 26 U.S.C. 7203. This time, security measures were taken to pre vent petitioner's supporters from contacting members of the jury pool or the jurors selected for the case. Pet. App. A7 n.2. The jury returned a verdict of guilty as to 28 counts, but indicated that it did not want to deliberate further on two of the twelve counts charging willfully failing to collect and pay over withholding taxes from employees in violation of Section 7202. Id. at A7, A9. The district court accordingly declared a mistrial as to those two counts and then dismissed them. Id. at A9.

The court determined that petitioner's criminal his tory category under the Sentencing Guidelines was I and his offense level was 22, with a corresponding sen tencing range of 41-51 months of imprisonment. At the sentencing hearing, petitioner advised the court that he still "firmly believed" that "the wages of a laborer are withheld through fraud" and that it was "fundamental law" that the "wages of a laborer are withheld through fraud" under the Bible, the Declaration of Independ ence, and the Constitution. Pet. App. A42.

The district court departed upward from the 41-51 month sentencing range and sentenced petitioner to 84 months of imprisonment. The court explained that the upward departure was warranted, inter alia, because petitioner "ha[d] displayed contempt and disrespect for the laws of the United States of America, the State of Texas, and the city of Bedford" and had a "cult-like be lief that the laws of the United States do not apply to [him]." Pet. App. A32-A33. The court further noted that petitioner's "beliefs ha[d] 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)." Id. at A33; see id. at A33 n.16 (noting that petitioner had said at a meeting that "I think we need to knock off a couple of federal judges. That will get their attention."). The court concluded that it was "satisfied that [petitioner] would continue to act on those beliefs in the future" and that "it is likely that he will commit fu ture tax-related crimes." Id. at A33. Because peti tioner's "likelihood to recidivate most closely resembles that of defendants whose criminal history category is VI," the court imposed a sentence at the bottom end of the 84-105 month Guidelines sentencing range applica ble to defendants with petitioner's offense level and criminal history VI. Id. at A34.

3. The Fifth Circuit affirmed both the convictions and the sentence. Pet. App. A1-A44.

a. The court rejected (Pet. App. A9-A21) petitioner's argument that the district court, when providing a supplemental instruction in response to a note from the jury, directed a verdict in favor of the prosecution with respect to an element of the offense. In its note, the jury alluded to testimony by petitioner that a reason for his failure to withhold taxes from Arrow's employees was that Arrow did not operate in any industry, or per form any activities, specifically mentioned in the 7000 pages of the Internal Revenue Code. The jury asked:

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[?]

Id. at A12-A13.

The district court responded:

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 [26 U.S.C. 7202], during the years [1997-2002], [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 secu rity 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.

Pet. App. A13-A14. Petitioner objected to that instruc tion. Id. at A14.

The court of appeals rejected petitioner's argument that the response to the jury "constituted a directed verdict on [an] element of the offense, which was uncon tested at trial-namely, the requirement that Arrow was an employer that paid wages to its employees." Pet. App. A17. The court held that petitioner's "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." Ibid. The court of appeals explained that the district court had already "instructed the jury at least twice that, in order to convict [petitioner] under § 7202, it must determine beyond a reasonable doubt that Arrow was an employer that paid wages to its employees," and that the court, when it responded to the jury's question, had "reminded the jury to consider all the other instructions that had been given." Id. at A18. In those circumstances, 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 a list in the [Internal Reve nue Code] is irrelevant to whether [petitioner] had a legal duty to withhold." Id. at A18-A19. The court con cluded that there was "no error in the district court's response to the jury note." Id. at A19.

The court added that, "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." Pet. App. A19. The court held that, had there been an error, it would have been "harmless beyond a reasonable doubt." Ibid. (citing Neder v. United States, 527 U.S. 1 (1999)). The court observed that "[d]uring the course of the trial, defense 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." Id. at A20. The court accordingly held that "it would have been irrational" for the jury to "decide[] that the government's evidence, although un contradicted, did not establish that element beyond a reasonable doubt." Id. at A20-A21.

b. The district court instructed the jury on the "will fulness" element that "[t]o act willfully means to act vol untarily and deliberately and intending to violate a known legal duty." Pet. App. A21. The court instructed, with respect to the Section 7202 and 7203 counts, that to establish willfulness the government had to prove that petitioner "knew of the requirements of federal law" and "voluntarily and intentionally caused [Arrow] to fail to comply with these requirements." Id. at A21-A22 (Sec tion 7202 counts); id. at A22 (similar on Section 7203 counts). The court instructed the jury with respect to the Section 287 counts that the government had to prove that petitioner "knew that the claim" he was presenting "was false or fraudulent" and that his acts were "done voluntarily and intentionally, not because of a mistake or accident." Ibid.

On appeal, petitioner argued that the district court had erred in failing also to instruct the jury specifically on his good-faith defense. The court of appeals ex plained that the district court had "adequately in structed the jury on the meaning of willfulness," as ar ticulated in Pomponio, 429 U.S. at 12, and Cheek, 498 U.S. at 202. Pet. App. A25. The court also noted that petitioner's "requested instruction was 'substantially covered in the charge given to the jury' regarding will fulness." Ibid. The court concluded that, "taken to gether, 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 [petitioner's] ability to present effectively his good-faith defense." Ibid.

c. The court of appeals held that in upwardly de parting from the Sentencing Guidelines range, the dis trict court did not err in considering petitioner's "spe cific beliefs that the tax laws are invalid and do not re quire him to withhold taxes or file returns (and his asso ciation with an organization that endorses the view that free persons are not required to pay income taxes on their wages)," because those factors were "directly re lated to the crimes in question and demonstrate a likeli hood of recidivism." Pet. App. A39. The court further held that the extent of the upward departure was rea sonable, citing the district court's determination that petitioner'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." Id. at A43.1

ARGUMENT

1. Petitioner argues that the court of appeals erred in its application of the harmless error rule of Neder v. United States, 527 U.S. 1, 18-19 (1999), to the district court's reply to the jury's question about the need to consider whether Arrow was in a business specifically mentioned in the Internal Revenue Code. Because the court of appeals found that no error was committed in the district court's reply, the court's alternative holding, in which it determined that any error would have been harmless, is not squarely presented by this case. In any event, the court's application of the harmless-error rule to the specific facts of this case was correct and would not warrant review.

a. The court of appeals unambiguously "f[ou]nd no error in the district court's response to the jury note." Pet. App. A19. The court noted that a challenged "in struction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record." Id. at A15 (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991) (internal quotation marks omitted)). Applying that standard, the court de termined that petitioner's argument that the district court's response improperly directed a verdict on an element of the offense was "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." Id. at A17. After a careful review of the instructions as a whole and the entire context of the district court's response, see pp. 6-8, supra, the court of appeals concluded that "there was not a reasonable like lihood that the jury applied the instruction as if it were a directed verdict on [an] element of the offense," as petitioner had argued. Id. at A19.

The court of appeals correctly rejected petitioner's argument that the district court's response to the jury was error. See Pet. App. A9-A19. Petitioner does not seek further review of that holding, see Pet. i, and the court of appeals' fact-bound conclusion on that point would not in any event warrant further review. Because that holding was sufficient to dispose of petitioner's claim of error, further review is not warranted to con sider the court of appeals' further, and alternative, hold ing that any error, had it been committed, would have been harmless.

b. In any event, the court of appeals correctly con cluded that the error identified by petitioner, had it oc curred, would have been harmless. In addition to the evidence submitted by an IRS employee and referred to by petitioner (see Pet. 17), the government introduced evidence that Arrow had filed documents with the Texas Workforce Commission that both substantiated the amount of wages paid to Arrow's workers and repre sented that the workers were employees. Gov't C.A. Br. 30. Petitioner never challenged that evidence or pre sented any evidence that the workers were independent contractors (and thus not subject to withholding tax), rather than employees. Petitioner did contend that only government workers were employees under 26 U.S.C. 3402, which provides for deducting and withholding in come tax on wages paid to employees. See Gov't C.A. Br. 43-44. But that mistaken contention of law did not provide any basis for a jury to find that Arrow's workers were not employees. The court of appeals therefore correctly concluded "that it would have been irrational" for the jury to "decide[] that the government's evidence, although uncontradicted, did not establish that element [i.e., that Arrow was an employer that paid wages to its employees] beyond a reasonable doubt." Pet. App. A20- A21. And in any event, the factbound question whether the court of appeals' harmless-error discussion correctly analyzed the evidence in this particular case would not warrant further review.

2. Petitioner argues (Pet. 22-25) that the court of appeals' conclusion that he was not entitled to a specific instruction on good faith conflicts with decisions of the Second and Eleventh Circuits. The court of appeals cor rectly upheld the district court's refusal to give the pro posed instruction, and further review of that determina tion is not warranted.

a. In United States v. Pomponio, 429 U.S. 10 (1976) (per curiam), this Court reaffirmed that, in the context of criminal tax cases, "willfulness * * * simply means a voluntary, intentional violation of a known legal duty." Id. at 12; see Cheek v. United States, 498 U.S. 192, 201 (1991); United States v. Bishop, 412 U.S. 346, 360 (1973). Here, the jury was correctly instructed that in order to find that petitioner acted willfully, it was required to find that petitioner "act[ed] voluntarily and deliberately and intending to violate a known legal duty." Pet. App. A21. Accordingly, the instructions adequately conveyed to the jury the definition of willfulness and what the gov ernment was required to prove in order to establish will fulness.

Petitioner contends (Pet. 22-25) that, even if the jury was correctly instructed on the willfulness element of the tax offenses with which he was charged, he was nonetheless entitled to a separate instruction that his conduct was not willful if he acted because of a good faith misunderstanding of the requirements of the law. That contention is mistaken.

It is well settled that although "a defendant is enti tled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor," Mathews v. United States, 485 U.S. 58, 63 (1988), a defendant is not entitled to an in struction using his exact words. A refusal to include a requested instruction is reversible error only if the re quested instruction is substantially correct, the actual charge given the jury did not substantially cover the content of the proposed instruction, and the omission of the proposed instruction seriously impaired the defen dant's ability to present a defense. See United States v. Pettigrew, 77 F.3d 1500, 1510 (5th Cir. 1996).

The actual charge given the jury in this case substan tially covered the content of petitioner's proposed instruction. Any jury that found that petitioner"act[ed] voluntarily and deliberately and intending to violate a known legal duty," Pet. App. A21, as the court's instruc tions required, would necessarily have rejected the con clusion that petitioner acted with a good-faith misunder standing of the requirements of the law. As this Court observed in Cheek, 498 U.S. at 202, "one cannot be aware that the law imposes a duty upon him and yet be igno rant of it, misunderstand the law, or believe that the duty does not exist." Since the substance of the good- faith defense was covered by the willfulness instruction given by the district court, a separate instruction on good faith was unnecessary. See Pomponio, 429 U.S. at 13 (because "[t]he trial judge * * * adequately in structed the jury on willfulness," "[a]n additional in struction on good faith was unnecessary"); Cheek, 498 U.S. at 201. Furthermore, the court of appeals correctly held that, "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 [petitioner's] ability to present ef fectively his good-faith defense." Pet. App. A25.

b. Neither Mathews, supra, nor United States v. Murdock, 290 U.S. 389 (1933), on which petitioner relies (Pet. 23-24), requires a separate instruction on good faith in this case. In Mathews, the Court held that, "[a]s a general proposition a defendant is entitled to an in struction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." 485 U.S. at 63. Mathews, however, involved the affirmative defense of entrapment, and it relied on other cases involving affirmative defenses, such as self- defense. See id. at 63-64 (discussing, inter alia, Steven son v. United States, 162 U.S. 313 (1896)). The instant case does not involve an affirmative defense, and, as already discussed, the willfulness instruction adequately covered petitioner's defense.

In Murdock, the defendant, who had invalidly as serted the Fifth Amendment privilege when questioned by a revenue agent, was prosecuted for willfully failing to supply information. 290 U.S. at 391, 393. This Court held that the defendant was entitled to the following instruction: "If you believe that the reasons stated by the defendant in his refusal to answer questions were given in good faith and based upon his actual belief, you should consider that in determining whether or not his refusal to answer the questions was wilful." Id. at 393. Nothing in the Court's opinion, however, indicates that the substance of the instruction the defendant sought was otherwise covered by an instruction on willfulness. To the contrary, the trial court in Murdock gave instruc tions that effectively took from the jury "the question of absence of evil motive."2 Id. at 396. The conclusion that Murdock does not require a separate good-faith in struction is supported by Pomponio, in which the Court discussed willfulness, cited Murdock, and ruled that a separate good-faith instruction was not required. Pomponio, 429 U.S. at 12.

c. Most courts of appeals have held, in accordance with Pomponio and Cheek, that it is not reversible error to refuse to give a separate good-faith instruction if the jury is adequately instructed on specific intent. See United States v. Nivica, 887 F.2d 1110, 1124 (1st Cir. 1989), cert. denied, 494 U.S. 1005 (1990); 3 United States v. Evangelista, 122 F.3d 112, 118 (2d Cir. 1997), cert. denied, 522 U.S. 1114 (1998); 4 United States v. Gross, 961 F.2d 1097, 1103-1104 (3d Cir.), cert. denied, 506 U.S. 965 (1992); United States v. Mancuso, 42 F.3d 836, 847 (4th Cir. 1994); United States v. Storm, 36 F.3d 1289, 1294 (5th Cir. 1994), cert. denied, 514 U.S. 1084 (1995);5 United States v. Sassak, 881 F.2d 276, 280 (6th Cir. 1989); United States v. Verkuilen, 690 F.2d 648, 655-656 (7th Cir. 1982); United States v. Ervasti, 201 F.3d 1029, 1041 (8th Cir. 2000);6 United States v. Dorotich, 900 F.2d 192, 193-194 (9th Cir. 1990); United States v. Walker, 26 F.3d 108, 110 (11th Cir. 1994); United States v. Gambler, 662 F.2d 834, 837 (D.C. Cir. 1981).

The two circuits that petitioner cites (Pet. 22) as re quiring a separate instruction on good faith even if the jury receives a proper willfulness instruction-the Sec ond and the Eleventh-have abandoned or modified pre vious decisions requiring such an instruction. Compare United States v. Regan, 937 F.2d 823 (2d Cir. 1987), amended, 946 F.2d 188 (2d Cir. 1991), cert. denied, 504 U.S. 940 (1992), with Evangelista, 122 F.3d at 118-119 n.6 (noting that in Regan, the court "held that a general good-faith charge 'was insufficient to instruct the jury concerning appellants' specific good faith defense' in the circumstances of that complex case, 'where appellants were charged with sixty-four counts covering the water front of tax fraud, securities fraud, mail and wire fraud, conspiracy, and RICO.' 937 F.2d at 826-27," and holding that "Regan does not control this case, where the Evangelistas simply defaulted on a direct and unambig uous obligation to pay $1.5 million in payroll taxes"); United States v. Morris, 20 F.3d 1111, 1115 (11th Cir. 1994), with Walker, 26 F.3d at 110 (holding that "court's instruction to the jury on intent to defraud adequately addressed the concept of good faith").

Only a circuit that petitioner fails to mention-the Tenth Circuit-has articulated and not yet disavowed the proposition that it is reversible error not to give a separate good-faith instruction where a good-faith de fense is raised. See United States v. Harting, 879 F.2d 765 (1989). The Harting decision is erroneous. First, the Tenth Circuit erred in concluding, 879 F.2d at 770, that "the failure to instruct the jury regarding good faith constitutes error under Mathews." As already dis cussed, Mathews held that a defendant was entitled to a separate instruction on an affirmative defense, not that a defendant was entitled to a separate instruction basically restating an element of the offense in terms of absence of proof of the element. The Tenth Circuit also erred in concluding that "a close reading of Pomponio reveals ambiguity" and that the precedent on which Harting was grounded was "consistent with the sub stance, if not the language, of Pomponio." Id. at 769. Pomponio unambiguously held that because "[t]he trial judge * * * adequately instructed the jury on willful ness," "[a]n additional instruction on good faith was un necessary." 429 U.S. at 13.

Although the Tenth Circuit erred in Harting, further review is not warranted to address the conflict between that decision and the decision in this case. Most courts of appeals have held that it is not reversible error to refuse to give a separate instruction on good faith if the other instructions, taken as a whole, adequately convey the essence of a defendant's good-faith defense by ex plaining the government's burden of proving specific intent. And like the other circuits that once required a separate good-faith instruction, the Tenth Circuit may reconsider its position. There is thus no need for this Court to resolve the differences in approach between the court of appeals in this case and the Tenth Circuit. In deed, this Court has repeatedly denied review in cases raising the same issue that is presented by petitioner here. See, e.g., Lewis v. United States, 534 U.S. 814 (2001) (No. 00-1605); Bates v. United States, 520 U.S. 1253 (1997) (No. 96-7731); Von Hoff v. United States, 520 U.S. 1253 (1997) (No. 96-6518); Gross v. United States, 506 U.S. 965 (1992) (No. 92-205); Green v. United States, 474 U.S. 925 (1985) (No. 84-2032).

3. Petitioner asks the Court to review his sentence, asserting that this case presents the 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." Pet. 26-27.

The district court did not rely solely on petitioner's beliefs and associations in concluding that petitioner was likely to recidivate and that a stricter sentence was therefore warranted. The court also relied on the fact that petitioner's "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)." Pet. App. A33. The court thus relied on peti tioner's conduct (including his threat) in imposing sen tence.

In any event, because petitioner's beliefs and associa tions were highly relevant to the likelihood of recidi vism, the district court permissibly relied on them in determining the appropriate sentence. In Dawson v. Delaware, 503 U.S. 159, 165 (1992), this Court held that "the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and asso ciations at sentencing simply because those beliefs and associations are protected by the First Amendment." The Court explained that "[i]n many 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 organiza tion 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." Id. at 166.

The district court considered petitioner's beliefs and associations for precisely the purpose identified as per missible in Dawson: as support for the conclusion that "it is likely that [petitioner] will commit future tax-re lated crimes." Pet. App. A33. That conclusion was well supported. Although he had already spent more than six months in pretrial detention, petitioner advised the dis trict court during the sentencing hearing that he still "firmly believed" that "the wages of a laborer are with held through fraud" and that it was "fundamental law" that the "wages of employees" were exempt from tax. Id. at A42. The district court accordingly permissibly concluded that the likelihood of recidivism was such that an upward departure was warranted. In any event, that fact-bound determination would not warrant review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
EILEEN J. O'CONNOR
Assistant Attorney General
ALAN HECHTKOPF
S. ROBERT LYONS
Attorneys

MARCH 2006

1 Petitioner was sentenced before this Court's decision in United States v. Booker, 543 U.S. 220 (2005). The court of appeals rejected his argument that the case should therefore be remanded for resentenc ing, holding that the district court's use of facts not found by the jury to enhance his sentence was not plain error. Pet. App. A43-A44. Peti tioner does not renew his Booker challenge in this Court.

2 The Court subsequently held, in Pomponio, 429 U.S. at 12, that "evil motive" or bad purpose is merely a description of the willfulness requirement in this context-"a voluntary, intentional violation of a known legal duty."

3 See also United States v. McGill, 953 F.2d 10, 12-13 (1st Cir. 1992); United States v. Coast of Maine Lobster Co., 557 F.2d 905, 909 (1st Cir.), cert. denied, 434 U.S. 862 (1977).

4 See also United States v. McElroy, 910 F.2d 1016, 1026 (2d Cir. 1990).

5 See also United States v. Rochester, 898 F.2d 971, 979 (5th Cir. 1990); United States v. Hunt, 794 F.2d 1095, 1098 (5th Cir. 1986).

6 See also Willis v. United States, 87 F.3d 1004, 1008 (8th Cir. 1996); United States v. Sanders, 834 F.2d 717, 719 (8th Cir. 1987).