Successive Cheek defenses

[triumphguy]

Good morning,
I have been reading Quatloos for several years and enjoy the discussions. Like a train wreck, sometimes it's hard to turn away. While I don't practice tax law, one of my character defects is that I still enjoy tax issues when they come up in my other cases.
So anyway…Suppose a TP successfully asserts the 'Cheek' defense for years 1, 2 and 3. Then, in the related civil actions for those years, he is found liable for the tax and assessed the appropriate penalties and additions. So now he knows he has to pay his taxes.
In a later criminal action for failure to pay in years 4, 5 and 6, can he still claim he did not willfully fail to pay? Or does the fact he was found liable in the civil actions for years 1, 2 and 3 now preclude the argument that his belief was in good faith? I suppose if he could convince a jury he still maintained a good faith, though unreasonable, belief that the civil actions were wrongly decided and he 'really really really' doesn't have to pay he might get off again. But when an issue has been actually litigated against you, on the merits, to a final decision, can you still have a good faith belief you were right (as opposed to a good faith belief the laws should be changed)? I recognize the civil judgments would have no res judicata effect in a later criminal trial, but would they preclude one from claiming the belief in 'his' version of the law was held in good faith? Or is Cheek a perennial Get-Out-of-Jail-Free card?
Enquiring minds want to know.
Thanks,
Patrick Cherry
Ventura, CA

[Demosthenes]

Speaking of which, Whitey Harrell had a hearing in court this morning in his state criminal trial. Wonder how that went...

Whitey was found not guilty in state court a few years ago, and this is his second criminal tax trial (different tax years.)

[Famspear]

On the Cheek defense question, my sense is that in a subsequent criminal trial the defendant would always be allowed to assert a Cheek defense (without having to face the problem of issue preclusion). Even if a defendant were convicted a hundred times and had a gazillion civil tax cases go against him/her, on the 101st criminal violation (and resulting trial) he/she would be still entitled to have the jury render a verdict based on a fact finding on each and every element of the tax offense charged, including of course the mens rea element of willfulness.

Caveat: I don't do criminal law.

[BBFlatt]

I agree with Famspear, but it would be a lot harder to make a jusry believe the defendant had a good faith belief that he didn't have to pay the second and subsequent time around. Nevertheless a good prosecuter should never assume he's got a slam dunk case.

[Imalawman]

I can tell you from the context of fraud cases I handle, that once someone is found liable in a civil case, and if they continue their frivolous filing, then a fraud penalty is always forthcoming and is a virtual certainty for conviction. Also, to my knowledge such a subsequent Cheek defense has never been successfully argued.

[Judge Roy Bean]

I wouldn't want to be in the shoes of counsel propounding the second defense.

[LPC]

In a later criminal action for failure to pay in years 4, 5 and 6, can he still claim he did not willfully fail to pay? Or does the fact he was found liable in the civil actions for years 1, 2 and 3 now preclude the argument that his belief was in good faith?

Old law school student joke: Of course the defendant can "claim" whatever he wants. The more important question is, can he *win*?

One of the messages of the Supreme Court decision in Cheek is that the judge can *never* "preclude" a defendant in a criminal case from presenting a defense of lack of willfulness, no matter how ridiculous the defendant's story. It's an issue for the jury.

But that only means that the judge can't stop the defendant from telling his story to the jury. It doesn't mean that the jury has to believe the defendant.

“Of course, the more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury will consider them to be nothing more than simple disagreement with known legal duties imposed by the tax laws, and will find that the Government has carried its burden of proving knowledge.”

United States v. Cheek, 498 U.S. 192, 203-204 (1991).

[Dr. Caligari]

Old law school student joke: Of course the defendant can "claim" whatever he wants. The more important question is, can he *win*?

One of the messages of the Supreme Court decision in Cheek is that the judge can *never* "preclude" a defendant in a criminal case from presenting a defense of lack of willfulness, no matter how ridiculous the defendant's story. It's an issue for the jury.

But that only means that the judge can't stop the defendant from telling his story to the jury. It doesn't mean that the jury has to believe the defendant.

“Of course, the more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury will consider them to be nothing more than simple disagreement with known legal duties imposed by the tax laws, and will find that the Government has carried its burden of proving knowledge.”

United States v. Cheek, 498 U.S. 192, 203-204 (1991).

Exactly right. (And I have tried criminal tax cases, albeit not too recently).

The court cannot preclude the Cheek defense. But the prior court's ruling in the civil case will be admissible as evidence that the defendant did indeed know of his legal duty.[/quote]

[Nikki]

Will the prior assertions of Cheek (win / lose / draw) be admissible?

[Cpt Banjo]

Even the Bible agrees, after all, it only says to "turn the other Cheek," not to turn the other cheeks, or to do so repeatedly....

Isn't that called shaking your booty? Or for those who recall James and Bobby Purify from the 60's, shaking a tailfeather...

[LPC]

Will the prior assertions of Cheek (win / lose / draw) be admissible?

I believe so.

Evidence of a prior criminal conviction might be considered prejudicial, but I believe that the judge can sufficiently overcome the prejudicial effect by instructing the jury that evidence of a previous conviction is NOT to be considered as evidence of bad character or guilt, but only as evidence that the defendant *knew* that there was a legal obligation to file tax returns and pay taxes.

So the probative value of the conviction as proof of willfulness would outweigh the danger of a prejudicial effect (assuming that's the right standard).

But it's possible that a judge (or some judges) might rule the other way (or have ruled; I haven't looked it up).