What litigator, civil or criminal, does not want to have his case heard before the U.S. Supreme Court? And argue it himself. Thus it was with great hope and expectation that the highest court would grant my motion to consolidate my case, U.S. v. Dunkel, with a case the Court had already agreed to hear, U.S. v. Cheek, thus in effect granting certiorari, which grant is given to about one percent of petitioners. Cheek’s attorney, and, as expected, the government, opposed my motion, but the result was the same: a grant of “cert” for my client, Dunkel.
Cheek, an airline pilot convicted of failure to file tax returns and tax evasion, believed he was not a person required to file a tax return and pay taxes because he earned wages, and “wages are not income,” and for other reasons, regarded by the government and federal judges with considerable disdain, had, like Dunkel, been convicted in federal court in Illinois and sentenced to prison, with the sentence stayed pending appeal. Cheek was denied the opportunity to have the jury subjectively consider why in the heck a pilot, making over a hundred grand a year, did not have to file a tax return and pay taxes like the other 150 million of us who do so. Okay, maybe fewer than 150 million, because, probably, 25 million are like Cheek and Dunkel and did not file, though for reasons not shared with Cheek and Dunkel nor with the IRS. The “underground economy.”
At this time the U.S. Court of Appeals for the 7th Circuit, which includes Illinois, was out of step with the other circuits, including my (Arizona) circuit, the 9th, which permitted a defendant like Cheek to explain to the jury all the reasons, however frivolous, the court might – “as a matter of law” – find them for non-filing and non-payment and argue for acquittal based on lack of lack of willfulness or specific criminal intent – the defendant believed in good faith he was not required by law to file a return, which belief, however erroneous as a matter of law (according to the black-robed oath takers who very well may be engaged in judicial tyranny) was based upon his good faith reliance on what he read and what he heard, including what he heard at, for example, a tax protest seminar held at the Holiday Inn on a Saturday morning.
So, in the Dunkel case, when he was on the stand, and I asked him, “Why did you not file your tax returns, Dr. Dunkel?” he began to answer, “Because I believed it was voluntary;” but was cut off by the prosecutor’s “Objection, your Honor,” which objection was, of course, sustained as a result of the law then standing in the 7th Circuit, the law which, as Bastiat (The Law) would surely answer had been perverted, because, as Bastiat, during the French Revolution so aptly noted, the “law” was whatever those in power said it was, however perverted. “The law perverted!” Bastiat exclaimed, an exclamation soon after vindicated by the sound of the falling, heavy blade of the guillotine upon the heads of those who dared cause the perversion. And, before the Supreme Court decided Cheek, those “perverters” of the law were none other than the University of Chicago Law School graduates and elitist members of the 7th Circuit, for they had, as our highest Court aptly noted, denied Cheek’s 6th Amendment right to have the jury decide the fact question – whether the jury believed that Cheek truly believed that which he claimed he believed in good faith, and thus did not act willfully, and therefore must be acquitted on the dastardly crime charged.
The jurors are, as the Supreme Court noted, the final arbiters of a silly argument. The jurors are to reach their determination of Cheek’s good faith not by an objective standard, but by a subjective one, which in sum means that it does not matter what the jurors find reasonable (wages not income? Income tax voluntary?); all that matters is whether the jurors believe that Cheek really believed what he claims he believed when he reached the conclusion he was not required by law to file a tax return and pay taxes, a rule of law which no doubt offended the legal and other senses of the 7th Circuit judges as some form of jury nullification, or “common man” anarchy, lest why otherwise their adamant stand, out of step with other federal circuit courts, prior to being corrected by their higher brethren who sit in our nation’s capital?
Cheek’s conviction was reversed and remanded for new trial, for a jury, not judge, determination of good-faith belief; and Dunkel was likewise remanded back to Chicago for the circuit court to reconsider the matter in light of the highest court’s decision. Now the dilemna. Would the court, like a military officer, accept full responsibility? Military officers can “delegate authority but not responsibility.” Or, would the court seek a way around the simple syllogism, A + B = C logic? (A) Dunkel was entitled to have the jury determine his claim of good faith belief; (B) he had been denied that right; ergo, (C) he was entitled to a new trial; which was the result obtained, but not before the 7th Circuit placed the blame on me, and the Solicitor General, the government, for I, they declared, had not put the issue before them in largesse fashion so as to suit them; thus, it was all my fault for them having missed the issue; though they neglected to mention the issue was, in my legal briefs, both opening and reply, filed with the court, succinctly presented as a separate headlined issue and headlined argument, HEADLINED IN ALL CAPS IN BOTH THE OPENING AND REPLY BRIEFS for the court and all the world to see, not to mention that the issue had time and again passed before the court only to face ridicule and demise; which is exactly the reason I expended so few words in forming the issue and making the argument (why expend the page count when I know that for these Article III judges, the 6th Amendment right to have the jury decide the determinative facts in the case is “a dead letter”?); nonetheless, it was all MacPherson’s fault, for 7th Circuit judges “are not like pigs, hunting for truffles buried in briefs.” (My youngest son, Nathan, would learn of this 7th Circuit story line in his first year of law school, legal research and writing, from a text book in which the case description and quote appeared. “Don’t write a brief like this one,” the professor told the class.)(And how many petitions for certiorari had that professor won?)
Not content with blaming me for their own willful blindness to an argument they time and again had rejected, the 7th Circuit judges also blamed the Solicitor General for his failure to oppose our petition for “cert” by a claim of waiver – that I, BY MY ISSUE AND ARGUMENT HEADINGS IN ALL CAPS, had waived the issue. Waived the issue because my argument was contained in a single paragraph. Any wonder why the learned solicitor did not claim waiver? The 7th Circuit judges in Dunkel, Posner, Easterbrook, and Dumbauld, with their “per curiam” opinion (Easterbrook authored the first Dunkel opinion) remind me of that which “Uncle Billie,” a.k.a. attorney extraordinaire and best of friends, William A. Cohan, would often recite from The Three Stooges. One of the Stooges exclaimed, “I can’t see, I can’t see!” “What’s the matter?” “My eyes are closed.” Hogs in search of truffles? The “tax protestors” would, no doubt, say the judges “are narcissistic jackals in search of self-reward; and engaged in judicial anarchy, all in violation of their sacred constitutional oath.” But what do the tax protestors know? I cotton to “hogs in search of truffles.” And as both foreign and domestic tax shelter doctrine teaches, “Pigs get fat, but hogs get slaughtered.” See United States v. Dunkel, 900 F.2d 105 (7th Cir. 1990) (conviction affirmed); Dunkel v. United States, 111 S. Ct. 747 (1991) (petition for certiorari granted, judgment vacated, and case remanded to 7th Circuit for further consideration in light of Cheek v. United States, 111 S. Ct. 604 (1991)); United States v. Dunkel, 927 F. 2d 955 (7th Cir. 1991) (conviction reversed in light of Cheek).