Getting Cheeky Beyond Tax Crimes (2/1/13)

There is an interesting article in the New York Times today about some law enforcement officers saying that they will not honor any new laws Congress enacts on gun control.  See Dan Frosch, Some Sheriffs Object to Call for Tougher Gun Laws (NYT 1/31/13), here.  Here is the money quote to which I direct this blog entry:\

“I don’t plan on helping or assisting with any of the federal gun laws because I have the U.S. Supreme Court and the U.S. Constitution on my side,” said Sheriff John Cooke of Weld County, Colo.

So let's see if the tax crimes law offers some insight into that notion.

Practitioners and students will recall that, in the landmark Cheek case (Cheek v. United States, 498 U.S. 192 (1991), see links below), the Supreme Court synthesized its prior holdings into the iconic statement of the willfulness element for federal tax crimes:  "intentional violation of a known legal duty."  Subsumed within that element of the crime, the Supreme Court held, was a defense that the defendant's subjective good faith belief that his conduct was legal defeated willfulness and thus the tax crime.  But, the Supreme Court cautioned, arguments as to unconstitutionality will not defeat the crime, because the defendant asserting the unconstitutionality claim is admitting that he or she knows the law and intends to violate the law so as to meet the willfulness element of the crime.  Claims of unconstitutionality will not defeat the criminal conduct.

It seems to me that,  in order to avoid the claims made by these maverick law enforcement officials who will not enforce the law, the law could provide that any law enforcement personnel who know the law will be subject to criminal prosecution.  If the law is unconstitutional, then those sheriffs will have ridden the  right horse, so to speak, and won't go to jail.  But, if the law is constitutional, then their choice not to enforce the law would mean that they have mounted the horse to prison.  So, Cheek can have broader application.

The Cheek case can be reviewed here.  The Wikipedia entry for Cheek, here, crisply states the holding as follows;

The two essential holdings of the Supreme Court were:\

1. A genuine, good faith belief that one is not violating the Federal tax law based on a misunderstanding caused by the complexity of the tax law (e.g., the complexity of the statute itself) is a defense to a charge of "willfulness", even though that belief is irrational or unreasonable. 

2. A belief that the Federal income tax is unconstitutional is not a misunderstanding caused by the complexity of the tax law, and is not a defense to a charge of "willfulness", even if that belief is genuine and is held in good faith.