JOHN L. CHEEK, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-658

   In The Supreme Court Of The United States

   October Term, 1989

   On Writ Of Certiorari To The United States Court Of Appeals For The
Seventh Circuit

   Brief For The United States

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Summary of argument
   Argument:
      I. A taxpayer acts "willfully" if he is aware of the
requirements
         of the tax code but refuses to accept them based on a theory
         that is objectively unreasonable or a belief that the
         requirements are unconstitutional
         A. The objective reasonableness requirement is consistent
with
            the text of 26 U.S.C. 7201 and 7203
         B. This Court's decisions support the use of an objective
            standard in assessing a defendant's refusal to acknowledge
            his duties under the tax code
         C. The policies of the criminal tax statutes support a
            limitation of objective reasonableness
         D. Petitioner's legal arguments do not constitute a defense
            under the objective reasonableness standard
         E. Petitioner's submission also is inconsistent with general
            principles of mens rea under the criminal laws
     II. The requirement that petitioner's belief as to the lawfulness
         of his conduct be objectively reasonable does not violate his
         constitutional rights
         A. Petitioner was not denied due process by a change in the
            law after the time of the conduct charged in the
indictment
         B. The jury instruction in this case did not eliminate the
            requirement of intent from the criminal tax statutes and
            did not violate petitioner's right to have his guilt or
            innocence determined by a jury
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1-15) is reported at
882 F.2d 1263.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 16) was entered on
August 21, 1989.  The petition for a writ of certiorari was filed on
October 19, 1989, and was granted on February 20, 1990.  The
jurisdiction of this Court rests on 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether in this prosecution for willful violation of the
criminal tax laws, the district court erred in instructing the jury
that willfulness may be negated by petitioner's asserted good faith
misunderstanding of the law only if that misunderstanding was
objectively reasonable.

   2. Whether the jury instructions in this case violated petitioner's
right to have the jury determine his guilt or innocence or offended
fundamental notions of fairness.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Northern District of Illinois, petitioner was convicted on six counts
of willfully failing to file income tax returns, in violation of 26
U.S.C. 7203;  three counts of willfully attempting to evade income
taxes, in violation of 26 U.S.C. 7201;  and one count of knowingly
making a false claim against the United States for income tax
withheld, in violation of 18 U.S.C. 287.  He was sentenced to
imprisonment for a year and a day, placed on five years' probation,
and ordered to pay the costs of the prosecution.  The court of appeals
affirmed.  Pet. App. 1-15.

   1. a. The evidence at trial showed that petitioner, a college
graduate and a pilot for American Airlines, filed federal income tax
returns for the years 1969 through 1979.  Tr. 119-126, 1150-1151.
Thereafter, he engaged in "tax protest" activity.  /1/ From 1980 to
1986, when his salary rose steadily from approximately $50,000 to
$83,000 annually, petitioner did not file any tax return -- other than
a frivolous return for tax year 1982, for which he was assessed a $500
civil penalty but was not charged criminally.  Tr. 125-129, 175-182.
His gross income during that period far exceeded the statutory minimum
necessary to trigger the filing requirement, which ranged from $3300
to approximately $3600.  Tr. 708, 713, 715, 718, 719-721.  Based on
this course of conduct, petitioner was convicted of willfully failing
to file a tax return for the years 1980, 1981, and 1983 through 1986,
in violation of 26 U.S.C. 7203 (Counts 2, 4, and 7-10).

   Petitioner also filed frivolous W-4 forms claiming an increasing
number of withholding allowances, eventually claiming 60 by mid-1980.
On W-4 forms filed between 1981 and 1984, he claimed that he was
completely exempt from taxation.  As a result, for the years 1980,
1981, and 1983, American Airlines withheld substantially less than the
amount of tax petitioner owed.  Based on the false W-4 forms and other
affirmative steps petitioner took to avoid paying taxes, petitioner
was convicted of willfully attempting to evade his income taxes for
those three years, in violation of 26 U.S.C. 7201 (Counts 1, 3, and
6).  /2/ For the year 1982, American Airlines withheld approximately
$620 more than the estimated amount of petitioner's tax liability.
However, petitioner filed a claim for a refund of the entire $16,080
the company withheld.  That claim was the basis for petitioner's
conviction for presenting a claim to an agency of the United States,
knowing the claim to be false and fraudulent, in violation of 18
U.S.C. 287 (Count 5).  Pet. App. 2.

   b. The evidence showed that as part of his pattern of opposition to
the tax system, petitioner filed a number of civil suits and attended
trials of other tax protesters.

   First, in March 1982, petitioner and another American Airlines
employee sued the company and three of its employees to challenge the
withholding of federal taxes from their pay.  On October 29, 1982, the
district court dismissed the complaint, holding that the withholding
was proper and observing that the plaintiffs' objections appeared to
be frivolous.  J.A. 16-20.

   Second, petitioner brought a civil action against the IRS in the
Tax Court in April 1982, claiming that he was not a "taxpayer" or a
"person" for purposes of the Internal Revenue Code, that his salary
from American Airlines did not constitute "wages" within the meaning
of the Code, that he did not receive taxable "income" when he
exchanged his labor for wages, that his wages were not taxable because
he did not work for an "employer," that he was not subject to income
tax because he was a sovereign individual, that the income tax does
not apply to individuals because the word "direct" does not appear in
the Sixteenth Amendment to the Constitution, and that the tax laws are
ineffective because the Sixteenth Amendment contains no enforcement
clause.  During the trial of that case in March 1984, the court
specifically told petitioner that each of those arguments was
frivolous, and it noted that several of the arguments, including that
wages are not income, had been consistently rejected in cases across
the country.  J.A. 21-31.

   Third, a federal district court issued an opinion in March 1984 in
a separate civil action brought by petitioner and four other persons
alleging that wages are not taxable under the Sixteenth Amendment
because the value of their labor is the same as the payment they
receive for it, and that the withholding of taxes from their wages and
payment of those taxes to the government violated the Sixteenth
Amendment.  J.A. 31-32, 35-36.  The district court dismissed the
action explaining, inter alia, that the plaintiffs' argument that
wages are not income "has repeatedly been held to be without merit."
J.A. 35.  See Schaut v. United States, 585 F. Supp. 137, 139 (N.D.
Ill. 1984).

   Finally, in a suit against various federal officials, petitioner
again argued that wages are not taxable income and that the
withholding of taxes amounts to an unconstitutional taking of
property.  The district court dismissed the action on June 16, 1986.
Noting that "(t)he constitutionality of the income tax laws enacted
pursuant to the Sixteenth Amendment has long been established," the
court found petitioner's positions frivolous and imposed sanctions
totalling $11,500 against him for bringing the action in bad faith.
Pet. App. 2a;  J.A. 37-38.  In imposing sanctions, the court observed
that "(t)here is no good faith basis for (petitioner's) arguments" and
that petitioner had unsuccessfully raised essentially the same
arguments in the previous civil action that the district court had
decided in March 1984.  J.A. 38-39.  On appeal, the Seventh Circuit
found petitioner's abuse of the system to be "egregious" and fined
petitioner $1500 for taking a frivolous appeal.  Cheek v. Doe, 828
F.2d 395 (7th Cir.), cert. denied, 484 U.S. 955 (1987).  /3/

   The evidence also showed that petitioner had attended at least two
criminal trials of other persons charged with similar tax offenses,
one in December 1982 and one thereafter.  Pet. App. 2a;  Tr. 465-470,
494-496, 1367-1368.  Petitioner admitted on cross-examination in this
case that at the first of those trials, "(b)ased on the Department of
Justice's interpretation, I learned that I probably should file an
income tax (sic)." Tr. 1367.  Petitioner further admitted that he
heard the jury instructions at the second of those trials, but when
asked whether he had "learned what the law was" as a result, he
stated:  "No, I did not.  I learned what Judge Carroll considered the
law to be." Ibid.

   c. Two attorneys who appeared as witnesses for petitioner testified
that they had discussed the law of taxation with him.  Tr. 959-996,
997-1047, 1058-1103.  The first attorney testified that beginning in
1981, she had discussed constitutional issues of taxation with
petitioner and knew he was not filing tax returns.  Tr. 971-976,
979-980.  She also told petitioner that Acts of Congress are binding
until they are held unconstitutional by a court and warned him that
his conduct could "get him into trouble" and that he could "face a
criminal prosecution." Tr. 971, 977-978.  /4/ The other attorney
testified that, during 1980 or 1981, he told petitioner that the
courts had rejected as frivolous the claim that wages are not income,
Tr. 1034-1035, 1037, /5/ and that although the Fifth Amendment
provides protection against compelled self-incrimination, "the federal
government nevertheless requires the filing of an income tax return."
Tr. 1039.  He also told petitioner that a person could attack the
system from a constitutional standpoint by suing for a refund or
damages after the money has been withheld.  Tr. 1018, or by putting
himself "at risk of criminal prosecution." Tr. 1022.

   d. Petitioner admitted during his testimony at trial that he did
not file a personal income tax return for the years 1980 through 1986.
 Tr. 1380.  He did not dispute the government's evidence concerning
the amount of his gross income from American Airlines during those
years or the tax owing on that amount of income under the Internal
Revenue Code.  And he did not question the obligation under the Code
for a person receiving that amount of income to file a return.
Petitioner's defense was that his income could not lawfully be taxed.
He contended that his wages from American Airlines did not constitute
income subject to taxation under the Sixteenth Amendment and the
Internal Revenue Code because an exchange of labor for wages does not
result in a taxable gain or profit;  that a tax on compensation for
services is a "direct" tax that is not authorized by the Sixteenth
Amendment;  that the income tax is "voluntary" for white persons under
the Constitution as originally adopted, and he therefore was not
required to pay tax on his wages because he had "withdrawn" from the
tax system and was no longer a "taxpayer";  and that to tax income
other than on a voluntary basis would amount to involuntary servitude,
in violation of the Constitution.  See generally Tr. 1206-1243, 1273,
1278, 1304-1367, 1380-1407.

   On cross-examination, petitioner acknowledged his familiarity with
this Court's decision in Brushaber v. Union Pacific R.R., 240 U.S. 1
(1916), which held that the income tax provisions of the Tariff Act of
1913, ch. 16, 38 Stat. 166, were consistent with the Sixteenth
Amendment.  See Tr. 1306-1308, 1353-1355, 1403-1406.  The Brushaber
Court noted (240 U.S. at 17) that Congress's power to tax income from
"professions, trades, employments, or vocations" had been recognized
in Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 635, 637
(1895), even before the adoption of the Sixteenth Amendment.
Petitioner also acknowledged familiarity with Lucas v. Earl, 281 U.S.
111 (1930).  In that case, the Court recognized that an individual's
salary and fees were income subject to taxation under the Revenue Act
of 1918, ch. 18, 40 Stat. 1057, which "impose(d) a tax upon the net
income of every individual including 'income derived from salaries,
wages, or compensation for personal service . . . of whatever kind and
in whatever form paid.'" 281 U.S. at 114.  See Tr. 1383, 1406-1408.
Petitioner sought to distinguish Lucas v. Earl on the ground that the
taxpayer there was a lawyer who, in petitioner's view, could
constitutionally be subjected to the income tax only because he
received a license from the government.  Tr. 1406-1408.  /6/ Finally,
petitioner admitted on cross-examination that the judges in his civil
actions challenging the income tax laws had told him his positions
were frivolous, but he testified that he did not "believe" those
judges.  Tr. 1368-1369.

   2. a. At the close of the evidence, the district court instructed
the jury that the term "willfully," as used in 26 U.S.C. 7201 and
7203, means "a voluntary, intentional violation of a known legal duty,
as distinguished from a violation which is accidental, inadvertent or
negligent." Pet. App. 20;  J.A. 78.  /7/ The court further explained
(Pet. App. 3, 20;  J.A. 74-75):

         An objectively reasonable good faith misunderstanding of the
      law negates willfulness.  An objectively reasonable good faith
      misreading of the law may be based upon the defendAnt's own
      legal research or an attorney's advice.  Good faith reliance
      does not require that the defendant's research come to a correct
      determination of the law, nor that the attorney's advice be
      correct.  It requires that the defendant honestly and reasonably
      believe his research or the advice, and believe that it is
      correct and relies upon it.

         Disagreement with the law does not constitute a good faith
      misunderstanding of the law because it is the duty of all
      persons to obey the law whether or not they agree with it.
      Persistent refusal to acknowledge the law does not constitute a
      good faith misunderstanding of the law.

   The district court also gave an instruction on petitioner's theory
of his defense.  The court drafted that instruction for petitioner,
who represented himself at trial.  The instruction described
petitioner's theory to be that his wages from American Airlines did
not constitute income under the Internal Revenue Code, and that,
because he honestly and reasonably believed he was not required to pay
income taxes, he was not required to file tax returns.  Pet. App. 3,
21;  J.A. 80-81.  The instruction also noted petitioner's contention
"that he has been attempting to test the constitutionality of the
income tax laws as well as the applicability of the tax laws to him
and he cannot do so by filing tax returns." Pet. App. 21;  J.A. 80.

   b. The jury began its deliberations on the morning of November 10,
1988.  At 3 p.m. that afternoon, it sent out a note requesting a
transcript of the testimony in which petitioner discussed his beliefs.
 The court denied that request.  Pet. App. 3.  At 4:15 p.m., the jury
sent out a second note, which stated in part (id. at 23):

         We have a basic disagreement between some of us as to if
      (petitioner) honestly & reasonably believed that he was not
      required to pay income taxes.

         We have struggled with this point for part of the morning &
      the entire afternoon with no movement.

         Page 32 discusses good faith misunderstanding & disagreement.
       Is there any additional clarification you can give us on this
      point?

         Page 53 (the theory of defense instruction) is the one we
      cannot get by as to his belief.

During the ensuing colloquy with the court, the government pointed out
that the court had omitted instructions that a person's opinion that
the tax laws violate his constitutional rights and disagreement with
the government's tax collection do not constitute good faith
misunderstandings of the law.  The court's response to the jury's note
included those instructions.  Pet. App. 4;  J.A. 86.  At 7:10 p.m.,
the jury sent the court another note, which stated:  "We are divided
on the issue as to if (petitioner) honestly & reasonably believed that
he was not required to pay income tax.  We feel that no amount of
deliberation will reach a unanimous decision." Pet. App. 24-25.

   c. The jury returned on November 12, and the government asked the
court to clarify its instructions before the jury resumed its
deliberations.  In response, the court gave the jury a second
supplemental instruction.  That instruction stated, inter alia, that
"(a)n honest but unreasonable belief is not a defense and does not
negate willfulness," and that "(a)dvice or research resulting in the
conclusion that wages of a privately employed person are not income or
that the tax laws are unconstitutional is not objectively reasonable
and cannot serve as the basis for a good faith misunderstanding of the
law defense." Pet. App. 4, 25-26;  J.A. 88.  The court also repeated
its instructions that disagreement with the law is not a defense,
"because it is the duty of all persons to obey the law whether or not
they agree with it," and that "(p)ersistent refusal to acknowledge the
law does not constitute a good faith misunderstanding of the law."
Pet. App. 26;  J.A. 88.  The jury deliberated for another 2-1/2 hours
and then returned a verdict of guilty on all counts.  Pet. App. 4-5.
/8/

   3. On appeal, petitioner contended that a good faith
misunderstanding of the law need not be objectively reasonable to
negate willfulness.  The court of appeals rejected petitioner's
position, pointing out that it had "emphatically adhered to the
'objectively reasonable' standard." Pet. App. 6-7.  In rejecting
petitioner's separate claim that the district court had erred in
reinstructing the jury, the court further held that "the beliefs that
wages are not income and that the tax laws are unconstitutional are
not objectively reasonable as a matter of law." Id. at 9.

   The court of appeals also stated that a number of other arguments
frequently raised by tax protesters are not objectively reasonable,
including that the Sixteenth Amendment was improperly ratified;  that
the income tax violates the Takings Clause of the Fifth Amendment;
that filing a tax return violates the Fifth Amendment privilege
against compulsory self-incrimination;  and that Federal Reserve Notes
do not constitute cash or income.  Pet. App. 9-10 n.2.  Petitioner
raised some of those arguments on appeal, as he had in the district
court.  Specifically, he argued on appeal:  (1) that the income tax
laws cannot be enforced to tax the compensation of a white Christian
male (at least if he had not received a professional license from the
State), because such an individual's citizenship does not derive from
the Fourteenth Amendment and because he has inalienable rights under
the constitution of his State that are protected by the Tenth
Amendment;  and (2) that the Sixteenth Amendment restricts the
taxation of incomes to indirect taxes, and he had engaged in no
"indirect taxable activity." For these reasons, petitioner argued, an
income tax could be assessed against his compensation only on a
"voluntary" basis, and any such basis was lacking here because he had
renounced any voluntary use of the federal debt, denied all
state-created franchises, and revoked or rescinded his Social Security
numbers, past tax returns, and associated forms.  See C.A. Br. 36-42;
Reply Br. 15-16.  The court of appeals dismissed petitioner's various
legal objections to the income tax as "absurd." Pet. App. 10 n.2.

                          SUMMARY OF ARGUMENT

   I. This case presents a question of statutory construction
concerning the scope of the defense of ignorance or mistake of law
that is encompassed by the term "willfully" under two criminal tax
statutes, 26 U.S.C. 7201 and 7203.  The district court instructed the
jury that the term "willfully" means "a voluntary, intentional
violation of a known legal duty." That is the very standard of
willfulness that petitioner urges, and it is drawn verbatim from
United States v. Bishop, 412 U.S. 346, 360 (1973), and United States
v. Pomponio, 429 U.S. 10, 12 (1976), upon which petitioner relies.
Petitioner objects to the district court's further instruction that an
objectively reasonable and good faith misunderstanding of the law
negates willfulness.  But that instruction afforded petitioner added
protection, because even if the jury found that he was aware of the
legal duties imposed by the Internal Revenue Code, the jury
nevertheless was required to acquit him if it found that he reasonably
and in good faith concluded that there was some legal ground that
excused him from performing those duties.  It was entirely fair to
place a limit of objective reasonableness on this extension of the
defense of ignorance or mistake of law.

   A. The text of 26 U.S.C. 7201 and 7203 cuts against a defense that
gives dispositive effect to the defendant's substantive beliefs about
the law.  Those Sections make it an offense for a person "willfully"
to evade a "tax imposed by this title" or fail to file a "return * * *
required by this title." Because willfulness, as construed in Bishop
and Pomponio, generally connotes an intentional violation of a "known
legal duty," Sections 7201 and 7203, on their face, require only that
the defendant know of the "tax imposed by (Title 26)" and the "return
* * * required by (Title 26)." That was true here.  Petitioner argues,
however, that even where a person is aware of the duty under the Code
to pay taxes on wages and to file tax returns, he is not guilty of an
offense if he did not subjectively "believe" in that view of the law,
no matter how outlandish his belief.  This extension of the defense of
ignorance or mistake of law is not compelled by the term "willfully."
Although a limited mistake of law defense may properly be implied
under Sections 7201 and 7203, it should apply only where the
defendant's "belief" that he need not comply with known statutory
requirements was held in good faith and was objectively reasonable.

   B. The "objectively reasonable" limitation on the defense of
ignorance or mistake of law is supported by this Court's seminal
decision under the criminal tax laws, United States v. Murdock, 290
U.S. 389 (1933).  There, the Court explained that in a criminal
statute, the term "willfully" generally means an act done without a
"justifiable excuse";  without "ground for believing it is lawful";
"stubbornly, obstinately (or) perversely";  or in "careless disregard
whether or not one has the right so to act." Id. at 394-395.  Each of
these formulations supports an objective limitation on the extent to
which a subjective belief about the law will negate willfulness, and
each aptly describes petitioner's conduct in this case.

   Moreover, the Court held in Murdock that the Court should have
submitted to the jury the particular defense at issue only because the
law was uncertain at the time.  The defendant's legal position
therefore was not "so unreasonable and ill founded as to exhibit bad
faith and establish willful wrongdoing." 290 U.S. at 396.  The clear
implication is that if the law had not been unsettled at the time of
the defendant's conduct, the trial court would not have been required
to submit the issue to the jury.  In this case, because the text and
judicial construction of the Internal Revenue Code and the
Constitution conclusively refuse petitioner's various legal theories,
his adamant refusal to pay taxes and file returns is so "unreasonable
and ill founded" that the district court was not required to submit to
the jury the question of petitioner's good faith belief in those legal
theories.  This conclusion is fully consistent with Bishop, Pomponio,
and Sansone v. United States, 380 U.S. 343 (1965), which involved
alleged good faith mistakes of fact, not law.

   C. The approach we propose will preclude liability based on
"'innocent errors made despite the exercise of reasonable care'" and
will "separate the purposeful tax violator from the well-meaning, but
easily confused, mass of taxpayers." United States v. Bishop, 412 U.S.
at 360-361, quoting Spies v. United States, 317 U.S. 492, 497 (1943).
At the same time, it will "induce prompt and forthright fullfillment
of every duty under the income tax law." Spies v. United States, 317
U.S. at 497, by discouraging individuals from clinging to frivolous
views of the law in the hope of convincing a jury of their sincerity.

   D. The legal objections to the tax system that petitioner advanced
at trial do not satisfy the standard of "objective reasonableness." In
fact, they are frivolous.  Moreover, petitioner's objections are
essentially beliefs that the income tax violates the Constitution.
The courts have uniformly held that a belief that the Internal Revenue
Code is unconstitutional does not negate the element of willfulness
under the criminal tax statutes.  That conclusion is supported by
Reynolds v. United States, 98 U.S. 145, 166-167 (1878), and the public
interest in discouraging defiance of duly enacted laws on the basis of
a personalized finding of unconstitutionality.

   E. Petitioner's submission that his violation of known legal duties
should be excused, no matter how indefensible his subjective "belief,"
is also inconsistent with general principles of mens rea under the
criminal law.  Under those principles, a person acts "knowingly" --
the level of culpability petitioner urges -- if he is "aware" of the
relevant circumstances (here, the requirements of the law).  In other
words, knowledge is a matter of cognition.  By contrast, petitioner
appears to use the term "belief" to refer to matters of personal faith
and conviction, as demonstrated by his claim that the jury
instructions in this case violated the First Amendment by singling him
out on the basis of his beliefs.  As Reynolds v. United States holds,
a person is not excused from liability for his conduct simply because
it was motivated by a subjective belief in the justness or soundness
of his cause.

   II. A. Application of the "objectively reasonable" limitation here
does not constitute retroactive expansion of a criminal statute in
violation of the Due Process Clause.  Petitioner was put on notice of
this element of a mistake-of-law defense by Murdock and United States
v. Moore, 627 F.2d 830, 833 (7th Cir. 1980), cert. denied, 450 U.S.
916 (1981).  And because petitioner's objections boil down to the
proposition that the Internal Revenue Code is unconstitutional,
Reynolds v. United States established that his beliefs would not
furnish a defense.

   B. The jury instructions did not eliminate the element of mens rea
under the criminal tax statutes, because they required a finding that
petitioner intentionally violated a known legal duty.  Nor was
petitioner's right to have the jury decide his guilt or innocence
violated by the instruction that his beliefs that wages are not
income, and that the tax laws are unconstitutional, were not
objectively reasonable.  The latter belief is not a defense under the
criminal tax statutes.  Moreover, the question whether a particular
belief about the law is objectively reasonable is essentially a
question of law for the court.  And even if that question should be
submitted to the jury in a close case, it was not necessary to do so
here, because petitioner's beliefs about the law had been uniformly
rejected by the courts and no reasonable jury could have found in his
favor on the basis of those beliefs.

                               ARGUMENT

   I. A TAXPAYER ACTS "WILLFULLY" IF HE IS AWARE OF THE REQUIREMENTS
OF THE TAX CODE BUT REFUSES TO ACCEPT THEM BASED ON A THEORY THAT IS
OBJECTIVELY UNREASONABLE OR A BELIEF THAT THE REQUIREMENTS ARE
UNCONSTITUTIONAL.

   This case presents a question of statutory construction concerning
the content of the term "willfully" in two criminal tax statutes, 26
U.S.C. 7201 and 7203.  In particular, it concerns the scope of the
defense of ignorance or mistake of law that may appropriately be read
into that statutory term.  Our submission is this:  Under United
States v. Bishop, 412 U.S. 346, 360 (1973), and United States v.
Pomponio, 429 U.S. 10, 12 (1976), the element of willfulness in the
federal criminal tax statutes generally requires proof that the
defendant intentionally violated a known legal duty.  As a result,
when a defendant is unaware of the duties the tax laws impose on him,
he does not act willfully if he fails to file a return or underpays
his taxes.  When, however, the defendant is aware of the pertinent
requirements of the tax laws, but defends his failure to comply with
them by asserting the belief that those requirements may not lawfully
be applied to him, he may not avoid conviction unless his belief is
objectively reasonable.  He also may not avoid conviction on the basis
of an asserted belief that the tax laws are unconstitutional.

   Petitioner's basic submission (Br. 13, 16, 20, 23, 25) is that when
the district court instructed the jury that his assertedly good faith
misreading of the law must be "objectively reasonable," it altogether
deprived him of a valid defense of "ignorance of the law" or "mistake
of law." Petitioner's actions, however, were quite different from the
sort of conduct for which that defense has been fashioned, based on
considerations of fair notice and a concern that certain errors of law
are not blameworthy.  Simply put, petitioner did not act in
"ignorance" of the law or make a "mistake" about his obligations under
the law.  He unquestionably knew that the Internal Revenue Code, as
written, requires a person having his income to file a return and pay
taxes.  That much is established by the fact that petitioner filed
returns and paid taxes on his income from American Airlines (and prior
employers) for ten years before he commenced the course of conduct
that led to the convictions he now asks the Court to overturn.  Any
conceivable doubt on that score is dispelled by the fact that
petitioner filed a number of lawsuits challenging the income tax laws,
and the withholding of taxes from his income, on many of the same
legal theories he subsequently presented in his defense in this
criminal prosecution, and in each instance the court informed
petitioner that his legal positions were frivolous.  It follows that
petitioner's actions did not stem from "ignorance" or "mistake."
Knowing full well what was expected of him, petitioner intentionally
and obdurately refused to perform the most basic duties of a citizen
under the tax laws -- duties that are acknowledged and respected by
virtually all of the millions of wage earners in this country.
Petitioner's actions were therefore far removed from the sort of
innocent or blameless conduct for which the defense of ignorance or
mistake of law is properly reserved.  /9/

   Petitioner's complaint about the jury instructions in this case
also ignore the central instruction on the question of willfulness.
The district court specifically instructed the jury that the term
"willfully" in 26 U.S.C. 7201-7203 means "a voluntary, intentional
violation of a known legal duty." Pet. App. 20;  J.A. 78.  That is the
very standard of willfulness that petitioner urges (Br. 18-19), drawn
directly from language in United States v. Bishop, 412 U.S. at 360,
and United States v. Pomponio, 429 U.S. at 12.  /10/

   The district court further instructed the jury that "(a)n
objectively reasonable good faith misunderstanding of the law negates
willfulness," and that such a good faith "misreading of the law" may
be based on the defendant's own legal research or the advice of an
attorney, as long as the defendant "honestly and reasonably believe(s)
his research or the advice." Pet. App. 20;  J.A. 74-75.  Petitioner
objects to the requirement of objective reasonableness in this
additional instruction.  He fails to appreciate, however, that the
instruction added to, rather than detracting from, the protections
afforded by the basic willfulness instruction he endorses.  Thus,
under the court's instructions, the jury was required to acquit
petitioner if it found that he was not aware of the legal duty under
the Internal Revenue Code to pay taxes and file tax returns.  And even
if the jury found that petitioner was aware of the requirements of the
Code, it could not conclude that he acted willfully if it found that
he reasonably and in good faith concluded that there was some legal
ground that excused him from having to comply with those requirements.

   Contrary to petitioner's contention, there is nothing unfair about
the requirement of objective reasonableness in the latter instruction,
because it imposes a sound limitation on the extent to which a
taxpayer may, with impunity, act in knowing contravention of the law
as written or as construed by the responsible agency or the courts.
As we shall show, such a limitation is supported by the text and
purposes of the criminal tax laws, by this Court's decisions
construing those laws, and by general principles of criminal
culpability.  /11/

   A. The Objective Reasonableness Requirement Is Consistent With The
Text Of 26 U.S.C. 7201 And 7203

   Because this case presents a question of statutory construction --
the scope of the defense of ignorance or mistake of law under the
criminal tax laws -- it is necessary to begin with the text of the
relevant statutory provisions, 26 U.S.C. 7201 and 7203.  See United
States v. Yermian, 468 U.S. 63, 68 (1984).  Section 7201 provides
criminal sanctions for a person who "willfully attempts in any manner
to evade or defeat any tax imposed by this title (Title 26 of the
United States Code) or the payment thereof." Section 7203 provides
criminal sanctions for any person who is "required by this title or by
regulations made under authority thereof to make a return * * * (and)
who willfully fails * * * (to) make such return."

   Sections 7201 and 7203 do not expressly state whether a defendant
must be aware of the requirements of Title 26 (or implementing
regulations) that he pay taxes or file a return.  Nor does either
Section state that ignorance of those requirements is a defense.  As a
result, any such refinements on the nature of the offense under 26
U.S.C. 7201 and 7203 must be derived from the word "willfully" in each
Section.

   The tax statutes do not define "willfully," and the legislative
history of those statutes is not instructive as to its meaning.
United States v. Bishop, 412 U.S. at 356;  Spies v. United States, 317
U.S. 492, 495 (1943).  Moreover, this Court has repeatedly stated that
the word "willful" is "a word of many meanings, its construction often
being influenced by its context." Spies v. United States, 317 U.S. at
497;  Screws v. United States, 325 U.S. 91, 101 (1945) (plurality
opinion).  It therefore has fallen to this Court to give content to
the term "willfully" in different contexts, taking into account the
underlying policies of the criminal tax statutes that are implicated
in the particular setting.

   The Court has stated that the term "willfully" under the criminal
tax statutes "generally connotes a voluntary, intentional violation of
a known legal duty." United States v. Bishop, 412 U.S. at 360;  United
States v. Pomponio, 429 U.S. at 12.  Under this formulation, it would
appear to be sufficient to establish a criminal violation in a case
such as this if the defendant was aware of the requirements imposed by
the Internal Revenue Code to pay taxes and file tax returns.  That
conclusion is consistent with the text of Sections 7201 and 7203.  The
language of the two statutes permits the construction that the
knowledge component of the term "willfully" applies to whether a tax
is "imposed by this title" or filing a return is "required by this
title or by regulations made under authority thereof." This
construction of the statute is sufficiently embodied in jury
instructions that require the government to prove that the defendant
was aware of the duties imposed by the basic requirements of the Code.
 If the defendant is not aware of those requirements, then ignorance
of the law is, to that extent, a defense.  As we have explained, the
instructions in this case were consistent with such a construction of
26 U.S.C. 7201 and 7203, because they defined willfulness as an
"intentional violation of a known legal duty."

   Petitioner's submission goes much further, however.  He argues that
even where a person is aware of the relevant statutory provisions that
impose legal duties (or of administrative or judicial interpretations
of those provisions), he is not guilty of an offense if he does not
subjectively "believe" that the law is or should be as stated in the
statutory text or authoritative interpretations of that text.  That
defense -- which is not really one of "ignorance" or "mistake" of law
-- has a far broader reach than is suggested by the text of 26 U.S.C.
7201 and 7203 and by this Court's statements in Bishop and Pomponio
concerning what the term "willfully" generally means under those
statutes.  The question presented here is the extent (if any) to which
this further defense should be read into the criminal tax statutes by
implication.  In our view, this Court's decisions and the policies of
the criminal tax statutes do permit some accommodation of this implied
defense, but only when subject to appropriate limitations -- namely,
that the defendant's "belief" that he need not comply with applicable
statutory requirements was held in good faith and was objectively
reasonable.  /12/

   B. This Court's Decisions Support The Use Of An Objective Standard
In Assessing A Defendant's Refusal To Acknowledge His Duties Under The
Tax Code

   1. The Court's seminal decision construing the term "willfully"
under the criminal tax laws is United States v. Murdock, 290 U.S. 389
(1933).  The taxpayer in Murdock was charged with willfully failing to
supply information, in violation of Section 1114(a) of the Revenue Act
of 1926, ch. 27, 44 Stat. 116, the predecessor to 26 U.S.C. 7203.  The
trial court instructed the jury of its view that the government had
sustained the burden of establishing the defendant's guilt, and it
refused to give the following instruction requested by the defendant
(290 U.S. at 393):

         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.

The Court held that, in the circumstances presented, the trial court
should have given this instruction and should not have informed the
jury of its view that the evidence established willfulness.  Both the
Court's discussion of the meaning of the term "willfully" and the
Court's application of that term strongly support the conclusion that
the rule of objective reasonableness properly limits the extent to
which a taxpayer's assertedly good faith "belief" about his
obligations under the tax laws negates the element of willfulness.

   The Court first concluded in Murdock that the term "willfully," as
used in criminal statutes, means more than "voluntarily" (290 U.S. at
394-395 (citations omitted)):

         The word (willfully) often denotes an act which is
      intentional, or knowing, or voluntary, as distinguished from
      accidental.  But when used in a criminal statute it generally
      means an act done with a bad purpose;  without justifiable
      excuse;  stubbornly, obstinately, perversely.  The word is also
      employed to characterize a thing done without ground for
      believing it is lawful, or conduct marked by careless disregard
      whether or not one has the right so to act.

This elaboration upon the concept of willfulness has both subjective
and objective components, and an analysis of the illustrative
formulations it contains shows why Murdock is at odds with the
position petitioner advocates.  /13/

   First, the requirement that the "excuse" proffered by a defendant
for his illegal act must be "justifiable" suggests that the defendant
may not rely on any belief, no matter how unreasonable or
indefensible.  Accord Potter v. United States, 155 U.S. 438, 446
(1894);  Felton v. United States, 96 U.S. 699, 702 (1877) (both cited
by the Court in Murdock).  Second, the Court did not state that a
willful act is a thing done without actually "believing" it to be
lawful;  the Court stated that a willful act is a thing done without
"ground for believing" it to be lawful, which suggests that the
defendant's subjective belief must have at least some concrete basis
in extrinsic circumstances.  Third, the phrase "stubbornly"
obstinately (or) perversely" aptly describes petitioner's course of
conduct in this case, which he pursued in knowing disregard of the
requirements of the Code.  Fourth, Murdock's standard of "careless
disregard" for whether the laws afforded the defendant the right to
act as he did supports the recognition here of some objective
limitation on the extent to which petitioner may be excused for
defying requirements in the tax laws of which he was fully aware.  See
290 U.S. at 394-395.  /14/

   The Court's disposition of the defendant's claim in Murdock lends
further support to the court of appeals' disposition of petitioner's
claim in this case.  The Murdock Court concluded that the district
court should have given the instruction requested by the defendant --
namely, that if the jury found his reasons for refusing to answer were
given in good faith and based upon his actual belief, the jury should
"consider that in determining whether or not his refusal to answer the
questions was wilful." 290 U.S. at 393.  By the same token, the Court
concluded that the trial court should not have instructed the jury
that in the court's view the government had established willfulness.
The Court explained that, although an intervening ruling made clear
that the defendant did not have a right to withhold information based
on his privilege against compelled self-incrimination, he reasonably
could have believed otherwise at the time.  For that reason, the Court
concluded, the trial court should not have told the jury that the
defendant's assertion of the privilege "was so unreasonable and ill
founded as to exhibit bad faith and establish willful wrongdoing." 290
U.S. at 396.

   The clear implication of this explanation is that if the Fifth
Amendment question had not remained open at the time the defendant
refused to answer, the trial court would not have been required to
give the instruction requested by the defendant concerning his
asserted good faith belief in his right to assert the privilege.
Because an assertion of the privilege in those circumstances would be
"so unreasonable and ill founded as to exhibit bad faith and establish
willful wrongdoing," the trial court would have been justified in
declining to submit to the jury the issue of the defendant's good
faith and actual belief in his right to do so.  That would have been
especially so if the defendant knew the state of the law.  See Browder
v. United States, 312 U.S. 335, 341 (1941) (characterizing Murdock as
a case involving lack of willfulness because the defendant had a
"reasonable" fear of self-incrimination based on uncertainty in the
law at the time).  /15/

   In this case, because the text and judicial construction of the
Internal Revenue Code and the Constitution conclusively refute the
view that wages are not income, and because the courts have uniformly
found petitioner's other constitutional objections to the income tax
to be frivolous, his adamant refusal to pay taxes and file returns was
wholly "unreasonable and ill founded" and therefore "willful" under
Murdock.  /16/ The district court therefore was not required by
Murdock to instruct the jury that it must acquit petitioner if it
found that he nevertheless subjectively believed that wages are not
income or that the Internal Revenue Code is unconstitutional on this
or other grounds.  It follows that the district court did not err in
instructing the jury that those beliefs are "not objectively
reasonable and cannot serve as the basis for a good faith
misunderstanding of the law defense." Pet. App. 4, 25-26;  J.A. 88.

   2. Petitioner relies (Br. 17-19) on this Court's decision in
Sansone v. United States, 380 U.S. 343 (1965);  United States v.
Bishop, 412 U.S. 346 (1973);  and United States v. Pomponio, 429 U.S.
10 (1976).  But those decisions do not suggest that objective
reasonableness has no role to play in the defense of mistake or
ignorance of the law under the criminal tax statutes.  Rather, in
Sansone, Bishop, and Pomponio, the Court construed the term
"willfully" in the context of alleged good faith mistakes of fact, not
law.  In none of those three cases did the Court directly address the
issue of the role of the reasonableness test as applied in the context
of a mistake of law defense.

   To be sure, in Bishop the Court discussed the general principles
underlying the willfulness requirement in the criminal tax statutes,
but its discussion supports our construction of the term, not
petitioner's.  The Court explained that "(i)n our complex tax system,
uncertainty often arises even among taxpayers who earnestly wish to
follow the law," and that "'(i)t is not the purpose of the (criminal
tax) law to penalize frank difference of opinion or innocent errors
made despite the exercise of reasonable care.'" 412 U.S. at 360-362,
quoting Spies v. United States, 317 U.S. at 496.  The reference to
"reasonable care" suggests the propriety of objective reasonableness
as a limitation on any "mistake of law" defense.  Moreover, there is
nothing in the Court's discussion that is inconsistent with the
existence of a reasonableness restriction on the defense of mistake or
ignorance of the law where, as here, the defendant knew of the
requirements of the Internal Revenue Code (and decisions arising under
it) but simply refused to accept the explicit terms of the Code,
authoritative constructions of the Code, and the constitutionality of
its most basic provisions.  /17/

   C. The Policies Of The Criminal Tax Statutes Support A Limitation
Of Objective Reasonableness

   The jury instructions given by the district court in this case also
are supported by the policies of the criminal tax laws and the mens
rea requirement in those laws.  Congress has recognized the practical
reality that "the (tax) law is complicated, accounting treatment of
various items raises problems of great complexity, and innocent errors
are numerous, as appears from the number who make overpayments." Spies
v. United States, 317 U.S. at 496.  Accordingly, "(i)t is not the
purpose of the law to penalize frank difference of opinion or innocent
errors made despite the exercise of reasonable care." Ibid.  That
policy was reiterated in United States v. Bishop, 412 U.S. at 360-361,
where the Court stated that its "consistent interpretation of the word
'willfully' to require an element of mens rea implements the pervasive
intent of Congress to construct penalties that separate the purposeful
tax violator from the well-meaning, but easily confused, mass of
taxpayers." There is no question, therefore, that an innocent or
negligent oversight is not to be equated with willfulness.  See, e.g.,
United States v. Aitken, 755 F.2d 188, 191 (1st Cir. 1985).

   The policies underlying the tax laws do not, however, suggest that
the willfulness standard should be interpreted to shelter an
individual who is aware of the requirements of the tax laws but seeks
to justify disobedience by resorting to claimed beliefs that are
unreasonable or frivolous.  An individual who is aware of the
requirements of the tax laws, such as the requirement to pay taxes on
his wages, but seeks to exempt himself through reliance on some
frivolous proposition is not a victim of the complexity of the tax
laws when he is punished for his unlawful conduct.  Nor can his
violation be characterized as an "innocent error() made despite the
exercise of reasonable care." Spies v. United States, 317 U.S. at 496.
 Yet, the purely subjective approach to the question of willfulness
advocated by petitioner would allow the jury to acquit that person if
it believed that he was convinced of the correctness of the
proposition.

   Such a result would be inconsistent with the objectives of the
system of sanctions under the tax laws.  Focusing exclusively on
whether a person really believes in a legal theory, regardless of how
unreasonable that theory may be, would not "induce prompt and
forthright fulfillment of every duty under the income tax law," Spies
v. United States, 317 U.S. at 497, but instead would encourage
disobedience of the law.  A person who was aware of his duties under
the tax laws and recognized that a particular theory for escaping
taxes was contrary to the plain language of the tax statutes or
judicial decisions -- including decisions of this Court -- could
violate the law without fear of criminal sanctions as long as he could
convince a jury that he sincerely believed his theory for exempting
himself from taxation.

   The exclusively subjective test would be especially inappropriate
in cases where, as here, a belief is objectively unreasonable because
it is foreclosed by judicial decisions of which the defendant is
aware.  Where an individual clings to a theory despite his awareness
of judicial decisions firmly rejecting that theory, he "knows" his
duty, even if he refuses to believe that the courts are correct.
Under the purely subjective test, however, the individual's refusal to
acknowledge the correctness of well-settled legal rules would be
sufficient to negate willfulness.  Thus, the subjective test would
invite individuals to abide by their own interpretations of the law
without fear of criminal prosecution, thereby undermining the uniform
enforcement of the tax laws.

   D. Petitioner's Legal Arguments Do Not Constitute A Defense Under
The Objective Reasonableness Standard

   The court of appeals was clearly correct in holding that the legal
arguments petitioner raised in his defense to the charges under 26
U.S.C. 7201 and 7203 were not objectively reasonable.  In fact, as the
courts in petitioner's various civil actions repeatedly informed him,
those arguments are utterly frivolous.  Moreover, it is well
established that a belief that the tax laws are unconstitutional does
not furnish a defense.

   a. The courts have unanimously rejected the proposition that wages
are not income and therefore are not subject to the federal income tax
laws.  /18/ As a statutory matter, this is evident from the face of
the Internal Revenue Code, which defines "gross income" to mean "all
income from whatever source derived, including (but not limited to)"
"(c)ompensation for services, including fees, commissions, fringe
benefits, and similar items." 26 U.S.C. 61(a)(1).  Petitioner does not
contend otherwise.  Moreover, this Court's decisions in Brushaber v.
Union Pacific R.R., supra, Pollock v. Farmers' Loan & Trust Co.,
supra, and Lucas v. Earl, supra, make clear that income from
employment is subject to the income tax and that such taxation is
authorized by the Constitution.

   The courts have likewise uniformly rejected the additional
objections to the income tax that were identified by the court below
and that have been raised by petitioner and other tax protesters:  (1)
that the Sixteenth Amendment was improperly ratified and therefore
never came into effect;  /19/ (2) that the income tax violates the
Just Compensation Clause of the Fifth Amendment;  /20/ (3) that the
tax laws are broadly unconstitutional in other respects;  /21/ (4)
that filing a tax return necessarily violates the privilege against
compulsory self-incrimination;  /22/ and (5) that Federal Reserve
Notes do not constitute cash or income.  /23/

   Petitioner does not seriously dispute the conclusion by the court
below and other courts that these arguments are not objectively
reasonable and, indeed, are frivolous.  There is no reason why an
individual's adherence to such frivolous positions, in spite of his
awareness that they are at odds with the terms of the Internal Revenue
Code, should excuse his deliberate refusal to file income tax returns
and his attempts to evade the assessment or collection of taxes.  This
is not a case in which petitioner claims he was unaware of his duties
under the tax laws.  His defense was that while he was aware of those
duties, he did not believe they could properly be imposed on him.

   b. Moreover, petitioner's beliefs regarding his immunity from
obligations imposed by the Internal Revenue Code are essentially
beliefs that the tax laws violate the Constitution.  Some of those
contentions are explicitly based on the Sixteenth Amendment or other
provisions of the Constitution.  But the asserted "belief" that wages
are not income also is at bottom a constitutional objection, because
it is based on the notion that wages received for labor are paid in an
equal exchange for the labor, which results in no gain or profit and
which the Constitution therefore does not permit to be subjected to a
direct tax.  See United States v. Mueller, 778 F.2d 539, 541 (9th Cir.
1985);  United States v. Moore, 692 F.2d 95, 97 (10th Cir. 1982);
United States v. Miller, 634 F.2d 1134, 1135 (8th Cir. 1980), cert.
denied, 451 U.S. 942 (1981).  That was the substance of petitioner's
defense on the "wages as income" issue at trial.  See Tr. 1212-1237,
1273, 1305, 1329-1331, 1360.

   The courts have uniformly held that a belief that the Internal
Revenue Code is unconstitutional does not negate the element of
willfulness in a prosecution arising under the Code, and they
accordingly have sustained instructions to that effect.  /24/ As the
Fifth Circuit explained in United States v. Burton, 737 F.2d 439, 442
(1984):

      Those who believe, even in good faith, that the income tax law
      is unconstitutional are * * * willful violators if they
      understand the obligations the statute purports to impose on
      them.  One who believes a statute to be unconstitutional is
      entitled to challenge it in court, see 26 U.S.C. Section 7422,
      /25/ but disobeys it only at the risk of criminal penalties
      should the constitutionality of the statute be upheld.  The
      defendant's good faith belief that the statute is
      unconstitutional does not negate the willfulness of his defiance
      of the statute, * * *.

In other words, "it is not the prerogative of the taxpayer to make a
personalized finding of unconstitutionality." United States v. Payne,
800 F.2d 227, 228 (10th Cir. 1986).  /26/

   This conclusion regarding the scope of a constitutionally based
defense is deeply rooted in the Nation's jurisprudence.  The principle
was applied, for example, in Reynolds v. United States, 98 U.S. 145
(1878), in which the Court rejected a First Amendment challenge to a
law prohibiting polygamy as applied to persons whose religious beliefs
commanded that practice.  The Court found it sufficient to sustain the
conviction that "(e)very act necessary to constitute the crime was
knowingly done, and the crime was therefore knowingly committed." Id.
at 167.  The Court observed that the defense in the case was the
defendant's "belief that the law ought not to have been enacted," but
concluded that "(i)t matters not that his belief was part of his
professed religion:  it was still belief, and belief only." Ibid.
Similarly here, petitioner's belief that the Internal Revenue Code
should not have been enacted, and that it therefore could not
constitutionally be applied to the compensation he received from
American Airlines, does not defeat the showing of willfulness if, as
the jury found, he was aware of the requirements of the Code.

   Even if petitioner's asserted belief that wages are not income
purported to rest on an interpretation of the Code rather than the
Constitution, the analysis would be the same.  Such a belief would be
based not on lack of awareness of the duty imposed by the Code to pay
taxes on income or to file returns, but on a fundamental challenge to
the jurisdictional reach of the Code that is almost universally
understood and respected by millions of other wage earners annually.
As in the case of constitutional objections to the applicability of
the Tax Code, there is no reason to recognize a defense of mistake of
law where, as here, the defendant was aware of the requirements of the
Code as construed by the courts but refused to submit to its
jurisdiction.

   E. Petitioner's Submission Also Is Inconsistent With General
Principles Of Mens Rea Under The Criminal Laws

   This Court's decision in Reynolds v. United States is instructive
here for an additional reason.  It illuminates a basic analytical flaw
in petitioner's repeated contention (Br. 21, 23, 25, 27-28, 30-35)
that he had a subjective "belief" that he did not have to pay taxes.
Petitioner's use of the term "belief" refers to something quite
different from the "intent" or mens rea ordinarily required for the
commission of a crime.

   The various levels of culpability under the criminal laws are based
on the actor's mental state in relation to such external factors as
the nature of the forbidden conduct, the attendant circumstances, and
the result of the conduct.  See Model Penal Code Section 2.02, Comment
1, at 229 (Official Draft and Revised Comments 1985).  Under the Model
Penal Code, for example, the actor's culpability turns on whether he
acted purposely, knowingly, recklessly, or negligently.  Section
2.02(2).  See Liparota v. United States, 471 U.S. 419, 424 n.5 (1985);
 United States v. Bailey, 444 U.S. 394, 404 (1980);  United States v.
United States Gypsum Co., 438 U.S. 422, 444 (1978).  Within this
framework, a person acts "knowingly" with respect to a material
element of the offense if he is "aware" that his conduct is of a
particular nature, that the relevant circumstances exist, or that his
conduct is practically certain to cause the specified result.  Model
Penal Code Section 2.02(1).  See United States v. Bailey, 444 U.S. at
404.  In other words, knowledge is a matter of cognition.  Thus,
insofar as petitioner contends that knowledge of a legal duty is
required for conviction under 26 U.S.C. 7201 and 7203, that
requirement is satisfied where it is shown, as it plainly was here,
that the defendant was aware of the Internal Revenue Code and the
duties it imposed on him.

   By contrast, the term "belief" often refers to matters of personal
faith and conviction.  A "belief" in this sense does not excuse a
person from complying with the criminal law.  The Court so held in
Reynolds, explaining, 98 U.S. at 166-167, in language recently quoted
in Employment Division, Department of Human Resources v. Smith, No.
88-1213 (Apr. 17, 1990), slip op. 6:

      Laws are made for the government of actions, and while they
      cannot interfere with mere religious belief and opinions, they
      may with practices.  * * * Can a man excuse his practices to the
      contrary because of his religious belief?  To permit this would
      be to make the professed doctrines of religious belief superior
      to the law of the land, and in effect to permit every citizen to
      become a law unto himself.  Government could exist only in name
      under such circumstances.

   Although petitioner does not base his opposition to the tax laws on
religious grounds, he appears to use the term "belief" to mean an
individual's conviction as to what is "true" rather than the mental
state of knowledge of relevant circumstances -- here, the existence of
legal duties -- that traditionally is relevant for mens rea purposes.
Thus, he insists that the courts must respect a tax protester's
"sincerely" held beliefs (Br. 21, 27, 32), that "(t)his Court must be
especially vigilant to ensure that people who espouse annoying and
controversial beliefs, as defenses to a criminal charge, are treated
no differently than those whose beliefs are more traditional" (Br.
28), that a court should not focus on the "content of a belief" or
"opinions" (Br. 30, 33, 43), and that the Seventh Circuit has entered
a dangerous First Amendment thicket by abandoning "neutrality toward
the beliefs of tax protesters" and announcing that those beliefs are
"impermissible" (Br. 41-42).

   It is clear, however, that petitioner was not punished for his
subjective "beliefs" about the tax laws;  he was punished because of
his deliberate refusal to comply with those laws.  Even if
petitioner's motive for his actions was the assortment of subjective
"beliefs" he espouses, his beliefs in the soundness or justness of his
conduct or his theories of the law do not negate the element of mens
rea where, as here, those beliefs have no plausible basis in the law
as generally understood and applied, and the jury found that he knew
what the law required of him but intentionally refused to comply.  See
J. Hall, General Principles of Criminal Law 99-100 (2d ed. 1960)
(distinguishing motive from mens rea and explaining why motive is not
an element of the offense).  Compare United States v. Pomponio, 429
U.S. at 12 (no showing of evil "motive" required, beyond proof of
intentional violation of known legal duty);  United States v. Mueller,
778 F.2d at 541 (belief that wages not income under the Constitution
was merely the motive for failing to do what the law required).

   The instant case presents a striking example of the mischief that
the purely subjective test can cause.  Petitioner was repeatedly
warned in court proceedings to which he was a party that courts had
consistently rejected his theories for escaping taxation.  During
cross-examination at trial, he admitted that he was aware that the
decision in United States v. Koliboski, 732 F.2d 1328, 1329 n.1 (7th
Cir. 1984), had stated in capital letters that wages are income.  Tr.
1332-1333.  He was sufficiently familiar with the case to know that
the statement appeared in a footnote.  Tr. 1332.  Confronted with
Koliboski, petitioner conceded, "Wages are income for a taxpayer," but
then claimed he is not a taxpayer.  Tr. 1333.  Petitioner also
grudgingly admitted that judges in the cases in which he had been a
party had issued opinions or made statements telling him that wages
are income, Tr. 1334-1336, but claimed that he simply did not believe
those judges.  Tr. 1368-1369.  Petitioner further acknowledged that he
had heard the judge give instructions in a friend's trial, but he
denied that he learned what the law was.  Instead, he said, "I learned
what Judge Carroll considered the law to be," and he rejected that
position.  Tr. 1367-1368.  Finally, petitioner acknowledged
familiarity with this Court's decision in Lucas v. Earl, 281 U.S. 111
(1930), in which the Court held that an individual's salary and fees
were income subject to tax.  Tr. 1406.

   It is difficult to imagine a case in which a defendant could be
more fully informed about the judicial rejection of the grounds he
gave for refusing to conform his conduct to the requirements of the
law.  Yet, even on these facts, some jurors were reluctant to convict
petitioner.  Petitioner contends (Pet. 19) that the questions from the
jurors during their deliberations and the notes the jury tendered to
the court upon returning the verdict "show that at least some jurors
were convinced that petitioner sincerely held his beliefs." In fact,
however, the sympathy expressed by the jurors reveals one of the main
weaknesses of the purely subjective test for willfulness:  it rewards
sincerity of belief even when the defendant knows that the belief has
been rejected as legally unsound.  If sincerity of belief becomes the
test, persons like petitioner and his tax protest partners will be the
ultimate judges of the requirements of the law, a step that will
doubtless encourage others to take chances on violating the law in
reliance on repudiated theories.

   II. THE REQUIREMENT THAT PETITIONER'S BELIEF AS TO THE LAWFULNESS
OF HIS CONDUCT BE OBJECTIVELY REASONABLE DOES NOT VIOLATE HIS
CONSTITUTIONAL RIGHTS

   Petitioner contends (Br. 36-43) that to define willfulness as
containing an objective element in the circumstances of this case
would violate the Constitution in three respects:  it would apply a
change in the law retroactively to him, in violation of principles of
fundamental fairness;  it would improperly eliminate the requirement
of intent in criminal tax statutes;  and it would deprive him of his
right to have his guilt or innocence determined by a jury.

   A. Petitioner Was Not Denied Due Process By A Change In The Law
After The Time Of The Conduct Charged In The Indictment

   Relying on Marks v. United States, 430 U.S. 188 (1977), petitioner
argues (Br. 36-37) that because the Seventh Circuit adopted an
objective test for willfulness in criminal tax prosecutions after the
date of the conduct for which he was convicted, applying the rule to
him offends fundamental notions of fairness.  Petitioner, however, did
not raise this contention in the court of appeals or in his petition
for a writ of certiorari, and it is therefore not properly before the
Court.  In any event, it is without merit.

   As early as the decision in Murdock, this Court indicated that a
mistake-of-law defense must be based on an objectively reasonable
belief.  The Court has never repudiated that suggestion.  Thus,
Murdock served notice that a good faith belief must be objectively
reasonable.  Moreover, as petitioner concedes (Br. 23), the Seventh
Circuit stated as early as United States v. Moore, 627 F.2d 830, 833
(1980), cert. denied, 450 U.S. 916 (1981), that a mistake of law must
be "objectively reasonable" under the criminal tax laws.  That was
sufficient to make application of that rule to petitioner reasonably
foreseeable.  See United States v. Rodgers, 466 U.S. 475, 484 (1984).
Nor is application of that principle to petitioner's case unfair,
because petitioner's knowledge of the requirements of the tax laws is
established by the fact that he paid taxes and filed returns for ten
years before the conduct at issue here, and it is undisputed that
petitioner was advised that his beliefs had been rejected by the
courts.  See United States v. Grumka, 728 F.2d at 797 ("Grumka's
assertion on appeal that he believed in good faith that he was under
no legal obligation to pay federal income taxes is at odds with his
admission at trial that he knew the Internal Revenue Service had not
accepted and the Courts of the United States had not recognized his
various rationales for refusing to pay income taxes.").  Furthermore,
petitioner's various arguments in this case boil down to the claim
that the Internal Revenue Code, as applied to him, violates the
Constitution.  The courts of appeals have unanimously held that such a
belief does not negate the element of willfulness.  Because that
principle goes back at least as far as Reynolds v. United States, more
than 100 years ago, petitioner can scarcely claim unfair surprise in
being denied that defense now.

   B. The Jury Instruction In This Case Did Not Eliminate The
Requirement Of Intent From The Criminal Tax Statutes And Did Not
Violate Petitioner's Right To Have His Guilt Or Innocence Determined
By A Jury

   Petitioner asserts that the district court's instructions violated
the Fifth Amendment by eliminating the mens rea requirement for
criminal tax statutes (Br. 38-39), and violated the Sixth Amendment by
depriving petitioner of the right to have a jury decide the issue of
guilt or innocence (Br. 40-42).

   The jury instructions in this case did not eliminate the mens rea
element from tax crimes.  To the contrary, they defined willfulness to
require a finding of an intentional violation of a known legal duty.
The instructions to which petitioner objects simply construed the
criminal tax statutes as placing limits on the mistakes-of-law
defense.  Nothing in Morissette v. United States, 342 U.S. 246 (1952),
on which petitioner relies, precludes that construction.  In
Morissette, the defendant, who had taken bomb casings he had found on
government property, was charged with conversion under 18 U.S.C. 641.
At trial, he sought to raise a mistake-of-fact defense -- that he
believed the casings were abandoned -- but the trial court refused to
permit the defense.  This Court reversed the conviction, holding, as a
matter of statutory construction, that criminal intent is an essential
element of an offense under 18 U.S.C. 641.  The Court did not suggest
that an element of knowledge or intent was constitutionally required
with respect to the question of abandonment in that case, see 342 U.S.
at 254 n.14, much less with respect to the existence of legal duties
that are as broadly applicable and widely known as the requirements
under the Internal Revenue Code at issue in this case -- to file
returns and pay taxes on wages.  Compare Lambert v. California, 355
U.S. 225 (1957).  Nor did the Court in Morissette hold, even as a
matter of statutory construction, that the defendant was entitled to
present a mistake-of-law defense.  Indeed, in describing what would
constitute a "knowing conversion" under the statute, the Court stated:
 "He must have had knowledge of the facts, though not necessarily the
law, that made the taking a conversion." 342 U.S. at 270-271.  Thus,
Morissette is fully consistent with a limitation of objective
reasonableness on the availability of a mistake-of-law defense under
the criminal tax statutes.

   It also was proper for the district court and court of appeals to
hold that certain beliefs are not objectively reasonable for purposes
of the mistake-of-law defense.  A court may clearly decline to submit
to the jury a defense based on a belief that the tax laws are
unconstitutional -- the substance of petitioner's defense in this case
-- since, as a matter of law, such a belief does not negate the
element of willfulness.  Compare Sansone v. United States, 380 U.S. at
347.  In arguing that the district court's instruction regarding the
unreasonableness of certain beliefs erected an irrebuttable
presumption that violated the Due Process Clause, petitioner relies
(Br. 37, 41) on Sandstrom v. Montana, 442 U.S. 510 (1979).  In
Sandstrom, however, the Court expressly distinguished Reynolds v.
United States on the ground that the defendant's constitutionally
based religious objection to the polygamy laws was not a defense.  See
442 U.S. at 520 n.9.  The district court therefore did not commit
reversible error in this case by declining to submit the
reasonableness of petitioner's constitutional views to the jury.

   Even if petitioner's belief that wages are not income was based on
the Internal Revenue Code rather than the Constitution, the district
court was still correct in instructing the jury that that belief was
not objectively reasonable.  The questions of fact for the jury to
decide in a case such as this are whether the defendant knew of his
statutory duties, whether he actually held a particlar belief with
respect to his legal duties, and whether he held that belief in good
faith.  But the question whether a particular belief about the
requirements of the law is objectively reasonable is a question of law
for the court to decide;  objective reasonableness is not a factual
issue as to which different juries should be permitted to reach
different conclusions.  Compare Sinclair v. United States, 279 U.S.
263, 298-299 (1929) (materiality of false statement question of law
for court);  Kungys v. United States, 108 S.Ct. 1537, 1547 (1988)
(same).

   Finally, even if the issue of objective reasonableness is
considered a factual issue for the jury, it was not necessary to
submit the issue to the jury in this case because there was no basis
on which any factfinder could conclude that petitioner's views were
objectively reasonable.  Petitioner's asserted belief that his
compensation from American Airlines is not income for purposes of the
Internal Revenue Code flies in the face of the statutory definition of
income to include "(c)ompensation for services." 26 U.S.C. 61(a).
Petitioner has pointed to no judicial or other authority suggesting
that this definition means something other than what it says.  And
petitioner's view that wages are not income has been rejected as
frivolous by numerous courts.  A court is not required to instruct a
jury on a particular legal theory of the defense in the absence of any
concrete basis in the evidence or applicable law for that theory.  See
Mathews v. United States, 485 U.S. 58, 63 (1988);  United States v.
Bailey, 444 U.S. at 415;  Battle v. United States, 209 U.S. 36, 38
(1908);  Sparf & Hansen v. United States, 156 U.S. 51, 63-64 (1895).
That is the case here, because the record and petitioner's
unsubstantiated and bizarre belief that wages are not income fall far
short of furnishing a sufficient basis "for a reasonable jury to find
in his favor." Mathews v. United States, 485 U.S. at 63.  /27/

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   SHIRLEY D. PETERSON

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   ROBERT E. LINDSAY

   ALAN HECHTKOPF

      Attorneys

   MAY 1990

   /1/ In several prior years, petitioner sought to avoid taxes in a
different manner.  In 1978, guided by materials distributed by a group
called E.S. Publishers, petitioner established a "family trust." He
assigned to that trust a portion of his income from American Airlines,
took a deduction for that assignment on his personal tax returns for
the years 1978 and 1979, and paid personal expenses out of the trust.
As a result, his returns for 1978 and 1979 substantially understated
his tax liability.  J.A. 46-47;  Tr. 263-274, 693-702, 1158-1164.
Following an audit, the IRS disallowed his deductions for the "family
trust." Tr. 235-290.  Petitioner's convictions arose out of subsequent
tax years and are not based on his use of the "family trust" or the
resulting understatement of his tax liability for 1978 and 1979.  In
1980, petitioner became a member of ths Mid-America Commodities Barter
Association, an organization that furnished members a way to have
checks received and payments made on their behalf without being
traced.  Tr. 333-335, 532-555, 1120, 1138-1139, 1191-1193.

   /2/ From 1984 on, American Airlines withheld sufficient amounts to
cover petitioner's tax liability.  Petitioner nevertheless persisted
in his refusal to file tax returns.  Tr. 170, 339-356.

   /3/ Among the arguments that the Seventh Circuit found frivolous
were that wages are not income, that the Sixteenth Amendment was
improperly ratified, and that income taxes are unconstitutional
takings.  828 F.2d at 398.

   /4/ Petitioner told the attorney about cases of which he was aware
in which individuals were prosecuted for willful failure to file tax
returns, tax evasion, and filing false W-4 forms.  Tr. 982-983.
Petitioner also told her of the statement by the judge in his suit
against American Airlines that his case was frivolous.  Tr. 981-982.

   /5/ See also Tr. 1084 (attorney told petitioner on several
occasions that petitioner's view of the law was inconsistent with
interpretations by district and appellate courts).

   #FN6

   /6/ Although the point was not brought out on cross-examination,
petitioner, as an airline pilot, of course also must have a license
from the government.  49 U.S.C. App. 1422.

   /7/ The False Claims Act, 18 U.S.C. 287, which formed the basis for
petitioner's conviction for seeking a refund of his 1982 taxes, does
not contain the word "willfully." It proscribes the submission of a
claim to a government agency "knowing" the claim to be false or
fraudulent.  The jury was instructed that it must find that petitioner
"knew" the claim was false, J.A. 79, and that the term "knowingly"
means that "the defendant realized what he was doing and was aware of
the nature of his conduct, and did not act through ignorance, mistake,
or accident." J.A. 74.  Petitioner does not appear to challenge the
instructions or his conviction on that count.

   /8/ The jury submitted several notes that it wanted the court to
read after the verdict was announced.  Before reading the notes, the
court polled the jury, and each juror affirmed that the guilty verdict
was his or her own.  Pet. App. 4-5.  The court then read the notes.
The first stated in part:  "Some of our jurors wished to express their
personal opinions.  These opinions are not meant to affect in any way
their verdict of guilty.  These opinions are forwarded as a complaint
against the narrow & hard expression under the constraints of the
law." Id. at 27.  The second note, from one of the jurors, stated:  "I
feel * * * (petitioner) is a reasonable person and sincerely believes
in his cause.  * * * I honestly believe he believes so deeply in his
cause that he has risked everything for this cause and truly does not
believe he is breaking the law." Ibid.  The last note, from another
juror, contained two statements.  The first read:  "'Honest and
Sincere in His Cause' -- He is Guilty." The second read:  "Not
'Objectively Reasonable' He Is Guilty." Ibid.  After reading these
notes, the court polled the jury again, and no juror expressed
disagreement with the verdict.  Id. at 5-6.

   /9/ Petitioner now attempts (Br. 4-5, 32, 39) to portray himself as
a gullible and misguided victim caught up in the tax protest movement.
 That was not his defense in the courts below, where he argued that
the tax laws could not constitutionally be applied to him.  Petitioner
has abandoned those arguments in this Court.

   /10/ In the court of appeals, petitioner argued (C.A. Br. 25-29)
that the district court erred in its supplemental instructions to the
jury because, inter alia, the court did not repeat the instruction
referring to an "intentional violation of a known legal duty," and the
jury therefore might have been misled into believing that it was not
required to make that finding in order to convict him.  The court of
appeals rejected petitioner's objection to the manner of
reinstruction, Pet. App. 7-12, and he does not renew that claim here.

   /11/ Petitioner errs in contending (Br. 19-21) that the jury
instructions approved by the Seventh Circuit in this case would be
rejected by ten other courts of appeals.  The Second Circuit has
stated that an instruction requiring objective reasonableness would be
appropriate.  United States v. Schiff, 801 F.2d 108, 112 (1986), cert.
denied, 480 U.S. 945 (1987).  The Third Circuit recently observed that
it had not yet resolved the validity of such an instruction, and it
expressly left that question open.  United States v. Connor, No.
89-3614 (Mar. 21, 1990), slip op. 8.  The Ninth Circuit likewise has
indicated that it has not yet definitively resolved that question.
Compare Cooley v. United States, 501 F.2d 1249, 1253 n.4 (1974), cert.
denied, 419 U.S. 1123 (1975), with United States v. Mueller, 778 F.2d
539, 541 (1985), and United States v. Aguilar, 883 F.2d 662, 674-675 &
nn. 5, 6 (1989).  In Yarbrough v. United States, 230 F.2d 56, 61
(1956), cert. denied, 351 U.S. 969 (1956), cited by petitioner (Br.
20), the Fourth Circuit simply stated that "ignorance of the law" can
constitute a defense under the criminal tax laws, a position that is
fully consistent with the district court's instructions in this case
and our submission herein.  In Battjes v. United States, 172 F.2d 1, 4
(1949), cited by petitioner (Br. 20), the issue concerned an
instruction that the defendant was presumed to know the law, and the
Sixth Circuit did not specifically address the issue presented here;
more recently, the Sixth Circuit indicated that an instruction
concerning a "known legal duty" is sufficient.  United States v.
Sassak, 881 F.2d 276, 279-280 (1989).  Thus, there is no concluded
view in the majority of circuits that conflicts with our submission
here.

   The reasoning in the decisions of other courts of appeals that
petitioner cites does not lend much persuasive force to those
conflicting circuit precedents.  For the most part, those decisions
simply rely on the Bishop and Pomponio formulation of an "intentional
violation of a known legal duty," which was in fact followed in this
case.  Those decisions also do not address the arguments presented
herein or explain how the purely subjective approach can sensibly be
applied where, as here, the defendant is fully aware of the legal
duties imposed by the relevant statutory provisions.

   /12/ In considering the scope of this implied extension of the
defense of ignorance or mistake of law under the criminal tax
statutes, it is important to keep in mind that any such defense is an
exception to the deeply rooted principle that ignorance or mistake of
law ordinarily is not a defense to a criminal prosecution.  See United
States v. Barlow, 32 U.S. (7 Pet.) 404, 411 (1833);  Armour Packing
Co. v. United States, 209 U.S. 56, 85-86 (1908);  Lambert v.
California, 355 U.S. 225, 228 (1957);  United States v. International
Minerals & Chemical Corp., 402 U.S. 558, 562-563 (1971).

   /13/ Petitioner argues (Br. 17 & n.8) that the quoted passage from
Murdock was not intended to reflect the Court's construction of the
term "willfully," as used in the Revenue Act of 1926, but was intended
as a list of alternative constructions of the term that the Court did
not mean to apply to the Revenue Act.  The context of the discussion
rebuts that claim, as does a subsequent decision in which the Court
made it clear that the quoted passage was, indeed, intended as part of
the Court's construction of the Revenue Act.  See Trans World
Airlines, Inc. v. Thurston, 469 U.S. 111, 127 (1985).

   /14/ The references in Murdock to a "bad purpose" or "evil motive"
(290 U.S. at 394, 395) simply refer to a specific intent to violate
the law -- generally, an intentional violation of a known legal duty.
United States v. Pomponio, 429 U.S. 10, 11-12 (1976).

   /15/ Cf. Screws v. United States, 325 U.S. at 104-105 (plurality
opinion) (willfulness established under predecessor to 18 U.S.C. 242
when defendant acts in open defiance or reckless disregard of
constitutional rights that have been made specific and definite).

   /16/ The instruction that the Court held should have been given in
Murdock did not state that the jury must acquit the defendant if it
found his reasons for refusing to supply information were given in
good faith and based upon his actual belief.  The instruction stated
only that the jury should "consider" its finding of good faith and
actual belief in determining whether the defendant's refusal was
willful.  290 U.S. at 393.  A fortiori, Murdock does not suggest that
a jury must be instructed to give dispositive effect to a defendant's
claimed good faith belief where, as here, the state of the law
regarding an individual's obligation to pay income tax on wages and to
file returns as required by the Internal Revenue Code was not at all
unsettled at the time the defendant acted.

   /17/ Elsewhere in Bishop, the Court stated that "(t)he requirement
of an offense committed 'willfully' is not met * * * if a taxpayer has
relied in good faith on a prior decision of this Court." 412 U.S. at
361.  Such reliance would establish that a mistake of law was
objectively reasonable.  The Court's reference to that point further
suggests that objective reasonableness does indeed have an important
role to play in determining the availability of the mistake-of-law
defense.

   /18/ See Sullivan v. United States, 788 F.2d 813, 815 (1st Cir.
1986);  Ficalora v. CIR, 751 F.2d 85 (2d Cir. 1984), cert. denied, 471
U.S. 1005 (1985);  United States v. Connor, No. 89-3614 (3d Cir. Mar.
21, 1990), slip op. 3-4;  United States v. Graham, 758 F.2d 879,
886-887 (3d Cir.), cert. denied, 474 U.S. 901 (1985);  United States
v. Burton, 737 F.2d 439, 441 (5th Cir. 1984);  United States v.
Koliboski, 732 F.2d 1328, 1329 n.1 (7th Cir. 1984);  United States v.
Richards, 723 F.2d 646, 648 (8th Cir. 1983);  United States v. Buras,
633 F.2d 1356, 1361 (9th Cir. 1980);  United States v. Lawson, 670
F.2d 923, 925 (10th Cir. 1982);  Hyslep v. United States, 765 F.2d
1083, 1084 (11th Cir. 1985).

   /19/ See United States v. Sitka, 845 F.2d 43, 45-47 (2d Cir.),
cert. denied, 488 U.S. 827 (1988);  Knoblauch v. CIR, 749 F.2d 200,
201-202 (5th Cir. 1984), cert. denied, 474 U.S. 830 (1985);  Sisk v.
CIR, 791 F.2d 58, 60-61 (6th Cir. 1986);  United States v. Thomas, 788
F.2d 1250, 1253-1254 (7th Cir.), cert. denied, 479 U.S. 853 (1986);
Axmann v. Ponte, 892 F.2d 761 (8th Cir. 1990);  United States v.
Stahl, 792 F.2d 1438 (9th Cir. 1986), cert. denied, 479 U.S. 1036
(1987);  Stubbs v. CIR, 797 F.2d 936, 938 (11th Cir. 1986).

   /20/ Brushaber v. Union Pac. R.R., 240 U.S. at 24-25;  Coleman v.
CIR, 791 F.2d 68, 70 (7th Cir. 1986);  Campbell v. Amax Coal Co., 610
F.2d 701, 702 (10th Cir. 1979) (withholding on wages).

   /21/ United States v. Carley, 783 F.2d 341, 342 (2d Cir.), cert.
denied, 476 U.S. 1142 (1986);  Sauers v. CIR, 771 F.2d 64, 69 n.6 (3d
Cir. 1985), cert. denied, 476 U.S. 1162 (1986);  Melton v. Kurtz, 575
F.2d 547, 548 (5th Cir. 1978);  Lively v. CIR, 705 F.2d 1017, 1018
(8th Cir. 1983);  Maxfield v. United States Postal Service, 752 F.2d
433, 434 (9th Cir. 1984);  Charczuk v. CIR, 771 F.2d 471, 474 (10th
Cir. 1985).

   /22/ United States v. Edelson, 604 F.2d 232, 234-235 (3d Cir.
1979);  United States v. Reed, 670 F.2d 622 (5th Cir.), cert. denied,
457 U.S. 1125 (1982);  United States v. Evanko, 604 F.2d 21, 23 (6th
Cir. 1979), cert. denied, 444 U.S. 1024 (1980);  United States v.
Jordan, 508 F.2d 750, 752 (7th Cir.), cert. denied, 423 U.S. 842
(1975);  United States v. Karsky, 610 F.2d 548, 550-551 (8th Cir.
1979), cert. denied, 444 U.S. 1092 (1980);  United States v. Neff, 615
F.2d 1235, 1238-1241 (9th Cir. 1979), cert. denied, 447 U.S. 925
(1980);  United States v. Lawson, 670 F.2d at 927;  United States v.
Vance, 730 F.2d 736, 737-738 (11th Cir. 1984).

   /23/ United States v. Edelson, 604 F.2d at 233-234;  United States
v. Whitesel, 543 F.2d 1176, 1180-1181 (6th Cir. 1976), cert. denied,
431 U.S. 967 (1977);  United States v. Moore, 627 F.2d 830, 833 (7th
Cir. 1980), cert. denied, 450 U.S. 916 (1981);  United States v. Daly,
481 F.2d 28, 30 (8th Cir.), cert. denied, 414 U.S. 1064 (1973);
United States v. Schmitz, 542 F.2d 782, 785 (9th Cir. 1976), cert.
denied, 429 U.S. 1105 (1977);  United States v. Porth, 426 F.2d 519,
523 (10th Cir.), cert. denied, 400 U.S. 824 (1970).

   /24/ See United States v. Kraeger, 711 F.2d 6, 7 (2d Cir. 1983);
United States v. Burton, 737 F.2d 439, 442 (5th Cir. 1984);  United
States v. Sassak, 881 F.2d 276, 281 (6th Cir. 1989);  United States v.
Grumka, 728 F.2d 794, 797 (6th Cir. 1984);  United States v. Bressler,
772 F.2d 287, 291 n.2 (7th Cir.), cert. denied, 474 U.S. 1082 (1985);
United States v. Miller, 634 F.2d at 1135;  Haywood v. Day, 619 F.2d
716, 717 (8th Cir.), cert. denied, 446 U.S. 969 (1980);  United States
v. Ness, 652 F.2d 890, 893 (9th Cir.), cert. denied, 454 U.S. 1126
(1981);  United States v. Mueller, 778 F.2d at 541;  United States v.
Hairston, 819 F.2d 971, 973 n.3 (10th Cir. 1987).  The district
court's instruction in this case -- that a good faith belief that the
tax laws are unconstitutional is not objectively reasonable as a
matter of law -- was the functional equivalent of the instruction
approved by the other courts of appeals.

   /25/ Under 26 U.S.C. 7422, a person may pay the tax and then
challenge its constitutionality in a suit for a refund.  See, e.g.,
United States v. Lee, 455 U.S. 252, 254-255 (1982);  United States v.
Ptasynski, 462 U.S. 74, 79 (1983).  This alternative means of relief
avoids the risk of criminal penalties for non-compliance with the law.
 The same alternative of course is also available to a person who
wants to challenge assessment of a tax on non-constitutional grounds,
without the risk of criminal prosecution.  Petitioner did not pursue
that course.  He did file other civil actions seeking an adjudication
of his legal arguments, but he then continued to defy the law even
after his arguments were rejected as frivolous.

   /26/ This unanimous view of the courts of appeals is consistent
with the statutory text.  The provisions under which petitioner was
convicted, 26 U.S.C. 7201 and 7203, impose criminal penalties on one
who willfully attempts to evade or defeat a tax "imposed by this
title" or to file a return "required by this title." There is no
suggestion that an individual is excused from liability based on his
belief that Title 26 of the United States Code is unconstitutional in
whole or in part.

   /27/ Petitioner also argues (Br. 41-43) that the jury instructions
in this case violated the First Amendment because they amounted to a
content-based regulation of "beliefs." Petitioner did not raise this
issue in the court of appeals, and he made only a passing reference to
it in his certiorari petition.  Pet. i.  In any event, this claim is
meritless.  As explained above (see pages 36-37, supra), petitioner
was not punished for his "beliefs," but for his intentional violation
of known legal duties under the tax laws.  He is not exempted from
criminal liability on the ground that his conduct might have been
motivated by beliefs the expression of which would be protected by the
First Amendment.  See Reynolds v. United States, 98 U.S. at 166-167.