August 9, 2005
Can Membership in a Tax Protester Organization Be a Ground for an Upward Departure?
Richard Simkanin was a member of the tax protester movement who asserted, among other things, that the Sixteenth Amendment was not properly ratified and that as a citizen of the Republic of Texas he owed no taxes to the federal government on his salary -- the usual "tax nut" stuff. Simkanin brought himself to the attention of the IRS when he appeared in an advertisement in USA Today touting the fact that he did not withhold taxes for the employees of his company because the income tax system was voluntary. He was subsequently indicted and convicted -- after a mistrial because of a hung jury in which fellow tax protesters distributed jury nullification literature to potential jury members -- of various tax offenses. At trial, Simkanin asserted the usual Cheek defense of good faith belief that the tax laws did not apply to him. After his conviction, the Sentencing Guidelines called for a term of imprisonment between 41 and 55 months, but the district judge departed upward and imposed an 84-month term. Among the grounds for the upward departure was Simkanin's participation in various tax protester groups, including "We The People for Constitutional Education." The court stated that Simkanin "and those who share his views have a cult-like belief that the laws of the United States do not apply to them; (3) Simkanin has entrenched himself in anti-government groups and is part of a movement whose members question the power of the federal government and its instrumentalities, including the federal courts, to exercise jurisdiction and authority over them . . . ."
Does that violate a person's right to associate freely with others? In U.S. v. Simkanin, the Fifth Circuit held that it did not in an opinion (here) issued on Aug. 5:
Simkanin’s beliefs and associations may be considered if they were "sufficiently related to the issues at sentencing." Boyle v. Johnson, 93 F.3d 180, 183-85 (5th Cir. 1996). Here, Simkanin’s sentence was not increased merely because of his abstract beliefs or associations. Rather, Simkanin’s specific beliefs that the tax laws are invalid and do not require him to withhold taxes or file returns (and his association with an organization that endorses the view that free persons are not required to pay income taxes on their wages) are directly related to the crimes in question and demonstrate a likelihood of recidivism. Thus, the district court did not constitutionally err in considering these factors.
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