United States v. John L. Cheek
72 A.F.T.R.2d (RIA) 5727, 1993 U.S. App. LEXIS 21537, 3 F.3d 1057 (1993)
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Rule of Law:
A defendant is not entitled to a specific jury instruction on the 'advice of counsel' defense if the evidence fails to establish that the defendant, in good faith, sought advice on future conduct, made a full disclosure of all material facts to the attorney, and acted strictly in accordance with that advice.
Facts:
- John Cheek, a pilot for American Airlines, filed federal income tax returns through 1979 but ceased to file them thereafter.
- In 1980, Cheek changed the number of withholding allowances on his W-4 form first to 39 and then to 60 to prevent taxes from being withheld from his wages.
- In December 1980, an American Airlines tax attorney advised Cheek that his claim of being exempt from withholding was incorrect and suggested he seek competent counsel.
- From 1981 through 1984, Cheek continued to file W-4 forms claiming exempt status, despite the IRS and his employer telling him his contentions were without merit.
- Cheek initiated several unsuccessful lawsuits challenging the constitutionality of the tax system and the withholding of taxes from his wages.
- During the period covered by the indictment, Cheek conferred with several attorneys but had already begun his course of non-compliance with tax laws.
- Attorneys Cheek consulted advised him that courts were upholding the tax laws and that he could be criminally prosecuted for failing to file returns; none advised him not to file.
- Cheek also attended the criminal tax trials of associates, all of which resulted in convictions.
Procedural Posture:
- John Cheek was charged in a superseding indictment in a federal district court with willfully failing to file income tax returns and willfully attempting to evade taxes.
- A jury convicted Cheek on all counts in his first trial.
- The U.S. Court of Appeals for the Seventh Circuit affirmed the conviction.
- The U.S. Supreme Court reversed the conviction on the basis of erroneous jury instructions regarding the definition of 'willfulness' and remanded the case for a new trial.
- On remand, a second jury trial was held before a different district court judge.
- The jury again convicted Cheek on all counts, and the judge sentenced him to imprisonment and imposed a fine.
- Cheek, the appellant, appealed his conviction and sentence from the second trial to the U.S. Court of Appeals for the Seventh Circuit.
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Issue:
Does a district court err by refusing to give a specific jury instruction on an 'advice of counsel' defense when the defendant did not meet all the required elements for that defense and the court's general instruction on willfulness adequately covered the defendant's theory?
Opinions:
Majority - Aldisert, Senior Circuit Judge
No, a district court does not err by refusing to give a specific jury instruction on an 'advice of counsel' defense where the defendant fails to establish the necessary elements. The court found that Cheek did not meet the requirements for this defense because he did not seek legal advice on 'possible future conduct' but rather continued a course of illegal conduct he had already begun. The record shows he did not make a full and accurate report to his attorneys, nor did he act strictly in accordance with their advice; in fact, they warned him of potential criminal prosecution. Furthermore, the district court's general instructions on 'willfulness,' which required the jury to find a 'voluntary and intentional violation of a known legal duty' and allowed for a good-faith belief defense, were sufficient to encompass Cheek's theory, making a separate 'advice of counsel' instruction unnecessary.
Analysis:
This decision reinforces the stringent requirements for asserting an advice of counsel defense, making it clear that it is not a shield for those who 'shop' for legal opinions to justify a pre-existing course of illegal conduct. It affirms that the defense requires proactive, good-faith inquiry before acting, full disclosure, and strict adherence to the advice received. The case also solidifies the principle that a well-crafted general instruction on specific intent, such as willfulness, can be legally sufficient to cover a defendant's theory of the case, thereby giving trial courts discretion to decline more specific, redundant instructions.
