James C. Dunkel, a dentist, decided in 1981 that the income tax is “voluntary”. So he quit filing tax returns. Just in case the IRS should take a contrary view, Dunk-el also started keeping two sets of books, excluding from one any cash receipts and checks that were endorsed over to his staff to pay their salaries without going through his bank accounts. Dunkel testified that he did these things to obtain more “privacy” than the banking system affords him. The jury concluded, however, that he did these things to evade tax, and that he also wilfully failed to file his tax returns, in violation of 26 U.S.C. §§ 7201 and 7203. The district judge sentenced him to three years’ imprisonment, to be followed by five years’ probation.
Some of the evidence used to convict Dunkel came from his refuse, which an informant culled. After
California v. Greenwood,
Dunkel owned and maintained his offices in a building that housed two other dentists and five business tenants. All used the same dumpster, which was located off the parking lot of the building, more than 55 feet from the nearest part of the structure. Dunkel’s patients and employees, and those visiting other tenants of the building, used the parking lot. Anyone in the parking lot could walk up to the dumpster; the trash hauler that emptied the dumpster came in through the parking lot and needed no key or other entree. After taking evidence, the district court found that “the fact that the garbage dumpster was being shared by other tenants ... [and] was accessible to the public ... supports the finding that there was no reasonable expectation of privacy; and although this dumpster was 170 feet into the property, I think it’s clear that that dumpster was accessible to the public, as much as if it were sitting in any other open lot.” This finding is not clearly erroneous.
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Intoning “curtilage” does not alter the fact that the parking lot was open to all comers — not only Dunkel’s invitees but also those of his seven tenants. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”
Katz v. United States,
Only three of Dunkel’s eight remaining arguments (most with multiple sub-parts) bear comment. Dunkel insists that the charges under § 7201 are duplicitous because that statute creates two crimes: evading the assessment of taxes (as by fooling the IRS about your income) and evading the payment of taxes (as by secreting assets after taxes have been assessed). To charge both in one count, Dunkel maintains, is to confuse both the defendant and the jury. Not so. Section 7201 creates only one crime: tax evasion. Section 7201 makes it a crime to “attempt in any manner to evade or defeat any tax imposed by this title or the payment thereof”. Just as you can rob a bank in a dozen ways (blow the door off the vault, tunnel from next door and empty the till in the dead of night, stick up the teller, scoop money out of the cash drawer during business hours when no one is looking, and so on), so you can evade taxes in multiple ways.
Sometimes it is convenient to say that different methods are different “crimes”, as the Supreme Court once said about § 7201.
Sansone v. United States,
Dunkel contends that 26 U.S.C. § 7203 is unconstitutionally vague because it requires a taxpayer to “make” a return. No one could understand this, Dunkel insists. Maybe it means “fill in” a return; maybe it means “send in” a return; maybe it even means “construct a return out of raw materials”. The district judge thought this frivolous and threatened sanctions. Dunkel’s lawyer, Donald W. MacPherson, filed in the district court a blizzard of “unnecessary, duplicative and spurious motions, causing the Court to spend valuable time searching through 110 pages of motions which appear to be ‘boilerplate’ motions duplicated from a word processor”. Although this court’s Rule 30(a) requires the appellant to attach to his brief the
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opinions under review, MacPherson deleted from the district court’s opinion the portion chastising him and warning that worse could follow. See
In re Becraft,
Statutes are not unconstitutional just because clever lawyers can invent multiple meanings. It is enough that a reasonable person can see what Congress is driving at.
United States v. Powell,
Both § 7201 and § 7203 require the district court to impose, as part of the punishment, the “costs of prosecution.” Neither statute defines “costs", so courts regularly look to 28 U.S.C. § 1920 for specification of the permissible amounts. E.g.,
United States v. Procario,
None of Dunkel’s other contentions requires comment. We were surprised to discover, however, that the district judge allowed Dunkel’s lawyer to present evidence, and to argue to the jury, that a person’s belief that “taxes are voluntary” is a defense to a criminal prosecution. Although only wilful evasion or failure to file is criminal, in this circuit a mistaken view of the law does not negate wilfulness if the defendant’s legal belief is objectively unreasonable. E.g.,
United States v. Cheek,
Affirmed.
