## Facts

- John L. Cheek, an airline pilot, stopped filing federal income tax returns for 1980, 1981, and 1983–1986 and engaged in conduct charged as tax evasion for 1980, 1981, and 1983.
- He became active in tax-protest activity and repeatedly challenged federal income tax and withholding requirements, including through prior civil litigation that resulted in sanctions for frivolous filings.
- Cheek was indicted for willful failure to file (26 U.S.C. § 7203) and tax evasion (26 U.S.C. § 7201), convicted, and initially sentenced to one year and one day of imprisonment.
- The Supreme Court reversed the first conviction due to erroneous willfulness instructions, holding that a good-faith misunderstanding of tax law can negate willfulness even if objectively unreasonable.
- On remand, Cheek was retried before a different district judge, convicted again on all counts, and sentenced to one year and one day plus a $62,000 fine.
- At the retrial, Cheek asserted that he relied on lawyers regarding his tax beliefs; attorney testimony indicated he was warned he must comply unless a court ruled otherwise, warned of potential criminal exposure, and was not advised not to file returns.

## Issues

1. Whether the trial court erred by refusing to give Cheek’s requested advice-of-counsel jury instruction in a prosecution requiring proof of willfulness.
2. Whether a higher monetary penalty after retrial, following a successful appeal, violated due process as vindictive sentencing.
3. Whether pretrial delay required dismissal under the Speedy Trial Act or the Sixth Amendment.

## Decision

- The court affirmed the convictions and sentence.
- The court held the refusal to give Cheek’s specific advice-of-counsel instruction was not error because Cheek did not establish the elements of that defense and the given willfulness/good-faith instructions allowed the jury to consider the attorney-consultation evidence.
- The court held the increased fine did not violate due process because there was no showing (and no warranted presumption) of vindictiveness; the sentence was within statutory limits and imposed by a different judge than at the first trial.
- The court rejected the speedy-trial challenge, concluding the delay did not require dismissal under either statutory or constitutional standards.

## Legal Principles

- In tax prosecutions requiring “willfulness,” the jury must acquit if the defendant acted under a genuine good-faith belief that the conduct was lawful, even if that belief was objectively unreasonable.
- A defendant is not entitled to a separate advice-of-counsel instruction absent evidence supporting the traditional elements of that defense, including seeking advice before acting, full disclosure of material facts, and actual good-faith reliance consistent with the advice received.
- Consultations with lawyers may be relevant to good faith, but warnings from counsel that the law requires compliance and that noncompliance risks prosecution do not support an advice-of-counsel defense.
- A harsher sentence after a successful appeal is not unconstitutional without evidence (or a qualifying context creating a presumption) of judicial vindictiveness.
- Speedy Trial Act and Sixth Amendment claims require showing a violation under applicable timing rules and, constitutionally, consideration of length and reasons for delay, assertion of the right, and prejudice.

## Conclusion

The Seventh Circuit upheld Cheek’s retrial convictions for tax evasion and willful failure to file, concluding that the good-faith willfulness instructions adequately covered his attorney-reliance evidence, that the increased fine did not reflect unconstitutional vindictiveness, and that the delays did not warrant dismissal on statutory or Sixth Amendment speedy-trial grounds.


United States v. Cheek, 3 F.3d 1057 (7th Cir. 1993)