Taxpayer Gambled in Casinos Gave False SSN When He Won

United States v. Aaron,  2009 U.S. App. Lexis 28383  (6th Cir. Dec. 28, 2009)

Mr. Aaron appealed from his conviction on seventeen counts of making and subscribing a false document pursuant to 26 U.S.C. section 7206(1).

Aaron gambled at various Detroit casinos. Each time he won more than $1,200 he was requested to provide his social security number for the W-2G. Aaron provided a false social security number on at least 965 occasions.

On appeal Aaron argued that his trial counsel was ineffective for not requesting a good-faith jury instruction. He also argued that the trial court erred by not instructing the jury on his good faith defense.

The trial court gave the following instruction: "Any person who willfully makes and subscribes any return, statement, or other document which contains or is verified by a written declaration that it is made under the penalties of perjury and which he does not believe to be true and correct as to every material matter shall be guilty of an offense. The elements of this offense are as follows, (1) the defendant made and subscribed a return, statement or other document which was false as to a material matter; (2) the return, statement or other document contained a written declaration that it was made under the penalties of perjury; (3) the defendant did not believe the return, statement or other document to be true and correct as to every material matter, and (4) the defendant falsely subscribed to the return, statement, or other document willfully, with the specific intent to violate the law."

Because Aaron failed to object to the jury instructions during trial, the 6th Circuit reviewed the jury instructions only for plain error.

To demonstrate a "plain" error the defendant must show (1) an error, (2) that is plain, and (3) that affects his fundamental rights. The court will correct the error only if the error seriously affected the fairness, integrity, or public reputation of the trial .

The Supreme Court has held that, in criminal tax cases, "the statutory willfulness requirement is the voluntary, intentional violation of a known duty." Cheek v. United States, 498 U.S. 192, 201 (1991).  Willfulness can be negated by a showing that the defendant had a good faith belief that he was not violating any of the provisions of the tax law.

The 6th Circuit found that Aaron's defense, that he provided  false social security number to prevent identity theft, did not meet the Cheek requirement.

The convictions were affirmed.

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