United States v. Swan , 187 F. App'x 21 ( 2006 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2078
UNITED STATES,
Appellee,
v.
STEVEN A. SWAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Torruella, Lynch and Lipez,
Circuit Judges.
Steven A. Swan on brief pro se.
Thomas P. Colantuono, United States Attorney, and William E.
Morse, Assistant U.S. Attorney, on brief for appellee.
July 6, 2006
Per Curiam. After carefully considering the briefs and
record on appeal, we affirm the judgment below.
The appellant argues that the government failed to
produce sufficient evidence to allow a reasonable jury to conclude
that he acted willfully. A willful violation is a voluntary,
intentional relinquishment of a known legal duty. Cheek v. United
States, 498 U.S. 192 (1991). An error arising from a bona fide
misunderstanding of the Tax Code is not willful, but an error
arising from a constitutional or philosophical objection is
willful. Cheek, 498 U.S. at 205-206. The appellant argues that he
sincerely believed that the Tax Code was unconstitutional. This is
just the sort of argument that Cheek precludes. United States v.
Bonneau, 970 F.2d 929 (1st Cir. 1992). In any event, he makes no
showing that a reasonable jury could not have found that he knew
his tax obligations and intentionally renounced them. United
States v. Campbell, 268 F.3d 1 (1st Cir. 2001).
The appellant also argues that the court should have
dismissed the charges on the ground of selective prosecution. He
shows no error. To prevail on a selective prosecution claim, he
would have to show, inter alia, that he was singled out for
prosecution for impermissible reasons. United States v. Graham,
146 F.3d 6 (1st Cir. 1998). Minimally, his criminal investigation
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began before the speech that he alleged triggered his prosecution.
United States v. Serafino, 281 F.3d 327 (1st Cir. 2002).
Finally, the appellant fails to show that his tax
liabilities violate the Sixteenth Amendment. The amendment
eliminated apportionment. Quijano v. United States, 93 F.3d 26 (1st
Cir. 1996). The appellant points to nothing in its plain language
or other law that supports his position. Edwards v. Cuba R. Co.,
268 U.S. 628 (1925).
The appellant’s remaining arguments are either not
properly before us or insufficiently developed. In the light of
this decision, the appellant’s remaining pending motions are
denied.
Affirmed. 1st Cir. R. 27(c).
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