NOT FOR PUBLICATION FILED
MAY 23 2022
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30175
Plaintiff-Appellee, D.C. No. 17-cr-00068-MO
v. MEMORANDUM*
MICHAEL EDWARD BOWMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted May 12, 2022**
Portland, Oregon
Before: BERZON and CHRISTEN, Circuit Judges, and BLOCK, *** District Judge.
Appellant Michael Bowman appeals his conviction on four counts of willful
failure to file a tax return, in violation of 26 U.S.C. § 7203. Bowman argues that the
Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”), required
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
1
the dismissal of the operative indictment against him because of his religious belief
that he must not contribute money used to facilitate abortions. In the alternative,
Bowman argues that the district court should have considered a good faith defense,
because he subjectively believed RFRA exempted him from payment of his taxes
until an accommodation was provided to him. Both claims are reviewed de novo.
We presume familiarity with the factual and procedural history of this case, and we
affirm the district court.
1. Dismissal of Bowman’s Indictment
Both this Circuit and the United States Supreme Court have repeatedly
rejected the proposition that a taxpayer may withhold tax money owed because taxes
support expenditures the taxpayer finds objectionable: “Because the broad public
interest in maintaining a sound tax system is of such a high order, religious belief in
conflict with the payment of taxes affords no basis for resisting the tax.” United
States v. Lee, 455 U.S. 252, 260 (1982); Hernandez v. Comm’r, 490 U.S. 680, 699-
700 (1989) (“[E]ven a substantial burden would be justified by the ‘broad public
interest in maintaining a sound tax system,’ free of ‘myriad exceptions flowing from
a wide variety of religious beliefs.’”) (citing Lee, 455 U.S. at 260).
Bowman argues that Lee and Hernandez are preempted by RFRA, and that in
any event, they are inapposite. He is mistaken on both counts. First, RFRA did not
supersede Lee and Hernandez; to the contrary, it restored those cases. RFRA
2
legislatively overturned Employment Division, Department of Human Resources of
Oregon v. Smith, 494 U.S. 872 (1990), which itself overturned the balancing test at
the heart of Lee and Hernandez. In so doing, RFRA reinstated the balancing test—
and the vitality of Lee and Hernandez.
Bowman’s attempt to distinguish Lee and Hernandez fares no better. He
asserts that they are distinguishable because the expenditures objected to by the
taxpayers in those cases—social security and national defense—are more
compelling interests than that of abortion funding. He argues that because funding
for abortion providers is a less compelling interest, taxation on that account fails the
RFRA balancing test. Bowman’s arguments are off the mark. The compelling
government interest at issue here is not the funding of abortion providers; it is the
administration of a manageable tax system, an interest that clears the balancing test’s
hurdle. Hernandez, 490 U.S. at 699-700.
RFRA does not exempt Bowman from the payment of taxes nor require
accommodation. The district court properly denied Bowman’s motion to dismiss the
indictment.
2. Bowman’s Good Faith Defense
Willful failure to file a tax return is a specific-intent offense, and thus good
faith is a defense. However, the law distinguishes between innocent mistakes made
in an effort to comply with the tax code and noncompliance that “reveal[s] full
3
knowledge of the provisions at issue and a studied conclusion, however wrong, that
those provisions are invalid and unenforceable.” Cheek v. United States, 498 U.S.
192, 205 (1991). Failure to comply with the tax laws is not excused by a defendant’s
“belief in their invalidity.” United States v. Hanson, 2 F.3d 942, 946 (9th Cir. 1993).
Bowman admits that he “read the tax code, and that he knows the tax code.”
He acknowledges that the code requires him to file a tax return. He stipulates that
from 1990 onward, he “knew that federal tax laws imposed a duty on him to file his
personal income taxes.” And he acknowledges that “[s]ince at least 2003, [he] has
intentionally failed to file any U.S. Individual Tax Return.”
Bowman does not argue that he haplessly attempted to comply with the tax
code. Rather, he argues that portions of the tax code are rendered unenforceable as
to him by the application of RFRA. This argument is one about the validity of the
code, at least as applied to him, and it is therefore foreclosed by Cheek.
“[W]here the evidence, even if believed, does not establish all of the elements
of a defense, . . . the trial judge need not submit the defense to the jury.” United
States v. Perdomo-Espana, 522 F.3d 983, 987 (9th Cir. 2008) (internal citation
omitted). Because Bowman has failed to establish the good faith defense as a matter
of law, the district court did not err in precluding its presentation.
Accordingly, the judgment of the district court is AFFIRMED.
4