NOT FOR PUBLICATION FILED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