Petition — Serra v. United States

ee ,

bet, A CLERK {

IN THE SUPREME COURT OF THE UNESED 4}

OCTOBER TERM, 1974

re ce wr

NO 4 o> oJ

J. TONY SERRA, PETITIONER

Vs >.

UNITED STATES OF AMERICA, RESPONDENT

PETITION F

OR A WRIT OF CERTIORAR

THE UNITED ST

R

I

STATES COURT OF APPEALS

THE NINTH CIRCUIT

J. TONY SERRA, ESQ.

473 Jackson Street

San Francisco, Ca. 94lll

- IN PRO SE

RAY ARCHULETA, ESQ.

“ On The Brief

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

INDEX

Page

AM Opinion Below 2

Jurisdiction 2

J. TONY SERRA, PETITIONER Question Presented 3

vs. Statutory Provisions Involved 3

UNITED STATES OF AMERICA, RESPONDENT Statement of the Case 4

Reasons for Granting the Writ:

1. The Ninth Circuit Court of 11

PETITION FOR A WRIT OF CERTIORARI TO Appeals has rendered a

THE UNITED STATES COURT OF APPEALS decision in conflict with

FOR THE NINTH CIRCUIT the Third, Fourth, Fifth

and Eighth Circuits on the

same matter, viz, the

i interpretation cf Bishop v.

J. TONY SERRA, ESQ. United States, 412 U.S. 346,

473 Jackson Street . 36 L.Ed.2d 941 (1973), and

; San Francisco, Ca. 94111 i . its definition of the

* IN PRO SE instruction to be given to

| the jury on the meaning of

RAY ARCHULETA, ESQ. , the word "willful," as

On The Brief . applied to Feceral tax

misdemeanors.

2. The denial of requested 17

jury instructions was error

where the sole issue

presented was petitioner's

state of mind as it applied

July 1, 1975 : to willfullness.

>

Tt «-

ii

INDEX (Continued)

Reasons for Granting the Writ

(Continued)

3. The Ninth Circuit Court of

Appeals has decided a

question interpreting the

Gcecision of this Court in

Bishop v. United States,

Supra, which is in conflict

with the requirements of

Bishop, viz, the cGefinition

to be given to the jury of

the meaning of the word

"willful" as used in

Instructions to the jury in

Feaeral tax misdemeanors.

Conclusion

Appendix I

Opinion of Ninth Circuit Court

of Appeals

Page

22

27

iii

CITATIONS

Cases

Cooley v. United States,

501 F.2d 1242 (1974)

Glasser v. United States,

315 U.S. 60, 67, 86 L.Ed.2d

680, 697,698 (1942)

Mann v. United States,

319 F.2d 404, 410 (5th, 1963)

Morrissey v. Brewer,

408 U.S. 471, 33 L.Ed.2d

484 (1972)

Smith v. Illinois,

390 U.S. 129, 19 L.Ed.2d

956 (1968)

United States v. Ancros,

484 F.2d 531 (1973)

United States v. Bishop,

412 U.S. 346, 36 L.Ed.2d

941 (1973)

United States v. Bengimina,

499 F.2d 117 (1974)

Unitee States v. Goldstein,

502 F.2d 526 (1974)

United States v. Grady,

(D.C. Cir, 1973) 481 F.2d

1106, 1108

Page

23,24

25,26

26

28

28

24

3,8,11,12,

13,14,15,

16,17,20,

22,24,25,

26,27

16

13

20

CITATIONS (Continued)

Cases

United States v.

iv

Gurtner,

(9th, 1973) 474 F.2d 297

United States v.

Hawk,

497 F.2d 365 (C.A. 9, 1974)

cert.denied 419 U.S.

838 (1974)

United States v.

Klee,

(9th, 1974) 494 F.2d 394

United states v.

Sll F.2d 477 (7th, 1974),

rehearing En Banc granted,

McCorkle,

Sll F.2d 482 (7th, 1975)

United States v.

Muraock,

290 U.S. 389,

398,

54 Sup.Ct. 223, 78 L.Ed.

381 (1933)

United States v.

Pohlman,

510 F.2d 414 (8th, 1974)

Unitee States v.

Snicer,

502 F.2d 645 (1974)

United States v.

Sullivan,

369 F.Supp. 568 (1974)

United States v.

509 F.2a 1205

United States v.

Swanson,

(8th, 1975)

Tunnell,

48] F.2d 149 (5th, 1973)

Page

24

13,22,

23,24

20,21,23

16

8,13,

15,17

21

14

24

21

15

ee PR TP Oe OSs eee eT

a

SNS 1 oe 580

UBS WEP LI oe

Cases

CITATIONS (Continued)

United States v. Walker,

497 F.2d 407 (1973)

Wardius v.

Oreoon,

412 U.S.

470, 37 L.Ed.2d

82 (1973)

Williams v.

Florida,

399 U.S.

78, 26 L.Ed.2d

446 (1970)

Statutes

26 U.S.C.,

28 U.S.C.,

Section

Section

Section

Section

Section

Section

Section

Section

Other Authorities

Blackmar, Section 13.03

7201

7202

7203

7204

7205

7206

7207

1254 (1)

Page

23

28

28

14,16

14

3,4,14,16

14

14

14,16

14,16

2

25

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

NO.

J. TONY SERRA, PETITIONER

vs.

UNITED STATES OF AMERICA, RESPONDENT

ene al

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PP’ owe Qe

The petitioner, J. TONY SERRA,

respectfully prays that a Writ of

Certiorari issue to review the judgment

and opinion of the United States Court of

Appeals for the Ninth Circuit entered in

Pe RE gr:

this proceeding on March 24, 1975.

2

OPINION BELOW

The opinion of the Court of Appeals

as reported, appears in Appendix I hereto.

No opinion was rendered by the District

Court for the Northern District of

California.

JURISDICTION

The judgment of the Court of Appeals

for the Ninth Circuit was entered on March

24, 1975, affirming the judgment of the

District Court below. A timely Petition

for Rehearing En Banc was denied on May 7,

1975. On June 4, 1975, Associate Justice

William J. Grannan, Jr.,* of the United

States Supreme Court granted a Stay of the

filing of the Writ of Certiorari. There-

after this Certiorari was filed within

thirty (30) days of that date. This

Court's jurisdiction is invoked under

28 U.S.C., Section 1254(1).

QUESTION PRESENTED

WHETHER BISHOP V. UNITED STATES,

412 U.S. 346, 36 L.Ed. 2d 941 (1973),

REQUIRES THAT INSTRUCTIONS TO THE JURY

DEFINING “WILLFULNESS" EMBODY THE CONCEPT

OF “BAD PURPOSE" OR “EVIL MOTIVE."

STATUTORY PROVISIONS INVOLVED

United States Code, Title 26:

"Section 7203. WILLFUL FAILURE TO FILE

RETURN, SUPPLY

INFORMATION, OR PAY TAX.

Any person required under this title to

pay any estimated tax or Tax, or required

by this title or by regulations made

under authority thereof to make a return

(other than a return required under

authority of section 6015 or section

6016), keep any records, or supply any

information, who willfully fails to pay

such estimated tax or Tax, make such

return, keep such records, or supply such

information, at the time or times

required by law or regulations, shall in

addition to other penalties provided by

.law, be guilty of a misdemeanor and, upon

conviction thereof, shall be fined not

more than $10,000, or imprisoned not more

than 1 year, or both, together with the

costs of prosecution."

a ae

ry

STATEMENT OF THE CASE

Petitioner J. TONY SERRA, a

practicing attorney in the State of

California, was charged on February ll,

1974, in a three- (3-)Covnt Information,

with the misdemeanor offense of having

failed to file his Federal tax returns

for the years 1969, 1970 and 1971.

(26 U.S.C., Section 7203)

Represented at all stages of the

trial proceedings In Propria Persona, and

after a jury trial presided over by

United States District Court Judge

ALBERT C. WOLLENBERG at San Francisco,

California, petitioner was acquitted of

the 1969 and 1970 Counts, and was

convicted upon the 1971 Count.

Petitioner was sentenced to a term

' of four (4) months in the custody of the

ee EEO

1/ ; pose

Attorney General. § He was and is at "to his omission, and

: that will be the

° liberty upon his own recognizance, and : 7 wry trial ...*

. a 7

mandate has been stayed by the Ninth 4 ; ;

: Throughout the pretrial conference it was

Circuit Court of Appeals. [F.R. App., ;

apparent to the Court, the prosecution

p. 41(b)]) ~

2/ and to the petitioner that such was the

At a pretrial conference conducted

—er

issue in dispute:

prior to the trial, it was determined and

"The Court: Your

agreed that the sole issue to be tried | defense is that you

| --1t concerns your

was the issue of petitioner's state of entire state of mind.

mind on the three (3) dates on which the a+ pall That's

right.

returns were due.

The Court: As to

"Mr. Youngquist: what it goes to, the

--. The third element, good or bad purpose.

of course, is the state

of mind and the ; Mr. Serra: That's

willfulness with respect : absolutely right.

The Court: And

. | only that.

, V/

Petitioner has no prior record of tax | Mr. Serra: That's

violations and is still in active practice. é right."

The gross income involved in the years : (R.T., 44, emphasis

1969, 1970 and 1971, is $13,472.50, ' added)

$21,089.00, and $19,519.00, respectively. F

°2/ ‘i The Court went on to state:

~ Record references are to the Clerk's E :

Record (CR), one volume; and to the HY You are going to

Reporter's Transcript (RT), one volume. U state, as I understand

"it, that you did not But, regardless of whether or not

have the bad or evil

purpose that you

consciously believed ‘

that you ..." | -

a ayranss believed them to be illegal, and that his

these events were illegal or not, it was

petitioner's defense that he honestly

honest belief was the mental condition

Thus, paramount to petitioner's

Causative of his failure to file, and

defense was his state of mine as it s .

such failure therefore was not conceived

el t ili ° P ,; ;

related to the filing of his tax returns with "bad purpose" or “evil motive."

F - i : . .

urthermore, that state of mind related (R.T., 35) In fact, his acts in this

specifically to his honest beliefs that regard were guided by, and conformed to,

the war in Indochina was illegal and, then-existing law as enunciated in United

more importantly, that the war was being States v. Murdock, 290 U.S. 389 (1933)

= . 4 -7 . . ’

supported illegally. Numerous specific and supported by United States v. Bishop

facts and events can be related to support . 412 U.S. 346 (1973).

thes Lief Ge , a ,

ese beliefs, e.g., failure of Congress The prosecution, in its opening

. . = s h - . s

to declare war in a situation of such statement, informed the jury that:

Magnitude and undertaking; illegal war “

»-- State of mind,

ladies and gentlemen,

is something that you

. : . have to determine.

material misrepresentations to the people od ih tn iin

difficult point in

this case. It's really

operations in Cambodia, Laos and Thailand;

of the United States; and so forth. (CR)

9 | 10

"the only point that state of mind “goes to ..." (R.T., 44);

you are going to

have to address ; and after having limited petitioner's

yourselves to. And

; you are going to have : defense to the sole issue of state of

to listen very

carefully to the mind and his “beliefs" (R.T., 44, 60-64,

Court's instructions

on the law as to what and pointedly on page 36); the Court took

you can consider,

what you should away this sole defense by its refusal to

consider, in the way

of judging what Mr. instruct as requested (R.T., 65-80), and

Serra's state of

mind was. instructed as follows:

In other words, if, "The only question left

as a matter of law for your determination

the facts in this is whether the defen-

case show that he | dant's failure to

willfully failed to timely file returns for

file these returns." each of those years was

(R.T., 104-5, willful.

emphasis added)

The term "willfully,"

Numerous other references to the sole used in the statute,

. which I have read to

, issue to be tried in this case, viz . you, means that the

. failure to file an

: state of mind, are made apparent by a incore tax return was

. . ; voluntary, purposeful,

reading of the transcript. (See R.T., 5, deliberate, and inten-

tional, as distinguished

6, 10, 13, 21, 31, 35, 44, 63.) from accidental,

inadvertent or negligent.

After all the parties had agreed

The failure to file a

that the sole issue to be tried was state timely income tax

return is willful if

of mind; and after discussing what the the Government proves

11 | 12

"beyond a reasonable United States, 412 U.S. 346, 36 L.Ed 2d

doubt that the

defendant's failure ; 941 (1973), and its definition of the

to act was with the

specific intent to o instruction to be given to the jury on

fail to do what he

knew the law requires the meaning of the word "willful," as

to be done; that is

to say, with the applied to Federal tax misdemeanors.

conscious purpose of

disobeying or disre- The rule that the word

garding the law which

requires the defendant "willful" in the tax-crime felony statutes

to file a timely |

return." had a different meaning than in tax-crime

iMetee 208-9)

misdemeanor statutes, had divided the

The instant case shows no error of

Circuits until this Court's decision in

commission--no alleged misrepresentation

Bishop v. United States (412 U.S. at 348

of any type--but, rather, a failure to

N.2, 36 L.Ed. 2d at 944 N.2).

act and, as such, state of mind is tho

Bishop declared that the,

key to any defense. °

.-. word ‘willfully’ has the same

meaning in both statutes." The formula-

REASONS FOR GRANTING THE WRIT

tion of the requirement of willfulness is

1. The Ninth Circuit Court of

"bad faith or evil intent, ... evil motive

Appeals has rendered a decision in

and want of justification ..." (412 U.S.

conflict with the Third, Fourth, Fifth

at 360, 36 L.Ed. 2d at 951). Until

and Eighth Circuits on the same matter,

Congress speaks otherwise, we therefore

viz, the interpretation of Bishop vs.

>

13

shall continue to require, in both tax

felonies and misdemeanors that must be

done 'willfully,' the bad purpose or evil

motive described in Murdock, supra ...

(412 U.S. at 361, 36 L.Ed. 2d at 951-952).

The Ninth Circuit, in United

States v. Hawk, 497 F.2d 365 (C.A. 9,

1974), cert. denied 419 U.S. 838 (1974),

held that Bishop does not compel

inclusion of the term “evil motive," and

approved the trial Court's giving of

Instructions omitting the formulation

laid down in Bishop.

The Third Circuit, in United

States v. Goldstein, 502 F.2d 526 (1974),

submitted on Rehearing En Banc, stated at

page 529:

"One of the crucial

factors which must be

present to convert

late filing into a

criminal offense is

willfulness. While

14

"this term has been

generally interpreted

to mean a voluntary,

intentional violation

of a known legal duty,

the Supreme Court has

emphasized that bad

faith or evil motive

must exist in tax cases."

The Fourth Circuit, in United States

v. Snider, 502 F.2d 645 (1974), rehearing

En Banc denied, the Court held that:

".,.- in United States

v. Bishop, 412 U.S. 346,

the Supreme Court

settled the question of

whether the word wilfully

has the same meaning in

the felony statutes, 26

U.S.C., Section 7201,

7206, as it does in the

misdemeanor statutes, 26

U.S.C., Section 7202-

7205, 7207. It does.

The Court also made it

clear that it had

consistently interpreted

the word ‘'willfully' to

reguire an element of

mens rea and that

‘until Congress speaks

otherwise, we therefore

shall continue to require,

in both tax felonies and

tax misdemeanors, they

| te’

15

"must be done willfully,

that bad purpose or

evil motive described in

[United States v.] Murdock

{290 U.S. 389, 398, 54

Sup.Ct. 223, 78 L.Ed. 381

(1933)] ...°, 412 U.S.

361, 93 Sup.Ct. at 2017.

Thus, it is no longer

clear, as we would have

previously thought, that

the element of willfull-

ness in a tax statute is

established by proof of

the voluntary, intentional

violation of a known legal

duty--without more."

The Fifth Circuit interprets Bishop

to require, as to willful attempt, “evil

motive." United States v. Tunnell, 481

F.2d 149 (5th C.A. 1973) The Court noted

that certain understatements of income by

the taxpayer "permits an inference of

willfullness sufficient to create a jury

question." (481 F.2d at 152) Obviously,

the Instruction to the jury must involve

the words “evil motive."

Presently before this Court is

16

United States v. McCorkle, 5ll F.2d 477

(7th C.A. 1974), Rehearing En Banc

granted, United States v. McCorkle, 5ll F.

2d 482 (7th 1975). In McCorkle (1), 51ll

F.2d 477, the Court held that the dictates

of Bishop required the “evil motive" or

"bad purpose" Instruction. McCorkle (2),

511 F.2d 482, affirmed the lower Court's

conviction of the defendant. Thereafter,

McCorkle filed his Writ of Certiorari

before this Court.

The Eighth Circuit, in conflict

with the Ninth Circuit, has stated in

United States v. Bengimina, 499 F.2d 117

(1974), at 119:

"..- Bishop laid to rest

any distinction between

‘willful' as used in tax-

felony cases, i.e., 26

U.S.C., Sections 7201 and

7206, and tax-misdemeanor

cases, i.e., 26 U.S.C.,

Sections 7203 and 7207.

Willful is to have the

17

"same meaning in both

classes of cases.

Bishop, supra, at 349 ...

2. The cenial of requested jury

Instructions was error where the sole

issue presented was petitioner's state of

mind as it applied to willfullness.

Petitioner had presented the

Court with a copy of his proposed Jury

Instructions (R.T., 65-80). There were

five (5) Instructions requested. They

were all directed at defining the mental

condition of "willfullness" as including

the Murdock and Bishop attributes of bad

faith, evil motive and/or bad purpose.

Said Instructions were denied by the

Court, and the Court thereafter drafted

its own Instruction (R.T., 80).

In limiting petitioner to the

sole issue of state of mind, i.e.,

18

petitioner's honest belief, and in

refusing to give the requested Instruc-

tions, the Court took away any defense

that petitioner had. Petitioner pleaded

with the Court for any variation of the

requested Instructions.

The Instructions, as given,

led the jury to believe that petitioner's

state of mind or honest belief was motive,

and thereafter instructed the jury that

motive was not to be considered in its

deliberations (R.T., 209):

"Nor is it a defense

to the charges in the

indictment (sic) that

the defendant failed

to file a return

because he challenges

or sought to challenge

on constitutional,

moral, or other grounds,

the uses to which the

government was putting

his tax money."

This Instruction, coupled with the Court's

own Instruction on "willfullness" (which

19

is stated in p-rtinent part below),

effectively denied petitioner a defense.

"The failure to file a

timely income tax

return is willfull if

the government proves

beyond a reasonable

doubt that the

defendant's failure to

act was with the

specific intent to fail

to do what he knew the

law requires to be done;

that is to say, with the

conscious purpose of

disobeying or disregarding

the law ..."

(R.T., 209, emphasis

added)

By not instructing the jury as

to petitioner's state of mind, i.e.,

whether his act was done with a

"wrongful purpose," "evil motive," or was

an act done without ground for believing

it to be lawful (R.T., 66-67, petitioner's

Proposed Instruction Number 4), the Judge

took the issve of willfullness from the

jury; cf. United States v. Grady (D.C.

20

Cir., 1973), 481 F.2d 1106, 1108. The

Judge made his own determination that

petitioner's act was not a result of his

state of mind, after having limited him

to that issue.

The crime alleged was a crime

of omission, or failure to act and, as

such, state of mind was the key to any

defense presented by petitioner.

In the instant case, there is

no question that petitioner objected to

the form of the Instruction and requested

that he be given “bad purpose" or "evil

motive” (R.T., 79-81). The same trial

Court which tried petitioner herein had

been the trial Court in United States v.

Klee (9th, 1974), 494 F.2d 394. In that

case, the Court had given the Instruction

required by Bishop, supra, and had

included the terms "bad purpose and evil

21

motive." (Klee, supra, at 395, fn.1)

Thus, the Instructions as

given forced the jury to convict

petitioner even though jury members might

have believed his good-faith reasons for

failing to file. In United States v.

Pohlman, 510 F.2d 414 (8th 1974), the

Court stated at 418:

"... The jury must find

that her failure to

file arose from a bac

motive and evil intent

to commit an illegal

act, fully aware of

her obligation to do

otherwise.

Since bad purpose and

evil motive are essential

elements of willfulness

unaer Section 7203, we

see no reason that the

jury should be afforded

the ambiguity of an

instruction which

possibly denotes 3/

otherwise ..." a

3/

~ See also, United States v. Swanson, 509

F.2d 1205 (8th, 1975)

22

3. The Ninth Circuit Court of

Appeals has decided a question interpre-

ting the decision of this Court in

Bishop v. United States, supra, which is

in conflict with the requirements of

Bishop, viz, the definition to be given

to the jury of the meaning of the word

"willful" as used in Instructions to the

jury in Federal tax misdemeanors.

The Ninth Circuit has

interpreted Bishop variously, with the

decision in Hawk being inconsistent with

the decisions of other panels within the

Circuit.

Exercise of this Court's

jurisdiction to clarify the "nagging

guestion ... as to Justice Blackmun's

reference to ‘evil motive' ... (United

States v. Hawk, 497 F.2d 366 [9th, 1974],

cert. denied 419 U.S. 838 [1974]) would

23

assist in both settling the law and

guiding the trial Courts.

Petitioner respectfully points

to the following Ninth Circuit decisions

which have cited Hawk, supra, and Klee,

supra, for the proposition that the

words “bad purpose" or "evil motive" need

not be included in jury uidetuaiae. ?

The line of cases in the Ninth Circuit

have all included some form of evil

motive, bad purpose, or wrongful purpose.

(Sce United States v. Klee, supra; United

States v. Hawk, supra; Cocley v. United

States [1974] 501 F.2d 1249, wrongful

purpose; United States v. Walker [1973]

479 F.2d 407, bad purpose or without

grounds for believing one's act is lawful;

4/

~ Jt should be noted that in both Hawk

and Klee the Court included the woras “bad

purpose" or "evil motive" in its Instruction.

24

United States v. Gurtner [9th, 1973] 474

F.2d 297; United States v. Sullivan [1974]

369 F.Supp. 568, bad purpose; United

States v. Andros [1973] 484 F.2d 53l,

bad purpose.)

Although it may be argued the

above-cited cases are in “substantial

compliance with Bishop ...," they are in

compliance only insofar as they

",.. Communicate the proper notion of

specific intent in understandable terms."

(Cooley v. United States, supra, citing

Hawk)

The trial Court's refusal to

follow Bishop and the inconsistent

Instructions given by the trial Court

require this Court to exercise its

jurisdicticn in supervising the conduct

of criminal cases where, as here, the

"close case" doctrine of Glasser v.

25

United States, 315 U.S. 60, 67, 86 L.Ed.

2d 680, 697-698 (1942) is involved.

A defendant in a criminal

trial must premise his argument to the

jury upon the Court's Instructions.

Bishop provided a somewhat short

phraseology for willfullness--"bad

purpose or evil motive." The phrase, in

its entirety, is important for the

explanation each adjective gives to the

other, and to its explanation of all

that comes before in the "standard

nbenenken.*”

Bishop requires the trial

Court to instruct with a phrase equally

2/

~ See Devit & Blackmar, Federal Jury

Practice & Instructions, Section 13.03,

"knowingly," which compounds the confusion

where “bad purpose or evil motive" is

omitted from Sections 16.07 and 16.13

Instructions.

26

descriptive if its exact words are not to

be used. At the least, "... instructions

must be consistent and not misleading."

(Mann v. United States, 319 F.2d 404, 410

[S5th, 1903))

Here, the requirement of

Bishop was not met. The error is one in

violation of this Court's decision in

Bishop and of the rule that Instructions

.May not be misleading. "The fact that

one instruction is correct does not cure

error in giving another inconsistent one."

(Mann, supra)

This Court's exercise of its

Supervisory power over criminal trials by

a grant of Certiorari to promote a fair

trial has often been determined in the

past by reference to the so-called "close

case doctrine" of Glasser v. United

27

States, 315 U.S. 60, 67, 86 L.Ed.2d 680,

697-698 (1942).

The evidence was not overwhelming--

the jury acquitted petitioner on two (2)

Counts of a series of continuous conduct.

The government specifically

eschewed any fraud, evasion, or atmosphere

of such. The opportunity to defend the

Criminal charge on the merits of the key

issue--state of mind--was seriously

curtailed by the failure to follow

Bishop's definition of willfullness.

CONCLUSION

A series of this Court's decisions

have mace clear that the defendant's right

to a fuli and fair opportunity to contest

the charges in the Courtroom, represented

by counsel, fully prepared, will not be

~

28

6/

curtailed. § Like both the right to

counsel and to full tools for cross

examination, the right to argue the

evidence to a jury which has had defined

to it by the Court, the crucial element

of willfullness in clear, unambiguous,

and consistent terms, is essential to a

fair trial.

The Circuits are in conflict as to

what the definition of that crucial term

should be. One Circuit, the Ninth, cannot

agree internally. In the case itself,

the trial Court did not consistently

instruct.

6/

~ For example, Williams v. Florida, 399

U.S. 78, 26 L.Ed.2d 446 (1970); Wardius

v. Oregon, 412 U.S. 470, 37 L.Ed.2d 82

(1973); Smith v. Illinois, 390 U.S. 129,

19 L.Ed.2d 956 (1968); ct. Morrisscy v.

Brewer, 408 U.S. 471, 33 L.Ed.2d 484

| l |

29

For all the reasons heretofore,

°. Certiorari should be granted.

July l,

1975

Respectfully submitted,

OT

J. TONY S A, ESQ.

473 Jackson Street

San Francisco, Ca.

IN PRO SE

RAY ARCHULETA, ESQ.

On The Brief

94111

ate ECR :

30

IN THE- SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

J. TONY SERRA, PETITIONER

vs.

UNITED STATES OF AMERICA, RESPONDENT

CERTIFICATE OF SERVICE

I hereby certify that on this lst

day of July, 1975, three (3) copies of

the Petition for Writ of Certiorari were

mailed, postage prepaid, to the Solicitor

General of the United States, United

States Department of Justice, Washington,

D.C. 20530, Counsel for Respondent. I

further certify that all parties required

to be served have been served.

J. Tony Serra, Esq.

473 Jackson Street

San Francisco, Ca. 94111

IN PRO SE

DO NOT PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE NINTH CiRCUIT

Unitep States OF AMERICA, 1

Appellec,

vs.

> No. 74-3249

J. Tony SERRA, ORDER

Appellant. | APFIRMING

[March 24, 1975]

Appeal from the United States District Court

. Northern District of California

Before: KOELSCH and DUNIWAY, Circuit Judges,

and TAYLOR*, District Judge

Appellant, a 40 year old lawver, has appealed from his convie-

tion of having wilfully and knowihigiy failed to timely file a fed-

eral income tax return for the year 1971 in violation of 26 U.S.C.

§7203. The judgment of conviction is affirmed.

Appellant’s sole reason for failing to file his tax return was

because of his opposition to the involvement of the United States

in the war in Southeast Asia.

The only issue here is whether the trial court committed revers-

ible error by failing to use the terms “bad faith,” “evil motive” or

“bad purpose” in the jury instructions in regard to the element of

wilfullness. The instructions given by the court were in substantial

compliance with United States v. Bishop, 412 U.S. 346, 93 S.Ct.

2008 (1973). Wilfullness instructions necd not include the terms

“bad faith,” “evil motive” or “bad purpose.” See United States v.

*Of the District of Idaho, sitting by designation.

APPENDIX I

>,

2 United States of America vs. J. Tony Serra

Hawk, 497 F.2d 365 (9th Cir. 1974), cert. denied ...... ) ,

95 S.Ct. (1974); Cooley v. United States, 501 F.2d 1249 (9th Cir.

1974), cert. denied —... U.S. ........ , 9% S.Ct. 809 (1975); United

States v. Ducharme, 505 F.2d 691 (Sth Cir. 1974). The instrue-

tions given in this case were correct and adequate.

AFFIRMED.

PEKNAU-WALSH PRINTING CO., SAN FRANCISCO 3-28-75—400