Petition — Vernell v. United States

Gnited States

OCTOBER TERM, 1975

i, €5-322 3

LOUIS VERNELL, JR.,

Petitioner,

v8.

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

LOUIS VERNELL, Jr., Pro Se

100 S. E. Second Street

Miami, Florida 33131

Estee

MIAMI REVIEW — 371-4853 — 377-3743

INDEX

Page

OPINION BELOW | wih 2

JURISDICTION eine os 2

QUESTIONS PRESENTED piisiieiaiaiaieieatie 2,3

RULE AND STATUTE INVOLVED 3

STATEMENT . 4-6

REASONS FOR GRANTING WRIT _.. 7-16

CONCLUSION eens Se

CERTIFICATE OF SERVICE __. : ; 18

II

TABLE OF CITATIONS

Case Page

Bishop v. U.S.,

(1973) 412 U.S. 346; 36 L.Ed 2d 141; 93

a a

Cooley v. U.S.,

(9th Cir. 1974) 501 F.2d 549 9

U.S. v. Benginina,

(8th Cir. 1974) 499 F.2d 117 _.. 12

U.S. v. Doelker,

(6th Cir. 1964) 327 F.2d 343 15

U.S. v. Goldstein,

(3rd Cir. 1974) 502 F.2d 526... sid, 18

U.S. v. Greenlee,

(8rd Cir. 1975) 1975-1 USTC 1988 10

U.S. v. Hawk,

(9th Cir. 1974) 497 F.2d 365 8

U.S. v. McCorkle,

(7th Cir. 1974) 511 F.2d 477, 511 F.2d 482 __. 11

U.S. v. Murdock,

(1933) 290 U.S. 389; 54 S.Ct. 223, 78 L.Ed 381 9

U.S. v. Pohlman,

(8th Cir. 1975) 510 F.2d 414. 9,10, 12

U.S. v. Tunnell,

(5th Cir. 1973) 481 F.2d 149 11

Ill

TABLE OF CITATIONS (cont.)

Page

STATUTORY PROVISIONS

26 U.S.C. 7201 e ee

26 U.S.C. 7208 . 7,8, 10, 11, 12

26 U.S.C. 7206 (1) 7

26 U.S.C. 7207 —iniiiiiiavaieinns 7

in the

Supreme Court

Gnited States

OCTOBER TERM, 1975

NO.

LOUIS VERNELL, JR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

The Petitioner, Louis Vernell, Jr., respectfully prays

that a Writ of Certiorari issue to review the judgment

of the United States Court of Appeals Fifth Circuit, en-

tered on February 25, 1975.

2

OPINION BELOW

The Decision/Judgment of the Court of Appeals (Ap-

pendix A) affirming the judgment of conviction is re-

ported at 510 F.2d 383.

JURISDICTION

The judgment of the Court of Appeals was originally

entered on February 25, 1975 and thereafter reissued by

such Court on July 7, 1975.

The jurisdiction of this court is invoked under 28

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

Jurisdiction is also invoked under Rule 19(1)(b) of

the Rules of the Supreme Court of the United States.

QUESTIONS PRESENTED

1. Whether the element of “wilfulness” has different

meaning when applied to acts of omission as proscribed by

26 U.S.C. Section 7203, and acts of commission as pro-

scribed by 26 U.S.C. Sections 7201, 7206 and 7207, so as to

require only proof of a specific intent to disregard the law

by failing to file timely tax returns.

2. Whether a fatal variance, sufficient to pre-

clude a conviction, results where, in a prosecution under

26 U.S.C. Section 7203, the Information charges the fail-

ure to file required returns on or before the specific date

of April 15 of the subject years and the proof adduced

reflects that, by reason of applications made by the Peti-

(1)

(2)

+

tioner/Taxpayer, the time for such filings were, as a mat-

ter of law, extended to dates subsequent to April 15th of

each of such years.

RULES AND STATUTES INVOLVED

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

“By writ of certiorari granted upon the petition

of any party to any civil or criminal case, be-

fore or after rendition of judgment or decree;”

Rule 19(1) (b) Rules of Supreme Court of the United

States

“Where a court of appeals has rendered a de-

cision in conflict with the decision of another

court of appeals on the same matter; or has de-

cided an important state or territorial question

in a way in conflict with applicable state or terri-

torial law; or has decided an important question

of federal law which has not been, but should be,

settled by this court; or has decided a federal

question in a way in conflict with applicable

decisions of this court; or has so far departed

from the accepted and usual course of judicial

proceedings, or so far sanctioned such a de-

parture by a lower court, as to call for an exer-

cise of this court’s power of supervision.”

4

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

“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 un-

der 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 misde-

meanor and, upon conviction thereof, shal] be

fined not more than $10,000, or imprisoned not

more than 1 year, or both, together with the costs

of prosecution.”

STATEMENT

Petitioner, a practicing attorney for 25 years, was

convicted after jury trial in the United States District

Court for the Southern District of Florida, of the

offense(s) of wilfull failure to file income tax returns

for the taxable years 1967 through 1971, as proscribed

by 26 U.S.C. Section 7203. Upon adjudication, Petitioner

was sentenced to concurrent terms of 9 months imprison-

ment and fined $5,000.

Prior to trial, the parties stipulated to all elements

of the offense charged save for issue of wilfulness. To

negate such singular element, the Petitioner evidenced

during trial proceedings:

5

(1) That almost a year prior to the initiation of

charges, Petitioner filed all of the subject tax returns and

fully paid all taxes due thereon, |

(2) That during each of the subject years, the

Petitioner had made timely applications for extensions of

time to file such returns, and that with one exception, all

such applications were granted.’ (App. F).

(3) That a myriad of circumstances precluded an

earlier filing of Petitioner’s returns which included the

loss and destruction of Petitioner’s records; the ill health

and repeated “intensive care” hospitalizations of Peti-

tioner’s wife; Petitioner’s own deteriorated health; his

absence from the country; and other matters related to

the pressure and requirements of Petitioner’s law practice.

In light of such matters and theory of defense, the

Petitioner requested the trial court to supplement its

charge on the element of wilfullness so as to conform to

the requirements enunciated by this Honorable Court in

Bishop vs. United States, 412 U.S, 346.2 (App. D)

1At trial, the Government conceded virtually all factual matters

presented in Petitioner’s defense with the exception of Petitioner's

claim with respect to such filings, which it vigorously denied. During

subsequent process of appeal, however, it was discovered that, to

support its denial, the Government not only suppressed evidence, but

placed in the record false testimony and records.

2The Petitioner requested the inclusion of the following supple-

mentary charge to the jury which was denied by the trial court.

“Before you can find the defendant guilty, it must be proved

beyond a reasonable doubt that the defendant willfully failed

to file the return, income tax returns involved herein, and

the word ‘wilfully” means to act or, in this case, the failure

to act was done with bad faith or evil intent.”

6

The trial court however, expressly rejected the ap-

applicability of Bishop with respect to acts of Omission as

charged in the case at bar and determined that the man-

dates of such case were referable only to felonies and acts

of commission. (App. G). Accordingly and with respect to

the purported omission of Petitioner in failing to file, the

trial court’s charge to the jury (sustained by the Fifth

Circuit) required only a specific intent to disregard or

disobey the law.’ (App. E)

The Fifth Circuit Court of Appeals in a per curiam

decision rendered without opinion, sustained the charge

of wilfullness as given by the trial court and therein

furthe: rejected Petitioner’s claim as to the fatal variance

which occurred as a result of the information charging

the commission of the subject offenses by the specific date

of April 15th, whereas the proof adduced reflected dif-

ferent and extended dates for the lawful filing of Peti-

tioner’s returns.

3In its charge, the trial court distinguished the requirements of

wilfullness when applied to acts of commission and acts of omission.

With respect to the former, the trial court included as a necessa

element, a “bad purpose” either to disobey or disregard the law. Suc

court however, fully excluded any reference to either purpose, intent

or motive in its charge as to crimes and acts of omission, viz:

“. . . an omission or failure to perform an act required by

the law is willful if the defendant knew the act was required

by the law, and if the defendant voluntarily and intentionally

and without justifiable cause failed to perform the legally re-

quired act, that is to say, the nonperformance of the required

act resulted from a specific intent on the part of the defendant

to disobey or to disregard the law in question.”

¢

7

REASONS FOR GRANTING WRIT

1. The decision of the Court of Appeals in sustaining

the trial Court’s determination and charge with respect to

the element of wilfulness is in conflict with this Court’s

decision in Bishop vs. U.S., 412 U.S. 346 and with the

decisions of other Courts of Appeal. Although this Honor-

able Court seemingly sought to resolve in the Bishop case,

any confusion in defining the term “wilfullness” as applied

to tax related statutes, the ensuing decisions rendered by

the several Circuit Courts of Appeal continue to reflect

almost irreconcilable conflict and diametrically opposed

decisions with respect thereto.

Such resulting divergence of opinion is especially

noted where the subject offenses circumscribe acts of omis-

sion and failure to perform a legal duty as in Title 26,

U.S.C. Section 7203.

Although in Bishop, this Honorable Court specifically

interpreted and defined “wilfully” as having the same

meaning when applied to the various acts of commission

as proscribed by Sections 7206(1) and 7207, it is submitted

that this Court’s opinion was nonetheless intended to have

much broader application, especially where the Court em-

ployed the following language (at 361):

“Until Congress speaks otherwise, we therefore

shall continue to require, in both tax felonies and

tax misdemeanors that must be done “wilfully”,

the bad purpose or evil motive described in Mur-

dock, supra.”

8

In considering such uniform requirements and defini-

tion of ‘“‘wilfullness” this Court specifically held (at 361):

“The Court, in fact, has recognized that the word

“willfully” in these statutes generally connotes

a voluntary, intentional violation of a known

legal duty. It has formulated the requirement of

willfulness as “bad faith or evil intent”, Murdock,

290 U.S. 398, 78 L.Ed. 381, or “evil motive and

want of justification in view of all the financial

circumstances of the taxpayer,” Spies, 317 U.S. at

498, 87 L.Ed. 418, or knowledge that the tax-

payer “should have reported more income than

he did.” Sansone, 280 U.S. at 358, L.Ed.2d 882.

See James v. United States, 366 U.S. 213, 221,

6 L.Ed.2d 246, 81 S.Ct. 1052 (1961) ; McCarthy

v. United States, 394 U.S. 459, 471, 22 L.Ed.2d.

418, 89 S.Ct. 1166 (1929). This long standing in-

terpretation of the purpose of the recurring word

“willfully” promotes coherence in the group of

tax crimes.”

The 9th Circuit Court of Appeals, in U.S. vs. Hawk,

(9th Cir. 1974) 497 F.2d 365, rejected the applicability of

Bishop when applied to a Section 7203 offense, reasoning

(at 366):

“.. The reason Bishop does not compel inclusion

of the term ‘evil motive’ is much simpler: an is-

sue concerning the necessity of employing that

language was not presented in Bishop. The Court

was confronted only with the permissibility of

the two-level definition of willfulness, and beyond

9

that nothing in the case related to the precise

form of words necessary to convey the meaning

of willfulness.”

In so determining, such court held that the inclusion

of “bad purpose,” evil motive” or like expressions were

unnecessary in defining “willfully” and that only a specific

intention not to file returns which the defendant knew

ought to be filed was required. Presumptively, the Court

concluded: “This, we think, was all that Murdock-and

Bishop—meant by the use of the term.”

In the later case of Cooley v. U.S. (9th Cir. 1974) 501

F.2d 549, the same court approved as being “in substantial

compliance with the Bishop Court’s requirement,” its

earlier pronouncement in Hawk, supra.

Conversely, the 8th Circuit Court of Appeals in U.S.

vs. Pohlman (8th Cir. 1975) 510 F.2d 414, reversed a

conviction entered where the trial court failed to include

the elements of bad purpose or evil motive in its instruc-

tion on wilfullness, and in alluding to U.S. vs. Murdock,

290 U.S. 389 (1933), such court held:

“.. However, the court prefaces this meaning by

saying that ‘willfully’ also means doing something

‘deliberately and intentionally, and without justi-

fiable excuse’. Yet early in Murdock the Supreme

Court observed that one who acts deliberately and

intentionally and without legal justification must

still be found not guilty if he did not possess,

in addition, a state of mind which manifested a

bad purpose or evil motive to violate the law.

Murdock, at 397-98.”

10

The Court, in such instance, went on to say:

“Their verdict could have resulted from a belief

that, although this was the reason, it was not

justifiable under the law. As discussed, more is

required to be culpable under the statute. The

jury must find that her failure to file arose from

a bad motive and evil intent to commit an illegal

act, fully aware of her legal obligation to do

otherwise.

Since bad purpose and evil motive are essential

elements of willfulness under Section 7203, we see

no reason that the jury should be afforded the

ambiguity of an instruction which possibly de-

notes otherwise. If these are essential elements

of the misdemeanor the jury should be told so in

plain and unambiguous terms. As this court reaf-

firmed in United States v. Achtenberg, 459 F.2d

91 (8th Cir.) cert. denied, 409 U.S. 932 (1972):

‘Obviously, if the jury is to function effec-

tively, it must be given a clear statement of

each element which the Government must

prove. The elements, as expressed in the

statute, are hardly set forth with sufficient

clarity to permit the jury to perform its

duty intelligently. Id. at 97, quoting from

Jackson v. United States, 348 F.2d 774 (D.C.

Cir. 1965).’”

The opposite conclusion was reached by the 3rd Cir-

cuit Court of Appeals in U.S. vs. Greenlee, 1975-1 USTC,

1968, __. F.2d ____, which determined that, notwith-

ll

standing the pronouncement in Bishop and Murdock, only

“a specific intent which the law forbids” was required.

Doubtless, the clearest example of the existing con-

flict and divergence of opinion is reflected in the two con-

trary decisions rendered by the 7th Circuit Court of Ap-

peals in U.S. vs. McCorkle, Jr. In its original opinion

reported in 511 F.2d 477, such court reversed a convic-

tion entered on almost the identical charge given in the

case at bar, holding:

“The above instructions required a mere finding

of an intention not to file returns without more.

The Court explicitly directed that it need not con-

cern itself with whether the defendant intended

to defraud the Government. Moreover, the court’s

instructions had the effect of eliminating justi-

fiable excuse as a consideration in resolving the

issue of willfulness. The instructions failed to

properly charge the jury on the element of will-

fulness.”

Upon rehearing, the same court retracted from its

earlier opinion and affirmed the conviction in a sub-

sequent decision reported in 511 F.2d 482, holding that

willfulness under a Section 7203 prosecution required only

the “intentional failure to file and knowledge by the de-

fendant that he was under a legal obligation to do so.”

Although the 5th Circuit Court of Appeals in U.S. v.

Tunnell, (5th Cir. 1973) 481 F.2d 149, held that “evil

motive” was a necessary element for conviction in a Sec-

tion 7201 offense, it has not, except in the case at bar.

directly addressed itself to the requirements of wilfull-

12

ness as applied to a Section 7203 offense. However, in

affirming the determinations and charge given by the

trial court in the case sub judice, which required only

specific intent, the decision of the lower court is in clear

conflict with the decisions rendered by this Court in Bishop

and Murdock and with the decisions rendered by the 8th

Circuit Court of Appeals in U.S. vs. Pohlman, supra, and

U.S. vs. Benginina, (8th Cir. 1974) 499 F.2d 117.

It is accordingly clear from the foregoing, that the

Courts of Appeal for the 5th, 7th and 9th Circuits have

defined wilfullness in a manner which requires dual stand-

ards when applied to tax related statutes reflective of

acts of commission and those reflective of acts of omission.

Certainly, the culpability of one who merely fails to per-

form an act cannot be considered greater than one who

intentionally commits an act prohibited by law. Ergo, the

application of such divergent requirements are repugnant

to the pronouncements made by this Honorable Court in

Bishop, where it was stated (at 361).

“The Court’s consistent interpretation of the word

‘willfully’ to require an element of mens rea

implements the pervasive intent of Congress to

construct penalties that separate the purposeful

tax violator from the well-meaning, but easily

confused, mass of taxpayers.”

It is submitted that there is neither rationable nor

appropriate predicate in denoting different volitional ele-

ments in defining wilfullness and that the clearly-drawn

lines of demarcation reflecting such a double standard

should be finally brought together and the existing con-

flict resolved by this Honorable Court.

ects SENN te. nee

13

2. The decision of the 5th Circuit Court of Appeals

in the case at bar is otherwise in conflict with the decision

of the United States Court of Appeals for the 3rd Circuit

on the question of whether a fatal variance exists between

the crime(s) charged in the Information and the proof

adduced at trial.

Specifically, the Information in the case sub judice

charged the Petitioner with the failure to file his tax re-

turns “on or before April 15” of each year following the

taxable years 1967-1971. At no time was such Information

ever amended, nor request therefor made by the Govern-

ment.

The proof adduced at trial reflected that during each

of the taxable years in question, the Petitioner had made

due and timely application for an extension of time to

file the subject returns and that, except for one instance,

such applications were granted. Albeit, such applications,

whether granted or not, served to effectively and lawfully

extend the time within which the Petitioner was otherwise

required to file the subject returns to dates well beyond

April 15th.‘

In United States vs. Goldstein, (3rd Cir. 1974) 502

F.2d 526, the 3rd Circuit Court of Appeals dealt precisely

with the issue and determined that the same variance con-

sidered in the case at bar was fatal and otherwise suffi-

cient to vitiate the conviction entered. In Goldstein the De-

fendant was charged with failure to file a return for the

‘The record reflects, and existing procedure requires, that even

where an application for extension of time is denied, the time within

which such return is ired to be filed is automatically extended

for a period of ten days flowing such denial.

———

14

taxable year 1965 on or before April 15, 1966. The evi-

dence reflected that on April 15, 1966 he made applica-

tion for extension of time to file the subject return; such

application was, however, “rejected” on April 27, 1966.

The Court in such case, added to the date of April 15, 1966

the automatic ten-day extension of time resultant from

the “rejection” to establish that no duty existed on the

part of the Defendant to file his return before May 7, 1966.

Notwithstanding, the Defendant in such case failed to file

his return by May 7, 1966 and even as of time of trial,

still had not filed his return. In determining that the vari-

ance which existed between the date charged and that

proven comprised a matter of substance, the Court in such

instance held:

“Ordinarily, a mere change in dates is not con-

sidered a substantial variation in an indictment,

but an exception exists when a particular day

may be made material by the statute creating

the offense. As stated in 4 Anderson, Wharton’s

Criminal Law and Procedure Section 1775, ‘when

time is of the essence of the offense it must be

correctly alleged and must be proved as laid...’

(footnote omitted). ‘As has been previously stated,

when time is an essential ingredient of the offense

charged, it must be laid with exactitude in an in-

dictment, and in such cases must be proved as

laid’. 5 Id Section 2062. (footnote omitted).

The Statute involved here illustrates this excep-

tion to the general rule. There was no duty im-

posed on the Defendant to file a return before

April 15, and an indictment alleging an offense

in failing to submit a return on April 10, for

example, would not state a crime. An omission to

_——> ——————_—_____—__ -—

15

perform an act by April 15 is designated a

criminal offense, but only on that date does the

crime occur. Conduct and time are thus inextri-

cably intertwined. See United States v. Figuerell,

462 F.2d 1080 (3rd Cir. 1972).

By way of contrast, a bank robbery is a criminal

offense at all times, regardless of the date on

which it takes place. In the instance of variance

of a few days between the dates established by

the indictment and proof would be a matter of

form and not of substance. The difference be-

tween these two situations is apparent.”

While substantively, the case at bar is identical with

the Goldstein case, it should be noted that procedurally the

charge in the Goldstein case was founded in an indict-

ment, whereas in the case sub judice the charge was

prosecuted under an Information. In Goldstein, the court

would not permit an amendment; in the instant case, no

amendment was ever sought or otherwise granted by the

Court.

Although a similar issue of variance was collaterally

considered by the 6th Circuit Court of Appeals in a prior

decision rendered in United States v. Doelker, (6th Cir.

1964) 327 F.2d 343, the Court in Goldstein specifically

noted in footnote as follows:

“Cf. United States v. Doelker, 327 F.2d 343, (6th

Cir. 1964). There, the question of amendment was

not raised in the trial court, and the holding that

the variance was not substantial must be con-

sidered dictum. Furthermore, in that case, an ex-

16

tension had been granted to a specified date, and

there could be no question of the knowledge of the

defendant as to the correct time for filing.”

Accordingly, absent any other appellate decisions on

the issue, it is submitted that the tenets of Goldstein are

controlling and that the resulting conflict with the decision

rendered by the 5th Circuit in the case at bar should be

resolved by this Honorable Court.

17

CONCLUSION

For the reasons stated, this Petition for Writ of Cer-

tiorari should be granted.

Respectfully submitted,

LOUIS VERNELL, JR., Pro Se

100 S. E. Second Street

Miami, Florida 33131

18

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three true and correct

copies of the foregoing Petition for Writ of Certiorari,

and annexed Appendix were mailed to the office of the

Solicitor General, Department of Justice, Washington,

D. C. 20530, on this ___. day of August, 1975.

LOUIS VERNELL, JR., Pro Se

100 S. E. Second Street

Miami, Florida 33131

APPENDIX

INDEX TO APPENDIX

Instrument Reference Page

OPINION/JUDGMENT OF COURT

OF APPEALS... Sa A App. 1

TEINS 6 ocscecectecececeersenerevnnenceedenceee B App. 2

JUDGMENT AND SENTENCE OF

THE DISTRICT COURT C App. 7

DEFENDANT’S REQUESTED

CHARGE ON THE ISSUE

OF WILLFULNESS ~...... D App. 8

DISTRICT COURT’S

INSTRUCTION ON THE

ISSUE OF WILLFULNESS..... E App. 9

EXCERPT FROM TRANSCRIPT

OF TRIAL PROCEEDINGS

(TESTIMONY OF PETITIONER) FF App. 9

EXCERPT FROM TRANSCRIPT

OF TRIAL PROCEEDINGS

(TRIAL COURT’S COMMEN-

TARY ON CHARGE GIVEN) -____.. G App. 10

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 74-3351

Summary Calendar*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LOUIS VERNELL, JR.,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Florida

(February 25, 1975)

Before BROWN, Chief Judge, GODBOLD and GEE, Cir-

cuit Judge.

PER CURIAM: IT IS ORDERED that appellant’s mo-

tion for leave to supplement the appendix is GRANTED.

AFFIRMED. See Local Rule 21.'

*Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Com-

pany of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I.

‘See N.L.R.B. v. Amalgamated Clothing Workers of America, 5

Cir., 1970, 430 F.2d 966.

ee ee ee fe ee ee ee

App. 2

APPENDIX B

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

No. 73-245-Cr-J-S

(26 USC 7203)

UNITED STATES OF AMERICA

vs.

LOUIS VERNELL, JR.

[Filed December 12, 1973]

INFORMATION

The United States Attorney charges:

COUNT ONE

That during the calendar year 1967, the defendant,

LOUIS VERNELL, JR., who was a resident of the City

of North Miami Beach, State of Florida, had and received

a gross income of $72,826.23; that by reason of such in-

come he was required by law, following the close of the

calendar year 1967 and on or before April 15, 1968, to

make an income tax return to the District Director of

Internal Revenue for the Internal Revenue District of

Jacksonville, at Jacksonville, in the Middle District of

Florida, or to the Director, Internal Revenue Service Cen-

ter, Chamblee, Georgia, stating specifically the items of

Acta Co that eaAnOes en ae ee

App. 3

his gross income and any deductions and credits to which

he was entitled; that well knowing all of the foregoing

facts, he did wilfully and knowingly fail to make said in-

come tax return to the said District Director of Internal

Revenue, to the said Director of the Internal Revenue

Service Center, or to any other proper officer of the United

States.

In violation of Section 7203, Internal Revenue Code,

Title 26, United States Code, Section 7203.

COUNT TWO

That during the calendar year 1968, the defendant,

LOUIS VERNELL, JR., who was a resident of the City

of North Miami Beach, State of Florida, had and received

a gross income of $42,086.18; that by reason of such in-

come he was required by law, following the close of the

calendar year 1968 and on or before April 15, 1969, to

make an income tax return to the District Director of

Internal Revenue for the Internal Revenue District of

Jacksonville, at Jacksonville, in the Middle District of

Florida, or to the Director, Internal Revenue Service Cen-

ter, Chamblee, Georgia, stating specifically the items of

his gross income and any deductions and credits to which

he was entitled; that well knowing all of the foregoing

facts, he did wilfully and knowingly fail to make said

income tax return to the said District Director of Internal

Revenue, to the said Director of the Internal Revenue

Service Center, or to any other proper officer of the United

States.

In violation of Section 7203, Internal Revenue Code,

Title 26, United States Code, Section 7203.

App. 4

COUNT THREE

That during the calendar year, 1969, the defendant,

LOUIS VERNELL, JR., who was a resident of the City

of North Miami Beach, State of Florida, had and received

a gross income of $34,275.48; that by reason of such in-

come he was required by law, following the close of the

calendar year 1969 and on or before April 15, 1970, to

make an income tax return to the District Director of

Internal Revenue for the Internal Revenue District of

Jacksonville, at Jacksonville, in the Middle District of

Florida, or to the Director, Internal Revenue Service Cen-

ter, Chamblee, Georgia, stating specifically the items of

his gross income and any deductions and credits to which

he was entitled; that well knowing all of the foregoing

facts, he did wilfully and knowingly fail to make said in-

come tax return to the said District Director of Internal

Revenue, to the said Director of the Internal Revenue

Service Center, or to any proper officer of the United

States.

In violation of Section 7203, Internal Revenue Code,

Title 26, United States Code, Section 7203.

COUNT FOUR

That during the calendar year 1970, the defendant,

LOUIS VERNELL, JR., who was a resident of the City

of North Miami Beach, State of Florida, had and received

a gross income of $50,774.34; that by reason of such in-

come he was required by law, following the close of the

calendar year 1970 and on or before April 15, 1971, to

make an income tax return to the District Director of

Internal Revenue for the Internal Revenue District of

App. 5

Jacksonville, at Jacksonville, in the Middle District of

Florida, or to the Director, Internal Revenue Service Cen-

ter, Chamblee, Georgia, stating specifically the items of

his gross income and any deductions and credits to which

he was entitled; that well knowing all of the foregoing

facts, he did wilfully and knowingly fail to make said

income tax return to the said District Director of Internal

Revenue, to the said Director of the Internal Revenue

Service Center, or to any other proper officer of the United

States.

In violation of Section 7203, Internal Revenue Code,

Title 26, United States Code, Section 7203.

COUNT FIVE

That during the calendar year 1971, the defendant,

LOUIS VERNELL, JR., who was a resident of the City

of North Miami Beach, State of Florida, had and received

a gross income of $44,774.65; that by reason of such in-

come he was required by law, following the close of the

calendar year 1971 and on or before April 15, 1972, to

make an income tax return to the District Director of

Internal Revenue for the Internal Revenue District of

Jacksonville, at Jacksonville, in the Middle District of

Florida, or to the Director, Internal Revenue Service Cen-

ter, Chamblee, Georgia, stating specifically the items of

his gross income and any deductions and credits to which

he was entitled; that well knowing all of the foregoing

facts, he did wilfully and knowingly fail to make said

income tax return to the said District Director of Internal

Revenue, to the said Director of the Interna] Revenue

Service Center, or to any other proper officer of the United

States.

App. 6

In violation of Section 7203, Internal Reven Code,

Title 26, United States Code, Section 72038 a

JOHN L. BRIGGS

United States Attorney

By /s/ Harvey E. Schlesinger

HARVEY E. SCHLESINGER

Assistant United States Attorney

App. 7

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF FLORIDA

No. 74-79-Cr-CF

UNITED STATES OF AMERICA

vs.

LOUIS VERNELL, JR.

[Filed July 18, 1974]

On this 18th day of July, 1974 came the attorney for

the government and the defendant appeared in person and’

by E. David Rosen, Esq., Counsel,

IT IS ADJUDGED that the defendant upon his plea

of? not guilty and a verdict of guilty has been convicted of

the offense of wilfully and knowingly failing to make in-

come tax returns to the District Director of Internal Rev-

enue, to the said Director of the Internal Revenue Service

Center, or to any other proper officer of the United States;

in violation of Section 7205. Internal Revenue Code, Title

26, United States Code, Section 7203, as charged’ in the

Information and the court having asked the defendant

whether he has anything to say why judgment should not

be pronounced, and no sufficient cause to the contrary

being shown or appearing to the Court,

IT IS ADJUDGED that the detendant is guilty as

charged and convicted.

App. 8

. IT IS ADJUDGED that the defendant is hereby com-

mitted to the custody ef the Attorney General or his au-

thorized representative for imprisonment fur a period of*

NINE (9) MONTHS or until otherwise discharged by due

process of law as to each of Counts 1, 2, 3, 4, and 5, sen-

tences of confinement to run concurrent! j

with each

it being further , _—

. ORDERED and ADJUDGED that as to Count I, in

addition to the terms of imprisonment hereinabove in

posed, the defendant shall pay a fine unto the United

States of America in the sum of $5,000.00.

IT IS ORDERED that the Clerk deliver a certified

copy of this judgment and commitment to the United

States Marshal or other qualified officer and that the

copy serve as the commitment of the defendant.

The Court recommends commitment to‘

/s/ Charles B. Fulton

Chief, United States District J udge

Clerk

APPENDIX D

Defendant’s requested charge to the J

sue of wilfulness: s e Jury on the is-

Before you can find the defendant guilty, it must

be proved beyond a reasonable doubt that the defendant

wilfully failed to file the return, income tax returns in-

App. 9

volved herein, and the word “wilfully” means to act or,

in this case, the failure to act was done with bad faith

or evil intent.

APPENDIX E

The Trial Court’s instruction to the Jury on the is-

sue of wilfullness:

The word “wilfully” as used in this statute and in

this information, means a voluntary and intentional

violation of a known legal duty. Therefore, an act is done

wilfully if it is done knowingly, voluntarily, and inten-

tionally, and with the specific intent to do something

which the law forbids, that is to say, with bad purpose

either to disobey or to disregard the law.

Conversely, an omission or failure to perform an act

required by the law is willful if the defendant knew the

act was required by the law, and if the defendant volun-

tarily and intentionally and without justifiable cause failed

to perform the legally required act, that is to say, the

nonperforance of the required act resulted from a specific

intent on the part of the defendant to disobey or to dis-

regard the law in question.

APPENDIX F

TESTIMONY OF PETITIONER

Q Now, you heard the testimony of Mr. McDaniel?

A Yes, sir.

Q Have you examined Government Exhibit No. 1—

No. 8?

A Relative to my extension applications?

App. 10

Q Yes, sir.

A Yes.

Q They don’t show that you filed extensions for all

those years, do they?

They are incorrect.

You believe they are incorrect?

I know they are incorrect.

What years did you file extensions for, sir?

I filed extensions for 1967, 1968, 1969, 1970, and

rO PO PP

1971.

You, yourself, or an accountant?

Either myself or the accountant, one or the two.

And do you recall which one?

There were some years I filed it and some years

he filed it in my behalf.

> =~.

Q Who is “he?”

APPENDIX G

THE COURT: Well, I want the record to show that

I gave the same charge that I have given for eleven years,

in hundreds and hundreds of cases in this court, that I

am a “creature of habit.”

Now, there was another objection that you had and

that was to my disinclination, in fact refusal, to use the

words “evil intent” or “evil purpose.”

SS ee ee <<

App. 11

MR.ROSEN: Yes, Your Honor.

THE COURT: And that’s been noted, but for the

appellate court and so that the record will convey to who-

ever the panel is that reviews this, to me the word “evil”

means morally corrupt. It imputes bad character express-

ly or by inference, and I think that I would have no

hesitation in using those words in a 7201 case where there

was a charge of willfully attempting to avoid and defeat

the payment of income taxes, or in a 7206 or 7, which are

the statutes that really are fraud statutes, either to make

a false statement under oath or to distribute or convey

one that you knew to be false; but this matter of failing

to file an income tax return, in my opinion, is one that

can be better charged the way I charged it than to use

the words “evil intent” or “evil purpose,” because that

word “evil” to me means what I said it meant, and, in-

cidentally, I took my definition from Webster.