# Petition — Vernell v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0959%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1975 - **Citation:** 423 U.S. 1014 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0959%3A1. Public record. Not legal advice.