Petition — Pohlman v. United States

„

Eee

1

Supreme Court, U.

* FILE

| SEP 26 1975

MICHAEL RODAK, JR., CLERK

a

„75-483

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1975

Berent je C. M. Pohlman,

Petitioner

Ve

United States of America,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

CIRCUIT COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Berent je C. M. Pohlman

Attorney per se

COUNSEL FOR RESPONDENT W Dakota

27

Solicitor General

Department of Justice

Washington, D. C. 20530

Mr. Harold O. Bullis

United States Attorney

Federal Courts Building

Fargo, North Dakota 58102

Page

Opinions Belo. 132

Jurisdiction .« :« « © „ „ „ 233

3, u 3 5

Statutes Involved . .. , 637

Questions Presented

Statement. „ „„ „ „ „ 7 thew 11

Reasons for Granting mis Writ . . 11 thru 23

Conclusion. .«« +« „„ „ ee 23

Appendix A -OPINION OF THE THREE PANEL

COURT OF THE CIRCUIT COURT OF APPEALS

FOR THE EIGHTH CIRCUIT of February 11,

1975 . — + + . * 5 — ee 1 thru 8

Appendix B -OPINION OF THE EN BANC

COURT OF THE CIRCUIT COURT OF APPEALS

FOR THE EIGHTH CIRUCIT of August 27,

1975 1 thru 1h

TABLE OF CASES

Spies v. United States. 18

United States v. Bishop. . . 18

United States v. Murdock . . 17

|

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1975

STATUTES Page No.

United States Constitution, Be rent je C. M. Pohl nan,

ARTICLE 3 * * 0 * * * 2

Petitioner,

28 U. S. C. * 125 * * * * — * * . 3

v.

PART V, Rule 19 of the Supreme

Court les 3 United States of America,

United States Constitution, Respondent.

Amendment iy 2 — — * 7 * * * * — 55

PETITION FOR A WRIT OF CERTIORARI TO THE

II CIRCUIT COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

United States Constitution,

Amendment 6...4.+4¢e¢ececee §& TO THE HONORABLE, THE CHIEF JUSTICE AND ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE UNITED

Federal Rules of Criminal STATES.

Procedure, Rule 111 6

Berent je C. M. Pohlman, the petitioner herein,

Federal Rules of Criminal

Procedute, Rule 52 6 prays that a writ of certiorari issue to review

the judgment of the Circuit Court of Appeals for

the Eighth Circuit entered in the above entitled

case on August 27, 1975.

OPINIONS BELOW

The opinion of the Three Panel Court of the

ama

2

Circuit Court of Appeals, unreported, is printed in

Appendix A hereto, infra, pages 1 thru 9, and the

opinion of the Circuit Court of Appeals, en banc,

unreported, is printed in Appendix Bhereto, infra,

pages 1 thru lub. The judgment of the Three Panel

Court was entered on February 11, 1975, and the

judgvent of the court en banc was entered on the

27th day of August, 1975. Any Journal Entry of

such judgments is not known to petitioner.

JURISDICTION

The judgment of the Three Panel Court was

entered on February 11, 1975. A timely petition

for rehearing was filed by respondent, and the

court en banc by opinion rendered on August 27,

1975 reversed the opinion of the Three Panel Court

and affirmed the judgment of the United States

District Court for the State of North Dakota, as

entered on September 30, 197k.

The jurisdiction of the United States Supreme

Court is invoked under the following:

1. UNITED STATES CONSTITUTION, ARTICLE 3,

3

& 2, Cl. 2, conferring upon the United States

Supreme Court "appellate jurisdiction, both as to

law and fact, with such exceptions, and under such

regulations as the Congress shall make."

2. 28 U. S. C. & 1254, providing "Cases in the

courts of appeal may be reviewed by the Supreme

Court by the following methods:

(1) By writ of certiorari granted upon

the petition of any party to any

civil or criminal case, before or

after rendition of judgment or de-

cree;"

J. PART V, Rule 19 of the Supreme Court Rules,

providing for review by writ of certiorari, sub-

section (b), which reads:

"(b) Where a court of appeals has ren-

dered a decision in conflict with the

decision of another court of appeals on

the same matter; or..."

QUESTIONS PRESENTED

1. Whether, in the light of all circumstances,

noncustodial investigations are subject to protec-

tion under the Fifth Amendment guarantees relating

to self-incrimination?

2. Was the trial court in error in the

failure to rule on defendant's objection to the

admission into evidence of documents alleged by

defendant to be only copies and without inquiry

as to possible existence of original documents?

3. Adequacy of trial court's jury instruc-

tion relating to meaning of "Willfulness" to

justify conviction under the provisions of 26

U.S.C. & 7203.

4. Whether references by U. S. Attorney

to alleged conversations between defendant and

the Internal Revenue Regional office without the

opportunity of confrontation was Plain Error under

Rule 52 (b) of the Federal Rules of Criminal Pro-

cedure and violat ive of accused's rights under the

Sixth Amendment?

5. Whether an accused is subject to convic-

tion of a criminal charge in the absence of evidence

presented by prosecution of any direct or overt act

or statements proving a mental attitude to commit

5

an illegal act during the time that such alleged

illegal act is alleged to have been committed?

STATUTES INVOLVED

1. UNITED STATES CONSTITUTION, AMENDMENT

9

"Criminal actions —Provisions concerning

Due process of law and just compensation

clauses.--No person shall be held to

answer for a capital, or otherwise in-

famous crime, unless on a presentment or

indictment of a Grand Jury, except in

cases arising in the land or naval forces,

or in the Militia, when in actual ser-

vice in time of War or public danager;

nor shall any person be subject for the

same offence to be twice put in jeopardy

of life or limb; nor shall be compelled

in any criminal case to be a witness

against himself, nor be deprived of life,

liberty, or property, without due pro-

cess of law; nor shall private property

be taken, for public use, without just

compensation."

2. 26 U.S.C. & 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 re-

cords, or supply such information, at the

time or times required by law or reguia-

3.

u.

tions, shall, in addition to other pen-

alties provided by law, be guilty of a

misdemeanor and, upon conviction there-

of, shall be fined not more than $10,000,

or imprisoned not more than 1 year, or

both, together with the costs of prosecu-

tion."

, STATES CONSTITUTION, AMENDMENT

"Rights of the accused--In all criminal

prosecutions, the accused shall enjoy

the right to a speedy and public trial,

by an impartial jury of the State and

district wherein the crime shall have

been committed, which district shall have

been previously ascertained by law, and

to be informed of the nature and cause of

the accusation; to be confronted with the

witnesses against him; to have compulsory

process for obtaining witnesses in his

favor, and to have the Assistance of Coun-

sel for his defense."

FEDERAL RULES OF CRIMINAL PROCEDURE,

RULE 51:

"Exceptions unnecessary.--Exceptions to

rulings or orders of the court are un-

necessary and for all purposes for which

an exception has heretofore been necess-

ary it is sufficient that a party, at

the time the ruling or order of the court

is made or sought, makes known to the

court the action which he desires the

court to take or his objection to the

action of the court and the grounds there-

for; but if a party has no opportunity to

object to a ruling or order, the absence

of an objection does not thereafter pre-

judice hin.“

7

5. FEDERAL RULES OF CRIMINAL PROCEDURE, RULE 52:

"Harmless error and plain error.--

(a) Harmless error.--Any error, defect,

irregularity or variance which does not

affect substantial rights shall be dis-

regarded.

(b) Plain error--Plain errors or defects

affecting substantial rights may be

noticed although they were not brought to

the attention of the court."

STATEMENT

The jurisdiction of the United States Dis-

trict Court for the District of North Dakota was

conferred in this case under 26 U.S.C. & 7203.

The petitioner herein was indicted on a three

count charge of willfully failing to file her per-

sonal income tax returns for the years 1968, 1969

and 1970. Jury trial was held in said District

Court in September of 197) and defendant was con-

victed of the three counts. The defendant appealed

to the Circuit Court of Appeals for the Eighth Cir-

cuit and the matter was heard before a three judge

panel on December 11, 197. On February 11, 1975,

the three judge panel reversed the conviction and

remanded the case for a new trial. The U. S. Attor-

ney thereafter petitioned for and was granted a re-

hearing en banc by the Circuit Court of Appeals. On

August 27, 1975 the Circuit Court of Appeals sitting

en banc reversed by a three to five decision the

early reversal and affirmed the conviction. Appen-

dix B, pages 1 thru Ih.

Petitioner is a practicing attorney and tax

practitioner in Enderlin, North Dakota. The first

contact between petitioner and the Internal Revenue

service relating to her personal tax matters was on

October 3, 1972 when an agent of the District Office,

Fargo, North Dakota, called upon petitioner in her

law office in Enderlin, North Dakota. At the first

meeting the IRS agent requested a copy of her 1971

income tax return, which return was then supplied

by petitioner. Further, at this initial meeting

the agent informed petitioner that the tax practice

conducted from her office (with the assistance of

two other local women) was to be investigated by

the Irs. The agent then requested a copy of or list

9

of petitioner's legal clients. Petitioner did noi

have such a list immediately abailable, and would

not give such a list to the agent. However, with

the full cooperation of the petitioner, the agent

was given free access to the tax practice files.

The agent, in conjunction with several other agents

out of the Fargo Internal Reverwe Service office,

thereafter spent several weeks investigatinc the

tax files. Needless audits were conducted against

petitioner's tax clients, for the end result of the

investigation revealed no fraudulent practices or

evidence of incompetency by either the petitioner

or her two assistants.

The agent testified that the purpose of in-

vestigating the tax practice files was to obtain a

list of the petitioner's clientat! The petitioner

herein sets forth this point specifically to es-

tablish that the agent had not come to her office

for the purpose of auditing, but was there for the

purpose of obtaining evidence of criminal activity.

1. rrunscript, pages 36 and 37

10

The matter of petitioner's personal income tax

returns for the years 1968, 1969 and 1970 was not

discussed between the agent and petitioner until

several days after the initial contact. It was

petitioner's allegations during the trial, and re-

mains her position, that by reason of the agent's

conduct prior to this discussion she was gravely

apprehensive as to presence of the IRS, and for

that reason she told the agent she had not filed

the returns, whereas she later maintained that the

returns had been filed with IRS in April of 1971.

On October 11, 1972, petitioner delivered to

the agent copies of her personal returns for the

years in question.

It has been the contention of the IRS that the

only purpose of the initial visit to petitioner's

office was for the purpose of audit. Therefore, it

is contended by the prosecution that no warning as

to self-incrimination need be given to the person

being investigated. It is the contention of this

petitioner that she was under criminal investiga-

11

tion from the moment of first contact with the IRS

agent, and the files and records herein substantiate

that contention.

It is the contention of this petitioner that

the IRS agents involved in this matter commenced a

concentrated program whereby this petitioner was to

be entrapped into the commission of a felony and to

bring this case under jurisdiction of 26 U.S.C. &

7201 The matter of the tax practice conducted

through the petitioner's office seemed to be the

matter of earlier concern of the IRS. The files

disclose that the business was conducted prope~ly

and as a joint association between petitioner and

two other women.

REASONS FOR GRANTING THIS WRIT

AS TO QUESTION MO. 1

Merely classifying an IRS agent as merely an

auditing agent is not in itself sufficient to im-

mune his real purposes from constitutional guaran-

1.

Transcript pages 16) thru 166

12

tees. In the case at hand, the agent was not from

his initial contact merely seeking to audit returns.

His purpose was to obtain evidence to confirm some

alleged criminal conduct on the part of petitioner.

The fact that the petitioner's tax practice was

under investigation is ample evidence that petiti-

oner was under suspicion of illegal conduct. An

agent may so testify that his only purpose was to

conduct an audit, but his actions confirm that his

purpose was that of investigation. Under such cir-

cumstances, the absence of any warnings to the

Suspect of the right to remain silent was proper

grounds for the trial court to sustain objection to

allowing the agent to testify as to any conversa-

tions between the agent and the suspect. This

petitioner was not given any constitutional rights

warning until April 18, 1973, and the disregard of

the court of this fact was prejudicial error.

AS TO QUESTION PRESENTED NO. 2

Where objection was raised under the Best

Evidence rule as to admission of copies, it was the

13

duty of the court to at least inquire as to the

possible existence of original documents. The

first witness presented by the prosecution in this

case was an employee of the Internal Revenue Ser-

vice's Service Center in Ogden, Utah, who testi-

fied that a search of the records at the center

revealed returns filed for the petitioner on the

llth day of October, 19721 On cross-exani nat ion

of the intelligence agent’ the petitioner was able

to ascertain that the returns did not leave the

Fargo office of the IRS until May of 1973. There-

fore, herein lies one of the most flagrant incon-

sistencies of record. The witness from the IRS

center in Ogden, Utah was not asked by the U. S.

Attorney to identify the returns attempted to be

later used in evidence. The petitioner contends

that she prepared original returns from the inform-

tion contained on the handwritten work copies that

were delivered by her to the agent, and that these

1

Transcript, page 11

2Transcript, page 165

1h

original typed returns were mailed by her to the

then IRS office in Kansas City on April 21, 1971“

Considerable emphasis was placed by the prosecu-

tion on the fact that petitioner did not prepare

the returns until after the agent contacted her.

The record verifies that the returns had been pre-

pared by the petitioner (with the assistance of the

two women in her office) in the spring of 1971.5

It was during this part of the testimony that it

was established that it was not until the spring

of 1971, after the returns had been prepared, that

petitioner was aware that she had any substantial

tax bill for the years in question.” From the

facts established (from what petitioner acknowledges

to be a somewhat confused record), the trial court

was in error in sustaining the prosecution's posi-

tion and not ruling on petitioner's objections that

the copies of the tax returns were not original

documents.

1. Transcript, pages 175 thru 168; pages 200-201

2. Transcript, page 97

* Transcript, page 201

15

AS TO QUESTIONS PRESENTED NO. 3

The essential issue in this case is the mean-

ing of the word "Willfullness" as used in 26 U.S.C.

& 7203. The lower courts having a lack of unifor-

mity in their interpretations of the meaning and

intent of the word "Willfullness" as so used, there

exists the necessity of obtaining the interpreta-

tion of the Supreme Court in order to have uni-

formity among the lower courts.

It is the contention of petitioner that to be

guilty of violation of 26 U.S.C. & 7203, the ac-

cused must be possessed of a state of mine and pur-

pose to intentional violate the law at the time

of the alleged crime, and that the accused acted

with an evil motive and bad intent.

The trial court's instruction to the jury in

this case on the subject of willfullness reads:

"The specific intent of willfulness is

an essential element of the crime of failure to

file an income tax return. The word "willfully"

used in connection with this offense means delib-

erately, and intentionally, and without justifi-

able excuse, or with the wrongful purpose of

16

deliberately intending not to file a return which

defendant knew she should have filed, in order to

prevent the Government from knowing the extent of,

and knowing the facts material to, the determina-

tion of her tax liability.

Defendant's conduct is not "willful" if she

acted through negligence, inadvertence, or mis-

take, or due to her good faith misunderstanding

of the requirements of the law. It should be

pointed out, however, that disagreement with the

law is not a defense. It is the duty of all

citizens to obey the law whether they agree with

it or not."

Petitioner had requested the following in-

struction:

"2. Willfulness is an essential element of

the crime of which defendant is charged in the

indictment. An act is done "willfully" if done

purposely with the specific intent to disregard

the law, or to do that which the law forbids,

and further means an act done with a bad purpose,

the existence of specific wrongful intent, and

evil motive at the time the crime charged was

committed; mere laxity, careless disregard of

duty imposed by law, or even gross negligence,

unattended by "evil motive," is not probative of

willfulness."

Petitioner entered specific objection to the

court's proposed instruction. The trial court de-

clined to consider or give petitioner's requested

above set forth instruction.

17

Petitioner freely admitted that her act in

failing to file the returns on time had been one

of carelessness on her part; however, the essen-

tial element of the crime would be the mental

attitude and conduct of the accused at the time

of the alleged crimes, not the attitude and con-

duct several years later. At the time of this

trial the petitioner had endured nearly two years

of harassment from the IRS, and after an ordeal

of such nature she may have displayed qualities

of hostility to the service.

The decisions of the Supreme Court on the

sub ject of "Willfullness" support the petitioner's

contentions. In United States v. Murdock, 290 U.S.

389, the court in considering the context of the

misdemeanor section concluded that willful as an

element of the offense connoted "bad faith or evil

intent", and stated:

"Here we are concerned with a statute

which denounces a willful failure to do various

things thought to be requisite to a proper ad-

18

ministration of the income tax law, and the

Government, in the trial below, we think

correctly, assumed that it carried the burden

of showing more than a mere voluntary failure

to supply information, with intent, in good

faith, to exercise a privilege granted the

witness by the Constitution. The respondent's

refusal to answer was intentional and without

legal justification, but the jury 7295 never -

theless find that it was not p bad

a or ev n c he s e es

an element of the offense. (Emphasis supplied)

In the more recent case of United States v.

Bishop, lu: U. S. 35 (1973), the court said:

"Until Congress speaks otherwise, we

therefore shall continue to require, in both

tax felonies and tax misdemeanors that must be

done "willfully," the bad purpose or evil no-

tive described in Murdock, supra."

In Spies v. United States, 317 U. S. 92, the

court stated that "willfullness" for the purposes

of both the misdemeanor and felony of "willfully"

attempting to evade taxes includes " "some ele-

ment of evil motive and want of justification in

view of the financial circumstances of the tax-

payer." '

In the case at hand, the lower courts have

read into this matter their own conjectures.

19

The majority opinion of the Circuit Court of

Appeals en banc states that the issue involved was

that petitioner had failed to file her tax returns

in protest against single taxpayer prejudice. As

far as petitioner's defense was concerned, she had

never raised this isgue, but the issue was used by

the prosecution to incur jury prejudice’.

"Bad purpose and evil motive to disobey the

law" is essential to the existence of criminal in-

tent, and the failure of the trial court to so in-

struct the jury in petitioner's case, or in any

case, will result in prejudicial reasoning by a

jury charged, and did result in prejudicial rea-

soning by the jury.

AS TO QUESTION PRESENTED NO. U

During the course of petitioner's testimony

she stated that she had been unable to elicit any

information from the investigating agents as to why

or as to what she was being charged, and that she

1-Transcript, page 105

20 }

had visited the Regional Office of the IRS in St.

Paul, Minnesota in August of 1973 in an attempt to

ascertain the facts of the investigation."

Herein again lies a facet of the trial pro-

ceedings highly prejudicial to the petitioner. The

U. S. Attorney seised upon the fact that petition-

er had finally been advised to a degree of charges

she faced after visiting the St. Paul Regional

office. In particular, the record discloses that

the U. S. Attorney in his argument to the jury made

references to petitioner's visit to St. Paul wherein

she is alleged to have said that her defense would

be - financial problems and also that they could-

n't prove willfulness and so forth." These issues

were not discussed during the cross-examination of

petitioner by the U. S. Attorney concerning her

visit to St. Paul, and such references were purely

hearsay, violative of the accused's rights under |

the Sixth Amendment relating to the right of con-

1

“Transcript, page 203

2.franscript, page 226 ?

n

frontation of witnesses against him, and constitut-

ed Plain Error under Rule 52 (b) of the Federal

Rules of Criminal Procedure.

AS TO QUESTION PRESENTED NO. 5

In his argument to the jury the U.S. Attorney

told the jury that the matter of criminal intent on

the part of petitioner couid not be proved by any

direct evidence, but that the defendant should be

convicted on circumstantial evidence. That peti-

tioner was evasive with the investigating agents

is not denied, but in the light of facts of record

wherein these agents were attempting to entrap the

petitioner into the commission of a felony, it is

argued that petitioner had ample reason to be wary.

The fact that petitioner was not financially able

to cope with the demands made upon her for business,

personal and tax reasons should not be grounds for

labeling her as a criminal. Where there is a fact-

ual situation wherein the accused is maintaining a

luxurious standard of living, participating in some

1.

Transcript, page 228

22

quest »nable business or anti-social activities,

or is advocating defiance of the law, the Govern-

ment may be justified in its use of the Internal

Revenue Service to keep civil order. However, the

record in this case substantiates that petitioner

was not in any manner involved in any fraudulent

activities, that her activities as a tax practit-

ioner were free of any questionable practices, and

there was no showing of any unethical or question-

able activities in the conduct of her legal work.

Notwithstanding that the IRS investigation revealed

nothing more than that petitioner had been sub jec t-

ed for many years to difficult financial demands

and had devoted a substantial amount of her time

and energies to public service, a jury is told by

the prosecution that she should be convicted by

what he, the prosecutor says. The prosecution had

unlimited means, both in form of finances and in

form of personnel, to produce witnesses against the

petitioner and to produce direct evidence, had the

same existed. The only witnesses produced by the

23

prosecution were people who verified that the peti-

tioner had earned a certain gross income, and that

from time to time the petitioner had borrowed money.

None of these activities should be construed to

constitute a criminal intent.

CONCLUSION

For the foregoing reasons this petition for

a writ of certiorari should be granted.

Respectfully submitted,

1

2 222 tye N

Beren ° man

Attorney per se

Enderlin, North Dakota 58027

FOR THE APPELEE AND RESPONDENT:

Solicitor General

Department of Justice

Washington, D. C. 20530

Mr. Harold O. Bullis

United States Attorney

Federal Courts Building

Fargo, North Dakota 58102

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 74-1759

United States of America, *

*

Appellee, °

* Appeal from the United States

v * District Court for the

* District of North Dakota.

„

Bo rent je C. M. Pohlman, *

*

*

Appellant.

Submitted: December 11, 1974.

Filed: February 11, 1975.

Before LAY and BRIGHT, Circuit Judges, and TALBOT SMITH,

Senior District Judge.*

LAY, Circuit Judge.

Berentje C. M. Pohlman, a practicing attorney in Enderlin,

North Dakota, was convicted by a jury of willfully failing to

file her individual income tax returns for the years 1968, 1969

and 1970 in violation of 26 U.S.C. § 7203. Ms. Pohlman's basic

defense was that she served as City Attorney of Enderlin in

1969 and as Mayor in 1970, and that she was so involved and busy

in these positions, as well as with certain personal problems,

that she did not realize until late in 1970 that she had earned

TALBOT SMITH, Senior District Judge, Eastern District

of Michigan, sitting by designation.

APPENDIX A 1

ee

income sufficient to require filing. She maintained all her

files and records and when visited by a field auditor of the

Internal Revenue Service in early October 1972, she prepared

returns for each of the years in question and filed them. On

appeal she appears pro se, as she did in the trial court,

raising several errors. We need only discuss her attack on

the instruction given by the trial court concerning the element

of willfulness. We find this to have been reversible error

and vacate the judgment of conviction and remand for a new

trial.

Title 26 U.S.C. § 7203 makes it a misdemeanor” when a

person “willfully fails . to make such return [as required

by law) .. . at the time or times required by law. . ." (empha-

sis added). The court declined to give defendant's requested

1. Ms. Pohlman contends the trial court erred in per-

mitting Agent Engelmann to relate the conversation which occurred

in her office on October 3, 1972, during which she admitted not

having filed the returns since she was not informed of her con-

stitutional right to remain silent prior to the conversation.

She was not in custody, however, at the time of the conversa-

tion and we have frequently held that no warning need be given

during a noncustodial investigation. See United States v.

787 22421 F. ek 950 (8th 590 (497 n 5 U.S.

„ rehearin nied, 402 U.S. 71); United States v.

Brevik, 422 F.2d 449, 450 (8th Cir.), cert. denied, 398 U.S.

70); United States v. Ping, 407 F.2d 157 (8th Cir.

1969); Muse v. United States, 102 F. 2d 40, 41 (8th Cir. 1968),

cert. denied, . [7 (1969); Cohen v. United States, 405

° 0 40 (8th Cir. 1968), cert. den ’ 8.

(1969). see also cases cited at 405 F.2d 37 n. 7.

2. The defendant was fined a total of $1500.00 and placed

on probation for two years.

instruction on the meaning of willfuiness> and, over her

specific objection, gave the following:

The specific intent of willfulness is an essen-

tial element of the crime of failure to file an in-

come tax return. The word “willfully” used in

connection with this offense means deliberately, and

intentionally, and without justifiable excuse, or

with the wrongful purpose of deliberately intending

not to file a return which defendant knew she should

have filed, in order to prevent the Government from

knowing the extent of, and knowing the facts material

to, the determination of her tax liability.

Defendant's conduct is not “willful” if she

acted through negligence, inadvertence, or mistake,

or due to her good faith misunderstanding of the

requirements of the law. It should be pointed out,

however, that disagreement with the law is not a

defense. It is the duty of all citizens to obey

the law whether they agree with it or not.4

She contends that the court's instruction did not adequately

define "willfully" as that word is used in § 7203. We agree.

The controlling authorities are United States v. Bishop, 412 U.S.

346 (1973), and United States v. Murdock, 290 U.S. 389 (1933).

3. The requested instruction was:

2. Willfulness is an essential element of the

crime of which defendant is charged in the indict-

ment. An act is done “willfully” if done purposely

with the specific intent to disregard the law, or to

do that which the law forbids, and further means an

act done with a bad purpose, the existence of specific

wrongful intent, and evil motive at the time the crime

charged was committed; mere laxity, careless disre-

gard of duty imposed by law, or even gross negligence,

unattended by “evil motive,” is not probative of

willfulness.

4. This instruction is taken, with minor changes, from 2

Devitt & Blackmar, Federal Jury Practice and Instruction § 52.31

(1970).

APPEEDIX A -3-

— —

In Murdock, the defendant had refused to supply information

to the Internal Revenue Service concerning deductions claimed

in his 1927 and 1928 income tax returns. He insisted that

the Fifth Amendment permitted him to refuse the information since

it would incriminate him under state law. He was charged with

and convicted of willfully failing to supply the information.

In upholding the reversal of his conviction, the Court discussed

the meaning to be given the word “willfully” in tax crime

statutes:

The word often denotes an act which is inten-

tional, or knowing, or voluntary, as distinguished

from accidental. But when used in a criminal statute

it generally means an act done with a bad purpose

290 U.S. at 394.

Here we are concerned with a statute which de-

nounces a willful failure to do various things

thought to be requisite to a proper administration

of the income tax law, and the Government, in the

trial below, we think correctly, assumed that it

carried the burden of showing more than a mere

voluntary failure to supply information, with intent,

in good faith, to exercise a privilege granted the

witness by the Constitution. The respondent's re-

fusal to answer was intentional and without legal

justification, but the jury might neverthele~s find

that it was not pr t

ch the statute makes an element of the offense.

Id. at 397-98 (emphasis added) .

In Bishop, the Court was faced with the question of whether

the word “willfully,” as used in those several statutes defining

misdemeanor tax crimes, had the same stringent meaning it had

been accorded when used in the definition of a felony tax crime.

The Court not only found that it did but went on to emphasize

APPENDIX A 20

the necessity for determining the “bad purpose articulated

in Murdock:

» 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.

Until Congress speaks otherwise, we therefore

shall continue to require, in both tax felonies

and tax misdemeanors that must be done “willfully,”

the bad purpose or evil motive described in Murdock,

supra.

412 U.S. at 361.

Defendant's basic contention is that the court's instruc-

tion failed to sufficiently describe the requirement of wrongful

intent and evil motive required under the law. Several cases

have held both before and after Bishop that the specific words

"bad purpose” or evil motive” need not be used by the courts

in defining the element of willfulness. See cases collected in

Cooley v. United States, 501 F.2d 1249 (9th Cir. 1974), and

United States v. Hawk, 497 F.2d 365 (9th Cir.), cert. denied,

95 S.Ct. 67 (1974). What is required, however, is that the

instruction convey “the proper notion of specific intent in

understandable terms." United States v. Hawk, supra at 369.

As the Seventh Circuit observed in United States v. Matosky,

421 F.2d 410, 412 (7th Cir.), cert. denied, 398 U.S. 904 (1970),

"the only bad purpose or bad motive necessary for the government

to prove is a deliberate intention not to file returns which the

defendant knew ought to be filed.” This court approved such

an instruction under § 7203 in Lumetta v. United States, 362

r 2d 644 (8th Cir. 1966).°

The basic question in the present case is whether the

trial court sufficiently and accurately defined the specific

intent required. Concededly there is no mention of “bad

purpose” as used in Lumetta and other cases decided previously

by this court. See also United States v. MacLeod, 436 F.2d

947, 950 (8th Cir.), cert. denied, 402 U.S. 907 (1971).

The art of instructing a jury in plain and understandable

terms requires, on the part of the trial judge, an acute aware

ness of the extraordinary demands made upon him in the skill of

communication. In many trial courts the practice a as to

whether or not the jury charge goes to the jury room, but where

under either procedure there lurk shortcomings or dangers in

effectively communicating to the jury, the charge should always

seek out explicit and clear language in layman's terms.

Unfortunately, as has often been said, the trial court writes

instructions in terms more for the benefit of the appellate

court than for the lay jury.

The questioned instruction does attempt to imply that “bad

purpose” may be an element of the crime by excluding from the

5. tta, however, was later

full instruction in Lume ° P

9 t 6 post-Bishop case since it erroneously embodied

Murdock language which allowed a definition of willfulness to

include "careless or reckless disregard.” See United States v.

Bengimina, 499 F. 2d 117 (8th Cir. 1974).

6. tly held that furnish-

In this circuit, we have recently

ing written instructions to the jury lies within the discretion

of the trial court. See, United States v. Johnson, 466 F.2d 537

(8th Cir. 1972), cert. denied, 409 U.S. IIIT (1973).

APPENDIX A 6

meaning of “willful” “negligence, inadvertence or mistake

Or . . . good faith misunderstanding of the requirements of

the law.” The instruction mentions that willful does include

the wrongful purpose of deliberately intending not to file a

return when the defendant knew she should file. However, the

court prefaces this meaning by saying that “willfully” also

means doing something “deliberately and intentionally, and

without justifiable 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.

Here the defendant attempted to justify her failure to

file her returns because of the pressing demands of her public

and private life. There is no doubt that she did not have a

legal justification for failing to comply with the law. The

jury was told that if it found the defendant did not have a

justifiable excuse for failing to file this alone would be

sufficient to convict her. Herein lies the prejudice. Under

the charge the jury could have believed the reason Ms. Pohlman

gave for failing to file, a reason which negates mens rea if

believed, and yet have found her guiliy. 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.

7. In setting this meaning off from the rest of the

instruction the court uses the disjunctive “or”.

APPENDIX A -7-

Since bad purpose and evil motive are essential elements

of willfulness under § 7203, we see no reason that the jury

should be afforded the ambiguity of an instruction which possi-

bly denotes otherwise. If these are essential elements of the

misdemeanor the jury should be told so in plain and unambiguous

terms. As this court reaffirmed 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 effect-

ively, it must be given a clear statement of each

element which the Government must prove. The ele-

ments, as expressed in the statute, are hardly set

forth with sufficient clarity to permit the jury to

perform its duty intelligent ly

Id. at 97, quoting from Jackson v. United States, 348 F.2d 772,

774 (D.C. Cir. 1965).8

8. A much preferable instruction is found in another recent

Ninth Circuit case, United States v. Klee, 494 F.2d 394 (9th

Cir. 1974):

The term willfully used in the statute which

I have read to you, that is, referring to one who

willfully fails to make such a return, means volun-

tary, purposeful, deliberate and intentionally [sic],

as distinguished from accidental, inadvertent, or

negligent.

Mere negligence, even gross negligence, is not

sufficient to constitute willfulness under the

criminal law.

The failure to make a timely return is willful

if the defendant's failure to act was voluntary and

purposeful, and with the specific intent to fail to

do what he knew the law requires to be done; that is

to say, with a bad purpose or evil motive to disobey

or disregard the law which requires to (sic) file a

timely return which discloses to the government

facts material to the determination of his tax

liability.

Judgment reversed and remanded for a new trial.?

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

8. (continued)

There is no necessity that the government prove

that the defendant had an intention to defraud it,

or to evade the payment of any taxes, for the de-

fendant's failure to file to be willful under this

provision of the law.

On the other hand, the defendant's conduct is

not willful if you find that he failed to file a

return because of negligence, inadvertence, acci-

dent or reckless disregard for the requirements of

. the law, or due to his good faith misunderstanding

of the requirements of the law.

494 F.2d at 395.

9. Although the defendant represented herself at the

trial and in this court and was successful here, we strongly

urge her to retain independent counsel in the event this

matter is to be retried. The degree of personal involvement

by a defendant-lawyer in a criminal proceeding makes it extremely

difficult for that person to fairly and objectively evaluate

the facts and legal issues. We are confident from the record

presented that the defendant's attempt to represent herself

before the jury materially prejudiced her case. The written

briefs and oral presentation made by the defendant in the

present case were disorganized, confusing and difficult for

this court to follow. In the event the defendant is without

funds, she should investigate with the trial court the possible

appointment of counsel under the Criminal Justice Act.

United States Court of Appeals APPEMDIX B

No. 74-1759

United States of America,

Appeal from the United

States District Court

for the District of

North Dakota

Appellee,

Berentje C. M. Pohlman,

Appellant.

ee eeeeees

Submitted: June 11, 1975

Filed: august 27, 1975

Before GIBSON, Chief Judge, LAY, HEANEY, BRIGHT, ROSS,

STEPHENSON, WEBSTER, and HENLEY, Circuit Judges, en banc.

GIBSON, Chief Judge.

Defendant Berentje C. M. Pohlman was convicted by a jury

of willfully failing to file her tax returns for 1968, 1969

and 1970 in violation of 26 U.S.C. § 7203 (1970). On appeal

a panel of this court found that the jury had not been properly

instructed on the issue of willfulness and reversed her con-

viction. Thereafter a majority of the judges in active service

on this court voted to rehear the case en banc, which action

vacated the panel opinion. After full consideration by the

court en banc, we find none of the issues raised by appellant

merit reversal and affirm the conviction.

Pohlman, a practicing attorney in Enderlin, North Dakota,

according to her testimony at trial had prepared thousands of

tax returns and was fully aware of the Internal Revenue Code

provisions requiring the filing of tax returns. She, however,

did not file her personal returns for the years in question

until October, 1972, after a visit by an IRS field auditor.

The reasons given at trial were that she was involved in her

positions as City Attorney and Mayor of Enderlin in 1969 and

1970 and had some personal problems so that she did not realize

until after the filing deadlines that she had income sufficient

to require filing. The returns introduced into evidence at

trial indicated that in 1968 she had a gross income from her

profession of $22,785 and a taxable income of $7,988; for 1969

she had a gross income of $18,452 and taxable income of $3,269;

and for 1970 a gross income of $28,896 and $8,278 taxable income.

Error is asserted in the trial court's refusal to give

Pohlman‘s requested instruction on willfulness. The follow-

ing instruction, substantially identical to that in 2 E.

Devitt & C. Blackmar, Federal Jury Practice and Instructions

Ide fendant's requested instruction read:

2. Willfulness is an essential element of

the crime of which defendant is charged in the

indictment. An act is done “willfully” if done

purposely with the specific intent to disregard

the law, or to do that which the law forbids,

and further means an act done with a bad purpose,

the existence of specific wrongful intent, and

evil motive at the time the crime charged was

committed; mere laxity, careless disregard of

duty imposed by law, or even gross negligence,

unattended by “evil motive,” is not probative

of willfulness.

§ 52.31 (1970), was given over Pohlman's specific objection:

The specific intent of willfulness is an

essential element of the crime of failure to

file an income tax return. The word “will-

fully” used in connection with this offense

means deliberately, and intentionally, and

without justifiable excuse, or with the wrong-

ful purpose of deliberately intending not to

file a return which defendant knew she should

have filed, in order to prevent the Government

from knowing the extent of, and knowing the

facts material to, the determination of her

tax liability.

Defendant's conduct is not “willful” if

she acted through negligence, inadvertance,

or mistake, or due to her good faith mis-

understanding of the requirements of the law.

It should be pointed out, however, that dis-

agreement with the law is not a defense. It

is the duty of all citizens to obey the law

whether they agree with it or not.

The panel decision, in agreeing with Pohlman that the

trial court's charge did not adequately describe the concept

of willfulness, would require the Government to prove not only

that the act was done deliberately, intentionally and without

justifiable excuse, but additionally that the defendant had

a state of mind which manifested a bad purpose or evil motive

to violate the law. It thus would allow a defendant to argue

that his motive in refusing to file was good, i.e., it was his

manner of protest against wasteful governmental expenditures,

expenditures that go for inappropriate or evil purposes, or

the higher taxation of single taxpayers as was an issue in

the present case. We do not think this additional burden is

required.

It is undisputed that the words “evil motive or bad pur-

pose” have been used to convey the concept of willfulness

embodied in § 7203. United States v. Bishop, 412 U.S. 346,

360 (1973); United States v. Murdock, 290 U.S. 389, 398 (1933);

United States v. McCorkle, 3511 F.2d 482, 485 (7th Cir. 1975)

(en banc), petition for cert. filed, 17 cr. L. Rep. 4082 (U.S.

May 1, 1975) (No. 74-1371). The Supreme Court in Murdock v.

United States, supra at 397-98, did state that:

The respondent's refusal to answer was inten-

tional and without legal justification, but

the jury might nevertheless find that it was

not prompted by bad faith or evil intent, which

the statute makes an element of the offense.

Additionally, in Bishop v. United States, 412 U.S. 346 (1973),

the Court stated that it would “continue to require, in both

tax felonies and tax misdemeanors that must be done will-

fully," the bad purpose or evil motive described in Murdock,

supra."

We do not read this, however, to indicate that the Court

was engrafting onto the statute a requirement that the Govern-

ment prove anything beyond establishing that defendant's action

was deliberate, intentional and without justifiable excuse, or

otherwise stated, a voluntary, intentional violation of a known

legal duty. 2 In the same discussion in Bishop, the latest

2

The claim that the trial court's instruction does not

adequately define willfulness is premised on the use of

“without justifiable excuse” when the Supreme Court indicated

in Murdock that it was not enough for the Government to prove

that an action was “without legal justification." We believe

that these two concepts are different and that “without justi-

fiable excuse” includes the concept intended by the Court's

bad purpose“ or “evil motive" language. An act might well

be without legal justification (i.e., the refusal to disclose

sources of income in reliance on a nonexistent Fifth Amendment

privilege, as in Murdock) but could be done with justifiable

excuse (i.e., a good-faith reliance on the Fifth Amendment

APPENDIX B —

Supreme Court case in this area, the Court stated:

The Court, in fact, has recognized that the

word “willfully” in these statutes generally con-

notes a voluntary, intentional violation of a

known legal duty. It has formulated the require-

ment of willfulness as “bad faith or evil intent,”

Murdock, 290 U.S., at 398, or “evil motive and

want of justification in view of all the financial

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

at 498, or knowledge that the taxpayer should

have reported more income than he did.“ Sansone,

380 U.S., at 353.

Bishop v. United States, supra at 360.

2 continued

privilege, as in Murdock). We think the Supreme Court was

concerned in Murdock that the Government have to prove that

an act was done without justifiable excuse, that is, with a

bad purpose or evil motive, and could not rely upon showing

the lack of a legal justification to establish willfulness.

However, it must be recognized that clarity and unam-

biguity are the hallmarks of a good jury instruction. In

light of the similarity in language between the two concepts

discussed above we think it would be preferable that future

instructions on willfulness not embody the language of “with-

out justifiable excuse." We would suggest that the first

paragraph of the instruction given by the trial court herein

be modified to provide that:

Willfulness is an essential element of

the crime of failure to file an income tax

return. The word “willfully” used in connec-

tion with this offense means a voluntary,

intentional violation of a known legal duty,

or otherwise stated, with the wrongful pur-

pose of deliberately intending not to file a

return which defendant knew she should have

filed, in order to prevent the Government

from knowing the extent of, and knowing the

facts material to, the determination of her

tax liability.

APPENDIX Bc

Thus, rather than indicating that "bad purpose or evil

motive“ is a requirement to be proved in addition to the

voluntary, intentional violation of a known legal duty, the

Court's statement indicates that "bad purpose or evil motive"

is merely another way to convey the concept of willfulness.

See United States v. McCorkle, 311 F. 2d 482 (7th Cir. 1975)

(en bang).

Cases decided both before and after Bishop have been in

agreement that "willfully" as used in § 7203 Tequires only

that the Government prove a voluntary, intentional violation

of a known legal duty. United States v. McCorkle, 3511 F.2d

Irhe court stated therein:

Contrary to the defendant's contentions, we

believe that the Court employed the terms

bad purpose“ and evil notive“ as a con-

venient method of referring to the longer

definition of “willfully” as a "voluntary,

intentional violation of a known legal duty,"

and not as engrafting an intent to defraud

requirement or other similar evil purpose

on that definition.

United States v. McCorkle, 511 F.2d 482, 485 (7th Cir. 1975)

en nc); accord, Unit States v. Hawk, 497 F.2d 365, 368

(Sth Cir.), cert. denied, 419 U.S. 838 71974). ‘

482 (7th Cir. 1975) (en banc); United States v. Bengimina,

499 F.2d 117 (8th Cir. 1974); United States v. Hawk, 497

F. 2d 365 (9th Cir.), cert. denied, 419 U.S. 838 (1974);

United States v. Klee, 494 F.2d 394 (9th Cir.), cert. denied,

419 U.S. 835 (1974); United States v. Matosky, 421 F.2d 410

(7th Cir.), cert. denied, 398 U.S. 904 (1970); cf. Boardman

v. United States, 419 F.2d 110 (lst Cir. 1969), cert. denied,

397 U.S. 991 (1970).

The trial court's instruction on willfulness in this

case fairly and adequately charged the jury as to what the

Government had to establish to support a conviction. There

was clearly sufficient evidence for the jury to find that

Pohlman's failure to file was a voluntary, intentional

violation of a known legal duty.

In addition to the alleged error in instructions, the

appellant contends that the court erred in the admission

into evidence of conversations with Internal Revenue agents,

receiving into evidence photocopies of her 1968, 1969 and

1970 returns, and use of hearsay evidence in the cross-~

examination of appellant.

Agent Engelmann testified to conversations occurring in

Pohlman's office on or about October 3, 1972, without inform-

ing her of her constitutional right to remain silent. In that

conversation she admitted to not having filed the returns.

Noncustodial investigation of this type does not require a

Miranda warning. United States v. MacLeod, 436 F.2d 947, 950

(8th Cir.), cert. denied, 402 U.S. 907 (1971); United States

v. Brevik, 422 F.2d 449, 450 (8th Cir.), cert. denied, 398

U.S. 943 (1970); Muse v. United States, 405 F.2d 40, 41 (8th

Cir. 1968), cert. denied, 393 U.S. 1117 (1969); Cohen v.

United States, 405 F.2d 34, 35-40 (8th Cir. 1968), cert.

denied, 394 U.S. 943 (1969).

APPENDIX BO -7-

The appellant's objection to admission of photocopies of

her 1968, 1969 and 1970 returns is not well taken. Mr. Engel-

mann, the IRS Field Audit Agent, testified that these photo-

copies were the returns which Pohlman signed in his presence

October 11, 1972. Although Pohlman had contended that they

were merely photocopies of returns she had previously filed,

the record establishes that they were adequately identified

as being the original returns filed with Engelmann October 11,

1972.

The questioning of Pohlman concerning her prior state-

ments to Internal Revenue agents as to her failure to file

returns was not error. The questioning sought testimony as

to Pohlman's prior inconsistent statements. As Pohlman was

a party-defendant, her hearsay statements could properly be

used against her as admissions. United States v. Pistante,

453 F.2d 412 (9th Cir. 1971). See generally McCormick on

Evidence 1 239 (1954).

The judgment of conviction is affirmed.

LAY, HEANEY and BRIGHT, Circuit Judges, Dissenting.

We respectfully dissent. The defendant is entitled to

a new trial based on the trial court's erroneous instruction.

We sense there exists no fundamental disagreement

_ between the majority and dissenting views herein on the law

governing the definition of willfulness under § 7203. At

issue here is the adequacy of the district court's instructions;

in other words whether the district court properly conveyed

to the jury the necessary elements of the offense under § 7203.

APPENDIX B in

The majority concedes lack of clarity in the district court's

instruction and suggests modification of the instruction.

However, in doing so, it finds no prejudicial error.

In view of the Supreme Court opinion in United States v.

Bishop, 412 U.S. 346 (1973), there should exist no major

dispute as to what the term willful means under § 7203.

Bishop emphasized that an essential element of willfulness is

a specific intent to evade the law. The Supreme Court in

Bishop observed:

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.

Id. at 361.

This court in United States v. Bengimina, 499 F.2d 117

(8th Cir. 1974), recognized that the term willful is

consistent with the rule in Bishop. Judge Gibson in announc-

ing the court's decision at that time wrote:

This requirement of willfulness has been formulated as:

15335 faith or evil intent, Murdock, 290 U.S.

at „ or “ev motive want of justification

in view of all the financial ciovunstansss —

taxpayer,” Spies, 317 U. 8. , at 498, or know e

that the taxpayer “should have reported more in-

come than he did. Sansone, 380 U.S., at 353.

Id. at 119 (emphasis °

Our earlier panel opinion recognized that it is not

essential to include the terms “bad purpose or evil motive"

in the definition of willfulness as long as the trial court

makes clear that willfulness is a “voluntary, intentional

violation of a known legal duty.” The panel also recognized

APPENDIX B -§-

that the decisions of United States v. Hawk, 497 F.2d 365

phraseology, but we respectfully submit the ambiguity result-

ing from the district court's instruction failed to clearly

set forth the necessary requirement of mens rea and resulted

in prejudicial error to the defendant.

(9th Cir.), cert. denied, 419 U.S. 838 (1974), United States

v. Klee, 494 1. 2d 394 (9th Cir.) cert. denied, 419 U.S. 835

(1974) and United States v. McCorkle, 311 F.2d 482 (7th Cir.

1975) (en banc), petition for cert. filed, 17 Cr.L. 4082

(U.S. May 1, 1975) (No. 74-1371) all hold that the statute

does not require proof of intent to defraud.

The trial court instructed the jury that the defendant

could he convicted if she intended not to file a return when

she knew she should file. However the court also instructed

the jury that the defendant could be guilty — § 7203 if

she simply failed to file "deliberately, intentionally and

without justifiable excuse." 1. If we correctly understand

the reasoning of the majority opinion it is urged that

“without justifiable excuse" supplies the missing element

of mens rea, that is the bad purpose and evil motive not to

comply with a known legal duty. The majority reasons that

in the future it would be better to abandon the phrase

“without: justifiable excuse" and irstruct specifically

that there must be a voluntary and intentional violation of

a known legal duty. 2. We agree as to the need for new

= 2

In setting this meaning of willfulness off from the

a the instruction the trial court uses the disjunctive

2.

We fail to understand why the language of the ma

opinion strains so hard to avoid use of the an RB a ny

Supreme Court approved in Murdock and Bishop. Bad purpose

and evil motive to disobey the law" is clearly an element of

—ů— and are words easily phrased and understood. A

much preferred instruction to the abbreviated version s

ested

by the majority is approved by the 9th Circuit in Snited beatae

APPENDIX B -10-

2. (contis ued)

*

v. Klee, supra. The instruction reads:

The term willfully used in the statute which

I have read to you, that is, referring to one who

willfully fails to make such a return, means volun-

tary, purposeful, deliberate and intentionally, [sic]

as distinguished from accidental, inadvertent, or

negligent.

Mere negligence, even gross negligence, is

not sufficient to constitute willfulness under the

criminal law.

The failure to make a timely retirn is willful

if the defendant's failure to act was voluntary and

purposeful, and with the specific intent to fail to

do what he knew the law requires to be done; that is

to say, with a bad purpose or evil motive to disobey

or disregard the law which requires to (sic) file a

timely return which discloses to the government facts

material to the determination of his tax liability.

There is no necessity that the government prove

that the defendant had an intention to defraud it,

or to evade the payment of any taxes, for the de-

fendant's failure to file to be willful under this

provision of the law.

On the other hand, the defendant's conduct is

not willful if you find that he failed to file a

return because of negligence, inadvertence, acci-

dent or reckless disregard for the requirements of

the law, or due to his good faith misunderstanding

of the requirements of the law.

494 F.2d at 395 n. l.

Devitt and Blackmar have recently recommended use of the

9th Circuit instruction. See E. Devitt and C. Blackmar,

Federal Jury Practice and Instructions § 52.31 (Supp. 1975).

APPENDIX B 1

The majority reasons that the term “without justifiable

excuse” is simply another way of saying that the jury must

find a wrongful purpose to disobey the law. In so doing,

the majority distinguishes between “without justifiable

excuse” and “without legal justification," asserting that

the former is a subjective standard and includes the necessary

element of mens rea: bad purpose and evil intent. While

distinguishing this from the objective standard of “without

legal justification" is instructive at this point, no such

distinction was drawn for the jury and they may have

confused the two standards. 3.

Herein lies the prejudice. The jury could have believed

the reason Ms. Pohlman gave for failing to file, a reason

which negates mens rea, and yet have found her guilty. Their

verdict could have resulted from a belief that, although

the defendant's excuse was the reason, it was not justifiable

under the law. The statute plainly requires more. The jury

must find that her failure to file arose from a bad motive

and evil intent not to file a timely return, fully aware of

her obligation to do otherwise. 4.

3.

The term “without justifiable excuse" encompasses at

least the term “without legal justification." Even if it also

encompasses the requisite bad purpose and evil motive, as the

majority argues, there is no way of knowing whether the jury

found the bad purpose required by Murdock and Bishop.

4.

The second paragraph of the challen instru

does not cure the deficiency created by wre Bee noone gy A

term “without justifiable excuse." It is true that the

defendant's conduct is not “willful” under the statute, “if

she acted through negligence, inadvertance, or mistake, or

due to her good faith misunderstanding of the requirements

of the law. However, these criteria are stated as defenses,

rams ~ 12-

In United States v. McCorkle, supra, the defendant urged

that the trial court failed to instruct that the defendant

could not be convicted of willfulness under § 7203 if he

possessed a “justifiable excuse." The 7th Circuit disagree

by saying: .

Since the instructions required the jury to find an

intentional violation of a known legal duty, it

would have been essential for the jury to conclude

that McCorkle's conduct was unjustified.

511 F. ad at 486.

However, in this case it was not implicit in the jury's

findings that the defendant's reason was unjustifiable

that it was also an intentional violation of a known legal

duty. An unjustifiable excuse for failure to file does not

necessarily inform a layman that it must necessarily be an

intentional violation of the law and thus the instruction was

deficient.

4. (continued)

and do not specifically define the government's burden to

show that the defendant must have possessed a wrongful

purpose in failing to fille. It is imperative for the

instruction to clearly convey that the government must bear

the burden of proving beyond a reasonable doubt that the

defendant had the requisite bad purpose and evil motive to

evade the law's requirements. Thus, the second paragraph

of the instruction is insufficient to cure the ambiguity of the

preceding paragraph.

The first paragraph could have been cured by r placing

the or“ with and. If this were done, the jury would have

had to find that the offense was done “deliberately, and

intentionally, and without justifiable excuse,” (even if

considered to mean without legal justification) and “with

the wrongful purpose of deliberately intending not to file

a return which defendant knew she should have filed... .

This would have clearly set out the requirement of bad purpose

and evil motive.

APPENDIX B -13-

In United States v. Achtenberg, 459 F.2d 91 (8th Cir.)

cert. denied, 409 U.S. 932 (1972) this court emphasized that

prejudicial error occurs when the jury is not clearly informed

as to the elements of an offense. Our court stated: N

"Obviously, if the jury is to function effectively,

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 per-

form its duty intelligently ....

Id. at 97, quoting from Jackson v. United States, 348 F.2d 772,

774 (D.C. Cir. 1965).

It is axiomatic where the instruction is equivocal in

a criminal trial the defendant must be given tte benefit of

doubt as to existing prejudice. See Bollenbach v. United States,

326 U.S. 607, 613 (1946).

Here the jury was given the alternative of convicting if

they found the defendant possessed a wrongful purpose to

disobey the law or even if she did not, as long as they

found there did not exist a justifiable excuse for her failure

to file. This was clear error and Ms. Pohlman is entitled to

a new trial.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

APPENDIX B ~14-