Opposition — Lacy v. United States

No. 75-1606 |

OCTOBER TERM, 1976

WitLouGuBy E. Lacy, IIl, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI FO

THE UNITED STATES COURT OF APPEALS &#OR

THE FIFTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

ROBERT H. Bork,

Solicitor General,

Scott P. CRAMPTON,

Assistant Attorney General,

ROBERT E. LINDSAY,

RICHARD B. BUHRMAN,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

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CITATIONS

Cases:

Garner v. United States, No. 74-100, decided

ED Ce Cet i tascencnsecnctedesniciinisiccnictinnmmmninaniin 6

Maness v. Meyers, 419 U.S. 449 ooo. eeeees -)

Powers v. United States, 446 F. 2d 22 ................. 6

United States v. Berrigan, 482 F. 2d 171 .............. 7

United States v. Bishop, 412 U.S. 346 ........ 7, 8, 10

United States v. Brown, 476 F. 2d 933 .......000000000. 6

United States v. Daly, 481 F. 2d 28,

certiorari denied, 414 U.S. 1064 ..................000.. 7

United States v. Hawk, 497 F. 2d 365,

certiorari denied, 419 U.S. 838 ...............eeeeee. 8

United States v. Haywood, 464 F. 2d 756 ............ 6

United States v. Malinowski, 472 F. 2d

850, certiorari denied, 411 U.S. 970 «0.0.00... 10

United States v. Matosky, 421 F. 2d 410,

certiorari denied, 398 U.S. 904.000.0000... 10

il

United States v. McCorkle, 511 F. 2d 482,

certiorari denied, 423 2 fe eso

United States v. Murdock, 290 U.S. 389 ...

United States v. Pohlman, 522 F. 2d 974,

certiorari denied, January 12,

PF FN POUIEEF ancksenuiadionitenccnnpovenenseni

United States v. Pomponio, 528 F. 2d 247

United States v. Porth, 426 F. 2d 519,

certiorari denied, 400 U.S. 824 2.00.00...

United States v. Smith, 487 F. 2d 329,

certiorari dented, 416 U.S. 989 0.00.00...

United States v. Sullivan, 274 U.S. 259 .....

Constitution and statutes:

Constitution of the United States:

I cen

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PUD PRMIEIEE co cesccccccAiccccccccccccescosece:

Ss SIE. ssureeuuooenenon

Internal Revenue Code of 1954, 26 U.S.C.

EEE: shieilibinibiibbicusmenieieieiimiiaineineninreniannes

Miscellaneous:

Federal Rules of Criminal Procedure.

FER ee nee

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 75-1606

WILLOUGHBY E. LAcy, III, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

OPINION BELOW

The per curiam opinion of the court of appeals

(Pet. App. 1) is not published (see 526 F. 2d 814).

JURISDICTION

The judgment of the court of appeals (Pet. App.

1) was entered on January 20, 1976, and a petition for

rehearing was denied on April 5, 1976 (Pet. App. 4).

The petition for a writ of certiorari was filed on May

4, 1976. The jurisdiction of this Court is invoked under

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

QUESTIONS PRESENTED

|. Whether the court of appeals erred in denying

petitioner's motion to strike his brief and to “strike”

his counsel of record, which petitioner filed after the

court had affirmed his conviction.

(1)

2

2. Whether petitioner received the effective assistance

of counsel at trial.

| 3. Whether petitioner’s prosecution for failure to file

income tax returns violated his Fifth Amendment privilege

against compulsory self-incrimination.

4. Whether the trial court improperly denied petitioner

the opportunity to prove that he was the subject of

a discriminatory prosecution.

5. Whether the trial court properly instructed the jury

on the element of willfulness.

STATUTE INVOLVED

Section 7203 of the Internal Revenue Code of 1954.

as amended, 26 U.S.C. 7203, provides:

Any person required under this title to * * *

make a return * * * who willfully fails to * * * make

such return * * * at the time or times required by

law or regulations, shall, in addition to other penalties

provided by law, be guilty of a misdemeanor and,

upon conviction thereof, shall be fined not more than

$10,000. or imprisoned not more than | year, or

both, together with the cost of prosecution.

STATEMENT

After a jury trial in the United States District

Court for the Northern District of Alabama, petitioner was

convicted of willfully failing to file income tax returns

for the years 1969, 1970, and 1971, in violation of

26 U.S.C. 7203. The trial court sentenced petitioner to

a term of nine months’ imprisonment and fined him

$5.000 on one count, and suspended sentence and

imposed a two-year period of probation with respect to

the remaining two counts (Pet. App. 2: Tr. 400-401).!

“Tr” refers to the trial transcript.

3

During the years at issue, petitioner was a dentist

(Tr. 339) and realized gross income of $43,332.13 in

1969, $41,933.86 in 1970, and $47,856.84 in 1971

(Tr. 279-283). For 1969 and 1970 petitioner filed blank

income tax forms 1040 showing no income or expenses,

but to which were attached various documents attacking

the tax laws and claiming his First Amendment right to

petition the government for redress of grievances (Tr.

14-15. 26, 100, 320: Govt. Exs. 3 and 4). Petitioner

filed no form for 1971 (Tr. 16). During the investigation,

petitioner told the agents that filing tax returns would

violate his Fifth Amendment rights and his oath to de-

fend the Constitution against domestic and foreign

enemies (Tr. 95-98). Petitioner refused to turn over his

records unless he received assurances of immunity from

prosecution. When no such assurances were forthcoming,

petitioner did not provide access to his records (Tr. 110-

111).

During the trial, the court rejected (Tr. 270, 296-297,

328-330) all attempts to establish the “motivation on the

part of [petitioner] in doing what he did” (Tr. 326).

Petitioner's offer with regard to motivation invoked

“certain constitutional issues * * * among those

being the First, Fourth, Fifth, and Ninth Amendments

to the Constitution”. Petitioner's counsel stated that, if

permitted, petitioner would seek to show that his “motive

in filing the returns as filed was his attempt to petition

the government for redress of grievances” (Tr. 330), to

protest the use of government money for the “support of

corrupt foreign governments, illegal wars, expenditures

resulting in the death and maiming of thousands of for-

eign citizens” (Tr. 328-329) and “the use of the taxpayers’

dollars in supporting what he considers to be an over-

large and somewhat needless bureaucracy” (Tr. 329).

At the conclusion of the trial, the court instructed the

jury on the element of willfulness as follows (Tr. 375-376):

4

Willful in this context means that such a failure to

file must have been deliberate. intentiona! and volun-

tary and not the result of some accident or innocent

mistake or mere negligence. The law in this respect

says that before someone can be guilty of a criminal

offense for failing to file a timely tax return in the

manner required, it must have been a willful failure,

saving anything short of that for something other

than criminal prosecution, only that which involves

allegations of willful failure. And it is up to the

government in this case to prove this willfulness as

1 have described it beyond any reasonable doubt.

Willfulness in this sense involves an intentional dis-

regard or disobedience of some legal requirement.

*** The question may be raised as to, well,

what if a person failed to file a tax return, though

required to do so, but he was doing so as a political

protest or because he thought the income taxes

Were unconstitutional or for some other sincere

reason. would that constitute an excuse? No. If the

failure to file is deliberate. knowing. intentional and

conscious and voluntary, then the mere fact that it

may have been prompted by a sincere belief that the

law is bad or that the law is unconstitutional or

lor some other reason will not be an excuse to excuse

and do away with the act which the law prohibits

and which the law makes a crime.

After some deliberations the jury asked the court,

inter alia, tor a further discussion of the element of

wilifulness (Tr. 387), and the court gave the following

supplemental instruction (Ir. 389):

The term willful as used tn this statute means a vol-

untary. purposctul, deliberate and intentional failure

to file the return as distinguished from, for example,

an accidental failure. inadvertent failure. or even

5

a negligent failure for some reason to file a return.

A failure to act is willful f * is voluntary and

purposeful with the specific imtent to fail to do that

which the law requires. That ts to say with the pur-

pose to disobey or disregard the law. If that be so.

and is done purposefully and deliberately and inten-

tionally, then it would be done willfully. The mere

fact, if it be a fact. that someone does not like a

law or thinks that some law is unconstitutional,

does not make his failure to comply with its require-

ments something less than willful. Notwithstanding

whether it is a good intent or bad intent, if it

is a knowing disregard of a requirement of law and '

is done deliberately and intentionally, then it is a

willful action or in this case in the context of this

case a willful failure.

DISCUSSTON

|. Petitioner argues (Pet. [1-22) that the court of

appeals erred in denying his motion to strike his brief

and to “strike” his counsel of record. But petitioner

did not file such a motion until six days after his

conviction was affirmed (see Pet. App. |; Pet. 14, 31).

Thus, in denying petitioner's motion, the court of

appeals ordered that the record show “that appellant

discharged his said retained counsel after the decision

of his case on the merits” (Order of March 22, 1976).

Until the filing of his motion, petitioner had not previously

complained about the effectiveness of his counsel. The

court of appeals therefore correctly denied his attempt to

discharge his counsel after the affirmance of his con-

viction had been announced in order to obtain a second

appellate review.

2. Petitioner also argues (Pet. I1-22, 30-31) that he

did not receive effective assistance of counsel at trial.

However, as in the case of his claim of ineffective

6

appellate counsel. he did not raise this point in the

court of appeals until after the affirmance of his con-

viction. In the absence of an evaluation of this con-

tention by the courts below. there is no present basis

for review by this Court. As far as the record indicates.

petitioner was ably represented by retained counsel

ot his choice. Indeed. if petitioner wishes to pursue the

point. he can seek relief under 28 U.S.C. 2255. See.

v.g., United States v. Brown, 476 F. 2d 933.935(C.A. D.C.):

United States v\. Haywood, 464 F. 2d 756, 763 (C.A. D.C.):

Powers \. United States, 446 F. 2d 22. 24 (C.A. §).

3. Petitioner further argues (Pet. 22-29) that his

prosecution for failure to file income tax returns violated

his Fitth Amendment privilege against compulsory self-

incrimination. But in United States y. Sullivan, 274 U.S.

259. the Court held that the privilege against compulsory

self-incrimination is not a defense to prosecution for

failing to file a return at all. In so holding, the Court

Observed that “[i}f the form of return provided called

for answers that the defendant was privileged from making

he could have raised the objection in the return, but

could not on that account refuse to make any return

at all” (274 U.S. at 263).

Sullivan therefore disposes of petitioner's Fifth Amend-

ment claim. Although petitioner (Pet. 22-24) relies upon

Garner v. United States, No. 74-100, decided March

23. 1976, that case does not support the proposition

that prosecutions for failure to file tax returns may be

barred by the Fifth Amendment. Indeed. in holding

in Garner that tax returns in which the defendant had

revealed himself to be a gambler were admissible in

evidence in a prosecution for a gambling conspiracy.

the Court reaffirmed “the continuing validity of

Sullivan's holding that returns must be fiied™ (slip op.

3. n. 3). Thus. while petitioner might have elected to

—

7

refuse to answer certain questions on the return, he could

not lawfully refuse to file no return at all. See United

States v. Daly, 481 F. 2d 28, 29 (C.A. 8). certiorari

denied, 414 U.S. 1064; United States v. Porth, 426 F. 2d

519. 523 (C.A. 10), certiorari denied, 400 U.S. 824.

4. Petitioner further argues (Pet. 42-52) that the trial

court denied him the opportunity to show that he was

the subject of discriminatory prosecution. However.

petitioner did not advance such a claim prior to trial

and it was therefore waived in the absence of a showing

of good cause. See Rule 12(b)(1) and (f), Fed. R. Crim. P.

Petitioner now suggests (Pet. 48-51) that he was rushed to

trial and prevented from fully acquainting his attorney

with the nature of his discriminatory prosecution claim. But

he had ample time within which to bring the matter to

the attention of his attorney: the indictment preceded

the commencement of the trial by approximately 48

days. Moreover. the trial court did not err in fore-

closing petitioner from exploring before the jury the

reasons underlying the institution of his prosecution

(see Tr. 271-272. 289). A claim of discriminatory pros-

ecution that does not relate to the question of guilt

or innocence is for resolution by the judge. not the

jury. United States vy. Berrigan, 482 F. 2d 171.

174-176 (C.A. 3).

5. Finally. petitioner argues (Pet. 3-4. 32-42) that

the trial court erred: (1) in excluding evidence of

his alleged motives for failing to file tax returns,

and (2) in failing to instruct the jury that the element

of “willfulness” requires the jury to find that the

charged offense was committed in bad faith or was the

result of an evil motive. Petitioner urges that the

trial court’s instructions with respect to willfulness

and its exclusion of evidence of his motives conflicts

with United States v. Bishop, 412 U.S. 346, and

United States v. Murdock, 290 U.S. 389.

S

Ihe trial court’s instructions (see pp. 4-5. supra) on the

clement of “willfulness” are in accord with Bishop

and Murdock. The Court held in Bishop that the element

of willfulness is the same in all federal tax offenses,

whether felonies or misdemeanors, observing that the

“longstanding interpretation” of the “word ‘willfully’ in

these [criminal tax] statutes generally connotes a voluntary,

intentional violation of a known legal duty” (412 U.S.

at 360). In speaking of a single “longstanding inter-

pretation.” the Court made clear that the phrase “bad

faith or evil intent” as used in Murdock (290 U\S.

at 398) referred to nothing more than the bad purpose

or evil motive that necessarily inheres in a voluntary,

intentional violation of a known legal duty. The “bad

faith or evil intent” formulation in Murdock did not con-

cern the defendant's motive (i.e., his*reasons for acting);

it was addressed to his intent or state of mind at the time

“of the proscribed act (i.e., whether he int ntionally and

knowingly violated the law). Thus, proof of intentional

wrongdoing is all that is required. United States v. Hawk,

497 F. 2d 365, 368 (C.A. 9), certiorari denied. 419 U.S.

838: United States v. McCorkle, 511 F. 2d 482. 485 (C.A.

7) (en banc). 423 U.S. 826; United States v. Pohiman, 522

F. 2d 974(C.A. 8) (en banc), certiorari denied January 12,

1976. No. 75-483.-

‘Murdock involved a prosecution tor willful failure to supply

information requested by the Internal Revenue Service The Court

held that the criminal sanction for such conduct did not apply

to one whose refusal to give the requested information has been

based upon a bona fide. though mistaken. belief that his relusal

was justified by his constitutional protection against self-incrim-

ination. Since the scope of that privilege had been uncertain at

the time of the defendant’s refusal to supply the information. the

Court held that he was entitled to an instruction that the jury

should consider whether his conduct was based upon his good

faith belief that the privilege was applicable. Thus. if the defendant

9

Petitioner did not contend at trial that his failure to file

returns had been based upon a good faith belief at the time

of the offense that the Fifth Amendment privilege against

compulsory self-incrimination permitted him to file no

returns at all, or that he was unaware of his duty to file

returns. To the contrary, his offer of proof (Tr. 328-329)

consisted of his proposed testimony objecting to the various

uses to which the revenues are put, his testimony that the

incomplete return he filed was for the purpose of peti-

tioning the government for redress of alleged grievances

(Tr. 338), and an unspecific suggestion that petitioner

sought to raise issues under the First, Fourth, Fifth and

Ninth Amendments. The latter scattershot allegation,

which appeared to relate to petitioner’s purported effort

to petition for grievances, was insufficient to constitute

a bona fide claim of nonwillfulness, i.e., that he believed

in good faith that he was not obligated to file a return.

Thus, however sincere petitioner's beliefs that the income

tax laws are unconstitutional or that federal tax monies

are being misspent, the trial court correctly instructed

the jury that petitioner's asserted beliefs could not negate

the element of willfulness if he voluntarily and intentionally

violated a known legal duty prescribed by the tax

statutes. If “good motive” were a defense to a criminal

tax prosecution, a person such as petitioner, who vol-

untarily and knowingly committed a criminal tax offense,

had such a belief that he was constitutionally protected from

complying with the summons, i.e., that if in refusing to comply

he was not violating a legal duty, his refusal was not willful.

Moreover. unlike here. where petitioner could have tested his

views by means of a refund suit. there was no way for the

defendant in Murdock to test his belief that he did not have to

comply with the summons other than refusing to obey it in the

first instance. See Maness v. Mevers, 419 U.S. 449, 460-463.

10

might nevertheless avoid conviction by asserting that he

acted in order to protest an illegal and immoral war

(see United States v. Malinowski, 472 F. 2d 850, 855

(C.A. 3), certiorari denied, 411 U.S. 970): to protest

the withholding of income tax from the wages of workmen

(United States v. Smith, 487 F. 2d 329, 330 (C.A. 9),

certiorari denied, 416 U.S. 989); to avoid disclosure of

his identity to others (see United States vy. Matosky,

421 F. 2d 410, 411 (C.A. 7) certiorari denied, 398

U.S. 904); or to protest a particular government expend-

iture.

The trial court’s instructions therefore correctly distin-

guished between intent, which is at the heart of the concept

of willfulness, and motive, which is irrelevant to the

traditional criminal standard of willfulness. However.

in United States v. Pomponio. 528 F. 2d 247, the

Fourth Circuit reversed a conviction for willful filing of a

false income tax return on the ground that the trial

court's instruction to the jury, i.e., that good motive alone

is never a defense where the act done or omitted was a

crime, was contrary to Bishop and Murdock. That court

concluded (528 F. 2d 249) that Bishop “* * * requires

a finding of bad purpose or evil motive” and that

“excluding good motive from the consideration of the jury

in a [criminal tax case] is inconsistent with Bishop.”

Since the trial court’s instructions in this case were

similar to those disapproved in Pomponio, there is an ap-

parent conflict between the decision below and Pomponio,

in which we have filed a petition for a writ of certiorari

(No. 75-1667). We therefore do not oppose certiorari

with respect to the questions in the petition relating to

the trial court's instructions as to “willfulness” and its

exclusion of evidence of petitioner's motivation in failing

to file tax returns (Pet. 3-4, Questions 3 and 5). However,

the Court may deem it appropriate to hold this case pending

its ultimate disposition of Pomponio.

11

CONCLUSION

For the reasons stated this case should be held pending

the disposition of United States v. Pomponio(No. 75-1667).

Respectfully submitted. |

ROBERT H. Bork,

Solicitor General.

Scott P. CRAMPTON,

Assistant Attorney General.

RopBerT E. LInpsay.

RICHARD B. BUHRMAN,

Attorneys.

Juty 1976.

DO5J-1976-07