Opposition — Bernabei v. United States

No. 76-115

MICHAEL RODAK, JR.CLERK

ST See

In the Supreme Court of the United States

OCTOBER TERM, 1976

VINCENT J. BERNABEI, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON. PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

ROBERT H. Bork,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OcTOBER TERM, 1976

No. 76-115

VINCENT J. BERNABEI, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

For the third time, petitioner seeks review of his con-

viction for willful failure to file income tax returns. He

renews his contention, first made on direct appecl, that

the trial court erred in excluding evidence of his financial

and marital problems during the prosecution years.

After a jury trial in the United States District Court

for the Northern District of Ohio, petitioner was convicted

of willful failure to file tax returns, in violation of 26

U.S.C. 7203. The trial court sentenced him to a prison

term of four years, four months of which were to be served

in a jail-type institution and the remainder suspended in

favor of probation. Petitioner was also fined $20,000. The

court of appeals affirmed petitioner's conviction (473 F. 2d

1385), and this Court denied certiorari (414 U.S. 825).

Petitioner thereupon moved in the district court for a new

(1)

2

trial. On appeal from the denial of his motion, the court of

appeals dismissed the appeal and this Court denied certi-

orari (Pet. App. la; 423 U.S. 837). Petitioner thereupon

commenced this proceeding for review of his conviction

under 28 U.S.C. 2255, and ‘he court of appeals reaffirmed

his conviction by order (Pei. App. la-2a).

The government's proof at trial showed that petitioner,

an attorney, realized gross income of $30,557 in 1965,

$25,206 in 1966, $30,126 im 1967, and $31,903 in 1968

(Tr. 95-97),' and that he filed no income tax returns for

those years (Tr. 230-231). Petitioner admitted that he

knew during the prosecution years that he was required

to file the returns but testified that the reason he did not

file the returns was that he did not have the money to

pay the tax (Tr. 223, 230, 237). Petitioner further ad-

mitted during the investigation that he knew the returns

could have been filed without paying the taxes due and

that he had advised the Treasury agents that he did not

do so because he wanted to avoid tax liens (Tr. 172).

Petitioner was also asked, on direct examination by

his counsel, about certain financial transactions occur-

ring prior to the prosecution years (R. 28).2 Upon objec-

tion by the government, petitioner’s counsel asserted that

he intended to develop testimony respecting “a series of

financial difficulties and a series of marital difficulties”

(R. 29). The trial judge asked how these difficulties were

material, and petitioner’s counsel replied only that the

“financial pressures, pressures of creditors * * * reflect

on the lack of any evil motive” (ibid.). The court then

ruled (R. 33):

“Tr.” refers to the trial transcript.

*“R.” refers to the record appendix filed in the court of appeals.

3

* * * a lack of funds or an inability to pay does not

constitute reasonable cause for failure to file declara-

tions or estimates of tax returns. Therefore, any

evidence relative to inability to pay or lack of funds

will be excluded.

Petitioner contends that the trial court erred in re-

jecting his offer of proof. We note at the outset that peti-

tioner’s collateral attack upon evidentiary rulings at his

trial does not present a claim cognizable upon collateral

attack of his conviction. See Davis v. United States, 417

U.S. 333, 346.

In any event, his offer of proof was irrelevant to the

issue of wilifulness in the context of this case. Willfulness,

under the tax misdemeanor and felony statutes, consists

of “a voluntary, intentional violation of a known legal

duty.” United States v. Bishop, 412 U.S. 346, 360. Al-

though evidence of inability to pay might possibly be

relevant io willfulness in cases where a defendant

established that he had a good faith belief that he could

not lawfully file without paying the tax (see Yarborough

v. United States, 230 F. 2d 56 (C.A. 4), certiorari denied,

351 U.S. 969), petitioner made no such claim. To the

contrary, petitioner conceded knowledge of a legal duty

to file and admitted deliberately failing to file merely in

order to avoid paying the tax.

Similarly, evidence of emotional distress engendered

by marital difficulties might be relevant to a defense

based upon inadvertence or negligence (see United Staies

v. Gorman, 393 F. 2d 209 (C.A. 7), certiorari denied, 393

U.S. 832), but petitioner never relied upon or suggested

such a defense at trial. In the absence of such a defense,

evidence of emotional distress is irrelevant and

may be excluded. United States v. Haseltine, 419 F. 2d

579 (C.A. 9).

4

United States v. Bishop, supra, does not support peti-

tioner’s claim. The holding of Bishop, so far as relevant

here, is that the word “willful” as used in tax misdemeanor

Statutes has the same meaning as the same word used

in tax felony statutes, i.e., a “voluntary, intentional

violation of a known legal duty” (412 U.S. at 360). As

for the phrases “bad faith or evil intent,” the Court in

Bishop made it clear that they refer to nothing more

than the bad purpose or evil motive that necessarily

inheres in an intentional violation of a known legal duty.’

Thus, proof of deliberate wrongdoing is all that is re-

quired. United States v. McCorkle, 511 F. 2d 482, 485

(C.A. 7) (en banc), certiorari denied, 423 U.S. 826:

United States v. Pohlman, 522 F. 2d 974 (C.A. 8) (en

banc), certiorari denied, 423 U.S. 1049: United States v.

Hawk, 497 F. 2d 365, 368 (C.A. 9), certiorari denied,

419 U.S. 838. United States v. Bengimina, 499 F. 2d 117

(C.A. 8), relied upon by petitioner (Pet. 4), is likewise

inapposite. There the court held that an instruction equat-

ing “careless disregard” with “willfulness” was reversi-

ble error. There was, however, no such instruction given

by the district court in this case.4

*In distinguishing Bishop from this case on its facts (Pet. App.

2a), the court of appeals correctly observed that there is nothing in

Bishop which permits the introduction of evidence of inability to

pay the tax in a failure to file prosecution. Contrary to petitioner's

assertion (Pet. 5), the court did not hold that the Bishop standard

of willfulness is inapplicable in a failure to file case.

‘The district court charged the jury that “willfully” meant

“deliberately, and intentionally, and without justifiable excuse, or

with the wrongful purpose of deliberately intending not to file a

return which defendant knew he should have filed” (Tr. 333).

However, it did not instruct the jury that “ ‘[glood motive alone

is never a defense where the act done or omitted is a crime. So the

motive of the accused is immaterial except insofar as evidence of

motive may aid determination of state of mind or intent.”

Accordingly, this case does not implicate the question presented in

our petition for certiorari in United States v. Pomponio, 528 F. 2d

247, 249(C..\. 4), petition for a writ of certiorari pending, No. 75-1667.

*s

5

For the reasons stated, the petition for a writ of .certi-

orari should be denied.

ROBERT H. Bork,

Solicitor General.

SEPTEMBER 1976.

DOJ-1976-09