Petition — Sawyer v. United States

ee Giipreme Court, U. 4 \

. FILED

{

JAN 5 1980

MICHAEL RODAK, JR. CLERR_

No. 79-1059 ail

In the

Supreme Court of the Anited States

UNITED STATES OF AMERICA,

Respondent,

vs.

RAYMOND SAWYER,

Petitioner.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

WruusM J. Harre

111 W. Washington Street

Chicago, Illinois

Tel. No.: 312-726-5015

Attorney for Petitioner

The Scheffer Press, Inc.—(312) 263-6850

ara

RRS

TABLE OF CONTENTS

PAGE

I TN a careseete 1

FE URTSIRUOMNR: TI oasis cise ss seiecesosccsens 2

SUPE IN ah odie cccityvehasctoaceccerscssenee> 2

Constitutional And Statutory Provisions Involved .. 3

Cee eo vcsvuscsinhchonedeeosesescoces 4

Reasons For Granting The Writ ............ccceseceseeeseeseees 9

I. Because Federal Rule Of Evidence 803(8) Repre-

sents The Exclusive Conduit Through Which

Hearsay Public Records And Reports May Be

Received As Evidence, An IRS Agent’s In-

vestigatory Report Should Not Have Been Ad-

mitted Under Federal Rule 803(5) And The

Conviction, Based Primarily On That Report,

ER Oe MI inhibins cisonjnnagsvicincaiesrtcsces 10

II. Because The Jury Was Not Instructed That

Mens Rea Is An Element Necessary To Establish

The Offense Charged, As This Court’s Decisions

Clearly Hold, The Conviction Cannot Stand ........ 16

Cee ei ies hie ssbiecstisissensinsses 18

PSI Sidi Sale Ee tncninitdilabacistmevesesrasete eve la

AvutTHorities CITED

CasES

Pointer v. Texas, 380 U.S. 400 (1964) oc. ceeseeereees 15

United States v. Bishop, 412 U.S. 346 (1972) ............ 10, 16

United States v. Oates, 560 F.2d 45 (2d Cir. 1977) ..9,14

United States v. Sawyer, ........ Bd case. (7th Cir

PICT. Wisdiiostiddaahdebusebiasinting Abscieovscalusssichesabassbscedacesecnaibuses meee

United States v. Smith, 521 F.2d 957 (C.A.D.C.

TOP TET sasssicsdiiibishinisisedeciiniatsieenmaiiisceaphStrtas sauithaihs csnesonsebtcibininc 12, 15

ConstITUTIONAL Provisions, Statutes anp RuLES

US. Constitution; EE eae te 2,9

I ice 2

Be Ere IIE ineibincesbiibicicevenaceiadsseshnniniinissaensmash wsseoadty. Bp Op, BO

Federal Rule Of Evidence 801(¢) ......ccccsssssssescsssssesssees 3,12

Federal Rule Of Evidence 803(5) ......sssce « ...8, 9,11, 14

Federal Rule Of Evidence 803(6) ........ fmpessihlits snudbel 4,12, 14

Federal Rule Of Evidence 803(8) .............. 4, 9,11, 12,14, 15

In Toe

SUPREME COURT OF THE UNITED STATES

No.

UNITED STATES OF AMERICA,

Respondent,

vs.

RAYMOND SAWYER,

Petitioner.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR al

SEVENTH CIRCUIT

Petitioners respectfully pray that a Writ of Certiorari

issue to review the decision of the United States Court

of Appeals for the Seventh Circuit, rendered in the above-

entitled cause on August 16, 1979.

CITATIONS TO THE OPINIONS BELOW

The above-entitled cause was originally brought in

the United States District Court for the Northern District

of Illinois, Eastern Division. The trial was held before a

Jury, which, on July 18, 1978, found the defendant guilty.

No opinion was issued. The decision of the Seventh Cir-

cuit Court of Appeals, affirming the conviction, is not

yet reported. The jury verdict and the decision of the

Seventh Circuit are reproduced in the Appendix to this

Petition.

sais

JURISDICTIONAL STATEMENT

‘The jury verdict was rendered on July 18, 1978. A

timely motion for a new trial was made on July 27, 1978.

The motion was denied and final judgment of conviction

entered on August 21, 1978. The following day, August

22; 1978, the defendant filed notice of appeal. Oral argu-

ment was held on April 12, 1979, and the Court of Appeals

decision was announced on August 16, 1979. The defendant

; timely petitioned for rehearing, which was denied on

December 6, 1979. Pursuant to a further motion of the

petitioner herein, an order was entered staying the man-

date on December 21, 1979.

.. This Petition for Certiorari has been filed within thirty

days of the denial of rehearing, in accordance with Su-

preme Court Rule 22(2). Jurisdiction of this Court is

invoked under 28 USC $1254(1).

QUESTIONS PRESENTED -

I. Whether Federal Rule of Evidence 803(8) repre-

sents an exclusive conduit through which hearsay public

records and reports can be admitted as evidence.

II. Whether a defendant to a charge brought under

26 USC §7203 is entitled to have the jury instructed that

mens rea is an element necessary to establish the offense.

CONSTITUTIONAL AND STATUTORY PROVISIONS

: United States Constitution, Amendment 6:

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

— po

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

Counsel for his defense. :

26 U.S.C. $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 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 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 misdemeanor and, upon conviction thereof, shall

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

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

of prosecution. (Aug. 16,

Federal Rule of Evidence 801(c) :

“Hearsay” is a statement, other than one made by

the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter

asserted.

Federal Rule of Evidence 803(5):

A memorandum or record concerning a matter

about which a witness once had knowledge but now

- has insufficient recollection to enable him to testify

fully and accurately, shown to have been made or

adopted by the witness when the matter was fresh

in his memory and to reflect that knowledge correctly.

If admitted, the memorandum or record may be read

into evidence but may not itself be received as an

exhibit unless offered by an adverse party.

. i

EP

Federal Rule of Evidence 803(6) :

Records of regularly conducted activity—A memo-

randum, report, record, or data compilation, in any

form, of acts, events, conditions, opinions or diag-

noses, made at or near the time by, or from informa-

tion transmitted by, a person with knowledge, if kept

- in the course of a regularly conducted business

- getivity, and if it was the regular practice of that

- business activity to make the memorandum, report,

record, or data compilation, all as shown by the

testimony of the custodian or other qualified witness,

unless the source of information or the method or

circumstances of preparation indicate lack of trust-

worthiness. The term “business” as used in ‘this

paragraph includes business, institution, association,

profession, occupation, and calling of every kind,

whether or not conducted for profit.

Federal Rule of Evidence 803(8) :

Public records and reports.—Records, reports,

statements, or data compilations, in any form, of pub-

lic offices or agencies, setting forth (A) the activities

of the office or agency, or (B) matters observed

pursuant to duty imposed by law as to which matters

there was a duty to report, excluding, however, in

criminal cases matters observed by police officers and

other law enforcement personnel, or (C) in civil

actions and proceedings and against the Government

in criminal cases, factual findings resulting from an

investigation made pursuant to authority granted by

law, unless the sources of information or other cir-

cumstances indicate lack of trustworthiness.

STATEMENT OF FACTS

Raymond Sawyer, the defendant, resides with his wife

and three daughters in Winnetka, Illinois. He is an

accountant in private practice who specializes in personal

eee

_— on

and real property tax assessments. Although he has, from

time to time, prepared simple income tax X retire, he is

not a CPA.

In April, 1978, Sawyer was indicted by information

on two counts of violations, of 26 U.S.C. §7203, for failure

timely to file his tax returns for the years 1971 and

1972. Sawyer’s defense at trial was that his failure to file

owed to his diminished capacity, stemming from a greatly

impaired physical condition and his resultant deep-seated

apprehension of impending death. Such diminished capa-

city, Sawyer argued, rendered him incapable of forming

the necessary mens rea willfully to neglect his tax returns.

The evidence taken at trial established the nature and

history of Sawyer’s illness. In the beginning of 1970, Mr.

Sawyer noticed that he was suffering from hematuria.

He saw Dr. Wald who referred the defendant to Dr. John

Graham, a urologist affiliated with Evanston Hospital.

Dr. Graham, in turn, recommended that Mr. Sawyer have

a cystoscope taken (i.e., an X-ray of his kidneys, bladder

and urinary tract); subsequently, Dr. Wald informed the

defendant that the cystoscope failed to disclose the source

of his bleeding. Sawyer’s bleeding progressively worsened,

and he became concerned that such bleeding was a symp-

tom of cancer.

Mr. Sawyer then talked with Dr. Alfano, an opthalmolo-

gist on the faculty of Northwestern University, and per-

sonally acquainted with Mr. Sawyer for years, who

acknowledged the seriousness of hematuria and recom-

mended that Mr. Sawyer make an appointment. to see

Dr. Grayback, head of urology at Passavant Hospital.

The defendant saw Dr. Kropp, an’ associate of Dr.

Grayback, and Dr. Kropp reported to Dr. Alfano that he

thought Sawyer was suffering from nephritis (te.,

‘inflammation of the kidney affecting the structure...

being acute or chronic, and caused by infection, degenera-

tive process, or vascular disease. . .’).

When Mr. Sawyer learned of Dr. Kropp’s diagnosis,

his anxiety increased, since he recalled that a friend of

his had suffered from nephritis while still in high school

and had died of this disease five or six years later.

In early 1971, Mr. Sawyer returned to Dr. Kropp, who

gave him a urinalysis and blood test. Dr. Kropp recom-

mended that Mr. Sawyer see Dr. Lewis and have X-rays

of his kidney and urinary tract taken.

Dr. Lewis took such X-rays some time in 1971, but

they were of no avail in ascertaining the source of the

difficulty.

The defendant testified that throughout 1971 he had

suffered from frequent bleeding and also an ache in the

middle of his back, causing him to be chronically de-

pressed. Sawyer visited a psychiatrist on a number of

occasions during the first months of 1972, but the sessions

did not help improve his state of mind.

Once again he went to see Dr. Kropp, who referred

Mr. Sawyer to Dr. Simon of Passavant Hospital, a special-

ist in kidney and urology problems. When Dr. Simon

recommended that Mr. Sawyer undergo a biopsy of the

kidney, the defendant became convinced that he had

cancer. Dr. Alfano informed Mr. Sawyer that he should

not under any circumstances have a biopsy of his kidneys

taken, since a biopsy would leave permanent damage.

About this time, at the end of 1972, Mr. Sawyer also

began bleeding rectally. The defendant told his wife he

—

ed:

thought he was dying and so had taken a. partner. into

his business and had told his brother-in-law, ‘an attorney,

to look after his family if anything happened. to *him:

Because of his obsession with his disease and: enervating

apprehension of death, the defendant found it impossible

to sit down to work for the days that it would require

to organize his records so as to have his joint income

tax prepared for the year 1971. Therefore, the defendant

applied for three successive extensions of time to file his

1971 return with the explanation in each: “Due to internal

bleeding, taxpayer has not had time to care for his busi-

ness and personal responsibilities.” The Internal Revenue

Service granted his first two requests, but denied the third

on October 15, 1972, with the explanation that only if the

taxpayer was out of the United States would the Service

grant him an extension for longer than six months.

By 1974, Sawyer was convinced that he could no longer

live in such a state of anxiety and consulted a Dr. Spar-

berg, who referred him to Dr. Lewis, the same radiolggist

he had seen twice before, for X-rays. Some four years

after he had initially noticed blood in his urine, during

all of which time his bleeding had continued and increased,

and during all of which time the numerous physicians

consulted were unable correctly to diagnose the cause of

his discomfort, Dr. Lewis’ X-rays revealed that Sawyer

had a kidney stone. Sawyer was elated to learn his

problem to be no more than that. ay

His emotional crisis now at an end, and his physical

difficulties soon to be resolved, Sawyer, on March 7, 1974,

called a CPA, Robert Larkin, to arrange to have him

prepare his tax returns for the years 1971 and 1972 (Tr.

112-13), 7

The night of March 7 and continuously through March

10 Sawyer worked steadily at compiling his records in

order to present them to Larkin. On Monday, March 11,

Sawyer brought all of these papers to Larkin, who pre-

pared Sawyer’s returns that day. Sawyer mailed them

that evening. Even though Sawyer’s state of mind was

the only real issue to be decided, the jury was not

allowed to hear evidence that the admittedly tardy prepa-

ration of the 1971 and 1972 tax returns was coincidental

with the end of his mental and physical crisis.

REASONS FOR GRANTING THE WRIT

The question of whether Federal Rule of Evidence

(FRE) 803(8) represents an exclusive conduit through

which hearsay public records and reports, particularly

reports by police or other investigatory authorities, may

be received as evidence is a novel and substantial question

not yet presented to this Court. Resolution of the issue

will have great impact upon the conduct of criminal trials

in federal courts, so long as the Federal Rules of Evidence

govern those trials. The circuits have divided as to wheth-

er a report not admissible under FRE 803(8) may be re-

ceived under the exception in FRE 803(5). [United States

v. Oates, 560 F.2d 45 (2d Cir. 1977), holding that 803(8)

is exclusive; Umited States v. Sawyer, ....... 3 We dies (7th

Cir. 1979), holding that 803(5) may be utilized in the

alternative.] Petitioner herein contends that the plain

language of FRE 803(8), and the Congressional purpose

in enacting it compel the conclusion that the rule was

intended as an exclusive exception to the hearsay doctrine

in the case of public records and reports, and that a con-

trary conclusion would defeat utterly the intentions of

those who promulgated that rule. Petitioner further con-

tends that to allow data from investigative reports to be

admitted under 803(5) will effect an erosion of rights

guaranteed by the Confrontation Clause of the Sixth

Amendment to the Constitution.

The second question presented, whether or not mens rea

is an element of a “willful” failure timely to file income

tax returns, and whether or not the jury was properly

so instructed in this case, can hardly be considered novel.

This Court has often considered the question, and has

explicitly: held in United States v. Bishop, 412 U.S. 346

(1972) that “willfully” as used in criminal statutes of

the Internal. Revenue Code, had been‘ consistently interp-

reted as requiring an element of mens rea. The Petitioner

herein asserts that the instructions to the jury failed

adequately. to relate this necessary element, and that his

conviction: therefore cannot stand.

I.

BECAUSE FEDERAL RULE OF EVIDENCE 803(8)

REPRESENTS THE EXCLUSIVE CONDUIT THROUGH

WHICH HEARSAY PUBLIC RECORDS AND RE-

PORTS MAY BE RECEIVED AS EVIDENCE, AN IRS

AGENT’S INVESTIGATORY REPORT SHOULD NOT

HAVE BEEN ADMITTED UNDER FEDERAL RULE

£03(5) AND THE CONVICTION, BASED PRIMARILY

ON THAT REPORT, SHOULD NOT STAND.

Because the defendant stipulated that he had income

for the years 1971 and 1972, the only issue for the jury

to. decide at this trial was whether the defendant’s failure

to file his: returns when they were due for the years

1971 and 1972 was “willful” as required for convictions.

The only evidence that the prosecution presented in its

case in chief concerning the defendant’s willfulness was

the testimony of former Internal Revenue Service agent

Wayne-Schroeder. Schroeder, over the persistent and time-

ly objections of defense counsel, was allowed to testify

regarding an alleged telephone conversation that he had

had in September of 1973 with the defendant taxpayer

during which Sawyer is alleged to have stated that his

returns for i971 and 1972 had been filed. Sawyer denies

that such conversation took Place. .

— po

‘Schroeder, at the time of his testimony, had no indepen-

dent recollection concerning his alleged conversation with

Sawyer, nor after reviewing the file was his recollection

refreshed. The record of that. conversation -was- ina

referral report which had been prepared by Schroeder

approximately four months after the alleged conversation.

Schroeder testified that the referral report would have

been prepared from a history sheet compiled during the

pendency of the investigation. The history sheet, upon

which Schroeder stated that events were recorded, alleg-

edly contemporaneously was destroyed, in accordance

with IRS policy. At the trial, Schroeder read from the

referral report, which he remembered nothing shout

preparing. at 3

The Court of Appeals ruled that “Congress intended

to bar the use of law enforcement reports as a‘substitute

for the testimony of the officer,” and that 803(8) did

not disqualify the recorded recollection of a testifying

officer “when such recollections would otherwise be ad-

missible under Rule 803(5).” Thus, the Court of Appeals,

apparently conceding that the referral report was not

within the exception provided by 803(8), allowed the

prosecutor to sneak in through the window what he could

not get through the door. A fair reading of FRE 803(8),

and consideration of the intentions of the Congress which

promulgated that rule compel a contrary result. Petitioner

in fact contends that the testimony given by former

agent Schroeder should not have been admitted under

either exception to the hearsay rule.

The statement read by agent Schroeder was unques-

tionably an out of court statement offered for the truth

of the matter asserted, and thus was hearsay as defined

—12—-

in FRE 801(c). That statement, then, is inadmissible

unless it qualifies under an exception to the hearsay doc-

trine set out in the Federal Rules.

The hearsay exceptions enumerated in Rule 803, wherein

the availability of the declarant to testify is immaterial,

are, for the most part, an affirmation of well-recognized

common law exceptions to the hearsay doctrine, exceptions

which come to be accepted because of the: reliability in-

herent in such forms of testimony. Governmental reports

and records were, under the common law rules, admitted

under the “business records” exception [now codified as

FRE 803(6)]. See Unite.” States v. Smith, 521 F.2d 957

(D.C.Cir. 1975), at 963, citing cases decided in five

circuits where police records were admitted under the

“business records” exception, all prior to the adoption of

the Federal Rules of Evidence. Thus, when the Congress

enacted FRE 803(8), it was in effect codifying a recog-

nized exception to the hearsay rule.

The rules drafted by the Court and sent to Congress

included the following draft of 803(8):

(8) Public Records and Reports.—Records, re-

ports, statements, or data compilations, in any form,

of public offices or agencies, setting forth (A) the

activities of the office or agency, or (B) matters

observed pursuant to duty imposed by law or (C) in

civil cases and again the government in criminal

cases, factual findings resulting from an investigation

made pursuant to authority granted by law, unless

the sources of information or other circumstances

indicate lack of trustworthiness.

The house judiciary committee approved this version

without substantive change, but with the stated intention

— 18 —

that the phrase “factual findings” be strictly construed.

House Report on the Federal Rules of Evidence, p. 14.

However, during debate on the rules in the House, serious

objections were raised to the rule as reported from the

Judiciary Committee and amendments were incorporated

which altered both the common law rule and the rule

voted out by the judiciary committee, narrowing the

scope of the exception in criminal cases. Representative

Holtzman, who had expressed consistently 2 concern that

evidence in the form of government reports could be

admitted without a criminal defendant having any effec-

tive right of cross-examination, offered an amendment

which was adopted, restricting the exception on matters

observed to matters “as to which . .. there was a duty

to report.” The clear intent of such an amendment was

to narrow the parameters of the exception in 803(8).

A second amendment of great significance to the issue

brought before the Court in this petition was offered

by Representative Dennis, who also had served on the

Judiciary Committee. This amendment further narrowed

the hearsay exception to exclude “in criminal cases mat-

ters observed by police officers and other law enforcement

personnel.’’ The Dennis amendment was adopted; the

rule as enacted contains both the narrowing amendments,

clearly designed to limit the use of hearsay testimony

against defendants in criminal cases. Debate on each of

the amendments evidenced great concern as to the right

of cross-examination, a worthless right when the testi-

mony to be challenged is a document, and a concensus

of Congress that admission of police reports should not,

in criminal cases, be allowed. Congressional Record, pp.

i iat

» Thus, it is self-evident that Congress intended, by

adopting the Dennis Amendment to FRE 803(8), that in

criminal cases hearsay reports of matters observed by law

enforeement personnel would never be admitted. Such,

by design, was a protection Congress desired to afford

defendants in criminal cases. To allow, as did the trial

court and Court of Appeals, below, the admission of such

testimony under a different exception, does violence to

the intent of congress, contradicts the plain words of

FRE 803(8) and makes rules 803(5) and 803(8) obnoxious

to each other. Such was the conclusion reached in United

States v. Oates, 560 F.2d 45 (2d Cir. 1977). A holding

by this Court that the limitation, imposed by Congress

upon the hearsay exception of FRE 803(8) specially will

resolve a split of the circuits, affirm Congressional intent,

and will render inadmissible the only evidence heard at

trial against petitioner Sawyer on the issue of mens rea.

Petitioner Sawyer additionally contends that the evi-

dence read at trial by agent Schroeder was not within

the 803(5) exception in any event. That exception pro-

vides that the record from which the witness reads must

have been “made or adopted by the witness when the

matter was fresh in his memory... .” Agent Schroeder

read from a document prepared some four months after

his alleged conversation with Sawyer, and at a time when

he had no recollection at all of the conversation. The

agent’s testimony, then, was hearsay upun hearsay. FRE

803(5) cannot seriously be thought to comprehend the

admission of such testimony. :

Nor should the agent’s testimony be admitted under

exception 803(6), the so-called “Business Records” excep-

tion. Although police records were, before the adoption

a

|

of the Federal Rules of Evidence, regularly admitted

under the Business Records Act (now repealed, formerly

28 U.S.C. $1732), and in one case, United States v. Smith,

521 F.2d 957 (C.A. D.C. 1975), were admitted for use

agaist the government in a criminal prosecution, a cor-

rect reading of FRE 803(8) reveals that rule to be the

sole conduit through which police records should be re-

ceived in evidence.

Although petitioner Sawyer feels that it is unnecessary

to reach any constitutional questions in this case, it is

well to note that the interpretation of the Federal Rules

of Evidence given by the Seventh Circuit below, finding

as that tribunal did that records as to which no cross-

examination would be possible should be read before the

jury, and so finding in the face of a clear Congressional

madate to the contrary, places those rules in tension

with the Confrontation Clause of the Sixth Amendment

to the Constitution. This Court has been zealous in pro-

tecting the right of defendants in criminal cases to cross-

examine witnesses against them. In the seminal case of

Powter v. Texas, 380 U.S. 400 (1964), the Court said:

“There are few subjects, perhaps, on which this Court

and other Courts have been more nearly unanimous

than in their expressions of belief that the right of con-

frontation and cross-examination is an essential and

fundamental requirement for the kind of fair trial which

is this country’s constitutional goal.” 380 U.S. at 405. As

has been shown, FRE 803(8), as written and amended,

‘had as a major purpose the protection of the right to

cross-examine and confront adverse witnesses. Such a

dimunition of those rights as would be effected if the

decision of the Seventh Circuit below is accepted cannot

— on

be reconciled with this Court’s past decisions. For this,

and all the reasons cited before, the decision to admit

the testimony of agent Schroeder must be reversed.

I.

BECAUSE THE JURY WAS NOT INSTRUCTED THAT

MENS REA IS AN ELEMENT NECESSARY TO ES-

TABLISH THE OFFENSE CHARGED, AS THIS

COURT'S DECISIONS CLEARLY HOLD, THE CON-

VICTION CANNOT STAND.

Petitioner Sawyer was indicted on two counts under

26 U.S.C. §1703 for “willfully” failing to file his tax re-

turns for the years 1971 and 1972. On the issue of whether

Sawyer’s failure to file had been willful, the trial judge

instructed the jury as follows:

As used in the statute ... the word “willful”...

means voluntarily and purposeful and deliberate and

intentional as distinguished from accidental, inadver-

tent, a negligent. Government Instruction no. 32

(emphasis supplied).

The given instruction ignores, in the face of a long time

of decisions by this Court, the element of mens rea, and

should not be sustained.

In United States v. Bishop, 412 U.S. 346 (1972), the

ease history of the elements needed for a “willful” viola-

tion of the tax statutes was covered at some length. In

that opinion, it was said that:

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

“willfully” in these [tax] statutes generally annotes

a voluntary, intentional violation of a known legal

duty. It has formulated the requirement of willfull-

ness as “bad faith or evil intent” United States v.

Murdock, 290 U.S. [389] at 398, or “evil circumstances

rn

aM seek

of the taxpayer, United States v. Spies, 317 US.

[492; 1942] at 498... . It is not the purpose of the

system to penalize ... innocent errors made despite

the exercise of reasonable care. . . . The Court’s

consistent interpretation of the word “willfully” to

require an element of mens rea implements the per-

vasive intent of Congress to construct penalties that

separate the purposeful tax violation from the well

meaning but easily confused mass of taxpayers.

412 U.S. at 360, 361.

Clearly, it is essential, in order to make out a willful

violation of the tax statutes, that the government prove

that violation to have been voluntary, purposeful, inten-

tional, deliberate, and with evil motive. The charge to the

jury in Sawyer’s case neglected the latter element, and

in so doing was utterly prejudicial to Sawyer, who pleaded

his diminished capacity as a defense. He did not claim

that his failure to pay was the result of accident, inadver-

tence, or negligence, the grounds for exculpation given

the jury, but that his state of mind and, consequently,

which rendered him incapable of tending properly to his

affairs, and, consequently without the “evil motive” neces-

sary to establish the offense. Diminished capacity if

satisfactorily proven, has long been recognized as a de-

fense to any crime requiring mens rea for its commission.

By failing to instruct the jury as to Sawyer’s legitimate,

well-leaded, and only defense, the trial judge effectively

removed the case from the jury. As such, the ensuing

conviction, which was the only result possible under the

instruction as given, cannot stand.

neal

CONCLUSION

For all of the reasons set out above, the petitioner

respectfully requests that a Writ of Certiorari should

issue to review the decision of the Court of Appeals for

the Seventh Circuit. g

Respectfully submitted,

Wuuiam J. Harre

111 W. Washington Street

Chicago, Illinois

Tel. No.: 312-726-5015

Attorney for Petitioner

— 1a —

APPENDIX

Unitep Srates District Court

NortHern District Or ILuinois

Eastern Division

No. 78CR253

Unirep States Or AMERICA,

vs.

RayMonD SAWYER,

VERDICT

Filed July 18, 1978

We, the Jury, find the defendant Raymond Sawyer guilty

as charged in the indictment.

/s/ Henry L. Payne

Foreman

/s/ Edward O. Topor

/s/ Katherine Evans

/8/ Frances D. French

/s/ Micheal D. Henderson

/8/ Marlene Price

/s/ Raymond Nelson

/s/ Anne A. Fairbrother

/s/ Marilyn Krenter

/s/ Thomas Tuley

/s/ Arthur W. Weil

/s/ Joe Loveleor

~~

In THE

Unitep States Court Or AppgALs

For the Seventh Circuit

No. 78-2098

Unrrep States Or AMERICA,

Plaintiff-A ppellee,

v.

RaymMonp SAwYER,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 78-Cr-253—Bernarp M. Decker, Judge.

Arcurep Aprit 12, 1979—Dercipep Aveust 16, 1979

Before Castiz, Senior Circuit Judge, Swycrrt and

Baver, Circuit Judges.

Baver, Circuit Judge. The appellant Raymond Sawyer

was indicted by information on two counts of violating 18

U.S.C. § 7203 by failing to file timely income tax returns

for the calendar years 1971 and 1972. Sawyer pleaded not

guilty to the charges, but was found guilty by a jury. The

court sentenced him to a one-year term of imprisonment

on each count, with the sentences to run concurrently; in

addition, the court fined Sawyer $10,000 on Count T.

Sawyer now appeals.

In his first argument on appeal, Sawyer claims that the

jury was improperly instructed on the meaning of ‘‘will-

ful’’ as used in 26 U.S.C. § 7203, The court instructed

the jury as follows:

wail sien

As used in the statute ... the word ‘‘willful’’

means voluntarily and purposely and deliberate and

intentional as distinguished from accidental, inadver-

tent or negligent.

Now, the failure to do an act is willfully done if it

is done voluntarily and purposely and with a specific

intent to fail to do, what the law requires to be done;

that is to say, with a bad purpose to disobey and

disregard the law....

In essence, Sawyer argues that the jury should have been

instructed that his failure to file was not ‘‘willful’’ if it

resulted from an ‘‘innocent reason’’ or ‘‘justifiable ex-

cuse.’? The omission of this language, Sawyer maintains,

prevented the jury from considering his only defense,

namely, that his physical and emotional condition rendered

him incapable of filing his income tax returns on time.

However, in an en banc decision, this Court approved

a jury instruction on ‘‘willfulness’’ that is virtually iden-

tical to the one given in this case. United States v. Mc-

Corkle, 511 F.2d 482, 484 n.2 (7th Cir. 1975), cert dented,

423 U.S. 826 (1975). Like Sawyer, McCorkle argued that

the instructions ‘‘had the effect of eliminating justifiable

excuse as a consideration in resolving the issue of will-

fulness.’’ Id. at 486. In rejecting the claim, the Court

noted that only a limited set of circumstances could legally

justify a failure to file— namely, ‘‘an inadvertent failure

to file or a bona fide misunderstanding as to [defendant’s]

... duty to make a return.’’ The Court then reasoned that

‘*[slince 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.’’ Id. Finding this logic applicable

to the case at hand, we hold that the trial court did not

commit reversible error in its instructions to the jury on

the meaning of ‘‘willfuiness,’’

nist eee

Sawyer next challenges the trial court’s instruction to

the jury on false exculpatory statements. That instruc-

tion read:

Now, evidence has been introduced that the defen-

dant made certain exculpatory statements, which were

outside the courtroom, when he was interviewed, ex-

plaining his actions to show that he was innocent of

the crime charged in an [sic] information. Now, evi-

dence contradictory [sic] such statements has also

been introduced and if you find that the exculpatory

statements were untrue and that the defendant made

them voluntarily and with knowledge of their falsity,

you may consider such statements as circumstantial

evidence of the defendant’s consciousness of guilt.

This Court has recognized that a defendant’s false, out-

of-court exculpatory statements may be taken as evidence

of guilt. ©2e, e.g., United States v. Riso, 405 F.2d 134,

138 (7th Cir. 1968); Untted States v. Lomprez, 472 F.2d

860, 863 (7th Cir. 1972). The appellant argues, however,

that the instruction did not require the jury to determine

that he did in fact make the alleged statements. We are

not persuaded by this claim, for, in our view, such a re-

quirement is implicit in the language of the instruction,

particularly since the appellant argued the issue to the

jury. We thus find no grounds for reversal in the trial

court’s instruction on exculpatory statements.

The appellant next argues that the district court im-

properly admitted evidence of an alleged phone conver-

sation between Sawyer and Revenue Officer Schroeder.

It is Sawyer’s position that the conversation was not

properly authenticated and that a memorandum. which

Schroeder prepared on the conversation was inadmissible

hearsay. )

On the issue of authentication, there is sufficient cir-

cumstantial evidence, in our view, to satisfy Rule 901(6)

of the Federal Rules of Evidence, for it is undisputed

that the number listed in the agent’s report was Sawyer’s

ae ee

business number, and the personal nature of the infor-

mation sought makes it highly unlikely that anyone else

would have answered for Sawyer.

The admissibility of the agent’s report, however, raises

a more difficult issue. It would seem, as the government

argues, that the report satisfies the criteria for admissi-

bility as a recorded recollection under F.R.Ev. 803(5). The

agent testified that he no longer had a recollection of the

conversation and that the history sheet was prepared im-

mediately after the conversation. In addition, the agent’s

testimony tended to show that both the original notation

and its later transcription to the referral report were ac-

curate. |

Nevertheless, Sawyer claims that the referral /report

should have been excluded because it represents the report

of a law enforcement officer. Relying heavily on United

States v. Oates, 560 F.2d 45 (2n Cir. 1977), Sawyer argues

that law enforcement reports that are barred under the

‘public records’’ exception of F.R.Ev. 803(8) are also in-

admissible under any other exception to the hearsay rule.

In Oates, the Second Circuit found ‘‘a clear congressional

intent that reports not qualifying under F.R.Ev. 803(8)

(B) or (C) should, and would, be inadmissible against de-

fendants in criminal cases.’’ 560 F.2d at 72.

We are not persuaded, however, that the restrictions

of Rule 803(8) were intended to apply to recorded re-

collections of a testifying law enforcement officer that

would otherwise be admissible under Rule 803(5). In our

view, the legislative history of Rules 803(8)(B) and (C)

indicates that Congress intended to bar the use of law

enforcement reports as a substitute for the testimony of

the officer. Thus, Representative Dennis, in offering the

amendment which excluded law enforcement reports from

admission at criminal trials, stated:

What I am saying here is that in a criminal case,

. we should not be able to put in the police report

to prove your case without calling policeman, I thiak

;

’ '

—— - = i" Fe lati ail ey ee e)

snail

in a criminal case you ought to have to call the police-

man on the beat and give the defendant the chance

to cross examine him, rather than just reading the

report into evidence. That is the purpose of this

amendment.

120 Cong. Rec. H 564 (Feb. 6, 1974). And the Oates court

itself identified the loss of confrontation rights as the

underlying rationale for Rule 803(8):

[The] pervasive fear of the draftsmen and of Con-

gress that interference with an accused’s right to

confrontation would occur was the reason why in

criminal cases evaluative reports of government

agencies and law enforcement reports were express-

ly denied the benefit to which they might otherwise

be entitled under F.R.Ev. 803(8).

560 F.2d at 78. We therefore decline to hold that Rule

803(8) disqualifies the recorded recollections of a testi-

fying law enforcement officer, when such recollections

would otherwise be admissible under Rule 803(5). Accord-

ingly, since the hearsay declarant in this case was avail-

able for cross-examination, and since the referral report

would otherwise qualify as a recorded recollection, we

find no reversible error in the admission of the report.

Finally, Sawyer claims that the trial court erred in

excluding proof that he had eventually paid his taxes for

1971 and 1972. However, as this Court noted in United

States v. Ming, 466 F.2d 1000, 1005 (7th Cir. 1972), ‘‘ [i]t

has been clearly established that late filing and late tax

payment are immaterial on the issue of willfulness in a

Section 7203 prosecution.’? We see no merit in the ap-

pellant’s argument that this principle is somehow in-

applicable to the case at hand because the government,

was allowed to prove the amount of taxes that Sawyer

owed for 1971 and 1972.

We have examined the appellant’s other arguments and

find no grounds for reversal. The judgment of the district

court is therefore ArrmMep. .

re one

Swvezrr, Circwit Judge, concurring in the result. With

some reluctance, I concur in the affirmance of defen-

dant’s conviction. My reluctance stems from the admis-

sion of Revenue Officer Schroeder’s reading from his.

referral report dated January 14, 1974 which stated that

‘‘a phone call was made to the taxpayer’s husband who

stated that the 1040 returns . . . 1971 and 1972 had been

filed.’’

An examination of the referral report shows that it

comes within the literal definition of records excluded

pursuant to section 803(8)(B) of the Federal Rules of

Evidence: ‘‘[MJatters observed pursuant to duty imposed

by law as to which matters there was a duty to report,

excluding, however, in criminal cases matters observed by

police officers and other law enforcement personnel.’’ (em-

phasis added).

The problem here is whether section 803(8)(B) ‘is in-

applicable because of the operative effect of section 803(5)

which reads in its entirety:

Recorded recollection. A memorandum or record

concerning a matter about which a witness once had

' knowledge but now has insufficient recollection to

enable him to testify fully and accurately, shown to

have been made or adopted by the witness when the

matter was fresh in his memory and to reflect that

knowledge correctly. If admitted, the memorandum

or record may be read into evidence but may not itself

be received as an exhibit unless offered by an adverse

party.

Officer Schroeder testified that he obtained defendant’s

telephone number from defendant’s wife in September

1973 and that it was his routine practice to attempt to

contact a taxpayer under investigation by telephone in

such circumstances. He further testified that it also was

routine to record all taxpayer contacts on a history sheet

and that notations reflecting phone calls would be made

immediately after the calls were completed.

joe, eae

Officer Schroeder said that he had no independent re-

collection of his phone conversation with defendant and

that the history sheet on defendant had been destroyed

after he had closed his part of the investigation. He tes-

tified that he had used the history sheet to prepare his

referral report—the disputed document.

Although we are dealing with a record of a record, not

made contemporaneously with the event, and in a sense

double hearsay, I am satisfied that the requirements of

section 803(5) were met. Because Schroeder was available

as a witness for both foundation purposes and cross-

examination, the hearsay was admissible under the Fed-

eral Rules of Evidence and the defendant was not dep-

rived of the right of confrontation. If Officer Schroeder

had not been available for cross-examination, defendant’s

right of confrontation would have been violated and a

different result would have been compelled. See United

States v. Oates, 560 F.2d 45 (2d Cir. 1977).

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

— 9a —

Unitep States Court or APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

December 6, 1979

Before

Hon. Larsam CastLe, Sentor Circuit Judge

Hon. Luter M. Swycert, Circuit Judge

Hon. Wituiam J. Bauer, Circuit Judge

No. 78-2098

Untrep States Or AMERICA,

Plaintiff-A ppellee,

vs.

RayMonp SAWYER, ”

Defendant-A ppellant.

On Petition for Rehearing :

ORDER

On consideration of the petition for rehearing filed in

the above-entitled cause by Defendant-Appellant Raymond

Sawyer, all of the judges on the original panel having

voted to deny the same, |

IT IS HEREBY ORDERED that the aforesaid petition

for rehearing be, and the same is hereby, DENIED,

oii lia

Untrep States Court or APPEALS

For the Seventh Cireuit

Chicago, Illinois 60604

December 21, 1979

Before

Hon. Wriuiam J. Bauer, Circmt Judge

BI iaitiiccids seaside Riiualitcbiceadctdcbuibisecs

BD. ina ccnvcchccstceicbiettideWetissvotesstecticsscebcetnatinecen

No. 78-2098

Untrep States Or AMERICA,

Plaintiff-A ppellee,

vs.

RayMonp SAwYER,.

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Hlinois Eastern Division

No. 78-CR-253

Judge Bernarp M. DEcKER

This matter comes before the court on the “MOTION

TO RECALL THE MANDATE” filed herein on Decem-

ber 18, 1979 by counsel for the defendant-appellant. This

court being fully advised of the circumstances of this

matter,

IT IS ORDERED that the mandate of this court,

previously issued on December 14, 1979, is hereby

RECALLED and STAYED until January 21, 1980. The

clerk of the district court is hereby directed to retain

the record of this appeal, unless directed otherwise by

further order of this court.