# Petition — Sawyer v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 445 U.S. 943

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1514%3A1. Public record. Not legal advice.