# Petition — Schwenk v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 452 U.S. 906

## Text

—— “ eS

re} 0 7 ] 4 8 0 Office-Supreme Court, U.S,

FILED

APR 13 1981
IN THE

ALEXANDER L. STEVAS,
SUPREME COURT OF THE UNITED STATES CLERK

NO.

OCTOBER TERM, 1981

PHILIP J. SCHWENK,
Petitioner,
vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIGHTH CIRCUIT

Douglas W. Thomson
DOUGLAS W. THOMSON
LAW FIRM
Suite 1530
55 East Fifth Street
Saint Paul, Minnesota 55191
(612) 227-0856

Counsel for Petitioner

QUESTION PRESENTED

Whether Petitioner's due process
rights under the Fourteenth Amendment
were violated when the government did
not sustain its burden of proving beyond
a reasonable doubt that Petitioner was
guilty of failing to file federal income

tax returns.

TABLE OF CONTENTS

° Page

Opinions eee teeter weet eee e eee eter ene 1
MEPIBGICCION wccccccccecsesscsseun ne eee 2
Buestions Presented ..cccccsesesteeeee tee 2
Constitutional Provisions Involved ....... 3
Statutory Provision ccccsscevscessbeveuenue 3
Statement .....e0. ccoceceeescceseeseee eee 4

Reason for Granting Certiorari ....... ree 6

~ Conclusion eoeeefefriee eee #© # © @ @ ee ee ee oe Oe ee Oe 12

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CITATIONS

Page (s)
CONSTITUTION:
Amendment XIV ..ccccccccccccccvcs ecoccccee: 38
CASES:

Bronston v. United States, 409 U.S.

er CAT a? ce bed 666 8F 60S 00 64 6048S 6 068 6
Coffin v. United States, 156 U.S.

0 MS i § 0 ee oe
Glasser v. United States, 315 U.S.

an CEs Ses sé wees 66 66s0 6 aoe ee ee
In Re Winship, 397 U.S. 358
a Gh és aseh ene 6 0a 6 Be bheeb bee eben ee ee 7

Jackson v. Virginia, 443 U.S. 307,
= BAT (A979) cccccccccccencecccccescccsces S, il
. Johnson v. Louisiana, 406 U.S. 356,

co wo

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& 362 (1972) oeeeneeeeeveeeveeeeeeeeeeeeeeee 10

U.S. v. Bishop, 412 U.S. 346

(1976) eeee3s5ceee#ererererege#eegentreeneeeeee#ee#eeeee##e#e«#e#e#*« * ll
United States v. Pomponio, 429 U.S.

10 (1976) eoeeeeveeeeeeeeeeeeeeeeeeeeeeeee 11
STATUTES:
26 woitet. §7203 eoeeee#eeefeeeee oe wneeeeeeeeetee. 3, 5
26 Dametce §7206 e*eeneeeeeeegeee eoeeeeee#e#es#e#ee#ee#e#e 11

a

IN THE
SUPREME COURT OF THE UNITED STATES
NO.

OCTOBER TERM, 1981

PHILIP J. SCHWENK,
Petitioner,

vs.

UNITED STATES OF AMERICA,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

The Petitioner, Philip J. Schwenk,
respectfully prays that a Writ of Certiorari
issue to review the judgment of the United States
Court of Appeals for the Eighth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals is not

yet reported. The slip opinion is found in the

Appendix. The District Court filed no opinion.

JURISDICTION

The judgment of the Court of Appeals was
entered on February 19, 1981. A petition for
rehearing was denied on March 13, 1981. (The
order denying the rehearing is included in the
Appendix). This petition is filed within thirty
days of the latter date. This Court's jurisdic-
tion is invoked under 28 U.S.C. §1254. The
District Court's jurisdiction was invoked by

indictment.

QUESTION PRESENTED

Whether Petitioner's due process rights
under the Fourteenth Amendment were violated
when the government did not sustain its burden
of proving beyond a reasonable doubt that
Petitioner was guilty of failing to file federal

income tax returns.

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment XIV

. Section I. All persons born or naturalized
in the United States, and subject to the jurisdic-
tion thereof, are citizens of the United States
and of the state wherein they reside. No state
shall make or enforce any law shall abridge
the privileges or immunities of citizens of the
United States; nor shall any state deprive any
person of life, liberty, or property without
due process of law; nor deny any person within
its jurisdiction the equal protection of the
laws.

STATUTORY PROVISION

26 U.S.C. §7203:
Any person required under this title to

pay any estimated tax or taxes, or required

by this title or by regulations made under
authority thereof to make a return (other

than a return required under authority of
§6015), keep any records, or supply any infor-
mation, who willfully fails to pay such
estimated tax or taxes, make such a return,
keep such records or supply such information
at the time or times required by law or regula-
_ tions 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 one year, or both, together with the
costs of prosecution.

STATEMENT

The evidence of the challenged conviction
appears briefly in the opinion of the Eighth

Circuit attached in the appendix hereto. To

— ee re ee em ee ee el nk ee oe. eee ee em ie te we en we —

avoid needless prolixity, set forth below are
only the facts pertinent to sien specific issues
raised in this petition. Petitioner was indicted
with four counts of failing to file income tax
returns for the years 1973, 1974, 1975 and

1976, in violation of 26 U.S.C. §7203. After
extensive jury deliberation, Petitioner was
convicted on the counts relating to 1975 and
1976.

The evidence at trial was introduced
regarding Petitioner's limited formal education,
disorganized and incomplete financial records,
demanding occupations of farming, crop dusting,
and chemical sales, and a heavy responsibility
for providing for his wife and eight children.
As a result of these domestic and business

pressures, Petitioner neglected to file his

income tax returns.

On appeal to the Eighth Circuit, Petiticner
argued the evidence presented did not support
the jury's finding of willful intent. The
Eighth Circuit disagreed, holding that Petitioner's
failure to file income tax returns was a
conscious decision not to comply with the
requirements of the Internal Revenue Code.
slip op. page 3. The Circuit Court also noted
Petitioner's defense of a hona fide misunder-
standing as to his duty to make a return
was not believed by the jury and that as a
result, the jury's verdict would not be
disturbed.

REASON FOR GRANTING CERTIORARI

The decision of the Eighth Circuit Court
of Appeals was contrary to the due process

clause of the Fourteenth Amendment. The Circuit

7 sates enstdientaniiemetieien tne iti ee e . 2 a

Court affirmed Petitioner's convictions where,
on the record, the convictions were not supported
by substantial evidence.

In Re Winship, 397 U.S. 358 (1970), this

Court reversed a New York Court decision which
has held a juvenile charged with a crime could
be found guilty by a mere preponderance of the
evidence. 397 U.S. at 360. This Court found
the standard of proof; beyond a reasonable
doubt applied to juvenile hearings as well.
This Court reaffirmed its dedication to the
historical standard of proof used in criminal
trials.

The reasonable-doubt standard
plays a vital role in the
American scheme of criminal
procedure. It is a prime
instrument for reducing the
risk of convictions resting
on factual error. The
standard provides concrete

substance for the presumption
of innocence -- that Bedrock
‘axiomatic and elementary'
principle whose ‘enforce-
ment lies at the foundation
of the administration of

our criminal law.'

397 U.S. at 363 quoting Coffin v. United States,

156 U.S. 432, 453 (1895)

This Court justified the reasonable doubt

standard:

The requirement of proof beyond
a reasonable doubt has this
vital role in our criminal
procedure for cogent reasons.
The accused during a criminal
prosecution has at stake
interest of immence importance,
both because of the possibility
that he may lose his liberty
upon conviction and because

of the certainty that he

would be stigmatized by the
conviction. According,

a society that values the

good name and freedom of

every individual should not
condemn a man for commission

of a crime when there is

—-= ee ee ee -— -- —- re tee = - —_———

reasonable doubt about his guilt.
In Re Winship, 397 U.S. at 363-364. <-

Even with the reasonable doubt standard,
there are instances, unfortunately, when an
innocent party is convicted of a crime.

[A] properly instructed jury
may occasionally convict
even when it can be said
that no rational trier of
fact could find guilt
beyond a reasonable doubt...
In a Federal trial, such

an occurrence has tradi-
tionally been deemed to
require reversal of the
conviction.

Jackson v. Virginia, 443 U.S. 307, 317 (1979);

Glasser v. United States, 315 U.S. 60, 89 (1942);

Bronston v. Un’ted States, 409 U.S. 352 (1973)

This Court's inquiry on review on claims
of sufficiency "is whether, after viewing the
evidence in the light most favorable to the

prosecution, any rational trier of fact could

10

have found the essential elements of the crime

beyond a reasonable doubt." Jackson v. Virginia,

443 U.S. at 319; Johnson v. Louisiana, 406 U.S.

356, 362 (1972)

Petition was found guilty where the evidence
presented at trial failed, by any reasonable
interpretation, to support the verdict: This
is not a case of a voteedae individual, who,
with deliberate calculation, decided to evade
the filing requirements of the Internal hevenue
Code. Nor is this a case where the individual
has so much income and therefore taxes due and
owing, that he does not file for evasion purposes.
And this is not a case where the individual tries,
through manipulative accounting procedures, to
somehow defeat his obligations to pay taxes.

This is the case of an individual who had
no taxes due and owing for the years 1975 and

1976. Petitioner failed to file through neglect

11

and ignorance and because of the pressures of
extraordinary financial obligations. There is
an absence of intent here normally seen in
failing to file cases. |

In United States v. Pomponio, 429 U.S. 10

(1976), this Court held that willfully as used
in 26 U.S.C. §7206 "Simply means a voluntary,
intentional violation of a known legal duty."

429 U.S. at 12; See also U.S. vs. Bishop, 412

U.S. 346 (1976).

The intent evidence of a "voluntary intentional
violation" of the filing requirements is clearly
lacking on the record. This Court has recognized
that a jury may occasionally convict where "no

rational tryer of fact could find guilt." Jackson

vs. Virginia, supra, 443 U.S. at 319. Such is

the case with the Petitioner.

12

CONCLUSION

Based upon the foregoing, it is respectfully
submitted that the Petition for Writ of Certiorari
be granted.

Respectfully submitted,

DOUGLAS W. THOMSON
LAW FIRM

By

DOUGLAS W. THOMSON
Suite 1530
55 East Fifth Street
St. Paul, Minnesota 55101
(612) 227-0856

Counsel for Petitioner

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

United States of America,
Appellee, Appeal from

the United

States District

Court, District

of Minnesota

Vv.

Philip J. Schwenk,

+e ee HH

Appellant.

Submitted: February 11, 1981
Filed: February 19, 1981

Before ROSS, HENLEY and MCMILLIAN,
Circuit Judges.

PER CURIAM.

Philip J. Schwenk apveals from the
1
judgment of the district court convicting

1

The Honorable Harry H. MacLaughlin,
United States District Judge for the
District of Minnesota.

A-2

him of two counts of willful failure
to file income tax returns for tax
years 1975 and 1976 in violation of

26 U.S.C. § 7203. He was sentenced

to one year imprisonment and fined
$10,000.00 on one count and received a
$10,000.00 fine and a suspended one
year term of imprisonment on the

other count. Appellant was also
sentenced to three years probation
following his imprisonment. We affirm
the conviction on both counts.

On appeal, Schwenk concedes that
the government established that he was
required to file returns for 1975 and
1976 and failed to do so. He contends,
however, that the evidence was insufficient
to prove that he willfully failed to file
the required returns. Appellant rests
this contention on two grounds: (1)

that the evidence fails to establish

A-3

the element of willfulness and (2)
acquittal on two counts negate a finding
of intent on the remaining counts.

At trial, Schwenk raised the
defense that he acted through negligence
and careless disregard rather than
willfulness. After introducing evidence
of appellant's limited formal education,
disorganized and incomplete financial
records, demanding occupations of
farming, crop dusting, and chemical
sales, and heavy responsibility of
providing for his wife and eight children,
the defense argued to the jury that

these domestic and business pressures

2

Schwenk was charged with four counts
of failing to file income tax returns
for 1973, 1974, 1975 and 1976. After a
jury trial, he was acquitted on the
counts relating to 1973 and 1974 and
convicted on the two remaining counts.

A-4

pressures caused this inadvertent
failure to file income tax returns.
On appeal, Schwenk argues that this
careless disregard of his dyty to file
cannot be equated with the deliberate
and intentional failure to file needed
to establish willfulness.

This Court has held that to
establish willfuness the government
is not required to "prove anything
beyond establishing that defendant's
action was deliberate, intentional and
without justifiable excuse, or otherwise
stated, a voluntary, intentional
violation of a known legal duty."
United States v. Francisco, 614 F.2d
617, 618 (8th Cir. 1980); United States
v. Rifen, 557 F.2d 1111, 1113 (8th Cir.
1978); United States v. Pohlman, 522

F.2d 974, 977 (8th Cir. 1975) (en banc),

A-5

cert denied, 423 U.S. 1049 (1976),

cited with approval in United States

v. Pomponio, 429 U.S. 10, 12-13 (1976).
The court also has recognized that "a
careless or reckless disregard does not
elevate a defendant's conduct to ‘wilful'
as that term is employed in §7203."
United States v. Bengimina, 499 F.2d
117, 119 (8th Cir. 1974). The evidence
in the instant case, however, clearly
establishes that Schwenk's failure to
file resulted from a deliberate, intent-
ional decision not to file sek dekuene.
Appellant's failure to file for four
consecutive years is strong evidence
that suggests a pattern of intentional
conduct ether than inadvertence.
Schwenk did not file returns for tax
years 1973 through 1976 until January,

1979, thirteen months after the Internal

A-6

Revenue Service began an investigation
of his failure to file. In addition,
Paul A. Wheeler, a criminal investigator
for the Internal Revenue Service, and
William Skoglund, a friend of appellant
who prepared the late returns, testified
that appellant admitted he knew he should
have filed returns for the years in
question. Further, Helen Jensen, whom
Schwenk hired to organize his income
expense records in 1975, testified that
Schwenk stated that he did not file returns
because "he had a large family, he didn't
feel he had much of an income, and he
didn't think that the government was
going to tell him what to do."

Appellant offers may canis for
his failure to file, but these reasons
are irrelevant under section 7203

because the prosecution established

A-7

that he made a conscious decision: not

to comply with the requirements of the
law. See United States v. Matosky, 421

| F.2d 410, 413 (7th Cir.), cert. denied,
398 U.S. 904 (1970). Since Schwenk
failed to show inadvertent or negligent
conduct, only a bona fide misunderstanding
about his duty to make a return would
constitute a justifiable excuse for his
failure to file. See United States v.
McCorkle, 511 F.2d 482, 486 (7th Cir.)
(en banc), cert. denied, 423 U.S. 826
(1975); United States v. Matosky, supra,
421 F.2d at 413. Appellant raised the
defense of good faith misunderstanding

of the law by presenting evidence showing
that he was unaware that he could file
returns without paying any tax due at

the time of filing. It is apparent,

however, that the jury did not believe

A-8

this assertion and it was not required
to do so.

Finally, appellant argues that
because his acquittal for failing to
file in 1973 and 1974 was based on the
same evidence that led to his conviction
for the other years, the jury's inconsis-
tent verdicts negate the finding that
he willfully failed to file returns for
1975 and 1976. First, the court notes
and appellant acknowledges the general
rule in this circuit that "consistency
between the verdicts on a multiple-count
indictment is unnecessary when a defendant
is convicted on one or more counts but
acquitted on the remainder." United
States v. West, 549 F.2d 545, 553 (8th
Cir.), cert. denied, 430 U.S. 956 (1977).
More important, the evidence leading to

Sch.vrenk's conviction for 1975 and 1976

A-9

differs materially from the evidence
presented for tax years 1973 and 1974.
Schwenk reported losses for 1975 and
1976 and therefore did not owe any
taxes. By appellant's own figures on his
late returns for 1973 and 1974, however,
he owed $5,261.00 in taxes for 1973

and $21,281.00 for 1974. He contends
the jury acquitted him of the charges
relating to 1973 and 1974 because it
necessarily believed his defense of
good faith misunderstanding that he

was required to pay taxes due when

he filed but was unable to do so. In
light of evidence that Schwenk had
$6,985.00 in his checking account

on April 15, 1974 and $12,000.00 on

the following day and a balance of
$23,000.00 on April 11, 1975, this

contention is not airtight. While the

A-10

jury could have accepted his defense
for years when he owed substantial amounts
in taxes, it reasonably could have
disbelieved the defense for the two
years when he had no tax liability.
See United States v. McCorkle, supra,
511 F.2d at 486. Thus, in the circum-
stances of this case, acquittal for
failing to file for the 1973 and 1974
tax years does not negate a finding of
willfulness for 1975 and 1976 because
the evidence supvorting conviction
differs from the evidence resulting in
acquittal. See United States v. Williams,
470 F.2d 915, 918-19 (2a Cir. 1972);
Batsell v. United States, 403 F.2d 395,
400 (8th Cir. 1968), cert. denied,
393 U.S. 1094 (1969)

The judgment is affirmed.

A true copy.

A-11

Attest:

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

A=-12

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 80-1929 September Term, 1980
United States of America, )
)
Appellee, ) Avpeal from
) the United
vs. ) States
) District
Philip J. Schwenk, ) Court,
) District of
Appellant. ) Minnesota

Petition of appellant for rehearing
filed in this cause having been considered,
it is now here ordered by this Court
that the same be, and it is hereby denied.

And it is further ordered by the
Court that appellant's request for

stay of mandate is denied.

March 13, 1981

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1653%3A1. Public record. Not legal advice.