# Record and brief — Middlebrook v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0394%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1981 - **Citation:** 454 U.S. 1123 ## Text UONag Oftice-Supreme Court, U.S, 81-557 FILED suuieedseeseecseceeecaceveesetees ee ALEXANDER L. STEVAS, NO CLERK THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1981 <<< = Se eo eee Se ee Ke Ke ee KE er er er Er er er Kr Er er eK Ke er er ee | i ed KIMBROUGH G. MIDDLEBROOK, PETITIONER VERSUS UNITED STATES OF AMERICA, RESPONDENT PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT RICHARD L. STRADLEY Counsel for Petitioner 4515 Miller Creek Road Missoula, Montana 59803 Phone: (406) 251-4034 THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1981 KIMBROUGH G. MIDDLEBROOK, PETITIONER VERSUS UNITED STATES OF AMERICA, RESPONDENT PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT RICHARD L. STRADLEY Counsel for Petitioner 4515 Miller Creek Road Missoula, Montana 59803 Phone: (406) 251-4034 QUESTIONS PRESENTED FOR REVIEW I. DID THE TRIAL COURT ERR IN NOT DISMISSING THE § 7203 CHARGE BASED ON THE FIFTH AMENDMENT CONFLICT BETWEEN § 7203 AND § 7205? Petitioner says yes. II. DID THE COURT'S REFUSAL TO INSTRUCT THE JURY AS REQUESTED DENY THE PETITIONER HIS RIGHT TO A “GOOD FAITH" DEFENSE UNDER 26 USC §§ 7203 and 7205? Petitioner says yes. III. DID THE TRIAL COURT ERR IN NOT ALLOWING THE PETITIONER TO DEVELOP HIS THEORY CF DEFENSE BY REFUSING TO LET HIM TESTIFY ABOUT WHAT HE RELIED UPON? Petitioner says yes. IV. DID THE TRIAL COURT ERR IN NOT DISMISSING THE CHARGES BASED UPON THE VAGUENESS AND AMBIGUITY IN THE LAW RE- QUIRING FILING OF INCOME TAX RETURNS AND THE LAW CONCERNING FILING W-4 FORMS? Petitioner says yes. V. DID THE TRIAL COURT ERR IN OVERRULING PETITIONER'S MOTION TO SUP- PRESS? Petitioner says yes. ii TABLE OF CONTENTS Questions Presented For Review Table of Contents Table of Authorities Opinion Below Jurisdiction Constitutional Provisions And Statutes Involved Statement of the Case Reasons For Review I. Il. Ill. IV. A. The § 7203 Count B. The § 7205 Counts V. Conclusion Affidavit of Service Appendix Constitution, Fourth Amendment iii A-1 (Table of Contents - Cont.) Appendix (cont. ) Constitution, Constitution, Constitution, Constitution, Constitution, 26 USC 26 USC 26 USC 26 USC 26 USC 26 USC § ana @Q@ 7203 7205 3402 6012 6201 6203 Fifth Amendment Sixteenth Amendment Article I, § 2, ¢1.3 Article I, § 8, cl.1 Article I, § 9, c1.4 Government's Instruction # 14 Government's Instruction # 17 Government's Instruction # 18 iv A-8 A-12 A-13 TABLE OF AUTHORITIES Cases Page American Airways vy. Wallace, 57 Fed 77 POPP Ts Yr rer rTTTe 31 Arnstein v. McCarthy, 254 US 71, GT SCt 26, 65 LEd 138 (1920)..... 6 Bishop v. U. S., 412 US 346, 93 SCt 2008, 30 LEd2d 941 (1973)....20,23 Brushaber v. Union Pacific R.R.Co., , t , 00. LEd 493 (1915) -ceeeevccces 28,29, 30 Cooley v. U. S., 501 F2d 1249 (9th r. ), cert den, 419 US TURD. FISTS Po cccccvcesccccecoss sont Counselman v. Hitchcock, 42 US 547, T2 SCt 195, 35 LEd 1110 SUMED oes cescsocccccocscoccccseces 6 Dunn v. U. S., 442 US 100, 99 SCt , 60 LEd2d 723 (1979)..+.+-+25 East Ohio Gas Co. v. Tax Commissioner of Ohio, 43 Fed 171 (1930)--+++e31 Flint v. Stone Trace Co., 220 US 107, t » 55 LEd 389 (1910) occevevevecesevesecesvees -31 Garner v. U. S., 424 US 648, 96 SCt 1178, 47 LEd2d 370 (1976)..-15, 16,17 Haynes v. Oradell, 425 US 610, 96 SCt 1755, GO LEd2d 243 (1976)+--+++- 24 Haynes v. U..S., 390 US 85, 88 SCt 772, v (Table of Authorities - Cont.) Page 19 LEd2d 923 (1968)........ 9,10,12 Hoffman v. U. S., 341 US 479, 71 SCt BiG, 95 LEd 1118 (1951)......... 6 Leary v. U. S., 395 US 6, 89 SCt 1532, d 57 (1969)...... voeSs 10, 12 Lefkowitz v. Turley, 414 US 70, 94 SCt 316, 38 LEd2d 274 (1973)..... 8 Marchetti v. U. S., 390 US 39, 88 SCt “697, 19 LEd2d 889 (1968)..... 11,12 Murdock v. U. S., 290 US 389, 54 SCt P LEd 381 (1933)....13,18,22 Penn Mutual Indemnity Company (Dissol- ve v. Commissioner, 32 —---—_ Tax Court >} SS ee -32 Pollock v. Farmers’ loan & Trust Co., 9 t 759, later op on reh 158 US 601 15 SCt 912, 39 LEd 1108 (1899)..26,27 Simpson v. U. S., 435 US 6, 95 SCt 909, 55 LEd 2d 70 (1978)........25 U. S. v. Carlson, 617 F2d 518 (9th Cir. TCA 660s004s0eve~ de oedwes 22 U. S. v. Sullivan, 274 US 259, 47 SCt 607, 71 LEd 1037, 51 ALR 1020 C9GRT ec cece $660006eeé6eeeeeese 15,17 Constitution & Statutes Page Constitution, Article I, § 2, cl. 3....27 Constitution, Article I, § 8, cl. 1....29 vi (Table of Authorities - Cont.) Page Constitution, Article I, § 9, cl. 4....27 Constitution, Fifth Amendment.....9,10,11 12,14, 16 Constitution, Sixteenth Amendment...26,27 26 USC § 3402....... Svaccecocsvesesoceees ey Eh ,) SAAATONTTT TiTTrTTet rere BS WES HS GRO cc cccccccccccvscsvecesccee me BG GEE § GOB. cc cwscccssssesisvisccccee Ds 26 USC § 7203.....ee eevee 0549, 10, 12, 16,21 22,25 26 USC § 7205..... WerrTrrTT. Mik OP Others Page Black's Law Dictionary, Revised DT cc Ls 60 céeuetaeaneeoescne Corpus Juris Secundum, "Excise", pp. VUWOUT Ve cosecesesesecssecocccéocne Corpus Juris Secundum, "Internal Revenue", pp. rrr rrr Devit & Blackmar, Federal Jur Instructions, § 35.31..eeseeeeeee2l vii NO. IN THE SUPREME COURT OF THE UNITED STATES October Term, 1981 . KIMBROUGH G. MIDDLEBROOK, PETITIONER UNITED STATES OF AMERICA RESPONDENT Petition for Writ of Certiorari To The United States Court of Appeals For The Fifth Circuit BRIEF FOR PETITIONER Petitioner, KIMBROUGH G. MIDDLE- BROOK, respectfully prays this Court to issue a Writ of Certiorari to review the final decision of the United States Court of Appeals for the Fifth Circuit entered on June 22, 1981. OPINION BELOW The decision of the United States Court of Appeals to affirm this cause was made without opinion under the Fifth Cir- cuit Court of Appeals Local Rule 21, and that order appears herein at page A-1. JURISDICTION The order affirming the trial court's judgment was entered on June 22, 1981, and the jurisdiction of this Court is invoked under 28 USC § 1254. CONSTITUTIONAL PROVISIONS & STATUTES INVOLVED Constitution of the United States, Fourth Amendment Constitution of the United States, Fifth Amendment Constitution of the United States, Sixteenth Amendment Constitution of the United States, Article I, § 2, cl. 3 Constitution of the United States, Article I, § 8, cl. 1 Constitution of the United States Article I, § 9, cl. 4 26 USC §§ 7203 and 7205 2 26 USC §§ 3402, 6012, 6201, and 6203 STATEMENT OF THE CASE On Januar) 18, 1979, a three-count indictment was filed in the Nerthern Dis- trict of Georgia, charging the Petitioner with violating 26 USC § 7203 for 1976 and with violating 26 USC § 7205 on January 20, 1976 and again on April 15, 1977. On those dates, the Petitioner had filed with his employer a W-4 form on which he Claimed "exempt" from withholding. For the tax year 1974, the Peti- tioner had filed a regular return. For the tax year 1975, the Petitioner had filed a "Fifth Amendment" return on which he had claimed his objections to the questions asked, by specific line item, on the basis of Constitutional provisions including the Fifth and Fourth Amendments a similar return was filed for 1976 and following. The Petit‘oner was not prose- cuted for the 1975 return. 3 Following a jury trial, (Honorable Walter Nixon presiding) Petitioner was found guilty on all counts and was sen- tencec to serve one year, with six months suspended on two years probation, and a fine of $1,000.00. One June 22, 1981, the Fifth Circuit Court of Appeals af- firmed the conviction of the Petitioner. The Petitioner testified that he filed in the manner he did because he felt to do otherwise would waive his rights under the Fourth and Fifth Amend- ment to the Constitution, and further, that the wages he had received were not taxable under the Internal Revenue Code. However, his testimony as to the law he had relied upon and the other materials he had relied upon were not allowed by the Court. (See volume two of the trans- cript, at pages 314 through 326). REASONS FOR ALLOWING THE WRIT I. The question presented here can be expressed thusly, does the Fifth Amend- ment right to be free from being a wit- ness against oneself in a criminal trial disappear if the crime is a tax-related one? 2 This question has not yet been an- swered by this Court as it pertains to the interaction between 26 USC §§7203 and 7205, which is the issue here. How- ever, the question has been answered "no" in other circumstances by this Court. The Court of Appeals, by affirming the conviction of the Petitioner, was saying "yes" to the questicn. In this case, assume for purposes of this argument that the §7205 charges were correct, i.e., that the W-4 forms filed with the employers on the dates charged were indeed willfully false and 5 fraudulent, as the government contends. Then, if a return ahd been filed for 1976 in the manner required by the Internal Pevenue Service, showing wages as items sf gross income, that return would have been testimony that the W-" form filed was indeed false and fraudulent. Therefore, if the Petitioner had indeed filed a standard tax return for 1976, he would have incriminated himself concerning the W-4 charge. Does then the Fifth Amendment ap- ply? Obviously it should, as that part of the Amendment is to be accorded liber- al construction in favor of the right it was intended to secure. Counselman v. Hitchcock, 142 US 547, 12 SCt 195, 35 LEd 1110 (1892), Arndstein v. McCarthy, 254 US 71, 41 SCt 26, 65 LEd 138 (1920). The case of Hoffman v. U.S., 341 US 479, 71 SCt 814,95 LEd 1118 (1951), provides us with an outline of the con- 6 text in which this case must be analyzed. The privilege afforded not only ex- tends to answers that would in them- selves support a conviction under a federal criminal statute, but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. Blau v. U.S., 340 US 159, 170, 71 SCt 950). But his protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct an- swer. Mason v. U.S., 244 US 362, 365 61 LEd 1198, 1199, 37 SCt 621 (1917), and cases cited. The wit- ness is not exonerated from an- swering merely because he declares that in so doing he would incriminate himself-his say so does not in it- self establish the hazard of in- crimination ...However, if the wit- ness, upon interposing his claim of privilege were required to prove the hazard in the sense in which a claim is required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guar- antee. To sustain the privilege it need only be evident from the im- plications of the question, in the setting in which it is asked that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous be- cause injurious disclosure might re- sult. Hoffman, supra at 486, 487. To assert that the Petitioner might have incriminated himself had he "provided sufficient information from which to com- pute a tax liability" (the definition of a legal tax return), is no non sequiter. Had the Petitioner done so, he would have directly impeached his assertion that he had incurred no tax liability, and pro- vided the government with the evidence to convict himself under a prosecution under 26 USC §7205. As this Court held in Lefkowitz v. Turley, 414 US 70, 94 SCt 316, 38 LEd 2d 274 (1973): The (Fifth) Amendment not only pro- tects the individual against being involuntarily called as a witness against himself in a criminal pro- secution, but also privileges him not to answer official questions put to him in any other proceeding, civii or criminal, formal or informal where the answers might incriminate him if future proceedings. It is undisputed that the questions put to taxpayers on a 1040 form are official questions put to the taxpayer by the gov- ernment, and further that the answers to those questions can be and will be used against a person if it evidences a crime. Garner v. U.S., 424 US 648, 96 SCt 1178, 47 LEd2d 370 (1976). The Fifth Amendment problems created by 26 USC §§7203 and 7205 are analagous to the situations which this Court con- fronted in Haynes v. U.S., 390 US 85, 88 SCt 772, 19 LEd2d 923, (1968) and also Leary v. U.S., 395 US 6, 89 SCt 1532, 23 LEd2d 57 (1969). Haynes concerned "whe- ther enforcement of §5841 (of 26 USC) a- gainst petitioner, despite his assertion of the privilege against self-incrimina- tion, is constitutionally permissable ... and if a prosecution under §5841 would have punished petitioner for his failure to incriminate himself, it would follow that a proper claim of privilege should have provided a full defense to this pro- secution."” Haynes, supra at 90. 9 In the instant case the statutes in- fringe on this Petitioner's Fifth Amend- ment privilege becasue 26 USC §7205 prohibits certain conduct and failure to provide information which would incrim- nate this Petitioner under §7205 comprises the offense charged under 26 USC §7203. In both Haynes and this case, the syner- Ristic effect of two statutes infringes upon the Petitioner's Fifth Amendment rights. Leary involved the identical issue, phrased thusly by this Court at 23 LEd2d pp. 73-74: The aspect of the self-incrimination privilege which was involved in Mar- chetti and which Petitioner asserts here, is not the undoubted right of an accused to remain silent at trial. It is instead the right not to be criminally liable for one's previous failure to obey a statute which re- quired an incriminatory act... Accordingly, we reverse petitioner’ s eonviction. It is no argument that the Petitioner placed himself in the position from which 10 he seeks relief under the Fifth Amend- ment, or that one cannot break one law and then violate another for the reason that not to violate it would incriminate oneself for the first violation. This argument was well answered in the case of Marchetti v. U.S. , 390 US 39,88 SCt 697, 19 LEd2d 889 (1968) which stated at pages 50-51: We find this reasoning no longer persuasive. The question is not whether the petitioner holds a "right" to violate state law, but whether having done so, he may be compelled to give evidence against himself. The constitutional privilege was in- tended to shield the guilty and im- - prudent as well as the innocent and foresizhted; if such an inference of antecedent choice were alone enough to abrogate the privilese's pro- tection, it would be excluded from the situations in which it has his- torically been guaranteed, and with- held from those who most require it. The same applies here. The question is not if the Petitioner had a right to vio- late §7205, but, if having done so, may he be compelled to give evidence against ll himself about this violation or face charges under § 7203 for failing to in- criminate himself. And the answer is the same as it was in Marchetti, Haynes, and Leary, a resounding NO! Therefore, the trial court erred in not dismissing the § 7203 charge based on the Fifth Amendment conflict between §§ 7203 and 7205. Il. The instructions granted by the Court in this cause are in total conflict with the applicable decisions of this Court. In some instances, they are even in conflict with other Circuits, notably the Ninth Circuit Court of Appeals. In particular, the Court granted the government's requested instruction number 14, over the Petitioner's objec- tions. (The full text of this instruc- tion appears in the Appendix). This in- struction negated any "good faith" de- fense to willful tuailure to file. It 12 stated: The intentional refusal by a tax- payer to reflect little or no in- come on a tax return form as to his income or expenses with the excuse that to do so would violate his right against self-incrimination under the Fifth Amendment to the Constitution is no legal justifica- tion for not filing a timely com- plete income tax return reflecting the amounts of income for 1976. The same is true for an excuse that Fed- eral Reserve Notes are not legal tender or that the Federal Reserve system is unconstitutional. These are not legal justifications for willful failure to file. This completely ignores the law that these reasons are indeed legal justifications for not filing if the person holding those views holds them in good faith. U.S. v. Murdock, 290 US 389, 54 SCt 223, 78 LEd 381 (1933) defines willfulness as a thing done without ground for be- lieving it is lawful. Therefore, if a person has grounds for believing that his conduct is indeed lawful, that would negate the element of willfulness. ry 13 In other words, 2 person's good faith beliefs can negate willfulness, and the jury has a right to examine those beliefs to see if indeed they are held in good faith. The jury was not allowed to so do in this case, and the Petitioner was denied a fair trial thereby. This same problem applies to the government's instruction number 17, also granted by the trial Court. (The full text of this instruction is set forth in the Appendix). This instruction applied to Federal Reserve Notes, and again cut off the Petitioner's right to a good faith defense. As to the Fifth Amendment privilege, the instructions of the Court again went outside the decisions of this Court. In addition to the language in instruction number 14 cited above that the Fifth Amend- ment was not a legal justification for failure to file, the Court granted the 14 the government's instruction number 16 (in Appendix) which stated: You are further instructed that a taxpayer may not refuse to enter on his return the necessary infor- mation as to his income and expenses by claiming a privilege against self- incrimination. The Fifth Amendment to the Constitution of the United States does not protect or shield a taxpayer from revealing the required financial information or amounts of his income on his income tax return. Therefore, defendant's claim of a Fifth Amendment privilege against disclos:ng his income on a tax re- turn should not be considered by the jury as a good faith defense to the charge of willful failure to file. As can be seen, these instructions stated to the jury that under no circumstances can one claim to have a Fifth Amdnement privilege against filing a tax return. This flies directly in the face of this Court's decisions in U.S. v. Sullivan, 274 US 259, 47 SCt 607, 71 LEd 1037, 51 ALR 1020 (1927), and Garner v. U.S., 424 US 648, 96 SCt 1178, 47 LEd2d 379 (1976). Sullivan not only says that the Fifth Amendment is a defense, it further states that you must raise that defense on the return itself, or you waive it. Roane atk ao aa elhClek ee & =. Ano tt «a DBs Dat. oc defense to failure to file, even the erroneous but good faith claim of the Fifth Amendment privilege is a defense to a failure to file charge. A §7203 charge (willful failure to file) can only arise if the person so charged has failed in some manner to put down items of income on his return, as other items which might be lacking would not lead to a failure to file charge. Therefore, Garner stands for the proposi- tion that the Fifth Amendment privilege concerning a tax return embodies the right to refuse to include items of in- come. These instructions negated the Petitioner's right to a defense based on the Fifth Amendment, as to whether or not he had correctly claimed it, and further negated his right to a defense based on Petitioner's good faith, but erroneous, Claim of the privilege. 16 In addition to these erroneous instruc- tions (14, 16, 17) all of which were ob- jected to by the Petitioner, the Court refused the Petitioner's instructions which correctly stated the law. Asa matter of fact, the trial Court refused all of the Petitioner's requested in- structions. The Petitioner submitted two in- structions based on Sullivan, numbers 8 and ll as follows: You are instructed that if a per- son wishes to assert his Right a- gainst Self-Incrimination regarding specific items, he must do so on the tax return itself or forever waive the Privilege. You are instructed that: "If the tax return form provided called for answers that the Defendant was pri- vileged from making that he could have raised the objection in the re- turn, but could not on that account refuse to make any return at all." The Petitioner further submitted an instruction based on Garner about the erroneous claim of the privilege in good 17 faith, number 9. You are instructed that even if the Defendant erroneously or mis- takenly asserted his Constitutional rights under the Fifth Amendment on the tax returns in question, that if he did so in "good faith" then you must find that the Defendant did not act willfully. If you find that the evidence shows that the Defen- dant acted in good faith, you must find him not guilty. Three instructions based on willfulness as defined by Murdock, numbers 4,10, and 14, were offered as follows: You are instructed that the speci- fic intent of "willfulness" must be proven in order to convict the Defendant of failure to make an income tax return. The term "will- fully," used in connection with this offense, means voluntarily, purpose- fully, deliberately, with evil mo- tives, or with bad purpose. Mere negligence, even gross negligence, even reckless disregard for the law, is not sufficient to constitute will- fulness under criminal law. However, if you find that the De- fendant failed to make a return be- cause of negligence, inadvertence, accident or reckless disregard for the requirement of the law, or due to his gowd faith misunderstanding of the requirements of the law, or that he had actual belief that in good faith believed that he had the 18 made a return even though he may not have, or that he in good faith believed that he had the right to assert his Constitutional rights under the Fifth Amendment on the returns in question in the manner that he did, then you must find that the Defendant's conduct is not will- ful, and must find the Defendant not guilty. If you believe that the reasons Stated by the Defendant in his re- fusal to answer Form 1040 questions were given in good faith, and based upon his actual belief, you should consider that in determining whether or not his refusal to answer the questions was willful. You are instructed that the spe- cific intent of "willfulness" must be proven in order to convict the Defendant of the offenses charged in Count II and III. The term "will- fully," used in connection with these offenses, means voluntarily, purposefully, deliberately, with evil motives, or with bad purpose. Mere negligence, even gross negli- gence, even reckless disregard for the law, is not sufficient to con- stitute willfulness under criminal law. If you find that the Defendant supplied false information to his employer because of negligence in- advertance, accident or reckless disregard for the requirement of the law, or that he had actual belief that in good faith he had no tax liabilities for the years in ques- tion, then you must find that the Defendant's conduct was not willful, and you must find the Defendant not 19 guilty. There were two instructions offered on Chic Fifth Amendment itself, as the Petitioner had claimed the privilege both on the tax return in answer to specific questions, and on the witness stand. These were num- bers 6 and 7 as follows: You are instructed that one of the primary functions of the Fifth Amendment privilege against self- incrimination is to protect inno- cent men. Every person is entitled to the full enjoyment of the Con- stitutional privilege against self- incrimination. You are instructed that you are not to make any inference of guilt on the part of Defendant by the fact that he asserted his Consti- tutional rights under the Fifth Amendment as a United States citizen on his tax return for the year 1976. Information given on a tax return is testimonial and to infer guilt on the part of the Defendant for asserting that right would make a hollow mockery of the exercise of this privilege itself. All of these were denied and in addition one based on Bishop v. U.S., 412 US 346, 93 SCt 2008 (1973), 36 LEd2d 941, number 16, as follows: 20 You are instructed that the re- quirement of an offense committed willfully is not met if a taxpayer has relied in good faith upon a prior decision of this Court or the Supreme Court of the United States of America and if you find from the evidence that the Defendant did in good faith rely on a prior decision of this court or the Supreme Court of the United States of America, then you must find the Defendant not guilty. This instruction would have at least opened up the defense of good faith based on reliance on this Court's opinions, but this avenue also was closed by the Court. In addition, the U.S. Court of Appeals for the Ninth Circuit has been granting instructions which allow a good faith defense to these charges. The model jury instruction con- cerning "willfulness" in a §7203 charge out of Devitt and Blackmar, §35.31, comes from a Ninth Circuit case. Cooley v. U.S. 501 F2d 1249 (9th Cir. 1974), cert. denied. 419 US 1123 (1975) stands for the pro- position that a person cannot be con- 21 victed under §7203, if he is honestly mistaken about the requirements of the law. And, if a person believes that he has done all that the law requires he cannot be guilty of the criminal intent to willfully file a tax return; and it is for the jury to decide whether he acted in good faith or whether he willfully intended to file a tax return. This is also set out in U.S. v. Carlson, 617 F2d 518 (9th Circ. 1980) at page 523. This merely states the law as it has come down from this Court in Murdock but the Fifth Circuit has declined to accept this definition of "willful". III. Since, as described in II. above, the Petitioner had a right to a "good faith" defense to the charges, he had a right to testity in his own behalf about that good faith. However, the trial Court not only 22 denied the jury instructions on good faith, the attempts of the Defendant to show what he had relied upon in forming his beliefs, both as to case law and as to other material, were denied by thc Court. The Court even sustained objections on behalf of the government to the Peti- tioner giving even the citation to a par- ticular Court case he had relied upon and instructed the jury to disregard it. (See Transcript of Trial, Volume II, page 326). The Bishop case cited above gives taxpayers at least the right to rely on decisions of this Court in their actions. This right includes the right to explain to a jury exactly what was relied upon. However, the trial Court denied the Feti- tioner this right, and the Court of Appeals refused to even discuss the issue. IV. The basic principles that this 23 Court has set forth that apply to this question are as follows: One of the primary requirements of statutory crimes is that the crime be defined with appropriate defiteness. As a matter of due process, no one may be required, at the peril of life, liberty or property to speculate as to the meaning of penal statutes; all are entitled to be informed as to what the government commands or forbids. Haynes v. Oradell, 425 US 610, 96 SCt 1755, 48 LEd2d 243 (1976). The practice of a court's resolving questions concerning the ambit of a criminal statute in favor of lenity does not merely reflect a convenient maxim of statutory construc- tion, but rather, is rooted in fundamental principals of due process, which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited; thus, to insure that the legislature speaks with special clarity 24 when marking the boundaries of criminal conduct, courts must decline to impose punishment for actions that are not plainly and unmistakably proscribed. Dunn v. U.S., 442 US 100, 99 SCt 2190, 60 LEd2d 743 (1979). The Court is bound to accept that definition which is more lenient to the Defendant, Simpson v. U.S., 435 US 6, 95 SCt 909, 55 LEd2d 70 (1978). A. The §7203 Count The specific ambiguity in regard to: the §7203 Count has to do with 25 USC §6012. That section is the one which de- tails when you must file a return and thereby be subject to §7203 for failure to do so. There are two possible constructions for §6012, and this is an issue which needs to be settled, but so far has not explicitly been so by this Court. They are, first, that in §6012 the word "gross 25 income" includes ordinary wages; and second, that "gross income" includes only income derived from a privilege or license granted by the government. The first construction comes from common usage by the Internal Revenue Ser- vice, and a reading of the Sixteenth Amendment without regard to either its intent or construction given to it by this Court. The second construction flows from the intent of the Sixteenth Amendment, and the case law before and after it. To understand the meaning of this pro- vision of the Constitution, it must be placed in the context of its enactment. Congress had previously enacted an in- cume tax in 1894, This was found to be unconstitutional in the famous case of Pollock v. Farmers Loan & Trust Co., 157 US 15 SCt 673, 39 LEd 759, later on reh, 158 US 601, 15 SCt 912, 39 LEd 1108 (1894). 26 It failed because it was held to be a di- rect tax on property or income derived from property and in want of apportion- ment in contravention of Article I, §2,cl1.3, and Article 1,§9, cl.4. "We ad- here to the opinion already announced, that, taxes on real estate being indis- putably direct taxes, taxes on the rents or income of real estate are equally ‘direct taxes... We are of the opinion that taxes on personal property, or on the income of personal property, are likewise direct taxes... The tax... so far as it falls on the income of real estate and of personal property, being a direct tax within the meaning of the Constitution, and, therefore, unconstitu- tional and void because not apportioned according to representation." Pollock v. Farmers' Loan & Trust Co., supra, at 637. In 1913, the Sixteenth Amendment became a part of the Constitution. In 27 a landmark decision following its enact- ment, the Supreme Court explained the meaning of that Amendment. Brushaber v. Union Pacific R.R. Co., 240 US 1, 36 SCt 236, 60 LEd 493 (1915). "(C)onfusion... arises from the con- clusion that the Sixteenth Amendment pro- vides for a hitherto unknown power of taxation, that is, a power to levy an income tax which although direct. should not be subject to the regulation of apportionment applicable to all other direct taxes... (T)he far reaching effect of the erroneous assumption... clearly results that the proposition and the con- tentions under it, if acceded to, would cause one provision of the Constitution to destroy another. That is, they would result in bringing the provisions of the Amendment exempting a direct tax from apportionment into irreconcilable con- flict with the general requirement that 28 all direct taxes be apportioned. This result instead of simplifying the sit- uation and making clear the limitations on the taxing power, which obviously the Amendment must have been intended to accomplish, would create radical and destructive changes in our Constitution and multiply confusion." (T)he contention that the Amendment treats a tax on income as a direct tax... is also wholly without found- dation... The Amendment contains nothing repudiating or challenging the ruling in the Pollack case. Brushaber v. Union Pacific R.R. Co., Supra, ll-le, 18-19. What the amendment did accomplish was to declare that the income from real and personal property is to be considered as falling within ambit of Article I, Sec. 8, cl. 1. It operates to separate the income from whatever real or personal property source from which it is derived; and thus the resulting excise tax was not subject to apportionment. An income tax, 29 however, remains in its nature an excise regardless of the Sixteenth Amendment. Brushaber v. Union Pacific R.R. Co., supra, at 17. Therefore, as an excise it can only be levied as rights bestowed by the state. The word “excise” means "... every form of taxation which is not a burden laid directly on person or property, or every form of charge imposed by public authority for the purpose of raising revenue on the performance of an act, the enjoyment of a privilege, or the engaging in an occupation." 33 Corpus Juris Secundum, "Excise." pp.110-lll. "Excise" is defined to be an inland imposition, sometimes on the manufacture, sale, or consumption of a commodity and sometimes on licenses to pursue certain occupations and corporate privileges. A charge for the privilege of following an occupation or trade, or carrying on a 30 business, gives a fairly gov-d working idea of what an excise tax is. 47 C.J.S. "Internal Revenue", Section l, pp. 125- 126. An “excise", then, is a charge or tax levied upon the doing of a certain specified act or upon the performance of certain specified activities essociated with privileges granted by the taxing authority. The terms “excise” tax and "priv- lege" tax are synonymous, and the two are often used interchangeably. American Airways v. Wallace 57 F. . 0. ee also: East Ohio Gas Co. v. Tax Commission of Ohio Further, the proper measure of such an excise, once imposed is the income de- rived from the privilege. Flint v. Stone Trace Co., 31 SCt 342, 55 LEd 389 (1910). The important distinction to be maintained, however, is that an excise is a charge for doing an activity under. license from the sovereign or under 31 special privilege. It is not a tax on an income per se, or all income, but the only income resulting from the license or privilege is the proper measure of the excise tax. That this is the true meaning of excise is shown by Penn Mutual Indemnity Company (Dissolved) v. Commiss- ioner. 32 Tax Court 653. There, peti- tioner insurance company sought a ruling of "no tax due" because it had suffered losses greater than receipts and thus argued that it had no “income” and that to tax it would be unconstitutional. Losses of the nature involved, however, are not recognized by Section 207)a)(2) of the Internal Revenue Code of 1939. The tax was held constitutional as a proper excise. This seemingly harsh result is in accord with the constitutional basis of taxation. As an excise on the busi- ness of insurance and underwriting, the tax power is unlimited. The mere power 32 to tax really is the power to destroy. That is why the Framers of the Constitu- tion made it a requirement that unappor- tioned internal taxation be limied to excises. Taxes being of practical necessity, it was thoughtproper to tax activities licensed by the sovereign or under sover- eign privilege. The Sixteenth Amendment allowed the measure of the taxation to be income (broadly defined) from whatever source derived, but, only that income associated with the carrying on of li- ecensed or privileged activities is allowed. This second construction, i.e., that the Sixteenth Amendment allows only an excise tax, is not strained, forced, il- logical or unreasonable, rather it flows freely from the law. Therefore, by applying those three principals set forth at the beginning of IV. above, the Peti-« 33 tioner cannot be held criminally liable (although there is no restraint upon the Internal Revenue pursuing this in a civil proceeding) for construing the am- biguity in the law in his favor. B. The §7205 Counts The same issue as set forth in A. above applies here as well. Even though under 26 USC §3402, the Petitioner must file a W-4 form with his employer, if his wages are not taxable under §6012. he is entitled to file "exempt", and again cannot be held criminally liable for construing the ambiguity in the law in his favor. There is a second issue with the §7205 charges which flows from the am- biguity in the term "liability for taxes." This comes from the W-4 form signed by the Petitioner which states "I incurred no liability for federal income tax for the preceeding year and anticipate I will 34 incur no liability for income taxes this year." This can be construed two ways. First, that you have incurred a liability if at any time during the year you owed a federal income tax to the government. Second that you have not incurred a liabil- ity for that year if you have paid all that you owe, either before the year is out, or when the return is filed. The biggest problem is that the term "liability for taxes" or "tax liability" is not define” in the United States Code at all. Since this forces taxpayers to speculate, at peril of property or liber- ty, as to its meaning, due process re- quires that there be no criminal liability attached to the speculation. In addition, there is a problem with the word “incurred” as well. The word "incur" by Black's Law Dictionary, Re- vised Fourth Edition, means to have lia- 35 bility cast upon one by act or operation of law. Strictly speaking then, a tax- payer does not have liability cast upon him for income tax by operation of law un- til the federal income tax is actually assessed against him. 26 USC §6201 (a) (1) provides that the Secretary (of the Treasury) shall assess all taxes deter- mined by the taxpayer or by the Secre- tary as to which returns or lists are made under this title. This means that for income tax purposes, the Seoretary has the authority to assess the tax, and to assess it upon the amounts determined to be due by the taxpayer, or on the amount as determined by the Secretary. The method of assessment is prescribed in §6203 which says that the assessment shall be made by recording the liability of the taxpayer in the office of the Sec- retary in accordance with rules or regu- lations prescribed by the Secretary. 36 In this case the government intro- duced Certificates of Assessments and Pay- ments concerning the Petitioner for the years in question. However, those certi- ficates revealed that there had been no assessments made against the Petitioner for 1975, 1976 or 1977. Therefore, since assessments have not yet been made for those years, the Petitioner has not "in- curred" any tax liability for those years, and the statements made on the W-4 forms are true, not false and fraudulent. Again, applying those three princi- pals outlined at the beginning of IV. above the Petitioner cannot be held criminally jiable for his W-4 forms as filed. V. This Court, in a long line of de- cisions, has established the rule that illegally obtained evidence cannot be used against an individual in a subse- 37 quent criminal trial. The evidence introduced in this cause concerning the bank records of the Peti- tioner were all obtained under an IRS summons. There was a petition to enforce the summons filed in federal court. A U.S. Magistrate, acting without the authority to do so, ordered enforcement of the summons. The Internal Revenue Ser- vice then obtained the records on the im- proper Order, as the Magistrate did not have the jurisdiction to enter the Order. When these issues were raised on a Motion to Suppress, the trial Court en- tered its Order affirming the enforcement of the summons, but this was after the fact. Indeed, at the time of the trial herein, the action affirming the enforce- ment was not final, as it was being ap- pealed to the Fifth Circuit. Since the Internal Revenue Service obtained the material without a valid 38 Court Order, the evidence should have been suppressed. CONCLUSION As can be seen, the U.S. Court of Appeals for the Fifth Circuit has decided these questions of law in a way which con- flicts with the applicable decisions of this Court. In addition, there exists a very serious conflict between the Fifth Circuit and the Ninth Circuit as to what consti- tues a "good faith" defense to these types of charges. The Ninth Circuit's rulings appear to be in alignment with the past decisions of this Court, however, this Court needs to grant certiorari to resolve this conflict, as personal liber- ties are at stake. Accordingly, the Court of Appeals decision affirming Petitioner's convic- tion should be reversed and the infor- 39 mation should be dismissed. Or, in the alternative, a new trial should be or- dered. Therefore, this petition for a Writ of Certiorari should be granted. Respectfully submitted, KIMBROUGH G. MIDDLEBROOK BY: ichard LL. Stradley Counsel for Petitioner 4515 Miller Creek Road Missoula, Montana 59803 406-251-4034 AFFIDAVIT OF SERVICE Personally appeared before me, the undersigned authority in and for the State of Montana, County of Missoula, the within named Richard L. Stradley, who after being by me first duly sworn stated on oath that he had mailed, post- age prepaid, by U.S. Mail, a true and correct copy of the above. d foregoing Petition to Counsel for the Respondent, the Solicitor General, Depart of Justice, 40 Washington, D.C. 20530, on the 2lst day of August, 1981, and a copy of the resub- mitted Petition on the 4th day of Sep- tember, 1981. SWORN TO and subscribed before me on this the Huh day of September, 1981. ys Ke Mut L oh ¥ My Commission Expires: 7 al et po 4] APPENDIX JUDGMENT TO BE REVIEWED: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT UNIT A NO. 80-3382 UNITED STATES OF AMERICA, Plaintiff- Appellee vs. KIMBROUGH G. MIDDLEBROOK Defendant- Appellant Appeal from the United States District Court for the Southern District of Mississippi (June 22, 1981) Before BROWN and GARZA, Circuit Judges, and SCHWARTZ, * District Judge. PER CURIAM: AFFIRMED. See Local Rule Rule 21. 2/ 1/ See N.L.R.B. v. Amalagated Clothing Workers of America, 1970, 430, F2d 966. *District Judge of Eastern District of Louisiana, Sitting by Designation. Constitution of the United States, Fourth Amendment The right of the people to be se- cure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probably cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Constitution of the United States, Fifth Amendment No person shall be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger, nor shall any person be subject for the same offense to be twice put in jeopardy of life and A-3 and limb; nor shall be compelled in any criminal case to be a witness against him- self, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compenstaion. Constitution of the United States, Six- teenth Amendment The Congress shall have the power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. Constitution of the United States, Arti- cle 1, §2, cl. 3. Representatives and direct taxes shall be apportioned among the several States... Constitution of the United States, Article 1, §$8,¢1.1 The Congress shall have power to lay A-4 and collect taxes, duties, imposts and excises... Constitution of the United States, Article 2, Be. of. No capitation, or other direct tax shall be laid unless in proportion to the census or enumeration herein before to be taken. 26 USC §7203 Any person required under this title to... make a return... who willfully fails to... make such return... 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. 26 USC §7205 Any individual required to supply information to his employer under section 3402 who willfully supplies false or A-5 fraudulent information... shall, in lieu sf any other penalty provided ty law (except the penalty provided by section 6682), upon conviction thereof, be fined not more than $500, or imprisoned not more than 1 year, or both. 26 USC §3402 --- On or before the date of commen- cement of employment with an employer, the employee shall furnish the employer with a signed withholding exemption cer- tificate relating to the number of with- holding exemptions which he claims, which Shall in no event exceed the number to which he is entitled. ... Notwithstanding any other provision of this section, an employer shall not be required to deduct and withhold any tax under this chapter upon a payment of wages to an employee if there is in effect with respect to such payment a withholding exemption certificate (in such form and containing such other A-6 information as the Secretary may pre- scribe) furnished to the employer by the employee certifying that the employee--- (1) incurred no liability for income tax imposed under subtitle A for his pre- ceding taxable year, and (2) anticipates that he will incur no liability for income tax imposed under subtitle A for his current taxable year. ... 26 USC §6012 ...- Returns with respect to income taxes under subtitle A shall be made by the following: (1)(A) Every individual having for the taxable year a gross income of $750 or more, except that a return shall not be required of an individual... who is entitled to make a joint return under section 6013 and whose gross income, when combined with the gross income of his spouse, is, for the taxable year, less A-7 than $4,700... 26 USC §6201 ... The Secretary shall assess all taxes determined by the taxpayer or by the Secretary as to which returns or lists are made under this title... 26 USC §6203 The assessment shall be made by recording the liability of the taxpayer in the office of the Secretary in accor- dance with rules or regulations pre- scribed by the Secretary... A-8 U.S. v. Middlebrook Crim. No. J79-00003(N) GOVERNMENT'S INSTRUCTION NO. As I stated earlier, the third ele- ment which the government must prove be- yond a reasonable doubt is that the De- fendant's failure to make the return in question was willfully committed. The term willfully for purposes of these instructions as to Count I means voluntarily, deliberately and intentionally, as distinguished from accidentally, in- advertently or negligently. The failure to make a timely return is willful if the Defendant's failure to act was voluntary and purposeful and with the specific intent to fail to do that which he knew the law required, that is to say, with the purpose to disobey or dis- regard the law which requires him to make a timely return. The willfulness which the govern- A-9 ment must prove beyond a reasonable doubt does not require the government to prove that the Defendant had a purpose to evade a tax or to defraud the government. The intentional refusal by a tax- payer to reflect little or no information on a tax return form as *9) his income or expenses with the excuse that to do so would violate his right against self- incrimination under the Fifth Amendment to the Constitution is no legal justifi- cation for not filing a timely complete income tax return reflecting the amounts of income for 1976. The same is true for an excuse that Federal Reserve notes are not legal tender or that the Federal Re- serve system is unconstitutional. These are not legal justifications for willful failure to file. The only justification for not filing a tax return when it is required by law to be filed is a good faith misunderstand- A-10 ing by the taxpayer as to his legal obli- gation to actually file the return or an inadvertent or careless or negligent failure to actually file such a return. What the government must prove, to the element of willfulness is a voluntary, intentional violation by Defendant of his known legal duty to file a true, correct and complete return of his income, i.e., the Defendant deliberately and specifically intended not to make a return of his in- come which he knew ought to be made and filed. A-1ll U.S. v. Middlebrook Crim. No. J79-00003(N) GOVERNMENT'S INSTRUCTION NO. You are further instructed that a taxpayer may not refuse to enter on his return the necessary information as to his income and expenses by claiming a pri- vilege against self-incrimination. The Fifth Amendment to the Constitution of the United States does not protect or shield a taxpayer from revealing the required financial information or amount of his income on his income tax return. Therefore, Defendant's claim of a Fifth Amendment privilege against disclosing his income on a tax return should not be con- Sidered by the jury as good faith defense to the charge of willful failure to file. A-le2 U.S. v. Middlebrook Crim. No. J79-00003(N) GOVERNMENT'S INSTRUCTION NO. You are further instructed tiat it is no defense to the willful failure to file charge for Defendant to say that Federal Reserve Notes do not constitute dollars or income for tax purposes or that the Federal Reserve System is unconstitutional. Federal Reserve Notes are the common medium of exchange in all financial affairs of this country. They are legal tender for tax purposes or income or otherwise. A-13 Office - Supreme Court, U.S. ILED HOV a8 1981 ALEXANDE® L. STevas. RK In the Supreme Court of the Hnited States OcTOBER TERM, 198! No. 81-557 KIMBROUGH G. MIDDLEBROOK, PETITIONER Vv. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT MEMORANDUM FOR THE UNITED STATES IN OPPOSITION Rex E. Lee Solicitor General Department of Justice Washington, D.C. 20530 (202) 633-2217 TABLE OF AUTHORITIES Cases: Brown v. Walker, 161 U.S. 591) ........ eee: Brushaber v. Union Pacific R.R., PE cccucccvcccccancscccevnceooses Clark v. United States, 289 U.S. 1 ........... Cooley \. United States, 501 F.2d 1249, cert. denied, 419 U.S. 1123 ...........e00e- Commissioner v. Smith, 324 U~ 177 ........ Garner v. United States,424U 648 ........ Mason v. United States, 244 U.S. 362 ........ Roberts v. United States, 445 U.S. 552 ....... Rogers v. United States, 340 U.S. 367 ........ United States v. Brown, 591 F. 2d 307, enst. Games, 645 UB. GIS ccoccccccccoecess United States v. Carlson, 617 F. 2d 518, cert. denied, 449 U.S. 1010 ............045- United States v. Hawk, 497 F.2d 365 ........ United States v. LaSalle National Bank, EE eee eee cccedeéaneakedvens United States v. Johnson, 577 F. 2d 1304 ..... United States v. Malinowski, 472 F. 2d 850, Se Gs ED vb docceececscnses United States v. Matosky, 421 F.2d 410 ...... United States v. Pomponio, 429 U.S. 10 ...... United States v. Powell, 379 U.S. 48 ......... Page Cases—(Continued): United States v. Quilty, 541 F.2d 172 .......... 5 United States v. Sullivan, 274 U.S. 259 ....... 4,6 United States v. Wellendorf, 574 F.2d 1289 ..... 7 United States v. Wolters, 656 F.2d 483 ........ 3 Constitution and statutes: United States Constitution, Fifth PEE SGN ebb cncsccevscssceenevess 3,4 SP: HEED: Gandebne 6b ucceéenebenneteoeceds l Us CE déeesndecdecnecusadusnsccbas 1,6 In the Supreme Court of the Hnited States OcTOBER TERM, 1981 No. 81-557 KiMBROUGH G. MIDDLEBROOK, PETITIONER Vv. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT MEMORANDUM FOR THE UNITED STATES IN OPPOSITION The questions presented by the petition in this criminal tax case are: (1) whether petitioner's assertion of his Fifth Amendment privilege against compulsory self-incrimi- nation with respect to his 1976 federal income tax return precluded his conviction for willfully failing to file a return for that year; and (2) whether the trial judge properly instructed the jury on the element of willfulness. The pertinent facts may be summarized as follows: fol- lowing a jury trial in the United States District Court for the Southern District of Mississippi, petitioner was convicted on one count of willfully failing to file a federal income tax return for 1976 and two counts of willfully filing false and fraudulent withholding exemption certificates, in violation of 26 U.S.C. 7203 and 7205. He was sentenced to six months’ imprisonment and a $1 ,000 fine on Count I. On the remaining two counts, the court suspended imposition of 2 sentence and petitioner was placed on two years’ probation to commence upon release from confinement. The court of appeals affirmed (Pet. App. A-1; Appellee’s Br. 4). The evidence at trial established that petitioner received wages and interest income in 1976 of $30,177.08 (1 Tr. 208).' On April 14, 1977, he filed an Individual Income Tax Return Form 1040 for 1976, which he signed, but which contained no financial data from which his tax liability could be computed (Exh. G-5; I Tr. 33-34). Instead, peti- tioner’s Form 1040 contained asterisks in places calling for information about income, tax payments, and credits (I Tr. 33). At the bottom of the Form 1040, petitioner stated (II Tr. 324): Ido not understand this return nor the laws that may apply to me. Signature involuntarily given under threat of statutory punishment. I request complete immunity per 18 U.S.C. §6002 & §6004 before waiving any constitutional or natural rights, including the Fifth Amendment guarantee of not being a witness against myself. In the margin of his Form 1040, petitioner also had written, “This return consists of 32 attached pages plus a four page insert. I offer to amend or refile this return exactly as you wish it if you will please show me how to do so without waiving my constitutional rights” (I Tr. 51-52). Petitioner had filed valid income tax returns for 1972, 1973 and 1974(I Tr. 44). On January 20, 1976, petitioner presented his employer, Southern Railway Company, witha Form W-4E, withhold- ing exemption certificate, stating under penalty of perjury that he had no tax liability for 1975 and that he anticipated 1 Tr.” and “II Tr.” refer to the two-volume transcript of the trial; “Exh.” refers to the exhibits submitted in that proceeding; Appeliee’s Br. refers to the brief for the United States in the Court of Appeals. 3 no tax liability for 1976? (1 Tr. 107). P.titioner gave a similar Form W-4E to Southern Railway on April 15, 1977 (1 Tr. 110). Based on these withholding exemption certifi- cates, Southern Railway stopped withholding federal in- come taxes from petitioner's salary (1 Tr. 108). 1. Petitioner argues (Pet. 5-12) that if he had filed a valid income tax return for 1976, showing wages as gross income, then that return would have been testimony that the Form W-4E (filed earlier in 1976 and again in 1977) was false and fraudulent. Petitioner claims that this “conflict” violates his Fifth Amendment privilege against compulsory self-incrimi- nation. This claim was properly rejected in United States v. Carlson, 617 F. 2d 518 (9th Cir.), cert. denied, 449 U.S. 1010 (1980), upon which we rely. There, the court held “that an individual who seeks to frustrate the tax laws by claiming too many withholding exemptions, with an eye to covering that crime and evading the tax return requirement by asser- tion of the Fifth Amendment, is not entitled to the amend- ment's protection” (617 F. 2d 523). The court reasoned that the taxpayer had attempted to take advantage of the privi- lege’s protective capacity in furtherance of a calculated effort to avoid the payment of taxes. /d. at 522. The asser- tion of the privilege in Carlson, like petitioner's assertion here, was used “more as a sword than a shield.” /bid. Accord, United States v. Wolters, 686 F. 2d 483 (9th Cir. 1981). The Ninth Circuit's reliance in Car/son on the history and purpose of the privilege against self-incrimination, and its ?For 1975, petitioner had filed a purported tax return, similar to the one he filed for 1976, which said at the bottom of the Form 1040, “This (*] means specific objection is made under the Sth Amendment, U.S Constitution, to the question as to Federal Reserve Note, and that similar objection is made to the question under the Ist, 4th, 7th, 8th, 9th. 10th, 13th, 14th and 16th Amendments” (II Tr. 311). 4 finding that the defendant was raising the privilege not in good faith, but rather as a subterfuge to avoid payment of his taxes, is entirely consistent with this Court's repeated holding that “{i]t is the duty of a court to determine the legitimacy of a [party's] reliance upon the Fifth Amend- ment.” Roberts vy. United States, 445 U.S. 552, 560 n.7 (1980). An individual may not invoke the privilege if his real purpose is to avoid giving information that “he simply would prefer not to give” (ibid.). See also Mason v. United States, 244 U.S. 362, 364-367 (1917); Garner v. United States, 424 U.S. 648, 658-659 n.11 (1976); Rogers v. United States, 340 U.S. 367, 371-375(1951); Brown v. Walker, 161 U.S. 591, 599-600 (1896). See also Clark v. United States, 289 U.S. 1, 14 (1933).3 Acceptance of petitioner's contentions here would mean that any tax protestor could avoid filing income tax returns by adopting the simpie expedient of claiming complete exem ation or an inflated number of allowances on his Form W-4E in a given tax year sufficient to avoid withholding from his wages, and thereafter refusing to file annual tax returns on the ground that the information on his return might tend to reveal his earlier misconduct. As the court stated in United States v. Carlson, supra, 617 F. 2d at 522-523, “the character and urgency of the public interest in raising revenue through self-reporting weight heavily against affording the privilege [under such circumstances]. The federal government's power to raise revenue is its life- blood. Were taxpayers permitted to employ [petitioner's] ‘Moreover, petitioner did not invoke the privilege with respect to particular questions, but rather asserted a blanket privilege with respect to all financial information that was sought. The Fifth Amendment does not permit a taxpayer “to draw a conjurer’s circle around the whole matter by his own declaration that to write any word upon the govern- ment blank would bring him into danger of the law.” United States v. Sullivan, 274 U.S. 259, 263-264 (1927). 5 scheme, they could avoid filing completed tax returns and thereby severely impair the government's ability to deter- mine tax liability.” Accord, United States v. Brown, 591 F. 2d 307, 308, 311 (Sth Cir.), cert. denied, 442 U.S. 913 (1979); United States v. Johnson, 577 F. 2d 1304, 1310-1311 (Sth Cir. 1978).4 2. Petitioner also asserts (Pet. 12-22) that the district court erred in its refusal to use petitioner's proposed instructions on willfulness and the defense of good faith, and that this refusal has created a conflict between circuits (see Pet. 21-22). The district court, however, correctly instructed the jury. It stated that what the government must prove “is the voluntary intentional violation by the defendant of his known legal duty to file a true, correct and complete return of his income * * * that he deliberately and specifically intended not to make a return of his income, and more specifically the amount of his income on the return which he knew ought to be made and filed” (II Tr. 399). As for petitioner's good faith defense, the court instructed the jury that a good faith misunderstanding by petitioner of his legal obligation actually to file a return would be a justification for not doing so. The court also stated that the claim of Fifth Amendment privilege could be a defense only if the jury concluded from the evidence that the claim, though erroneous, was made in good faith (II Tr. 399). Factors that the jury could consider in this regard included evidence, if *Petitioner’s remaining arguments ( Pet. 24-39), that the income tax ts unconstitutional as a direct tax, that wages are not income, and that evidence gathered in a civil tax investigation may not be used in a criminal tax investigation, are without merit and do not warrant further review. See, e.g., United States v. LaSalle National Bank ,437 U.S. 298 (1978); United States v. Powell, 379 U.S. 48 (1964), Commissioner v. Smith, 324 U.S. 177, 181(1945); Brushaber v. Union Pacific R.R., 240 U.S. 1 (1916); United States v. Quilty, $41 F. 2d 172 (7th Cir. 1976). 6 any, that petitioner was afforded an opportunity to recon- sider and ignored it, or that he was aware of the inadequacy of such a return and deliberately and intentionally pro- ceeded to file the return anyway (II Tr. 399-400). These jury instructions are substantially the same as those approved by this Court in United States v. Pompo- nio, 429 U.S. 10 (1976). The district court was not required to use the words “evil motive” or “bad intent,” as petitioner sought (Pet. 18-19). All that is required is instructions that communicate the proper notion of specific intent in under- standable terms. United States v. Hawk, 497 F. 2d 365, 369 (9th Cir. 1974). This intent is the deliberate intention not to file returns that the taxpayer knew ought to be filed. United States v. Matosky, 421 F. 2d 410, 412 (7th Cir.), cert. denied, 398 U.S. 964 (1970).5 The instructions here ade- quately met these requirements. As for petitioner's “good faith” arguments (Pet. 22-23), the district court’s instructions (I1 Tr. 399-400) were con- sistent with the Fifth Circuit's statement that this defense “assumes that a good faith claim of the privilege is not made at one’s peril and that erroneous taxpayers will be afforded the opportunity to reconsider their responses * * *.” United States v. Johnson, 577 F. 2d 1304, 1311 (Sth Cir. 1978). But as the Court stated in United Staies v. Sullivan, supra, 274 U.S. at 263, “If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all.” Petition- er’s blanket claim was tantamount to filing no return at all. ‘This reasoning also applies to the element of willfulness required for a conviction under 26 U.S.C. 7205 for willfully filing a false withholding certificate. A “bad purpose” or “evil motive” instruction is not neces- sary. United States vy. Malinowski, 472 F. 2d 850, 855 (3d Cir.), cert. denied, 411 U.S. 970 (1973). 5 Indeed, his acknowledged reason for his blanket claim was to prevent discovery of his false withholding form—a pur- pose quite inconsistent with any “good faith” defense. See also United States v. Wellendorf, 574 F. 2d 1289 (Sth Cir. 1978).6 It is therefore respectfully submitted that the petition for a writ of certiorari should be denied. Rex E. Lee Solicitor General NOVEMBER 198] *Contrary to petitioner's assertion, the decision below does not con- flict with Cooley v. United States, 501 F. 2d 1249 (9th Cir. 1974), cert. denied, 419 ''.S. 1123 (1975). This claim rests upon his contention that Cooley allows for a good faith defense. But as we have noted, the district court gave an instruction on good faith (Il Tr. 399) which closely parallels that given in Cooley, supra, $01 F. 2d at 1253 n.4. DOJ-1981-11 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0394%3A0. Public record. Not legal advice.