Opposition Brief — Parker v. United States

Office - Supreme Court, U.S.

(,) FILED

No. 84-517 NOV S30 1686

RST ry A,

CLERK

In the Supreme Court of the Unites States —

OCTOBER TERM, 1984

LARRY R. PARKER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH 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:

Bernabei v. United States, 473 F.2d 1385,

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Sansone v. United States, 380 U.S. 343 .......

United States v. Greenlee, 517 F.2d 899,

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United States v. Pohlman, 522 F.2d 974,

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

United States v. Tucker, 686 F.2d 230,

cert. denied, 459 U.S. 1071... ccc ccccyeess

Statute:

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Iu the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-517

LARRY R. PARKER, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORA Ri TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Following a jury trial in the United States District Court

for the Northern District of Florida, petitioner was con-

victed of three counts of willful failure to file income tax

returns, in violation of 26 U.S.C. 7203. He was sentenced to

three concurrent terms of one year in prison, fined $15,000,

and assessed the cost of the prosecution (Pet. App. A3-A5).

The court of appeals affirmed (Pet. App. Al).

1. The evidence at trial, the sufficiency of which is not in

dispute, showed that petitioner failed to file federal income

tax returns for 1978, 1979, and 1980. A criminal investiga-

tion was commenced by the Internal Revenue Service in

1981, and petitioner was interviewed by the special agent

assigned to the case. After being advised of his right to

remain silent and his right to counsel, petitioner stated that

he had not filed his individual federal income tax returns for

1978, 1979, or 1980. He further stated that he was aware of

(1)

2

his responsibility to file, that he had no legitimate reason for

failing to file, and that he simply had procrastinated and put

off filing the returns. Tr. 126-130. During the relevant time.

period, petitioner was president of the Eglin National Bank

of Fort Walton Beach, Florida (Tr. 180-181).!

Petitioner conceded at trial that he had a duty to file

returns for his 1978, 1979, and 1980 tax years and that he

had failed to file returns for those years (Pet. 4). The only

issue in dispute was whether his failures to file were willful.

Petitioner argued that he had not acted willfully, but had

negligently failed to file his returns as a result of personal

and business difficulties (Pet. 5; Tr. 190).

With regard to the element of willfulness, the trial court,

over petitioner’s objection, read the following instruction to

the jury (Pet. App. Al1-A12):

The third element which the government must prove

beyond a reasonable doubt is the [sic] defendant's fail-

ure to make and file the returns in questions [sic] was

willful. I instruct you that the term “willful,” for pur-

poses of these instructions, means voluntarily, means

voluntary, [sic] deliberately and intentionally, as dis-

tinguished from accidentally, inadvertently or negli-

gently.

'In early 1977, the Internal Revenue Service, with petitioner’s know-

ledge, conducted a criminal investigation into petitioner’s failure to file

returns for his 1972 through 1975 tax years (Tr. 108). A decision was

made not to prosecute, and the case was referred for civil settlement (Tr.

109-111). During the course of the civil portion of the investigation it

was determined that petitioner also had failed to file individual federal

income tax returns for the 1976 and 1977 tax years (Tr. 116). The

revenue agent assigned to the case discussed with petitioner his respon-

sibility to file income tax returns and petitioner told the agent that “he

had his tax area straight * * * and would be prepared to file in 1978”

(Tr. 119). ~

3

Negligence, even gross negligence, does not amount

to willfulness. Willfulness involves an intentional vio-

lation of a known legal duty.

There is no necessity for the government to prove

that a defendant had an intention to defraud the

government or to evade payment of any taxes in order

for a defendant’s failure to file to be willful under the

provisions of the law.

A demonstration of a good purpose is not a defense,

nor is it a defense that a person intended to file in the

future, or that he was too busy with personal or busi-

ness affairs. If it is shown that the defendant intention-

ally violated a known legal duty to file a tax return, his

reason for doing so is irrelevant.

The jury convicted petitioner on all three counts (Pet. 8).

The court of appeals affirmed by order (Pet. App. Al).

2. Petitioner claims (Pet. 12-19) that a portion of the irial

court’s instruction regarding willfulness was improper. The

trial court’s charge, however, correctly reflected the govern-

ing principles laid down by this Court and the courts of

appeals.

The single sentence of the instruction challenged by peti-

tioner falls in the middle of the court’s discussion of willful-

ness. The court first stated that the government had the

burden of proving willfulness, and emphasized that willful-

ness was not negligence or gross negligence, but “involves

an intentional violation of a known legal duty” (Pet. App.

All). The court then elaborated upon the definition of

willfulness, noting that the government was not required to

show that the defendant acted with an intent to defraud

(Pet. App. Al1-A12).

The court next stated (Pet. App. A!2):

4

A demonstration of a good purpose is not a defense,

nor is it a defense that a person intended to file in the

future, or that he was too busy with personal or busi-

ness affairs.

Petitioner asserts that this sentence was erroneous as a

matter of law and that it “neutralized” the defense that his

failure to file the returns was the result of negligence. This

argument is plainly without merit. Each portion of the

challenged sentence correctly states the applicable law. The

first statement — that “good purpose is not a defense” — is

supported by United States v. Pomponio, 429 U.S. 10

(1976), in which this Court found that a defendant's motive

is irrelevant under Section 7203, because the applicable

standard is whether the defendant intentionally violated a

legal duty. See also United States v. Tucker, 686 F.2d 230,

232 (Sth Cir.), cert. denied, 459 U.S. 1071 (1982); United

States v. Pohlman, 522 F.2d 974, 976-977 (8th Cir. 1975),

cert. denied, 423 U.S. 1049 (1976). Second, the statement

that “it is not a defense that a person intended to file in the

future” is the holding of this Court’s decision in Sansone v.

United States, 380 U.S. 343, 354 (1965). Finally, it is settled

that preoccupation with personal or business affairs does

not negate an otherwise sufficient showing of willfulness.

United States v. Greenlee, 517 F.2d 899, 903 (3d Cir.), cert.

denied, 423 U.S. 985(1975); Bernabei v. United States, 473

F.2d 1385 (6th Cir.), cert. denied, 414 U.S. 825 (1973).?

?Petitioner attempts (Pet. 16, 18-19) to construe the challenged por-

tion of the instruction as directing the jury to disregard any evidence

regarding petitioner's preoccupation with other matters and his future

intention to file the returns. It is clear that the court was not comment-

ing on the relevance of this evidence, but was stating only that that such

proof could not exonerate petitioner if the jury found that his failure to

file was willful. Indeed, in instructing the jury as to how it should

ascertain petitioner's intent, the court expressly directed the jury to

consider “all of the facts and circumstances shown by the evidence” in

determining whether petitioner acted willfully (Tr. 283).

5

Moreover, this smali portion of the charge relating to

willfulness could not have misled the jury regarding peti-

tioner’s negligence defense. It was qualified by the very next

portion of the instruction, which stated (Pet. App. Ai2

(emphasis added)):

If it is shown that the defendant intentionally violateda

known legal duty to file a tax return, his reason for

doing so is irrelevant.

This passage, and the court's earlier discussion contrasting

willfulness and negligence, made clear to the jury that it

could convict petitioner only if it found that his failure to

file the returns was intentional rather than merely negligent.

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

Rex E. LEE

Solicitor General

NOVEMBER 1984

DOJ-1984-11