Supplemental Brief — McCorkle v. United States

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

No. 74-1371

CHARLES D. MCCORKLE, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

SUPPLEMENTAL MEMORANDUM FOR

THE UNITED STATES IN OPPOSITION

In our memorandum in opposition (pp. 4-5), we

argued that the decision below did not conflict with

United States v. Pohlman, 510 F.2d 414 (C.A. 8).

In addition, we noted that Pohlman was not a final

decision, since the Eighth Circuit had granted re-

hearing en banc in that case.

On August 27, 1975, the Eighth Circuit unani-

mously reversed the original panel decision in Pohl-

man. Thus, there is no longer any arguable basis for

(1)

2

petitioner’s assertion of a conflict with that case. The

en bane opinion of the court of appeals is set forth

in the Appendix to this supplemental memorandum.

It is respectfully submitted that the petition for a

writ of certiorari should be denied.

ROBERT H. BorRK,

Solicitor General.

la

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 74-1759

UNITED STATES OF AMERICA, APPELLEE

Vv.

BERENTJE C. M. POHLMAN, APPELLANT

Appeal from the United States District Court

for the District of North Dakota

Submitted: June 11, 1975

Filed: August 27, 1975

Before GIBSON, Chief Judge, LAY, HEANEY, BRIGHT,

Ross, STEPHENSON, WEBSTER, and HENLEY, Cir-

cuit Judges, en banc.

2a

GIBSON, Chief Judge.

Defendant Berentje C. M. Pohlman was convicted

by a jury of willfully failing to file her tax returns

for 1968, 1969 and 1970 in violation of 26 U.S.C.

§ 7203 (1970). On appeal a panel of this court found

that the jury had not been properly instructed on the

issue of willfulness and reversed her conviction.

Thereafter a majority of the judges in active service

on this court voted to rehear the case en banc, which

action vacated the panel opinion. After full consid-

eration by the court en banc, we find none of the

issues raised by appellant merit reversal and affirm

the conviction.

Pohlman, a practicing attorney in Enderlin, North

Dakota, according to her testimony at trial had pre-

pared thousands of tax returns and was fully aware

of the Internal Revenue Code provisions requiring

the filing of tax returns. She, however, did not file

her personal returns for the years in question until

October, 1972, after a visit by an IRS field auditor.

The reasons given at trial were that she was involved

in her positions as City Attorney and Mayor of En-

derlin in 1969 and 1970 and had some personal prob-

lems so that she did not realize until after the filing

deadlines that she had income sufficient to require

filing. The returns introduced into evidence at trial

indicated that in 1968 she had a gross income from

her profession of $22,785 and a taxable income of

$7,988; for 1969 she had a gross income of $18,452

and taxable income of $3,269; and for 1970 a gross

income of $28,896 and $8,278 taxable income.

3a

Error is asserted in the trial court’s refusal to give

Pohlman’s requested instruction on willfulness.’ The

following instruction, substantially identical to that

in 2 E. Devitt & C. Blackmar, Federal Jury Practice

and Instructions §52.31 (1970), was given over Pohl-

man’s specific objection:

The specific intent of willfulness is an essen-

tial element of the crime of failure to file an in-

come tax return. The word “willfully” used in

connection with this offense means deliberately,

and intentionally, and without justifiable excuse,

or with the wrongful purpose of deliberately in-

tending not to file a return which defendant

knew she should have filed, in order to prevent

the Government from knowing the extent of, and

knowing the facts material to, the determination

of her tax liability.

Defendant’s conduct is not “willful” if she

acted through negligence, inadvertance, or mis-

take, or due to her good faith misunderstanding

of the requirements of the law. It should be

pointed out, however, that disagreement with

the law is not a defense. It is the duty of all

1 Defendant’s requested instruction read:

2. Willfulness is an essential element of the crime of

which defendant is charged in the indictment. An act

is done “willfully” if done purposely with the specific

intent to disregard the law, or to do that which the law

forbids, and further means an act done with a bad pur-

pose, the existence of specific wrongful intent, and evil

motive at the time the crime charged was committed;

mere laxity, careless disregard of duty imposed by law,

or even gross negligence, unattended by “evil motive,” is

not probative of willfulness.

4a

citizens to obey the law whether they agree with

it or not.

The panel decision, in agreeing with Pohlman that

the trial court’s charge did not adequately describe

the concept of willfulness, would require the Gov-

ernment to prove not only that the act was done de-

liberately, intentionally and without justifiable ex-

cuse, but additionally that the defendant had a state

of mind which manifested a bad purpose or evil motive

to violate the law. It thus would allow a defendant

to argue that his motive in refusing to “'e was good,

i.e., it was his manner of protest aga st wasteful

governmental expenditures, expenditures that go for

inappropriate or evil purposes, or the higher taxation

of single taxpayers as was an issue in the present

case. We do not think this additional burden is re-

quired.

It is undisputed that the words “evil motive or bad

purpose” have been used to convey the concept of will-

fulness embodied in § 7203. United States v. Bishop,

412 U.S. 346, 360 (1973) ; United States v. Murdock,

290 U.S. 389, 398 (1933) ; United States v. McCorkle,

511 F.2d 482, 485 (7th Cir. 1975) (en banc), petition

for cert. filed, 17 Cr.L.Rep. 4082 (U.S. May 1, 1975)

(No, 74-1371). The Supreme Court in Murdock v.

United States, supra at 397-98, did state that:

The respondent’s refusal to answer was inten-

tional and without legal justification, but the

jury might nevertheless find that it was not

prompted by bad faith or evil intent, which the

statute makes an element of the offense.

5a

Additionally, in Bishop v. United States, 412 U.S.

346 (1973), the Court stated that it would “continue

to require, in both tax felonies and tax misdemeanors

that must be done ‘willfully,’ the bad purpose or evil

motive described in Murdock, supra.”

We do not read this, however, to indicate that the

Court was engrafting onto the statute a requirement

that the Government prove anything beyond estab-

lishing that defendant’s action was deliberate, inten-

tional and without justifiable excuse, or otherwise

stated, a voluntary, intentional violation of a known

legal duty.’ In the same discussion in Bishop, the lat-

est Supreme Court case in this area, the Court stated:

2 The claim that the trial court’s instruction does not ade-

quately define willfulness is premised on the use of “without

justifiable excuse” when the Supreme Court indicated in

Murdock that it was not enough for the Government to prove

that an action was “without legal justification.” We believe

that these two concepts are different and that “without justi-

fiable excuse” includes the concept intended by the Court’s

“bad purpose” or “evil motive” language. An act might well

be without legal justification (i.e., the refusal to disclose

sources of income in reliance on a nonexistent Fifth Amend-

ment privilege, as in Murdock) but could be done with justi-

fiable excuse (i.e., a good-faith reliance on the Fifth Amend-

ment privilege, as in Murdock). We think the Supreme Court

was concerned in Murdock that the Government have to prove

that an act was done without justifiable excuse, that is, with

a bad purpose or evil motive, and could not rely upon show-

ing the lack of a legal justification to establish willfulness.

However, it must be recognized that clarity and unam-

biguity are the hallmarks of a good jury instruction. In light

of the similarity in language between the two concepts dis-

cussed above we think it would be preferable that future in-

6a

The Court, in fact, has recognized that the

word “willfully” in these statutes generally con-

notes a voluntary, intentional violation of a

known legal duty. It has formulated the require-

ment of willfulness as “bad faith or evil intent,”

Murdock, 290 U.S., at 398, or “evil motive and

want of justification in view of all the financial

circumstances of the taxpayer,” Spies, 317 U.S.,

at 498, or knowledge that the taxpayer “should

have reported more income than he did.” San-

sone, 380 U.S., at 353.

Bishop v. United States, supra at 360.

Thus, rather than indicating that “bad purpose or

evil motive” is a requirement to be proved in addi-

tion to the voluntary, intentional violation of a known

legal duty, the Court’s statement indicates that “bad

purpose or evil motive” is merely another way to

convey the concept of willfulness. See United States

v. McCorkle, 511 F.2d 482 (7th Cir. 1975) (en banc).

structions on willfulness not embody the language of “with-

out justifiable excuse.” We would suggest that the first para-

graph of the instruction given by the trial court herein be

modified to provide that:

Willfulness is an essential element of the crime of fail-

ure to file an income tax return. The word “willfully”

used in connection with this offense means a voluntary,

intentional violation of a known legal duty, or otherwise

stated, with the wrongful purpose of deliberately intend-

ing not to file a return which defendant knew she should

have filed, in order to prevent the Government from

knowing the extent of, and knowing the facts material

to, the determination of her tax liability.

* The court stated therein:

Contrary to the defendant’s contentions, we believe that

the Court employed the terms “bad purpose” and “evil

Ta

Cases decided both before and after Bishop have

been in agreement that “willfully” as used in § 7203

requires only that the Government prove a voluntary,

intentional violation of a known legal duty. United

_ States v, McCorkle, 511 F.2d 482 (7th Cir. 1975)

(en banc); United States v. Bengimina, 499 F.2d

117 (8th Cir, 1974); United States v. Hawk, 497

F.2d 365 (9th Cir.); cert. denied, 419 U.S. 838

(1974); United States v. Klee, 494 F.2d 394 (9th

Cir.), cert. denied, 419 U.S. 835 (1974); United

States v. Matosky, 421 F.2d 410 (7th Cir.), cert.

denied, 398 U.S. 904 (1970); cf. Boardman v. United

States, 419 F.2d 110 (1st Cir. 1969), cert. denied,

397 U.S. 991 (1970).

The trial court’s instruction on willfulness in this

ease fairly and adequately charged the jury as to

what the Government had to establish to support a

conviction. There was clearly sufficient evidence for

the jury to find that Pohlman’s failure to file was a

‘ voluntary, intentional violation of a known legal duty.

. In addition to the alleged error in instructions, the

appellant contends that the court erred in the admis-

sion into evidence of conversations with Internal

Revenue agents, receiving into evidence photocopies

motive” as a convenient method of referring to the longer

definition of “willfully” as a “voluntary, intentional vio-

lation of a known legal duty,” and not as engrafting an

intent to defraud requirement or other similar evil pur-

pose on that definition.

United States v. McCorkle, 511 F.2d 482, 485 (7th Cir. 1975)

(en banc); accord, United States v. Hawk, 497 F.2d 365, 368

(9th Cir.), cert. denied, 419 U.S. 838 (1974).

Pees iii ieeianiediensennensaiiindeniceneiieesiientiniieatn AP Rase

8a

of her 1968, 1969 and 1970 returns, and use of

hearsay evidence in the cross-examination of appel-

lant.

Agent Engelmann testified to conversations oc-

curring in Pohlman’s office on or about October 3,

1972, without informing her of her constitutional

right to remain silent. In that conversation she ad-

mitted to not having filed the returns. Noncustodial

investigation of this type does not require a Miranda

warning. United States v. MacLeod, 436 F.2d 947,

950 (8th Cir.), cert. denied, 402 U.S. 907 (1971);

United States v. Brevik, 422 F.2d 449, 450 (8th

Cir.), cert. denied, 398 U.S. 943 (1970); Muse v.

United States, 405 F.2d 40, 41 (8th Cir. 1968), cert.

denied, 393 U.S. 1117 (1969); Cohen v. United

States, 405 F.2d 34, 35-40 (8th Cir. 1968), cert. de-

nied, 394 U.S. 943 (1969).

The appellant’s objection to admission of photo-

copies of her 1968, 1969 and 1970 returns is not well

taken. Mr. Engelmann, the IRS Field Audit Agent,

testified that these photocopies were the returns

which Pohlman signed in his presence October 11,

1972. Although Pohlman had contended that they

were merely photocopies of returns she had previously

filed, the record establishes that they were adequately

identified as being the original returns filed with

Engelmann October 11, 1972.

The questioning of Pohlman concerning her prior

statements to Internal Revenue agents as to her fail-

ure to file returns was not error. The questioning

sought testimony as to Pohlman’s prior inconsistent

9a

statements, As Pohlman was a party-defendant, her

hearsay statements could properly be used against

her as admissions. United States v, Pistante, 453

F.2d 412 (9th Cir. 1971). See generally McCormick

on Evidence J 289 (1954).

The judgment of conviction is affirmed.

LAY, HEANEY and BRIGHT, Circuit Judges, Dissent-

ing.

We respectfully dissent. The defendant is entitled

to a new trial based on the trial court’s erroneous

instruction.

We sense there exists no fundamental disagree-

ment between the majority and dissenting views

herein on the law governing the definition of willful-

ness under § 7203. At issue here is the adequacy of

the district court’s instructions; in other words

whether the district court properly conveyed to the

jury the necessary elements of the offense under

§ 7203. The majority concedes lack of clarity in the

district court’s instruction and suggests modification

of the instruction. However, in doing so, it finds no

prejudicial error.

In view of the Supreme Court opinion in United

States v, Bishop, 412 U.S. 346 (1973), there should

exist no major dispute as to what the term willful

means under § 7203. Bishop emphasized that an es-

sential element of willfulness is a specific intent to

evade the law. The Supreme Court in Bishop ob-

served:

The Court’s consistent interpretation of the word

“willfully” to require an element of mens rea

10a

implements the pervasive intent of Congress to

construct penalties that separate the purposeful

tax violator from the well-meaning, but easily

confused, mass of taxpayers.

Id. at 361.

This court in United States v. Bengimina, 499 F.2d

117 (8th Cir. 1974), recognized that the term willful

is consistent with the rule in Bishop. Judge Gibson

in announcing the court’s decision at that time wrote:

This requirement of willfulness has been formu-

lated as:

“TBlad faith or evil intent,” Murdock, 290 U.S.

at 398, or “evil motive and want of justification

in view of all the financial circumstances of the

taxpayer,” Spies, 317 U.S., at 498, or knowledge

that the taxpayer “should have reported more

income than he did.’”’ Sansone, 380 U.S., at 353.

Id. at 119 (emphasis added).

Our earlier panel opinion recognized that it is not

essential to include the terms “bad purpose or evil

motive” in the definition of willfulness as long as the

trial court makes clear that willfulness is a “volun-

tary, intentional violation of a known legal duty.”

The panel also recognized that the decisions of United

States v. Hawk, 497 F.2d 365 (9th Cir.), cert. denied,

419 U.S. 838 (1974), United States v. Klee, 494

F.2d 394 (9th Cir.), cert. denied, 419 U.S. 835 (1974)

and United States v. McCorkle, 511 F.2d 482 (7th

Cir. 1975) (en banc), petition for cert. filed 17 Cr.L.

4082 (U.S. May 1, 1975) (No. 74-1371) all hold that

the statute does not require proof of intent to defraud.

lla

The trial court instructed the jury that the defend-

ant could be convicted if she intended not to file a

return when she knew she should file. However the

court also instructed the jury that the defendant

could be guilty under § 7203 if she simply failed to

file “deliberately, intentionally and without justifiable

excuse.” ‘ If we correctly understand the reasoning

of the majority opinion it is urged that “without

justifiable excuse” supplies the missing element of

mens rea, that is the bad purpose and evil motive

not to comply with a known legal duty. The majority

reasons that in the future it would be better to

abandon the phrase “without justifiable excuse” and

instruct specifically that there must be a voluntary

and intentional violation of a known legal duty.’ We

‘In setting this meaning of willfulness off from the rest of

the instruction the trial court uses the disjunctive “—e.

> We fail to understand why the language of the majority

opinion strains so hard to avoid use of the very language the

Supreme Court approved in Murdock and Bishop. “Bad pur-

pose and evil motive to disobey the law” is clearly an element

of the offense and are words easily phrased and understood.

A much preferred instruction to the abbreviated version sug-

gested by the majority is approved by the 9th Circuit in United

States v. Klee, supra. The instruction reads:

The term willfully used in the statute which I have

read to you, that is, referring to one who willfully fails

to make such a return, means voluntary, purposeful, de-

liberate and intentionally, [sic] as distinguished from

accidental, inadvertent, or negligent.

Mere negligence, even gross negligence, is not sufficient

to constitute willfulness under the criminal law.

The failure to make a timely return is willful if the

defendant’s failure to act was voluntary and purposeful,

12a

agree as to the need for new phraseology, but we re-

spectfully submit the ambiguity resulting from the

district court’s instruction failed to clearly set forth

the necessary requirement of mens rea and resulted

in prejudicial error to the defendant.

The majority reasons that the term “without jus-

tifiable excuse” is simply another way of saying that

the jury must find a wrongful purpose to disobey the

law. In so doing, the majority distinguishes between

“without justifiable excuse” and “without legal jus-

tification,” asserting that the former is a subjective

standard and includes the necessary element of mens

rea: bad purpose and evil intent. While distinguish-

ing this from the objective standard of “without legal

justification” is instructive at this point, no such dis-

and with the specific intent to fail to do what he knew

the law requires to be done; that is to say, with a bad pur-

pose or evil motive to disobey or disregard the law which

requires to (sic) file a timely return which discloses to

the government facts material to the determination of his

tax liability.

There is no necessity that the government prove that

the defendant had an intention to defraud it, or to evade

the payment of any taxes, for the defendant’s failure to

file to be willful under this provision of the law.

On the other hand, the defendant’s conduct is not will-

ful if you find that he failed to file a return because of

negligence, inadvertence, accident or reckless disregard

for the requirements of the law, or due to his good faith

misunderstanding of the requirements of the law.

494 F.2d at 395 n. 1.

Devitt and Blackmar have recently recommended use of the

9th Circuit instruction. See E. Devitt and C. Blackmar,

Federal Jury Practice and Instructions § 52.31 (Supp. 1975).

13a

tinction was drawn for the jury and they may have

confused the two standards.*

Herein lies the prejudice. The jury could have be-

lieved the reason Ms. Pohlman gave for failing to file,

a reason which negates mens rea, and yet have found

her guilty. Their verdict could have resulted from a

belief that, although the defendant’s excuse was the

reason, it was not justifiable under the law. The

statute plainly requires more. The jury must find

that her failure to file arose from a bad motive and

evil intent not to file a timely return, fully aware of

her obligation to do otherwise.’

* The term “without justifiable excuse” encompasses at least

the term “without legal justification.” Even if it also en-

compasses the requisite bad purpose and evil motive, as the

majority argues, there is no way of knowing whether the jury

found the bad purpose required by Murdock and Bishop.

™ The second paragraph of the challenged instruction does

not cure the deficiency created by the ambiguity of the term

“without justifiable excuse.” It is true that the defendant’s

conduct is not “willful” under the statute, “if she acted

through negligence, inadvertance, or mistake, or due to her

good faith misunderstanding of the requirements of the law.”

However, these criteria are stated as defenses, and do not

specifically define the government’s burden to show that the

defendant must have possessed a wrongful purpose in failing

to file. It is imperative for the instruction to clearly convey

that the government must bear the burden of proving beyond

a reasonable doubt that the defendant had the requisite bad

purpose and evil motive to evade the law's requirements. Thus,

the second paragraph of the instruction is insufficient to cure

the ambiguity of the preceding paragraph.

The first paragraph could have been cured by replacing

the “or” with “and.” If this were done, the jury would have

had to find that the offense was done “deliberately, and inten-

tionally, and without justifiable excuse,” (even if considered to

l4a

In United States v. McCorkle, supra, the defendant

urged that the trial court failed to instruct that the

defendant could not be convicted of willfulness under

§ 7203 if he possessed a “justifiable excuse.” The 7th

Circuit disagreed by saying:

Since the instructions required the jury to find

an intentional violation of a known legal duty, it

would have been essential for the jury to con-

clude that McCorkle’s conduct was unjustified.

511 F.2d at 486.

However, in this case it was not implicit in the jury’s

findings that the defendant’s reason was unjustifiable

that it was also an intentional violation of a known

legal duty. An unjustifiable excuse for failure to file

does not necessarily inform a layman that it must

necessarily be an intentional violation of the law and

thus the instruction was deficient.

In United States v. Achtenberg, 459 F.2d 91 (8th

Cir.), cert. denied, 409 U.S. 932 (1972) this court

emphasized that prejudicial error occurs when the

jury is not clearly informed as to the elements of an

offense. Our court stated:

“Obviously, if the jury is to function effectively,

it must be given a clear statement of each ele-

ment which the Government must prove. The

elements, as expressed in the statute, are hardly

mean without legal justification) and “with the wrongful pur-

pose of deliberately intending not to file a return which de-

fendant knew she should have filed... .” This would have

clearly set out the requirement of bad purpose and evil motive.

15a

set forth with sufficient clarity to permit the

jury to perform its duty intelligently ... .”

Id. at 97, quoting from Jackson v. United States, 348

F.2d 772, 774 (D.C. Cir. 1965).

It is axiomatic where the instruction is equivocal

in a criminal trial the defendant must be given the

benefit of doubt as to existing prejudice. See Bollen-

bach v. United States, 326 U.S. 607, 613 (1946).

Here the jury was given the alternative of convict-

ing if they found the defendant possessed a wrongful

purpose to disobey the law or even if she did not, as

long as they found there did not exist a justifiaole

excuse for her failure to file. This was clear error

and Ms. Pohlman is entitled to a new trial.

A true copy.

Attest:

CLERK, U.S. CoURT OF APPEALS,

EIGHTH CIRCUIT

TW sv. S. GOVERNMENT PRINTING OFrice; 1975 592750 30