Petition for Writ of Certiorari — Serra v. United States

Supreme Court brief1975

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

NO.

J. TONY SERRA, PETITIONER

vs.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

J. TONY SERRA, ESQ.

473 Jackson Street

San Francisco, Ca. 94111

IN PRO SE

is RAY ARCHULETA, ESQ.

4 On The Brief

July 1, 1975

— et ses ood EF a

————

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| ad

INDEX

Opinion Below

Jurisdiction

Question Presented

Statutory Provisions Involved

Statement of the Case

Reasons for Granting the Writ:

1. The Ninth Circuit Court of

Appeals has rendered a

decision in conflict with

the Third, Fourth, Fifth

and Eighth Circuits on the

same matter, viz, the

interpretaticn of Bishop v.

United States, 412 U.S. 346,

36 L.Ed.2d 941 (1973), and

its definition of the

instruction to be given to

the jury on the meaning of

the word “willful," as

applied to Feceral tax

misdemeanors.

2. The Genial of requested

jury instructions was error

where the sole issue

presented was petitioner's

state of mind as it applied

to willfullness.

Page

> WwW Ww NY N

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INDEX (Continued)

Page

Reasons for Granting the Writ

(Continued)

3. The Ninth Circuit Court of 22

Appeals has decided a

question interpreting the

Gecision of this Court in

Bishop v. United States,

Supra, Which is in conflict

with the requirements of

Bishop, viz, the cefinition

to be given to the jury of

the meaning cf the word

"willful" as used in

Instructions to the jvry in

Feaeral tax misdemeanors.

Conclusion 27

Appendix I

Opinion of Ninth Circuit Court

of Appeals

pay iii

CITATIONS

Cases Page

Cooley v. United States, 23,24

501 F.2d 1249 (1974)

Glasser v. United States, 25,26

315 U.S. 60, 67, 86 L.Ed.2d

680, 697,698 (1942)

Mann v. United States, 26

319 F.2d 404, 410 (Sth, 1963)

Morrissey v. Brewer, 28

Z08 U.S. 471, 33 L.Ed.2d

484 (1972)

Smith v. Illinois, 28

390 U.S. 129, 19 L.Ed.2d :

956 (1968)

‘

United States v. Ancros, 24 :

484 F.2d 531 (1973)

United States v. Bishop, 3,8,11,12, a

4i2 U.S. 346, 36 L.Ed.2d 13,14,15, ;

941 (1973) 16,17,20, :

22,24,25, 4

26,27 4

United States v. Bengimina, 16 :

499 F.2d 117 (1974)

Unite@ States v. Goldstein, 13

502 F.2d 526 (1974) s

Unite@ States v. Grady, 20 .

(D.C. Cir, 1973) 481 F.2d

1106, 1108

‘

RCSA ER, CNOA TE

CITATIONS (Continued)

Cases Page

United States v. Gurtner, 24

(Sth, 1973) 474 F.2d 297

United States v. Hawk, 13,22,

497 F.2a 365 (C.A. 9, 1974) 23,24

cert.denied 419 U.S.

838 (1974)

United States v. Klee, 20,21,23

(9th, 1974) 494 F.2d 394

Unitee States v. McCorkle, 16

511 F.2d 477 (7th, 1974),

rehearing En Banc granted,

510 F.2d 414 (8th, 1974) in

511 F.2d 482 (7th, 1975) :

United States v. Murdock, 8,13, :

290 U.S. 389, 398, 15,17 ;

54 Sup.Ct. 223, 78 L.Ed. =

381 (1933)

United States v. Pohlman, 21 -

;

Unitee States v. Snider, 14

——— eee

United States v. Sullivan, 24 %

369 F.Supp. 568 (1974)

United States v. Swanson, 21

50° F.2d 1205 (8th, 1975)

United States v. Tunnell, 15 a

481 F.2d 149 (5th, 1973)

mi ocr

{

}

;

nese ce ere

=—T 1 on TS? LJ

CITATIONS (Continued)

Cases Page

United States v. Walker, 23

497 F.2d 407 (1973)

Wardius v. Oreoon, 28

412 U.S. 470, 37 L.Ed.2d

82 (1973)

Williams v. Florida, 28

399 U.S. 78, 26 L.Ed.2a

446 (1970)

Statutes

26 U.S.C., Section 7201 14,16

Section 7202 14

Section 7203 3,4,14,16

Section 7204 14

Secticn 7205 14

Section 7206 14,16

Section 7207 14,16

28 U.S.C., Section 1254(1) 2

Other Authorities

Federal Jury Practice & 25

Instructions, Devit &

Blackmar, Section 13.03

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

NO.

J. TONY SERRA, PETITIONER

VS.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioner, J. TONY SERRA,

respectfully prays that a Writ of

Certiorari issue to review the judgment

and opinion of the United States Court of

Appeals for the Ninth Circuit entered in

this proceeding on March 24, 1975. .

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o 9

OPINION BELOW

The opinion of the Court of Appeals

as reported, appears in Appendix I hereto.

No opinion was rendered by the District

Court for the Northern District of

California.

JURISDICTION

The judgment of the Court of Appeals

for the Ninth Circuit was entered on March

AIS SED aE PORTED

24, 1975, affirming the judgment of the

District Court below. A timely Petition

for Rehearing En Banc was denied on May 7,

1975. On June 4, 1975, Associate Justice

William J. Grannan, Jr., of the United

States Supreme Court granted a Stay of the

filing of the Writ of Certiorari. There-

after this Certiorari was filed within

thirty (30) days of that date. This :

Court's jurisdiction is invoked under

28 U.S.C., Section 1254(1). ;

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" TCG PERRET eaecerersrs

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QUESTION PRESENTED

WHETHER BISHOP V. UNITED STATES,

412 U.S. 346, 36 L.Ed. 2d 941 (1973),

REQUIRES THAT INSTRUCTIONS TO THE JURY

DEFINING "WILLFULNESS" EMBODY THE CONCEPT

OF "BAD PURPOSE" OR “EVIL MOTIVE."

STATUTORY PROVISIONS INVOLVED

United States Code, Title 26:

"Section 7203. WILLFUL FAILURE TO FILE

RETURN, SUPPLY

INFORMATION, OR PAY TAX.

Any person required under this title to

pay any estimated tax or Tax, or required

by this title or by regulations made

under authority thereof to make a return

(other than a return required under

authority of section 6015 or section

6016), keep any records, or supply any

information, who willfully fails to pay

such estimated tax or Tax, make such

return, keep such records, or supply such

information, at the time or times

required by law or regulations, shall in

addition to other penalties provided by

law, be guilty of a misdemeanor and, upon

conviction thereof, shall be fined not

more than $10,000, or imprisoned not more

than 1 year, or both, together with the

costs of prosecution."

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OI IIT YS CME SS PIR TORTIE IE EN NE ON oe rere

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STATEMENT OF THE CASE

Petitioner J. TONY SERRA, a

practicing attorney in the State of

California, was charged on February ll,

1974, in a three- (3-)Count Information,

with the misdemeanor offense of having

failed to file his Federal tax returns

for the years 1969, 1970 and 1971.

(26 U.S.C., Section 7203)

Represented at all stages of the

trial proceedings In Propria Persona, and

after a jury trial presided over by

United States District Court Judge

ALBERT C. WOLLENBERG at San Francisco,

California, petitioner was acquitted of

the 1969 and 1970 Counts, and was

convicted upon the 1971 Count.

Petitioner was sentenced to a term

" of four (4) months in the custody of the

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Attorney General. §_He was and is at

liberty upon his own recognizance, and

mandate has been stayed by the Ninth

Circuit Court of Appeals. [F.R. App.,

| p. 41(b))

At a pretrial conference conducted

: prior to the trial, it was determined and

agreed that the sole issue to be tried

was the issue of petitioner's state of

mind on the three (3) dates on which the

returns were due.

| "Mr. Youngquist:

.-- The third element,

of course, is the state

7 of mind and the

willfulness with respect

Petitioner has no prior record of tax

violations and is still in active practice.

The gross income involved in the years

1969, 1970 and 1971, is $13,472.50,

$21,089.00, and $19,519.00, respectively.

‘2/

~ Record references are to the Clerk's

Record (CR), one volume; and to the

Reporter's Transcript (RT), one volume.

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"to his omission, and

that will be the

issue for trial ..."

(n.F., 3)

Throughout the pretrial conference it was

apparent to the Court, the prosecution

and to the petitioner that such was the

issue in dispute:

"The Court: Your

defense is that you

--it concerns your

entire state of mind.

4 Mr. Serra: That's

right.

The Court: ot to

what it goe ~ €O,e , the

good or s purpose.

Mr. Serra: That's

absolutely right.

s — a

The Covrt: And

only that.

Mr. Serra: That's

right."

(R.T., 44, emphasis

added)

The Court went on to state:

"You are .going to

state, as I understand

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"it, that you did not

have the bad or evil

purpose that you

consciously believed

that you ..."

(R.T., 44, emphasis

added)

Thus, paramount to petitioner's

defense was his state of mind as it

related to the filing of his tax returns.

Furthermore, that state of mind related

specifically to his honest beliefs that

the war in Indochina was illegal and,

more importantly, that the war was being

supported illegally. Numerous specific

facts and events can be related to support

these beliefs, e.g., failure of Congress

to declare war in a situation of such

magnitude and undertaking; illegal war

operations in Cambodia, Laos and Thailand;

material misrepresentations to the people

of the United States; and so forth. (CR)

;

CREF

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But, regardless of whether or not

these events were illegal or not, it was

petitioner's defense that he honestly

believed them to be illegal, and that his

honest belief was the mental condition

causative of his failure to file, and

such failure therefore was not conceived

with "bad purpose" or “evil motive."

{R.T.- -335) In fact, his acts in this

regard were guided by, and conformed to,

then-existing law as enunciated in United

States v. Murdock, 290 U.S. 389 (1933),

and supported by United States v. Bishop

412 U.S. 346 (1973).

The prosecution, in its opening

statement, informed the jury that:

"... state of mind,

ladies and gentlemen,

is something that you

have to determine.

And that is the

difficult point in

this case. It's really

a yy —_ Se

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CEES. OO WERE. 1S 0

“the only point that

you are going to

have to address

yourselves to. And

you are going to have

to listen very

carefully to the

Court's instructions

on the law as to what

you can consider,

what you should

consider, in the way

of judging what Mr.

Serra's state of

mind was.

In other words, if,

as a matter of law

the facts in this

case show that he

willfully failed to

file these returns."

(Raikes 104-5,

emphasis added)

Numerous other references to the sole

issue to be tried in this case, viz

state of mind, are made apparent by a

reading of the transcript. (See R.T., 5,

6, 10, 13, 2%, 3,» 35, “4, 63.)

After all the parties had agreed

that the sole issue to be tried was state

of mind; and after discussing what the

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state of mind "goes to ..." (R.T., 44);

and after having limited petitioner's

defense to the sole issue of state of

mind and his "beliefs" (R.T., 44, 60-64,

and pointedly on page 36); the Court took

away this sole defense by its refusal to

instruct as requested (R.T., 65-80), and

instructee as follows:

"The only question left

for your determination

is whether the defen- .

dant's failure to

timely file returns for

each of those years was

willful.

The term "willfully,"

used in the statute,

which I have read to

you, means that the

failure to file an

income tax return was

voluntary, purposeful,

deliberate, and inten-

tional, as distinguished

from accidental,

inadvertent or negligent.

The failure to file a

timely income tax

return is willful if

the Government proves

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“beyond a reasonable

doubt that the

defendant's failure

to act was with the

specific intent to

fail to do what he

knew the law requires

to be done; that is

to say, with the

conscious purpose of

disobeying or disre-

garding the law which

requires the defendant

to file a timely

return."

(R.T., 208-9)

The instant case shows no error of

commission--no alleged misrepresentation ‘

of any type--but, rather, a failure to :

act and, as such, state of mind is the

key to any defense. q

REASONS FOR GRANTING THE WRIT 4

1. The Ninth Circuit Court of HM

Appeals has rendered a decision in

conflict with the Third, Fourth, Fifth

and Eighth Circuits on the same matter,

- viz, the interpretation of Bishop vs. *

er oe

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atest na Tie as ne ees

United States, 412 U.S. 346, 36 L.Ed 2d

941 (1973), and its definition of the

instruction to be given to the jury on

the meaning of the word "willful," as

applied to Federal tax misdemeanors.

The rule that the word

"willful" in the tax-crime felony statutes

had a different meaning than in tax-crime

misdemeanor statutes, had divided the

Circuits until this Court's decision in

Bishop v. United States (412 U.S. at 348

N.2, 36 L.Ed. 2d at 944 N.2).

Bishop declared that the,

">. word 'willfully' has the same

meaning in both statutes." The formula-

tion of the requirement of willfulness is

"bad faith or evil intent, -.. evil motive

and want of justification ..." (412 U.S.

at 360, 36 L.Ed. 2d at 951). Until

Congress speaks otherwise, we therefore

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shall continue to require, in both tax

felonies and misdemeanors that must be

done 'willfully,' the bad purpose or evil

motive described in Murdock, supra ...

(412 U.S. at 361, 36 L.Ed. 2d at 951-952).

The Ninth Circuit, in United

States v. Hawk, 497 F.2d 365 (C.A. 9,

1974), cert. denied 419 U.S. 838 (1974),

: held that Bishop does not compel

inclusion of the term “evil motive," and

approved the trial Court's giving of

Instructions omitting the formulation

laid down in Bishop.

The Third Circuit, in United

BOL NTS got a TR PZ

States v. Goldstein, 502 F.2d 526 (1974),

submitted on Rehearing En Banc, stated at

page 529:

POLAR PHA LG

"One of the crucial

factors which must be

present to convert

late filing into a

criminal offense is

willfulness. While

’

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rmiernnert

"this term has been

generally interpreted

to mean a voluntary,

intentional violation

of a known legal duty,

the Supreme Court has

emphasized that bad

faith or evil motive

must exist in tax cases."

The Fourth Circuit, in United States

v. Snider, 502 F.2d 645 (1974), rehearing

En Banc denied, the Court held that:

"...- in United States

v. Bishop, 412 U.S. 346,

the Supreme Court

settled the question of

5 whether the word wilfully

4 has the same meaning in

the felony statutes, 26

U.S.C., Section 7201,

7206, as it does in the

. misdemeanor statutes, 26

U.S.C., Section 7202-

7205, 7207. It does.

The Court also made it

clear that it had

consistently interpreted

Hy the word 'willfully' to

ri reguire an element of

4 mens rea and that

‘until Congress speaks

otherwise, we therefore

shall continue to require,

in both tax felonies and

tax misdemeanors, they

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OT alaial RAM OF gn, SRR Le ARNE SEO te

"must be done willfully,

that bad purpose or

evil motive described in

[United States v.] Murdock

(290 U.S. 389, 398, 54 j

Sup.Ct. 223, 78 L.Ed. 381 .

(1933)] .-.', 412 U.S. }

361, 93 Sup.Ct. at 2017.

Thus, it is no longer

clear, as we would have E

previously thought, that 7

the element of willfull- :

ness in a tax statute is ‘

established by proof of ;

the voluntary, intentional ;

violation of a known legal

duty--without more."

The Fifth Circuit interprets Bishop

to require, as to willful attempt, “evil

motive." United States v. Tunnell, 481

F.2d 149 (5th C.A. 1973) The Court noted

that certain understatements of income by

the taxpayer "permits an inference of

willfullness sufficient to create a jury

question." (481 F.2d at 152) Cbviously,

the Instruction to the jury must involve

the words "evil motive."

Presently before this Court is

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Se MOL EAE Tg ID AP ROR PK AIRS A cp OS TI

United States v. McCorkle, 511 F.2d 477

(7th C.A. 1974), Rehearing En Banc

granted, United States v. McCorkle, 511 F.

24 482 (7th 1975). In McCorkle (1), 511

F.2d 477, the Court held that the dictates

of Bishop required the “evil motive" or

"bad purpose" Instruction. McCorkle (2),

511 F.2d 482, affirmed the lower Court's

conviction of the defendant. Thereafter,

McCorkle filed his Writ of Certiorari

before this Court.

The Eighth Circuit, in conflict

with the Ninth Circuit, has stated in

United States v. Bengimina, 499 F.2d 117

(1974), at 119:

",.. Bishop laid to rest

any Gistinction between

'willful' as used in tax-

felony cases, i.e., 26

U.S.C., Sections 7201 and

7206, and tax-misdemeanor

cases, i.e., 26 U.S.C.,

Sections 7203 and 7207.

Willful is to have the

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EEO DLO PEELE EMT AGO ITEL EOI AEE PEA I IIE

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"same meaning in both

classes of cases.

Bishop, supra, at 349 ..."

2. The cCenial of requested jury

Instructions was error where the sole

issue presented was petitioner's state of

mind as it applied to willfullness.

Petitioner had presented the

Court with a copy of his proposed Jury

Instructions (R.T., 65-80). There were

five (5) Instructions requested. They

were all directed at defining the mental

condition of "willfullness" as including .

the Murdock and Bishop attributes of bad

faith, evil motive and/or bad purpcse.

Said Instructions were denied by the

Court, and the Court thereafter drafted

its own Instruction (R.T., 80). ‘

In limiting petitioner to the

sole issue of state of mind, i.e.,

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petitioner's honest belief, and in

refusing to give the requested Instruc-

tions, the Court took away any defense

that petitioner had. Petitioner pleaded

with the Court for any variation of the

requested Instructions.

The Instructions, as given,

led the jury to believe that petitioner's

state of mind or honest belief was motive,

and thereafter instructed the jury that

motive was not to be considered in its

deliberations (R.T., 209):

"Nor is it a defense

to the charges in the

indictment (sic) that

the defendant failed

to file a return

because he challenges

or sought to challenge

on constitutional,

moral, or other grounds,

the uses to which the

government was putting

his tax money."

EEE TIA APNE ARE PROTA PR ELT PLN RENEY BPE MEE EP

This Instruction, coupled with the Court's

own Instruction on “willfullne s" (which

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is stated in pertinent part below),

effectively denied petitioner a defense.

ae. ee ee

"The failure to file a

timely income tax

return is willfull if

the government proves

beyond a reasonable

doubt that the

defendant's failure to

act was with the

specific intent to fail

to do what he knew the

law requires to be done;

that is to say, with the

conscious purpose of

disobeying or disregarding

the law ..."

(R.T., 209, emphasis

added)

By not instructing the jury as

to petitioner's state of mind, i.e.,

whether his act was done with a

"wrongful purpose," “evil motive," or was

an act done without ground for believing

it to be lawful (R.T., 66-67, petitioner's

Proposed Instruction Number 4), the Judge

took the issue of willfullness from the

jury; cf. United States v. Grady (D.C.

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Cir., 1973), 481 F.2d 1106, 1108. The

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Judge made his own determination that

petitioner's act was not a result of his

state of mind, after having limited him

to that issue.

The crime alleged was a crime

Foe.

of omission, or failure to act and, as

such, state of mind was the key to any

TAT EP LOIRE aT EAR

defense presented by petitioner.

In the instant case, there is

no question that petitioner objected to :

the form of the Instruction and requested

that he be given "bad purpose" or “evil

motive" (R.T., 79-81). The same trial

F Court which tried petitioner herein hac

been the trial Court in United States v.

Kiee (9th, 1974), 494 F.2d 394. In that

case, the Court had given the Instruction

required by Bishop, supra, and had

included the terms "bad purpose and evil

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motive." (Klee, supra, at 395, fn.1)

Thus, the Instructions as

given forced the jury to convict

petitioner even though jury members might

have believed his good-faith reasons for

failing to file. In United States v.

Pohlman,

510 F.2d 414 (8th 1974), the

Court stated at 418:

",... The jury must find

that her failure to

file arose from a bac

motive and evil intent

to commit an illegal

act, fully aware of

her obligation to do

otherwise.

Since bad purpose and

evil motive are essential

elements of willfulness

under Section 7203, we

see no reason that the

jury should be afforded

the ambicuity of an

instruction which

possibly denotes 3/

otherwise ..." -