# Opposition Brief — Greenlee v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 985

## Text

INDEX

CITATIONS
Page
Cases:

Brady v. Maryland, 373 U.S. 83 .......cccccccccesesessssessosees 8
Cooley v. United States, 501 F. 2d 1249,

certiorari denied, 419 U.S. 1123 ..............ce eee eee 5
Couch v. United States, 409 U.S. 322..............cceecceeee 10
Lumetta v. United States, 362 F. 2d 644...............000665 6
Moore ¥.. iain, GEE Aa. TO isesavcaniisnavevndesy tterneisass 8
United States v. Bengimina, 499 F. 2d 117................ 5
United States v. Bishop, 412 U.S. 346 ..........cccceeeeeeee 4
United States v. Cirrillo, 251 F. 2d 638,

certiorari Genied, 356 U.S. DAD un. .ccccccescsssncsvesscccessees 6
United States v. DeGeorgia, 420 F. 2d 889...............:. 7
United States v. Hawk, 497 F. 2d 365,

cortaorari Gerke, BIG UB. BF ei vicsscescckstnssnsiernsteecens 5
United States v. Lachmann, 469 F. 2d 1043,

certiorari Geman’, 401 US. FE cis vsccissisesercccesesssnsesine 5
United States v. Malinowski, 472 F. 2d 850,

certiorari Genied, 411 U.S. 97D woic...cccccossescssescesesseses 5
United States v. McCorkle, 511 F. 2d 482,

certiorari denied October 6, 1975,

Pie FO cali eih canhdedeteasch since assatnch tion eae 4-5
United States v. Ming, 466 F. 2d 1000,

sertiorars Gemied, BOG TIS. DAD caccccscsscescccsencenpescossess 5
United States v. Murdock, 290 U.S. 389.................064 4
United States v. Newman, 468 F. 2d 791,

cortsarars ee GET US. De ivcnssikesdsnscccncsscicsesccwsns 7

POTS BE PI DIL EOI OID a Ft OE

United States v. O’Connor, 433 F. 2d 752,
certiorari denied, 401 U.S. 9111 ..........................05-... 6

United States v. Pohlman, C.A. 8, No. 74-1759,
decided August 27, 1975, pending on petition
for a writ of certiorari,

edie et Sch intedia cra ctcdvebantvistocnsennicgcncesavees 5
United States v. Re, 336 F. 2d 306,
GErtscears Gems, S79 U.S. FOS ...0.c.sccevsvvsnnnsersceseveces 7
United States v. Russo, 480 F. 2d 1228,
certiorari denied, 414 U.S. 1157 ....................ssceeeeees 7
United States v. Snider, 502 F. 2d 645.000... eeeeeeee 5
United States v. Vitiello, 363 F. 2d 240.000... eee 5
Statutes:
ee Es WEEN 240s vuceacdvdadacs mecenclsceicudecusbauWevdeeeuscves i
NR I VEE Uo nas celia niceoha pecan daa dase kone cassaceovercerneacionels 6
Miscellaneous:

Rule 17(c), Federal Rules of Criminal Procedure ...9-10

il

PT ORS aT BO Re eet

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-151
JAMES W. GREENLEE, PETITIONER
Vv.

UNITED STATES OF AMERICA

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

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

After a jury trial in the United States District Court for
the Eastern District of Pennsylvania, petitioner was con-
victed of willful failure to file federal income tax returns
for the years 1970 and 1971, in violation of 26 U.S.C.
7203. The district court fined him $5,000 on each of the
two counts and placed him on probation for three years

(Pet. App. B, pp. A30-A31). The court of appeals affirmed
(Pet. App. A).

The evidence may be summarized as follows: Peti-
tioner, an attorney, received sufficient income in 1970 and
1971 from the Redevelopment Authority of the City of
Philadelphia to require the filing of federal income tax
returns. After various officials of the Internal Revenue
Service testified as to the procedures for handling tax
returns and the operation of the Service’s data process-

(1)

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2

ing system (R. 389a et seq., 479a eft seq.),' the govern-
ment introduced into evidence a computer-printed “Trans-
cript of Account” (Gov't Ex. 7) and a manually-prepared
“Certificate of Assessments and Payments” (Gov't Ex.
6). Both of these documents reflected that the Internal
Revenue Service had no record that petitioner had filed
a tax return for the year 1970. The Transcript of
Account also reflected the fact that although the filing
date for petitioner’s 1971 tax return had been extended
to May 19, 1972, the Service had not received his return
for that year until January 2, 1973. The government also
introduced in evidence a one-page excerpt from a list of
names of persons, which included petitioner, to whom
notices of delinquency in the filing of returns for the
year 1970 were sent in April 1972. Moreover, an Internal
Revenue Service employee testified that on September 12,
1972, a notice (Gov't Ex. 11) was sent to petitioner
informing him that the Service had no record that he
had filed his 1971 return.

The evidence also established that on December 26,
1972, petitioner met with an Internal Revenue Service
agent, who confronted him with the fact that the Service
had no record that he filed returns for either 1970 or
1971. Petitioner told the agent that he had filed his
return for 1970 in a timely fashion (R. 537a) and that
he had mailed his return for the year 1971 during the
week prior to the interview (R. 538a, 579a). The next
day, petitioner delivered to the agent copies of what
purported to be his tax returns for the years 1970 and
1971 (Gov't Exs. 14, 15). These copies bore information
substantially corresponding to the figures which peti-
tioner had recited to the agent on the previous day (Pet.
App. A, p. A3).

R.” refers to the record appendix filed in the court of appeals.

3

Petitioner testified that he mailed his 1970 return on
the night of April 15, 1971 (R. 837a) and that he mailed
his 1971 return at his office on December 24, 1972.
He further stated that, despite the fact that he received
a notice from the Service in September 1972 that his
1971 return had not been received, he did not file
that return until December 1972 because his return for
that year was more complicated than usual (R. 852a)
and because of his involvement during that year in an
investigation of the Redevelopment Authority (R. 853a-
854a). On cross-examination, petitioner admitted that he
filed a City of Philadelphia “Combined Business Tax
Return” (Gov't Ex. 21) for the year 1970 in April 1972
(R. 1016a), and that the amounts claimed for business
expenses on his city return were less than those claimed
for the identical expenses on the alleged federal return
for 1970 (R. 1027a-1028a). This city return was thereupon
admitted in evidence (R. 1124a).

Petitioner also presented a witness whose name ap-
peared directly below that of petitioner’s on the list of
persons to whom the Service purportedly sent notices of
nonfiling for 1970. This witness testified that his return
for 1970 had been timely filed and a refund paid to him,
and that he had never received a notice that the Service
had no record of a return for him for 1970 (see R. 754a
et seq.). A computer expert testified on behalf of peti-
tioner concerning possible areas of error in both the
input and retrieval aspects of the Internal Revenue
Service’s data processing system (R. 763a ef seq.).

1. Petitioner first argues (Pet. 15-17) that the trial
court’s instruction on the element of willfulness was
erroneous. The court instructed the jury as follows
(R. 1203a):

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4

The word “willful” as used in these statutes means
voluntary. It means purposeful, deliberate, and
intentional as distinguished from accidental, inad-
vertent or negligence. Mere negligence, even gross
negligence, is not sufficient to establish willfulness.
An act is done willfully if done knowingly and with
a specific intent to do something that the law
forbids, that is to say, with a bad purpose, either
to disobey or disregard the law.

The only bad purpose or bad motive necessary
for the Government to prove in this case, however,
is the deliberate intention not to file returns which
the defendant knew ought to be filed.

In United States v. Bishop, 412 U.S. 346, this Court
held that the word “willful” in the criminal tax stat-
utes “connotes a voluntary, intentional violation of a
known legal duty” (412 U.S. at 360). The instruction
here is in complete accord with the Bishop definition
of “willful.” Nothing in Bishop requires that the trial
court employ any particular words in its instructions
to the jury on willfulness. The reference in Bishop
(412 U.S. at 361) to “the bad purpose or evil motive
described in Murdock” (United States v. Murdock,
290 U.S. 389) does not impose such a requirement.
While the Court in Murdock formulated the requirement
of willfulness in terms of “bad faith or evil intent”
(290 U.S. at 398), that case does not require that the
trial court employ those precise words in its instructions
to the jury. As the Court pointed out in Bishop (412
U.S. at 360), the Murdock definition of willfulness
is synonymous with the “voluntary, intentional violation
of a known legal duty” standard. Both formulations are
designed to “separate the purposeful tax violator from
the well-meaning, but easily confused, mass of taxpay-
ers” (412 U.S. at 361). See also United States v.

5

McCorkle, 511 F.2d 482 (C.A. 7) (en banc), certiorari
denied October 6, 1975, No. 74-1371; Cooley v. United
States, 501 F.2d 1249 (C.A. 9), certiorari denied,
419 U.S. 1123; United States v. Hawk, 497
F.2d 365 (C.A. 9), certiorari denied, 419 U.S. 838.
None of the cases relied upon by petitioner (Pet. 16
n. 2, 17)? require that the phrases “bad purpose” or
“evil motive” be included in every instruction to the
jury on willfulness. See United States v. Pohlman,
C.A. 8, No. 74-1759, decided August 27, 1975 (en banc),
pending on petition for a writ of certiorari, No. 75-483.

Petitioner further suggests (Pet. 16-17) that use of
the terms “bad purpose” and “evil motive” by this
Court indicates that the government must establish
that petitioner acted with some purpose to conceal his
tax liability from the government in order to prove a
willful failure to file. There is, however, no such
requirement. A conviction for failure to file under
26 U.S.C. 7203 requires proof only that the defendant
was aware of his duty to file a tax return and volun-
tarily and intentionally did not do so at the time re-
quired by law. See, e.g., United States v. McCorkle,
supra, S511 F.2d at 485; United States v. Lachmann,
469 F.2d 1043, 1045 (C.A. 1), certiorari denied, 411 U.S.
931; United States v. Ming, 466 F.2d 1000, 1005 (C.A. 7),
certiorari denied, 409 U.S. 915. The motive for failing to
meet his legal obligation is irrelevant. United States v.
Malinowski, 472 F.2d 850 (C.A. 3), certiorari denied, 411
U.S. 970.

2. Petitioner also argues (Pet. 15-17) that there was a
total absence of evidence that he acted willfully. Peti-
tioner was an attorney with a substantial income during

?United States v. Snider, 502 F.2d 645 (C.A. 4); United Siates
Vv. Bengimina, 499 F.2d 117 (C.A. 8): United States v. Vitiello,
363 F.2d 240 (C.A. 3).

APS Se ait nts We al Rede etetena ls

bis TRS A Re EP eat

6

the years at issue and had filed returns for the years
prior to 1970 (Gov't Exs. 6, 7). The testimony of
Special Agent Patella established that petitioner was
aware of his obligation to file timely tax returns. The
evidence also established that defendant did not file
a tax return for 1970, did not mail his 1971 tax return
until after a meeting with Agent Patella on December
26, 1972, and misrepresented prior to and during the
trial both the fact of filing the 1970 return and the time
of filing the 1971 return. From this evidence, the jury
was amply justified in concluding that petitioner had
voluntarily and intentionally failed to file tax returns
which he knew he was required to file. See, eg.,
United States v. O’Connor, 433 F.2d 752, 754 (C.A. 1),
certiorari denied, 401 U.S. 911; Lumetta v. United States,
362 F.2d 644, 645-646 (C.A. 8); United States v.
Cirillo, 251 F.2d 638, 639 (C.A. 3), certiorari denied,
356 U.S. 949.

3. Petitioner further argues (Pet. 18-21) that the rec-
ord-keeping system of the Internal Revenue Service
is not sufficiently reliable to permit a finding of non-
filing to be based solely on the negative evidence that
his returns were not found. The evidence (Gov't Exs.
6, 7) that reflected that there was no record that peti-
tioner filed his 1970 return was admitted pursuant to
the Federal Business Records Act, 28 U.S.C. 1732
(Pet. App. B, p. A1l6). That Act permits the use in
evidence of records “made as a memorandum or record
of any act, transaction, occurrence, or event, *** as
evidence of such act, transaction, occurrence, or event,
if made in regular course of any business, and if it was
the regular course of such business to make such
memorandum or record at the time of such act, trans-
action, occurrence, or event within a reasonable time
thereafter.” The Federal Business Records Act has been

held applicable to computer printouts (United States
v. Russo, 480 F.2d 1228, 1240 (C.A. 6), certiorari
denied, 414 U.S. 1157) and to permit admission of computer
printout sheets as evidence of the lack of a particular
transaction (United States v. DeGeorgia, 420 F.2d 889,
891-894 (C.A. 9)).

Here, the government presented evidence that tax
returns were regularly processed through the Internal
Revenue Service’s electronic data processing system and
that entries were made in the regular course of business.
The procedures for handling returns, entering information,
and preparing transcripts of assessments and payments
were also fully explained. Although petitioner attempted
to demonstrate discrepancies in the government’s ex-
hibits, his evidence did not diminish their status as
regularly kept official records and therefore did not
affect their admissibility but went only to the weight to
be given to them by the jury. United States v. Newman,
468 F.2d 791, 796 (C.A. 5), certiorari deneied, 411 U.S.
905; United States v. Re, 336 F.2d 306, 313 (C.A. 2),
certiorari denied, 379 U.S. 904. Thus, the court of appeals
correctly concluded (Pet. App. A, p. A5) “that the govern-
ment’s evidence that the IRS had no record of a return,
when evaluated in light of the evidence as to the record-
keeping procedures of the Service.” was sufficient to
permit the jury to conclude that petitioner did not file
his 1970 tax return.

4. The trial court instructed the jury that the mere
possibility that petitioner’s 1970 return did not arrive at
the Service Center or was not recorded on the computer
was insufficient to raise a reasonable doubt that petitioner
failed to file it (see R. 1207a-1209a; Pet. 22-23, n. 3).
Petitioner contends (Pet. 21-24) that the effect of this
instruction was to shift the burden of proof and to relieve

8

the prosecution of its burden of proving guilt beyond a
reasonable doubt. But the trial court repeatedly advised
the jury that the government bore the burden of establish-
ing guilt beyond a reasonable doubt (R. 1207a-1209a). As
the court of appeals correctly recognized (Pet. App.
A, p. A8), the instruction did not shift the burden of proof,
but simply advised the jury that the government was
only required to proye petitioner’s guilt beyond a reason-
able doubt and was not required to prove that there
was no possibility whatsoever that petitioner’s return
was not received or recorded.

5. Petitioner further contends (Pet. 24-28) that the
government withheld from the defense information that
should have been disclosed under Brady v. Maryland,
373 U.S. 83. This claim relates to a list of names of
persons whom the Internal Revenue Service believed had
not filed tax returns for the year 1970 and to whom
notices allegedly had been sent advising that no return
had been received and requesting an explanation. In
petitioner’s view, he could have used this list to locate
witnesses who would testify that they had filed returns
for 1970 despite the fact that their names appeared on
the list, thereby impeaching the reliability of the data
processing system.? But even assuming this list was
Brady material (see Pet. App. A, p. All), petitioner
made no request for this information (Pet. App. A, p.
Al0) as required by Brady. See Brady v. Maryland,
supra, 373 U.S. at 87. See also Moore v. Illinois,
408 U.S. 786, 794-795.4

3The question whether the entire list is subject to discovery by
the defendant is presented in Liebert vy. United States, petition
for a writ of certiorari pending, No. 75-157.

4Moreover, petitioner did not object to the government’s use of
this evidence, and he was even able to find a witness whose name
appeared on the list who testified that he in fact filed his 1970 tax
return (Pet. App. A, p. A10). Petitioner thereby argued in his closing
statement to the jury that the Service’s records were inaccurate
because of the error on this one-page excerpt.

6. Finally, there is no meit to petitioner’s contention
(Pet. 28-30) that the £0V€Il ment improperly obtained a

copy of petitioner’s city tay return for the year 1970.
The return was produced by the Revenue Commission
of the City of Philadelphia pursuant to a court order
(Pet. 29, n. 8) that the return be supplied to the
federal grand jury. The order did not limit the use to
which the return would be put, and petitioner cannot now
complain that the grand jury turned this return over to
the prosecution after indicting him for failing to file his
federal tax returns. At all events, even if the use of the
city return’ could not propefly rest upon the grand jury
subpoena and court order, 4 trial subpoena could have
been issued for its productO" under Rule 17(c) of the

to impeach petitioner’s testimony
claim that he did not have time
‘| tax return until December 1972,
file his 1970 city tax return in
: A9). The return was also used to
April 1972 (Pet. App. A, pp. A8ner claimed that he had filed his
demonstrate that although petitigegeral return must not have been
1970 federal tax return, the 1970 Jed his 1970 city return in April
prepared at the time petitioner fctions claimed on his city returns
1972, since business expense dedtidentical expenses on the alleged
were less than those claimed fororoduced in December 1972 (Pet.
copy of the 1970 federal return |
App. A, p. AQ).

‘The return was properly used
by demonstrating that despite hi:
during 1972 to file his 1971 feder
he nevertheless found time to

DOJ-1975-11

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ohh uate eater Paiva

10

Federal Rules of Criminal Procedure. Petitioner could
not have raised any defense that would have then barred
the production of the city return.®

For the foregoing reasons, it is respectfully submitted

that the petition for a writ of certiorari should be
denied.

RoBERT H. Bork,
Solicitor General.

NOVEMBER 1975.

Petitioner complains (Pet. 29-30) that he had no opportunity to
object to the initial production of his city tax returns. But the
local ordinance which permits production specifically provides for
production pursuant to court order (see Pet. 28). Petitioner thus can-
not reasonably assert an expectation of privacy or confidentiality
in these returns insofar as a court order is concerned. See Couch
v. United States, 409 U.S. 322, 335-336.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1590%3A2. Public record. Not legal advice.