*1 above, experts. As discussed of medical ALJ did not. conclude the similarly find Stubbs-Danielson’s identify specif- the ALJ did
claim that The VE testified jobs unpersuasive.
ic lim-
that someone with Stubbs-Danielson’s product “small as- perform
itations could
sembly jobs sedentary at the level” and jobs” sorting existing
“packaging description numbers. Such a
significant
sufficiently specific identify jobs In- abilities.
match Stubbs-Danielson’s
deed, assembly sorting occupa- several correspond to Stubbs-
tions the DICOT limitations.
Danielson’s See DICOT 713.687-018, 734.687-018,
§§ 521.687-086. disagree
Accordingly, we with Stubbs- testimony claim that the
Danielson’s VE’s
was inconsistent with the DICOT and the hypothetical.
ALJ
IV. reasons, the foregoing
For we AFFIRM judgment of the district court. America,
UNITED STATES
Plaintiff-Appellee, EASTERDAY,
Jack E. Defendant-
Appellant.
No. 07-10347. Appeals,
United States Court of
Ninth Circuit.
Argued and Submitted June Aug. Filed Davis, DC, Gregory Washington, V. for
plaintiff-appellee United of Amer- ica. Riordan, Francisco, CA,
Dennis P. San defendant-appellant E. Jack Easter- day.
1177 by subsequent Su- fectively eradicated authority. Court preme binding that Poll is Easterday contends ex court has never on us because district court it. The overruled pressly and M. MARY SCHROEDER Before: good law. longer no that Poll was held SMITH, Judges, and Circuit RANDY N. court. Poll’s the district agree with FAIRBANKS,* BAKER VALERIE government prove Judge. District had sufficient funds on a definition premised the tax was pay SCHROEDER, Judge: Circuit some element included willfulness that truth enduring case illustrates This subse Supreme motive. The evil sage observation Franklin’s of Ben any such definition rejected quently taxes.” but death and certain “nothing is See United in the tax statutes. willful a conviction for from It an appeal 12, 10, 97 429 U.S. Pomponio, v. States taxes, payroll employee over failure (1976) cu 22, (per 12 50 L.Ed.2d de- § 7202. The of 26 U.S.C. in violation 498 riam); v. United see Cheek also sought Easterday, Jack fendant-appellant, 604, 201-02, 112 in order instruction” “ability (1991). an in the tax “Willful” L.Ed.2d 617 that his failure contend to vio voluntary, intentional context means “willful,” Cheek, was not he owed legal duty. the taxes See over of a known lation money 604; other 201-02, on spent 111 United he had (9th Powell, 1211 and therefore could expenses v. business States Cir.1992). words, you know due. if when was other pay it to the you in- do not give the taxes and you refused to owe The district them, willfully. Poll you acted subsequently was have struction, Easterday occasionally in be referred continued to thirty months and sentenced convicted contexts, sup in the child principally other prison. Ballek, States area. United port See drawn instruction was requested (9th Cir.1999); H.R.Rep. 871, 874 of this of a 1975 portion from a (1992). not, It is at 6 howev No. F.2d 329 court, States v. United affirm. therefore er, tax law. We good (9th subse- Cir.1975), have that we never Background in the context of favorably cited quently nursing taxes. a chain Easterday operated failure to prosecution through a Ninth Circuit California upon an earlier in turn homes Northern relied Andros, Ad- Equity F.2d decision, Employee corporation, States v. parent United (“EEA”), and its subsidiaries. circuits that two other ministration payroll the total rejected. See United Between have expressly (5th EEA and its subsidiaries Tucker, liability for F.2d tax States quarter Ausmus, the fourth period from for the Cir.1982); quarter of Cir.1985). the fourth through signifi- 1998 Most $26,018,869was $44,864,162, of which holding of Poll formed cantly, the filings companies’ Although paid. was ef- instruction proposed for the basis * California, by designation. Fairbank, sitting Unit- trict Valerie Baker The Honorable Judge De- for the Central District ed States liabilities, its tax Easter-
accurately provided stated United States v. day, through corporation, repeatedly follows: over to the Internal Revenue
failed to “willfully” The word a volun- means *3 (“IRS”) payroll the full amount of Service tary, intentional violation of a known due. taxes legal duty, and not through ignorance, Easterday’s companies The IRS sent mistake, negligence, gross negli- even requesting payment numerous notices of words, gence, or accident. other the taxes. notices delinquent the When those voluntarily defendant must have acted payment, in the IRS sent did not result intentionally specific and with the informing Easterday’s companies notices something intent to do he knew the law levy against company’s each intent to of an prohibited; say, that is to with the in- Although Easterday coopera- was assets. disobey disregard tent either to or the full responsibil- IRS and took tive with the law. delinquency, pattern tax ity for the continued. IRS assessed nonpayment case, In the context of this order accounts, corporate when against but
liens government for the to meet its burden forthcoming, still not it even- payment was charges. tually filed criminal the a reasonable charged Easterday doubt, government with 109 it must prove that on the dates pay counts of failure to over taxes in viola- the taxes were due the taxpayer pos- § tion of 26 U.S.C. with each count sessed sufficient funds to be able to representing quarter a different in which legal obligations govern- meet his to the EEA and its the taxes of subsidiaries were ment or that lack of the sufficient funds deficient. (or on such date was created was the of) voluntary act, result and intentional
Easterday
dispute
did not
that he failed
justification in light
without
of the finan-
pay
when due.
the taxes
His defense
cial
taxpayer.
circumstances of the
simply
was
that he lacked the financial
ability
comply
obligations.
with his tax
give
The district court declined to
Although the district court ruled that abili-
instruction,
jury
but did instruct the
that
relevant,
ty
pay
Easterday
was not
the
had the burden of proving
put
testimony
nursing
able to
on
that the
good
the defendant did not have a
homes
struggling financially
were
and he
faith belief that
complying
he was
with the
bills,
paying
had trouble
with losses of
laws,
tax
and that a defendant’s belief
$20,000,000
more than
between 1996 and
in good
could be
faith even if it was unrea-
sonable. The court also instructed the
testified,
Easterday’s
witnesses
es-
jury that
permit
“[t]he
laws do not
an
sence,
Easterday
pay
pay-
did not
employer to choose to use the monies held
money
roll taxes because he used the
to in trust for the United States for other
company
keep
other
bills in order to
purposes,
such as to
business ex-
nursing
operational.
homes
Easterday
penses.”
asked the court to
jury
instruct
trial,
Following six-day jury
Easterday
government,
order to
a willful
guilty
was found
on
of 109 counts.
taxes,
failure to
must prove that at the
Easterday’s
The district court denied
mo-
due,
time
the taxes were
had
funds,
judgment
acquittal
tion for a
or
a new
and hence the
obligation.
trial
Easterday’s proposed
and sentenced him to 30 months im-
instruc-
tion
in part
opinion
prisonment,
was drawn
from the
years super-
followed
three
them.
intentionally
did not
tarily and
appeals
now
Easterday
release.
vised
say:
“the
went on to
sentence.
judgment
from
or evil intent’
‘bad faith
connotes
wilfulness
ap-
on
contention
principal
Easterda/s
and want of
‘evil
motive
States
pursuant
peal is
financial circumstances
of all the
view
instruction
was entitled
he
”
Unit-
(quoting
Id. at 534
taxpayer.’
“element”
on
Bishop,
ed States v.
pres-
he
entitled
and was
U.S.C.
(1973)).
36 L.Ed.2d
“element.”
negate
evidence
ent
argues
Easterday
Accordingly,
later,
*4
years
Two
United
give
to
a
declining
court erred
district
the
plausible
apparently
court
found
dis-
it abused its
and that
instruction
Poll
to
that
the failure
taxpayer’s contention
testimony Easter-
limiting
the
cretion
considered
taxes could not be
over the
pay
the financial
concerning
offer
day could
prove
to
he had offered
“willful”
on,
compa-
his
of, and burdens
situation
liquid re-
the
corporation
“that the
lacked
nies.
due and
the full amounts
pay
to
sources
Discussion
deficien-
up
to make
the
he intended
Easterday was
under which
Citing
statute
The
F.2d at 330-31.
521
cies later.”
7202,
fairly
a
is 26
guilty
States,
U.S.C.
found
317
Spies v. United
Andros and
a
that criminalizes
provision
rarely invoked
364,
L.Ed.
492, 497-98,
87
63 S.Ct.
U.S.
fed-
employees’
over
failure
willful
offer of
(1943),
held that Poll’s
we
418
wages.
taxes on
withholding
income
eral
of the
liquid
the
resources
regarding
proof
“[a]ny person
provides
Section
to the determina-
was relevant
corporation
for,
collect,
and
account
...
required
over
the failure
tion of whether
who
by this title
any
imposed
pay over
In the
reasoning authority of state or federal *7 SMITH, Judge, dissenting: N.R. Circuit in a decision of a court of embodied last resort. case, myself In I find between “the by
We hold
the issues decided
place.”
and a hard
I can
proverbial rock
higher
(with
court need not be identical
which I
precedent
either adhere to
Rather,
controlling.
order to be
the rel-
join
majority
I
agree)
do not
or
can
evant court of last resort must have
try
precedent.
and
to overrule bad circuit
theory
reasoning
undercut the
under-
or
I
Although
agree that United States
lying
prior
precedent
circuit
in such
(9th Cir.1975)
Poll,
F.2d
is bad
521
329
way
clearly
that the cases are
irrecon-
law,
controlling
law of this
Poll
is
cilable.
three-judge
circuit and I understand a
precedent
Sand ... expect would “[w]e curiam) (“[A]bsent Cir.2000) a rehear (per motive and include element of evil some banc, authority to we are without ing en all the view of want precedent].”). [controlling circuit overrule taxpayer.” circumstances of the financial however, also, however, majority, has chosen 333. We The Hawk, precedent circuit order around relied on United States write (9th Cir.1974) I they do not like. a result that it is recognize avoid the fol- dissent for respectfully therefore to fail to include the words’ “not error ” First, majority legally lowing reasons. determining when evil motive’ and/or longer good is no by finding errs F.2d at 332. “willfully” standard. Second, in find- of its error law. correctly recognizes that majority by Pomponio, that Poll was overruled ing Supreme Pomponio “in endeav- incorrectly affirms the district majority that such misconception to erase the ored refusal to instruct court in its formulations, including the ‘evil different that Easter- prove government Spies, actually es- formulation of motive’ financial to meet day had the Pompo- tablished different standards.” Thus, I reverse and obligations. would nio, that the term “willful- the Court held trial, because Easter- for a new remand “proof any motive ly” require does not an element of the day’s violation of other than an intentional needed to crime legal duty.” 429 U.S. known a reasonable doubt. explained the mean- 22. The Court stating that of willfulness ing I. Discussion Court, fact, recognized that questions: separate Poll discusses two con- “willfully” generally ... the word (b) (a) willfulness, the relevance voluntary, intentional violation notes a *8 demonstrating inability an evidence duty. It has formulated legal a known of a failure in to rebut the willfulness order of willfulness as “bad requirement the taxes. See employee payroll over intent,” and or “evil motive faith or evil (“These raise two at 331 actions of all the view want of foregoing defi- whether the questions: Viz. taxpayer,” of the financial circumstances and whether ‘willfully’is correct nition of taxpayer “should knowledge that the presence the offered to rebut the evidence income than he did.” reported more have inadmissi- was irrelevant and of willfulness formulations to other ble.”). Our references willful- In we held the modify not the stan- correct, the standard did and that the of was ness definition ‘willfully’ gener- ... the word inability was relevant dard [that evidence of vi- voluntary, intentional See id. a presence ally the of willfulness. connotes rebut legal duty]. olation of a known however, incorrectly con- majority, (internal omit- quotations citations and Id. cludes that “Poll’s ted). had prove that dock, 78 L.Ed. of “evil 290 U.S. Thus, when the formulation even (1933), used in ex- held that purpose” “bad motive” or willfulness, standard plaining the [Wjillfulness act requires proof that the Willfulness, in is not modified. standard knowledge wrong- was done with was laws, a “simply means context of a of ful. The Court discussed number violation of a known voluntary, intentional ways expressing type specific 12-13, 97 duty.” Id. at S.Ct. legal intent, among the terms mentioned added) Hawk, (citing (emphasis purpose” were “bad and “evil motive.” 368); at see also Cheek United However, purpose neither bad nor 192, 201-02, S.Ct. independent is an element of evil motive (1991). require- is no L.Ed.2d 617 There a willful failure to file under purpose government prove bad ment merely a “con- The term “evil motive” is justification. or evil motive want expression shorthand to distin- venient 12-13, at Pomponio, 429 U.S. See guish liability based on conscious Hawk, 22; holding at wrongdoing liability from on mere based with the in Poll is therefore consistent Thus the carelessness or mistake.” Pomponio definition of willfulness. way, in a the more expresses, term brief cumbersomely concept specific stated we held that “to establish will- Murdock, in- concept intent establish be- fulness the Government must ultimately convey. structions must time yond a reasonable doubt that This, think, all that was Murdock- taxpayer possessed due the payment was Bishop-meant the use of that funds to enable him to meet his sufficient term. obligation or that the lack of sufficient (or was
funds on such date was created
(internal
Hawk, 497 F.2d at
citations
of) voluntary
and intentional
the result
omitted).
justification in view of all the
act without
Thus,
quoted Supreme
although Poll
taxpayer.”
financial circumstances of the
precedent regarding the inclusion of
Court
added).
(emphasis
willfulness. See 429 U.S.
term “willfulness” Poll was the same
(noting
that “as the other
Courts
Pomponio.
Poll’s defi
used Hawk and
ques-
Appeals
have considered
on a
premised
nition willfulness was
recognized, willfulness in this
tion have
*9
requires
that
an evil mo
belief
simply
voluntary,
inten-
context
means
Poll, therefore,
or
still
purpose.
tive
bad
legal duty”
tional violation of a known
ability
pay
that the
to
is relevant to
holds
366-69)).
Hawk,
(citing
497 F.2d at
willfulness,
Pomponio
demonstrate
discussed,
Although Pompo
did not state otherwise.
As
our determination will-
Hawk,
relied,
question,
in
nio did discuss the willfulness
see
part,
fulness
on
12-13,
approved
portion
in 429
at
the
Supreme
which the
Hawk,
In
noted that the
of our decision in Poll that created an
Pomponio.
Court,
proving ability
Mur-
additional
to
Supreme
United States v.
proposi-
the
for
F.3d 1180
by Pomponio.
undermined
not
pay was
both
that Poll
is inconsistent with
proving
tion
requirement of
for Poll’s
The basis
Gilbert,
In
and common sense.
Pomponio
been elimi-
therefore not
ability
pay
to
argued “that his failure to
from this
the defendant
subsequent decision
No
nated.
not will-
withholding
court of last
tax was
pay
a relevant
over the
or from
circuit
requirement pre-
not have the
ful because
did
[his business]
has overruled
resort
regarding ina-
at
that
the taxes.” 266 F.3d
1185.
pay
in Poll
evidence
funds to
sented
pres-
pre-
to rebut
“that it
pay
government responded
is relevant
bility
Poll,
F.2d at
willfulness. See
evidence at trial
Gil-
ence of
sented sufficient
hold,
(“We believe,
and so
intentionally paid net
voluntarily
bert
proof regarding
offer of
employees
knowledge
defendant’s
with
wages to his
and his
corporation
liquid
being
resources
not
re-
withholding
taxes were
later
the deficiencies
up
to make
intention
IRS.” Id. This court affirmed
mitted
effort to
admissible
relevant and
that the evidence was suffi-
on the basis
pay
failure to
willfulness of the
however,
refute the
court,
did not
cient. See Id. This
over.”).
ability
explicitly
implicitly
overrule
rule. The district court Gilbert
pay
Poll be-
also did not overrule
Pomponio
instruction,
court
given a Poll
and this
had
Poll address differ-
Pomponio and
cause
for
criticize the district court
hav-
did not
Supreme
Pomponio,
In
issues.
ent
fact,
this court did not
ing done so.
holding in
Court, affirming this court’s
Pompo-
rule or
ability
pay
reference the
Hawk,
not an
that evil motive is
held
court
instead discussed how
nio. This
filing false income
element of
independent
§
concern “whether
7202 re-
Poll did not
§ 7206 and
under 26 U.S.C.
tax returns
both account for and
quired
[to
the failure
are
evil motive
regarding
instructions
tax],
instead ad-
withholding
over
but
pay
unnecessary. 429 U.S.
thus
how to define willful-
dressed the issue of
contrast,
this court
This
7202.” Id.
ness under
considered whether
required
§ 7202
held that “whether
capable of
that a defendant was
for and
to both account
the failure
F.2d at
obligations.
meeting his
tax,
That hold-
dicta.” Id.
over the
were
ability
noted that the
specifically
333. We
however,
whether
does not address
ing,
contrary
Hawk
rule was not
as a defense.
can be used
fail-
“a [w]illful
because Hawk addressed
merely
wheth-
discusses
therefore
Gilbert
],”
return[
income tax
ure to file
federal
[a]
ac-
the failure to both
requires
§ 7202
er
pay.”
a failure to
“involving
a crime
withholding tax.
over
count for and
af-
Pomponio
Because
error “because element of the to find each
opportunity doubt.” Mar- a reasonable
crime 422, 423 Cir. Borg, 937
tinez
1991). rejected large The district Easterday’s regarding of evidence
amount Be- financial difficulties. homes’
nursing rationally lead “could this evidence
cause to the finding respect with contrary
ato element,” court’s error the district
omitted Easterday is entitled not harmless trial. Neder United
to a new
(1999). FERRELL, Bobby
In the Matter of
Jr., Debtor, McDonald, Appellant, A.
Kathleen
Checks-N-Advance, Inc., Appellee.
No. 06-17243. Appeals,
United States Court of
Ninth Circuit.
Argued July Submitted Aug.
Filed