UNITED STATES of America v. Salvatore VITIELLO, Appellant
No. 15260
United States Court of Appeals Third Circuit
Argued Nov. 30, 1965. Decided June 15, 1966.
The Reviser‘s Note to
Putting aside the question of the status under
Although under the circumstances existing in this case it is not necessary to so decide, we could not reach a contrary result even if we did not believe that the reviser‘s notes were authoritative in this case. It would be difficult to hold that a governmental corporation in which the government at one time owned all stock, but which had retired its stock, would not meet the definition of
Having found that the Corporation is an “agency” within the meaning of the final clause of
The order of the district court is affirmed.
Seymour Gelzer, Paramus, N. J., for appellant.
Jerome D. Schwitzer, Asst. U. S. Atty., Newark, N. J. (David M. Satz, Jr., U. S. Atty., Newark, N. J., on the brief), for appellee.
Before HASTIE, GANEY and FREEDMAN, Circuit Judges.
The appellant has been convicted of “willfully” failing to file federal income tax returns for the years 1958 and 1959 in violation of the provision of
At three different points in the charge the court defined willfully as follows:
“* * * And the word is employed to characterize such conduct as marked by a careless disregard whether or not one has a right to so do.”
* * * * * *
“* * * And by the term wilfully, as used in the statute, means with a bad purpose or without grounds for believing that one‘s act is lawful or with such a careless disregard whether one has a right so to act.”
* * * * * *
“The word wilful * * * means with a bad purpose or without grounds
for believing that one‘s act is lawful or without reasonable cause or capriciously or with a careless disregard whether one has a right so to act.” [Italics added.]
Our examination of the issue thus raised begins with the much cited opinion in United States v. Murdock, 1933, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381, relied on by the dissent in the instant case and presumably the basis of the lower court‘s instruction. In Murdock, the defendant was convicted for failing to give required tax information in violation of an earlier statute from which
“The word is also employed to characterize a thing done without ground for believing it is lawful * * * or conduct marked by careless disregard whether or not one has the right so to act * * *.” 290 U.S. at 394-395, 54 S.Ct. at 225.
However, this enumeration of different meanings of willfully in various contexts should not be read as a statement that several definitions, among them the one last quoted above, are comprehended by the criminal statute in question. Indeed, rather than adopting a number of meanings, the Court proceeded to consider the context of the misdemeanor section and concluded that willful as an element of the offense connoted “bad faith or evil intent“. 290 U.S. at 398, 54 S.Ct. at 226. Spies v. United States, 1943, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418, is to the same effect. There the Court stated that willfulness, for purposes of both the misdemeanor in question and the felony of “willfully” attempting to evade taxes includes “some element of evil motive and want of justification in view of all the financial circumstances of the taxpayer“. 317 U.S. at 498, 63 S.Ct. at 368.
Instructions which define an act as willful when done “without ground for believing it is lawful“, or when “marked by careless disregard whether or not one has the right so to act“, have been rejected by this court as improper dilutions of the scienter required by
Our affirmative statements of the meaning of “willfulness” in
“Willfulness is an essential element of the crime proscribed by [the misdemeanor section] * * *. It requires existence of a specific wrongful intent—an evil motive—at the time the crime charged was committed * * *. Mere laxity, careless disregard of the duty imposed by law, or even gross negligence, unattended by ‘evil motive’ are not probative of ‘willfulness‘“. 259 F.2d at 882.
Similar language appears in United States v. Litman, supra at 209. The “willful” requirement means an act both “intentional and reprehensible“, United States v. Goldman, 3d Cir., 1965, 352 F.2d 263, 265 n. 3, “attended by knowledge of the legal obligation and purpose to prevent the government from getting that which it lawfully requires“. United States v. Cirillo, 3d Cir., 1957, 251 F.2d 638, 639.
“The difference between the two offenses, it seems to us, is found in the affirmative action implied from the term ‘attempt,’ as used in the felony subsection.” 317 U.S. at 498, 63 S. Ct. at 368.
“* * * [For the felony] Congress intended some willful commission in addition to the willful omissions that make up the list of misdemeanors.” 317 U.S. at 499, 63 S.Ct. at 368.
It is true that, by this language, Spies makes a distinction between the criminality of the misdemeanor and the criminality of the felony. United States v. Long, 3d Cir., 1958, 257 F.2d 340. However, this distinction is found in the additional misconduct which is essential to the violation of the felony statute, examples of which are given in Spies at page 499 of 317 U.S., at page 368 of 63 S.Ct., and not in the quality of willfulness which characterizes the wrongdoing. Thus, in Sansone v. United States, 1965, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882, the defendant, indicted and tried for the
Actually, one of the conclusions of the Court in Spies was that to be convicted of failure to pay a tax, the misdemeanor, the failure must be characterized by “some element of evil motive” because to convict in absence of such scienter would violate “our traditional aversion to imprisonment for debt“. 317 U.S. at 498, 63 S.Ct. at 367.
It follows that it was error in this case to instruct the jury that it might find “willfulness” within the meaning of
We have not overlooked the fact that the defendant did not except to the erroneous portions of the charge. However, we think the language of the charge constituted “plain error” of a prejudicial sort, which a reviewing court may and should correct as authorized by the saving clause of
Since this case must be retried, we add an admonition against repetition of another error. Apparently, the court‘s purpose at one point in the charge was to state the familiar principle that “[a] series of defaults, indicating a pattern of behavior, knowingly and intentionally made, may suggest the existence of the specific ‘evil motive.‘” See United States v. Palermo, supra, 259 F.2d at 882. However, the court charged as follows:
“In determining the state of mind or intent with which the accused did the acts charged in the particular counts and where proof of an earlier act or [sic] like nature is established, it is clear and conclusive, you members of this jury may draw, therefore, the inference that in doing the acts charged in the particular count under deliberation the accused acted wilfully and
with specific intent and not because of inadvertence or any other innocent reason.”
As given, this instruction is at least confusing. And, to the extent that the clause “it is clear and conclusive” makes prior failure to file conclusive evidence of bad motive on a subsequent occasion, the instruction is seriously erroneous. It should not be repeated.
The judgment will be reversed and the cause remanded for a new trial.
GANEY, Circuit Judge (concurring and dissenting).
I concur in the result here reached that a new trial should be granted, but I am in disagreement with the basic ground for reversal upon which the majority predicates its judgment, that is the lower court‘s recourse in its charge—interlarded with other criteria of willfulness—to the phrase, “a careless disregard whether one has a right so to act“, in defining willfulness under
It is important to keep in mind the following facts shown at the trial, for the word “willful” is a word of many meanings, depending upon the context in which it is used, Zimberg v. United States, 1 Cir., 142 F.2d 132, 137, and it is submitted on the facts developed at trial that the court‘s charge with respect to willfulness, under the factual situation here obtaining, was a correct one. The supervisor of Internal Revenue testified that there was no record of a personal income tax return of the appellant for the years 1958 and 1959; additionally, his gross income for 1958 showed that he had an income of at least $11,800.00, and for the year 1959, $24,316.70; one Herbert Dorfman, a public accountant, who was employed by the appellant, notified him that he should take care of his personal income tax return for 1958; another accountant for the appellant‘s corporation, Michael Carl, testified that he began his employment in March of 1959, though not for the appellant personally, and appellant told him that all his tax returns prior to 1959 had been filed. In spite of the fact that the appellant testified that he knew he had filed returns for the years 1958 and 1959 because Carl had made them out for him, Carl testified he was never asked nor did he ever do any personal accounting for the appellant; Gerald Baker, appellant‘s accountant at the time of trial, testified he was employed by the appellant in June of 1960, and that he filed appellant‘s tax returns for 1960 through 1963, but that he first learned from an Internal Revenue agent that appellant‘s 1958 and 1959 tax returns were not filed, yet appellant never advised him that he was being investigated for failure to make these returns, although the record shows that appellant knew he was being investigated concerning the same at the time; Irwin D. Marks, another accountant who was employed sometime during the year 1960, testified that he discussed the 1959 return with the appellant before April 15, 1960, and the appellant advised him that he had not filed a return, and asked him to secure an extension of time within which to file a return, which Marks did, and he got an extension from the Internal Revenue Service until June 15, 1960; the appellant never provided Marks with information necessary to make up
A mere recitation of these facts, in my judgment, shows a series of acts done intentionally and designedly, a conscious, deliberate choice to disregard the command of the statute or what is tantamount thereto, “a careless disregard whether one has right so to act“. The phrase must be considered in its totality. It connotes not carelessness as such, but that which gives to it the facet of willfulness, the balance of the phrase, “a careless disregard of whether one has a right so to act“.
In order to properly evaluate the charge of the court below, it will be necessary to quote, in some detail, certain portions of the charge complained of, in proper context:
“So, therefore, members of the jury, it must be established by the Government beyond a reasonable doubt that the acts charged in the information and in violation of the statute were done willfully. And the word willfully as used in the statute, denouncing such acts means that which is intentionally or knowingly or voluntarily done as distinguished from accidentally. And the word is employed to characterize such conduct as marked by a careless disregard whether or not one has a right to so do. So that at first glance, members of the jury, you will note that the gist of the offense as charged in the information is willful failure on the part of the defendant to file a return.”
* * * * * *
“So keep in mind, members of the jury, that it is incumbent upon the Government to prove these things and to prove that he did violate the law, if he did do so, knowingly and willfully. And by the term willfully, as used in the statute, means with a bad purpose or without grounds for believing that one‘s act is lawful or with such a careless disregard whether one has a right so to act.
“The word willful, again let me state to you, members of the jury, as used in the two counts of the information, that is the failing to make a tax return, means with a bad purpose or without grounds for believing that one‘s act is lawful or without reasonable cause or capriciously or with a careless disregard whether one has a right so to act.”
* * * * * * * *
“* * * And of course in this case the Government charges the defendant intentionally, willfully and knowingly failed to file his income tax returns for the years of 1958 and 1959.”
As has been indicated, there was no objection by able counsel for the appellant to the court‘s charge at the close thereof and, accordingly, if error is to be found, it must come under the Plain Error Rule, 52(b), Federal Rules of Criminal Procedure.2
Accordingly, in order to determine the fairness of the phrase as a standard for willfulness under
A landmark case in the construction of the term is United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381, decided September 11, 1933. Here, the defendant was indicted under § 1114(a) of the Revenue Act of 1926, a misdemeanor, which is the same as § 145(a) of the Revenue Act of 1939, which, in turn, is embodied in
The offense here charged is the failure to file a tax return which, it is to be remembered, is a violation of an administrative command and not one involving moral turpitude. Judge Maris, of this Court, speaking in United States ex rel. Manzella v. Zimmerman, D.C., 71 F.Supp. 534, at 538, held that an indictment charging a prison break and escape with force and arms did not constitute turpitude stating, “* * * I cannot say that the action of an escaping prisoner involves that element of baseness, vileness or depravity which has been regarded as necessarily inherent in the concept of moral turpitude.” To the same effect is Jordan v. De George, 341 U.S. 223, 226, 71 S.Ct. 703, 95 L.Ed. 886, reversing the Court of Appeals, 183 F.2d 768, wherein it is stated, “‘crimes involving moral turpitude,’ * * * ‘were intended to include only crimes of violence, or crimes which are commonly thought of as involving baseness, vileness or depravity. Such a classification does not include the crime of evading the payment of tax on liquor, nor of conspiring to evade that tax.‘” It can thus be seen that the Supreme Court, in United States v. Illinois Central R. R. Co., supra, specifically adopts the phrase in United States v. Murdock, supra.
The differentiation between
Thus, in United States v. Martell, 199 F.2d 670, Judge Goodrich of this Circuit, in defining a requisite element for the felony, § 145(b),
In Bloch v. United States, 9 Cir., 221 F.2d 786, an indictment charging appellant with attempting to evade or defeat the payment of income tax under § 145(b), Title 26 U.S.C.A.
In Forster v. United States, 9 Cir., 237 F.2d 617, a § 145(b) case,
In United States v. Long, 257 F.2d 340 (3rd Cir. 1958), a § 145(b) case charging willful attempt to defeat and evade the tax,
In United States v. Palermo, 259 F.2d 872 (3rd Cir. 1958), involving a misdemeanor under
While the Fifth Circuit has held in Haner v. United States, 315 F.2d 792, that the phrase in question, “or with a careless disregard whether one has the right so to act“, was not the proper standard for
It is submitted from the rather fulsome review of the authorities here set out that there has been no little confusion occasioned by courts with respect to the phrase under consideration. Nevertheless, the phrases set out in United States v. Murdock, supra, while not ones of limitation, do offer the guidelines for the concept of “willfulness” in the misdemeanor,
However, we reject the lower court‘s use of the phrase, “or capriciously” as a criterion of willfulness under
As indicated heretofore, I am in agreement with the balance of the opinion of the majority which points out some degree of confusion in the court‘s charge as to prior acts being subject to proof of the intent of willfulness.
Parker L. HANCOCK, Warden, Respondent, Appellant, v. Russell NELSON et al., Petitioners, Appellees.
No. 6524.
United States Court of Appeals First Circuit.
Heard Sept. 14, 1966. Decided July 8, 1966.