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[74-2 USTC ¶9718]Marvin L. Cooley, Defendant-Appellant v. United States of America , Plaintiff-Appellee

(CA-9), U. S. Court of Appeals, 9th Circuit, No. 73-3532, 501 F2d 1249, 8/2/74

[Code Sec. 7203]

Criminal penalties: Failure to file return: Constitutional considerations.--Taxpayer's conviction for willfully failing to file tax returns for the years 1968, 1969 and 1970 was affirmed on appeal. The taxpayer's waiver of counsel was knowingly and voluntarily made. The instructions to the jury with respect to whether the act was willful were correct. There was no reversible error in not admitting immaterial matters to the evidence. Finally, the sentence imposed on the taxpayer, which was within the limits of the statute, was not so excessive as to be cruel and unusual punishment.

Thomas C. Kleinschmidt, Federal Public Defender, Phoenix , Ariz. , for defendant-appellant. Thomas N. Crowe, Assistant United States Attorney, Phoenix , Ariz. , for plaintiff-appellee.

Before CHAMBERS and BROWNING, Circuit Judges, and TAYLOR, District Judge. ^*

Opinion

TAYLOR, District Judge:

The appellant, Marvin L. Cooley, was convicted of wilfully and knowingly failing to file a federal income tax return for each of the years 1968, 1969 and 1970 in violation of Title 26, U. S. C., §7203. ¹ Appellant was sentenced to a term of imprisonment of one year and fined in the amount of $2,000.00 on each count.

[Waiver of Counsel]

The appellant voluntarily chose to represent himself at all times in the trial court, but on this appeal he is represented by counsel appointed at his request subsequent to the conclusion of the proceedings in the lower court. The issues, which have been raised and presented here, will be considered seriatim.

One of the contentions now made by appellant is that the trial court erred in allowing him to represent himself without first determining whether the waiver of counsel was competently and intelligently made. We find this contention has no merit.

[Taxpayer Well Informed]

The record reveals that appellant was and is a mature, intelligent and well-informed inidvidual; that he was especially well informed in regard to income tax matters, the charges against him and the possible consequences if convicted in regard thereto. Also, it appears that appellant was knowledgeable, experienced and competent in regard to the legal proceedings in connection with the charges against him. It clearly appears from the record that appellant not only refused the court's offer to appoint counsel for him, but that he knew of his right to represent himself and insisted on doing so. ² The court could not properly deny him that right. Title 28 U. S. C. §1654; Hodge v. United States , 414 F. 2d 1040, 1042 (9th Cir. 1969).

We are then confronted with the question of whether the appellant competently and intelligently asserted the right to represent himself. ³ In Hodge, a majority of this court, in banc, stated at p. 1042:

"In this context we take this to mean whether he was sufficiently informed of the consequences of his choice."

Also, in Hodge at p. 1043, the court asserted:

"The question was simply whether the defendant understood the charges against him and was fully aware of the fact that he would be on his own in a complex area where experienced and professional training are greatly to be desired."

In our opinion, that question in this case must be answered in the affirmative. In reaching this conclusion, we have examined and relied upon the record as a whole, as we may properly do. Hodge, supra, at 1043 n. 4.

[Record of Waiver]

The appellant relies principally on United States v. Dujanovic, 486 F. 2d 182 (9th Cir. 1973) as his authority for the proposition that his waiver of counsel is not adequately reflected in the record. We do not believe that Dujanovic is dispositive of this case since the factual situation in that case was inapposite to the one here. Appellant contends that under Dujanovic, it is not sufficient that waiver appear from the record as a whole. Appellant relies upon two statements in the Dujanovic opinion: (1) that it is a "minimal requirement" that the district court "shall not grant a request to waive counsel and proceed pro se without addressing the accused personally and determining on the record that the demand to waive counsel and proceed pro se is competently and intelligently made with understanding of the nature of the charge and the penalties involved"; and (2) that "[n]othing whatsoever can thereafter occur during the pilotless journey which will evidence the state of mind of the accused or information at hand upon which he at that time intelligently waived his constitutional right of counsel." 486 F. 2d at 186.

The first statement is obviously admonitory rather than a rule of decision. See 486 F. 2d at 188 n. 2. While the procedure described may be preferred, its omission is not, per se, reversible error, where it appears from the whole record that the defendant knew his rights and insisted upon representing himself. We understand the second statement to mean only that the manner in which the defendant conducts his defense cannot conclusively establish his state of mind at the time of waiver.

It should be noted that even in Dujanovic, the panel examined three distinct portions of the record for the purpose of determining whether there had been a waiver of counsel. Also, the panel recognized the rule as announced in Hodge, supra, at 1042 n. 2, that the determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.

[Instructions on Willfulness]

The appellant contends that the instructions on the issue of wilfulness were inadequate and incorrect for the reason that the court did not include the words "bad intent" or "evil motive" as requested. He argues that United States v. Bishop [73-1 USTC ¶9459], 412 U. S. 346 (1973) required the trial court to include the requested language. We do not agree. The court clearly instructed the jury in regard to the applicable law and the meaning of "wilful" even though the language used did not include "bad intent" or "evil motive". ⁴ The instructions given by the court were in substantial compliance with Bishop and appellant's requested instruction would not have added anything. Numerous courts have rejected claims that wilfulness instructions must include the terms "bad intent" or "evil motive", the most recent pronouncement being by a panel of this court in United States v. Hawk, -- F. 2d -- (May 15, 1974, Opinion No. 73-2800). In Hawk, the court stated:

"While the use of such terms is often helpful, all that is required are instructions which communicate the proper notion of specific intent in understandable terms."

The instructions given in this case were indeed adequate for this purpose.

[Immaterial Letter]

Appellant next argues that the trial court committed reversible error in refusing to admit in evidence a copy of a letter appearing in the Congressional Record, an Internal Revenue Service Training Manual, and several opinions of the United States Supreme Court in support of appellant's position at trial that he did not act "wilfully". The thrust of his argument is that he relied on these matters in determining that he was not required to file 1040 income tax returns as required by the statute. After considerable discussion with the court, at the bench and during the absence of the jury, the court at recess reviewed the material offered and concluded that they did not contain any relevant information on the issue of whether the appellant should or should not file completed tax returns. We agree that the offered material was immaterial and should not have been admitted as evidence. In the orderly trial of a case, the law is given to the jury by the court and not introduced as evidence. It is the function of the jury to determine the facts from the evidence and apply the law as given by the court to the facts as found by them from the evidence. Obviously, it would be most confusing to a jury to have legal material introduced as evidence and then argued as to what the law is or ought to be.

Haigler v. United States [49-1 USTC ¶9171], 172 F. 2d 986 (10th Cir. 1949), relied on by appellant, is not authority on the question of whether copies of court decisions are admissible as evidence. It is also distinguishable in that the defendant there was prevented from testifying in regard to his understanding of the law and the jury was instructed that his ignorance of the law was no excuse. The record here shows that appellant was permitted to testify in regard to his conversations with employees of the Internal Revenue Service and in regard to his understanding of his rights under the law and Constitution. In addition, the trial court carefully instructed the jury in regard to appellant's good faith reliance upon his own interpretation of the law.

[Cruel and Unusual Punishment]

Finally, appellant claims that the sentence imposed was so excessive as to be cruel and unusual, even though within the statutory limits.

"It is well settled that a sentence within a valid statute cannot amount to 'cruel and unusual punishment', and that when a statute provides for such punishment, the statute only can be attacked. It is equally clear that the appellate court has no power to modify or reduce the sentence." `If there is one rule in federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by statute." Gurera v. United States , 8 Cir. 1930, 40 F. 2d 338, 340.'" Pependrea v. United States, 275 F. 2d 325, 329, 330 (9th Cir. 1960); see also: Bowman v. United States, 350 F. 2d 913, 917 (9th Cir. 1965).

We are confident that the experienced sentencing judge gave due consideration to all the facts and circumstances involved in this case before imposing the sentence on appellant. We do not find the sentence so excessive as to be cruel and unusual.

After carefully reviewing the record in this case, we are of the opinion that appellant was accorded a fair and impartial trial and that he represented himself as intelligently and completely as he might have been by an experienced attorney.

Having found no reversible error in the record, the judgment is AFFIRMED.

^* Of The District of Idaho, sitting by designation.

¹ That section provides in pertinent part:

"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 . . ., 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. . . ."

² The record shows:

The appellant first appeared before the district court, Judge Craig presiding, on July 17, 1972 at which time he asserted that he intended to represent himself. The court advised appellant that in the event he did not have sufficient funds with which to hire an attorney, he would appoint one for him. Appellant then stated that he had not decided just what he would do in that area, but at the moment he wished to represent himself. Prior to his appearance on this date, he had filed a motion to disqualify Judge Craig on the basis of bias and prejudice, which motion was assigned to Judge Muecke for hearing, and further proceedings on the motion were continued for 30 days. At this time, appellant requested 30 days within which to file a motion to dismiss the information which was granted by the court and no plea was required at that time. The matter was continued until September 18.

On September 25, 1972 , appellant again appeared in court before Judge Craig, at which time he was given a copy of the three count information and advised of the consequences in the event he was convicted on the charges. Appellant stated that he understood what he was charged with and stated to the court that before he entered his plea, he would like to have the matter presented to a grand jury because of the possible penalties involved. The court advised appellant that the charge in each count was a misdemeanor, but appellant argued that because of the three counts, he was facing three years in prison and a possible $30,000 fine in addition to the cost of prosecution. At that time, the court asked the Assistant U. S. Attorney to refer the matter to the grand jury and the matter was continued to November 20.

On November 20, 1972 , appellant again appeared before Judge Craig for arraignment and for hearing on his motion for inspection of grand jury minutes and discovery. After considerable discussion in regard to discovery, appellant was assured the government would show him what evidence it had and the names of the witnesses it intended to have at trial. Having been furnished with a copy of the indictment, appellant stated to the court that he planned to file a motion to dismiss after he viewed the District Attorney's file. The court assured him that he would be granted time to do so, but requested that he enter his plea at that time. Appellant stated that he preferred to stand mute and after some colloquy between the court and appellant, the court entered a plea of not guilty for him.

Appellant's motion to disqualify Judge Craig came on for hearing before Judge Muecke on September 5, 1972 . The motion was based upon the alleged criticism and dissatisfaction expressed by Judge Craig in regard to allowing other defendants to represent themselves in similar tax cases. Appellant sought to establish that Judge Craig assigned a public defender to Victor George Peterson in another case without listening to Peterson trying to assert that he wanted to defend himself. He stated that he personally witnessed the proceedings in connection with Peterson and that if he (Cooley) wanted to defend himself in Judge Craig's court, he did not want to be harassed and intimidated and virtually called a fool because he elected to do so.

Again, at the continued hearing on appellant's motion to disqualify Judge Craig held on September 27, he expressed his intention to represent himself and stated that he should have extended to him the same courtesies extended to other or regular attorneys in these matters. The court again advised appellant that he was in an area where he needed professional competence. The court further observed that appellant and other persons similarily situated misunderstood, in his opinion, the legal issues involved. The motion to disqualify Judge Craig was denied.

Prior to trial, appellant sought to suppress as evidence certain statements previously made to law enforcement agents. The court indicated its displeasure with the untimeliness of the motion by stating: "See, you choose to represent yourself and you are entitled to have a lawyer". The defendant acknowledged his understanding of that fact as well as his right to make the motion. The Honorable W. D. Murray, Senior United States District Judge, presided at and during the trial.

On the hearing of appellant's motion for a new trial and proceedings on sentencing, the appellant restated his understanding of and his insistence to proceed pro se by stating: "Your Honor, as to proceeding pro se, I guess there is no doubt that I have the right to do that and I submit that I would probably be in jail before now if I had gone any other way".

It should also be noted, from the record in this case, that the defendant filed almost every conceivable motion permitted under the F. R. Cr. P. in the trial court and that he intelligently and competently presented the same to the court.

Although appellant was advised of and knew of his right to counsel, he never, at any time, expressed any desire for assistance of counsel. The record clearly indicates that he knowlingly and intelligently waived his right to counsel and emphatically asserted his right to represent himself.

Also, the record indicates that the district court was quite familiar with appellant's background and experience in regard to similar proceedings pending against other individuals in the same court.

³ As set out in Johnson v. Zerbst, 304 U. S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466 (1938):

"A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."

⁴ The trial court's instructions on wilfulness:

"As stated before, with respect to offenses such as charged in this case, specific intent must be proved before there can be a conviction. You will note that the failure to act charged in the indictment must be proved beyond a reasonable doubt to have been willfully. An act or failure to act is done willfully if done or failed to be done voluntarily and purposely and with the specific intent to do that which the law forbids.

"The specific intent of willfulness is an essential element of the crime of failure to file an income 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 intending not to file a return which the defendant knew he should have filed, in order to prevent the Government from knowing the extent of his tax liability or facts material to the determination of his tax liability.

"Defendant's conduct is not willful if he acted through negligence, inadvertence, or mistake, or due to good faith, misunderstanding of the requirements of the law.

"If you find from all of the evidence that the defendant Marvin L. Cooley was honestly mistaken in his belief, you must find him not guilty as to the charges made in the indictment.

"If a person in good faith believes that he has done all that the law requires, he cannot be guilty of the criminal intent to willfully fail to file a tax return. But if a person acts without reasonable ground for belief that his conduct is lawful, it is for the jury to decide whether he acted in good faith or whether he willfully intended to fail to file a tax return.

"This issue of intent as to whether the defendant willfully failed to make an income tax return is one which the jury must determine from a consideration of all the evidence in the case bearing on the defendant's state of mind.

"The defendant has introduced evidence showing that he relied on the advice of a Treasury employee, if you believe this evidence, or if this evidence raises a reasonable doubt in your mind as to the guilt of the defendant, then you will acquit the defendant and say by your verdict Not Guilty.

"In connection with the charges made, you are instructed that the statutory requirement to file an income tax return does not violate a taxpayer's right against self-incrimination. But if you find that the defendant in good faith believed that it did violate his right against self-incrimination then you may consider that in connection with the charge of failure to file, and if as a result you find that he did not act knowingly and intentionally and willfully, then you must find a verdict of Not Guilty for the defendant."

 

 

[74-1 USTC ¶9465] United States of America , Plaintiff-Appellee v. Richard E. Hawk, Defendant-Appellant

(CA-9), U. S. Court of Appeals, 9th Circuit, No. 73-2800, 497 F2d 365, 5/15/74 , Aff'g unreported District Court decision

[Code Sec. 7203]

Crimes: Failure to file: Defenses.--An attorney was properly convicted of willfully failing to file returns for four years. The trial judge was not required to instruct the jury that the failure had to be due to bad purpose and/or evil motive. Evidence of reporting discrepancies was relevant on the issue of willfulness. Any impropriety in a comment made by the prosecutor, was cured by the trial judge's instruction to disregard it.

James L. Browning, Jr., United States Attorney, John M. Youngquist, Assistant United States Attorney, San Francisco , Calif. , for plaintiff-appellee. Jerrold M. Ladar, Suite 310 , 507 Polk St. , San Francisco , Calif. , for defendant-appellant.

Before MOORE, ^* BROWNING and CHOY, Circuit Judges.

Opinion

CHOY, Circuit Judge:

Hawk was charged with willfully failing to file federal income tax returns for the years 1966, 1967, 1968, and 1969 in violation of 26 U. S. C. §7203. ¹

Hawk, an experienced attorney, admitted knowledge of his obligation to file returns and failure to do so. His excuse was that in the first years he was confronted with serious personal problems which left his affairs in disarray; thereafter, he said he "had a mental block about it" and that "he just sort of stuck his head in the sand." The jury found him guilty on the counts covering 1968 and 1969 and acquitted him as to the two previous years. We affirm.

Instructions on Willfulness

The trial judge instructed the jury that the defendant's failure to file would be willful if the "failure to act was voluntary and purposeful and with the specific intent to fail to do what he knew the law requirese (sic) to be done; that is to say, with the bad purpose to disobey or disregard the law . . .." ² This followed word for word an instruction requested by Hawk except for one omission: in the last clause, Hawk's requested instruction read, "that is to say, with the bad purpose and/or evil motive either to disobey or disregard the law." (Emphasis added.) Hawk argues that United States v. Bishop [73-1 USTC ¶9459], 412 U. S. 346 (1973), required the trial court to include this "evil motive" language. We do not agree.

In reversing a decision of this court, [72-1 USTC ¶9252] 455 F. 2d 612 (1972), the Bishop Court overturned a line of decisions of this circuit ³ which had established two levels of willfulness applicable separately to felony and misdemeanor offenses under 26 U. S. C. §§ 7201-07 of the criminal tax statutes. Where the crime charged was a felony, as is, for example, a willful evasion of tax under §7201, we had required that there be a specific intent to commit the illegal act knowing of the legal obligation. On the other hand, where the crime charged was a misdemeanor, as is, for example, a failure to file under §7203, a looser instruction was required in which willful was defined as, among other things, "capriciously or with a careless disregard whether one has the right to act." E.g., Abdul v. United States [58-1 USTC ¶9453], 254 F. 2d at 294. Though confining itself to this issue, the Court, in a concluding statement, gave rise to Hawk's argument here. Justice Blackmun, writing for the Court, stated that "Until Congress speaks otherwise, we . . . shall continue to require, in both tax felonies and tax misdemeanors that must be done 'willfully,' the bad purpose or evil motive described" in Murdock v. United States [3 USTC ¶1194] 290 U. S. 389 (1933). United States v. Bishop, 412 U. S. at 361 (emphasis added).

The Government contends that Bishop does not compel an instruction using the "evil motive" language on the narrow ground that the Court's decision was limited to the two criminal tax statutes before it--§7206 (1), the felony of willfully subscribing to a false return, and §7207, the misdemeanor of willfully "delivering" a false statement. But as the quoted statement above indicates, and as the remainder of the opinion makes crystal clear, ⁴ the Court's opinion extends to the definition of willfulness in the other criminal tax statutes in which it is an element, §§ 7201-07, including, of course, the provision under which Hawk stands accused, §7202. The reason Bishop does not compel inclusion of the term "evil motive" is much simpler: an issue concerning the necessity of employing that language was not presented in Bishop. The Court was confronted only with the permissibility of the two-level definition of willfulness, and beyond that nothing in the case related to the precise form of words necessary to convey the meaning of willfulness.

Still, a nagging question remains as to Justice Blackmun's reference to "evil motive"; was it the unstated intent of the opinion to require inclusion of those exact words? We think not. The statement in the opinion is that willfulness is to be uniformly defined to require the bad purpose or evil motive described in Murdock v. United States [3 USTC ¶1194], 290 U. S. 389 (1933). In Murdock the defendant had declined to answer certain questions relating to his tax liability on Fifth Amendment grounds. He was prosecuted for "willfully" failing to supply information to revenue officials. During the course of the prosecution it was determined that he had not been justified in asserting his Fifth Amendment privilege. Murdock defended arguing that his refusal was not willful. The Supreme Court held he was entitled to an instruction that if his refusal was in good faith--that is, with an honest belief in the protection of the Fifth Amendment--it could not be willful. The thrust of the opinion is that willfulness requires proof that the act was done with knowledge it was wrongful. The Court discussed a number of ways of expressing this type of specific intent, and among the terms mentioned were "bad purpose" and "evil motive." Id. at 394. See also Spies v. United States [43-1 USTC ¶9243], 317 U. S. 492 (1943).

However, neither bad purpose nor evil motive is an independent element of a willful failure to file under §7203. The term "evil motive" is merely a "convenient shorthand expression to distinguish liability based on conscious wrongdoing from liability based on mere carelessness or mistake." Boardman v. United States [70-1 USTC ¶9210], 419 F. 2d 110, 114 (1st Cir. 1969), cert. denied, 397 U. S. 991 (1970). Thus the term expresses, in a brief way, the more cumbersomely stated concept of specific intent in Murdock, a concept the instructions must ultimately convey. See United States v. Platt [70-2 USTC ¶9719], 435 F. 2d 789, 793-95 (2d Cir. 1970); United States v. Matosky [70-1 USTC ¶9210], 421 F. 2d 410, 412 (7th Cir.), cert. denied, 398 U. S. 904 (1970) ("the only bad purpose or bad motive necessary for the government to prove is a deliberate intention not to file returns which the defendant knew ought to be filed."); Hayes v. United States [69-1 USTC ¶9204], 407 F. 2d 189, 195 (5th Cir.), petition for cert. dismissed, 395 U. S. 972 (1969); cf. United States v. Smith [74-1 USTC ¶9120], 487 F. 2d 329 (9th Cir. 1973); Haskell v. United States [57-1 USTC ¶9553], 241 F. 2d 790, 794 (10th Cir.), cert. denied, 354 U. S. 921 (1957). This, we think was all that Murdock--and Bishop--meant by the use of that term.

A number of cases, in accord with this reasoning, have rejected claims that willfulness instructions must include the terms bad purpose or evil motive ⁵ In United States v. DiVarco [73-2 USTC ¶9607], 484 F. 2d 670 (7th Cir. 1973), cert. denied, -- U. S. -- (Feb. 19, 1974), for example, the jury instructions, in a prosecution for willfully subscribing to a false return under §7206(1), omitted reference to either bad purpose or evil motive. The instructions were upheld because they adequately conveyed the notion of mens rea without the need of the shorthand terms. Id. at 673-74. Similarly, in United States v. Malinowski [73-1 USTC ¶9199], 472 F. 2d 850 (3d Cir.), cert. denied, 411 U. S. 970 (1973), the defendant, who deliberately overstated the number of his dependents on his withholding form as a protest against the Viet Nam war, was prosecuted for a §7205 willful misstatement of information. He requested a bad purpose instruction so as to provide the jury with an opportunity to acquit based on his anti-war beliefs. A panel of the Third Circuit affirmed the trial court's rejection of the proffered instruction, reasoning that what was central to willfulness was that the act be done with "the specific intent to do something [the defendant] knew the law forbade." Id. at 855. `[B]ad purpose' and 'evil purpose' are not 'magic words' which must be included in a jury charge on willfulness." Id. See United States v. Douglass [73-1 USTC ¶9334], 476 F. 2d 260, 263-64 (5th Cir. 1973); cf. United States v. Simpson, 460 F. 2d 515, 518 (9th Cir. 1972); Boardman v. United States, 419 F. 2d at 114; United States v. Moylan, 417 F. 2d 1002, 1004 (4th Cir. 1969), cert. denied, 397 U. S. 910 (1970); United States v. Clearfield, 358 F. Supp. 564, 574-75 (E. D. Pa. 1973).

Here, too, the inclusion of the two words "evil motive" in the instructions was unnecessary. While the use of such terms is often helpful, all that is required are instructions which communicate the proper notion of specific intent in understandable terms. The instructions here were adequate to that purpose.

Evidence of Reporting Discrepancies

After being informed that he was under investigation, Hawk had returns prepared and filed by an accountant for the years in which he was delinquent. The accountant was given most, but not all, of Hawk's records and computed Hawk's gross income ⁶ on the basis of deposit slips for Hawk's commercial checking account plus an additional amount that Hawk estimated he received in cash and did not deposit. Subsequent investigation revealed his gross income to be substantially greater than had been reported, largely for two reasons: (1) because Hawk's estimate of cash received but not deposited was less than his books showed; and (2) because certain of his income was withdrawn from a different account, a trustee account, and was not reported--probably because the accountant was never given the records for this account. Evidence of these discrepancies was introduced at trial over the objection of Hawk's attorney. Hawk complains that since he was accused of a failure to file, not tax evasion, the evidence was irrelevant.

The evidence, though not very relevant, was material nonetheless on the issue of willfulness. See United States v. MacLeod [71-1 USTC ¶9174], 436 F. 2d 947, 950 (8th Cir.), cert. denied, 402 U. S. 907 (1971). First, it showed a pattern of increasing gross income not so clearly reflected in his initially-filed returns. That bore on his motive for failing to file. Second, his continued failure to fully disclose his income was relevant to show that the original failures to file may have been prompted by a desire to escape taxation. This, too, bore on willfulness. Cf. United States v. Magnus [66-2 USTC ¶9660], 365 F. 2d 1007, 1011 (2d Cir. 1966), cert. denied, 386 U. S. 909 (1967); Lumetta v. United States [66-2 USTC ¶9492], 362 F. 2d 644, 645-46 (8th Cir. 1966). Moreover, cautionary instructions emphasizing the limited relevance of this evidence were repeatedly given by the trial judge, thereby minimizing any prejudicial effect the evidence might have had. ⁷

Hawk's argument that he merely gave the records to an accountant and thus could have had no knowledge of the understatements is unpersuasive. He failed to adequately inform the accountant of or supply the necessary records relating to the understatements, and the jury could have inferred that this was intentional. We conclude the evidence was properly admitted.

Prosecutor's Comment

At one point during the trial, the prosecutor, in discussing an evidentiary point with the judge, asked the court to reserve its ruling "and strike it if it is not tied up, if the defendant goes on the stand." The comment was obviously inadvertent, and the judge immediately instructed the jury to disregard it. Even assuming it was a prejudicial comment on the accused's right to remain silent--which we doubt, see United States v. Altavilla, 419 F. 2d 815, 817 (9th Cir. 1969)--the judge's instruction fully cured it. See e.g., United States v. Dana [72-1 USTC ¶9227] 457 F. 2d 205, 209-10 (7th Cir. 1972); United States v. Haili, 443 F. 2d 1295, 1300 (9th Cir. 1971); Hayes v. United States, 407 F. 2d at 195.

Appellant's other contentions are without merit.

Affirmed.

^* The Honorable Leonard P. Moore, United States Senior Circuit Judge for the Second Circuit, sitting by designation.

¹ That section provides in pertinent part:

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 . . ., 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. . . .

² The charge as relevant to willfulness was:

Now, we come to specific intent and willfulness. The specific intent of willfulness is an essential element of the crime of failing to make an income tax return. The term "willfully" used in the statute . . . means voluntary, purposeful, deliberate, and intentional as distinguished from accidental, inadvertent, or negligent. Mere negligence, even gross negligence, is not sufficient to constitute willfulness under this criminal law.

. . . The failure to make a timely return is willful if the defendant's failure to act was voluntary and purposeful and with the specific intent to fail to do what the law requires (sic) to be done; that is to say, with the bad purpose to disobey or disregard the law that requires him to disclose to the Government facts and (sic) material to the determination of his income tax liability. . . .

There is no necessity that the Government prove that the defendant had the 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 law. That is, the intention to avoid the law or to pay the taxes constitutes the crime charged by each of these counts as long as it is willful and knowing as I have defined the term for you. On the other hand, the defendant's conduct is not willful if you find that he failed to file a return because of negligence, inadvertence, accident, or due to his good faith misunderstanding of the requirements of the law, if there was such misunderstanding.

³ United States v. Haseltine [70-1 USTC ¶9140], 419 F. 2d 579, 581 (9th Cir. 1969) (§§ 7201 and 7203); Martin v. United States [63-2 USTC ¶9502], 317 F. 2d 753 (9th Cir. 1963) (§7203); Abdul v. United States [58-1 USTC ¶9453], 254 F. 2d 292 (9th Cir. 1958), cert. denied, 364 U. S. 832 (1960) (§§ 7202 and 7203); cf. United States v. Fahey [69-2 USTC ¶9450], 411 F. 2d 1213 (9th Cir.), cert. denied, 396 U. S. 957 (1969) (§7203); Edwards v. United States [67-1 USTC ¶9356], 375 F. 2d 862 (9th Cir. 1967) (§§ 7201, 7203, and 7206(2)).

⁴ The opinion broadly disapproves of our decisions applying the two-level definition of willfulness, see 412 U. S. at 347, 348 n. 2, 351 & n. 3, and those decisions, as the opinion noted, have concerned criminal tax provisions other than those before the Bishop Court. See note 3 supra. Indeed, the Court's discussion centers on a rejection of the reasoning of Abdul v. United States , supra, which concerns §§ 7202 and 7203. See 412 U. S. at 351-56. Moreover, the Court read its earlier decision in Sansone v. United States, 380 U. S. 343 (1965), as "clearly implying" that "the word 'wilfully' possesses the same meaning in §§ 7201, 7203, and 7207" thereby "foreclosing" the argument that `willfully' was to be given one meaning in the tax felony statutes and another meaning in the tax misdemeanor statutes." 412 U. S. at 356. As the Court stated, "Congress used the word 'willfully' to describe a constant rather than a variable in the tax penalty formula." Id. at 359-60 (emphasis added).

⁵ A few cases, it is true, have quoted lower court instructions using, or themselves employed, both the "bad purpose" and "evil motive" language. See, e.g., United States v. Klee [74-1 USTC ¶9412], -- F. 2d -- (9th Cir., March 27, 1974 ); United States v. Palermo [58-2 USTC ¶9850], 259 F. 2d 872, 881 (3d Cir. 1958); Abdul v. United States, 254 F. 2d at 293-94. But none of these cases raised the question of whether the term "evil motive" must be used in the instruction. That "evil motive" is a shorthand expression in these cases is illustrated by the many other cases in which the language does not appear, see e.g., United States v. Gurtner [73-1 USTC ¶9228], 474 F. 2d 297, 299 (9th Cir. 1973); United States v. Lachmann [72-2 USTC ¶9766], 469 F. 2d 1043, 1044-45 (1st Cir. 1972), cert. denied, 411 U. S. 931 (1973); Martin v. United States, 317 F. 2d at 754.

⁶ Gross income is the only figure relevant since it is the measure of who must file. See 26 U. S. C. §6012.

⁷ We add a note of caution. Evidence of such limited relevance must be admitted with care. In some instances, the potential for prejudice as well as the dangers of consuming undue time and confusing the jury may be so great as to warrant its exclusion.

 

 

[74-1 USTC ¶9412] United States of America , Plaintiff-Appellee v. Oscar H. Klee, Defendant-Appellant

(CA-9), U. S. Court of Appeals, 9th Circuit, No. 73-2741, 494 F2d 394, 3/27/74 , Affirming an unreported District Court decision

[Code Sec. 7203]

Crimes: Failure to pay tax: Willfulness: Various assignments of errors.--Taxpayer's conviction for willful failure to file income tax returns was upheld. Various assignments of errors, including improper instructions to the jury as to the meaning of the term "willfully" and jury misconduct, were without merit.

Before KOELSCH and DUNIWAY, Circuit Judges, and THOMPSON, ^* District Judge.

Opinion

DUNIWAY, Circuit Judge:

Klee was found guilty by a jury under three counts of an indictment charging willful failure to file federal income tax returns for the years 1966, 1967, and 1968, in violation of 26 U. S. C. §7203. On appeal he alleges that nine errors were committed during his trial. Most of them do not merit discussion.

1. Instruction defining "willfully"

Klee asserts that the trial court incorrectly instructed the jury on the meaning of the term "willfully" as used in 26 U. S. C. §7203. ¹ He asserts that the jury should have been instructed that the term "willfully" requires the government to prove "an intent to defraud the government, or to conceal from the government facts relevant to a determination of the accused's tax liability." The law is to the contrary. United States v. Andros, 9 Cir., 1973, [73-2 USTC ¶9622] 484 F. 2d 531, 534. Klee attempts to rely upon United States v. Bishop, 1973, [73-1 USTC ¶9459] 412 U. S. 346, yet nothing in that opinion undermines the validity of the instruction given by the trial judge here. The court's instruction is in substantial compliance with the Bishop Court 's requirement. See 412 U. S. at 360-61.

2. Juror Misconduct

When the morning recess occurred during the selection of the jury, the court admonished the jurors:

"Don't discuss the case among yourselves, and don't allow anyone to approach you and address you concerning the case. Do not form or express any opinion on the case until it is finally submitted to you by the Court for your decision."

A similar admonition was given at the end of the first day of trial. Thereafter, when a recess was taken, the court usually reminded the jury of his admonition, without repeating it.

In support of a motion for a new trial, Klee presented an affidavit of one of the jurors which says that eleven of the fourteen jurors (including alternates) discussed the case during recesses and that nine of the jurors expressed premature opinions about Klee's guilt. If the affidavit is true, the jurors disregarded the court's admonition.

While we are aware that most judges give similar admonitions to juries, we have never had occasion to pass upon either the propriety of or the necessity for such an admonition. The circuits are not in agreement on the question. See, e.g., Winebrenner v. United States , 8 Cir., 1945, 147 F. 2d 322; 23A C. J. S. Criminal Law §1361 (1961). But cf. United States v. Carter, 10 Cir., 1970, 430 F. 2d 1278, 1279; Rotolo v. United States, 5 Cir., 1968, 404 F. 2d 316, 317; United States v. Viale, 2 Cir., 1963, [63-1 USTC ¶15,473] 312 F. 2d 595, 602. Judge Woodrough, dissenting in Winebrenner, supra, said:

"No normal honest Americans ever worked together in a common inquiry for any length of time with their mouths sealed up like automatons or oysters."

We think that there is a good deal in what he says. The important thing is not that jurors keep silent with each other about the case but that each juror keep an open mind until the case has been submitted to the jury. Be that as it may, we need not reach the problem of the propriety of the admonition here.

This is not a case that involves "any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury." Remmer v. United States , 1954, [54-1 USTC ¶9274] 347 U. S. 227, 229 nor does it involve the influence of the press upon the jury. Silverthorne v. United States , 9 Cir., 1968, 400 F. 2d 627.

What is involved here is the premature discussion among the jurors themselves about the case. Assuming that there was juror misconduct, it is still true that not every incident of juror misconduct requires a new trial. United States v. Goliday, 9 Cir., 1972, 468 F. 2d 170, 171; United States v. Collier, 7 Cir., 1966, 362 F. 2d 135, 137-8; United States v. Bando, 2 Cir., 1957, 244 F. 2d 833, 848-9; Cavness v. United States , 9 Cir., 1951, 187 F. 2d 719, 723. The test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial. Cavness v. United States, supra, 187 F. 2d at 723.

The juror's affidavit here does not assert that any of the jurors relied upon any evidence outside of the record in reaching their verdict, nor does it assert that any of the jurors actually decided upon the defendant's guilt before the case was submitted to them. The trial judge carefully examined the affidavit's allegations and ruled that even if everything in the affidavit were true a new trial was not required. Though the judge expressed his disapproval of such juror conduct, he commented that "the question is whether such conduct prejudiced defendant's right to a fair trial by an impartial jury." He correctly observed that "the only genuine issue in dispute was defendant's state of mind. On this point the jury demonstrated its open-mindedness by requesting re-reading of the instructions on willfulness before bringing in its verdict." The trial judge therefore held that "[u]nder all these circumstances the Court finds that the affidavit does not present any questions which requires [sic] further inquiry and does not justify a new trial."

When a wise and experienced judge, who presided at the trial and observed the jury, comes to such a conclusion, it is not for us to upset it. The trial judge "was in a better position than we are to determine whether what happened was "prejudicial." United States v. Goliday, supra, 468 F. 2d at 172, cf. United States v. Noah, 9 Cir., 1973, 475 F. 2d 688, 692. It was not error to deny the motion for a new trial.

3. Klee's motion to oppear pro se and through counsel

The denial of Klee's motion was not error. He had two competent counsel. He does not like the income tax law, or his obligation to file income tax returns. His obvious motive was to be able to spout his notions to the jury without having to take the witness stand. The constitution guarantees Klee the effective assistance of counsel; it does not give him absolute discretion to dictate the form of that representation. Klee does not assert that he was denied effective representation. What Klee wanted was equal status with his attorneys and full rights of participation at every stage of the proceedings. The trial court offered him the opportunity to participate at various stages of the trial but in the interest of courtroom order he limited Klee's activity. The court's action was proper. See Lofton v. Procunier, 9 Cir., 1973, 487 F. 2d 434, 435. In Nelson v. People of the State of California , 9 Cir., 1965, 346 F. 2d 73 at 81, we said that "counsel must be the manager of the lawsuit" and that "[o]ne of the surest ways for counsel to lose a lawsuit is to permit his client to run the trial." See also Kuhl v. United States , 9 Cir., 1966 (in banc), 370 F. 2d 20, 27. Those observations are pertinent here.

4. Klee's December 13, 1971 tax return

Klee filed a tax return on December 13, 1971. It contained absolutely no information about Klee's tax status but merely stated "all details available on proper demand." Klee cannot legitimately claim that this return fulfilled his obligation to file. "A taxpayer's return which does not contain any information relating to the taxpayer's income from which the tax can be computed is not a return within the meaning of the Internal Revenue Code or the regulations adopted by the Commissioner." United States v. Porth, 10 Cir., 1970, [70-1 USTC ¶9329] 426 F. 2d 519, 523. United States v. Daly, 8 Cir., 1973, [73-2 USTC ¶9574] 481 F. 2d 28, 29. The court was right in telling the jury so.

No other of Klee's assertions of error merits discussion.

Affirmed.

^* The Honorable Bruce R. Thompson, United States District Judge for the District of Nevada, sitting by designation.

¹ The court instructed, in part:

"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, deliberate and intentionally, 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, 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 purpose 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 willful 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."

 

 

[74-1 USTC ¶9103] United States of America , Plaintiff-Appellee v. Jerrold B. Sherman, Defendant-Appellant

(CA-6), U. S. Court of Appeals, 6th Circuit, No. 73-1542, 486 F2d 1404, 10/16/73 , Aff'g unreported District Court decision

[Code Sec. 7203]

Crimes: Willful failure to file return: Error at trial.--Convictions for two counts of willful failure to file income tax returns affirmed. Since the contentions that the prosecutor committed plain error in his opening remarks to the jury, and that the Court committed plain error in its instructions to the jury, and that error was committed in the admission of unduly prejudicial testimony were unsubstantiated, the trial on the two counts of the information was free from error.

Ralph B. Guy, United States Attorney, Detroit , Mich. , Scott P. Crampton, Assistant Attorney General, Meyer Rothwacks, John P. Burke, Richard B. Buhrman, Department of Justice, Washington , D. C. 20530, for plaintiff-appellee. Carl Ziemba, 2000 Cadillac Tower , Detroit , Mich. , for defendant-appellant.

Before PHILLIPS, Chief Judge, and CELEBREZZE and MILLER, Circuit Judges.

Order

This is an appeal from the convictions of the appellant, Sherman, by a jury on two counts of an information, charging wilful failure to file income tax returns for the years 1967 and 1968 in violation of Sec. 7203 of the Internal Revenue Code.

On appeal, the appellant insists that the convictions should be reversed because, first, the prosecutor committed plain error in his opening remarks to the jury; second, that the court itself committed plain error in its instructions to the jury; and third, that error was committed in the admission of unduly prejudicial testimony.

We have carefully examined the record and find the contentions of the appellant to be unsubstantiated. We hold that the trial of the appellant on the two counts of the information was free from error.

It is therefore ORDERED and ADJUDGED that the convictions of the appellants and the judgments of the district court implementing the said convictions be and the same are hereby affirmed.

 

 

[73-1 USTC ¶9304] United States of America , Plaintiff-Appellee v. Kenneth Vanderburgh, Defendant-Appellant

(CA-9), U. S. Court of Appeals, 9th Circuit, No. 72-2549, 473 F2d 1313, 2/9/73

[Code Sec. 7201]

Criminal penalties: Tax evasion: Agent's warning of rights: Instructions to jury: Use of net worth method: Miscellaneous errors asserted.--Conviction for willful evasion of taxes was affirmed. IRS agents gave the defendant adequate warning of his rights when first contacted. The instructions to the jury, taken as a whole, covered the requested defense instructions refused by the trial court. The government was allowed to prove its case by use of the net worth method even though the defendant's books were claimed to be complete and adequate. Miscellaneous errors asserted by the defense were not cause for reversal.

Dean C. Smith, United States Attorney, Carroll D. Gray, Assistant United States Attorney, Spokane, Wash., for plaintiff-appellee. Howard A. Anderson, Gerald A. Rein, Morrison, Huppin, Ewing & Anderson, 521 Parkade Plaza, Spokane, Wash., for defendant-appellant.

Before KOELSCH and WRIGHT, Circuit Judges, and EAST, ^* District Judge.

PER CURIAM:

The Judgment of Conviction on two counts of income tax evasion for the reporting years of 1965 and 1966, under Title 26 U. S. C. Section 7201, is affirmed.

The Defendant-Appellant asserts eleven errors of law. We conclude all eleven asserted errors are without merit and comment on only these:

Issue 1

The investigating Internal Revenue Special Agents failed to give the Defendant an adequate warning of his rights when he was initially contacted.

The record reveals a more than adequate warning under U. S. v. Chikata [70-1 USTC ¶9448], 427 F. 2d 385 (9 Cir. 1970) and the books of account were voluntarily turned over. Simon v. U. S. [70-1 USTC ¶9212], 421 F. 2d 667 (9 Cir. 1970), cert. denied 90 S. Ct. 1691.

Issues 5, 6, 7, 8 and 9

These requested instructions were partisan pinpoints of phases of the Defendant's defense. The record reveals that the substance of the requested instructions refused by the trial court were adequately covered by the instructions given, when considered as a whole.

Issue 10

It was error to permit the Government to prove its case through the net worth method because the Defendant maintained a complete and adequate set of books of account.

The record reveals the set looked good at first blush, but, also, substantiates the truism of these sage words:

"DeLucia also contends that where he himself kept a set of books and records the District Court erred in permitting use of the net worth method of proof. This would mean that simply because taxpayer has kept a set of books, the veracity of which is in question, the Government is estopped from going beyond those books to prove their falsity or inaccuracy. This is absurd." U. S. v. DeLucia [59-1 USTC ¶9161], 262 F. 2d 610, 614 (7 Cir. 1958). Defendant's enlargement on bail is revoked, effective now.

Affirmed.

^* Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.

 

 

[73-1 USTC ¶9228] United States of America , Plaintiff-Appellee v. Herbert Gurtner, Defendant-Appellant

(CA-9), U. S. Court of Appeals, 9th Circuit, No. 72-2167, 474 F2d 297, 2/5/73 , Affirming unreported District Court decision

[Code Sec. 7203]

Crimes: Tax evasion: Failure to file returns: Attorney-client privilege: Accountant's testimony: Instructions to jury.--Conviction by a jury for wilful failure to file federal income tax returns was affirmed. Testimony of an accountant was properly admissible since the taxpayer did not show that the accountant was acting as his attorney's agent within the scope of privileged attorney-client communications. Also, an instruction to the jury was proper where, taken together with related instructions, it conveyed the notion that something more than mere negligence must be shown for an act to be wilful.

William D. Keller, United States Attorney, David H. Anderson, Curtis B. Rappe, Eric A. Nobles, Assistant United States Attorneys, Los Angeles, Calif., for plaintiff-appellee. Rob ert H. Sanders, Suite 1107 , 1888 Century Park East, Los Angeles , Calif. , for defendant-appellant.

Before KOELSCH, CHOY and GOODWIN, Circuit Judges.

CHOY, Circuit Judge:

Gurtner appeals his conviction by a jury for the wilful failure to file federal income tax returns (26 U. S. C. §2703) for the calendar years 1964 and 1965. We affirm.

[Admissibility of Accountant's Testimony]

Gurtner raises two issues on appeal. The first is that the trial court should have stricken the testimony of John Foulk, a private accountant whom Gurtner consulted in April, 1967, because his conversations with Foulk were privileged attorney-client communication. We reject this contention because Gurtner has not proven that an attorney-client relationship existed and even if this testimony were privileged, Gurtner waived the privilege.

The burden of establishing the existence of an attorney-client relationship rests on the claimant of the privilege who resists disclosure of shielded communication. In re Bonanno, 344 F. 2d 830, 833 (2nd Cir. 1965). Gurtner has not sustained this burden. Foulk did have a working relationship with Gurtner's attorney and the attorney advised Gurtner to consult with Foulk, but that alone did not make the communications between Foulk and Gurtner privileged. "What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer. If what is sought is not legal advice but only accounting service, as in Olender v. United States [54-1 USTC ¶9254], 210 F. 2d 795, 805-6 (9th Cir. 1954), [cert. denied 352 U. S. 982 (1956)], see Reisman v. Caplin, 61-2 USTC ¶9673 (1961), or if the advice sought is the accountant's rather than the lawyer's, no privilege exists." United States v. Kovel [62-1 USTC ¶9111], 296 F. 2d 918, 922 (2nd Cir. 1961); accord, United States v. Judson [63-2 USTC ¶9658], 322 F. 2d 460, 462 (9th Cir. 1963). Gurtner did not prove that Foulk was acting as a consultant for his attorney. Moreover, even if we assumed that Foulk was the agent of an attorney, not all consultations with such agents are privileged. Gurtner's consultations with Foulk for the purpose of preparing tax returns did not fall within the privilege. Such consultations, even with an attorney who is preparing the returns, are not privileged. Olender, supra at 806; Canaday v. United States [66-1 USTC ¶9192], 354 F. 2d 849, 857 (8th Cir. 1966); Couch v. United States, 41 U. S. L. W. 4107 (January 9, 1973).

Even if there was an attorney-client relationship, Gurtner's failure to make a timely objection to Foulk's testimony constituted a waiver of the privilege. Gurtner failed to raise any objection to the testimony of Foulk when the witness was on the stand. The issue was not raised until Gurther himself was being cross-examined. "[T]he burden is on the defendant to take his objection at the earliest possible opportunity when, by so doing be can enable the trial judge to take the most efficacious action." Holden v. United States, 388 F. 2d 240, 242 (1st Cir.), cert. denied 393 U. S. 864 (1968). The district court properly ruled that the motion to strike was untimely.

In addition, the failure to assert the privilege when the evidence was first presented constituted a voluntary waiver of the right. Steen v. First National Bank, 298 F. 36, 41 (8th Cir. 1924); United States v. Jacobs, 322 F. Supp. 1299, 1303 (C. D. Cal. 1971). Once the subject matter is disclosed by a knowing failure to object there is nothing left to protect from disclosure.

[Instruction on Wilfulness]

Gurtner's second assignment of error attacks the following jury instruction:

The word "wilful" as used herein means an act or omission which is voluntary and intentional, 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 the right to so act. That is to say, the wilfulness required for this offense here charged does not entail the purpose to evade tax or to defraud. It entails no purpose other than to evade the law's requirements. (emphasis supplied)

The trial judge also instructed the jury that:

Knowingly means an act is done knowingly if done voluntarily and intentionally and not because of mistake or accident or other innocent reason.

The purpose is, of course, adding the word knowingly, is to insure that no one will be convicted because of a mistake or accident or other innocent reason.

Gurtner objected to the phrase "or with a careless disregard whether one has a right to so act," and, for the first time, on appeal he also challenges the use of the word "capricious." Gurtner notes that the term "wilful" as used in §7203 does not include carelessness, inadvertence or negligence. United States v. Leuschner [64-2 USTC ¶9742], 336 F. 2d 246 (9th Cir. 1964). He contends that the disputed phrase in the instruction permitted the jury to convict him for mere carelessness. We disagree. We have in the past specifically upheld this instruction. Abdul v. United States [58-1 USTC ¶9453], 254 F. 2d 292 (9th Cir.), cert. denied 364 U. S. 832 (1958). Abdul has been repeatedly reaffirmed in subsequent cases. United States v. Fahey [69-2 USTC ¶9450], 411 F. 2d 1213 (9th Cir.), cert. denied 396 U. S. 657 (1969).

We recognize that at least two other circuits have taken the opposite position. United States v. Vitiello [66-2 USTC ¶9480], 363 F. 2d 240 (3rd Cir. 1966); Haner v. United States [63-1 USTC ¶9390], 315 F. 2d 792 (5th Cir. 1963). We, however, are of the opinion that the disputed instruction, given together with the other instructions mentioned above, properly conveyed the notion to the jury that something more than mere negligence must be shown for an act to be wilful. But since the disputed clause has been the subject of frequent appeals, we believe it advisable for the district court in future cases under §2703 to omit from the instruction the passage "or capriciously or with a careless disregard whether one has the right to so act."

Affirmed.

 

 

[73-1 USTC ¶9106] United States of America , Appellee v. Ed J. Hagen, Appellant.

(CA-10), U. S. Court of Appeals, 10th Circuit, No. 72-1303, 470 F2d 110, 12/5/72 , Aff'g unreported District Court decision

[Code Sec. 7201]

Crimes: Tax evasion: Evidence: Net worth: Specific items: Wilfullness.--The taxpayer's conviction on two counts of tax evasion was affirmed. It was not error to allow the government to introduce specific items of unreported income in addition to using the net worth method of reconstructing income. Moreover, there was sufficient testimony to show wilfullness, and the trial court's instructions adequately explained the net worth method to the jury.

John B. Owens, Jr., Scott P. Crampton, Assistant Attorney General, Meyer Rothwacks, John P. Burke, John R. Lusk, Department of Justice, Washington, D. C. 20530, William R. Burkett, United States Attorney, Oklahoma City, Okla., for appellee. Leslie H. Wald, Stanley L. Drexler, 1107 Tower Bldg., Denver U. S. Nat. Center, Denver, Colo., Rob ert W. Pittman, 27th Floor, City Nat. Bank Tower, Oklahoma City, Okla., for appellant.

Before JONES ^*, SETH and HOLLOWAY, Circuit Judges.

SETH, Circuit Judge:

Defendant Hagen was convicted on two counts of wilfully and knowingly attempting to evade income taxes by filing or causing to be filed with the District Director of Internal Revenue fraudulent tax returns on behalf of himself and his wife for the years 1964 and 1965. He has taken this appeal.

The defendant was in business as a broker-dealer of securities, and he also sold life insurance. The Government purportedly based its prosecution on the net worth plus nondeductible expenditures method of showing unreported income. The Government also introduced evidence of specific items of unreported income for the stated purpose of proving wilfulness. The specific items of unreported income aggregated more than was shown by the evidence relating to increased net worth.

At the conclusion of the Government's case, the defense declined to offer any evidence, and rested. The jury returned a verdict of guilty on both counts.

[Net Worth Method]

The defendant-appellant's principal point on appeal is not that the net worth method was used, but that the trial court should not have permitted the Government to also introduce evidence as to specific items of unreported income to an extent that such proof changed the theory of the case or in any event overshadowed the net worth proof. He also asserts that it was error because he was surprised by it; because the jury was confused by it; there was a variance created with the Bill of Particulars; and the instructions covered only the net worth aspects. The defendant also asserts that the trial court did not instruct on his theory of the case.

The record does not support the contention of defendant that specific item evidence came as a surprise, and thus he was not prepared to meet it. However, the extent of it may have been greater than anticipated. The record shows that copies of schedules of unreported income in the possession of the United States Attorney of defendant's attorney before trial. These of defendant's attorney before trial. These were, however, not extensive. Responding later to a motion for a Bill of Particulars, the Government refused to divulge other items of unreported income on the ground that these were evidentiary matters. In its opening statement the Government stated that it would prove wilfulness by showing defendant's failure to report specific items of income. Also the defendant in his opening statement stated that explanation would be made of certain asserted specific items. Reference was also made to specific items in the Government's long trial brief. Thus before the trial began the defendant was put on notice that the case would be one of net worth with specific items. During the course of the trial the specific item proof began to assume a larger part of the evidence and at the end it became difficult to say whether it still was a net worth case. This is the basis of the objection on appeal. According to the appellant's brief the biggest jolt came when the Government introduced a sixteen page summary of omitted specific items, the total of which exceeded in amount the net worth increases. This indeed made the case difficult to categorize, and the wilfulness purpose and "likely source" purpose of such evidence appears secondary. The nature and order of proof, and adherence to a stated theory are matters within the trial court's discretion. No objection was made by defendant during the Government's case to evidence of specific items, nor were requests for continuance made. Furthermore, no objection was made during the Government's case to the use of the net worth method. It is obvious from the record that defendant's attorney was familiar with the limitations placed on the net worth method. Thus as to the asserted surprise issue, we find no error, and in any event there has been no showing of plain error to warrant consideration of the issue of surprise on this appeal. See United States v. DeLuzio, 454 F. 2d 711 (10th Cir.), and United States v. Wheeler, 444 F. 2d 385 (10th Cir.).

[Wilfulness]

Defendant argues next that there was no independent proof of wilfulness. He asserts that the Government merely had its witnesses testify twice to the same matters in an attempt to confuse and prejudice the jury into finding wilfulness. We cannot agree. The testimony relative to specific items of unreported income showed the defendant had from time to time deposited the proceeds from the sale of stock to his personal account, in some instances identifying the deposits in his check register as the repayment of loans that he had made. Other testimony relative to specific items of unreported income showed that defendant had failed to report accurately monies he had received as commissions for selling life insurance, or had understated them as to the amount. This is proper testimony to show wilfulness of the defendant, and we find no error in its admission into evidence.

[Instructions]

The defendant urges that the instructions were erroneous because he asserts they treated only the net worth method, and that in general terms. The defendant did not object to the instructions given on the ground here urged. He tendered some instructions but withdrew them. Thus the court had no requested instructions from defendant, and no objections directed to the issue here raised. The objections made by defendant to the instructions read in part:

"MR. PITTMAN: As indicated prior to the reading of the instructions, I would at this time, effective as of that time, like to withdraw my requested instructions that relate in any manner to the net worth, plus nondeductible expenses, method of proof, and object to all of the Court's instructions relating to this method of proof on the ground, and for the reason that the government's evidence in this case failed to meet the standard as to when this method may be used under the doctrine as laid down in the United States versus Holland case and the United States versus Spies case, and other well known cases in the net worth theory. The only other objection I have to--."

This was followed by discussions of instructions pertaining to reasonable doubt, and to evidence consistent with both guilt and innocence. The above quoted objection also pertains to the point above discussed relative to wilfulness.

Reading the instructions given as a whole, we find them to be sufficient. They properly covered the net worth case and were otherwise sufficiently specific to guide the jury as to the issues before it.

Considering further the above quoted objection as directed to the use of the net worth theory under Holland v. United States [54-2 USTC ¶9714], 348 U. S. 121, it must be held to have come too late. It was directed to instructions relative to the method and came after the sides had rested and the case was about to be submitted to the jury. Again, the defendant at the outset was advised of the course of action the Government was going to follow and had adequate opportunity to raise the issue by motion or objections. In any event the Government followed and met the requirements of Holland v. United States . The evidence of specific items was proper as indicated to show wilfulness, but it was also proper to negate a likely source under Smith v. United States [54-2 USTC ¶9715], 348 U. S. 147, and United States v. Calderon [54-2 USTC ¶9712], 348 U. S. 160. We also find no variance of the proof with the Bill of Particulars.

As to defendant's contention that the trial court did not instruct the jury so as to allow it to consider the defendant's theory of the case, we also find no error. As stated above, the defendant requested no instructions on his theory of the case, and is therefore not entitled to consideration of the claimed error. See McMurray v. United States , 298 F. 2d 619 (10th Cir.). Furthermore, before an instruction may be given, it must have some foundation in the evidence, and we find no such foundation here.

AFFIRMED.

^* Of the Fifth Circuit, sitting by designation.

 

[72-2 USTC ¶9766] United States of America , Appellee v. Norbert K. Lachmann, Defendant, Appellant

(CA-1), U. S. Court of Appeals, 1st Circuit, No. 72-1286, 469 F2d 1043, 11/29/72 , Aff'g an unreported District Court decision

[Code Sec. 7203]

Crimes: Failure to file timely returns: Wilfulness: Instructions to jury.--Taxpayer's conviction by a jury of wilfully failing to file timely income tax returns was affirmed. The court's instructions to the jury on the issue of wilfulness were not erroneous. Other allegations of error were without merit.

Lincoln C. Almond, United States Attorney, Joseph C. Johnston, Jr., Assistant United States Attorney, Providence, R. I., for appellee. James R. McGowan, Lester H. Salter, 300 Industrial Bank Bldg., Providence , R. I., for defendant-appellant.

Before ALDRICH, MCENTEE and CAMPBELL, Circuit Judges.

ALDRICH, Senior Judge:

Defendant was found guilty by a jury of "willfully" failing to file timely income tax returns for the years 1964-67. 26 U. S. C. §7203. The receipt of sufficient gross income to impose the obligation, and the failure to file in each of those years were conceded. The principal question on this appeal is whether the government's burden as to willfulness is as the court charged, or is the heavier one for which he contends. Defendant has so confused the issues that a detailed opinion is called for.

In theory there are at least four alternative meanings of "willfully" as used in this statute. (1) Defendant knowingly and intentionally failed to file, but did not know he was legally obligated to do so. (2) Defendant knowingly and intentionally failed to file, knowing that he was supposed to file, but not with the purpose of misleading or defrauding the government of a tax. (3) Defendant knowingly and intentionally failed to file, knowing of the obligation, and with the express purpose of misleading or defrauding the government. (4) Defendant knew of the obligation to file, but failed to file, not by express design, but through inattention or negligence of some sort. The court adopted alternative (2), ¹ Whereas defendant sought alternative (3). In spite of careful reading of his brief, only during oral argument did we learn that defendant has a still further complaint.

In oral argument defendant advanced the claim that the court's quoted charge permitted the jury to convict if it found that his failure to file had been due to gross negligence. Asked where he made such a complaint to the district court, counsel pointed to the transcript where the following appears at the end of an extensive postcharge colloquy at the bench.

"[T]he defendant particularly objects to the failure to charge the language of bad purpose, to disobey the law, and the defendant also objects to the failure to charge the substance of paragraphs 7, 8, and 9, alternative 9 which is contained in the supplemental request for charge, 10, 11, 12, 17, 18, and that part of paragraph 20 having to do with the proposition that evidence of good character standing alone may be sufficient in and of itself to create a reasonable doubt of guilt. Think you, Your Honor."

Request No. 7 read as follows.

"7. Mere laxity, careless disregard of the duty imposed by law, or even gross negligence, unattended by the specific evil motive is not 'willfulness' as that term is used in this case."

However, the colloquy as a whole shows that defendant's articulated objections were not as to negligence versus gross negligence, but were to the court's adopting alternative (2), ante, rather than (3), for which defendant contended. It is true that by the time of the charge the court had heard counsel's argument ² that defendant may have believed it was sufficient protection for the government to have the information returns filed by defendant's payors, but this was not enough to put the court on notice that it should explain to the jury that there is a difference between negligence and gross negligence and then instruct it to exclude both.

It is clear under settled decisions that mere blanket enumeration of requests by number is, prima facie, not enough. Charles A. Wright, Inc. v. F. D. Rich Co., 1 Cir., 1966, 354 F. 2d 710, cert. denied 384 U. S. 960. Fairness, the candor which counsel owes to the court, and the duty to avoid unnecessary new trials, desirable as that possibility may appear to a defendant as an anchor to windward, requires more. See discussion in Dunn v. St. Louis, San Francisco Ry. Co., 10 Cir., 1966, 370 F. 2d 681. The court in the case at bar, with its attention focussed on the debated application of alternative principle (3) as against (2), might only too naturally believe that what it said to exclude negligence or mistake was enough. Indeed, for defendant now to ask for the added distinction, if not pure afterthought, seems a classic example of a violation of the rule expressed in Wright v. Rich, ante, and its purpose.

We have devoted this amount of attention to what would otherwise be routine because of the circumstance that defendant's brief relies on cases dealing with carelessness, alternative (4), although he is plainly arguing the merits of alternative (3), hereinafter referred to as defendant's charge, as against (2). His basic thrust is the assertion that there is a "sharp split" in the circuits. In point of fact, such split as exists is almost exclusively over the correctness of alternative (4), an alternative which, except for defendant's technical point we have just discussed, the court below expressly instructed the jury to reject.

We start with the case of Spies v. United States, 1943, [43-1 USTC ¶9243] 317 U. S. 492, where, in holding that a conviction for willfully attempting to defeat a tax was not made out by proof of willfully failing to file a return, the Court observed, "mere voluntary and purposeful, as distinguished from accidental, omission to make a timely return might meet the test of willfulness [without proof of an intent to defraud]." 317 U. S. 497-98. This suggestion has been adopted in a number of circuits. United States v. Platt, 2 Cir., 1970, [70-2 USTC ¶9719] 435 F. 2d 789; United States v. Ostendorff, 4 Cir., 1967, 371 F. 2d 729, cert. denied 386 U. S. 982; United States v. MacLeod, 8 Cir., 1971, [71-1 USTC ¶9174] 436 F. 2d 947, cert. denied 402 U. S. 907; United States v. Fahey, 9 Cir., 1969, [69-2 USTC ¶9450] 411 F. 2d 1213, cert. denied 396 U. S. 957. Defendant cites three cases from the Third Circuit, and two from the Fifth which, he says, are to the contrary. They do not, however, afford him that comfort. It is true that in United States v. Hartman, 3 Cir., $1969, [69-1 USTC ¶9338] 409 F. 2d 198, the court spoke with approval of an extensive charge which included what we have called defendant's charge. This it did in affirming a conviction, and without specific reference to any particular portion of the instructions. Such general endorsement, if a holding, is certainly not a strong holding that a reversal would have been required had some individual part been omitted. Even more remotely supportive of the defendant are his cases of United States v. Litman, 3 Cir., 1957, [57-2 USTC ¶9820] 246 F. 2d 206, and Hargrove v. United States, 5 Cir., 1933, [3 USTC ¶1192] 67 F. 2d 820. His two remaining citations, United States v. Vitiello, 3 Cir., 1966, [66-2 USTC ¶9480] 363 F. 2d 240, and Haner v. United States, 5 Cir., 1963, [63-1 USTC ¶9390] 315 F. 2d 792, do not touch defendant's charge even indirectly. Rather, they reverse the district court for instructing that a finding of careless, as distinguished from deliberate, disregard was sufficient to convict. Without doubt there is a sharp split on that issue, see defendant's cases of Abdul v. United States, 9 Cir., 1958, [58-1 USTC ¶9453] 254 F. 2d 292, and United States v. Bishop, 9 Cir., 1972, [72-1 USCT ¶9252] 455 F. 2d 612, cert. granted 10/10/72, but that is irrelevant to the question before us. In point of fact, defendant has cited no court of appeals decision that has even criticized, let alone reversed, a district court for failure to give his requested charge.

As did the court below, we would reject the concept that in this criminal statute negligence or oversight is to be equated with willfulness. But we also reject defendant's claim that the conscious intent that the government must show is an intent to defraud the fisc. Conduct chosen with that evil motive is separately provided for in section 7201 of the Code, and is made a felony. Presumptively there was a reason for section 7203. They very fact that Congress regarded violation of that section as a misdemeanor, only, at once supplies the reason and indicates that a less serious motive is addressed to. The Supreme Court's suggestion in Spies, ante, had a valid base We consider that the proper conclusion is drawn in those cases, cited ante, which hold that a deliberate intent to disobey the filing requirement is all that is needed. Manifestly the government's income tax structure is predicated, generally, on the filing of returns. To hold that every noncomplier must go free unless the government establishes an affirmative intent to deprive the government of a tax known to be due would seriously interfere with its operation. We are not surprised that the advertised sharp split in the cases is not to be found.

Defendant's remaining points may be readily disposed of. The court's instruction with regard to character evidence ³ while doubtless not as helpful to defendant as he might have liked, seems to us quite sufficient. See the discussion in Mannix v. United States, 4 Cir., 1944, 140 F. 2d 250, 253-54. See also United States v. Ramzy, 5 Cir., 1971, 446 F. 2d 1187, cert. denied, 404 U. S. 992; United States v. Fayette, 2 Cir., 1968, 388 F. 2d 728, 737; Carbo v. United States, 9 Cir., 1963, 314 F. 2d 718, 746-47, cert. denied 377 U. S. 953; Poliafico v. United States, 6 Cir., 1956, 237 F. 2d 97, 114, cert. denied 352 U. S. 1025. To the extent that the opinion in appellant's case of Oertle v. United States, 10 Cir., 1966, [66-2 USTC ¶15,722] 370 F. 2d 719, cert. denied 387 U. S. 943, may go further, we decline to follow it. So, too, was defendant's request with respect to conflicting inferences adequately given. The court does not have to repeat its charge about burden of proof in every breath. It is hornbook law that precise language of a request, even though accurate, does not have to be adopted. Defendant's contention that the evidence was insufficient to convict would appear to us frivolous even if the government's burden were as defendant contends. Nor is this statute unconstitutional for vagueness.

Affirmed.

¹ The court charged,

`Willfully' as used in this law means that the defendant acted voluntarily, purposefully, deliberately, and intentionally in failing to file his return--that is, at the time for filing in failing to do so he had a deliberate intention not to file the return which he knew ought to have been filed.

"This conduct, ladies and gentlemen, must be distinguished from inadvertently, negligently or mistakenly failing to file.

"If you find the defendant in failing to file acted inadvertently, acted negligently or mistakenly then, of course, your verdict must be not guilty. On the other hand, if you find the defendant acted voluntarily, purposefully, deliberately and intentionally in failing to file his returns, then of course if you also find the Government has proven beyond a reasonable doubt the other elements I instructed you on, your verdict must be guilty--and the other elements that have been agreed to. So willfulness is the issue for you to decide." (Emphasis supplied.)

² Defendant did not testify.

³ "Now let's talk about one other thing, reputation. There was certain testimony that was introduced in this case on behalf of the defendant as to his previous reputation for honesty. Now, such evidence may be properly presented by the defendant charged with the commission of an offense in order to show that his character is such that in all likelihood he is not the type of person who would commit the offense or offenses with which he is charged. I instruct you that you should consider this evidence and give it such weight as you believe it deserves. This evidence concerning the defendant's reputation for honesty should be considered by you, together with all the other evidence in this case, in determining the guilt or innocence of the defendant. If, when considered with all the other evidence presented during this trial, it creates a reasonable doubt in your mind as to the guilt of the defendant, you should find him not guilty. But I must caution you that the circumstance that an individual has borne a previous good reputation for honesty is not to be used as a reason for showing leniency to one whose guilt, after an honest, careful and intelligent consideration of all the evidence, including such evidence as to a good reputation for honesty, has been established by proof beyond a reasonable doubt."

 

 

 

[72-1 USTC ¶9449] United States of America , Plaintiff-Appellee v. William R. Ming, Jr., Defendant-Appellant

(CA-7), U. S. Court of Appeals, 7th Circuit, No. 71-1083, 466 F2d 1000, 5/26/72, Aff'g unreported District Court decision

[Code Sec. 7203]

Failure to file return: Sufficiency of information: Hostility of the court: Constitutionality of Code Sec. 7203: Admissibility of evidence: Jury selection: Instructions to jury: Admission of returns as evidence: Miranda-type warnings.--The taxpayer's conviction for failing to file a return was upheld by the Court. The following issues were decided against the taxpayer on appeal: (1) The words "said income tax return" used in the information, sufficiently referred to the breach of the duty to file at the time required by law. Accordingly, the District Court did not err in denying the taxpayer's motion in arrest of judgment. (2) The denial of the taxpayer's motion for substitution of judges was upheld. There was no substance to support the charge of bias and prejudice on the part of the District Judge. (3) Code Sec. 7203 was found to be constitutional. Its language met the standard of clarity required of penal statutes by the Fifth Amendment to the Constitution. (4) The District Court did not prejudicially err in denying the taxpayer's challenges to evidentiary matters. (5) The method of selecting the jury was proper. There was no error in limiting each side to three peremptory challenges. (6) The taxpayer was not denied due process under the Fifth Amendment because the Government used two of its peremptory challenges against the only two Negroes in the jury box. (7) The use of the Government's instruction to the jury on the subject of the taxpayer's good reputation, and the rejection of the taxpayer's instruction on the subject of his mental condition did not deny him a fair trial. (8) The admission into evidence of the taxpayer's returns for the years at issue did not violate his Fifth Amendment privilege against self-incrimination. (9) The taxpayer's right to Miranda warnings was not violated by admitting into evidence the testimony of IRS agents derived from audits of the taxpayer's records, obtained during conversations with the taxpayer or statements made by the taxpayer to the agents.

James R. Thompson, United States Attorney, John Peter Lulinski, Jeffrey Cole, Sheldon Davidson, Assistant United States Attorneys, Chicago, Ill., for plaintiff-appellee. R. Eugene Pincham, 840 E. 87th St., Chicago, Ill., Ellis E. Reid, 123 W. Madison St., Chicago, Ill., for defendant-appellant. Stanley A. Kaplan, University of Chicago Law School, 1111 E. 60th St., Chicago, Ill., Maurice Rosenfield, 208 S. La Salle St., Chicago, Ill., Alex Elson, 11 S. La Salle St., Chicago, Ill., Harry Kalven, Jr., 4929 S. Woodlawn, Chicago, Ill., for Maicus Curiae.

Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and KILEY, Circuit Judge.

HASTINGS, Senior Circuit Judge.

Defendant William R. Ming, Jr., was charged in four counts of an information, filed April 14, 1970 , with having willfully and knowingly failed to make his federal income tax returns for the years 1963, 1964, 1965 and 1966 to the District Director of Internal Revenue, ¹ in violation of Title 26, U. S. C. A. §7203, being Section 7203 of the Internal Revenue Code of 1954. ²

[Facts]

Following the disposition of the pre-trial motions, this cause was submitted for trial to a jury in the federal district court ³ on October 26, 1970 . The jury returned a verdict on November 2, 1970, finding the defendant guilty on each of the four courts as charged in the information. Judgment was entered on the verdict. Following the denial of defendant's post-trial motions in arrest of judgment and for a new trial, defendant was sentenced to serve four months imprisonment on each of the four counts of the information, the sentences to run consecutively, for a total of 16 months. Defendant was also fined in the sum of $1,250 on each of the four counts, for a total of $5,000, together with the costs of prosecution. Defendant appealed. We affirm.

The basic facts in this case are not in dispute. Defendant did not timely file his federal income tax returns for each of the four years, 1963 through 1966. Defendant did not make such returns when due, that is, on or before April 15 of the year succeeding the calendar tax year involved. Defendant was a person required by law or regulation to make a return for each of the four years in question, his adjusted gross income having exceeded $600 for each of those years. Defendant knew that he was required to make such returns on or before the respective due dates. For the purpose of establishing a pattern of conduct bearing upon the question of willfulness, over objection, the Government established that the defendant failed to timely make his federal income tax returns for the seven preceding tax years of 1956 through 1962.

Testimony introduced by defendant, including his own, was directed to the one issue of whether he had any criminal intent in failing to make his returns when due, i.e., whether he willfully and knowingly failed to do so. We shall subsequently treat the several issues raised concerning such testimony, as well as that excluded by the trial court in its evidentiary rulings.

It should be further pointed out at this juncture that defendant was charged under Section 7203, a misdemeanor statute. He was not charged under Section 7201 with willfully attempting to evade or defeat his federal income tax, a felony statute.

The Information

Defendant contends the district court prejudicially erred in denying his motion in arrest of judgment. He argues that the information is fatally defective because it does not state that he failed to make said income tax return "at the time or times required by law or regulations," the language of the statute. He says that the words used in the information, "said income tax return," do not refer to "the breach of the duty of file at the time required by law." We regard this as an unrealistic reading of the information.

Count I in the information does allege that defendant "was required by law * * * on or before April 15, 19 64, to make an income tax return * * * [and that] he did wilfully and knowingly fail to make said income tax return * * *." (Emphasis added.) We are at a loss to understand how anyone reading the information could fail to understand that "said income tax return" required by law to be made on or before the specified due date could be other than a return to be made at the time required by law.

We are not persuaded by defendant's attack on this information. We find ourselves in agreement with the holding in United States v. Cotter, 1 Cir., [70-1 USTC ¶9371] 425 F. 2d 450 (1970). In Cotter, in considering the language used in an indictment charging a violation of Section 7203 for failure to make a return as "required by law" following the close of the calendar year 1962, the court said: "The fair meaning of 'said income tax return' is the return due on April 15, 19 63." At 452.

Motion for Substitution of Judges

On the morning of the trial, defendant filed a motion for substitution of judges pursuant to Title 28, U. S. C. A. §144. Defendant moved that Judge Hoffman proceed no further because he had "a personal bias and prejudice in favor of plaintiffs, which personal bias and prejudice was not known to defendant until on or about October 23, 1970 ." The motion was accompanied by defendant's supporting affidavit and a certificate of good faith by his counsel. Disregarding the question of timeliness or lack of it, Judge Hoffman considered the motion on its merits and denied it on the ground that "[t]he motion supported by an affidavit is entirely inadequate and does not meet the requirements of the statute."

Section 144 dictates disqualification only when "the judge * * * has a personal bias or prejudice either against him [the movant] or in favor of any adverse party * * *." Our examination of the affidavit reveals in substance that defendant alleged that Judge Hoffman had a personal bias or prejudice in favor of the United States of America based on the following cited examples of his judicial conduct:

(1) Judge Hoffman refused to grant defendant a continuance in the instant case so that defendant could participate in the appeal of an election case involving the Board of Election Commissioners of the City of Chicago, entitled United States of America v. Kusper, et al., then pending in this court; and

(2) Judge Hoffman, on November 30, 19 66, in defendant's presence, in the case of United States v. White, a narcotics case where a defendant had accused United States Treasury agents of perjury, had characterized the agents as "brave young Treasury agents."

We take judicial notice of the proceedings on appeal in this court in the Kusper case and find no substance there to support the charge of bias and prejudice on the part of Judge Hoffman in favor of the United States . The denial of a simple continuance hardly rises to the dignity of giving "fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Berger v. United States , 255 U. S. 22, 33-34 (1921). See Rosen v. Sugarman, 2 Cir., 357 F. 2d 794, 797-798 (1966); Tucker v. Kerner, 7 Cir., 186 F. 2d 79, 83-85 (1950). Cf. Peacock Records, Inc. v. Checker Records, Inc., 7 Cir., 430 F. 2d 85, 88 (1970), cert. denied, 401 U. S. 975 (1971).

To the credit of defendant, we note one of his concluding statements in his supporting affidavit: "Affiant has known Judge Julius J. Hoffman for many years and has a high regard for him and as a result of comments made by the judge on occasion, believes the high personal regard to be mutual."

It was the judge's duty to inquire into the legal sufficiency of the facts stated in the affidavit. A trial judge has as much obligation not to recuse himself when there is no occasion for him to do so as there is for him to do so when the converse prevails. Rosen v. Sugarman, at 797. We conclude that defendant's supporting affidavit to his motion for substitution of judges was inadequate and does not meet the requirements of Section 144. It was not error to deny the motion.

Validity of Section 7203

Defendant contends that Section 7203 "contains vague language and myriad cross references to interrelated enactments and regulations and, as a consequence, is void because it does not meet the standard of clarity required of penal statutes by the Fifth Amendment to the Constitution."

He buttresses his contention by resorting to the well established principle "that a law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law." Baggett v. Bullitt, 377 U. S. 360, at 367 (1964). No one disputes the vitality of this constitutional pronouncement made in holding invalid two state statutes requiring state employees to subscribe to "non-subversive" oaths as a prior condition for public employment. It simply has no application to our consideration of the validity of Section 7203, either on its face or as appplied.

Defendant's argument is predicated on the assumption that the meaning of "willfully fails * * * to make such return" in Section 7203 is to be equated with the meaning of "willful" in Section 7201, the felony statute. However, by comparison, Section 7201 refers to one "who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof." The felony statute requires the affirmative act of evasion, while the misdemeanor is an omission of a duty to make a return. This distinction was clearly recognized by the Supreme Court in Sansone v. United States [65-1 USTC ¶9307], 380 U. S. 343, 350-354 (1965); Spies v. United States [43-1 USTC ¶9243], 317 U. S. 492, 497-500 (1943); and United States v. Murdock [3 USTC ¶1194], 290 U. S. 389, 396 (1933). Following Sansone and Spies is United States v. Schipani, 2 Cir., [66-2 USTC ¶9512] 362 F. 2d 825, 831 (1966), cert. denied, 385 U. S. 934; and Sansone is United States v. Fahey, 9 Cir., [69-2 USTC ¶9450], 411 F. 2d 1213, 1214 (1969), cert. denied, 396 U. S. 957.

All of these cases were correlated and cited with approval by our court in United States v. Matosky, 7 Cir., [70-1 USTC ¶9210] 421 F. 2d 410, 411-413 (1970), cert. denied, 398 U. S. 904. There the defendant was convicted of a charge of failure to file timely income tax returns for the years 1962, 1963 and 1964, in violation of Section 7203, and the only issue for trial by the jury was that of willfulness. We noted there that defendant's argument "that the test of 'willfulness' is the same under §7203, as it is under §7201" had been rejected in Sansone.

We conclude that Section 7203 is constitutional on its face. In support of defendant's contention that the statute was unconstitutionally applied to himself, he argues that the trial court erred in excluding his proffered testimony of Dr. Lawrence Freedman, a psychiatrist. This witness was asked a series of hypothetical questions by which the defendant offered to prove that his failure to make his tax returns was at least partially caused by emotional pressures and a lack of mental capacity referred to as "anti-materialistic neurosis." Defendant makes no plea of insanity. Since we hold that the meaning of willfulness is as set out in the foregoing authorities, it necessarily follows that the statute was constitionally applied to defendant and the trial court did not err in sustaining the Government's objections to the introduction of such testimony.

Challenged Evidentiary Rulings

The trial court sustained the Government's objections to a variety of questions asked by defendant's counsel both on direct and cross-examination. The record is replete with succeeding offers to prove. Further, defendant's counsel complains of the trial court's adverse rulings in certain aspects of his examination of Government witnesses. We have read the entire record pertaining to these evidentiary rulings and have noted the parade of the jury in and out of the courtroom as required in such instances.

For the most part, defendant's motions in these respects do not merit detailed consideration. The trial court ruled properly when questions were obviously improper as to form; when the evidence sought was irrelevant or immaterial; and particularly so when the answers sought were not proper under the rule relating to the issue of willfulness as we have determined it to be in this case.

A few instances will suffice. There was no dispute that defendant's income tax returns were unseasonably filed and his income taxes were paid when past due. Defendant contends the trial court erred in refusing to allow admission in evidence of his federal income tax returns for the years 1962 through 1968, inclusive, and the work copies of those returns. The trial court denied the introduction of a Xerox copy of an Illinois death certificate with respect to the death of Arthur J. Wilson, formerly defendant's accountant, who had been employed at some time to work on defendant's tax returns but had never completed them. Wilson 's death was not disputed. Defendant unsuccessfully sought to introduce a series of long-hand yellow worksheets purporting to be legal matters in which he had been professionally engaged during the years 1958 through 1970, apparently to establish that he had a busy and demanding law practice. The testimony of various witnesses was excluded where defendant attempted to show that he was more concerned with people than with making money; the detailed manner in which his secretary took care of his personal financial matters; conversations between defendant and his accountant (following Wilson's death) concerning his tax returns which this accountant eventually prepared and were executed and filed by defendant; and numerous other irrelevant personal matters.

It has been clearly established that late filing and late tax payment are immaterial on the issue of willfulness in a Section 7203 prosecution. In Sansone, supra, the Court said:

"[W]e agree that the intent to report the income and pay the tax sometime in the future does not vitiate the willfulness required by §§ 7203 and 7207 * * *." 380 U. S. at 354.

In Spies, supra, the Court said:

"Punctuality is important to the fiscal system, and these are sanctions [referring to willful failure to make a return] to assure punctual as well as faithful performance of these duties." 317 U. S. at 496.

See Fahey, 411 F. 2d at 1214; and Matosky, 421 F. 2d at 413.

It is also obvious that the proffered testimony excluded by such rulings could not serve to impeach a Government clerk who had merely testified that her search in 1968 of Internal Revenue index files did not reveal that defendant's tax returns had been filed. Accountant Wilson 's death was well known to the jury because of defendant counsel's repeated references to it during the trial. Defendant's widespread, busy, private and civil rights-related law practice, together with his distinguished record of public service in a broad range of activities, were fully disclosed to the jury in defendant's personal testimony in his own defense. He was granted wide latitude in such testimony.

Based upon our detailed examination of the entire record relating to all of the challenges of defendant to evidentiary matters, we have concluded that the trial court did not prejudicially err in such rulings and that there are no adequate grounds for a reversal resulting from the same.

Miscellany

A few of defendant's claims of prejudicial error merit only passing comment.

He charges the method of selecting the jury was improper, citing Rule 24(b), Federal Rules of Criminal Procedure, 18 U. S. C. A. ⁴ He now asserts that the trial court erred in limiting each side to three peremptory challenges because the defendant's total punishment could and did exceed one year. The short answer to this is that defendant was charged in one information with four counts of the same offense, a misdemeanor, for which the statutory penalty is not more than one year or a fine or both. He cites no supporting authority. The rule is to the contrary and the trial court properly granted only three peremptory challenges to each side. More than one count properly joined in one indictment or information does not increase the number of peremptory challenges to which a defendant is entitled. It is foreclosed by the statute itself. Nestlerode v. United States , D. C. Cir., 122 F. 2d 56, 58-59 (1941).

Defendant further asserts, without supporting authority, that he was denied due process under the Fifth Amendment because the Government used two of its peremptory challenges against the only two Negroes in the jury box. There was no showing or claim of the systematic exclusion of Negroes from federal juries in the Northern District of Illinois based on an invidious discrimination. The race of the veniremen excused by counsel does not appear in the record. Assuming that the two jurors in question were Negroes, there has never been any suggestion that the prosecution was racially biased or the trial so corrupted. The Government aptly points to the record showing that when the trial judge made his ruling the defense counsel stated in open court: "I think it can be read fairly both ways. We will abide by your Honor's ruling." Defendant later used this ruling as one of his grounds in a motion for a new trial. The trial court did not err in its ruling. See Swain v. Alabama , 380 U. S. 202, 221 (1965).

Defendant charges that he was denied a fair trial due to the trial court's charge to the jury. He asserts the court erred in rejecting his tendered instructions Nos. 6 and 14, and in giving Government's tendered instructions Nos. 3A, 3B, 4, 5, 5A, E, F, Q and T-1. We have reviewed each of such instructions and the instructions given as a whole. Government's instruction No. T was substituted for defendant's No. 6, and is a better and more complete instruction on the subject of defendant's good reputation, subsequently more fully referred to herein. His tendered instruction No. 14 on the subject of his mental condition was properly rejected as going beyond that warranted in a prior holding of this court. Those given by the court have been approved in form or substance by our court or other federal courts. It would unduly prolong this opinion to treat each one in detail. We find no error concerning any of those challenged. Based on our examination of such instructions given as a whole, we are left with the fixed conclusion that the jury was adequately and properly instructed in all respects and that defendant was not deprived of a fair trial as a result thereof. In fact, as we read the instructions as a whole we find they appear to be more favorable to the defendant than to the Government.

Defendant presented a number of eminent and distinguished persons who testified that on April 15, 1971 , the date the instant information was filed, his general reputation for truth and honesty in the community wherein he worked was good. All of such witnesses had had a personal relationship with defendant in the past, either socially or professionally. These witnesses were Mahalia Jackson, gospel singer; Edward Levi, President of the University of Chicago; Ramsey Clark, former Attorney General of the United States; Monsignor John Egan, clergyman and then associated with the University of Notre Dame; Roy Wilkins, Executive Director of the National Association for the Advancement of Colored People; Martin Luther King, Sr., minister of the Ebeneezer Baptist Church, Atlanta, Georgia; R. Jess Brown, educator and Mississippi lawyer; Dominic A. Tesauro, Chicago lawyer and former Regional Administrator of General Services Administration; and Dr. Stanley Korff, Chicago dentist.

On the subject of evidence of defendant's reputation the trial court instructed the jury as follows:

"The defendant, you recall, had introduced evidence tending to establish his good reputation in his community prior to the indictment in this case. Such evidence may indicate to you that it is improbable that a person of good character would commit the crime or crimes charged. Therefore the jury should consider this evidence along with all the other evidence in the case in determining the guilt or innocence of the defendant. The circumstances may be such that evidence of good character alone may create a reasonable doubt of the defendant's guilt, although without it the other evidence would be convincing. However, evidence of good reputation should not constitute an excuse to acquit the defendant if the jury, after weighing all evidence, including the evidence of good character, is convinced beyond a reasonable doubt that the defendant is guilty of the crime or crimes charged in the information."

We consider this instruction to be proper and adequate statement of the applicable law. We must conclude that the jury considered this evidence, along with all the other evidence in the case, in determining that defendant was guilty as charged.

Defendant timely filed a pre-trial motion requesting the trial court to suppress from evidence his federal income tax returns filed for the years 1963 through 1966 and to suppress from evidence the testimony of Internal Revenue Agents derived from audits of defendant's records, obtained during conversations with defendant or statements made by defendant to the agents.

The argument against the use of the tax returns is that such use would be in violation of his Fifth Amendment privilege against self-incrimination. He predicates this argument on the premise that mere failure to make a return must be equated with an attempt to evade or defeat the tax. We have already rejected this premise in considering the validity of Section 7203, supra. To our knowledge no court has held the self-incrimination privilege to be a good defense to a Section 7203 charge of willful failure to make a return. The indication seems to be to the contrary.

The Supreme Court has held in effect that the Fifth Amendment does not protect the recipient of such income from prosecution for willful refusal to make any return under the income tax law. United States v. Sullivan [1 USTC ¶236], 274 U. S. 259, 263 (1927). In United States v. Keig, 7 Cir., [64-2 USTC ¶9563], 334 F. 2d 823, 827 (1964), a prosecution under Section 7203 for willful failure to make income tax returns, we laid down the same rule, citing Sullivan. The argument that the use of such returns as evidence of his obligation to file or as evidence of his gross income would violate his right to due process is similarly untenable.

Defendant raises the same Fifth Amendment contentions with reference to the admission of the testimony of the Internal Revenue Agents above mentioned. He appears to rely upon the alleged failure of the agents to give him the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966). He claims this is the logical extension of our holding in United States v. Dickerson, 7 Cir., [69-2 USTC ¶9556] 413 F. 2d 1111 (1969), and that we should re-examine our decision "to apply our holding to interrogations taking place after the date of the decision [July 28, 1969]." Since the interrogations in the case at bar took place before our decision in Dickerson, he is not entitled to its application here. United States v. Gallagher, 7 Cir., [70-2 USTC ¶9506] 430 F. 2d 1222, 1224 (1970), cert. denied, 400 U. S. 956. It is reported that almost all other circuits have rejected our Dickerson application of the exclusionary rule in Miranda to taxpayers in criminal tax investigations. ⁵ We see no need to re-examine our limited prospective application of Dickerson.

We hold that the trial court did not err in denying defendant's motion to suppress.

Brief of Amici Curiae

We granted leave to a group of nine "concerned members" of the bar of this court to file a brief as amici curiae in support of defendant-appellant. We have carefully considered this brief. The members of the group are all eminent lawyers and legal scholars. With commendable candor they admit they "interested themselves in this case because of their regard for and concern about a distinguished colleague at the bar whose long career demonstrates courage, compassion, professionalism and commitment to pro bono publico work in the highest traditions of the bar." In this respect they acknowledge kinship to the "eminent witnesses testifying to his character, reputation and the nature of his professional work," we have hereinbefore referred to. In addition to their personal concern for defendant, they find "a basic and disturbing confusion" underlying the meaning of "willfully," the key term for the requisite state of mind as it is used in Section 7203, the misdemeanor statute. They further suggest that the Seventh Circuit appears not firmly committed to a construction of the term "willfully" in the misdemeanor statute, Section 7203, different from that used in the felony statute, Section 7201, which requires "a state of mind approaching an intent to evade taxes."

We have rejected this contention in our discussion of the validity of Section 7203. With deference to the distinguished amici, we reiterate that our holding in Matosky, 421 F. 2d at 413 following Sansone, Spies, Schipani and Fahey, supra, is fully dispositive of this question in this circuit. Further, we see no "sharp split between the Circuits as to how to handle 'willfully'" in the misdemeanor statute.

Amici, relying upon their statement that defendant's "returns were in and his taxes for the years charged were paid well prior to the time the prosecution was initiated," find that this led the trial court into fatal error. We have already passed upon the court's exclusion of the returns themselves for the years involved and evidence that the taxes were paid before the prosecution was initiated. However, further error is asserted because the trial court admitted in evidence, over objection, evidence that defendant had not timely filed his returns in the seven successive years immediately preceding the years charged, these being barred from prosecution by the statute of limitations.

It is well established in this circuit that evidence of other related offenses is clearly admissible to prove knowledge and intent of a person accused of a crime. Here, the other offenses involved were identical to those charged. There was no hiatus between the preceding seven years and the four charged. The conduct of the seven immediately preceding years was relevant to the issue of knowledge and intent as tending to show a constant pattern of conduct. This is the recent explicit holding of our court, authored by Senior Circuit Judge Duffy, in United States v. Hampton, 7 Cir., -- F. 2d -- (slip opinion No. 18422, March 3, 1972 ). United States v. Marine, 7 Cir., 413 F. 2d 214 (1969), and other relevant cases in this and other circuits as cited in Hampton , with comment. Suggested contrary inferences in other circuits by the amici are readily distinguishable from the case at bar.

Amici further suggests an inability to understand what it is that moves men to fail to file income tax returns; they are astonished by the disproportionate number of misdemeanor cases which involve lawyers; and have noted the uneven sentences given in a number of such cases. We do not profess to have the answers to such questions. We do know from defendant's own testimony that he did not timely make his required tax returns; that he knew he was required to do so; and that he knew he had not complied with such legal obligation. He had no "bona fide misunderstanding as to his liability for the tax, as to his duty to make a return, or as to the adequacy of the records he maintained," as required in Matosky, supra.

Misdemeanor convictions under Section 7203 are not unique insofar as eminent scholars and distiguished members of the bar are concerned. They are well known to all who have had to deal with them. With his outstanding record of service, both public and private, defendant was one of a select group who attracts the immediate sympathetic support of his peers who feel impelled to rescue him from the belated predicament in which he finds himself. This always leads to the willingness of friends of the highest standing to testify truthfully that he was a man of good reputation when he got into trouble. This, in turn, subjects a trial court and jury to great pressures, as it is properly intended to do. On conviction, as in the case before us, not infrequently similar pressures are brought to bear by lawyers who are genuinely concerned with the fate suffered by their colleague. However, on consideration of all issues presented, we cannot in good conscience hold that defendant did not receive a fair trial. In our judgment, he did.

Lurking in all appeals of this character is the inference that the trial court imposed an excessive punishment. The statutory maximum is one year's imprisonment and a fine of $10,000 on each count. The sentence imposed was four months and a fine of $1,250 on each count, the sentences to run consecutively. The sentences were one-third and the fines one-eighth of the maximum, well within the statutory limits. Whether the sentences should have been made to run concurrently or probation granted in whole or in part, is beyond our jurisdiction. Such questions lie within the reasonable discretion of the trial court. Whether or not we would have assessed such penalties is beside the point and we express no opinion on that question. The case does not come within any of the categories of "exceptional cases" concerning excessive punishment as delineated in United States v. Humphreys, 7 Cir., -- F. 2d -- (No. 71-1137, February 25, 1972 , slip opinion pages 5-6), with which opinion we are in agreement.

Without further extending this opinion, we hold that the judgment of conviction and sentence appealed from are in all things affirmed.

AFFIRMED.

¹ Count I is typical of the four counts and reads:

"The UNITED STATES ATTORNEY charges:

"That during the calendar year 1963,

"WILLIAM R. MING, JR.,

defendant herein, who was a resident of the City of Chicago, State of Illinois, had and received a gross income of $17,908.81, that by reason of such income he was required by law, after the close of the calendar year 1963 and on or before April 15, 19 64, to make an income tax return to the District Director of Internal Revenue for the Internal Revenue District of Chicago at Chicago, Illinois, in the Northern District of Illinois, Eastern Division, stating specifically the items of his gross income and and deductions and credits to which he was entitled; that well knowing all of the foregoing facts, he did wilfully and knowingly fail to make said income tax return to said Director of Internal Revenue, or to any other proper officer of the United States, in violation of Section 7203, Internal Revenue Code, Title 26, United States Code, Section 7203."

Count II alleges defendant received a gross income of $28,039.07 in 1964; Count III alleges $29,279.01 in 1965; and Count IV alleges $23,697.36 in 1966.

² Section 7203 reads:

"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." August 16, 19 54, c. 736, 68A Stat. 851. (Emphasis added.)

³ Trial was had in the United States District Court for the Northern District of Illinois, Eastern, Division, the Honorable Julius J. Hoffman, Judge, presiding.

⁴ Rule 24(b), in relevant part, reads:

"(b) Peremptory Challenges. * * * If the offense charged is punishable by imprisonment for more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges. If the offense charged is punishable by imprisonment for not more than one year or by fine or both, each side is entitled to 3 peremptory challenges."

⁵ Merten's Law of Federal Income Taxation, §55A. 21, Note 13.26, 1972 Cumulative Supplement, Vol. 10, page 18.

 

 

[72-2 USTC ¶9478] United States of America Vernon M. Mathews, Appellant

(CA-3), U. S. Court of Appeals, 3rd Circuit, No. 72-1085, 463 F2d 182, 6/6/72

[Code Sec. 7201]

Tax evasion conviction: Timeliness of appeal: Appeal from order.--The Court determined that it had no jurisdiction over an appeal from a tax evasion conviction where the first notice of appeal was filed prematurely (before sentence) and the second notice was filed late. The premature appeal could not be a source of jurisdiction as an appeal from a District Court order, where the order was not a final, appealable one.

Thomas A. Daley, Assistant United States Attorney, Pittsburgh , Pa. , for appellee. Joseph W. Conway, Balzarini, Walsh, Conway & Maurizi, 3113 Grant Bldg., Pittsburgh , Pa. , for appellant.

Before STALEY, ALDISERT and HUNTER, Circuit Judges.

Opinion of the Court

PER CURIAM:

Appellant seeks review of his conviction under 28 U. S. C. §7201, for income tax evasion for the years 1964, 1965, 1966 and 1967. He contends that: (1) he should have been apprised of his Miranda rights during the investigation of his activities by Internal Revenue Service Special Agents; (2) the government failed to prove appellant's opening net worth during the years in question; (3) after the jury commenced deliberations, it was given prejudicial exhibits which created an inference that appellant was engaged in criminal tax evasion in years prior to those involved in the indictments; and (4) appellant's expert witness should have been permitted to testify concerning the weaknesses of the net worth method of tax analysis.

[Timeliness of Appeal]

We address ourselves initially, however, to the timeliness of this appeal. Appellant was found guilty by a jury on June 10, 1971. The district court [72-1 USTC ¶9352] denied appellant's motions for a new trial and judgment of acquittal on December 13, 1971. Notice of appeal from this order was filed on December 22, 1971. The court imposed sentence on December 27, 1971. Appellant's counsel recognized the prematurity of his December 22 notice of appeal, and, on January 7, 1972, filed a notice of appeal "from the judgment and order . . . dated December 27, 1971."

Rule 4(b), F. R. A. P., provides: "in a criminal case the notice of appeal by a defendant shall be filed in the district court within 10 days after the entry of judgment or order appealed from. . . ." Here, the second notice of appeal was filed 11 days after the date of sentence. Appellant, therefore, does not, and could not, attempt to justify the jurisdiction of this court on the basis of the January 7 notice. The 10-day limitation of the period in which a notice of appeal may be filed, absent a finding of excusable neglect by the trial court, is mandatory and jurisdictional. United States v. Rob inson, 361 U. S. 220, 224 (1960); United States v. Deans, 436 F. 2d 596, 599 (3d Cir. 1971).

Therefore, the jurisdiction vel non of this court must result from the notice of appeal filed on December 22, 1971 . Clearly, as appellant's counsel himself recognized, this notice was premature because "[a]n appeal may not be taken until after the pronouncement of sentence, and must be taken promptly after sentence is imposed." Corey v. United States 375 U. S. 169, 172 (1963); Parr v. United States , 351 U. S. 513, 518 (1956).

[Appeal from Order]

In an effort to circumvent this language, both in brief and at oral argument, appellant's counsel argued that the instant appeal is from the district court's order denying appellant's motions for judgment of acquittal and a new trial. But in United States v. Rizzo, 439 F. 2d 694 (3d Cir. 1971), we held that an order denying a motion for judgment of acquittal was not a final appealable order. Moreover, this court has clearly held that "[n]either the order finding the accused guilty nor the order denying a new trial is an appealable final order absent any imposition of sentence." United States v. Jarrett, 439 F. 2d 1135 (3d Cir. 1971). ¹

Although we find that because this appeal was not timely filed we are without jurisdiction, ² we have examined all of appellant's contentions advanced in brief and oral argument, and we find them to be without merit.

The appeal will be dismissed for want of jurisdiction.

¹ The wellspring of authority for this well-established proposition is Berman v. United States, 302 U. S. 211, 212-213 (1937), in which Chief Justice Hughes said: "Final judgment in a criminal case means sentence. The sentence is the judgment. * * * In criminal cases, as well as civil, the judgment is final for the purposes of appeal 'when it terminates the litigation . . . on the merits,' and 'leaves nothing to be done but to enforce by execution what has been determined.'" See also, United States v. Bendicks, 439 F. 2d 1120, 1121 (5th Cir. 1971); United States v. Garber, 413 F. 2d 284, 285 (2d Cir. 1969); United States v. Henson, 358 F. 2d 721 (4th Cir. 1966); Northern v. United States [62-1 USTC ¶9331], 300 F. 2d 131, 132 (6th Cir. 1962).

The Berman rule has been scrupulously followed in this circuit, see, e.g., United States v. Swidler [53-2 USTC ¶9588], 207 F. 2d 47 (3d Cir. 1953); United States v. Knight, 162 F. 2d 809 (3d Cir. 1947). In United States v. Kokin [66-2 USTC ¶15,705], 365 F. 2d 595 (3d Cir. 1966), however, this court did elect to proceed to the merits, despite a premature notice of appeal. But in United States v. Battista, 397 F.2d 286 (3d Cir. 1968), when we inadvertently proceeded to the merits in an appeal from the denial of a motion for a new trial, the Supreme Court denied certiorari, sub nom. Laris v. United States, 393 U. S. 936 (1968). "[I]t appearing that the order of the court below was not a final appealable order, no judgment of conviction, sentence and commitment having been entered. . . . [o] ur former judgment therefore was void for we were without jurisdiction to adjudicate the appeal." United States v. Battista, 418 F. 2d 572, 573 (3d Cir. 1969). (Emphasis supplied.)

² Nor can our jurisdiction rest under the ambit of the second sentence of Rule 4(b): "A notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof." The situation contemplated by the second sentence of Rule 4(b) occurred in Lemke v. United States, 346 U. S. 325 (1953). There, the Court found acceptable the filing of a notice of appeal one day after the sentence was in fact imposed, but three days before the judgment was formally entered. This is most unlike the instant case where the notice of appeal was filed before the fact of sentencing. Indeed, here the sentencing judge informed appellant's counsel that an appeal could not be taken before sentencing, and appellant's counsel agreed:

The Court: So, I trust you will advise me about whether an appeal is pending.

Counsel: I will your Honor.

The Court: As soon as possible. I know there has been one already, which I think is premature. I think the final order is the sentence here.

Counsel: I know. I went back and read the rules.