United States v. Salvatore Vitiello , 363 F.2d 240 ( 1966 )

HASTIE, Circuit Judge.

The appellant has been convicted of “willfully” failing to file federal income tax returns for the years 1958 and 1959 in violation of the provision of section 7203 of title 26, United States Code that anyone “who willfully fails to * * * make * * * [a required income tax] return * * * shall * * * be guilty of a misdemeanor * * *.” The evidence amply supported the jury’s verdict. However, a question remains on this appeal whether the trial judge in his charge to the jury gave “willful” an erroneously broad and comprehensive definition, thus permitting conviction without a finding of essential scienter.

At three different points in the charge the court defined willfully as follows:

“ * * * And the word is employed to characterize such conduct as marked by a careless disregard whether or not one has a right to so do.” ******

“ * * * And by the term wilfully, as used in the statute, means with a bad purpose or without grounds for believing that one’s act is lawful or with such a careless disregard whether one has a right so to act.”

******

“The word wilful * * * means with a bad purpose or without grounds for believing that one’s act is lawful or without reasonable cause or capriciously or with a careless disregard whether one has a right so to act.’’ [Italics added.]

Our examination of the issue thus raised begins with the much cited opinion in United States v. Murdock, 1933, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381, relied on by the dissent in the instant case and presumably the basis of the lower court’s instruction. In Murdock, the defendant was convicted for failing to give required tax information in violation of an earlier statute from which section 7203 was derived. The lower court had instructed the jury to the effect that one who voluntarily refused to give the required information would be guilty of “willfully” failing to give the information. Thus, the issue before the Supreme Court was the proper definition of “willfully” as the mens rea requirement of this misdemeanor. In framing the issue, the court noted that willful is a word of many meanings, for example, merely voluntary as contrasted with accidental, but that in a criminal statute it generally means “an act done with a bad purpose * * * ; without justifiable excuse * * * ; stubbornly, obstinately, perversely * * 290 U.S. at 394, 54 S.Ct. at 225. Then, the court continued to catalog various other meanings of willfully, including the following:

“The word is also employed to characterize a thing done without ground for believing it is lawful * * * or conduct marked by careless disregard whether or not one has the right so to act * * 290 U.S. at 394-395, 54 S.Ct. at 225.

However, this enumeration of different meanings of willfully in various contexts should not be read as a statement that several definitions, among them the one last quoted above, are comprehended by the criminal statute in question. Indeed, rather than adopting a number of meanings, the Court proceeded to consider the context of the misdemeanor section and concluded that willful as an element of the offense connoted “bad faith or evil intent”. 290 U.S. at 398, 54 S.Ct. at 226.

Spies v. United States, 1943, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418, is to the same effect. There the Court stated that willfulness, for purposes of both the misdemeanor in question and the felony of “willfully” attempting to evade taxes includes “some element of evil motive and want of justification in view of all the financial circumstances of the taxpayer”. 317 U.S. at 498, 63 S.Ct. at 368.

Instructions which define an act as willful when done “without ground for believing it is lawful”, or when “marked by careless disregard whether or not one has the right so to act”, have been rejected by this court as improper dilutions of the scienter required by section 7203. United States v. Palermo, 3d Cir., 1958, 259 F.2d 872; accord Haner v. United States, 5th Cir., 1963, 315 F.2d 792; cf. United States v. Litman, 3d Cir., 1957, 246 F.2d 206.

Our affirmative statements of the meaning of “willfulness” in section 7203 or its predecessor clearly exclude any type of carelessness or negligence, however inexcusable. Thus, in the Palermo case we said:

“Willfulness is an essential element of the crime proscribed by [the misdemeanor section] * * *. It requires existence of a specific wrongful intent —an evil motive — at the time the crime charged was committed * * *. Mere laxity, careless disregard of the duty imposed by law, or even gross negligence, unattended by ‘evil motive’ are not probative of ‘willfulness’ ”. 259 F.2d at 882.

Similar language appears in United States v. Litman, supra at 209. The “willful” requirement means an act both “intentional and reprehensible”, United States v. Goldman, 3d Cir., 1965, 352 F.2d 263, 265 n. 3, “attended by knowledge of the legal obligation and purpose to prevent the government from getting that which it lawfully requires”. United States v. Cirillo, 3d Cir., 1957, 251 F.2d 638, 639.

Two cases in the Ninth Circuit, Abdul v. United States, 1958, 254 F.2d 292, and Martin v. United States, 1963, 317 F.2d 753, and the dissent in the instant case seek to justify a less restrictive definition of “willfulness” by arguing that the standard of willfulness is different for the misdemeanor, defined by section 7203, than for the felony— attempt to evade tax — defined by section 7201. Justification for this claimed distinction is thought to be found in the language of the Spies case in which the Court distinguished the misdemeanor from the felony, saying:

“The difference between the two offenses, it seems to us, is found in the affirmative action implied from the term ‘attempt,’ as used in the felony subsection.” 317 U.S. at 498, 63 S. Ct. at 368.

“ * * * [For the felony] Congress intended some willful commission in addition to the willful omissions that make up the list of misdemeanors.” 317 U.S. at 499, 63 S.Ct. at 368.

It is true that, by this language, Spies makes a distinction between the criminality of the misdemeanor and the criminality of the felony. United States v. Long, 3d Cir., 1958, 257 F.2d 340. However, this distinction is found in the additional misconduct which is essential to the violation of the felony statute, examples of which are given in Spies at page 499 of 317 U.S., at page 368 of 63 S.Ct., and not in the quality of willfulness which characterizes the wrongdoing. Thus, in Sansone v. United States, 1965, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882, the defendant, indicted and tried for the section 7201 felony, claimed that he was entitled to a charge on the misdemeanor under the lesser included offense doctrine. After finding that the only issue at trial was whether the defendant’s acts charged as constituting attempted tax evasion were “willful”, the Court held that the defendant was not entitled to a lesser offense charge because, as applied to the given fact situation, “willful” in the two sections “ ‘covered precisely the same ground’ ”. 380 U.S. at 352, 85 S.Ct. at 1010.

Actually, one of the conclusions of the Court in Spies was that to be convicted of failure to pay a tax, the misdemeanor, the failure must be characterized by “some element of evil motive” because to convict in absence of such scienter would violate “our traditional aversion to imprisonment for debt”. 317 U.S. at 498, 63 S.Ct. at 367.

It follows that it was error in this case to instruct the jury that it might find “willfulness” within the meaning of section 7203 in conduct characterized by merely careless disregard of legal obligation or in acts that were merely capricious or not justified by any reasonable belief in their legality.

We have not overlooked the fact that the defendant did not except to the erroneous portions of the charge. However, we think the language of the charge constituted “plain error” of a prejudicial sort, which a reviewing court may and should correct as authorized by the saving clause of Rule 52(b), Federal Rules of Criminal Procedure, Haner v. United States, supra; contrast United States v. Litman, supra.

Since this case must be retried, we add an admonition against repetition of another error. Apparently, the court’s purpose at one point in the charge was to state the familiar principle that “[a] series of defaults, indicating a pattern of behavior, knowingly and intentionally made, may suggest the existence of the specific ‘evil motive.’ ” See United States v. Palermo, supra, 259 F.2d at 882. However, the court charged as follows:

“In determining the state of mind or intent with which the accused did the acts charged in the particular counts and where proof of an earlier act or [sic] like nature is established, it is clear and conclusive, you members of this jury may draw, therefore, the inference that in doing the acts charged in the particular count under deliberation the accused acted wilfully and with specific intent and not because of inadvertence or any other innocent reason.”

As given, this instruction is at least confusing. And, to the extent that the clause “it is clear and conclusive” makes prior failure to file conclusive evidence of bad motive on a subsequent occasion, the instruction is seriously erroneous. It should not be repeated.

The judgment will be reversed and the cause remanded for a new trial.