United States v. Berentje C. M. Pohlman , 522 F.2d 974 ( 1975 )

GIBSON, Chief Judge.

Defendant Berentje C. M. Pohlman was convicted by a jury of willfully failing to file her tax returns for 1968, 1969 and 1970 in violation of 26 U.S.C. § 7203 (1970). On appeal a panel of this court found that the jury had not been properly instructed on the issue of willfulness and reversed her conviction. Thereafter a majority of the judges in active service on this court voted to rehear the case en banc, which action vacated the panel opinion. After full consideration by the court en banc, we find none of the issues raised by appellant merit reversal and affirm the conviction.

Pohlman, a practicing attorney in Enderlin, North Dakota, according to her testimony at trial had prepared thousands of tax returns and was fully aware of the Internal Revenue Code provisions requiring the filing of tax returns. She, however, did not file her personal returns for the years in question until October, 1972, after a visit by an IRS field auditor. The reasons given at trial were that she was involved in her positions as City Attorney and Mayor of Enderlin in 1969 and 1970 and had some personal problems so that she did not realize until after the filing deadlines that she had income sufficient to require filing. The returns introduced into evidence at trial indicated that in 1968 she had a gross income from her profession of $22,785 and a taxable income of $7,988; for 1969 she had a gross income of $18,452 and taxable income of $3,269; and 1970 a gross income of $28,896 and $8,278 taxable income.

Error is asserted in the trial court’s refusal to give Pohlman’s requested instruction on willfulness.¹ The following instruction, substantially identical to that in 2 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 52.31 (1970), was given over Pohlman’s specific objection:

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 defendant knew she should have filed, in order to prevent the Government from knowing the extent of, and knowing the facts material to, the determination of her tax liability.

Defendant’s conduct is not “willful” if she acted through negligence, inadvertence, or mistake, or due to her good faith misunderstanding of the requirements of the law. It should be pointed out, however, that disagreement with the law is not a defense. It is the duty of all citizens to obey the law whether they agree with it or not.

The panel decision, in agreeing with Pohlman that the trial court’s charge did not adequately describe the concept of willfulness, would require the Government to prove not only that the act was done deliberately, intentionally and without justifiable excuse, but additionally that the defendant had a state of mind which manifested a bad purpose or evil motive to violate the law. It thus would allow a defendant to argue that his motive in refusing to file was good, i. e., it was his manner of protest against wasteful governmental expenditures, expenditures that go for inappropriate or evil purposes, or the higher taxation of single taxpayers as was an issue in the present case. We do not think this additional burden is required.

It is undisputed that the words “evil motive or bad purpose” have been used to convey the concept of willfulness embodied in § 7203. United States v. Bishop, 412 U.S. 346, 360, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973); United States v. Murdock, 290 U.S. 389, 398, 54 S.Ct. 223, 78 L.Ed. 381 (1933); United States v. McCorkle, 511 F.2d 482, 485 (7th Cir. 1975) (en banc), petition for cert. filed, 17 Cr.L.Rep. 4082 (U.S. May 1, 1975) (No. 74—1371). The Supreme Court in Murdock v. United States, supra, 290 U.S. at 397-98, 54 S.Ct. at 226, did state that:

The respondent’s refusal to answer was intentional and without legal justification, but the jury might nevertheless find that it was not prompted by bad faith or evil intent, which the statute makes an element of the offense.

Additionally, in Bishop v. United States, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973), the Court stated that it would “continue to require, in both tax felonies and tax misdemeanors that must be done ‘wilfully,’ the bad purpose or evil motive described in Murdock, supra.”

We do not read this, however, to indicate that the Court was engrafting onto the statute a requirement that the Government prove anything beyond establishing that defendant’s action was deliberate, intentional and without justifiable excuse, or otherwise stated, a voluntary, intentional violation of a known legal duty.² In the same discussion in Bishop, the latest Supreme Court case in this area, the Court stated:

The Court, in fact, has recognized that the word “willfully” in these statutes generally connotes a voluntary, intentional violation of a known legal duty. It has formulated the requirement of willfulness as “bad faith or evil intent,” Murdock, 290 U.S., at 398 [54 S.Ct. at 226], or “evil motive and want of justification in view of all the financial circumstances of the taxpayer,” Spies [Spies v. United States ], 317 U.S. [492] at 498 [63 S.Ct. 364, 87 L.Ed. 418], or knowledge that the taxpayer “should have reported more income than he did.” Sansone [Sansone v. United States], 380 U.S. [343] at 353 [85 S.Ct. 1004, at 1011, 13 L.Ed.2d 882].

Bishop v. United States, supra at 360, 93 S.Ct. at 2017.

Thus, rather than indicating that “bad purpose or evil motive” is a requirement to be proved in addition to the voluntary, intentional violation of a known legal duty, the Court’s statement indicates that “bad purpose or evil motive” is merely another way to convey the concept of willfulness. See United States v. McCorkle, 511 F.2d 482 (7th Cir. 1975) (en banc).³

Cases decided both before and after Bishop have been in agreement that “willfully” as used in § 7203 requires only that the Government prove a voluntary, intentional violation of a known legal duty. United States v. McCorkle, 511 F.2d 482 (7th Cir. 1975) (en banc); United States v. Bengimina, 499 F.2d 117 (8th Cir. 1974); United States v. Hawk, 497 F.2d 365 (9th Cir.), cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65 (1974); United States v. Klee, 494 F.2d 394 (9th Cir.), cert. denied, 419 U.S. 835, 95 S.Ct. 62, 42 L.Ed.2d 61 (1974); United States v. Matosky, 421 F.2d 410 (7th Cir.), cert. denied, 398 U.S. 904, 90 S.Ct. 1691, 26 L.Ed.2d 62 (1970); cf. Boardman v. United States, 419 F.2d 110 (1st Cir. 1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970).

The trial court’s instruction on willfulness in this case fairly and adequately charged the jury as to what the Government had to establish to support a conviction. There was clearly sufficient evidence for the jury to find that Pohlman’s failure to file was a voluntary, intentional violation of a known legal duty.

In addition to the alleged error in instructions, the appellant contends that the court erred in the admission into evidence of conversations with Internal Revenue agents, receiving into evidence photocopies of her 1968, 1969 and 1970 returns, and use of hearsay evidence in the cross-examination of appellant.

Agent Engelmann testified to conversations occurring in Pohlman’s office on or about October 3, 1972, without informing her of her constitutional right to remain silent. In that conversation she admitted to not having filed the returns. Noncustodial investigation of this type does not require a Miranda warning. United States v. MacLeod, 436 F.2d 947, 950 (8th Cir.), cert. denied, 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647 (1971); United States v. Brevik, 422 F.2d 449, 450 (8th Cir.), cert. denied, 398 U.S. 943, 90 S.Ct. 1861, 26 L.Ed.2d 279 (1970); Muse v. United States, 405 F.2d 40, 41 (8th Cir. 1968), cert. denied, 393 U.S. 1117, 89 S.Ct. 992, 22 L.Ed.2d 122 (1969); Cohen v. United States, 405 F.2d 34, 35—40 (8th Cir. 1968), cert denied, 394 U.S. 943, 89 S.Ct. 1274, 22 L.Ed.2d 478 (1969).

The appellant’s objection to admission of photocopies of her 1968, 1969 and 1970 returns is not well taken. Mr. Engelmann, the IRS Field Audit Agent, testified that these photocopies were the returns which Pohlman signed in his presence October 11, 1972. Although Pohlman had contended that they were merely photocopies of returns she had previously filed, the record establishes that they were adequately identified as being the original returns filed with Engelmann October 11, 1972.

The questioning of Pohlman concerning her prior statements to Internal Revenue agents as to her failure to file returns was not error. The questioning sought testimony as to Pohlman’s prior inconsistent statements. As Pohlman was a party-defendant, her hearsay statements could properly be used against her as admissions. United States v. Pistante, 453 F.2d 412 (9th Cir. 1971). See generally McCormick on Evidence 1 239 (1954).

The judgment of conviction is affirmed.

1 . Defendant’s requested instruction read:

2. Willfulness is an essential element of the crime of which defendant is charged in the indictment. An act is done “willfully” if done purposely with the specific intent to disregard the law, or to do that which the law forbids, and further means an act done with a bad purpose, the existence of specific wrongful intent, and evil motive at the time the crime charged was committed; mere laxity, careless disregard of duty imposed by law, or even gross negligence, unattended by “evil motive,” is not probative of willfulness.

2 . The claim that the trial court’s instruction does not adequately define willfulness is premised on the use of “without justifiable excuse” when the Supreme Court indicated in Murdock that it was not enough for the Government to prove that an action was “without legal justification.” We believe that these two concepts are different and that “without justifiable excuse” includes the concept intended by the Court’s “bad purpose” or “evil motive” language. An act might well be without legal justification (i. e., the refusal to disclose sources of income in reliance on a nonexistent Fifth Amendment privilege, as in Murdock) but could be done with justifiable excuse (i. e., a good-faith reliance on the Fifth Amendment privilege, as in Murdock). We think the Supreme Court was concerned in Murdock that the Government have to prove that an act was done without justifiable excuse, that is, with a bad purpose or evil motive, and could not rely upon showing the lack of a legal justification to establish willfulness.

However, it must be recognized that clarity and unambiguity are the hallmarks of a good jury instruction. In light of the similarity in language between the two concepts discussed above we think it would be preferable that future instructions on willfulness not embody the language of “without justifiable excuse.” We would suggest that the first paragraph of the instruction given by the trial court herein be modified to provide that:

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 a voluntary, intentional violation of a known legal duty, or otherwise stated, with the wrongful purpose of deliberately intending not to file a return which defendant knew she should have filed, in order to prevent the Government from knowing the extent of, and knowing the facts material to, the determination of her tax liability.

3 . The court stated therein:

Contrary to the defendant’s contentions, we believe that the Court employed the terms “bad purpose” and “evil motive” as a convenient method of referring to the longer definition of “willfully” as a “voluntary, intentional violation of a known legal duty,” and not as engrafting an intent to defraud requirement or other similar evil purpose on that definition.

United States v. McCorkle, 511 F.2d 482, 485 (7th Cir. 1975) (en banc); accord, United States v. Hawk, 497 F.2d 365, 368 (9th Cir.), cert denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65 (1974).