221 F.2d 786 (9th Cir. 1955), 14266, Bloch v. United States

Docket Nº:14266.
Citation:221 F.2d 786
Party Name:Bernard BLOCH, Appellant, v. UNITED STATES of America, Appellee.
Case Date:April 11, 1955
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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221 F.2d 786 (9th Cir. 1955)

Bernard BLOCH, Appellant,


UNITED STATES of America, Appellee.

No. 14266.

United States Court of Appeals, Ninth Circuit.

April 11, 1955

Rehearing Denied June 14, 1955. See 223 F.2d 297.

Wade Church, Phoenix, Ariz., for appellant.

Jack D. H. Hays, U.S. Atty., Robert S. Murlless, Asst. U.S. Atty., Phoenix, Ariz., for appellee.

Before BONE and POPE, Circuit Judges, and MURRAY, District Judge.

MURRAY, District Judge.

Appellant was charged in the District of Arizona in two counts with attempting to evade or defeat the payment of income taxes owing by him for the years 1947 and 1948, in violation of Section

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145(b), Title 26, U.S.C.A. 1 After trial by a jury in the District Court, appellant was acquitted on Count one (1947 taxes) and convicted on Count two (1948 taxes). He appeals, assigning three specifications of error.

The first specification of error relied on is that the District Court erred in failing to give appellant's requested Instruction No. 2. 2 There is no merit in this specification of error as such. In the first place, the instruction as requested is at least misleading and confusing, if not clearly erroneous. Counsel for appellant attempted to take the instruction from the case of Gaunt v. United States, 1 Cir., 184 F.2d 284, 291, but omitted a portion of the last sentence of the instruction on wilfulness approved in the Gaunt case, supra. In the Gaunt case the last sentence of the instruction read:

"He certainly is not wilful if he acts without the advice of a lawyer or accountant, for there is no requirement that a taxpayer, no matter how large his income, should engage a lawyer or an accountant."

Even that language, it seems to us, may be misleading because it might be subject to the interpretation that acting without advice of a lawyer or accountant shows a complete absence of wilfulness, and such is not the law. What was meant to be said is that merely acting without advice of a lawyer or accountant does not itself prove wilfulness. But by omitting the explanation 'for there is no requirement that the taxpayer engage a lawyer or accountant', which was contained in the Gaunt case, from the requested instruction in this case, the instruction became completely unacceptable, and it was not error for the trial Court to refuse it.

Furthermore, the trial Court is not obliged to give an instruction in the exact language in which it is proposed, but may choose his own language. Wright v. U.S., 8 Cir., 175 F.2d 384; Nye & Nissen v. U.S., 9 Cir., 168 F.2d 846, affirmed 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919; Thayer v. U.S., 10 Cir., 168 F.2d 247; Petro v. U.S., 6 Cir., 210 F.2d 49. As the Court said in Wright v. U.S., supra:

'Fortunately, a trial judge, in formulating his charge, is entitled to use his own language and is not required to let counsel for either party put words into his mouth. If the charge is accurate and gives to the jury all of the law which it needs in order to reach a verdict, that is enough.' (175 F.2d 388.)

However, in examining the Court's charge to determine whether the jury was otherwise properly instructed as to the meaning of the word 'willfully' as used in Section 145(b), Title 26, U.S.C.A.,

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it becomes apparent that the charge was incorrect in several aspects, which will be hereinafter discussed.

The appellant made no objection to the charge as given by the Court, but only objected to the failure of the Court to give his requested instruction, nor did appellant raise in this Court any question regarding the correctness of the trial Court's charge on wilfulness. Whether the objection to the failure to give the offered instruction on wilfulness in the trial Court, and the specification of that failure as error in this court would be a sufficient saving of the point to permit this Court to consider other non-specified errors in the charge on wilfulness within the rule that Appellate Courts will not consider instructions to which no objections were taken at the time of trial need not be decided because of the provisions of Rule 52(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and cases decided thereunder. Rule 52(b) provides:

'Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.'

The Supreme Court of the United States in U.S. v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 392, 80 L.Ed. 555, concerning this matter, said:

'In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.'

See also Morris v. United States, 9 Cir., 156 F.2d 525, 169 A.L.R. 305; U.S. v. Balodimas, 7 Cir., 177 F.2d 485; U.S. v. Perplies, 7 Cir., 165 F.2d 874; Fischer v. U.S., 10 Cir., 212 F.2d 441, 444.

The error of the trial court is, as we hereinafter point out, fundamental and goes to the very essence of the case so we must under the rule take notice of it.

Proceeding then to a consideration of the Court's charge we find the trial Court instructed the jury in part as follows:

'The attempt must be wilful, that is, intentionally done with the intent that the government is to be defrauded of the income tax due from the defendant.'

That is a correct statement of the law, because the intent involved in the offense with which appellant here was charged is a specific intent involving the bad purpose and evil motive to evade or defeat the payment of his income tax. Wardlaw v. U.S., 5 Cir., 203 F.2d 884. However, the trial Court went on in his instruction, and in the very next sentence said:

'The presumption is that a person intends the natural consequences of his acts, and the natural inference would be if a person consciously, knowingly and intentionally did not set up his income, and thereby the government was cheated...

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