U.S. v. Wellendorf, 77-5459

• Decision Date: 13 June 1978
• Docket Number: No. 77-5459,77-5459
• Parties: 78-2 USTC P 9510 UNITED STATES of America, Plaintiff-Appellee, v. Paul Alvin WELLENDORF, Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1289

574 F.2d 1289

78-2 USTC P 9510

UNITED STATES of America, Plaintiff-Appellee, v. Paul Alvin WELLENDORF, Defendant-Appellant.

No. 77-5459

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

June 13, 1978.

Rehearing Denied July 27, 1978.

Frank D. McCown, Fort Worth, Tex., Edmund N. Anderson, Bedford, Tex., for defendant-appellant.

Kenneth J. Mighell, U. S. Atty., Fort Worth, Tex., Judith A. Shepherd, Gerhard E. Kleinschmidt, Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, AINSWORTH and HILL, Circuit Judges.

AINSWORTH, Circuit Judge:

Defendant Paul Wellendorf was convicted, after a jury trial, on two counts of an information which charged violations of 26 U.S.C. § 7205 in connection with the filing on September 21 of Internal Revenue Service Form W-4 and the later filing of I.R.S. Form W-4E with his employer Bell Helicopter Company. He was sentenced to concurrent six-month terms of imprisonment with the remainder of the one-year sentences being suspended. On this appeal Wellendorf raises four contentions: 1) the district court improperly excluded evidence relevant to Wellendorf's defense of good faith; 2) the district court did not instruct the jury that ignorance of the law may be considered on the question of specific intent; 3) the government improperly introduced proof of an extraneous offense; and 4) the evidence was insufficient as a matter of law to sustain the conviction. Having carefully considered these contentions we conclude that the conviction should be affirmed.

Defendant Wellendorf filed on September 21, 1976 a new Internal Revenue Service Form W-4 with his employer Bell Helicopter listing "99" on the line for total dependents and allowances. Wellendorf later filed a W-4E form purporting to amend the W-4 form filed in September 1976. ¹ By filing the W-4E form Wellendorf certified that he incurred no tax liability for 1975, anticipated none for 1976 and therefore was entitled to have the withholding of taxes from his wages stopped. Thereafter, on December 16, 1976 Wellendorf filed a new W-4 form claiming one exemption.

Wellendorf's first contention is that his testimony concerning the advice he received at a tax protestors' meeting was improperly excluded as hearsay thereby weakening his defense of good faith. The trial judge erred in excluding this testimony since it was offered for proof of Wellendorf's intent and not for the truth of the statement. See Federal Rules of Evidence, Rules 801(c), 803(3). However, Wellendorf was permitted to testify that he was advised that withholding of taxes could be lawfully stopped and that he had completed the I.R.S. forms according to that advice. The substance of Wellendorf's defense of good faith was therefore presented to the jury even though he was not permitted to testify as to what he had been advised at a tax protestors' meeting. Since Wellendorf was able to place his defense before the jury, the fact that the defense was not elicited in the precise manner originally contemplated by the defendant is not a proper basis for reversal. See United States v. Onori, 5 Cir., 1976, 535 F.2d 938, 945-46.

Defendant's second contention that the trial judge refused to instruct the jury that ignorance of the law may be considered on the question of specific intent likewise does not constitute reversible error. United States v. Schilleci, 5 Cir., 1977, 545 F.2d 519, on which the defendant relies, is distinguishable from the instant case. In Schilleci the trial judge specifically instructed the jury on the presumption that everyone knows the law though he omitted an instruction on the effect of a defendant's actual ignorance. Since no instruction on the presumption that everyone knows the law was given in this case, the confusion presented in Schilleci does not exist here. The validity of these instructions must be tested by examining the instructions in their entirety. See United States v. Kalmanson, 5 Cir., 1973, 481 F.2d 666. The jury charge given in this case was adequate to allow the jury to find absence of specific intent if they concluded that Wellendorf was ignorant of the law, the court having instructed the jury that "wilfully" means "a bad purpose either to disobey or disregard the law" and "a voluntary, intentional violation of known legal duty."

Defendant Wellendorf's third contention is that the trial court improperly admitted the testimony of Internal Revenue Service Agent Popham to the effect that the Internal Revenue Service had no record of Wellendorf having filed a 1976 Federal Income Tax Return. Wellendorf argues that the court's action was improper because the testimony was hearsay and because it...