Abdul v. United States, 15523.

• Decision Date: 24 April 1958
• Docket Number: No. 15523.,15523.
• Citation: 254 F.2d 292
• Parties: Daniel L. ABDUL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

254 F.2d 292 (1958)

Daniel L. ABDUL, Appellant, v. UNITED STATES of America, Appellee.

No. 15523.

United States Court of Appeals Ninth Circuit.

March 31, 1958.

Rehearing Denied April 24, 1958.

Howard K. Hoddick, Honolulu, Hawaii, for appellant.

Louis B. Blissard, U. S. Atty., Edgar D. Crumpacker, Sanford J. Langa, Asst. U. S. Attys., Honolulu, Hawaii, for appellee.

Before STEPHENS, Chief Judge, and ORR and FEE, Circuit Judges.

ORR, Circuit Judge.

Appellant was indicted on twelve counts, six charging wilful failure to truthfully account for and pay over withholding taxes in violation of 1939 Internal Revenue Code § 2707(c)¹ and 1954 Internal Revenue Code § 7202,² felonies, and six counts charging wilful failure to file tax returns at the times required by law in violation of 1939 Internal Revenue Code § 2707(b)³ and 1954 Internal Revenue Code § 7203,⁴ misdemeanors. He was acquitted on the felony charges and convicted on the misdemeanors.

Appellant's defense to the misdemeanor counts was that although he knew he was required to file returns, he believed that he could not file them unless he also paid the taxes at the same time, and that since he did not have the money, he did not file the returns at the required times.

Appellant assigns several alleged errors. We think it sufficient to notice but two:

1. Error in instructions to the jury on the meaning of the term "wilfully" as used in the misdemeanor counts of the indictment.

2. Admission over objection of prejudicial evidence elicited by the government.

The meaning of the word "wilfully" as used in the tax statutes has been considered in a number of cases and seems to have come to rest in this Circuit, as well as others, as meaning with respect to felonies, "with a bad purpose or evil motive." See, e. g., Bloch v. United States, 9 Cir., 1955, 221 F.2d 786; Forster v. United States, 9 Cir., 1956, 237 F.2d 617. Cf. Imholte v. United States, 8 Cir., 1955, 226 F.2d 585; Wardlaw v. United States, 5 Cir., 1953, 203 F.2d 884; Haigler v. United States, 10 Cir., 1949, 172 F.2d 986. But the meaning of the word "wilfully" as used in the statute defining a misdemeanor has not as yet reached such repose. The trial court in the instant case thought the word "wilful" as used in defining a misdemeanor required a different interpretation, as evidenced by the instructions given after the jury had returned a second time asking clarification of the instructions.

In the first instructions given, the trial court said:

"The word `wilful\' as used in the misdemeanor counts * * *, that is, failing to make a tax return, 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 the right so to act. With regard to the other felony counts * * * I supplement my instructions on the definition of wilful in the following language: An act is done wilfully if done voluntarily and purposely and with a specific intent to do that which the law forbids. Wilfulness implies a bad faith and an evil motive."

The jury returned later and the foreman addressed the court as follows:

"Your Honor, certain members of the jury are confused. They would like the words `intent\' and `motive\' discussed."

The court thereupon re-instructed the jury as follows:

"The types of wilfulness involved in these two different charges are separate and distinct and I ask you to pay particular attention to me when I describe to you just what is meant in each instance. The word `wilful\' as used in the misdemeanor counts * * *, that is, failing to make a tax return, 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 the right so to act. The word `wilful\' as used in the felony counts * * * that is, in failing to truthfully account for and pay over the taxes, means with knowledge of one\'s obligation to pay the taxes due and with intent to defraud the Government of that tax by any affirmative conduct. Further, with respect to these counts, wilfulness implies bad faith and an evil motive."

This instruction was read to the jury twice at that time, and when the jury returned a second time, was read to them twice more.

The definition of "wilfully" was pinpointed in the instruction to the jury to such an extent that it cannot be said that other instructions would clarify it in their minds, or that the definition given was not a substantial factor in their verdict. Bloch v. United States, 9 Cir., 1955, 223 F.2d 297.

The definition of the word "wilfully" as used in the misdemeanor statute was correctly defined in the instructions given by the court. That a difference exists in the meaning of "wilfully" when used in the statute defining a felony and that defining a misdemeanor is recognized. It is "a word of many meanings, its constructions often being influenced by its context. United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381. It may well mean something more as applied to nonpayment of a tax than when applied to failure to make a return. Mere voluntary and purposeful, as distinguished from accidental, omission to make a timely return might meet the test of willfulness." Spies v. United States, 1943, 317 U.S. 492, 497-498, 63 S.Ct. 364, 367, 87 L.Ed. 418.

In the definition given, the trial court began with the statement that "wilful" as used in the misdemeanor counts means with a bad purpose, which standing alone would meet appellant's criticism, but it is argued that the addition of the words "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 so to act," so watered down the meaning of the term "with a bad purpose" as to render the instruction erroneous. We conclude that the word "wilful" as used in the misdemeanor statute means something less when applied to a failure to make a return than as applied to a felony non-payment of a tax. This being true, then the words used in the instruction defining "wilful" as relates to a misdemeanor adequately and clearly point up that difference.

Instructions similar to the one under consideration in the instant case have been upheld in Ripperger v. United States, 4 Cir., 1957, 248 F.2d 944, certiorari denied 1958, 355 U.S. 940, 78 S.Ct. 428, 2 L.Ed.2d 421, and in Yarborough v. United States, 4 Cir., 1956, 230 F.2d 56. In the case of United States v. Litman, 3 Cir., 1957, 246 F.2d 206, the Third Circuit had under consideration an instruction in which language similar to that used in the instruction under consideration in the instant case appeared. The Third Circuit without...