MacLeod, In re, 57030

• Decision Date: 10 April 1972
• Docket Number: No. 57030,57030
• Citation: 479 S.W.2d 443
• Parties: In re Douglas C. MacLEOD.
• Court: Missouri Supreme Court

Page 443

479 S.W.2d 443

In re Douglas C. MacLEOD.

No. 57030.

Supreme Court of Missouri, En Banc.

April 10, 1972.

Rehearing Denied May 8, 1972.

Irl B. Baris, Leonard J. Frankel, Newmark & Baris, St. Louis, for respondent.

John E. Burruss, Jr., Jefferson City, for Informants.

HENLEY, Judge.

This is an original proceeding for disciplinary action filed in June, 1971, by the Advisory Committee, as informants, against Douglas C. MacLeod, a member of the bar of this court, as respondent.

Informants allege, in substance: (1) that respondent is, and has been since August, 1947, licensed to practice law in this state; (2) that in October, 1969, respondent was charged by a three-count indictment filed in the United States District Court for the Eastern District of Missouri with violation of the Internal Revenue Code of the United States ¹ in that he failed to make an income tax return for each of the calendar years of 1963, 1964 and 1965 ²; (3) that respondent was tried by a jury and found guilty on all three counts; (4) that on January 5, 1970, respondent was sentenced by the trial judge to imprisonment for one year and fined $10,000.00 for the offense charged in Count I, but as to Counts II and III imposition of sentence was suspended and he was placed on probation for a period of five years, the probation to commence at the expiration of imprisonment imposed under Count I; (5) that the United States Court of Appeals for the Eighth Circuit affirmed the judgment of conviction, United States v. MacLeod, 436 F.2d 947, and thereater, in April, 1971, his petition for writ of certiorari was denied by the United States Supreme Court, 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647; (6) that pursuant to order of the court, respondent, in May, 1971, surrendered to serve and is now serving his sentence at the Medical Center for Federal Prisoners in Springfield, Missouri; (7) that the crime for which respondent was convicted involves moral turpitude and he should, therefore, be removed from the roll of attorneys licensed to practice law in this state and be disbarred as provided by § 484.240, RSMo 1969, V.A.M.S., and under the inherent power of this court to admit and remove persons from the practice of law in this state. A copy of the record of conviction has been filed with the court.

Respondent filed his response to the allegations of informants by which he admits the allegations of fact, but denies informants' conclusion that the offense of failing to file federal income tax returns involves moral turpitude. Respondent further alleges that failure to file income tax returns does not constitute '* * * an offense involving moral turpitude as a matter of law in this particular case.' In support of this position he further alleges (1) that at his trial in district court he requested and the court refused to give the following instruction:

'The Court instructs the jury that you may not find the defendant guilty as to any count unless you find that the defendant acted as a result of his own moral turpitude, that is, as a result of baseness, vileness, or depravity in the private and social duties which according to the accepted standards of the time a man owes to his fellow man or to society in general.'

(2) that the position of the government in the appeal to the Court of Appeals, as evidenced by a statement contained in its brief, was that respondent was not being tried for a crime involving moral turpitude, the statement being as follows:

'Instruction number 5 misstates the law and is quite misleading. Moral turpitude, or baseness, vileness or depravity are not required to be proven in this case. Wilfulness is the maens rea requirement, and instruction number 5 is clearly incorrect and was properly refused.'

Respondent further alleges that to deprive him of the opportunity to practice law will constitute a deprivation of his property without due process of law, contrary to the provisions of Article I, § 10, Constitution of Missouri, V.A.M.S., and the Fifth and Fourteenth Amendments to the Constitution of the United States.

After hearing oral arguments of counsel the case was taken as submitted on the pleadings and briefs of the parties. No contention is made by respondent that he was denied procedural due process in connection with any of the proceedings prior to submission.

As indicated the main question presented is whether or not willfully and knowingly failing to make a federal income tax return is an offense involving moral turpitude. Informants contend that it is, citing cases ³ in which this court has so held. Respondent, recognizing these decisions, contends to the contrary and suggests that the court reexamine its position in the light of decisions of other jurisdictions. ⁴

Respondent also contends, more specifically, that the United States Court of Appeals, in affirming his conviction, ⁵ declared that on the facts of this case moral turpitude is not involved; that the law of this case was thus established and this court is bound thereby and may not discipline him.

We do not agree that the decision in United States v. MacLeod, supra, ruled the question and held as a...