United States v. Hartman

• Decision Date: 16 April 1969
• Docket Number: No. 17463.,17463.
• Parties: UNITED STATES of America v. Francis J. HARTMAN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

409 F.2d 198 (1969)

UNITED STATES of America v. Francis J. HARTMAN, Appellant.

No. 17463.

United States Court of Appeals Third Circuit.

Argued March 25, 1969.

Decided April 16, 1969.

Samuel P. Orlando, Orlando & Cummins, Haddonfield, N. J. (Hartman & Schlesinger, Jan M. Schlesinger, Mount Holly, N. J., on the brief), for appellant.

Donald S. Targan, Asst. U. S. Atty., Newark, N. J. (David M. Satz, Jr., U. S. Atty., Newark, N. J., on the brief), for appellee.

Before SEITZ, ALDISERT and STAHL, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

Again we are called upon to review the propriety of the "wilfulness" charge in a prosecution under Section 7203 of Title 26, U.S.Code that anyone "who willfully sic fails to * * * make * * * a required income tax return * * * shall * * * be guilty of a misdemeanor * * *." The Appellant was convicted by a jury and there is ample evidence to support the conviction. It cannot be seriously questioned that the charge as actually given by the court was proper.¹

The extremely narrow question presented is whether reversible trial error resulted from the trial court's failure to charge on the complete text of a requested point-for-charge after indicating to counsel prior to closing argument that it would so instruct the jury.

The requested, but undelivered Point No. 6 contained the statement that the government had to prove that "such failure to file the return was with the intention to evade and defraud the government." Notwithstanding this omission, the court did incorporate defendant's Point No. 9 into its charge, which read: "The evil motive or bad purpose in a prosecution such as this one must consist of proof of the deliberate intention not to file a return so that the government would not know the extent of a taxpayer's liability." The propriety of this latter language was expressly approved by this court in United States v. Cirillo, 251 F.2d 638 (3 Cir. 1958) and United States v. Litman, 246 F.2d 206 (3 Cir. 1957).

We recognize that the failure of the trial court to charge on requested Point 6 was a technical departure from the commandment of Rule 30 that "The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed." Whether this omission requires the granting of a new trial, however, depends upon an examination of the charge in its entirety to determine if there was fundamental prejudice to the defendant.

Viewed in this light, we do not believe that the trial court's failure to employ the specific language of Point 6 was prejudicial.² The charge as delivered, requiring the government to prove that there was an intent not to file so as to conceal the extent of tax liability from the government, was but an alternative expression of what Point 6 defined as the "intention to evade and defraud the government." The two differed only in form, and not substance.

The situation is readily distinguishable from that which confronted the court in Loveless v. United States, 104 U.S.App. D.C. 157, 260 F.2d 487 (1958), where the court precluded argument on the issue of manslaughter and then, reversing itself after some deliberation, charged on the elements of both murder and manslaughter. Under such circumstances, it was properly held that the failure to afford argument on the issue of manslaughter was fundamental error.

In contrast, it cannot be...