United States v. Haseltine

• Decision Date: 19 January 1970
• Docket Number: No. 23779.,23779.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernest E. HASELTINE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

419 F.2d 579 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Ernest E. HASELTINE, Jr., Defendant-Appellant.

No. 23779.

United States Court of Appeals Ninth Circuit.

December 18, 1969.

Rehearing Denied January 19, 1970.

Franklyn K. Brann (argued), San Francisco, Cal., for appellant.

F. Steele Langford (argued), Asst. U. S. Atty., Jerrold M. Ladar, Asst. U. S. Atty., Cecil F. Poole, U. S. Atty., San Francisco, Cal., for appellee.

Before HAMLIN, MERRILL and KILKENNY, Circuit Judges.

MERRILL, Circuit Judge.

Appellant, an insurance broker, was charged in four counts with having wilfully failed to file income tax returns for the years 1962 through 1965, in violation of 26 U.S.C. § 7203.¹ Following jury trial he was adjudged guilty on two of the four counts.

1. The principal issue on trial was whether or not the failure to file was wilful in the sense in which that term is used in § 7203. There is no question but that it was knowing. Appellant contends, however, that his failure to file was the product of psychological and emotional pressures rather than of a purpose to avoid payment of the tax. He assigns as error the rejection by the District Court of an offer of proof of his mental state through testimony of a psychiatrist.²

It was not error for the court to reject this offer. Insanity was not interposed as a defense and it is not contended that appellant's compulsion so affected his volitional control as to meet insanity standards. We reject appellant's argument that the doctrine of diminished responsibility should nevertheless relieve him of the consequences of his conduct.³ Being sane, he had the capacity to act wilfully. The question is whether he did in fact so act.

The nature of the wilfulness required by § 7203 was last discussed by this court in United States v. Fahey, 411 F.2d 1213 (9th Cir. 1969), cert. denied, 396 U.S. 957, 90 S.Ct. 430, 24 L.Ed.2d 422 (1969). It was there held that the wilfulness required for this misdemeanor did not entail a purpose to evade tax or to defraud, such as is required for the felony offense (26 U.S.C. § 7201). Id. at 1214. For this misdemeanor, then, wilfulness entails no purpose or motive other than to evade the law's requirements.

Further it is clear from Fahey that the fact that failure to file was associated with emotional and psychological pressures does not excuse a clear, sane and conscious purpose not to file.

2. We find no error (let alone plain error) in the court's instructions or in its rejection of instructions offered by appellant.

3. Appellant assigns as error the sentence imposed by the court.

The court first sentenced appellant to serve 48-hour periods in a jail-type institution once each weekend for a term of six months (26 weeks). Appellant was directed to surrender himself each week according to the instructions of the Probation Officer and the U.S. Marshal for the Northern District of California.

The court in sentencing made it clear that it was rejecting the alternative of probation, apparently determined that the onus of formal sentence should be suffered. Nevertheless the court expressed its desire for supervision by the Probation Officer in connection with the sentence imposed, and expressly reserved the right to modify the sentence depending upon the manner in which it was carried out. Clearly, this was to be a court-controlled sentence.

Later that same day the court, proceeding under Rule 35, F.R.Cr.P., revoked the sentence as illegally imposed and sentenced appellant to the custody of the Attorney General for three months on each count, the sentences to run consecutively — a total of six months imprisonment. It is this second sentence that appellant challenges.

Appellant first contends that Rule 35 only permits correction of an illegal sentence and that the first sentence was perfectly legal.

In our judgment the first sentence was illegal.

The interspersing of jail time with time at large under supervision of a Probation Officer and subject to judicial control and modification would indeed appear to be an enlightened effort toward correction. However, it is available to the courts only where sentence is suspended and restraints are imposed as conditions of probation. Where sentence is actually imposed, control over the prisoner passes to the Attorney General and determination of the manner in which sentence shall be served is for agencies of the Department of Justice. What the court did here in effect was to assume for itself...