United States v. Malinowski, Crim. A. No. 70-717.

• Decision Date: 27 March 1972
• Docket Number: Crim. A. No. 70-717.
• Parties: UNITED STATES of America v. John Paul MALINOWSKI.
• Court: U.S. District Court — Eastern District of Pennsylvania

347 F. Supp. 347

UNITED STATES of America v. John Paul MALINOWSKI.

Crim. A. No. 70-717.

United States District Court, E. D. Pennsylvania.

March 27, 1972.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Malcolm Lazin, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.

John D. Egnal, Philadelphia, Pa., for defendant.

OPINION

HUYETT, District Judge.

On July 10, 1970, defendant, John Paul Malinowski, an instructor in theology at St. Joseph's College, Philadelphia, Pennsylvania, filed with his employer an employee withholding exemption certificate, Form W-4, in which he claimed 15 exemptions. Defendant's previous Form W-4 filed April 2, 1970, claimed only 2 exemptions. At the time defendant claimed 15 exemptions he addressed a letter to the business office of St. Joseph's College stating, in part, that "I have entered into a relationship of economic and social dependency with a group of 15 persons. One of our aims is to exercise greater control over the use of our taxes, especially that large portion that is used for war making."¹ A pretrial stipulation approved by defendant stated that defendant at the time of his submission of Form W-4 dated July 10, 1970, to his employer knew that the exemptions he claimed were not permitted as exemptions under Internal Revenue Code of 1954, § 152, and that as an individual he was required to supply information to his employer under Internal Revenue Code of 1954, § 3402.²

Defendant was a member of the Philadelphia War Tax Resistance League. His claim for 15 exemptions was a form of protest against the use of tax revenues for the support of the war in Vietnam. His defense was founded essentially upon the reasonableness of his beliefs that he was required to alter his Form W-4 to prevent any part of his income from being used for the war in Vietnam.³

Defendant was indicted on December 16, 1970 for violation of Internal Revenue Code of 1954, § 7205.⁴ The indictment charged that defendant, who was required to supply the number of exemptions on the employee withholding exemption certificate, Form W-4, "did wilfully supply false and fraudulent information". He was tried and convicted by a jury in June 1971. The defendant has filed motions for acquittal or a new trial.

(I) Motion for Judgment of Acquittal

Defendant asserts that there should be a judgment of acquittal because there was insufficient evidence to sustain the jury's verdict. He specifically urges that the government has failed to prove the elements of fraudulence, wilfulness and falseness as required by the statute and the indictment.

On motion for judgment of acquittal, the test is whether the evidence is such that reasonable minds could find guilt beyond a reasonable doubt. Mortensen v. United States, 322 U.S. 369, 64 S.Ct. 1037, 88 L.Ed. 1331 (1944); United States v. Allard, 240 F.2d 840 (3 Cir. 1957), cert. denied, sub nom. Fishman v. United States, 353 U.S. 939, 77 S.Ct. 814, 1 L.Ed.2d 761 (1957). In considering the motion the evidence must be viewed in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Feldman, 425 F.2d 688 (3 Cir. 1970).

(A) Fraud

The indictment charges that defendant supplied "false and fraudulent information." (Emphasis added.) It is uncontradicted that the government did not produce evidence to prove that defendant submitted fraudulent information. The issue is whether fraud was an element of the crime charged in the indictment which must be proved.

The applicable statute, Internal Revenue Code of 1954, § 7205, is violated when one wilfully supplies "false or fraudulent information". The general rule is that where a statute provides that an offense may be committed in several ways in the alternative, an indictment should use the conjunctive term "and" to enumerate the means rather than the disjunctive term "or". Smith v. United States, 234 F.2d 385, 389 (5 Cir. 1956); United States v. Wells, 180 F.Supp. 707 (D.Del.1959); cf. United States v. Price, 444 F.2d 248 (10 Cir. 1971). Guilt under such indictment may then be established by proof of any one of the means. United States v. Wells, supra. The rationale for this rule is that an indictment in the disjunctive does not provide sufficient certainty. The Confiscation Cases, 20 Wall. 92, 87 U.S. 92, 104, 22 L.Ed. 320 (1873); United States v. MacKenzie, 170 F.Supp. 797 (D.Me.1959).

The defendant contends that although this is the usual rule, the instant case presents a distinguishable situation since the means involved, falsity and fraudulence, are of significantly different magnitudes. This is a novel argument for which no authority is cited and which does not go to the basis for the rule. The indictment framed in the conjunctive was proper and it was not necessary for the government to prove fraud if it sufficiently demonstrated falseness.

(B) Falseness

Defendant claims that the government failed to produce sufficient evidence to permit the jury to conclude that he had supplied false information on the form. He argues that the information on the W-4 form must be taken in context with the other knowledge acquired or possessed by officials at St. Joseph's and the Internal Revenue Service. He contends that neither Mr. Harrison, the Comptroller at St. Joseph's, nor Internal Revenue Service Agent McLaughlin believed that he was entitled to fifteen exemptions, or even understood it to be actually a claim that he was so entitled.

The employee withholding certificate, Form W-4, is a basic instrument of the tax withholding system. 8A Mertens Law of Fed. Income Taxation § 47A.02 (1971). The certificate is authorized in Internal Revenue Code of 1954, § 3402(f)(2). The purpose of the Form W-4 is to inform the employer of the number of exemptions to which the employee is entitled so that the employer may withhold the amount required by law. Every employer who pays wages is required to withhold from the wages a tax. The amount withheld is determined by the use of a formula or tables which involve the "number of withholding exemptions claimed." Internal Revenue Code of 1954, § 3402(a) and (c). This phrase means the number claimed in a withholding exemption certificate, or a Form W-4. Internal Revenue Code of 1954, § 3401(e). The effectiveness of this system as a tax collection device obviously depends upon the honesty of the withholding exemptions claims submitted by the employees. The employer is not authorized to alter the form or to dishonor the employee's claim. The certificate goes into effect automatically in accordance with certain standards enumerated in § 3402(f)(3).

The purpose of § 7205 is to protect the integrity of the tax withholding system. It forbids the wilful filing of false information by one required to file information under § 3402. The information required from an employee is that information which appears on the Form W-4. Any other knowledge or suspicions of employers or government officials are irrelevant to the purpose because it is only the information on the certificate which effects tax withholding. If the withholding system is to work and the Internal Revenue Code is not to be reduced to a shambles, the certificates must represent the truth and, therefore, the "false information" in the statute refers only to that which the employee submits on the Form W-4.

Since that is the limit of relevant inquiry, it is clear that the proof was sufficient to establish guilt. The stipulation entered into by the defendant admitted that he was not eligible under Internal Revenue standards for fifteen exemptions. The information supplied to the employer, therefore, was obviously false.

(C) Wilfulness

The submission of false information must be wilful to violate § 7205. Defendant asserts that the government did not demonstrate that he acted wilfully. The basis for his motion is his contention that under the statute proof of wilfulness requires a showing of evil motive or bad faith.⁵

The proper standard for wilfulness in this case is that the act is done voluntarily and intentionally, and with the specific intent to do that which the law forbids. In United States v. Cirillo, 251 F.2d 638 (3 Cir. 1957), cert. denied 356 U.S. 949, 78 S.Ct. 914, 2 L. Ed.2d 843 (1958), the Third Circuit held that the necessary wilfulness was present in a tax case under a related section, § 7203, when the act was attended by knowledge of the legal obligation and the purpose to prevent the government from getting that which it legally requires. Accord, United States v. Litman, 246 F.2d 206 (3 Cir. 1957), cert. denied, 355 U.S. 869, 78 S.Ct. 118, 2 L. Ed.2d 75 (1957); United States v. Martell, 199 F.2d 670 (3 Cir. 1952), cert. denied 345 U.S. 917, 73 S.Ct. 728, 97 L.Ed. 1350 (1953); see also, United States v. Moylan, 417 F.2d 1002 (4 Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970). Defendant stipulated that he knew at the time he filed the form that he was not eligible to take fifteen exemptions under § 152. A jury could reasonably find that his purpose in doing this was to interfere with the withholding system and to prevent the collection of his taxes in the manner prescribed by law. In the letter which he attached to his W-4 form defendant demonstrated his knowledge that the employer must act in accordance with the information on the submitted form. The defendant, therefore, could properly be found by the jury to have possessed the necessary knowledge of his legal obligations and the specific intent to thwart the proper withholding of his taxes.

(D) Selective Prosecution

Defendant also renews a pretrial motion for dismissal on the basis of selective prosecution. He claims that the government brought the present case because of his opposition to the Vietnam war and that the statute is being enforced in a discriminatory manner to harass dissenters. A hearing was held on June 10, 1971 and defendant's motion was denied.

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