United States v. Malinowski

• Decision Date: 26 January 1973
• Docket Number: No. 72-1449.,72-1449.
• Citation: 472 F.2d 850
• Parties: UNITED STATES of America v. John Paul MALINOWSKI, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

472 F.2d 850 (1973)

UNITED STATES of America v. John Paul MALINOWSKI, Appellant.

No. 72-1449.

United States Court of Appeals, Third Circuit.

Argued November 14, 1972.

Decided January 26, 1973.

Certiorari Denied May 7, 1973.

COPYRIGHT MATERIAL OMITTED

John David Egnal, Egnal & Egnal, Philadelphia, Pa., for appellant.

Malcolm L. Lazin, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before ALDISERT, GIBBONS and HUNTER, Circuit Judges.

Certiorari Denied May 7, 1973. See 93 S.Ct. 2164.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This court must decide whether John Paul Malinowski violated criminal provisions of the Internal Revenue Code when, to protest the Vietnam War, he submitted an Internal Revenue Service form which included fifteen exemptions, when he knew that thirteen of the claimed exemptions were not permitted under Section 152 of the Internal Revenue Code of 1954. Resolving this question adversely to the taxpayer, a jury found him guilty of violating Section 7205 of the Code.¹ The district court, 347 F.Supp. 347, denied motions for a new trial and judgment of acquittal, and this appeal followed.

The facts are not in dispute. Appellant is an instructor in theology at St. Joseph's College in Philadelphia. Like so many sincere, well-intentioned Americans, he opposes this nation's participation in the Vietnam War. His beliefs are firm and intense.² He decided to dramatize his protest by filing a Form W-4 (Employee Withholding Exemption Certificate) in July, 1970, that contained fifteen exemptions. In the previous April, he had claimed only himself and his wife. He submitted the form to his employer, along with a letter furnishing this advice:

Please note the sharp increase in exemptions on my W-4 tax form. 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. I will notify the Internal Revenue Service of this change in my status.

Thank you John P. Malinowski

P.S. As I understand the IRS regulations, an employer is not responsible for the legality or accuracy of a claim, nor is he authorized to alter a claim.

Appellant made no pretense at trial, however, nor does he argue on appeal, that the thirteen additional members of the group with whom he entered into an "economic and social dependency" were permitted exemptions under Section 152 of the Internal Revenue Code. Indeed, he has stipulated that the group did not constitute a recognized exemption, that he was aware of this fact at the time he submitted the W-4 form, and that he was "an individual in July 1970, who was required to supply information to his employer, St. Joseph's College, under Section 3402."³ Rather, his defense at trial, and the thrust of his appeal, embraces two theories:

1. Because of his altruistic intentions and avowed purpose of protesting the war, he cannot be found guilty of "wilfully" making a false statement on the W-4 form because "wilfully" requires proof of "evil purpose" or "bad purpose;"

2. His conduct was protected by the First Amendment.

I

Appellant's first point was squarely presented in a requested jury instruction which was refused by the district court:

7. In the criminal law, an act is wilful if it is done with a bad purpose, without justifiable excuse, and without a ground for believing that the act was lawful.

Instead, the court charged:

An act is done "wilfully" if done voluntarily and intentionally, and with the specific intent to do something the law forbids.

. . .

Defendant has urged upon the Court a more expansive interpretation of the word "willful" as used in the Statute namely, that no violation occurred unless defendant performed the admitted acts with a bad purpose or motive. Defendant\'s position is that since he acted from good motives, i. e. to protest a war which he sincerely believed was not only illegal but immoral, that he could not have wilfully violated the Statute and must be acquitted. To interpret the term "wilfully" to require a bad purpose is to confuse the concept of intent with that of motive.

The statutory requirement of wilfullness is satisfied if the accused acted intentionally and with knowledge that he was breaching the Statute. While I have permitted evidence to be introduced concerning defendant\'s motive, whatever motive may have led him to do the act is not relevant to the question of the violation of the Statute.

Appellant urges that support for his contention that "wilfully" requires proof of "evil purpose" or "bad purpose" can be found in a series of decisions of this court, beginning with United States v. Martell, 199 F.2d 670 (3d Cir. 1952), cert. denied, 345 U.S. 917, 73 S.Ct. 728, 97 L.Ed. 1350 (1953). In Martell, the court defined wilfulness, an essential element of the offense of tax evasion, as a state of mind wherein the taxpayer is fully aware of the existence of a tax obligation, coupled with a wrongful intent to conceal that obligation. Indeed, rather than define wilfulness in terms of bad purpose or bad motive, as appellant suggests, this court found error in a charge which stated that the jury could return a verdict of guilty upon finding that the income tax forms were filed with a "bad purpose." The court ruled that such an instruction was confusing, and gave the jury "the impression that one could be convicted for income tax evasion through inadvertent error." 199 F.2d at 672. Considering that the factual complex in Malinowski does not involve tax evasion, thus not requiring concealment as an element of the offense, the instruction given in this case comports favorably with that suggested in Martell.

Malinowski next stakes his appellate claim on our decisions in United States v. Litman, 246 F.2d 206 (3d Cir.), cert. denied, 355 U.S. 869, 78 S.Ct. 118, 2 L. Ed.2d 75 (1957); United States v. Cirillo, 251 F.2d 638 (3d Cir. 1957), cert. denied, 356 U.S. 949, 78 S.Ct. 914, 2 L.Ed. 2d 843 (1958); and United States v. Palermo, 259 F.2d 872 (3d Cir. 1958).

In Litman, this court faced the issue of whether the evidence sustained a jury finding that defendant's failure to file tax returns was wilful. It is true that there the trial court injected the phrase "bad purpose" into the concept of "wilfully." The court did so, however, merely to distinguish an intentional concealment of a tax obligation from one due to inadvertence, carelessness or negligence. 246 F.2d 208-209. Indeed, in affirming the judgment of conviction, Judge Hastie observed that the trial court emphasized "`the only bad purpose or bad motive necessary for the Government to prove in this case, however, is the deliberate intention not to file returns which the defendant knew ought to be filed. . . .'" 246 F.2d at 209.

Cirillo, supra, relies on both Martell and Litman, and is to the same effect. There, in affirming the identical jury instruction charged in Litman, we announced that "the phrase `bad purpose' used as a characterization of `willfulness' serves merely to distinguish situations involving bona fide misconceptions of what is required from those where the failure to file has been attended by knowledge of the legal obligation and purpose to prevent the government from getting that which it lawfully requires." 251 F.2d at 639.

Like, Litman, the case of Palermo, supra, faced the issue of whether the evidence was sufficient to prove that the failure to pay taxes was a deliberate act rather than the result of negligence or mistake. No such issue, or one comparable thereto, was presented at appellant's trial. It will be recalled that appellant stipulated that he knew at the time he submitted the W-4 form that thirteen of the persons included thereon were not permitted exemptions under Section 152 of the Code. Indeed, that he intentionally did what he did in order to demonstrate a protest constitutes a major portion of his defense. Admittedly, Palermo stated that wilfulness requires the "existence of a specific wrongful intent — an evil motive — at the time the crime charged was committed." 259 F.2d at 882. However, as in Boardman v. United States, 419 F.2d 110, 114 (1st Cir. 1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970), we view appellant's reliance on miscellaneous nomenclature extracted from a variety of cases merely as an "attempts to transform occasionally pertinent language into black letter law."⁴

This court ruled in Palermo that evidence of continuing expenditures of huge sums of money on luxury items was insufficient to establish wilfulness in failing to pay taxes. Although the court did state that wilfulness required an evil motive, Palermo, like Cirillo and Litman, on which it relied, equated evil motive with a specific intent to do that which is proscribed. 259 F.2d at 882.⁵ Thus, the definition of wilfulness offered by Palermo is quite similar to that formulated by the district court in Malinowski: "An act is done `wilfully' if done voluntarily and intentionally, and with the specific intent to do something the law forbids. . . . The statutory requirement of wilfullness is satisfied if the accused acted intentionally and with knowledge that he was breaching the Statute." By use of the conjuctive, the court required the jury, before returning a verdict of guilty, to find not only that Malinowski intended to perform the conduct, but also that he had the specific intent to do something he knew the law forbade.⁶

We conclude, therefore, that these cases provide no relief for appellant because, (1) they examine wilfulness in light of the intentional vs. negligent dichotomy, a context far removed from the instant fact situation, and (2) none of these cases has ever considered bad purpose an element of the offense separate and distinct from a specific intent to do something the actor knows the law forbids. Moreover, we note our agreement with the district court's comment that...