United States v. Ming

• Decision Date: 26 May 1972
• Docket Number: No. 71-1083.,71-1083.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William R. MING, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

466 F.2d 1000 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. William R. MING, Jr., Defendant-Appellant.

No. 71-1083.

United States Court of Appeals, Seventh Circuit.

Argued February 15, 1972.

Decided May 26, 1972.

Rehearing Denied June 26, 1972.

Certiorari Denied October 16, 1972.

R. Eugene Pincham, Ellis E. Reid, Chicago, Ill., for defendant-appellant.

James R. Thompson, U.S. Atty., John Peter Lulinski, Jeffrey Cole, Sheldon Davidson, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Stanley A. Kaplan, Maurice Rosenfield, Alex Elson, Harry Kalven, Jr., Chicago, Ill., amici curiae.

Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and KILEY, Circuit Judge.

Certiorari Denied October 16, 1972. See 93 S.Ct. 235.

HASTINGS, Senior Circuit Judge.

Defendant William R. Ming, Jr., was charged in four counts of an information, filed April 14, 1970, with having willfully and knowingly failed to make his federal income tax returns for the years 1963, 1964, 1965 and 1966 to the District Director of Internal Revenue,¹ in violation of Title 26 U.S.C.A. § 7203, being Section 7203 of the Internal Revenue Code of 1954.²

Following the disposition of the pretrial motions, this cause was submitted for trial to a jury in the federal district court³ on October 26, 1970. The jury returned a verdict on November 2, 1970, finding the defendant guilty on each of the four counts as charged in the information. Judgment was entered on the verdict. Following the denial of defendant's post-trial motions in arrest of judgment and for a new trial, defendant was sentenced to serve four months imprisonment on each of the four counts of the information, the sentences to run consecutively, for a total of 16 months. Defendant was also fined in the sum of $1,250 on each of the four counts, for a total of $5,000, together with the costs of prosecution. Defendant appealed. We affirm.

The basic facts in this case are not in dispute. Defendant did not timely file his federal income tax returns for each of the four years, 1963 through 1966. Defendant did not make such returns when due, that is, on or before April 15 of the year succeeding the calendar tax year involved. Defendant was a person required by law or regulation to make a return for each of the four years in question, his adjusted gross income having exceeded $600 for each of those years. Defendant knew that he was required to make such returns on or before the respective due dates. For the purpose of establishing a pattern of conduct bearing upon the question of willfulness, over objection, the Government established that the defendant failed to timely make his federal income tax returns for the seven preceding tax years of 1956 through 1962.

Testimony introduced by defendant, including his own, was directed to the one issue of whether he had any criminal intent in failing to make his returns when due, i. e., whether he willfully and knowingly failed to do so. We shall subsequently treat the several issues raised concerning such testimony, as well as that excluded by the trial court in its evidentiary rulings.

It should be further pointed out at this juncture that defendant was charged under Section 7203, a misdemeanor statute. He was not charged under Section 7201 with willfully attempting to evade or defeat his federal income tax, a felony statute.

THE INFORMATION

Defendant contends the district court prejudicially erred in denying his motion in arrest of judgment. He argues that the information is fatally defective because it does not state that he failed to make said income tax return "at the time or times required by law or regulations," the language of the statute. He says that the words used in the information, "said income tax return," do not refer to "the breach of the duty to file at the time required by law." We regard this as an unrealistic reading of the information.

Count I in the information does allege that defendant "was required by law * * * on or before April 15, 1964, to make an income tax return * * * and that he did wilfully and knowingly fail to make said income tax return * * *." (Emphasis added.) We are at a loss to understand how anyone reading the information could fail to understand that "said income tax return" required by law to be made on or before the specified due date could be other than a return to be made at the time required by law.

We are not persuaded by defendant's attack on this information. We find ourselves in agreement with the holding in United States v. Cotter, 1 Cir., 425 F.2d 450 (1970). In Cotter, in considering the language used in an indictment charging a violation of Section 7203 for failure to make a return as "required by law" following the close of the calendar year 1962, the court said: "The fair meaning of `said income tax return' is the return due on April 15, 1963." At 452.

MOTION FOR SUBSTITUTION OF JUDGES

On the morning of the trial, defendant filed a motion for substitution of judges pursuant to Title 28, U.S.C.A. § 144. Defendant moved that Judge Hoffman proceed no further because he had "a personal bias and prejudice in favor of plaintiffs, which personal bias and prejudice was not known to defendant until on or about October 23, 1970." The motion was accompanied by defendant's supporting affidavit and a certificate of good faith by his counsel. Disregarding the question of timeliness or lack of it, Judge Hoffman considered the motion on its merits and denied it on the ground that "the motion supported by an affidavit is entirely inadequate and does not meet the requirements of the statute."

Section 144 dictates disqualification only when "the judge * * * has a personal bias or prejudice either against him the movant or in favor of any adverse party * * *." Our examination of the affidavit reveals in substance that defendant alleged that Judge Hoffman had a personal bias or prejudice in favor of the United States of America based on the following cited examples of his judicial conduct:

(1) Judge Hoffman refused to grant defendant a continuance in the instant case so that defendant could participate in the appeal of an election case involving the Board of Election Commissioners of the City of Chicago, entitled United States of America v. Kusper, et al., then pending in this court; and

(2) Judge Hoffman, on November 30, 1966, in defendant\'s presence, in the case of United States v. White, a narcotics case where a defendant had accused United States Treasury agents of perjury, had characterized the agents as "brave young Treasury agents."

We take judicial notice of the proceedings on appeal in this court in the Kusper case and find no substance there to support the charge of bias and prejudice on the part of Judge Hoffman in favor of the United States. The denial of a simple continuance hardly rises to the dignity of giving "fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Berger v. United States, 255 U.S. 22, 33-34, 41 S.Ct. 230, 233, 65 L.Ed. 481 (1921). See Rosen v. Sugarman, 2 Cir., 357 F.2d 794, 797-798 (1966); Tucker v. Kerner, 7 Cir., 186 F.2d 79, 83-85 (1950). Cf. Peacock Records, Inc. v. Checker Records, Inc., 7 Cir., 430 F.2d 85, 88 (1970), cert. denied, 401 U.S. 975, 91 S.Ct. 1193, 28 L.Ed.2d 324 (1971).

To the credit of defendant, we note one of his concluding statements in his supporting affidavit: "Affiant has known Judge Julius J. Hoffman for many years and has a high regard for him and as a result of comments made by the judge on occasion, believes the high personal regard to be mutual."

It was the judge's duty to inquire into the legal sufficiency of the facts stated in the affidavit. A trial judge has as much obligation not to recuse himself when there is no occasion for him to do so as there is for him to do so when the converse prevails. Rosen v. Sugarman, 357 F.2d at 797. We conclude that defendant's supporting affidavit to his motion for substitution of judges was inadequate and does not meet the requirements of Section 144. It was not error to deny the motion.

VALIDITY OF SECTION 7203

Defendant contends that Section 7203 "contains vague language and myriad cross references to interrelated enactments and regulations and, as a consequence, is void because it does not meet the standard of clarity required of penal statutes by the Fifth Amendment to the Constitution."

He buttresses his contention by resorting to the well established principle "that a law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law." Baggett v. Bullitt, 377 U.S. 360, at 367, 84 S.Ct. 1316, at 1320, 12 L.Ed.2d 377 (1964). No one disputes the vitality of this constitutional pronouncement made in holding invalid two state statutes requiring state employees to subscribe to "non-subversive" oaths as a prior condition for public employment. It simply has no application to our consideration of the validity of Section 7203, either on its face or as applied.

Defendant's argument is predicated on the assumption that the meaning of "willfully fails * * * to make such return" in Section 7203 is to be equated with the meaning of "willful" in Section 7201, the felony statute. However, by comparison, Section 7201 refers to one "who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof." The felony statute requires the affirmative act of evasion, while the misdemeanor is an omission of a duty to make a return. This distinction was clearly recognized by the Supreme Court in Sansone v. United States, 380 U.S. 343, 350-354, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Spies v. United States, 317 U.S. 492, 497-500, 63 S.Ct. 364, 87 L.Ed. 418 (1943); and United States v. Murdock, 290 U.S. 389, 396, 54 S.Ct. 223, 78 L.Ed. 381 (1933). Following Sansone and Spies is United States v....