United States v. Smith

• Decision Date: 14 September 1973
• Docket Number: No. 73-1137.,73-1137.
• Citation: 484 F.2d 8
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Brian SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

484 F.2d 8 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. James Brian SMITH, Defendant-Appellant.

No. 73-1137.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted July 13, 1973.

Decided September 14, 1973.

Rehearing Denied October 3, 1973.

C. Nelson Day, U. S. Atty., and James M. Dunn, Asst. U. S. Atty., for plaintiff-appellee.

Paul G. Goss, Denver, Colo., for defendant-appellant.

Before LEWIS, Chief Judge, and HOLLOWAY and McWILLIAMS, Circuit Judges.

PER CURIAM.

On May 26, 1971, James Brian Smith filed with his employer a withholding exemption certificate, Form W-4, which stated that he was entitled to ten exemptions. The following day he wrote a letter to the Internal Revenue Service in which he admitted that he was claiming these ten exemptions despite being entitled to only two. He explained that this action would enable him to receive his full wage and stated personal and religious convictions that the withholding provisions of the income tax law were unconstitutional.

An ensuing IRS investigation culminated in the filing of an information against Smith which charged him with supplying his employer with a false and fraudulent withholding exemption certificate in violation of 26 U.S.C. § 7205. Smith's request for assistance of counsel who was not a member of the bar was denied. Although standby counsel was appointed and available to him, Smith elected to represent himself throughout the proceedings. This appeal is brought from the judgment on his conviction after jury trial. A brief of counsel and pro se brief have been filed. We affirm.

The information against Smith charged him with supplying false and fraudulent information on his W-4 form despite the fact that the statute under which the charge was brought is stated in the disjunctive. 26 U.S.C. § 7205 defines a violator as one who "willfully supplies false or fraudulent information." Since the information was phrased in the conjunctive and the jury was so instructed, it is urged here that the government assumed the burden of proving beyond a reasonable doubt that the exemption statement was fraudulent. Appellant argues that the government did not meet this burden because it failed to prove the common law fraud elements of injury and reliance. We need not reach this narrower question, for we find that it was unnecessary for the government to establish that the information was both false and fraudulent.

The fact that an indictment or information charges in the conjunctive although the statute under which the charge is brought is worded in the disjunctive does not render the indictment or information invalid or the judgment erroneous. Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610; United States v. Price, 10 Cir., 444 F.2d 248. Often, as in Price, the court will correct the indictment or information by reading the statute to the jury and thus make it clear that only one of the acts charged needs to be proven. But the fact that the trial court does not do so and, in fact, charges the jury in the conjunctive, offers no exception to the general rule. In Turner the indictment in question charged the defendant with possessing, purchasing, dispensing, and distributing heroin. The instructions to the jury were similarly phrased. The only evidence of a violation involving heroin was the defendant's possession. The Court clearly stated the rule which we find applicable here:

The general rule is that when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, as Turner\'s indictment did, the verdict stands if the evidence is sufficient with respect to any one of the acts charged. (Turner, supra, 396 U.S. at 420, 90 S.Ct. at 654.)

It was therefore incumbent upon the government to establish only that Smith had willfully supplied false information. This it clearly did. Smith knew when he filed his W-4 that he was not entitled to ten exemptions. His letter written to the IRS the day after the W-4 was filed clearly indicates this, and Smith's church records support the fact that he was entitled to claim only two exemptions. A jury could thus reasonably have found in the filing of the W-4 form an intent to interfere with the withholding system and prevent the collection of taxes in the manner prescribed by law. Smith's conduct thus clearly meets the standard of willfulness which applies specifically to actions brought under 26 U.S.C. § 7205, United States v. Malinowski, 3 Cir., 472 F.2d 850, and even satisfies the more stringent standard established for related offenses under the Internal Revenue Code. See ...