Hastie, Ganey and Freedman, Circuit Judges. Ganey, Circuit Judge (concurring and dissenting).
The appellant has been convicted of "willfully" failing to file federal income tax returns for the years 1958 and 1959 in violation of the provision of section 7203 of title 26, United States Code that anyone "who willfully fails to * * * make * * * [a required income tax] return * * * shall * * * be guilty of a misdemeanor * * *." The evidence amply supported the jury's verdict. However, a question remains on this appeal whether the trial judge in his charge to the jury gave "willful" an erroneously broad and comprehensive definition, thus permitting conviction without a finding of essential scienter.
At three different points in the charge the court defined willfully as follows:
"* * * And the word is employed to characterize such conduct as marked by a careless disregard whether or not one has a right to so do."
"* * * And by the term wilfully, as used in the statute, means with a bad purpose or without grounds for believing that one's act is lawful or with such a careless disregard whether one has a right so to act."
"The word wilful * * * means with a bad purpose or without grounds for believing that one's act is lawful or without reasonable cause or capriciously or with a careless disregard whether one has a right so to act." [Italics added.]
Our examination of the issue thus raised begins with the much cited opinion in United States v. Murdock, 1933, 290 U.S. 389, 54 S. Ct. 223, 78 L. Ed. 381, relied on by the dissent in the instant case and presumably the basis of the lower court's instruction. In Murdock, the defendant was convicted for failing to give required tax information in violation of an earlier statute from which section 7203 was derived. The lower court had instructed the jury to the effect that one who voluntarily refused to give the required information would be guilty of "willfully" failing to give the information. Thus, the issue before the Supreme Court was the proper definition of "willfully" as the mens rea requirement of this misdemeanor. In framing the issue, the court noted that willful is a word of many meanings, for example, merely voluntary as contrasted with accidental, but that in a criminal statute it generally means "an act done with a bad purpose * * *; without justifiable excuse * * *; stubbornly, obstinately, perversely * * *." 290 U.S. at 394, 54 S. Ct. at 225. Then, the court continued to catalog various other meanings of willfully, including the following:
"The word is also employed to characterize a thing done without ground for believing it is lawful * * * or conduct marked by careless disregard whether or not one has the right so to act * * *." 290 U.S. at 394-395, 54 S. Ct. at 225.
However, this enumeration of different meanings of willfully in various contexts should not be read as a statement that several definitions, among them the one last quoted above, are comprehended by the criminal statute in question. Indeed, rather than adopting a number of meanings, the Court proceeded to consider the context of the misdemeanor section and concluded that willful as an element of the offense connoted "bad faith or evil intent". 290 U.S. at 398, 54 S. Ct. at 226.
Spies v. United States, 1943, 317 U.S. 492, 63 S. Ct. 364, 87 L. Ed. 418, is to the same effect. There the Court stated that willfulness, for purposes of both the misdemeanor in question and the felony of "willfully" attempting to evade taxes includes "some element of evil motive and want of justification in view of all the financial circumstances of the taxpayer". 317 U.S. at 498, 63 S. Ct. at 368.
Instructions which define an act as willful when done "without ground for believing it is lawful", or when "marked by careless disregard whether or not one has the right so to act", have been rejected by this court as improper dilutions of the scienter required by section 7203. United States v. Palermo, 3d Cir., 1958, 259 F.2d 872; accord Haner v. United States, 5th Cir., 1963, 315 F.2d 792; cf. United States v. Litman, 3d Cir., 1957, 246 F.2d 206.
Our affirmative statements of the meaning of "willfulness" in section 7203 or its predecessor clearly exclude any type of carelessness or negligence, however inexcusable. Thus, in the Palermo case we said:
"Willfulness is an essential element of the crime proscribed by [the misdemeanor section] * * *. It requires existence of a specific wrongful intent -- an evil motive -- at the time the crime charged was committed * * *. Mere laxity, careless disregard of the duty imposed by law, or even gross negligence, ...