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UNITED STATES v. MALINOWSKI

March 27, 1972

United States of America
v.
John Paul Malinowski


Huyett, District Judge.


The opinion of the court was delivered by: HUYETT

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." *fn1" 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. *fn2"

 Defendant was indicted on December 16, 1970 for violation of Internal Revenue Code of 1954, § 7205. *fn4" 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, 88 L. Ed. 1331, 64 S. Ct. 1037 (1944); United States v. Allard, 240 F.2d 840 (3 Cir. 1957), cert. denied, sub nom. Fishman v. United States, 353 U.S. 939, 1 L. Ed. 2d 761, 77 S. Ct. 814 (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, 86 L. Ed. 680, 62 S. Ct. 457 (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, 22 L. Ed. 327 (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 ...


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