(D.C. Criminal No. 70-717) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Aldisert, Gibbons and Hunter, Circuit Judges.
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.*fn1 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.*fn2 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.
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."*fn3 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.
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 ...