prosecution was thoroughly considered and rejected in the Court's Memorandum and Order filed on October 12, 1973. In that the trial of this matter disclosed nothing which would warrant a reversal of the Court's earlier decision, the claim of discriminatory prosecution will again be dismissed without further discussion.
2. Motion for Access to Buildings, Places and Documents
Three days before the scheduled trial date,
the defendant filed a discovery motion requesting access to the Mid-Atlantic Service Center of the IRS located at 11601 Roosevelt Boulevard in Philadelphia. Defendant asserted that in order to prepare an adequate defense a qualified expert must have access to the computers, computer programs, and documents used in the collection, storage, and dissemination of information found in an income tax return. Access to the computers and computer-related material was purportedly necessary so that the defendant's expert could determine the reliability of the information retrieved from the computers. Prior to trial, the discovery motion was denied.
Greenlee's defense to the charges of failure to file consisted of his testimony that he had filed the tax return for the year 1970 on April 15, 1971, and the suggestion that either the tax return had been lost by the IRS during the processing of the return or the information transmitted from the return to the computer tapes was irretrievably lost in the computer system due to a mechanical malfunctioning or human error. With respect to the 1971 tax return due on or before May 19, 1972, Greenlee contended that he mailed the return on December 24, 1972, two days before his first meeting with Special Agent Patella.
Defendant now argues that the computer expert employed by him for trial purposes was unable to effectively testify as to the manner in which his return or the data contained thereon could have been lost by reason of mishandling or malfunction of the computers without seeing the total system in operation.
Rule 9 of the Local Rules of Criminal Procedure requires discovery motions to be filed within fifteen (15) days of the date of arraignment. As previously mentioned (see footnote 4 of this Memorandum), defendant's motion for access was not filed until February 8, 1974, approximately eleven months after arraignment. While the trial court may exercise a reasonable amount of discretion in connection with the filing of pretrial motions beyond the time period provided in the Local Rules of Criminal Procedure, the sound administration of justice and the need for a workable adherence to the discovery rules mandated the denial of defendant's motion. Defendant had almost a full year to prepare to meet the charges set forth in the indictment and to raise any discovery issue deemed appropriate. It was not until three days before the scheduled starting date of this trial that defendant requested an Order granting access to the IRS computers and computer-related materials. Had the Court granted the motion, this case would have had to be continued again for a considerable length of time. The motion requested access for a period of time not to exceed three weeks. Analysis of information, the preparation of reports by the defendant's expert, and further argument would have consumed even more time. The Court could not reasonably countenance another delay in the start of the instant case, especially in view of the fact that the motion to inspect pertained only to Count I of the indictment.
Rule 16(b) of the Federal Rules of Criminal Procedure provides that the trial court may order the type of discovery sought in this case "upon a showing of materiality to the preparation of his defense and that the request is reasonable." The sole purpose of such a complex, time-consuming, and burdensome discovery undertaking was to ascertain the relative possibility of the IRS system malfunctioning to such an extent that the proper filing of a return would not be reflected on the computer printouts of the taxpayer's account.
Greenlee was unable before and during trial to make the necessary showing of materiality in order to support the discovery motion. Other than a purported copy of the 1970 return which Greenlee gave to Special Agent Patella, the Court was presented with no documentary or tangible evidence that a return had been filed and possibly lost by the IRS. The Court properly and logically construed the materiality provision of Rule 16(b) to require the defendant to come forward and show, at least prima facie, that the 1970 return had been timely filed. See, United States v. Sink, 56 F.R.D. 365, 369 (E.D.Pa.1972). The mere allegation that a return was filed does not satisfy the materiality requirement of Criminal Rule 16(b). United States v. Conder, 423 F.2d 904 (6th Cir. 1970).
Moreover, defendant's request was patently unreasonable. Access to and inspection of the computers and computer programs for a period of two or three weeks would unavoidably result in serious interruption of the operations of the IRS. The inherent unreasonableness of the request is further demonstrated by a consideration of such factors as security, the potential for serious interference with the operation of the Service Center and the overall unmanageability of an inspection of computers and documents by persons thoroughly unfamiliar with the system.
3. Use at Trial of the Defendant's City Tax Returns
At the trial of this matter, the Government introduced in evidence the document which Greenlee claimed to be a copy of his 1970 tax return (G-14). During the cross-examination of Greenlee, the Court permitted the prosecution to have identified as an exhibit (G-21) the defendant's 1970 Combined Business Tax Return for the City of Philadelphia which was filed with the City in April of 1972. Defendant contends that the use of the City tax return during the prosecution's cross-examination of him was improper and unduly prejudicial.
The intent of the Government in introducing the City tax return and cross-examination of the defendant therefrom was to point out the discrepancies between the business expense deductions listed on the City return and those business-related deductions set forth on the alleged copy of the Federal return. By bringing the discrepancies between the City and Federal returns to the jury's attention, the prosecution attempted to impeach the testimony of Greenlee that he had timely filed his 1970 Federal return. In short, the Government's position was that the differences in the amount of deductions taken on the two forms tended to show that the defendant did not have a copy of his 1970 Federal return in April, 1972, when he prepared the City return for the year 1970, or else the deductions would have been identical.
The defendant's credibility was directly in issue. The Government claimed that he willfully failed to file his 1970 Federal tax return. Greenlee's defense was that the tax return had been filed in accordance with the law and thereafter lost by the IRS, thus placing his believability squarely in question. The obvious disparities between the business deductions declared on the respective returns were reasonably probative of the prosecution's assertion that Greenlee did not have a copy of the 1970 Federal return at the time he completed the 1970 City return.
Furthermore, the defendant testified that he did not file his 1971 return within the time provided by law (May 19, 1972) because of certain pressing personal and legal difficulties. The fact that Greenlee filed the City return in April of 1972 is also probative of the truth or falsity of the defendant's testimony that he was unable for personal reasons to file a Federal tax return in April of 1972.
Defendant argues that the evidence of dissimilar computations appearing on the City return is irrelevant in that the apparent discrepancies may be attributable to the difference in applicable tax laws and his desire to claim only those deductions on the City form for which he was able to produce verification. That there may be a possible explanation for the discrepancies between the two returns does not preclude the admission in evidence of the City return. Any explanation or reason for the disparities may properly be put before the jury through an effective redirect examination of the defendant.
The issue of whether Greenlee willfully failed to file the Federal tax return was of critical importance in this case. The fact that the defendant prepared and filed a tax return with the City of Philadelphia unquestionably bears upon the question of willfulness as it relates to the failure to file the Federal return. United States v. Magnus, 365 F.2d 1007 (2nd Cir. 1966). Based on the above reasoning, the City tax return was properly admitted in evidence.
4. The Charge of the Court on Willfulness
Defendant contends that the trial court's instructions on the issue of willfulness were erroneous. In support of this contention, defendant argues that the Court diluted the statutory requirement of willfulness so as to lessen the Government's burden of proof with respect to that element of the crime. The charge of the Court was as follows:
"The word 'willful' as used in these statutes means voluntary. It means purposeful, deliberate, and intentional as distinguished from accidental, inadvertent or negligence. Mere negligence, even gross negligence, is not sufficient to establish willfulness. An act is done willfully if done knowingly and with a specific intent to do something that the law forbids, that is to say, with a bad purpose, either to disobey or disregard the law.
"The only bad purpose or bad motive necessary for the Government to prove in this case, however, is the deliberate intention not to file returns which the defendant knew ought to be filed." (N.T. 7-22.)
In the context of § 7203, the element of willfulness is established by proving that the defendant had knowledge of the legal obligation to file the tax return but, nevertheless, he voluntarily, deliberately, and intentionally chose not to do what the law requires. United States v. Bishop, 412 U.S. 346, 360, 93 S. Ct. 2008, 36 L. Ed. 2d 941 (1972); United States v. Malinowski, 472 F.2d 850, 853 (3rd Cir. 1970), cert. denied, 411 U.S. 970, 93 S. Ct. 2164, 36 L. Ed. 2d 693; United States v. Matosky, 421 F.2d 410 (7th Cir. 1970), cert. denied, 398 U.S. 904, 90 S. Ct. 1691, 26 L. Ed. 2d 62. To sustain a conviction for violation of the above statute, the prosecution must show that the taxpayer acted intentionally, with full knowledge that he was violating the statute, as opposed to the failure to file because of inadvertence or negligence on the part of the individual under a legal obligation to file. The charge of the Court properly defined the term "willful" within the meaning of § 7203 and comported fully with the law as set forth in Bishop and Malinowski, supra.
The burden on the Government to prove that Greenlee possessed the specific intent not to file returns which he knew the law required to be filed was not vitiated by the Court's instructions. The jury was specifically instructed that the term "willful" means the specific intent to do something that the law forbids. As the court in Malinowski declared, "Once it is established that his actions were intentional, and done with a specific intent to do that which the law forbade, the inquiry ceases." (Emphasis added.) 472 F.2d at 856. See also, United States v. Litman, 246 F.2d 206, 209 (3rd Cir. 1957), cert. denied, 355 U.S. 869, 78 S. Ct. 118, 2 L. Ed. 2d 75 (1957).
5. Limitation on Number of Character Witnesses
During the course of the trial, counsel for the defendant represented to the Court that a large number of character witnesses had agreed to testify on behalf of the defendant. The Court instructed defense counsel that an unreasonable and inordinate number of character witnesses would not be permitted. A total of 14 character witnesses were presented by the defendant, including a former Mayor of Philadelphia, legislative and community leaders and officers of the Philadelphia Bar Association.
The defendant objected at trial to the limitation imposed by the Court and now contends that the restriction on the number of character witnesses was error. Established law clearly supports the trial court's decision in this regard. The Supreme Court held in Michelson v. United States, 335 U.S. 469, 480, 69 S. Ct. 213, 93 L. Ed. 168 (1948), that the trial court is invested with discretion to limit the number and the extent of cross-examination of character witnesses. In accord, United States v. Malinowski, 347 F. Supp. 347, 356 (E.D.Pa.1972), aff'd, 472 F.2d 850 (3rd Cir. 1973).
The Court properly exercised its discretion in limiting the number of character witnesses. Fourteen prominent witnesses were called and all 14 testified to Greenlee's excellent reputation in the community. Further testimony on the issue of the defendant's reputation would have been unnecessary and needlessly repetitious.
6. Sufficiency of the Evidence
In the motion for judgment of acquittal, defendant argues that the record does not contain sufficient evidence to support a conviction under either count of the indictment. A thorough consideration of all the evidence, viewed in the light most favorable to the Government,
has convinced the Court that sufficient evidence was presented from which the jury could conclude beyond a reasonable doubt that Greenlee willfully failed to file an income tax return on or before the prescribed day for the two years in question. As to Count I, substantial evidence showed that the defendant failed to file the return and that such failure to file was willful and intentional. The testimony of Special Agent Patella and the defendant himself strongly supported the charge in Count II of the indictment, i.e., that Greenlee failed to file his 1971 tax return on or before May 19, 1972.
The remaining issue to be considered is whether Greenlee's filing of the 1971 return in late December, 1972, negates the operation of the statute. Section 7203 specifically states that any person who willfully fails to make a return "at the time or times required by law" shall be guilty of a misdemeanor. Under the express terms of the statute, late filing constitutes a violation of the law and does not render the statute inoperative. The purpose of the statute is to insure punctuality and promptness in the performance of obligations under the various Federal tax laws. Spies v. United States, 317 U.S. 492, 63 S. Ct. 364, 87 L. Ed. 418 (1943). The statute in question would be meaningless if a taxpayer could file beyond the required date and not be subject to legal sanctions. Greenlee's admittedly late filing does not remove Count II from the operation of § 7203. United States v. Ming, 466 F.2d 1000, 1005 (7th Cir. 1972), cert. denied, 409 U.S. 915, 93 S. Ct. 235, 34 L. Ed. 2d 176 (1972).
In summary, none of the arguments advanced by the defendant warrant the granting of the relief requested. Accordingly, the motion will be denied.