UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
July 17, 1975
UNITED STATES OF AMERICA
JOHN J. DUFFY, JR., APPELLANT.
Before VAN DUSEN, ROSENN and WEIS, Circuit Judges.
Opinion of the Court
Per Curiam: By an information filed June 1, 1973, defendant John J. Duffy, Jr., was charged with willful failure to make income tax returns for the years 1969 through 1971, inclusive. See 26 U.S.C. § 7203 (1970). The case was submitted to a jury in the United States District Court for the Eastern District of Pennsylvania on a record consisting entirely of stipulated evidence. The jury found the defendant guilty as charged. After denying defendant's posttrial motions, the district court suspended imposition of sentence and placed defendant on probation for a period of two years. Defendant appealed; we affirm.
Defendant raises only two contentions on appeal: (1) the evidence was insufficient to support the jury's finding of willfulness, and (2) the district court erred in instructing the jury on the issue of willfulness. We shall discuss both contentions briefly.
In assessing the sufficiency of this record, we must view the evidence in the light most favorable to the Government. Glasser v. United States , 315 U.S. 60, 80 (1942); United States v. Greenlee , No. 74-2106, at 4 (3rd Cir., May 28, 1975). Defendant is a lawyer who received his legal education at Villanova Law School. He graduated fifteenth out of a class of 58 and passed a course in Federal Income Taxation. From July 1969 until July 1970, defendant practiced law in partnership with Michael Kean, who prepared and filed partnership information returns for the calendar years 1969 and 1970. Kean discussed the partnership returns with defendant and provided him copies thereof.
Defendant received gross income of $29,621.82 in 1969, $30,271.61 in 1970, and $80,398.29 in 1971. Defendant nonetheless failed to file tax returns for the calendar years 1969, 1970, and 1971 until February and March of 1973 when he and his wife filed joint returns. No extensions were sought and thus the 1973 filings were untimely.
We are satisfied that the Government has met its burden of establishing a prima facie case. We believe the jury properly could infer willfulness on the part of a lawyer with tax training who failed to file tax returns for three consecutive years in which he had substantial income. The inference of willfulness is all the more permissible since defendant was alerted concerning his duty to file when his law partner filed partnership information returns for two of the three years in question.
The primary thrust of defendant's attack upon the jury instructions is that the district court erred in defining the term "willful." The district court charged:
An act is done willfully if done voluntarily, intentionally and with a specific intent to do that which the law forbids. ...
Now, the defendant's conduct is not willful if he acted through negligence, inadvertence or mistake. Even gross negligence is not sufficient to constitute willfulness. A failure to act is willful if voluntary and purposeful and with a specific intent to fail to do what the law requires to be done, that is, with a bad purpose to disobey or disregard the law. You the jury must decide whether the defendant's failure to file returns was willful.
These instructions clearly comply with this court's recent decision in United States v. Greenlee, supra . In that case we interpreted the Supreme Court's opinion in United States v. Bishop , 412 U.S. 346 (1973).
As the Court noted, various formulations have been given to the word ["willful"] to express the underlying meaning of a "voluntary, intentional violation of a known legal duty." Bishop at 360. These formulations include the bad purpose or evil motive described in United States v. Murdock , 290 U.S. 389, 398 (1933).However, the use of terms such as "bad purpose" does not imply that the government must prove more than that the defendant acted with a guilty mind, i.e., voluntarily and with the deliberate intent to violate the law. We think the instruction here adequately conveyed the concept that liability can be based, in the language of the trial court, only on a "specific intent to do something which the law forbids. ..."
United States v. Greenlee , No. 74-2106, at 7.
Defendant also contends that the district court erred in failing to give certain requested instructions concerning the significance of the filing of partnership returns. The supposition underlying these requested instructions apparently is that a person who knows the Government possesses information on which it can assess and collect tax would not intend to conceal income or delay the assessment and payment of the tax. Defendant, however, was not charged with an intention to conceal income or delay the assessment and payment of taxes. The information charged him with willful failure to make income tax returns, a very different matter. A requested instruction which is partially incorrect may be refused by the district court. United States v. Kelly , 349 F.2d 720, 759 (2d Cir. 1965), cert. denied , 384 U.S. 947 (1966). We believe the district court's general instructions on the question of intent sufficiently covered the situation. The significance of the partnership returns was properly the subject of argument and, indeed, defense counsel argued their significance at length.
The judgment of the district court will be affirmed.
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