The opinion of the court was delivered by: BRODERICK
Sufficiency of the Evidence
In his motion for judgment of acquittal, defendant contends that the evidence is insufficient to support a jury verdict of guilty in connection with Count II. The evidence produced at trial, viewed in a light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457 (1942); United States v. Armocida, 515 F.2d 29 (3d Cir.), cert. denied 423 U.S. 858, 96 S. Ct. 111, 46 L. Ed. 2d 84 (1975), is more than sufficient to support the verdict. The evidence may be summarized as follows:
The defendant's 1971 tax return reported income, solely from wages, of $16,717.00. After adjustments and deductions, defendant's reported taxable income was $3,970.00, resulting in a tax of $615.00. Directly above the signature on the return, allegedly filed by the defendant for the year in question, appears the declaration, "Under penalties of perjury, I declare that I have examined this return, including accompanying schedules and statements, and to the best of my knowledge and belief, it is true, correct, and complete."
Mr. Phillip Horovitz, assistant counsel in the corporate department of the Commonwealth Land Title Insurance Company ("Commonwealth"), brought from the records of Commonwealth, a copy of a settlement sheet dated July 2, 1971 and a copy of a cancelled check, dated July 6, 1971. The settlement sheet, bearing account number C347363FK, refers to the sale of property located at Route #513, Hulmeville Boro and Bensalem Township, Bucks County. Listed under "Settlement with Seller" is the typed entry "Held for Joseph Vacca" followed by the hand-written entry "Finders Fee $3550.39". The cancelled check is also identified with the account number C347363FK. The cancelled check, payable to Joseph Vacca and in the amount of $3,550.39, contains the description: "Finders Fee, rt 513 Hulmeville Boro & Bensalem Twp, Bucks Co". The check is endorsed by "Joseph Vacca" and was negotiated on July 6, 1971.
William Di Bonaventura testified that in 1971 he and Joseph DiEdgilio purchased property on Route 513, Hulmeville Boro and Bensalem Township in Bucks County. He testified that the defendant attended the settlement held on July 2, 1971, but that he had no knowledge of the services, if any, rendered by the defendant on behalf of the seller. He also stated that he did not know why the defendant received a finders fee of $3,550.39 from the seller.
Internal Revenue Agent Frank Palmieri, testifying as an expert witness, stated that in his opinion, based upon the evidence in the record, the $3,550.39 was income to the defendant in 1971 and the additional tax due on that item is $674.00. The Government's evidence also contained several known handwriting exemplars of the defendant for the jury to compare to the endorsement on the cancelled check.
Thus, the evidence was sufficient for the jury to find that during 1971 the defendant received income of $3,550.39 and that he failed to include that income on his 1971 income tax return which he signed under penalties of perjury.
An essential element which must be established beyond a reasonable doubt to support a conviction under 26 U.S.C. § 7206(1) is that the defendant acted willfully. The Court so charged the jury and neither party excepted.
The defendant now contends that under 26 U.S.C. § 7206(1), Holland v. United States, 348 U.S. 121, 139, 99 L. Ed. 150, 75 S. Ct. 127 (1954), requires that willfulness must be proved by independent evidence which cannot be inferred from the mere understatement of income. The Holland case does not establish such a requirement in connection with a violation of 26 U.S.C. § 7206(1), but does establish such a requirement for a violation of 26 U.S.C. § 7201 -- attempting to evade taxes. In United States v. Bishop, 412 U.S. 346, 360-1, 36 L. Ed. 2d 941, 93 S. Ct. 2008, the Supreme Court stated as follows in connection with a violation of 26 U.S.C. § 7206:
The Court . . . has recognized that the word "willfully" in these statutes generally connotes a voluntary, intentional violation of a known legal duty. It has formulated the requirement of willfulness as "bad faith or evil intent," Murdock, 290 U.S., at 398 . . . or "evil motive and want of justification in view of all the financial circumstances of the taxpayer" . . . . Until Congress speaks otherwise, we therefore shall continue to require, in both tax felonies and tax misdemeanors that must be done "willfully," the bad purpose or evil motive described in Murdock, supra.
Footnote 8 in United States v. Bishop, supra, reiterates the distinction between the proof required for a violation of 26 U.S.C. § 7201 and 26 U.S.C. § 7206:
Semantic confusion sometimes has been created when courts discuss the express requirement of an "attempt to evade" in § 7201 as if it were implicit in the word "willfully" in that statute. This type of analysis produces language suggesting that "willfully" in § 7201 has a different meaning from the same term in § 7203. . . . This Court may be somewhat responsible for this imprecision because a similar analysis was employed in Spies v. United States. . . . Greater clarity might well result from an analysis that ...