USA v. Jensen et al
Filing
116
Initial Report and Recommendation, Memorandum Opinion, Set/Reset Motion and R&R Deadlines/Hearings
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA
Plaintiff,
vs.
JAMES L. JENSEN JR,
ROBIN L. JENSEN,
3:09-cr-108-JWS-JDR
RECOMMENDATION
REGARDING
MOTION TO DISMISS
(Docket No. 100)
Defendants.
Defendants James L. Jensen and Robin L. Jensen acting pro se,
have filed a motion to dismiss contending that their indictment is defective for failing
to allege an essential element of wilfulness in each of the twelve counts of the
indictment. Docket 100. The motion is opposed by the government, Docket 101.
Defendants filed a reply/response at Docket 103.1
Both defendants are charged in Count 1 with an attempt to defeat the
payment of a tax in violation of 26 U.S.C. § 7201. The defendants are charged in
1
Contrary to D.Ak.LR 47.1(c) Criminal Motion Practice, defendants did not seek
permission to file a response to the government's opposition. In order to expedite the
business of the court the response has been considered as if it were properly filed.
Counts 2 through 4 with unlawfully filing a joint false income tax return in violation
of 26 U.S.C. § 7206(1). James Jensen is charged in Counts 5 through 8 and Robin
Jensen in Counts 9 through 12 with wilfully failing to file an income tax return in
violation of 26 U.S.C. § 7203.
The parties agree that an indictment is sufficient if it, first, contains the
elements of the offense charged and fairly informs the defendant of the charge
against which he must defend and “second, enables him to plead an acquittal or
conviction and bar a future prosecution for the same offense.” See Hamling v.
United States, 418 U.S. 87, 117 (1974). Each count of the indictment alleges the
element of wilfulness. The defendants seek to impose an additional requirement
that wilfulness must be defined in the indictment as being “motivated or prompted
by bad faith or evil intent.” Motion to Dismiss, Docket 100, p.2.
The defendants fail to note the distinction between the requirements of
alleging a crime in an indictment and proving that crime at trial. In United States v.
Pomponio, 429 U.S. 10, 97 S.Ct. 22, (r’hrg denied 1976) the United States Supreme
Court held that the term “wilful” in the context of statutes prohibiting wilfully filing a
false income tax return means a voluntary, intentional violation of a known legal duty
and there is no requirement of finding of “evil motive” beyond a specific intent to
violate the law. The Supreme Court cited with approval several opinions of the
Courts of Appeal including the Ninth Circuit’s opinion in United States v. Hawk, 497
09-cr-108-JDR JENSEN et ux @ 100 RR Re Mtn to Dismiss_mtd.wpd
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F.2d 365, 366-369, cert. denied 419 U.S. 838 (1974). See also United States v.
Powell, 955 F.2d 1206, 1210 (9th Cir. 1991) (Instruction of wilfulness need not
include “bad faith” or “bad purpose.”
Neither bad purpose nor evil motive is an
independent element of a wilful failure to file under the statutory requirements to file
tax returns).
The Jensens seize upon the language in Spies v. United States, 317
U.S. 492, 498 (1943) to support their argument that the element of wilfulness
requires a showing and hence an allegation of evil motive or intent. In Spies the
Supreme Court explained that the word “wilful” has many meanings and its
construction often depends upon its context such as whether it is being applied to
non payment of a tax or to the failure to make a tax return. The court stated: “mere
voluntary and purposeful, as distinguished from accidental, omission to make a
timely return might meet the test of wilfulness.” Id.
Without a clear showing of
Congressional intent the Supreme Court was not willing to assume that mere
knowing and intentional default in payment of a tax where there has been no wilful
failure to disclose the liability constitutes a criminal offense. “We would expect
wilfulness in such a case to include some element of evil motive and want of
justification in view of all the financial circumstances of the taxpayer.” Id. In
Pomponio, supra, the Supreme Court cited Spies in its recitation that there is no
requirement to find “evil motive” beyond a specific intent to violate the law.
09-cr-108-JDR JENSEN et ux @ 100 RR Re Mtn to Dismiss_mtd.wpd
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The defendants also cite United States v. Murdock, 290 U.S. 389 (1933)
in their argument that bad faith or evil intent must be shown to meet the requirement
of wilfulness. In Murdock, respondent Murdock was indicted for refusal to give
testimony and supply information as to deductions claimed on certain income tax
returns for monies paid to others. The applicable statute requiring him to answer
certain questions did not make a bad purpose or evil intent an element of the offense
of refusing to answer. The applicable statute denounced a wilful failure to do various
things thought to be requisite to a proper administration of the income tax law. The
Supreme Court affirmed the circuit court holding that the government had met its
burden of showing more that a mere voluntary failure to supply information, with
intent, and good faith to exercise the constitutional privilege to remain silent. The
Supreme Court recognized that Murdock’s refusal to answer was intentional and
lacked legal justification, although the jury might have found that it was not prompted
by bad faith or evil intent which the statute made an element of the offense for
refusal to give testimony.
The defendants have misread and misapplied their cited case law as
to requirements for a lawful indictment. At trial the parties may argue the appropriate
language and definition of wilfulness for jury instructions. The indictment, however,
is sufficient to give defendants adequate notice of the charges against them and the
indictment need not recite “bad faith” or “an evil purpose” to be legally sufficient.
09-cr-108-JDR JENSEN et ux @ 100 RR Re Mtn to Dismiss_mtd.wpd
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Therefore, the motion to dismiss lacks merit and should be denied. IT IS SO
RECOMMENDED.
DATED this 4th day of June, 2010, at Anchorage, Alaska.
John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge
Pursuant to D.Ak.L.M.R. 6(a), a party seeking to object to this proposed
finding and recommendation shall file written objections with the Clerk of Court no
later than 4:00 P.M. Tuesday, June 8, 2010. [Objections, if any, to be directed
to the assigned district judge for his determination]. The failure to object to a
magistrate judge's findings of fact may be treated as a procedural default and waiver
of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185,
1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes
that a district court is not required to consider evidence introduced for the first time
in a party's objection to a magistrate judge's recommendation United States v.
Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed
five (5) pages in length, and shall not merely reargue positions presented in motion
papers. Rather, objections and responses shall specifically designate the findings
or recommendations objected to, the basis of the objection, and the points and
authorities in support. Response(s) to the objections shall be filed on or before 4:00
P.M on Wednesday, June 9, 2010.
The parties shall otherwise comply with
provisions of D.Ak.L.M.R. 6(a).
Reports and recommendations are not appealable orders. Any notice
of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the
district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
09-cr-108-JDR JENSEN et ux @ 100 RR Re Mtn to Dismiss_mtd.wpd
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