United States v. Bishop

PETITIONER: United States
LOCATION: Connecticut Bar Association

DOCKET NO.: 71-1698
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 412 US 346 (1973)
ARGUED: Jan 16, 1973
DECIDED: May 29, 1973

J. Richard Johnston - for respondent
Richard B. Stone -

Facts of the case


Media for United States v. Bishop

Audio Transcription for Oral Argument - January 16, 1973 in United States v. Bishop

Warren E. Burger:

We’ll hear arguments next in 71-1698, United States against Bishop.

Mr. Stone?

Richard B. Stone:

Thank you Mr. Chief Justice and may it please the Court.

This is a criminal tax case which comes here on a writ of certiorari to the United State Court of appeals for the Ninth Circuit.

The respondent in this case was indicted in the Eastern District of California on the charge of willfully filing income tax returns which he did not believe to be true as to every material matter, an offense punishable as a felony under Section 7206 (1) of the Internal Revenue Code.

The elements of the offense defined in Section 7206 (1) are that the defendant willfully makes and subscribes a document, that the document be verified under the penalty of perjury and that the defendant does not believe the document to be true and correct as to every material matter.

The evidence introduced at respondent’s trial showed that the respondent was a practicing attorney who owned a walnut ranch which was managed by his step mother.

During the three years in issue, 1963 to 1965 inclusive, respondent sent his step mother weekly checks which she deposited in a bank account for purposes of covering the operating expenses of respondent’s ranch.

Though there was evidence of several different types of improper deductions claimed by respondent on his tax return, the crux of the offense charged against respondent was that he took deductions twice for these operating expenses of the ranch.

What he did was, he deducted both the amounts which he sent to his stepmother and in addition, the amounts paid by her out of those very same funds to cover the ranch’s expenses.

Now, respondent’s defense at trial and the really only matter essentially in dispute in the transcript to this case focused primarily on his claim that he had no knowledge that the deductions were false and consequently, that he did not have the requisite intent, whatever that is and we shall discuss that at great length, necessary to support a conviction under 7206 (1) which as I indicated requires that the defendant commit the prohibited act willfully.

In addition however, the respondent requested that the jury be instructed that it could find him innocent of the felony set forth in 7206 (1), but guilty of what respondent argued was the lesser included offense of delivering to the revenue service a document known to be false or fraudulent which is punishable as a misdemeanor under Section 7207 of the code, which respondent argued requires a lesser degree of willfulness than does the felony charged.

The trial judge refused respondent’s request to charge to the effect that the jury could find him guilty of the lesser included misdemeanor and respondent was indeed found guilty as charged of the felony.

The Court of Appeals for the Ninth Circuit reversed and held that respondent was entitled to the lesser included offense charge for which reason it did not reach other issues raised on appeal by respondent, and it is from this determination of the Court Of Appeals for the Ninth Circuit requiring a retrial with a lesser included offense charge that the government has sought certiorari in this case.

Harry A. Blackmun:

Mr. Stone, just as a matter of curiosity, how do you explain the heavier penalty under 7206 (1), a felony charge, for mere absence of belief in the truth with by then as compared to the penalty for actual knowledge of falsity under 7207 made a misdemeanor?

Richard B. Stone:

I think that is a very important question in this case Mr. Justice Blackmun to which I think the answer is quite simple.

It is certainly is an anomaly at first glance with respect to that.

The answer I think is that 7206, the felony covers only documents which are signed by the taxpayer, by the defendant under penalty of perjury, where as the misdemeanor offense refers simply to any document including for example a work sheet handed to a revenue agent and of course of an audit or --

Harry A. Blackmun:

Or state income tax return that he said here it is and --

Richard B. Stone:

Well, an income tax return, if properly filed, and signed under penalty of perjury.

There is an overlap between the two offenses insofar as the misdemeanor also applies to documents signed under penalty of perjury but I think it is quite clear that more severe -- the distinction with respect severity of penalty is attributable to the fact that one section refers exclusively to documents signed under penalty of perjury and that is a reflection of a historical concept that a document so signed represents a more serious representation and probably in itself a more greater consciousness of affect of the filing of the document than thus simply handing for example a worksheet to a revenue agent.

Harry A. Blackmun:

Although it’s been that way a long time?

Richard B. Stone:


William J. Brennan, Jr.:

Although I gather the prosecution could be only for a misdemeanor in the case of the signed document as well?

Richard B. Stone:

That is right, that is right, it could be.

There is an overlapping element and which I think we are forced to conclude leaves a certain amount of prosecutorial discretion.

William J. Brennan, Jr.:

We have any information about what the practice is?

Richard B. Stone:

Yeah, the practice is ordinarily I am told with respect to income tax returns to prosecute for the felony, but that is -- there is the discretion exercised and what you would expect to be the factors playing into such a discretion or use.

William J. Brennan, Jr.:

And I take it that with the discretion as exercised by the individual U.S. Attorney?

Richard B. Stone:

By the individual US Attorney presumably in consultation with the fraud Section of the tax division and the Internal Revenue Service.