Confusion Regarding the Cheek Willfully Element of Specific Intent to Violate a Known Legal Duty (9/8/19)

In United States v. Severino, 2019 U.S. App. LEXIS 26560 (11th Cir. 2019) (unpublished), here, the Eleventh Circuit affirmed Severino's "convictions and 65-month sentence for aiding and assisting in the preparation of false tax returns, wire fraud, and aggravated identity theft."  Severino was a return preparer, and, based on the convictions, an abusive preparer.  On appeal, Severino argued that the Court failed to give a proper willfulness instruction that he had requested for the aiding and assisting counts, § 7206(2).  Severino made other arguments on appeal, but I focus on the willfulness instruction issue which is framed by the Eleventh Circuit's pattern criminal jury instructions.

The Eleventh Circuit's pattern jury instructions for criminal cases are available, here.  Those pattern instructions (with annotations and comments) cover 747 pages.  In order to focus on the pattern jury instructions in issue here, I used the Eleventh Circuit's Pattern Jury Instruction Builder, here, which I have discussed previously.  I "built" the pattern jury instructions in question with Annotations and Comments here.

The relevant pattern jury instructions are:

• B9.1A On or About; Knowingly; Willfully – Generally
• B9.1B On or About; Knowingly; Willfully – Intentional Violation of a Known Legal Duty
• O109.2 Aiding or Assisting in Preparation of False Documents Under Internal Revenue Laws 26 U.S.C. § 7206(2)

The aiding and assisting, § 7206(2) counts, have the same willfully element as in most of the other commonly employed Title 26 tax crimes defined to mean specific intent to violate a known legal duty.  Thus, DOJ CTM 13.07 Willfulness, here, says:

Willfulness has the same meaning in Section 7206(2) cases as it has for other criminal tax violations: “the word ‘willfully’ in these statutes generally connotes a voluntary, intentional violation of a known legal duty.” United States v. Bishop, 412 U.S. 346, 360 (1973); see also Cheek v. United States, 498 U.S. 192, 200 (1991); United States v. Ervasti, 201 F.3d 1029, 1041 (8th Cir. 2000).

As readers of this blog know, many crimes have a willfully element but the element is not always interpreted the same.  As the Court said in Bryan v. United States, 524 U.S. 184, 191-192 (1998), here:

The word "willfully" is sometimes said to be "a word of many meanings" whose construction is often dependent on the context in which it appears. See, e. g., Spies v. United States, 317 U. S. 492, 497 (1943). Most obviously it differentiates between deliberate and unwitting conduct, but in the criminal law it also typically refers to a culpable state of mind. As we explained in United States v. Murdock, 290 U. S. 389 (1933), a variety of phrases have been used to describe that concept.[12] As a general matter, when used in the criminal context, a "willful" act is one undertaken with a "bad purpose."[13] In other words, in order to establish a 192*192 "willful" violation of a statute, "the Government must prove that the defendant acted with knowledge that his conduct was unlawful." Ratzlaf v. United States, 510 U. S. 135, 137 (1994). 

* * * * 

Petitioner next argues that we must read § 924(a)(1)(D) to require knowledge of the law because of our interpretation 194*194 of "willfully" in two other contexts. In certain cases involving willful violations of the tax laws, we have concluded that the jury must find that the defendant was aware of the specific provision of the tax code that he was charged with violating. See, e. g., Cheek v. United States, 498 U. S. 192, 201 (1991).Similarly, in order to satisfy a willful violation in Ratzlaf, we concluded that the jury had to find that the defendant knew that his structuring of cash transactions to avoid a reporting requirement was unlawful. See 510 U. S., at 138, 149. Those cases, however, are readily distinguishable. Both the tax cases and Ratzlaf involved highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct. As a result, we held that these statutes 195*195 "carv[e] out an exception to the traditional rule" that ignorance of the law is no excuse and require that the defendant have knowledge of the law. The danger of convicting individuals engaged in apparently innocent activity that motivated our decisions in the tax cases and Ratzlaf is not present here because the jury found that this petitioner knew that his conduct was unlawful.

The Supreme Court painted with too broad a stroke in suggesting that tax willfulness required that the defendant know "the specific provision of the tax code that he was charged with violating," but the standard formulation for Title 26 criminal willfulness established in Cheek and its predecessors is that the defendant know the law and intend to violate it--in the language of Cheek, specific intent to violate a known legal duty.

The district court in Severino gave the basic willfulness instruction in B9.1A rather than the Cheek instruction in B9.1B. I think that was plain error.  The Court of Appeals affirmed because, it concluded, the specific offense instruction for § 7206(2) saved the day because it had the correct definition of willfulness.  The Court reasoned:

The specific offense instruction for § 7206(2) lists five elements that the government must prove at trial. Id., Offense Instruction 109.2. The last element states that the defendant must have acted "with the intent to do something the Defendant knew the law forbids." Id. The commentary to this instruction notes that a willful violation of the statute "has been defined as the voluntary, intentional violation of a known legal duty." Id., Annotations and Comments to Offense Instruction 109.2. But it also states that because the specific offense instruction "incorporates this definition of willfulness in its elements, the committee does not believe that it is necessary to also include Basic Instruction 9.1B for this offense." Id. 

Here, the district court concluded that pattern instruction B9.1B was inapplicable because Severino's offense was not particularly complex. [*13]  It therefore gave the equivalent of instruction O109.2 for the offense elements and the equivalent of instruction B9.1A for willfulness. Severino contends that the court's failure to give instruction B9.1B was an abuse of discretion. 

Severino is correct that in the context of criminal tax statutes, willfulness is generally defined as the "voluntary, intentional violation of a known legal duty." See, e.g.,Cheek, 498 U.S. at 201; Pomponio, 429 U.S. at 12; Bishop, 412 U.S. at 360; Brown, 548 F.2d at 1199; see also Eleventh Circuit Pattern Jury Instructions (Criminal Cases), Annotations and Comments to Basic Instruction 9.1A (indicating that this definition is appropriate in tax cases). Nevertheless, the requested instruction was substantially covered by the given offense instruction, which was modeled on instruction O109.2 and required the government to prove that Severino acted "with the intent to do something [he] knew the law forbids." The commentary to pattern offense instruction 109.2 specifically states that it incorporates the definition of willfulness as the "voluntary, intentional violation of a known legal duty" into its elements, and therefore instruction B9.1B is unnecessary. See Eleventh Circuit Pattern Jury Instructions (Criminal Cases), Annotations and Comments to Offense Instruction 109.2. Because Severino's requested instruction was subsumed into the offense instruction, the district court did not abuse its discretion in declining to issue it. See House, 684 F.3d at 1196. 

In addition to the offense instruction, the district court also gave the equivalent of instruction B9.1A to define willfulness. The commentary to the pattern jury instructions indicates that B9.1A contains a lesser mens rea than B9.1B. See Eleventh Circuit Pattern Jury Instructions (Criminal), Annotations and Comments to Basic Instruction 9.1A. But Severino does not specifically argue that the jury was misled by this additional instruction. In addition, any error in giving the instruction was harmless, as it still communicates that willfully means to act "voluntarily and purposely, with the intent to do something the law forbids; that is with the bad purpose to disobey or disregard the law." This formulation is not substantially different from the offense instruction, and the Supreme Court concluded that similar language was sufficient to instruct the jury on willfulness in Pomponio. See Pomponio, 429 U.S. at 11, 13.

JAT Comments:

1.  I think the Court was wrong in suggesting that the Basic Instruction conveyed the same concept as Cheek.  That certainly was not the intent of the drafters of the pattern jury instructions who provided B9.1B was to supply the Cheek requirements not found in B9.1A.

2.  Perhaps that is why the opinion is unpublished and per curiam.