Janetha Brooksby was charged in a two count indictment with falsely subscribing her income tax returns, a violation of 26 U.S.C. § 7206 (1). After a jury trial, she was convicted. She filed a motion to set aside the jury verdict and enter a judgment of acquittal and a motion for a new trial. The court denied both motions. She appeals due to the failure of the trial court to give a jury instruction listing all of the elements of the offense which had to be proven in order to find her guilty. Because the jury was not properly instructed, the conviction is reversed, the verdict set aside and the case remanded for a new trial with a properly instructed jury.

FACTS

Janetha Brooksby worked as a receptionist and kept the books in her husband’s veterinary clinic during calendar years 1973 and 1974. One of her duties was to receive the payment from the animal’s owner and issue a receipt for the payment. Later, she was to enter the receipts in a daily receipts journal. This daily receipts journal was used by their accountant to prepare the Brooksby’s income tax returns for 1973 and 1974.

By destroying some of the receipts and not entering those in the daily receipts journal, Ms. Brooksby was able to siphon funds for her own use. However, not all of the funds represented by the destroyed receipts were kept by Ms. Brooksby. As a result, the Brooksbys deposited more money into their business bank account than was reported in the daily receipts journal. This was detected during a routine audit by the Internal Revenue Service.

At trial, Ms. Brooksby admitted that the 1973 and 1974 income tax returns were incorrect and that she had signed the returns. She testified that she embezzled about $50 a week to give to her children of a previous marriage. She stated that, although she was destroying far more receipts than necessary for the amount of money she was taking, she did not realize that the daily receipts journal was used in preparing the tax returns. She argued that she did not know the returns materially understated the gross receipts, and, therefore, she did not willfully subscribe false returns.

The Government proposed the following instruction listing three of the four elements which must be proven in order to convict for a violation of 26 U.S.C. 7206(1):

The defendant, after objecting to the inadequate elements of the offense instruction proposed by the Government, proposed that the fourth element be added:

The court refused the defendant’s essential elements instruction and stated that the instruction offered by the Government was correct. The three-element Government version was the one given to the jury.

ANALYSIS

The pertinent part of 26 U.S.C. § 7206 states:

There can be no doubt that the term “willful” in § 7206(1) requires proof of a specific intent to do something which the law forbids; more than a showing of careless disregard for the truth is required. The Supreme Court has defined the term to mean “voluntary, intentional violation of a known legal duty.” United States v. Pomponio, 429 U.S. 10, 12 , 97 S.Ct. 22, 23 , 50 L.Ed.2d 12 (1976); United States v. Bishop, 412 U.S. 346 , 93 S.Ct. 2008 , 36 L.Ed.2d 941 (1973). Therefore, and the Government does not disagree, the trial court erred in accepting and using the instruction that did not include the first element of the offense, “willfully.”

The Government argues that the reading of the indictment and the statute and two instructions on willfulness corrected the error. The jury instructions on “willfully” stated:

It is well established that “a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-47 , 94 S.Ct. 396, 400 , 38 L.Ed.2d 368 (1973), citing Boyd v. United States, 271 U.S. 104, 107 , 46 S.Ct. 442, 443 , 70 L.Ed. 857 (1926).

Defendant, however, relies upon United States v. Pope, 561 F.2d 663 (6th Cir. 1977) for the proposition that omission of an essential element cannot be cured. Pope was convicted of possessing a controlled substance with the intent to distribute, and he appealed. The Sixth Circuit held that failure to instruct that “intent to distribute” was an essential element of the crime constituted reversible error that was not cured by language in the instructions which stated that possession of a controlled substance must be with knowledge or consent. The trial court did define “intent” in general terms, but did not define “distribution” or “intent to distribute.”

561 F.2d at 671 .

In the instant case, the court correctly stated the law by reading the indictment and the statute and defining the term “willfully”, but incorrectly listed only three of the elements that would be necessary to be proven beyond a reasonable doubt in order to convict the defendant.

While it is true that jury instructions are to be considered as a whole, “they must also be considered in context and as part of the whole trial.” United States v. Elksnis, 528 F.2d 236, 238 (9th Cir. 1975).

In the instant case, the question of “willfulness” was the only element of the offense that Ms. Brooksby challenged. She asserted that she did not intend to do something the law forbids. She readily admitted the other elements.

Therefore, notwithstanding that the indictment, the statute and an instruction on “willfully” were read to the jury, the failure to instruct them that “willfulness” was an essential element of the crime prejudiced the defendant. The steps already mentioned that were taken by the district court did not cure the error. The conviction is reversed, the verdict is set aside and the case remanded for a new trial.