Admissibility
4 Page2
This is
the extent of the testimony upon which prejudicial error is predicated.
It clearly appears that the witness Schmidt, a layman unversed in
judicial rules of evidence inadvertently and innocently referred to an
arrest of appellant in attempting to fix the time of a certain event.
There is not the slightest intimation that the fact of appellant's prior
arrest was mentioned intentionally, maliciously, or at the prompting of
the prosecuting attorney. It was simply such an immaterial incident as
can and does sometimes occur during a trial. The incident is closely
analogous to one that occurred in the case of Means v. United States,
D. C., 65 Fed. (2d) 206, where a prosecution witness testified that
defendant had told her he had been in prison. The appellate court, in
holding the admission of this evidence was not error, said: "It is
plain that this statement was not brought into the evidence for the
purpose of reflecting upon appellant's reputation or character, but was
purely incidental to the testimony relating to the conversation between
the witness and appellant, which necessarily disclosed the fact that
appellant at one time had been an inmate in the Atlanta
Penitentiary." Appellant here, in seeking a reversal of this case,
relies on United States v. James, 2 Cir., 208 Fed. (2d) 124,
wherein the court held that the admission in evidence in the
government's case in chief of defendant's prior arrest was reversible
error. But in that case the testimony concerning defendant's prior
arrest came from the lips of a government narcotics officer, who, it may
be assumed, was more familiar with courtroom rules of evidence than was
witness Schmidt in the present case. Admittedly, this distinction is a
thin one, and to the extent that the holding in the James case
may be inconsistent with our decision herein, we do not apply it. Under
the circumstances disclosed in the record here, the admission into
evidence of the testimony concerning appellant's prior arrest did not
constitute prejudicial error.
[Attempts to Influence Witness]
Appellant next assigns
error on the failure of the trial court to sustain his motion for
judgment of acquittal on Count One in No. 15,214, the obstruction of
justice indictment. Appellant contends that the evidence of the
government was insufficient as a matter of law to prove that Schmidt
was, during the time alleged in Count One of the indictment, a
"witness" within the intendment of section 1503, 18 U. S. C.
A. Count One of the indictment charged, and the government's evidence
showed, that appellant's endeavors to influence Schmidt to destroy his
records pertaining to Labor Health Institute transactions were made
during the period of February 21-23, 1954. Schmidt testified that it was
almost a month later, on
March 18, 19
54
, that he first met the revenue agents who were conducting the
investigation of the Labor Health Institute. And it was almost a month
thereafter, on
April 14, 19
54
, that Schmidt was subpoenaed and testified before the grand jury.
Although the offense charged in Count One allegedly occurred on
February 21-23, 1954
, Schmidt testified: "I didn't even know on March 18 [1954] that I
was going to have to testify. I had never told anybody on March 18th
that I wanted to testify. I didn't tell anybody anything. I didn't
express any desire to testify on March 18th."
The question of who is a
"witness" within the scope and meaning of section 1503 has
been before this court. In Smith v.
United States
, 8 Cir., 274 Fed. 351, the person defendant was charged with
endeavoring to influence had testified in a case, was discharged and
returned home, and had been requested to return for further testimony at
the time defendant assaulted him. In disposing of the contention that
the person was not under subpoena, and hence was not a
"witness" within the meaning of the statute, this court said:
"The terms of the
statute, the evil it was enacted to prevent, and the protection it was
intended to provide, leave no doubt that under its true interpretation
each of those who are subpoenaed to come, of those who are called and
accept the call to come without subpoenas, of those who are prompted to
come by their interests, of those who expect to come, and of those who
are selected and expected to come to testify in any case in any court of
the United States, falls within the class described by the terms 'any
witness, in any court of the United States,' in the section under
consideration."
In
Walker
v.
United States
, 8 Cir., 93 Fed. (2d) 792, a case charging defendant with
endeavoring to influence the testimony of a co-defendant in a pending
action, this court held:
"It was not necessary to prove that she [the co-defendant] had been
subpoenaed. She was such a witness if she then intended to testify on
the trial of the case then pending in the District Court. Smith v.
United States
, 8 Cir., 274 Fed. 351, 353. There is no evidence that she so
intended. * * * She did not say she would testify. The government
investigator did not ask her to testify. * * * There is no evidence that
the government desired to use her as a witness, even if she should waive
her immunity."
The decision in
Walker
v.
U. S.
, supra, is controlling here. The government adduced no evidence to
show that on February 21-23, 1954, Schmidt intended, desired, or
expected to testify before the grand jury or that the government had or
would request him to testify. On the contrary, Schmidt testified that as
late as
March 18, 19
54
, he had no desire, intent, or expectation of testifying. On
February 21-23, 1954
, the only information Schmidt had concerning the grand jury
investigation, as we view the record, was what appellant had told him.
This is hardly sufficient to qualify him as a "witness" under
the statute.
The government urges that
the test is "whether or not the defendant has reasonable grounds to
believe that the witness will be called before the grand jury, and
whether the witness is so called." Such a test might be applicable
in determining whether there was the required knowledge or notice on the
part of the defendant to authorize a conviction under the statute. We
need not now so decide. But we are cited to no case, and have found
none, where such a test was used to determine whether a person was or
was not a "witness" as that term is used in section 1503. Odom
v.
United States
, 5 Cir., 116 Fed. (2d) 996, relied on and quoted in the government
brief, does not, in our opinion, so hold. The quotation from the Odom
case that: "The knowledge necessary is not absolute or direct
knowledge that Stansbury [the witness] had testified or would testify;
but information or a reasonably founded belief thereof is sufficient to
make the requisite scienter; he being in fact a witness," quite
obviously refers to the knowledge of the defendant, as evidenced by the
preceding sentence, "Touching the knowledge of the accused, and
their specific intent to deal with Stansbury as a witness, the question
is closer." The court had no difficulty in the Odom case in
determining that Stansbury was a witness as he had already testified in
a case and was intending to return for another scheduled hearing at the
time defendant assaulted him.
We conclude that the
government wholly failed to prove that Schmidt was, at the time alleged
in Count One of the indictment in No. 15,214, a "witness"
within the meaning of section 1503 and that appellant's motion for
judgment of acquittal on that count should have been granted. Since
appellant was placed on probation for five years on both counts in No.
15,214, our decision on this question becomes important in the event
that probation is revoked and appellant brought before the court for
sentencing. 18
U. S.
C. A., section 3653.
[Admission
of Grand Jury Testimony]
Appellant also assigns as
error the admission into evidence, for purposes of impeachment, of his
prior grand jury testimony wherein he refused to answer certain
questions on the grounds that such answers might tend to incriminate
him. The refusal to give appellant's requested instruction to the effect
that his failure to testify before the grand jury constituted no
evidence of his guilt is also urged as error. Although this court has
not had occasion to pass upon this precise question, courts which have
done so have uniformly held that the admission of such testimony is
proper. Viereck v.
U. S.
, D. C., 139 Fed. (2d) 847;
U. S.
v. Klinger, 2 Cir., 136 Fed. (2d) 677;
U. S.
v. Gottfried, 2 Cir., 165 Fed. (2d) 360;
U. S.
v.
Groves
, 2 Cir., 122 Fed. (2d) 87. Also, see and compare the following: Raffel
v. U. S., 271
U. S.
494 (evidence of defendant's failure to testify at first trial held
proper); U. S. v. Mortimer, 2 Cir., 118 Fed. (2d) 266 (evidence
of defendant's failure to appear before grand jury held proper); U.
S. v. Buckner, 2 Cir., 108 Fed. (2d) 921 (evidence of defendant's
refusal to testify before Securities and Exchange Commission held
proper); Tomlinson v. U. S., D. C., 93 Fed. (2d) 652
(prosecutor's comment upon defendant's failure to testify before grand
jury, and upon defendant's explanation thereof, held proper). The rule
of law to be drawn from all these cases is that where a defendant elects
to take the stand in his own behalf he thereby waives his privilege of
immunity and becomes subject to cross-examination and impeachment the
same as any other witness. We discern nothing unjust or unfair in this
rule. It must be held, therefore, that the admission into evidence of
appellant's grand jury testimony was not improper. It was also not error
to refuse the requested instruction since the court had made it clear
during the trial that the evidence was being admitted to contradict
appellant's position taken on the witness stand.
[Conditions
of Probation]
Appellant next contends
that the condition imposed in the order of probation in No. 15,214,
to-wit, "that during the term of probation the defendant shall not
directly or indirectly hold any office in or employment by any
organization of labor or any organization affiliated, or sponsored by, a
labor union or a labor organization. Such conditions shall not prevent
defendant from being a member of any labor organization," was
beyond the authority of the sentencing court and ought to be expunged.
It seems rather anomalous to us that a person should complain of such an
order of probation when it was within the lawful authority of the trial
court to have given a sentence of ten years imprisonment and $10,000
fine under the two counts of the indictment. 18
U. S.
C. A., section 1503. However that may be, appellant's argument that the
condition imposed in the order of probation constituted an unlawful
invasion of his right to earn a living is untenable. The trial court was
of the opinion that the rehabilitation of appellant would proceed more
effectively if he disassociated himself from all union organizational
and administrative activity during the period of probation. Under the
provisions of 18 U. S. C. A., section 3651, the trial court "* * *
may suspend the imposition or execution of sentence and place the
defendant on probation for such period [not exceeding five years] and
upon such terms and conditions as the court deems best." The
granting of probation and the terms and conditions thereof are matters
clearly discretionary with the sentencing court. No abuse of discretion
has been shown here.
Appellant's final
contention on this appeal is that the trial court erred in refusing to
instruct the jury, on the income tax evasion counts in No. 15,215, that
it could find appellant guilty of the lesser offense contained in
section 3616(a), 26 U. S. C. A. This point has been decided adversely to
appellant's contention by this court in Dillon v. United States,
8 Cir., 218 Fed. (2d) 97 [55-1 USTC ¶9131], and we make the same ruling
on the point in this case so that appellant's record thereon is
preserved.
The judgment and sentence
on Count One in No. 15,214 are vacated and the cause of action set forth
in that count is dismissed. Judgment and sentence on Count Two of No.
15,214 and Counts One, Two and Three in No. 15,215 are affirmed.
1
Although appellant was officially business manager only until September,
1952, he performed the same duties for the remainder of 1952 and during
1953.
[47-1
USTC ¶9171]
Fred
C.
Cave
, Appellant v.
United States of America
, Appellee
(CA-8),
United States Circuit Court of Appeals for the Eighth Circuit, No.
13381, 159 F2d 464,
February 17, 19
47, Cert. denied, 331 U. S. 847, 67 S. Ct. 1732
Appeal from the District Court of the United States for the Southern
District of Iowa.
Penalties: Filing of fraudulent return.--It is sufficient to
sustain a conviction under Sec. 145(b), where the indictment charged a
willful filing of a false and fraudulent return--not a mere failure to
file any return, to prove there was willfully reported income.
Penalties: When crime committed.--The crime of willfully
attempting to defeat or evade the tax was complete on January 15, when
taxpayer willfully and knowingly filed a false and fraudulent return
with intent to defeat or evade any part of the tax due, and not March
15, the due date of the tax, as contended by the taxpayer. Therefore,
count 4 of the indictment was not insufficient in alleging false and
fraudulent action on
January 15, 19
45
.
Penalties: Expert testimony.--It was not prejudicial error to
admit expert testimony on taxpayer's income tax liability where
taxpayer's admission supported the jury's finding that taxpayer
willfully attempted to defeat and evade his taxes by filing false and
fraudulent returns.
Penalties: Instructions to the jury.--A trial court's judgment
will not be reversed for failure to give definite and consistent
instructions, in the absence of a seasonable request or exception,
unless the failure to so instruct constitutes a basic and highly
prejudicial error. Affirming a decision of the District Court for the
Southern District of Iowa.
Walter F. Maley; Charles W.
Bowers on brief for appellant. Meyer Rothwacks, Special Assistant to
Attorney General; Sewall Key, Acting Assistant Attorney General, J.
Louis Monarch and John Lockley, Special Assistants to Attorney General,
Maurice F. Donegan, United States Attorney, and William R. Sheridan,
Assistant U. S. Attorney, on brief for appellee.
Before GARDNER, THOMAS and
JOHNSEN, Circuit Judges.
[The
Facts]
THOMAS, Circuit Judge,
delivered the opinion of the court.
The appellant was indicted
and tried upon an indictment in four counts charging separately attempts
to defeat and evade federal income taxes for the years 1941 to 1944
inclusive in violation of §145(b) of the Internal Revenue Code, 26 U.
S. C. A. §145(b). He was acquitted by the jury on counts one and two
involving income taxes for 1941 and 1942 and convicted and sentenced on
counts three and four relating respectively to the taxes for 1943 and
1944, and he appeals.
The several counts of the
indictment are identical in form except as to dates and amounts of
income and taxes. The third count charged
That on or about the 15th
day of March, 1944, * * * Fred C. Cave, * * * did wilfully, knowingly,
unlawfully and feloniously attempt to defeat and evade a large part of
the income tax due and owing by him to the United States of America for
the calendar year 1943
(1) by filing and causing
to be filed with the Collector of Internal Revenue * * * a false and
fraudulent income tax return wherein he stated that his income tax net
income for said calendar year was the sum of $8455.00; that his victory
tax net income for said calendar year was the sum of $8,800.00; that the
amount of income and victory tax due and owing thereon was the sum of
$1,933.58, whereas, as he then and there well knew, his income tax net
income for the said calendar year was the sum of $55,611.60, * * * upon
which said net income he owed to the United States of America an income
and Victory tax of $30,843.69; and
(2) by concealing and
attempting to conceal from the said Collector and any and all proper
officers of the United States the true and correct gross and net incomes
received by him during the said calendar year and the sources thereof: *
* *
The fourth count charged
that appellant attempted to defeat and evade his 1944 income tax by
filing his return therefor on
January 15, 19
45, stating that his net income for the year was $788.04 and that the
amount of tax thereon was $8.64, whereas he well knew that his net
income for 1944 was the sum of $69,959.52 upon which net income he owed
to the United States an income tax of $43,392.22.
In instruction 13 the court
withdrew from the consideration of the jury paragraph numbered (2) in
each count of the indictment, supra, and submitted only the means
by which appellant was charged to have attempted to defeat and evade his
income taxes as charged in paragraph numbered (1) in each count thereof.
Section 145 of the Internal
Revenue Code, 26
U. S.
C. A. §145, so far as pertinent, is set out in footnote. 1
[Taxpayer's
Contentions]
The appellant's contentions
on appeal are:
1. That the evidence does
not support a conviction under §145(b) of the statute because (a) the
indictment fails to charge and the proof fails to establish any willful
commission in addition to the willful omission to file a return or to
pay a tax, (b) the offense of evasion of an income tax under §145(b)
can not be committed prior to the day on which the taxpayer is required
to file his return.
2. That the court erred in
the admission of expert testimony; and
3. That the instructions,
although not excepted to at the time they were given, are so indefinite,
uncertain, contradictory, misleading, inconsistent and prejudicial as to
require reversal on review.
[Proof
Required under Sec. 145(b)]
The theory of appellant's
first contention is that the indictment as it read after the court in
instruction 13 withdrew paragraph (2) of each count from the
consideration of the jury attempted to charge a violation of §145(b)
for each year in question by filing, and causing to be filed, a false
and fraudulent income tax return; that this was an insufficient
allegation as a matter of law to charge an offense under §145(b)
because the indictment as it then stood charged no more than an offense
under §145(a), and would not support a judgment under §145(b). In
other words, appellant could not be convicted under §145(b) without
issue and proof of the commission of some act in addition to the
willful omission to file a return which appellant claims is
declared to be a misdemeanor only under §145(a).
To support his theory thus
outlined appellant relies upon the decision of the Supreme Court in Spies
v. United States, 317 U. S. 492 [43-1 USTC ¶9243]. In this case
Spies was convicted of attempting to defeat and evade income tax in
violation of §145(b) of the Act by failure to make a return and pay a
tax although he had sufficient income during the year in question to
place him under a statutory duty to do so. The Supreme Court reversed.
The Court observed that §145(a) makes, among other things, willful
failure to pay a tax or make a return by one having sufficient income a
misdemeanor, and that §145(b) makes a willful attempt in any manner to
evade or defeat any tax by a taxpayer a felony. The Court held that
while a felony may include lesser offenses in combination either with
each other or with other elements, Congress by the felony defined in §145(b)
meant more than the same derelictions defined in §145(a) as a
misdemeanor. The Court summarized the analysis of the statute as
follows:
Congress did not define or
limit the methods by which a willful attempt to defeat and evade might
be accomplished and perhaps did not define lest its effort to do so
result in some unexpected limitation. Nor would we by definition
constrict the scope of the Congressional provision that it may be
accomplished "in any manner." By way of illustration, and not
by way of limitation, we would think affirmative willful attempt may be
inferred from conduct such as keeping a double set of books, making
false entries or alterations, or false invoices or documents,
destruction of books or records, concealment of assets or covering up
sources of income, handling of one's affairs to avoid making the records
usual in transactions of the kind, and any conduct, the likely effect of
which would be to mislead or to conceal. If the tax-evasion motive plays
any part in such conduct the offense may be made out even though the
conduct may also serve other purposes such as concealment of other
crime.
It is apparent that the Spies
case does not support appellant's theory. The indictment in this case
after the withdrawal of paragraph (2) of each count from the
consideration of the jury did not attempt to charge a felony under §145(b)
by failure to file a return or pay a tax or by the omission or
commission of any other dereliction defined as a misdemeanor in §145(a).
It charged an attempt to defeat and evade the tax by the positive act of
willfully filing a false and fraudulent return--not a mere failure to
file any return. The indictment charged that for the year 1943 appellant
filed a return showing an income of $8,455 and a tax due of $1,933.58,
whereas he received an income in that year of $55,256.60 on which a tax
in the amount of $30,843.69 should have been paid; and for the year 1944
he disclosed an income of only $788.04 and a tax of $8.64, whereas his
income was $69,959.62 on which a tax in the sum of $43,392.22 should
have been paid.
The distinction between the
offenses defined in §145(a) and §145(b) is too clear to permit
confusion. Section 145(a) denounces as a misdemeanor (1) willful
failure to pay a tax; (2) willful failure to make a return;
(3) willful failure to keep records; or (4) willful failure
to supply information. Section 145(b), on the other hand, denounces as a
felony a willful attempt "in any manner" to evade or
defeat any tax. As said by the Supreme Court in the Spies
case, supra, "Congress did not define or limit the methods
by which a willful attempt to defeat and evade might be accomplished and
perhaps did not define lest its efforts to do so result in some
unexpected limitation."
That the evidence justified
a finding by the jury that appellant's income tax returns filed by him
for the years 1943 and 1944 were deliberately false and fraudulent is
not controverted. The record shows that appellant when his income was
under investigation furnished to the Internal Revenue agents data
concerning his income for the years in question showing an income tax
due from him for many thousands of dollars in excess of the amount shown
on the returns which he filed. The government was not required to prove
more than that there was willfully unreported income to sustain a
conviction under §145(b). United States v. Johnson, 319
U. S.
503, 517, 518 [43-1 USTC ¶9470]; United States v. Ragen, 314
U. S.
513 [42-1 USTC ¶9186]; United States v.
Troy
, 293
U. S.
58 [35-1 USTC ¶9002]; Gleckman v. United States, 8 Cir., 80 Fed.
(2d) 394, 399 [35-2 USTC ¶9645], cert. den., 297
U. S.
709; Cooper v.
United States
, 8 Cir., 9 Fed. (2d) 216 [1 USTC ¶149]; Murray v. United
States, 8 Cir., 117 Fed. (2d) 40 [41-1 USTC ¶9247].
[When
Crime Committed]
Appellant further contends
that count 4 of the indictment is insufficient to sustain a conviction.
Count 4 alleges that appellant willfully attempted to defeat and evade a
large part of his 1944 income tax by filing and causing to be filed a
false and fraudulent return for that year on
the 15th of January, 1945
. Appellant argues that since the tax was not due until
March 15, 19
45
, there could be no criminal attempt to defeat or evade it prior to that
time, unless the government proved that it had not been paid up to and
including the time the indictment was returned.
The argument is fallacious.
A taxpayer whose returns are made on the basis of the calendar year may
file his return with the collector "on or before the 15th day of
March following the close of the calendar year", §53(1) Internal
Revenue Code, 26 U.S.C.A. §53(1); and the tax "shall be paid on
the 15th day of March following the close of the calendar year", §56(a);
and it "may be paid . . . prior to the date prescribed for its
payment", §56(d). The crime denounced by §145(b) of willfully
attempting to defeat or evade the tax is complete when the taxpayer
willfully and knowingly files a false and fraudulent return with intent
to defeat or evade any part of the tax due the
United States
. Guzik v.
United States
, 7 Cir., 54 Fed. (2d) 618, 619 [1931 CCH ¶9681], cert. den., 285
U. S.
545; Bowles v.
United States
, 4 Cir., 73 Fed. (2d) 772, 774 [1934 CCH ¶9546].
[Expert
Testimony]
Appellant next contends
that the court erred in admitting in evidence the testimony of
government witnesses Paul J. Powers and George J. Zimmerman, called as
expert witnesses to compute the income taxes of appellant for the years
involved. Both witnesses are Internal Revenue agents of several years'
experience. Powers had audited appellant's income tax returns and had
participated in the investigation of his income for the years in
question.
During the years here
involved the appellant's income was derived principally from the
operation of slot machines in Moose Lodge Club rooms in five
Iowa
cities and from the operation of a farm. He kept no books. Discovery of
his income required the checking of the books of the Moose Lodges where
his slot machines were operated, investigation of his farm and other
operations. The deductions allowed him for expenses consisted in large
part of his own estimates. The books of the lodges and of their auditors
and his bank accounts were introduced in evidence.
While an investigation of
appellant's tax returns by the government was in progress appellant and
the tax lawyer employed by him attended a conference with a
representative of the Intelligence Unit of the Bureau of Internal
Revenue. Thereafter, under date of
May 15, 19
45
, the tax lawyer filed with the Special Agent in charge of the
investigation a Statement, verified by appellant, which was introduced
in evidence without objection. The data disclosed in the statement,
identified as Exhibit 35, will sometimes be referred to hereinafter as
"admissions" by appellant. The exhibits consisting of copies
of the account books of the Moose Lodges, bank accounts, and the like,
together with appellant's admissions, showing in large part the income
of appellant for the taxable years in question were numbered from 1 to
44 inclusive.
Appellant's criticism of
the testimony of Powers and Zimmerman is that in computing his tax
liability for the years in question the witnesses took into
consideration some items of income not disclosed in the exhibits in
evidence. The exact amount of these items is not shown by cross
examination or otherwise. But both witnesses testified that their
calculations were based substantially on exhibits 1 to 44. Their
computations show, also, that the witnesses allowed deductions
substantially in excess of those claimed by appellant in his statement,
exhibit 35. Appellant did not testify, and introduced no testimony. The
witness Zimmerman in response to an hypothetical question based upon
appellant's admissions in exhibit 35 computed his tax liability for both
years for which he was convicted. We summarize the computations of the
two expert witnesses as follows:
Powers Zimmerman Admissions
1943
Gross income ..... $60,241.60 $60,061.60 $54,314.35
Deductions ....... 4,985.00 4,958.00 4,960.00
Net income ....... $65,256.60 $55,103.60 $49,354.35
Tax liability .... $30,843.69 $30,705.73 $26,379.48
1944
Gross income ..... $93,309.06 $92,987.52 $90,092.30
Deductions ....... 23,349.44 24,870.44 19,954.44
Net income ....... $69,959.62 $68,117.08 $70,137.86
Tax liability .... $43,392.22 $43,131.84 $43,536.50
A comparison of these
computations discloses that the tax computed by both witnesses for the
year 1944 was less than the tax computed by appellant's admissions.
The criticism of the expert
testimony is without merit. No exception was saved to the clear and
correct instruction of the court on the weight to be accorded the expert
testimony. In United States v. Johnson, 319 U. S. 503, 519 [43-1
USTC ¶9470], the Supreme Court held that the admission of testimony of
an expert witness regarding income and expenditures of one accused of
violating §145(b), consisting of computations based upon substantially
the entire evidence in the record, was not error, where all the issues,
as in tihs case, are left to the independent determination of the jury.
Further, the amount of the
tax which it was charged the appellant attempted to defeat and evade was
not of the gist of the offense, and the court so instructed in
substance. Gleckman v.
United States
, 8 Cir., 80 Fed. (2d) 394, 401 [35-2 USTC ¶9645]. It is not
necessary that the government prove an evasion of all the tax charged. Tinkoff
v.
United States
, 7 Cir., 86 Fed. (2d) 868, 878 [37-1 USTC ¶9057]; United States
v. Ragen, 314
U. S.
513, 526 [42-1 USTC ¶9186]; Rose v.
United States
, 10 Cir., 128 Fed. (2d) 622 [42-2 USTC ¶9500]; Wiggins v.
United States, 9 Cir., 64 Fed. (2d) 950 [1933 CCH ¶9299]; United
States v. Miro, 2 Cir., 60 Fed. (2d) 58 [1932 CCH ¶9396]. The
appellant was in no way prejudiced by the admission of the expert
testimony. The admitted excess of his income and of the tax due the
government over the amounts set out in his returns would support the
jury's finding that he willfully attempted to defeat and evade his taxes
by filing false and fraudulent returns. This is especially true when it
is remembered that although he did not keep books he knew that he had a
much larger income than he reported for tax purposes and that even
though he had forgotten the exact amount of his receipts means were
easily available to him to find out from the Moose Lodges the amounts
paid to him during the year as rental on his slot machines. In any event
the question was for the jury to determine.
[Instructions
of the Jury]
Finally, the appellant
complains that instructions 10, 11, 13, and 14 were so indefinite,
inconsistent and prejudicial as to require reversal, although no
exceptions were taken at the trial.
As indicated in the
assignment of error no exceptions to these instructions were saved by
appellant. Rule 30 of the Rules of Criminal Procedure, effective
March 21, 19
46, provides that "No party may assign as error any portion of the
charge or omission therefrom unless he objects thereto before the jury
retires to consider its verdict, stating distinctly the matter to which
he objects and the grounds of his objection." Notwithstanding this
rule, in criminal cases involving life or liberty of a defendant an
appellate court may notice plain and seriously prejudicial error in the
trial even though not assigned as error. Harper v.
United States
, 8 Cir., 143 Fed. (2d) 795, 803. Rarely, however, will a trial
court's judgment be reversed for failure to give instructions in the
absence of a seasonable request or exception, Yoffe v. United States,
1 Cir., 153 Fed. (2d) 570, 576 [46-1 USTC ¶9171]; Stassi v. United
States, 8 Cir., 50 Fed. (2d) 526, and then only if the failure to
instruct constitutes a basic and highly prejudicial error. Joyce v.
United States
, 8 Cir., 153 Fed. (2d) 364.
In the instant case we find
no prejudicial error in the instructions such as to require reversal or
extended consideration. Instructions 10 and 11 related to counts 3 and 4
of the indictment and charged the jury that the burden rested upon the
government to establish beyond a reasonable doubt the material
allegations of the indictment, enumerating them. These instructions are
correct. Gleckman v.
United States
, 8 Cir., 80 Fed. (2d) 394 [35-2 USTC ¶9645]; United States v.
Schenck, 2 Cir., 126 Fed. (2d) 702 [42-1 USTC ¶9363]; Guzik v.
United States, 7 Cir., 54 Fed. (2d) 618 [1931 CCH ¶9681].
Instruction 13 withdrew
paragraph (2) of each count of the indictment and as to the manner of
evading and defeating the tax submitted the case on paragraph (1)
thereof. Appellant again contends that by so doing the court submitted
only the question of violation of §145(a). We have discussed and
disposed of this criticism supra, in connection with the
discussion of appellant's first contention.
As to instruction 14,
appellant says the trial court therein advised the trial jury that
something more must be proven than had been submitted by it in
instructions 10 and 11. This contention arises from a misapprehension of
the meaning and application of the instruction and a failure to consider
the instructions as a whole. The instruction merely explains the measure
and quality of proof necessary to establish willfullness of the
appellant as that term is defined in instruction 7. It adds nothing to
the burden imposed upon the government in instructions 10 and 11. Even
if it did augment the burden resting upon the government in the trial of
the issues it is difficult to understand how the appellant was
prejudiced thereby. The proof in any event abundantly supports the
verdict of the jury.
For the foregoing reasons
the judgment appealed from is affirmed.
1
§145(a). Failure to file returns, submit information, or pay tax.
Any person required under this chapter to pay any estimated tax or tax,
or required by law or regulations made under authority thereof to make a
return or declaration, keep any records, or supply any information, for
the
