Ignorance of
Law
7203: Willful Failure to File Return,
Supply Information, or Pay Tax: Defenses: Ignorance of Law
[85-2 USTC ¶9838]
United States of America
, Plaintiff-Appellee v. Edward J. Callery, Defendant-Appellant
(CA-9),
U.S. Court of Appeals, 9th Circuit, No. 84-1200, 774 F2d 1456, 10/29/85
[Code Sec. 7203]
Crimes: Failure to file returns: Intent: Privilege against
self-incrimination.--A real estate salesman who told a Special Agent
that he discontinued filing tax returns because he did not have
sufficient funds was properly convicted of failing to file. There was
sufficient evidence of a wrongful intent to avoid a known legal duty,
the taxpayer's alleged "good faith misunderstanding of the
law" defenses were neither reasonable nor based upon a good faith
misunderstanding, and the privilege against self-incrimination did not
excuse his complete failure to file.
Lawrence N.
Bazrod,
Phoenix
,
Ariz.
, for defendant-appellant. Ruth L. Cohen, Assistant United States
Attorney,
Las Vegas
,
Nev.
89101
, for plaintiff-appellee.
Before:
ANDERSON, BEEZER, and BRUNETTI, Circuit Judges.
ANDERSON,
Circuit Judge:
I.
THE FACTS
Edward Callery
appeals his conviction of two counts of failure to file income tax
returns in violation of 26 U.S.C. §7203. Callery claims that (1) there
was insufficient evidence of willfulness, generally, to convict him of
willful failure to file a tax return pursuant to 26 U.S.C. §7203; and
(2) his good faith misunderstanding of the law negates the element of
willfulness necessary for a conviction under 26 U.S.C. §7203; and (3)
he validly exercised his Faith Amendment privilege against
self-incrimination, thereby barring his prosecution under 26 U.S.C. §7203.
The facts,
based upon a stipulation of trial evidence entered into between the
government and Callery, are as follows:
From 1946 to
1960, Callery was married, and for each of those years he filed a joint
return with his wife. The service center having jurisdiction over
Callery has no records to indicate whether he filed or did not file any
returns for the years from 1960 to 1965. From 1965 through and including
1978, the service center records showed no returns were filed by Callery
for those years.
In 1976,
Callery, as a real estate salesman, earned commissions totaling
$30,579.00. In 1977, he earned commissions totaling $42,889.00. The
Internal Revenue Service computed Callery's taxable income for 1976 as
$29,837.00, and for 1977 as $28,872.00.
On
August 2, 1979
, Callery appeared with an attorney at a local office of the Internal
Revenue Service. At that time he was questioned by Special Agent Fields.
Callery, in reference to numerous questions on his filing history,
refused to answer based on the Fifth Amendment. Callery did reply that
"I just financially wasn't able to pay [file]," when asked by
Agent Fields why he did not file for the years 1975, 1976, 1977, and
1978. Also, Callery said "[t]wo of those years I made enough money,
but I was far in the hole from previous years, I wasn't able to pay, so
I didn't file."
Callery, if
called to testify, would have stated that he believed that if he filed
income tax returns, he would be alerting the IRS to his past conduct. He
believed by revealing this to the IRS he would be criminally prosecuted.
Therefore, he refused to file returns for 1976 and 1977 and asserted his
Fifth Amendment right not to incriminate himself for past crimes. He
believed that the Fifth Amendment shielded him from prosection for
failing to file tax returns.
The district
court entered judgment against Callery finding him guilty on both
counts. We affirm.
II
ANALYSIS
A. Sufficiency
of Evidence of Willfulness
The first
question we address is whether there was sufficient evidence of
willfulness to uphold Callery's conviction for willful failure to file a
tax return pursuant to 26 U.S.C. §7203. The standard of review, where a
defendant claims his conviction was based upon insufficient evidence, is
that evidence is sufficient if, viewed in the light most favorable to
the government, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
United States
v. Terry, 760 F.2d 939, 941 (9th Cir. 1985).
We have little
difficulty concluding that hte government proved beyond a reasonable
doubt that Callery acted willfully. Willfulness requires a showing of a
specific wrongful intent to avoid a known legal duty. United States
v. Pomponio, 429
U.S.
10, 12 (1976), United States v. Conforte [80-1 USTC ¶9417], 624
F.2d 869, 875 (9th Cir.), cert. denied, 449
U.S.
1012 (1980). The stipulated evidence demonstrated that Callery had filed
joint returns from 1946 to 1960, thus indicating an awareness of his
legal obligation to file. United States v. Buras [81-1 USTC ¶9126],
633 F.2d 1356, 1359 (9th Cir. 1980). Failing to file returns for the two
years in question was, therefore, an attempt by Callery to avoid a legal
duty, of which he was aware. We find that Callery acted willfully.
B. Good Faith
Misunderstanding of the Law
The next
question we address is whether Callery's claimed good faith
misunderstanding of the law negates the element of willfulness. A
failure to file an income tax return does not violate 26 U.S.C. §7203
if the failure resulted from a good faith misunderstanding of the law. Buras,
633 F.2d at 1359. Callery contends that he had two separate
misunderstandings regarding the law: (1) That if a taxpayer does not
have sufficient funds to pay his taxes, he is not required to file the
tax returns, and (2) that the Fifth Amendment permitted him to stop
filing his income tax returns. These misunderstandings of the law,
however, must be in good faith.
We will
address Callery's first misunderstanding of the law--that if a taxpayer
doesn't have sufficient funds to pay his taxes, he doesn't have to file
a tax return. 1
As evidence of this misunderstanding, Callery points to his statements
"I just financially wasn't able to [file]" and
"[t]wo of those years I made enough money, but I was far in the
hole from previous years, I wasn't able to pay, so I didn't
file." (emphasis added). While these statements may evidence
insufficient funds to pay his taxes, they do not indicate a belief by
Callery that insufficient funds relieve a taxpayer of his duty to file a
tax return. In fact, these statements indicate that he failed to file
because he couldn't afford to do so, not because he believed,
however, erroneously, that he didn't have to do so. Based on this
plain reading of the stipulated evidence, the district court was
entitled to find that there was no good faith misunderstanding of
the law by Callery.
Callery's
other misunderstanding of the law--that the Fifth Amendment permitted
him to stop filing his tax returns 2--is
equally unpersuasive. The general rule is quite clear. The privilege
against self-incrimination cannot excuse complete failure to file an
income tax return. United States v. Sullivan [1 USTC ¶236], 274
U.S. 259, 263-64 (1927); Garner v. United States [76-1 USTC ¶9301],
424 U.S. 648 (1976); United States v. Wolters [81-2 USTC ¶9679],
656 F.2d 523, 524 (9th Cir. 1981); United States v. Neff [80-1
USTC ¶9397], 615 F.2d 1235, 1238 (9th Cir.), cert. denied, 447
U.S. 925 (1980). However, as Callery argues, even an invalidly asserted
claim of the Fifth Amendment privilege may negate the element of
willfulness necessary for a conviction under 26 U.S.C. §7203, if
asserted in good faith. The Supreme Court, in Garner, stated;
"Because ¶7203 proscribes 'willful' failures to make returns, a
taxpayer is not at peril for every erroneous claim of privilege. The
Government recognizes that a defendant could not properly be convicted
for an erroneous claim of privilege asserted in good faith."
424
U.S.
at 663 n.18 (emphasis added). This court has held that ". . . a
defendant's assertion of even an invalid Fifth Amendment claim in 'good
faith' would defeat the section 7203 requirement that a failure to
file income tax returns be 'willful.' Someone who thinks he is complying
with the law cannot be said to be 'willfully' violating it." United
States v. Carlson [80-1 USTC ¶9299], 617 F.2d 518, 523 (9th Cir.), cert.
denied, 449
U.S.
1010 (1980) (emphasis added). Therefore, the question is whether Callery
made this claim in good faith. The district court rejected the evidence
of this good faith defense for two reasons. "First, the evidence
also includes the dialogue between defendant [Callery] and Agent Fields
on
August 2, 1979
. When asked directly why he didn't file for the years in question, he
did not mention the privilege--to which he did refer elsewhere in the
conversation--but simply said he didn't have the money. Second, a belief
that a privilege protecting failure to file under these circumstances
could not have been reasonable." (Except of Record at 44-45).
The district
court's determination as to good faith was a finding of fact that may
not be set aside unless clearly erroneous.
United States
v. McConney, 728 F.2d 1195, 1203 (9th Cir.) (en banc), cert.
denied, 105 S.Ct. 101 (1984). We cannot say that the district
court's conclusion that Callery failed to assert the privilege in good
faith was clearly erroneous.
C. Valid
Assertion of Fifth Amendment Privilege
The final
issue we address is whether Callery validly exercised his Fifth
Amendment privilege against self-incrimination, thereby barring his
prosecution under 26 U.S.C. §7203. As we stated above, the general rule
is that this privilege cannot excuse complete failure to file a tax
return. Sullivan, 274
U.S.
at 263-64. There is an exception to this rule. It involves the special
"gambling tax" returns examined in Marchetti v. United
States [68-1 USTC ¶15,800], 390 U.S. 39 (1968), and Grosso v.
United States, 390 U.S. 62 (1968). The concept underlying those
decisions was that disclosures made on those returns tended to
incriminate because of the pervasive criminal regulation of gambling
activities. Also, this court has held that the Sullivan rule is
capable of modification by reason of "peculiar circumstances"
relative to incrimination. Wolters, 656 F.2d at 525.
Obviously,
this case has nothing to do with the gambler tax and we do not accept
Callery's invitation to extend that exception to this case by analogy.
Moreover, we do not find that this case involves any peculiar
circumstances relative to incrimination. The requirement of filing an
annual income tax return is primarily designed to facilitate revenue
collection, not criminal prosecution, and, for such reason, failure to
file any return at all has never been protected by a taxpayer's
privilege against self-incrimination. Carlson, 617 F.2d at 523.
Therefore, the Sullivan rule applies to this case and Callery may
not use the Fifth Amendment privilege against self-incrimination to
excuse his complete failure to file a tax return.
AFFIRMED.
1
The government contends that this issue is raised for the first time on
appeal and therefore should not be reviewed by this court. While it is
true that the district court did not address this issue directly, we
nonetheless exercise our discretion and will review the issue. In re
Howell, 731 F.2d 624, 627 (9th Cir.), cert. denied, 105 S.Ct.
330 (1984).
2
Callery's use of this defense is further evidence of the lack of a good
faith misunderstanding of the law in his first defense. The two are
mutually exclusive. If Callery, in good faith, believed that he didn't
have to file a return if he didn't have sufficient funds, then he
couldn't, at the same time, have believed that Fifth Amendment
protection against self-incrimination was necessary.
[81-2 USTC ¶9712]
United States of America
, Plaintiff-Appellee v. Augustine A. Gallo, Defendant-Appellent
(CA-9),
U. S. Court of Appeals, 9th Circuit, No. 80-1775, 659 F2d 110, 10/13/81,
Affirming an unreported District Court decision
[U. S. Constitution and Code Secs. 7201 and 7203]
Criminal penalties: Gambling activities: Tax evasion: Search and
seizure: Willfulness.--A bookmaker's conviction of wagering excise
tax evasion and of the failure to file a return stemming from illegal
gambling activities was affirmed. The lengthy master affidavit more than
adequately established probable cause that the defendant was engaged in
criminal activity, i. e., taking illegal bets. The IRS agents' answering
of telephone calls from bettors while in the defendant's office pursuant
to a search warrant did not violate his constitutional rights. The calls
were a part of the bookmaking operation and within the scope of the
general language of the warrant. Also, evidence that the defendant was
paid in cash and that his records were either inadequate or misleading
contradicted contentions that he was ignorant of the law.
Before GOODWIN
and NELSON, Circuit Judges, and PRICE *,
District Judge.
Rimantas A.
Rukstele, Leland E. Lufty, Assistant United States Attorneys, Las Vegas,
Nev. 89101, for plaintiff-appellee. William B. Terry, Goodman, Oshins,
Brown & Singer, 520 South 4th St., Las Vegas, Nev., for
defendant-appellant.
PRICE,
District Judge:
The
Defendant/Appellant Gallo was convicted of four counts of attempting to
evade or defeat wagering excise taxes (26
U. S.
C. §7201), and one count of failure of file return and pay wagering
occupational tax (26
U. S.
C. §7203).
Defendant
became the object of an intensive investigation by the Criminal
Investigation Division of the Internal Revenue Service (IRS) in October,
1978. Although he was not duly licensed as such in the State of
Nevada
, Gallo was suspected of bookmaking and failing to comply with the
Federal registration requirements and to pay the taxes imposed upon such
activity by the
United States
government. 1
Investigation
of Gallo commenced on approximately
October 1, 1978
, and continued through the early part of December, 1978. Investigation
not only consisted of personal surveillance of Gallo by various agents
of the IRS, but also undercover agents were utilized to make direct
contact with Gallo and to actually place bets with Gallo. Further, a
search of IRS records failed to indicate that Gallo had ever filed a
formal Form 11-C (Special Tax Return and Application for Registry-Wager)
for the period
July 1, 1977
to
December 8, 1978
.
At the
conclusion of the investigation, a search warrant was sought based upon
a master affidavit recounting the investigatory activities in great
detail. The master affidavit consists of forty-one (41) legal size
pages. The search warrant was issued pursuant to this master affidavit
and was executed on
December 18, 1978
.
As a result of
the search pursuant to the search warrant, substantial quantities of
evidence indicating defendant's bookmaking activities were seized. In
addition, the searching agents answered the telephone situated in the
bookmaking office being searched approximately twelve (12) times during
the course of their activities. On a substantial number of these
occasions, the caller was a bettor desiring to place a bet with Gallo.
Prior to his
indictment, Gallo filed a motion in district court for the return of his
property seized during the raid. His motion was denied by minute order.
After his
indictment and arrest, the motion was renewed in the form of a motion to
suppress evidence. On this occasion, Gallo also attacked the evidence
produced by the agents answering the telephone during the raid. Again
the matter was decided adversely to Gallo. The district court filed a
memorandum decision and order.
At his trial,
where all of the evidence to which he had previously objected was
introduced, Gallo admitted his bookmaking activities but claimed
ignorance of the law. He was convicted of four counts of attempting to
evade or defeat wagering excise tax, and one count of failure to file
return and pay wagering occupational tax. He appeals that conviction.
Gallo raises
three issues on appeal:
I.
Whether the master affidavit established probable cause to believe the
defendant was involved in criminal activity;
II.
Whether the agents' interception of telephone calls during the search
pursuant to the search warrant violated Gallo's constitutional rights;
and
III.
Whether the government sustained its burden of proof as to the issue of
willfulness.
I
Whether the Master Affidavit Established Probable Cause to Believe
Defendant was Involved in Criminal Activity.
Gallo's main
argument in his attack upon the sufficiency of the affidavit is that
nowhere is it alleged that he charged or received "vigorish"
or "juice" on the bets he accepted.
Vigorish: 1. A
charge taken (as by a bookie or gambling house) on bets; also: te degree
of such a charge.
Webster's
New Collegiate Dictionary (1973).
Gallo expands
this argument to assert quite properly that the activity proscribed by
the statute does not encompass taking bets "among friends,"
and is only aimed at the commercial bookmaker. See George v.
United States
, 346 F. 2d 137 (9th Cir. 1965).
Gallo's
contentions are correct as to what constitute the elements of the crime
of bookmaking, but overlooks the issue with which we concern ourselves, i.
e., did the affidavit show probable cause to believe that criminal
activity by Gallo was being carried on by him in the premises described
in the search warrant.
One only need
compare the affidavit found in Spinelli v. United States, 393 U.
S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) 3
with the instant master affidavit to recognize immediately that the
affidavit in the instant case more than adequately establishes probable
cause to believe that federal criminal activity is being engaged in by
the person or persons against whom the sought after search warrant is
directed.
The search
warrant in the instant case was issued by the magistrate after being
presented with a "master" affidavit consisting of forty-one
(41) legal size pages which set forth in great detail the following
facts:
1.
The extensive prior experience of the case agent directing the
investigation;
2.
The mode of operations normally engaged in by bookmakers;
3.
The "language" of the professional bookmaker;
4.
The prior experience and reliability of the undercover agent used in the
investigation;
5.
The observations of the undercover agent which consisted of:
(a)
The defendant paying several individuals in cash;
(b)
The defendant personally clearing a customer who had telephoned the
betting parlor;
(c)
The defendant instructing callers as to where the caller might pick up
his money;
(d)
The defendant accepting payoff after consulting his records;
(e)
The defendant delivering the betting "line" to several persons
who requested it;
(f)
The bartenders at Sal Gusso's Bar (a place which the defendant
habitually used for his contacts with customers) attempting to place
bets and accepting money for delivery to the defendant;
(g)
The defendant's acceptance of bets from the undercover agent and the
defendant's instructions as to how to place future bets by telephone,
including the number to use;
(h)
The undercover agent's placing of bets with persons who answered the
telephone when the undercover agent placed calls to the numbers
furnished to him by the defendant;
(i)
The defendant obtaining sports line information from the board at legal
betting parlors.
Clearly, the
Magistrate had probable cause to issue the search warrant in question.
See United States v. Besase, 521 F. 2d 1306 (6th Cir. 1975); United
States v. McNally [73-1 USTC ¶9322], 473 F. 2d 934 (3rd Cir. 1973);
United States v. Berry, 463 F. 2d 1278 (D. C. Cir. 1972).
II
Whether the Agents' Interception of Telehone Calls During the Search
Pursuant to the Search Warrant Violated Gallo's Constitutional Rights.
As previously
indicated, the searching agents answered the telephone on numerous
occasions during the search. In many instances the caller was a
prospective bettor who desired to place a bet with the defendant's
"book."
Gallo argues
that the search warrant did not authorize this particular seizure, and
that in order to answer the phone that matter should have been included
within the description of the items to be "seized" pursuant to
the search warrant.
The government
argues that this argument is mooted because Gallo's counsel in his
opening statement admitted that he was a bookmaker.
Gallo counters
with the claim that this decision re trial tactics was dictated by the
failure of the court to suppress the evidence seized pursuant to the
search warrant, including the telephone conversation.
Gallo's
contention that the search warrant did not authorize "seizure"
of incoming telephone calls was answered in United States v. Fuller,
441 F. 2d 755 (4th Cir. 1971) cert. denied, 404 U. S. 830, 92 S.
Ct. 73, 30 L. Ed. 2d 59 (1971). At page 760, the Fuller court
stated:
In this case,
the warrant authorized searching for and seizing "bookmaking
records and wagering paraphernalia consisting of, but not limited to
accounting sheets, rundown sheets, betting slips, recap sheets, sports
information papers, miscellaneous line notations, line sheets, books of
account, checks, money orders, and United States Currency * * *."
The description is necessarily general and clearly contemplates that
material relating to gambling activity but not precisely described might
be seized. The intent to the generalized description is clearly to
permit the seizure of any items directly related to the appellants'
booking operation. The telephone calls answered by the agents were
clearly a part of appellants' booking operation and, therefore, we think
within the scope of the general language of the warrant.
In United
States v. Beusch, 596 F. 2d 871, 877 (9th Cir. 1979), it appeared
that during the execution of the search warrant the agents seized
certain ledgers which contained records properly described in the
warrant as being the object of the search. The ledgers also contained
other incriminating evidence not described in the search warrant.
Defendants objected to the seizure of the material that was not
specifically described. The Ninth Circuit panel dismissed the
defendant's objections, stating:
As long as an
item appears, at the time of the search, to contain evidence reasonably
related to the purposes of the search, there is no reason--absent some
other Fourth Amendment violation--to suppress it. Warden v. Hayden,
387
U. S.
294, 307, 87
S. Ct.
1642 [1650], 18 L. Ed. 2d 782 (1967). The fact that an item seized
happens to contain other incriminating information not covered by the
terms of the warrant does not compel its suppression, either in whole or
in part.
Admittedly, an
incoming telephone call cannot "appear" to contain relevant
evidence until it is received. However, logic compels the conclusion
that the telephone is a highly necessary accessory to the business of
bookmaking. Incoming telephone calls were the source of many of the
betting slips described in the warrant, as well as the other records of
betting transactions.
We now
consider whether the "seizure" of the telephone calls
constituted "other Fourth Amendment violations."
The prior
authority of the circuit on the legality of intercepting telephone calls
is Seeber v. United States, 329 F. 2d 572 (9th Cir. 1964). Seeber,
of course, was decided prior to Title III of the Omnibus Crime Control
and Safe Streets Act of 1968, Title 18, U. S. C. §§ 2510-2520. Because
of this, Gallo argues that its precedential value is destroyed, and this
circuit should re-examine the holding in Seeber that a law
enforcement officer who answers a ringing telephone while lawfully on
the premises did not lawfully "intercept" the message under
the then existing law.
In United
States v. Campagnuolo, 592 F. 2d 852 (5th Cir. 1979), a panel of the
Fifth Circuit considered this precise point at length. There the agents
were on the premises pursuant to a search warrant, reconnected a
previously disconnected telephone and proceeded to answer
forty-two (42) calls. The trial judge below had specifically held that
such conduct violated Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, and excluded the evidence on that and other
grounds.
The Court of
Appeals carefully reviewed all of the existing federal and state
authority on the subject, including cases that predated the aforesaid
Title III. The Campagnuolo court clearly held, and we agree, that
Congress intended to reaffirm the result of prior cases making
admissible communications to which a police officer is a part. Hence, we
reject Gallo's contentions in this regard; there being neither an
unlawful "seizure" of the telephone calls nor other Fourth
Amendment violations.
Since the
evidence which was obtained from the intercepted telephone calls was
properly before the jury, we need not further consider Gallo's complaint
that but for that particular evidence, he would have not conceded at
trial that he was engaged in bookmaking. It should be noted that there
was considerable other evidence of the nature of Gallo's activities
which would have supported the jury's verdict.
III
Whether the Government Sustained Its Burden of Proof As to the Issue
of Willfulness.
We analyze
defendant's last contention in the light of Spies v. United States
[43-1 USTC ¶9243], 317
U. S.
492, 63 S. Ct. 364, 87 L. Ed. 418 (1942). Spies, supra,
illustrates various types of evidence that might support a finding of
willfulness in the context of the Internal Revenue statutes which
require voluntary filing of income tax returns, and the payment of any
tas due thereon. In Spies, the court observed:
Congress
did not define or limit the methods of 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 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.
In
this case there are several items of evidence, apart from the default in
filing the return and paying the tax, which the Government claims will
support an inference of willful attempt to avade or defeat the tax.
These go to establish that petitioner insisted that certain income be
paid to him in cash, transferred it to his own bank by armored car,
deposited it, not in his own name but in the names of others of his
family, and kept inadequate and misleading records. Petitioner claims
other motives animated him in these matters. We intimate no opinion.
Such inferences are for the jury.
Spies
v. United States [43-1 USTC ¶9243],
317
U. S.
499, 500, 63 S. Ct. 364, 368, 87 L. Ed. 418, 423 (1942).
We transpose
that analysis to the instant case. In doing so, we note the evidence
established that:
1.
Gallo is engaged in illegal activity in the State of
Nevada
.
2.
All records that Gallo did keep were kept in code.
3.
In the short period of time involved in the surveillance, Gallo operated
out of three different locations.
4.
Gallo listed the telephones in question under a fictitious name.
5.
Within the relatively short time in question, Gallo moved the phones
from one location to another.
6.
Unlike legitimate, licensed bookmakers in the
Las Vegas
area, Gallo did not give his customers receipts for bets placed with
him.
7.
Gallo not only kept his own records in code, he required his customers
when calling in their bets to use codes for both their names and
numbers.
8.
Callo operated only on a cash basis.
In summary,
Gallo's operation was practically a text book model of how a
surreptitious bookmaking operation should be conducted.
Accordingly,
we affirm the defendant's conviction.
*
Honorable Edward Dean Price, United States District Judge for the
Eastern District of California, sitting by designation.
1
Although bookmaking is legal in the State of
Nevada
, the state imposes a registration requirement. It was ascertained at
the beginning of the investigation that Gallo had not registered as a
bookmaker in the State of
Nevada
. See
Nevada
Revised Statutes, §463.160(1)(c).
2
In Spinelli, the affidavit in support of the search warrant was
found to be insufficient. It consisted of seventeen (17) paragraphs,
which described a surveillance that lasted ten (10) days. It also
contained a "tip" from an alleged confidential informant that
Spinelli, allegedly a known bookmaker, was engaged in bookmaking at the
location which Spinelli was observed entering on several occasions.
Unlike the instant case, it did not concern a single incident wherein
Spinelli was actually observed or overheard plying his illegal trade.
The deficiencies of the Spinelli affidavit were characterized by
the court thusly:
When we look
to the other parts of the application, however, we find nothing alleged
which would permit the suspicions engendered by the informant's report
to ripen into a judgment that a crime was probably being committed.
United States
v. Spinelli, 393
U. S.
410, 418, 89
S. Ct.
584, 590, 21 L. Ed. 2d 637, 645 (1969).
[57-2 USTC ¶9997]Arold H. Ripperger,
Appellant v.
United States of America
, Appellee
(CA-4),
U. S. Court of Appeals, 4th Circuit, No. 7448, 248 F2d 944, 10/21/57,
Affirming unreported District Court decision
[1939 Code Sec. 145(a)--similar to 1954 Code Sec. 7203]
Lawyer: Criminal prosecution: Unreasonable defense.--Judge was
justified in not accepting explanation of lawyer that he did not know
that the law required by filing of returns if he did not have the money
to pay the tax.
R. Carleton
Sharretts, Jr., for appellant. Leon H. A. Pierson, United States
Attorney, for appellee.
Before PARKER,
Chief Judge, HAYNSWORTH, Circuit Judge, and THOMPSON, District Judge.
PER CURIAM:
This is an
appeal from a conviction and sentence for failure to file income tax
returns for the years 1953 and 1954. Appellant is a lawyer who had filed
returns for other persons and for himself for certain years prior to the
years in question. His defense is that he did not have the money to pay
the income taxes due for these years and thought that he was not
required to file returns when he did not have the money to pay the taxes
due by him. The case was heard without a jury by the District Judge, who
found that the failure of appellant to file the returns was
"voluntary, purposeful, deliberate and intentional, and not
accidental, inadvertent or negligent." He further found that
appellant "knew that the returns ought to have been filed and that
he deliberately failed to file them so that the government would not
know the extent of his income and of his tax liability." With
respect to intent to evade the payment of taxes, the judge made the
following finding:
"I
do not think it is necessary for the government to prove in a case under
145(a) or 7203 that the defendant intended or attempted to evade the
payment of taxes indefinitely or at all; but if the government did have
such a burden I find that it was met in this case.
"That
is a natural inference from the evidence in this case, and no other
motive or purpose has been suggested."
The evidence
amply sustained these findings by the judge. Appellant had a gross
income of more than $7,500 for the year 1953 and of more than $8,000 for
the year 1954. His tax liability on income not reported as a result of
failure to file returns was $932.42 for 1953 and $862.48 for 1954. *
He was a lawyer 35 years of age who had been filing tax returns for
others and must have known of the duty resting upon those with an income
such as his to file tax returns. His explanation that he did not know
that the law required the filing of returns when he did not have the
money to pay the tax is so unreasonable that the judge was thoroughly
justified in not accepting it. As we pointed out in the case of Yarborough
v. United States 4 Cir. 230 Fed. (2d) 56, 61 [56-1 USTC ¶9295],
"ignorance of a duty imposed by law may negative wilfulness in
failure to perform the duty." Whether such wilfulness was negatived
here was a question of fact for the trial judge, who heard the testimony
in the case, including that of appellant, and concluded that not only
wilfulness in the failure to file the return but also an intent to evade
taxes had been established. The judge's statement at the time of
conviction and sentence shows that he was applying the principles of law
properly applicable in the case. Yarborough v. United States, supra;
Haskell v. United States 10 Cir. 241 Fed. (2d) 790 [57-1 USTC ¶9553];
United States v. Murdock 290
U. S.
389 [3 USTC ¶1194]; Spies v. United States 317
U. S.
492 [43-1 USTC ¶9243].
Affirmed.
*
A small amount had been withheld from salary which he had earned during
these years as organist at a church and had been paid by the employer.
[56-1 USTC ¶9295]David V. Yarborough,
Appellant v.
United States of America
, Appellee
(CA-4),
In the United States Court of Appeals for the Fourth Circuit, No. 7050,
230 F2d 56, February 14, 1956
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
[1939 Code Secs. 145(a) and 2707(b)--substantially similar to 1954 Code
Secs. 7201-7203]
Criminal prosecution: Failure to make returns: Income taxes: Wage
withholding: FICA taxes: Jurisdiction: Filing district.--Taxpayer
was indicted under 1939 Code Secs. 145(a) and 2707(b) for willful
failure to make income tax returns, returns of income tax withheld on
wages and returns of FICA taxes. Although the defaults occurred in
Washington
, D. C., it was held that, for jurisdictional purposes, the offenses
were committed in the Collection District of Maryland where the returns
were required by law to be filed. Motion to transfer case was properly
overruled.
[1939 Code Secs. 145(a) and 2707(b)--substantially similar to 1954 Code
Secs. 7201-7203]
Criminal prosecution: Failure to make returns: Errors assigned at
trial and conviction.--Taxpayer was tried and convicted of charges
under 1939 Code Secs. 145(a) and 2707(b) for willfully failing to make
income tax returns, returns of income tax withheld on wages and returns
of FICA taxes. The following assignments of alleged errors in the trial
and conviction of taxpayer were overruled: (1) that the trial court
improperly ruled that willful failure to file returns as to income
withholding and social security taxes constituted a crime, (2) that the
trial court improperly charged the jury with respect to the element of
willfulness and reasonable doubt, (3) that the court refused to charge
the jury on the question of compromise, (4) that the court refused to
charge the jury that ignorance of the law would be a defense to the
charges contained in the indictment, (5) that the court did not make
inquiry of the jurors as to their religious affiliations, (6) that the
court refused to order a mistrial on account of an opening statement to
the jury by the prosecuting attorney, and (7) that an improper method of
impeachment was allowed.
Albert J.
Ahern, Jr., James J. Laughlin for appellant. James H. Langrall,
Assistant United States Attorney, George Cochran Doub, United States
Attorney, for appellee.
Before PARKER,
Chief Judge, and SOPER and DOBIE, Circuit Judges.
PARKER, Chief
Judge:
This is an
appeal in a criminal case [54-2 USTC ¶9585] in which appellant was
convicted under all fourteen counts of an indictment, the first two of
which charged wilful failure to file income tax returns for the years
1949 and 1950 and the remainder charged wilful failure to file returns
of income taxes withheld from the wages of employees and social security
taxes due with respect to their wages for the six quarterly periods
embracing the year 1950 and the first half of the year 1951. Appellant
was operating a restaurant in
Washington
City
, and the evidence shows without contradiction that his receipts for
each of the years in question were in excess of $72,000 and adjusted
gross income was in excess of $12,000 for one of the years and in excess
of $8,000 for the other. He had a number of employees from whose wages
he made deductions on account of income and social security taxes, the
deductions so made together with his share of the social security taxes
due amounting to more than $600 per quarter for each of the quarters. He
admits the receipt of income and the liability with respect to the
income withholding and social security taxes and also the failure to
file returns; and for this failure no excuse is offered except that he
did not have the money to pay the taxes due on the returns. Four
principal questions are raised by the appeal, viz.: (1) whether the
District Court for the District of Maryland had jurisdiction of the
cause; (2) whether wilful failure to file returns as to income
withholding and social security taxes constituted a crime; (3) whether
the law was correctly charged with respect to the element of wilfulness
and reasonable doubt; and (4) whether there was error in refusing to
charge the jury on the question of compromise.
[Jurisdiction]
On the first
question, we think there can be no doubt as to the jurisdiction of the
court. Whatever may be said as to the desirability of prosecuting in the
District of Columbia violations of the income tax law by residents of
the District, there can be no question but that, since the District of
Columbia has been established by law as a part of the Revenue Collection
District of Maryland, income tax returns must be filed with the
Collector at Baltimore. The same is true as to returns required of
social security and income withholding taxes. See Treasury Regulations
116 secs. 402.606 and 405.601. And it is well settled that failure to
file such returns at
Baltimore
, where they are required to be filed, constitutes an offense within the
District of Maryland. Bowles v.
United States
, 4 Cir. 73 Fed. (2d) 772 [1934 CCH ¶9546], cert. den. 294
U. S.
710; Reass v.
United States
, 4 Cir. 99 Fed. (2d) 752, 754; Beaty v.
United States
, 4 Cir. 213 Fed. (2d) 712, 715 [54-2 USTC ¶9466]; United States
v. Warring, 121 Fed. Supp. 546, 549 [54-2 USTC ¶9433], aff. [on
another issue] 4 Cir. 222 Fed. (2d) 906 [55-1 USTC ¶9473], cert. den.
350
U. S.
861. In the case of Bowles v.
United States
, supra, this court, speaking through the late Judge Northcott,
after giving the history of the incorporation of the
District of Columbia
in the Collection District of Maryland, said:
"The
defendant being a resident of the
District of Columbia
, it became his duty to make his income tax return to the Collector at
Baltimore
,
Md.
, and failure to make such return constituted an offense within the
District of Maryland. In United States v. Lombardo, 241 U. S. 73,
36 S. Ct. 508, 60 L. Ed. 897, it was held that a resident of the state
of Washington was guilty of an offense in the city of Washington,
District of Columbia, for failing to file with the Commissioner General
of Immigration, in the District of Columbia, a statement in writing
required by an Act of Congress. In Rumely v. McCarthy, 250
U. S.
283, 38 S. Ct. 483, 486, 63 L. Ed. 983, the court said:
`It
is contended, indeed, that there was no probable cause to believe that
the offense charged in the Washington indictment was committed within
the District of Columbia, and this upon the ground that appellant was
not personally present in the District at the time of the alleged
offense, and that he was under no duty to make report there to the Alien
Property Custodian. The commissioner, however, found as a matter of fact
that the Custodian's office was in the
District of Columbia
, and as the finding was supported by competent evidence the District
Court properly held that it was not reviewable on writ of habeas corpus.
That being so, the duty imposed by the statute to make report to the
Alien Property Custodian involved the duty to make such report in the
District of Columbia, and failure to make it was an offense against the
United States committed in that District.
United States
v. Lombardo, 241
U. S.
73, 76, 36 S. Ct. 508, 60 L. Ed. 897; New York C. & H. R. R. Co.
v.
United States
, 166 Fed. 267, 269, 92 C. C. A. 331.'"
[Crime
Charged as to Social Security Taxes]
On the second
question, the contention of appellant is that no crime is charged in
counts 3 to 14 of the indictment, since, according to his contention,
there is no statute making criminal the failure to file returns of
social security taxes or income taxes withheld from the wages of
employees. There is no merit in this contention. The Federal Insurance
Contributions Act of August 14, 1935, 49 Stat. 636, Internal Revenue
Code of 1939, 26 U. S. C. 1400 et seq., levying "Social
Security" taxes, in section 807(c) thereof, 26 U. S. C. 1430,
incorporates by reference "all provisions of law, including
penalties, applicable with respect to any tax imposed by section
2700" of 26 U. S. C. One of the provisions of law applicable with
respect to any tax imposed by section 2700 is 2707, entitled
"Penalties". Subsection (a) thereof prescribes a civil penalty
and subsection (c) makes wilful evasion a felony. Subsection (b), under
which counts 4, 6, 8, 10, 12 and 14 of the indictment are drawn, is a
misdemeanor section and is as follows:
"(b)
Any person required under this subchapter to pay any tax, or required by
law or regulations made under authority thereof to make a return, keep
any records, or supply any information, for the purposes of the
computation, assessment, or collection of any tax imposed by this
subchapter who wilfully fails to pay such tax, make such returns, keep
such records, or supply such information, at the time or times required
by law or regulations, shall, in addition to other penalties provided by
law, be guilty of a misdemeanor and, upon conviction thereof, be fined
not more than $10,000, or imprisoned for not more than one year, or
both, together with the costs of prosecution."
Counts 3, 5,
7, 9, 11 and 13 of the indictment are also drawn under 26 U. S. C.
2707(b), which is made a part of the Federal Withholding Income Tax Act
of June 9, 1943, 57 Stat. 126, 26 U. S. C. 1621 et seq., which by
section 2(a) 26 U. S. C. 1657 incorporates by reference "all
provisions of law, including penalties, applicable with respect to the
tax imposed by section 1400". As we have seen, the penalty
provisions of 26 U. S. C. 2700 are applicable with respect to the tax
imposed by section 1400.
Incorporation
of provisions of the internal revenue laws by reference in other
sections of those laws is common practice. The provisions applicable to
section 2700 have been adopted by reference not only in the sections
above indicated but also in sections 2408, 2479, 3294(c) and 3449. As
said by the Court of Appeals of the Ninth Circuit in Young v. United
States, 9 Cir. 178 Fed. (2d) 78, 80, cert. den. 339
U. S.
913: "Incorporation of statutes by reference has been a common
practice in federal legislation, and the adoption of an earlier statute
by reference makes it as much a part of the later statute as though it
had been incorporated at full length." Kendall v. United States,
12 Pet. 524, 625; In re Heath, 144 U. S. 92, 94; Panama R. R.
Co. v. Johnson, 264 U. S. 375, 391-392; Engel v. Davenport,
271 U. S. 33, 38. It is argued that the intent of Congress in the
referral sections was to adopt the civil but not the criminal penalties
provided with respect to section 2700; but it is a sufficient answer
that Congress made no such distinction but adopted all provisions of
law, "including penalties" applicable with respect to the tax
imposed by that section. Section 2707 was the statute imposing
"penalties" with respect to that tax. It was entitled
"Penalties"; and included criminal penalties as well as civil.
The rule that criminal statutes are to be strictly construed, does not
mean that they should be construed foolishly so as to defeat the
manifest intention of Congress.
[Ignorance
of Law as Defense]
Appellant
complains because the judge refused to charge that ignorance of the law
would constitute a defense to the charges contained in the indictment.
It is a sufficient answer to this that there was no substantial evidence
upon which to base such a charge. Appellant had filed income tax returns
as late as 1943. He was doing a restaurant business with annual receipts
of more than $72,000 per year and adjusted gross income of more than
$8,000 per year. He was employing a number of persons in his business
and deducting approximately $600 per quarter from their wages on account
of social security taxes and income withholding taxes. He was filling
out forms furnished by the Revenue Department showing the deductions
from the wages of these employees and was furnishing the employees
copies thereof. While he testifies that he did not know it was an
offense not to file returns, he specifically admitted that he knew it
was his duty to file income tax returns (Record 544) and does not deny
that he knew it was his duty to file the others; and the only excuse he
gives in either case for not doing so is that he did not have the money
to pay the taxes and thought that the taxes must be paid when the
returns were filed. This was a matter to be considered on the question
of wilfulness in failing to file the returns; but appellant was given
the full benefit of his contention with regard thereto in the judge's
charge, where the jury was told:
"The
defendant has testified that he thought it was necessary to pay the tax
at the time he filed the return, and that he did not file the returns
because he did not have the money to pay the tax. Of course, the tax was
legally payable in full when the return was filed. But I instruct you
that the fact that the defendant did not have sufficient cash to pay the
tax, even if you find that to be a fact, is not a good legal reason for
failure to file a return. You should, however, consider this testimony
along with all the other testimony in the case in determining whether
defendant's action in failing to file the returns was wilful."
This charge
was given with respect to appellant's failure to file his personal
income tax returns, but substantially the same charge was given with
respect to failure to file the other returns.
Ignorance of
the law is no defense to crime, except that, where wilfulness is an
element of the crime, ignorance of a duty imposed by law may negative
wilfulness in failure to perform the duty. See Hargrove v.
United States
, 5 Cir. 67 Fed. (2d) 820 [3 USTC ¶1192]; United States v.
Murdock, 290
U. S.
389, 395-396 [3 USTC ¶1194]. Here there was no substantial basis in the
evidence for appellant's contention that he did not know that it was his
duty to file returns. The defense of lack of funds was certainly given
all the weight to which it was entitled in the portion of the charge
quoted, particularly in view of the fact that this had been preceded by
an elaborate charge on the element of wilfulness, wherein the court
said:
"To
convict the defendant on that charge, the Government must convince you
beyond a reasonable doubt of three things: First, that the defendant was
required to file a return for 1949. That is, that his adjusted gross
income was over $600. Defendant admits this--he admitted it in the
opening statement and admitted it on the stand--and admits that he knew
he was required to file a return. Second, that defendant did not file
the return. Defendant admits this too. Third that defendant's failure to
file the return was wilful. Now, defendant disputes this, so let us see
what the word 'wilful' means.
"The
word 'wilful' has a number of different meanings, depending upon the
context in which it is used. As it is used in this subsection with which
we are dealing here today, wilful means voluntary, purposeful,
deliberate and intentional, as distinguished from accidental,
inadvertent or negligent. The Government must prove beyond a reasonable
doubt that defendant's failure to file the return was voluntary,
purposeful, deliberate and intentional, and not accidental, inadvertent
or negligent.
"The
jury is instructed that this is a criminal proceeding and that the word
'wilful' when used in a criminal statute means an act done with a bad
purpose, or one done without justifiable excuse, or one done stubbornly,
or obstinately, perversely, with a bad motive.
"I
instruct you that the only bad purpose or bad motive, which it is
necessary for the Government to prove in this case is the deliberate
intention not to file returns which the defendant knew ought to have
been filed, so that the Government would not know the extent of the
liability."
[Reasonable
Doubt]
On the
question of reasonable doubt, appellant requested the court to give the
charge, usually given in circumstantial evidence cases, to the effect
that if upon the whole evidence there is any reasonable hypothesis
consistent with the innocence of defendant, it would be the duty of the
jury to acquit. The judge did not give the charge as requested, but in
his general charge gave full instructions as to the presumption of
innocence and reasonable doubt. This was sufficient. It is ordinarily
better practice for the trial judge not to give instructions in the
partisan and extreme form in which they are not infrequently prepared by
counsel but to cover the points raised by them in the judicial language
of the general charge. That was done here and the appellant was given
full benefit of the rule as to presumption of innocence and the
requirement that guilt be established beyond a reasonable doubt. In this
connection the court charged:
"Another
rule applicable to criminal cases is that the defendants are entitled to
the presumption of innocence. This presumption attends him throughout
the trial, and the burden of overcoming this presumption rests upon the
government, which must establish the defendant's guilt by evidence
beyond a reasonable doubt.
"A
reasonable doubt means a doubt founded upon reason. It does not mean a
fanciful doubt, or a whimsical or capricious doubt, for anything
relating to human affairs and depending upon human testimony is open to
some possible or imaginery doubt. When all the evidence in the case,
carefully analyzed, compared and weighed by you, produces in your minds
a settled conviction or belief of a defendant's guilt, such a conviction
as you would be willing to act upon in matters of the highest importance
relating to your own affairs, when it leaves your minds in such a
condition that you feel an abiding conviction amounting to a moral
certainty of the truth of the charge, then, and in that event, you would
be free from a reasonable doubt. Absolute or mathematical certainty is
not required, but there must be such certainty as satisfies your reason
and judgment, and upon which you feel conscientiously bound to
act."
[Compromise
as Bar]
The court
correctly refused to charge the jury that appellant should be acquitted
if he had made tax payments on promises or representations by revenue
agents that this would bar criminal prosecution in his case. There is no
evidence whatever of compliance with the compromise statute, in which
Congress has laid down the conditions which must be met to compromise a
case arising under the internal revenue laws, including authorization by
the Commissioner of Internal Revenue with approval of the Secretary of
the Treasury or the Undersecretary or an Assistant Secretary. 26 U. S.
C. 3761. As said by the Supreme Court in Botany Worsted Mills v.
United States, 278
U. S.
282, 288 [1 USTC ¶348]:
"Here
the attempted settlement was made by subordinate officials in the Bureau
of Internal Revenue. And although it may have been ratified by the
Commissioner in making the additional assessment based thereon, it does
not appear that it was assented to by the Secretary, or that the opinion
of the Solicitor was filed in the Commissioner's office.
"We
think that Congress intended by the statute to prescribe the exclusive
method by which tax cases could be compromised, requiring therefor the
concurrence of the Commissioner and the Secretary, and prescribing the
formality with which, as a matter of public concern, it should be
attested in the files of the Commissioner's office; and did not intend
to intrust the final settlement of such matters to the informal action
of subordinate officials in the Bureau. When a statute limits a thing to
be done in a particular mode, it includes the negative of any other
mode.
Raleigh
, etc. R. R. Co. v. Reid, 13 Wall. 269, 270; Scott v. Ford,
52
Ore.
288, 296."
Directly in
point here is what was said by Judge Augustus N. Hand speaking for the
Court of Appeals of the Second Circuit in United States v. Lustig,
2 Cir. 163 Fed. (2d) 85, 89 [47-2 USTC ¶9325], cert. den. 332
U. S.
775, a case involving prosecution for an income tax violation, in which
defendants contended that prosecution was barred under this statute
because of disclosures made to a revenue agent. Judge Hand said:
"The
compromise statute affords no shield to one who has violated the tax
laws unless there has actually been a compromise. See Botany Worsted
Mills v. United States, 278
U. S.
282, 49 S. Ct. 129, 73 L. Ed. 379 [1 USTC ¶348]. It is not even claimed
here that there was more than an offer to make a compromise. None of the
formalities prescribed by the statute and treated by the Supreme Court
as necessary to effect a compromise were observed. Botany Worsted
Mills v.
United States
, supra, 278
U. S.
at pages 288-289, 49 S. Ct. 129, 73 L. Ed. 379. There was no issue of
fact for court or jury as to whether a contract of compromise had been
made. Accordingly there is no merit in the defense of Immunity."
See also Cabin
Creek Consol. Coal Co. v. United States, 4 Cir. 137 Fed. (2d) 948
[43-2 USTC ¶9590]; Brast v. Winding Gulf Colliery Co., 4 Cir. 94
Fed. (2d) 179 [38-1 USTC ¶9038]; and United States v. Goldberg,
123 Fed. Sup. 385, 387, modified on another point 225 Fed. (2d) 180. Cf.
Rau v.
United States
, 2 Cir. 260 Fed. 131 and Willingham v.
United States
, 5 Cir. 208 Fed. 137, decided before the decision by the Supreme
Court of Botany Worsted Mills v.
United States
, supra.
Appellant does
not contend that there was compliance with this statute. His argument is
that he was entitled to rely on statements made to him by the revenue
agents with whom he was dealing. The answer is that the question here is
not one of intent. The crime of wilfully failing to file returns had
already been committed and appellant was liable for prosecution therefor
unless prosecution was barred by the compromise statute. Prosecution was
not barred because the conditions prescribed by the statute had not been
complied with.
Appellant
contends that he turned over his books and records to the revenue agents
on promises and representations from them that he would not be
prosecuted. They emphatically deny that any such promises were made to
him and say that, before making any statement or furnishing any
information, he was advised by them of his constitutional rights not to
be required to give evidence against himself. It is clear that such
promises if made would not exculpate him of the crime of which he was
guilty. Whether they would render inadmissible against him the records
which he furnished, we need not stop to inquire, for the judge decided
this question in his favor, charging the jury with regard thereto as
follows:
"If
you find that any of the evidence was obtained by the Agents or either
of them from the defendant by reason of any promise which the Agent made
to the defendant that he would not be prosecuted if he turned over such
evidence to the Agents, you should not consider that evidence. Defendant
contends that he turned his books and some of his other records over to
the Agents after Agent Knight made such a promise. Agent Knight and
Deputy Collector Lewis both deny that any such promise was made."
[Other
Alleged Errors]
Other
contentions of appellant are so lacking in merit as to warrant only the
briefest mention. He contends that the trial judge erred in not making
inquiry of the jurors on the voir dire as to their religious
affiliations. No matter of any religious significance whatever was
involved in the case; and appellant does not show how he could have been
prejudiced in any way by the refusal of the judge to make inquiry of the
jurors as to a private matter of this sort. There is nothing to show
that he belonged to any religious sect or was charged with a crime as to
which any sect held views different from the rest of mankind, and the
jurors were interrogated fully as to all matters which might show
interest or bias on their part or could affect their fitness to serve as
jurors in the cause. It is well settled that what questions shall be
asked of jurors on the voir dire is a matter resting in the sound
discretion of the trial judge; and there is nothing here to show that
the discretion was in any way abused.
Complaint is
made of refusal to withdraw a juror and order a mistrial, because the
prosecuting attorney in his opening statement to the jury referred to
the fact that appellant had not remitted the amounts withheld from the
wages of employees, but it was clearly proper to prove this as one of
the circumstances attending the commission of the crime charged and as
bearing on the intent of appellant in failing to file returns. Complaint
is also made because appellant was allowed to be questioned about
claiming a marital deduction in his return for 1952 when he was not
married to the woman with whom he was living; but this was competent by
way of impeachment as well as for the bearing that it had on the
question of intent in failing to file returns in prior years.
The case was
fairly tried and we find no reversible error in any of the matters
complained of.
Affirmed.