Albert Edwards v. United States of America, S. Frank Edwards v. United States, 334 F.2d 360

Albert Edwards v. United States of America, S. Frank Edwards v. United States

334 F.2d 360

5th Cir.

1964

Check Treatment

*1 represented response plaintiff’s dated June motion and Vallot ceived from 20, 1958, that a mistake had been made in the holding these words: 20, 1958, of June that the letter your I received last letter that “In did not constitute a valid claim which you I was stated from timely by court, order, filed. The its Sept. I Dec. 3-57. 9-57 to from summary judg- denied both motions for error be- to correct would like provided and in the order it was only four checks. I received cause Dep- that this cause be remanded to the two weeks was for The first one uty Commissioner “for further consid- $106, other three and the which was employer eration.” di- and insurer This is the for a week. $53 order, appeal rect a notice of to this only money have received contending for the rul- correctness from the insurance. ing Deputy Commissioner that correct like to “I would also by Vallot’s claim was barred limitations. returned I had that said that error may, district earning power. on full to work proper must, case it a claim remand only period for in that have worked Longshoremen’s and Harbor days, laid off I have bеen few Dep Compensation Workers’ Act to the company acci- since the from that uty for his further action. Commissioner dent. Henderson, Le Blanc v. 5th Cir. having trouble with am still “I Andruzzi, 264 F.2d 946. Cf. Simmons v. my injured neck nerve in D.C., E.D.Pa., F.Supp. This 803. accident.” received being appealable so there no final and on March was filed A formal claim judgment subject by which is to review held a Deputy Commissioner 1962. The this Court. 28 1291. The § U.S.C.A. hearing request for addition- on Vallot’s appeal is testimony compensation took al Dismissed. injured. respect to whether passing on the merits Without Commissioner, by an claim, Deputy rejected September order dated timely In so filed. not because Deputy held doing Commissioner did June that the letter of statutory requirements consti- meet EDWARDS, Appellant, claim, formal claim tute timely filed. was not of March America, UNITED STATES against an action Vallot instituted Appellee. compensation employer, insurance its Commissioner, carrier, Deputy and the EDWARDS, Appellant, S. Frank seeking injunctive stat- relief under Deputy Commis- ute2 set aside the America, UNITED STATES of an direct siоner’s order and to Appellee. compensation enter- award of further Nos. joined employer the insurer ed. The plead- appropriate issue with Vallot Appeals United States Court of ings. summary judgment Motions Fifth Circuit. plaintiff and defend- were filed both July Deputy initial- ants. The Commissioner Rehearings Sept. Denied ly joined plaintiff’s motion. There- Deputy court, after, leave concurrence withdrew his Commissioner 921(b). 33 U.S.C.A. *2 Bell,

Jones, Circuit Brown and

Judges, dissented.

RIVES, Judge. defendants, Ed *3 Edwards, and wards S. Frank con violating by victed § U.S.C. willfully failing register pay for and gambling by required tax as 26 U.S.C. 4411, appeal, by 4412.1 On this Court §§ mаjority judgments a vote reversed the for conviction lack of Sarasota, Fla., appellant. Lee, for Dick defendants had law. Mount, Levine, F.2d H. now Joe The case is before the D. Arnold Attys., petition Hanlon, III, Court rehearing U. banc on Asst. S. en a for Thomas J. by appellee. filed Fla., Tampa, for the United States.2 Judge, TUTTLE, and Chief presented questions Before are: crucial BROWN, WISDOM, RIVES, JONES, (1) that de- Was there sufficient evidence Judges.* BELL, register and GEWIN loillfully for failed to fendants * participate Judge in did not Hutcheson rehearing. on I submitted Thеreafter ask- this my brothers, case. stating to the advice Judge Hays them that “since neither nor Imposition tax “§ Judge participate in the en Cameron can special imposed a tax shall be “There May rehearing Monday, 11, banc it on by year per- per be each $50 complete me that to fair- seems to insure tax under section son who liable ap- especially sides, both ness to and engaged receiving in 4401 or who is wagers pearance appellants, I fairness to the any person so for оr on behalf of myself should recuse and let ease liable.” remaining considered and decided Registration “§ 4412. judges “ active of the Circuit.” Requirement. (a) person re- —Each Judge Judges Jones, Chief Tuttle and quired special pay a tax under this Brown I and Gewin advised that should register subchapter shall with the official sit, Judge agreed Bell advised he charge of the internal revenue district _* my with tentative view but did not think * inappropriate for me to sit. did return, “§ 7203. Willful failure file Judges hear from Hutcheson and Wisdom. supply information, pay or study give such After as I could matter, reached the conclusion that “Any person required under this title judge a whether should recuse himself in pay any tax, estimated tax or re- or particular depends a on case not so much quired by by regulations this title or personal preference his or individual authority made under thereof to a make law, that, views as it does on the un- (other required return a than return der have choice this case. authority of section 6015 or section judge’s duty It is a to refuse to sit 6016), keep any records, any supply or disqualified equally when he is but information, willfully pay who fails to duty to sit when there is no valid rea tax, such or estimated tax make such re- son for recusation. Nacional de Banco turn, keep records, supply such Sabbatino, Cuba v. 2d Cir. information, required at the time or times on merits reversed Su regulations, shall, law or in addition preme Court March penalties provided by law, to other 804; 11 L.Ed.2d Unit guilty and, upon aof misdemeanor con- Valenti, D.C.N.J.1954, ed Supp. 80, States F. thereof, viction shall be fined not more ; Judges § 48 C.J.S. 93a. $10,000, imprisoned than not more party If а is dissatisfied and makes time year, both, together than 1 with the ly objection, judge’s a decision to refuse prosecution.” costs of subject a act on case is to review. Judge Hays, organ Taylor, 1893, Court Medlin 101 Ala. original opinion, judge on the 310; Judges is a So. C.J.S. 93b. The sitting by desig- Second only Circuit who disqualification two statutes on which Judge Cameron, nation. who concurred I found are §§ 47 and 455 of Title Judge Hays, April with Code, died on United States neither which rehearing after a appear en banc application was ordered but would to hаve orally argued before my Judges ease was situation. sit a as matter bag pocket (2) had in his gambling $71.47 Was the tax? person $1,091.47. charge on his was con- There defend- district court’s five-gallon testimony the law siderable about presumed known to have are ants given charge had occa- can which Frank Edwards (3) If the erroneous? erroneous, “plain can sions carried. The filled with various error” it such lottery paraphernalia was found under answer We call for reversal?4 as to affirmative, next door to that from which house first slight operations negative Frank were conducted. second meeting charge given, and vari- been observed on the reservation parking negative. persons lot behind result ous the third *4 accepting packages judgments Bar and of Green Palace that we affirm the convic- them; going from had observed he been tion. lottery in and out of where the the house engaged allegedly The defendants carry- also was conducted. He was seen lottery or operation, called Cuba a ing paper sacks under his shirt and re- bolita, admitted- from a house conducted trieving mail for him in the sacks left ly Frank Edwards. owned defendant box. under a search of house search the A purchased bo- paraphernalia used Two informers the warrant disclosed pads, lottery operations: from Albert memo lita tickets in such Bar, tally other adding tapes, and had seen or re- Palace sheets Green machine making purchases men, from pickup persons cap or cards similar of sheets sellers winning notify buyers time of num- Edwards at thе to of the him. Frank used house, ownership telephone ber, radio, of the and a arrest admitted a short-wave out, al- A it rented of Frank Edwards. claimed that was listed the name operations though expert qualified to to whom on bolita tes- he refused reveal necessity keeping on to of hand was rented. Frank had been arrested tified the large Both of Frank a in 1949. defendants amount cash. When bolita offense being in at Pal- at trial and denied Edwards was arrested the testified the Green Bar, of Neither the de- which is front of thе the bolita business. ace house conducted, lottery or not from which fendants stated whether reliearings particular to is a deci act or failure act viola- of their own course outweighed Judges, and until § 30A Am.Jur. tion of by unless sions. See contrary. judges pre- The or of other who to the If either both every person original sumption participated knows what is that decision rehearing and law re- en banc there could the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍law forbids what sit quires to be done.” be no I must also sit. prefer absence makes me While their 52(b), The 4. Sеe Fed.R.Crim.P. dis Rule sit, I not fur not to have found that court, conclusion of its oral trict charge, at any legal nishes me excuse. complied strictly Rule with A en bane consists of “all ac court following Fed.R.Crim.P., as shown circuit,” judges tive circuit colloquy: 46(c). In the absence of a valid U.S.C. In “THE the absence COURT: right legal reason,. disqualify I have no to Jury at the conclusion the Court’s myself and must sit. Charge Jury, Oral to the does the Govern- objections charge, any exceptions In its oral in- ment have or the district Charge given? as follows: to the Oral as structеd you “Now, No, Your The will note that omission “MR. HANLON: Honor. objections charged excep no or failure to act the informa- Government has or alleged willfully have tions. tion is to been done. willfully if done “THE In A failure to act is done COURT: the absence Jury voluntarily purposely with a and at conclusion of Court’s Charge specific Jury, Oral intent to fail to do wdiat to the do the defend- objections requires say, exceptions ants have to be done. That is to to disobey Charge purpose given? to either Oral disregard No, LEE: the law. “MR. sir.” neсessary prosecution “It for the pz'Ove knowledge the accused that imposed gam- attempt of the duties aware one, defeat and evade bling tax. felony, easy which is made a is not detect define. Both must be majority original panel willful, willful, said, as we have position took Government’s many is a meanings, word of its ignorance of the law is no defense being construction often influenced register for willful failure by its context. United States v. wagering for and the federal tax. Murdock, 290 U.S. 389 [54 Accordingly, majority opinion 381], 78 L.Ed. It well mean рrimarily showing concerned with something applied nonpay- more requires knowledge “willfulness” applied taxa than when concurring opinion law. The and foot to make return. Mere vol- failure majority opinion note 3 of the indicated untary purposeful, as distin- the Government has the burden guished accidental omission to proving and that there is timely might amake return meet the presumption that the defendants knew test inBut view of willfulness. wagering requirements. our imprison- traditional aversion to presump dissent7 contended that some *5 debt, ment for would we not with- knowledge tion of exist. does out the clearest manifestation of Con- rehearing petition the for On gressional intent assume mere the since has conceded Government knowing and intentional default of element will includes the misdemeanor payment of a tax where there had defense, law is a of the fulness been no to disclose willful failure was no that there evidence but contends liability the is intended to constitute ignorance and was suffi of there any degree. criminal offense of dеfendants that the knew cient evidence expect We would willfulness in such jury support so to the ver the law a case to include some element of reviewing sufficiency In of dicts. justification evil motive and want of evidence, Court must view all view of the financial circum- light in the most favorable to evidence taxpayer.” of (Em- stances permissible and infer phasis supplied.) supporting ences its case must be so Accordingly, first to drawn. issue In the instant case there no decided whether there evidence direct thе defendants knew jury imposed of by which could have gam inferred be the duties the federal yond bling they a reasonable doubt8 that the de tax neither admitted statute — knowledge had nor knowledge, fendants the duties im denied such and there posed upon wagering them was they tax no evidence that had been warn so, obligation If ed of they statutes. since the eon. evidence their or that had clusively previously paid establishes the defendants knowledge the tax. But register pay failed both to for and mind, to prov state tax, test willfulness is As met. circumstantial evidence.9 Spies States, 1943, said in v. United per- What circumstantial evidence will 492, 497, 498, U.S. 63 S.Ct. knowledge wager- mit an inference L.Ed. 418: ing tax cases? We believe the answer Ingram difference willful “The between lies v. United pay due, to a tax which failure when U.S. L.Ed.2d 1503. misdemeanor, defendants, Ingram is made and willful In that two case and at 5. 321 F.2d 327. 9. Cf. Gaunt Cir. 284, 290; Battjes 184 F.2d 326-327, 6. 3. 321 F.2d at 1, 5; Cir. 172 F.2d at 321 F.2d Mertens, Federal Income Taxation 55A.- Riggs (1958). 8. See 09 at n. 13 enough conspiring in- concealment should not be to Jenkins, convicted of were imposed.11 wagering that a and tax is fer and defеat evade failing register willfully and case, the defend In the instant defendants, pay Two tax. other for a ant Frank Edwards was arrested although required Law, Smith and 1949.12 He bolita as far back as offense they tax since purportedly to some house rented the “bankers,” were nor “writers” neither whereas, fact, else; it to one he used conspiracy at- convicted nevertheless carry gambling operation. He out his The tempt or defeat tax. to evade night parking accepted packages at engaged in a close- had been defendants containing bar, lot behind the hid can large-scale operation ly organized and lottery paraphernalia the house under game of state in violation a numbers door, paper under sacks carried next every They made from 1954 to shirt, paper left for sacks and retrieved g., operation effort to conceal the —e. long experi mail box.13 This him in the routes, plates, used false license evasive lottery and conceal ence business attemptеd false names even enough operations Supreme noted: Court bribes. Ingram jury to infer to allow case to show no direct evidence “There of the that Frank Edwards was aware petitioners of these knew wagering tax.14 that there Court held taxes.” the circumstantial While support convic- sufficient evidence strong against as that is not as Ingram As Jenkins. tions of against Frank, Albert was a “writer” Law, held the Court Smith son, rea so is Frank’s that the indicate there sonably *6 that knew infer they Ingram that and Jenkins knew passed this or that Frank law himself taxes, and without these Albert, knowledge how on to him. toAs knowledge and Law not have Smith ever, presented toas a close is minority conspired A to evade the tax. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍drawn be whether this inference could Ingram Court dissented as to beyond required a reasonable doubt as being opinion Jenkins, by Riggs, prefer of the that mere supra, n. and we My 10. at at “A. is receive s tatement that didn’t any sacks from no one.” 79 S.Ct. at 1321. U.S. at interesting is that It note cross-examination, Frank Edwards On Legislature passed a statute the Florida making testified: possession payment of or testimony today your “Q. Is it here wagering stamp prima a federal tax facie you engaged have never in the bolita gam- of violation Florida evidence of the ? business bling 1954, however, In Florida law. right. “A. That’s Supreme un- held Court this statute to Ever; is that “Q. correct? Sweat, constitutional. Jefferson v. (No response.) “A. Fla., (opinion 76 So.2d on 498-501 your testimony today, Mr. “Q. Is that rehearing). ? trying McGonigal, “A. I am to think back. 14. In United States D.Del. oath, you F.Supp. 621, “Q. You are under I want the court entered your judgment acquittal time and take reflect. for lаck of ’49, necessity “A. Yes. Back think was. the defendant knew of the purchasing gambling stamp; “Q. You in the bolita business? got carefully pointed “A. arrested. the court out engaged You “Q. were here and you the Courtroom this defendant had not testify activity persistent long-drawn-out heard various witnesses for a time, frequently were delivered sacks of I don’t know associated with known your gamblers, engaged what. What is re- nor statement with in deliberate acts spect to those sacks that discussed of concealment. being you by peo- delivеred to various ple? holding, on “Presumption” our decision our base here- is itself a word elaborated, meanings. that the after of several It is often stated might every person which the draw “presumed” the inference to know sup- of the law is aided the law. presumption” This “conclusive plemented by presumption merely a rebuttable a restatement of the substan ignorance that the defendants knew law. tive rule that of the law is not defense; accordingly, many a ject writers ob determining vel non the correctness In trеating this as a rule evid charge, 3, supra, it is im- court’s course, ence.17 Of in cases such as the portant between the distinction to note one, instant where “presumption.” an “inference” defense, ais valid applic has no rule Morgan has an infer- Professor defined Here, ation.18 charg the defendants are as follows: ence ed with the violation of a statute which makes that when criminal means “If willful failure to comply specific imposed by is established duties A fact] [basic [presumed problem statute. actiоn, ju the existence whether the ry op- should have been B deduced instructed fact] terms of an ordinary of rea- presump rules inference rebuttable eration soning, tion. says it sometimes may presume the ex- of fact trier knowledge of Where certain pre- of B finds A. The istence sumption if it crime, facts is an of a essential element fact, to be one of is said going the burden of judges forward with in- and careful writers proper placed ‘infer- term is sist issue is sometimes ” 15 ‘presumption.’ rather than ence’ peculiar if thе defendant matter ly knowledge. Crapo within his own See hand, he a rebutta- On the other defines follows: ble 996, 1001; Wharton, Criminal Evi “Thayer, Wigmore, American (12th 1955). dence §§ ed. This Institute, Law and commentators principle was extended Blumenthal v. generally many argued, and have *7 States, 1937, 522, United 8 Cir. 88 F.2d agreed, courts have the term so as to presump hold that a only there was ‘presumption’ should be used knowledge tion that the defendant had mean when A is established action, an of B imposing duty the existence must be of a statute a to act. The specified charged assumed unless and knowingly transport until a offense ing 16 condition is fulfilled.” alcohol which was not labeled in ac- Morgan, 15. 1 Jones, (5th Basic Problems of Evidence 17. See 1 Evidence 11§ ed. (1961). 1958); Wharton, 31 1 Criminal Evidence § (12th 1955); Wharton, 107 at 215 ed. 1 Morgan, 16. 1 Basic Problems of Evidence (An Criminal & Law Procedure 162 (1961). Wigmore 32 Professor has 1957). derson ed. Hall Professor has against confusing presumption warned a cases, stated: “In such which include an inference: the common law felonies and the more long legal “So as the law attaches nо misdemeanors, serious instead of assert consequences way duty upon of a ing knowledge presumed, of law is opponent to come con- forward with point would be much more to the to as trary evidence, propriety there is no knowledge (equally, igno sert of law applying ‘presumption’ the term such law) wholly rance or mistake of ir is facts, great probative sig- however their Ignorance Hall, relevant.” and Mistake Wigmore, nificance.” 9 Evidence 288 Law, 1, (1957). in Criminal Ind.L.J. (1940). The presumption Hargrove States, distinction between inference 18. See v. United 5 Cir. recognized by 1933, 820, 1276; this Court 67 F.2d 90 A.L.R. States, 1956, in Barfield v. States, 5 Cir. Wardlaw v. United 5 Cir. 936, 940, 229 F.2d and Mann 203 F.2d 5 Cir. excuse, will still decided the case The statute. with the cordance if the law had been known unless said: comes forward with the defendant every elementary one is “It to show that did evidence to know presumed knowledge differently, know. Stated common that be land, whether presumed; law is cas- most hence, law, statutory law or the presumption this es is conclusive but furnis"hes ignorance one’s exceptional circumstanсes it acts, criminal no defense disputable.” charg- the crime applies whether rule Professor Hall has stated: malum prohibitum or is malum *** necessary in se. “It seems to retain the presumption that there was such deciding, that “Assuming, without knowledge law], allowing [of presumption rebuttable defendant introduce evidence the de- one, it is to be observed tending prove no evidence introduced fendants placing mistake of the presumption. attempt to rebut an proving rea, final burden of mens having corpus been es- delicti sense, upon in the above state.” government hav- tablished, and the case, prima ing proved facie thus plain, the law is Where adducing evidence burden settled, definite, want and well presumption shifted rebut the requirements knowledge of its pecu- matter was defendants. The resting peculiarly within the knowl fact knowledge. Ag- liarly within their defendants, edge of when the Govern U.S. v. United new all has its case in established other L.Ed. 624.” adducing respects, burden of some presumption of to rebut followed case was Blumenthal knowledge rests the defendants. Cruz v. United being involved, pre Judge Phillips A mental state said: F.2d where knowledge sumption law anal “Furthermore, a want if there was sanity ogous as to to the existence Supreme which the Court said in Davis part of 12 on the defend- Section 469, 487, ants, peculiarly was a fact with- 488, 16 40 L.Ed. 499. knowledge, and when the in their “ * * * In a certain sense prima government established is in- true that where the defence ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍adducing case, facie the burden sanity, made and where the case presumption of to rebut the nothing discloses *8 on the defend- rested of whatever in or extenuation excuse States, ants. Blumenthal v. United charged, the crime the accused is supra 1937, 522, Cir. F.2d 88 [8 produce to bound some evidence 530]; Crapo v. United 10 impair will force of weaken the Cir., 996, 1001, F.2d 100 and cases legal presumption in the sanity. favor of 4.” cited in note pre- But to hold that such agreed: Professor Perkins has sumption absolutely must control the exceptional “But in those situations until it is or im- overthrown paired by in which of law is an to es- the evidence sufficient Hall, Ignorance 88 F.2d at 530. and Mistake Criminal Lаw, 1, (1957). 33 See Ind.L.J. 36-37 States, Perkins, Ignorance and Mistake also Ford v. United Law, F.2d U.S. 88 U.Pa.L.Rev. Criminal 38-39 10 aff’d 273 793; (1939). 71 L.Ed. Under Evidence, ed., hill’s Criminal 4th sec. p. 57. insanity beyond produced fact the of tablish no evidence whatever to the doubt, contrary, all reasonable or to the rea- the failure to use the ac- more jury, expression of sonable satisfaction the curate did not affect the de- require him rights. to effect to establish fendants’ substantial by proving his innocence ishe stated, For the judgments reasons the guilty charged. not of the crime of conviction are “Strictly “ ^[*] ^[*] ^[*] speaking, the burden of Affirmed. proof, words are understood as those BELL, Judges JONES and Circuit upon the ac (dissenting). is never in criminal his innocence to establish cused our It is view these cases were necessary disprove the facts es properly disposed of when were be- in for which he is crime tablish the panel of fore the this Court. from It is dicted. F.2d 324. We there- beginning to the end of the trial fore dissent. every applies to element neces Giving sary to constitute the crime. BROWN, Judge, JOHN R. dis- prosecution, to the whеre the defence ; senting insanity, way the benefit place I dissent. see this case proof presumption favor of pedagogical dispute for the over infer- sanity, vital presumption. ence versus Nor for this plea guilty time is entered particular crime can see how Gov- verdict, until the return showing ernment meets its burden of whether, upon evidence, all the pay prov- willful failure unless it first adduced, guilt whatever side is es es, directly circumstantially, beyond tablished reasonable doubt. pay- defendant knew that tax was somе evidence, including If the whole supports No able. doubt the evidence supplied of sani the inference that the defendants were ty, beyond does not exclude reason engaged in the numbers racket and Were hypothesis able doubt the of insani against aware it was Florida law. ty, adduced, of which some But none the indicia elaborated on acquit the accused is entitled to an opinion, furtiveness, Court’s such as specific charged.” tal of the offence operation, size of the concеalment of the activity, like, tell-tales or the charge even district court begin to show that an given, 3, supra, indicated applied as awareness that a federal tax was due. plain, law here definite well-settled involved, would Congress can, have been more accurate course, prescribe if, phrase, “unless un instead the failure to is a crime outweighed by til con knowing thus of a eliminate element trary,” expression it had duty pay. used some such long Spies But so produce as “unless the defendants some U.S. S. contrary.” If fail 418; Hargrove Ct. 87 L.Ed. v. Unit charge error, ure. so to word the Cir., 1933, plain *9 require was not such error as to A.L.R. v. Wardlaw (see 4, supra); because, reversal Cir., 1953, stand, 203 F.2d light of the fact that defendants do not think we out read knowl See also Howard charge v. United law 274, 276; Cir. ordinarily 232 F.2d Carter would needed, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍might then contribute clarity simply charge jury proof. the usual burden of In cases of this kind where the defend- produces ant some evidence of edge by presumption, a so-called rebutta otherwise, ble or that an accused knows knowing law knоws he duty pay. had a urge Congress

If bad, the result

can correct it. And I am not at all sure prospect Judge formidable

Rives earlier made out in his initial dis- join sent. would be the first to in a remand, Bryan reversal and 94 L.Ed. so that the Government opportunity could have meeting its through burden circumstantial evidence that must be abundant from which the (not infer fact be told as a law) matter of these defendants knew that skating ice, on thin

both federal and Florida.

Rehearings denied; JONES, BROWN BELL, dissenting. Judges, WOODS,

Linda Cal a minor father her friend, Woods, and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍next Rev. Calvin Appellant, WRIGHT, Superintendent

Theo R. City Birmingham, Schools of the Alabama, Appellee.

No. 20875. Appeals

United States Court of

Fifth Circuit.

July 20, 1964.