Nick SAGONIAS, Appellant, v. UNITED STATES of America, Appellee.
No. 15183.
United States Court of Appeals Fifth Circuit.
June 2, 1955.
Rehearing Denied June 28, 1955.
223 F.2d 146
I would therefore reverse the conviction.
Mark R. Hawes, Pat Whitaker, Tom Whitaker, Tampa, Fla., for appellant.
Frank J. Muscarella, Jr., Asst. U. S. Atty., Tampa, Fla., James L. Guilmartin, U. S. Atty., Miami, Fla., for appellee.
Before HUTCHESON, Chief Judge, TUTTLE, Circuit Judge, and DAWKINS, District Judge.
DAWKINS, District Judge.
Like Hodges v. United States, 5 Cir., 223 F.2d 140, this is an appeal from a conviction for failure to register and pay the special tax imposed by former Section 3290 of the Internal Revenue Code,
The Act under which this indictment was brought became effective November 1, 1951, and on November 3 of that year appellant was arrested in possession of a package of money and bolita, or Cuba lottery, tickets. The indictment charged that he:
“* * * being then and there engaged in carrying on the occupation of accepting wagers, as defined in Section 3285(b) (C) and (2), Title 26, United States Code, did willfully, during the month of November, 1951, * * * fail to register and pay the special tax required by law to be paid by him, in violation of Sections 2707, 3285, 3290, 3291, and 3294, Title 26, United States Code.”
He admitted that at the time of his arrest he was employed by the proprietors of the lottery operation as a messenger or “pick up man” for a regular salary of $40 per week, but he denied (and the Government did not prove) that he ever actually received any wagers for himself or for the proprietors. He further denied that he was “engaged in the business of receiving wagers” in the sense contemplated by the statute. He appeals his conviction on the grounds: (1) that the statute did not contemplate
In Hodges, supra, we held that the special tax under
It is clear that appellant was not liable for the payment of the excise tax upon the wagers themselves, as imposed by
As we pointed out in the Hodges case, the primary purpose of the statute as a whole was to produce revenue by subjecting commercialized gambling to taxation. Its provisions clearly indicate that the special tax applies to the principal or proprietor and all persons who were knowingly engaged or used by him to receive wagers. While the express word-
This was the interpretation made by the Treasury Department in Regulation 132, promulgated November 3, 1951. Section 325.41 of the regulation,2 in discussing the persons liable for the special tax, gave the following example:
“B operates a numbers game. He has an arrangement with ten persons, who are employed in various capacities, such as bootblacks, elevator operators, news dealers, etc., to receive wagers from the public on his behalf. B also employs a person to collect from his agents the wagers received on his behalf.
“B, his ten agents, and the employee who collects the wagers received on his behalf are each liable for the special tax.” (Emphasis supplied.)
In 1954, when T.R. 132 had been in effect for nearly three years, the Congress completely revised and amended the Internal Revenue Code, and the provisions of former
There is clearly no merit in appellant‘s complaint that the evidence failed to prove any wagers were placed or accepted after the effective date of the Act. By admission in his brief, he was, when arrested, engaged in the activity which subjected him to the tax; and in view of what has been said herein, it is immaterial when the wagers he was delivering were placed or accepted.
The contention that the evidence failed to show willfulness is equally untenable. There is evidence tending to show that appellant was concerned about the necessity to register and pay the tax, and had discussions with his associates about it prior to the effective date of the Act. One of the Revenue agents testified that appellant told of a conversation with his employer wherein appellant “asked him if he didn‘t think he‘d better get that stamp.” According to this testimony, the employer told appellant, “No, don‘t do anything now. Wait. Let‘s rock along for a few days and see what we can work out.” There is also evidence to the effect that when arrested by State authorities, appellant wanted to know if they were Federal officers. We think this and other testimony furnished ample evidence from which the jury could have inferred willfulness; and the record reflects no objection to the charge given on that subject.
Affirmed.
TUTTLE, Circuit Judge, concurs specially.
TUTTLE, Circuit Judge (concurring specially).
I think that neither of these amounted to prejudicial error, however, because the record here, unlike that in the Hodges case, does not show any actual prejudice or any way in which the defense was misled or hampered thereby.