309 F. Supp. 1336 | W.D. Pa. | 1970
OPINION AND ORDER
The defendant, Joseph A. Nemetz, was convicted of five counts of wilfully attempting to evade or defeat his income tax for the years 1962, 1963, 1964, 1966 and 1967. Title 26 U.S.C., § 7201. The evidence of his guilt was overwhelming. He has moved for a new trial assigning 66 reasons. The motion will be denied.
The great majority of the reasons assigned were the subject of motions and objections made by the defendant at trial. Most of them were argued at length by defendant’s counsel, duly considered, and adverse rulings made. These reasons have been reconsidered and it is the opinion of the court that none of them would merit a new trial. Excessive delay would ensue were all of the 66 reasons to be reconsidered after the record has been transcribed only to reaffirm the rulings which the court now believes were correct. This is not to say that some error did not creep into the trial, but that which did, we think was harmless especially in view of the ample and largely undisputed evidence of guilt. Rule 52, Fed.R.Crim.P. Indeed, it appeared to the court at trial that defendant based his defense on a lively expectation, with some instigation from astute counsel, that the court would say something or make a ruling that would produce a mistrial or ultimately a new trial.
The defendant requested and was granted a “Jackson v. Denno” hearing in the absence of the jury to test the voluntariness of his disclosures to special agents of the Internal Revenue Service at an interview at his office on May 6, 1968. The defendant’s counsel interrogated the special agents at length. Their testimony showed that the defendant’s disclosures were voluntary and certain of his records were freely turned over to them. The defendant did not take the witness stand to repudiate one word of the agents’ testimony or to testify to any involuntariness, coercion, inducement, trickery, guile or misrepresentation.
Upon resuming the trial before the jury, no evidence whatsoever was adduced that what defendant disclosed to the special agents at the interview on May 6th was a confession or that anything he said or did was involuntary. Special Agent Carpenter testified that defendant told them that his grandfather had given him approximately $80,-CO. in 1949 which he had kept in a brown paper bag until 1963 when he began to deposit the money in trust accounts for his four children. Examination of the deposits in four of the trust accounts (Exs. 147, 149, 151, 153) reveals that they were equal and in driblets from November, 1961, to May,
Following the interview, investigation by the agents revealed a pattern of substantial underreporting of income for all the indictment years. It was also shown that following the request on May 2, 1968 by the agents for an interview, the defendant withdrew nearly $100,000 from his several savings accounts on May 3rd and 7th, 1968.
Constantly throughout the trial the defendant contended that the court should have required “the government [to] supply a complete examination and furnish explanations of materials and supplies plus labor and the reasonable costs thereof, all of which placed the burden of doing this on defendant.” (Reason No. 9.) In the first place, the prosecution, after inquiry by defendant, stated explicitly in writing that its method of proof of tax evasion was the “specific items” method.
It was held in United States v. Stayback, 212 F.2d 313 (3d Cir. 1954), and in United States v. Shavin, 320 F.2d 308 (7th Cir. 1963), that in a specific items case, the government does not have the burden of establishing the defendant’s operating costs. In Stayback it was stated (p. 317 of 212 F.2d):
“It is well settled that once the government establishes unreported income of the defendant and allows deductions claimed by him in his tax return and others that it can calculate without his assistance, the burden is on the defendant to prove that he had other allowable deductions which were*1339 not shown in his return: United States v. Smith, 3 Cir., 1953, 206 F.2d 905; United States v. Link, 3 Cir., 1953, 202 F.2d 592; United States v. Hornstein, 7 Cir., 1949, 176 F.2d 217. The government is not required to prove the negative, i. e. that the defendant did not have any other deductions. Gariepy v. United States, 6 Cir., 1951, 189 F.2d 459.
" * * *
“ ‘The figures of cost of goods sold, as they were used in preparing his tax returns, were at least admissions by the defendant which the government could utilize in making a prima facie case. The defendant was chargeable with them until he offered credible evidence to show that the figures were in error, and that his costs were greater. * * * The defendant herein was under an obligation to keep correct books and records; he did not do so. Having adopted that course he cannot now sit back and insist that the government prove a complete debit and credit account.’ ”
Of course, the burden of proof rested on the prosecution and the jury was so instructed. But the prosecution does not have the burden of going forward with the evidence to negate unreported deductions. United States v. Procario, 356 F.2d 614 (2d Cir. 1966).
No requirement exists to compel the Internal Revenue Service to investigate the defendant’s case, although in a net worth case, agents are required to follow v. reasonable explanations by the taxpayer inconsistent with guilt, Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954). This rule does not apply in a specific items case, especially where, as here, no explanations were advanced by the taxpayer to the Internal Revenue Service relating to unreported expenses for materials, supplies, labor and unreported payments to subcontractors. Not until the trial did the defendant contend, largely by way of cross-examination, that he had understated the costs of materials, supplies and labor.
Not only did the government explicitly state that it would rely on the specific items method to prove the defendant’s guilt, but summaries (Ex. 167) contained only the amounts the defendant was paid by the persons who hired him plus items of interest he received during the indictment years. No one suggested that the deposits in the trust accounts in the First Federal Savings & Loan Association of Homestead were to be computed as unreported income. The trust accounts and his other savings and loan accounts were introduced solely to show the specific items of interest he received .during the indictment years, and, of course, the principal of the deposits was corroborative of the considerable well-established specific items of income received and unreported during the indictment years.
Another matter which the defendant raised throughout the trial and in his motion was that certain checks, introduced as exhibits to corroborate the testimony of government witnesses that they had paid the defendant various amounts of money for work he had done, were inadmissible absent proof that the endorsements on the checks, purporting to be the defendant’s signatures, were actually signed by the defendant. Each witness testified that the defendant had been paid for work contracted and performed, and each signed the check as payor or identified the signature of the
The defendant assigns as error the instructions on reasonable doubt (Reason No. 61). He contends that the court improperly used the standard "of the highest importance" in defining reasonable doubt. In United States v. Ward Baking Company, 224 F.Supp. 66, 76 (E.D.Pa.1963), it appears that Judge Van Dusen in that case and a number of other cases, in his instructions on reasonable doubt used the words "in matters of highest importance". In United States v. Senior, 274 F.2d 613, 617 (7th Cir. 1960), the words "to pause or hesitate before acting in a grave transaction of your own life" were used and approved. Similar words have been used by other district courts. United States v. Interstate Engineering Corporation, 288 F.Supp. 402 (D.N.H.1967); Scurry v. United States, 120 U.S.App.D.C. 374, 347 F.2d 468 (1965); United States v. Schneiderman, 106 F.Supp. 906 (S.D. Cal.1952); United States v. Foster, 9 F.R.D. 367 (S.D.N.Y.1949). There is no merit in reason No. 61.
An appropriate order will be entered.
. In the first trial, the defendant succeeded in securing a mistrial when the court made statements in the presence of the jury which the defendant claimed, and the court believed, were irreparably prejudicial.
. The defendant’s lengthy cross-examination of Special Agent Carpenter at the “Jackson v. Denno” hearing was replete with collateral issues which did not in any way impugn the voluntariness of the interview.
. The following cases hold that a Miranda warning does not extend to a pre-custody Internal Revenue Service inquiry: United States v. Jernigan, 411 F.2d 471 (5th Cir. 1969); Cohen v. United States, 405 F.2d 34 (8th Cir. 1968); United States v. Squeri, 398 F.2d 785 (2d Cir. 1968); Spinney v. United States, 385 F.2d 908 (1st Cir. 1967); United States v. Maius, 378 F.2d 716 (6th Cir. 1967); Morgan v. United States, 377 F.2d 507 (1st Cir. 1967); Rickey v. United States, 360 F.2d 32 (9th Cir. 1966); Kohatsu v. United States, 351 F.2d 898 (9th Cir. 1965); United States v. Charamella, 294 F.Supp. 280 (D.Del.1968); United States v. White, 293 F.Supp. 692 (E.D.Pa. 1968); United States v. Basil, 268 F.Supp. 1018 (S.D.Fla.1967); United States v. Bachman, 267 F.Supp. 593 (W. D.Pa.1966); United States v. Fiore, 258 F.Supp. 435 (W.D.Pa.1966).
. Cf. Williams v. United States, 89 U.S. App.D.C. 32, 189 F.2d 693 (1951), wherein it was held, absent evidence of involuntariness, that it was unnecessary to submit that question to the jury.
. See brief of the United States in response to motions filed by the defendant, page 4, item E, and Judge Gourley’s Order filed on July 9,1969, at ¶ 4.
. It is to be noted that defendant was given credit for “additional” expenses in each indictment year (Ex. 167).