United States v. Sam Achilli

technique worth, as used “The net America, UNITED STATES case, ac- is not method in this Plaintiff-Appellee, counting from the one em- different ployed by It is not defendants. Defendant-Appellant. ACHILLI, Sam accounting all, except method of upon taxpayers No. 11575. insofar as it calls unexplained in- for their account Appeals United States Court accounting sys- come. Petitioners’ Seventh Circuit. appropriate for their busi- tem was June 1956. and, admittedly the purposes; ness Rehearing July 1956. Denied any spe- not detect did Government therein. Never- cific entries false

theless, believe Govern- if we jury did, evidence, ment’s defendants’ conclude

must consistent than more books were

truthful, many in- items of and that disappeared before had come recording reached even stage.” Insisting books records that his filed, on returns the tax

coincide with based, Doyle which the indictment government supply him asked that ‘joint which with “the method ” determined; income’ amounts income, deductions, and and items of credits, in re- for “the method used

constructing” for the calendar

years Yet the indictment involved.

charged Doyle an offense with described language. statutory of it is short Doyle his assertion of dis- bottoms judge’s re- on district cretion abused “theory” revelation of fusal to order prosecution. be- There is a difference charge against specifying the made

tween theory person and the an accused government pursued in estab- is lishing at a trial the merits. case its Doyle appears it

From this record possession of the means of ascer-

inwas taining various items of income and government wanted the he deduction that Skidmore, United States to disclose. My expressly are and concurrence remarks problem appeal, for the

limited to particulars is a area

a bill of sensitive prosecutions type criminal

federal prefer here, I would leave involved for future reviews of

latitude available judges’ discretion.

district Batter, Washington, C.,

Carl J. D. Gagen, Jr., Chicago, 111., Frank J. for appellant. Atty. Rice, Gen.,

Charles K. Asst. Thatcher, Atty., Division, Dickinson Tax Dept, Justice, Washington, C., U. S. D. Tieken, Atty., Chicago, 111., Robert U. S. Russo, Atty., Department Vincent P. Justice, Washington, C., appellee. D. MAJOR, LINDLEY, Before SWAIM, Judges. Circuit Judge. LINDLEY, Circuit judgment appeals Defendant from a finding jury him entered on a verdict guilty on an indictment three counts of charging willful evasion of income taxes years 1946, for the taxable 1947 and 145(b) in violation of Section of Internal Revenue Code of U.S.C. employed what Government

commonly referred to as the net worth establishing deficiencies, pro- method of ceeding theory on the increases taxpayer’s net worth over that at beginning year, plus of the taxable non- expenditures, deductible constituted in- during taxpayer period come satisfactorily explained. Employ- unless ing procedure, cal- Government culated the amount of net defendant’s unreported during taxable the in- periods $13,803.94 dictment at $36,958.63 $20,623.18 tending It offered evidence prove that the income was derived from over-ceiling charges for automobiles sold by co-partnership composed a of defend- doing Gromer, ant and one business un- style Highland der the name and of Mo- Sales, Barney’s Hall, tor Snooker part owned defendant until the latter of and from interest on loans to persons. various High- operation With land, evidence, jury jus- on the was finding following pertinent tified in During years, facts. three defend- agents, ant, or his made sales of auto- premium prices mobiles about $600 per price. car above the OPA maximum ceiling price each car was entered only purchase books, contract. The Government partnership showing de- partner- introduced evidence reflected in this amount was ship bought premi- interest of fendant the entire market black returns. The including Turpin, realty, equip- reported. These one or um not recorded goods Lion, con- ment and Red been stock premium to have seem sales bar, co-partner, Gro- local restaurant and in 1945. from defendant’s cealed closing argument in- mer; reported in his his Attorney, the United States were not summing up defendant’s returns. income tax dividual beginning worth, referred to this complains 19 re- some Defendant including transaction as transfer excerpted counsel marks of capital Lion, Incorpo- stock of Red contending record, that misconduct fact, agreement rated, when, in be- Attorney requires a the United States Turpin and tween defendant included no judgment. The first reversal capital reference to stock. Defendant’s during reception the course made objection to this statement was over- testimony. Defend- the Government’s ruled. attorney objected use of cer- to the ant’s Although examination of Gov- tain records the counsel’s the reference to they asserting witness, that capital unwarranted, ernment stock was it anwas admittedly response The Govern- false. were to invited defense counsel’s as- attorney remarked, argument “And are jury ment’s sertion and that to the you they going corporate are false because to show of the the value stock had been objection, this opening false.” On made them omitted from defendant’s remark was stricken. worth statement. The record discloses corporation the existence of a known as 18 occurred other instances Inc., Lion, of Red which defendant was argument during to the course of final officer, an and shows that the board of these, objection jury. was made the Of directors, February, 1948, authorized only to for the defense silent, two. “Counsel corpora- directed and the officers the of interpose rule remain cannot as a tion to enter into a lease with defendant objections no has and after a verdict premises of on the which Lion Red was been returned seize for first time the nothing We are located. directed to of jury point the that comments the to record indicates when or whom improper prejudicial.” were Lion, Inc., incorporated, Red or who Socony Co., 310 Vacuum Oil U. States v. corporate owned its stock. 238, 811, 150, S.Ct. 84 L.Ed. 1129. S. govern principle must the sixteen That Red Lion transactions are silent misconduct, instances of unless asserted respect. purchase in this Defendant’s remaining contentions disclose mis agreement property of the recited that flagrant resulting in conduct of a nature agreed seller, Turpin, convey to pattern prejudicial impropriety. of estate, liquors fixtures real of and stocks pattern We no such is shown. think goods to defendant in consideration $18,400. 1948, prosecu of defendant trans- do condone unqualified to one Fritzel tor’s statement that ferred an undivided in- all de % unwilling chattels, fixtures, liquor in all terest fense witnesses were witness es, responding only subpoena. An and licenses. to How attached schedule objection ever, showed that the value of the remark the stock of defendant’s to $10,796.71 merchandise and that and the strick was sustained remark price $5,398.30. sale thereof was en. And in addition such curative ac % corporate jury tion, Neither transaction alluded the court instructed the any ownership property part was no of the evi oral summation fully item was each reflected was not to Gov- dence and be considered computation. arriving net worth ernment’s at a verdict. gains capital Upon The second ob remark which schedule of de- jection return, was taken tax related to the terms of fendant’s 1948 notations as Cir., F.2d denied certiorari entered with follows were 69 L.Ed. in Red U.S. stock as item listed “Sales and, any event, be can not acquired basis at a cost Lion”: requiring price revers classified as misconduct $4,673.18; sales sold 1948 aat Doyle, we said in al. As United States v. $5,894.85. Gov- In cross-examination 11528, Cir., Weber, 796,, coun- No. defense witness ernment’s States, entry quoting from Malone United interpolated “capital” into this sel immediately preceding 281, 288, “stock”, certiorari denied word L.Ed. 304 U.S. questioned to where value him as “ right up- ‘Counsel make “capital have a reflected stock” was argument any prov computation based evidence of net on the Government’s case, may beginning en in the or which be reason the taxable at the worth periods. ably therefrom, approach inferred make and to the same Counsel took reply counsel, by opposing jury, arguing that made to the in his summation doing and, so, may made item, $4,673.18, statements cost base of improper. which otherwise up would be De an asset should be set as omitted.from evidently trial computation. fendant’s did not opening counsel net worth regard argument Attorney’s vicious or un of the United States context objection conclusively fair as argument was made to one state that his shows ” * * only corporate ment *.’ We think the value reference wholly purchase situation $18,400 unlike the instances included in stock as appearing response misconduct in the relied Turpin cases price paid to was in by upon Berger argument by defendant. United v. counsel. defense the States, 78, 629, 295 U.S. 55 S.Ct. 79 L.Ed. arguing party an infer- for Each was 1314; Johnson, N. Y. Central R. Co. v. supported by the record. The not ence 310, 300, 49 U. S. 73 L.Ed. 279 S.Ct. prepared re- who the 1948 accountant 706; States, Cir., Pierce v. United 6 86 gains capital en- testified that the turn 949; States, 6 F.2d Volkmor United v. upon the trans- thereon were based tries Cir., 13 F.2d 594. between defendant and action Fritzel. entry, word “stock” in that there- The contention the .Defendant’s meaning fore, from the takes its contract incompetent net worth evidence was transaction, which, parties to of the the purpose inadmissible misconceives convey only respect, purports to in this provisions of the 41 Section of the inventory. in If of merchandise a stock 1939, Revenue Internal Code of 26 U.S.C. went outside for Government counsel (1952) that, He 41. insists before the § noted, the ex- in the the record may employed worth method be in opposing response in to an cursion any case, requires income tax Section 41 by the de- hors the record de venture by a determination the Commissioner of overruling error, the ob- fense. Internal Revenue that use of that meth especially inconsequential,

jection clearly od “does reflect the income” of instructions to which allu- view of taxpayer; accused Commis previously made that oral been has sion did sioner determine defendant’s income part evidence. years is no of the by adjustments for the indictment summation reported, to the income fore, and that there may, counsel Government proof may net worth method of times, advo been an overzealous have employed prosecution, be not ab instances, most these his cate. proof that sent Commissioner has went, objection, as in without remarks alleged requisite made determina argument noted. have When we tion. whole, jury considered as is excerpts think it extracted clear that think that Section 41 has present purpose for insuring limited that, for our attention the the context nothing deficiency than zealous ad part more an administrative assessment, most States, taxpayer’s accounting 2 the vocacy, Di Carlo v. see method shall

803 accounts’, by in the der true must employed Commissioner Government be legal expense items be free to all evidence avail- use income allocation of determining years. Unit v. able to it in whether the Holland taxable between 127, story by 121, 131, taxpayer’s States, ac- S.Ct. told books 75 348 U.S. ed curately history.” can have reflects his financial L.Ed. But that section 99 150. legality proceeding application criminal the net worth evidence no depend not is not affected has, and does what the Commissioner based which upon not, or has in a matter. determination. done civil an administrative dealing Therefore, with the To read such a restriction Section cases into Congress. validity 41 orders would the intent of of administrative thwart inapposite. unreported are “The existence of may defendant relies Morgan proved by any g., States, practical 298 v. United method e. See 1288; 468, 906, 80 L.Ed. available particular the circumstances of the U. S. Helvering, 193, 54 S. v. 291 U.S. situation.” United States v. Brown 725; Doyle, Cir., 788, 11528, Ameri No. 7 Lucas v. 234 F.2d 78 L.Ed. Ct. 202, 793; Co., States, Cir., Davis v. United 280 U.S. S.Ct. can Code 538; Willapoint Oysters, Inc., 331, 336, F.2d 965, L.Ed. certiorari denied 350 U.S. Ewing, certiorari S.Ct. 432. 860, 70 94 L. denied 338 U.S. argues Defendant also that the Mfg. Garment Ass’n Ed. Southern method, employed, net worth as here Fleming, App.D.C. probative lacked value should not presented jury. have been Gov obviously no These have cases summary ernment exhibit up proceeding, application to this based computations, relevant net worth showed on three counts of indictment re an understatement income for each of grand jury. wholly It is turned years the taxable for as follows: pre immaterial that indictment was $13,803.94, $36,958.63, and for deficiency ceded an administrative tax 1948, $20,623.18. probative value of against determination proceeding defendant. Such attacked, this evidence is defendant as matter, a validi was civil the serting specific that certain assets were civilly. ty must of which be determined by computing omitted the in Government Here had the burden the Government opening defendant’s net worth and that charges proving made in in the the specific improperly other items were in beyond doubt, and, dictment a reasonable as cluded assets in the net worth com any purpose, for this as in other crim putations year for the 1948. To ex the admissibility prosecution, inal represent that tent these contentions be determined tendered evidence was to merely suggestion weigh a that we con by of evidence. The established rules flicting testimony, they fall within the admissibility question of is not affected postulate stated in United States v. Win validity fact, nature, prior by or aof ston, Cir., 323, 325, 7 222 F.2d that “we touching determination administrative light must consider the evidence subject matter. the same most favorable to the Government and in light of all reasonable now made inferences The contention is not urged might [jury] that in Holland v. United which the unlike draw from the 121, States, page 132, Iacullo, 348 U.S. at 75 S. evidence.” United States v. 7 page Cir., 788, 795, Section 41 re that certiorari Ct. denied 435; use of the 350 the Government’s net U.S. stricts proof pros Yager, Cir., in criminal method States 220 worth it to those cases where is shown certiorari denied 349 U.S. ecutions taxpayer only has no or books that 99 L.Ed. 1285. can We con inadequate, supports books are contention clude that evidence language: verdict; protect rejected say in this “To that we cannot challenged evidence, who do not ‘ren- law, revenue those as a matter of weight error think the other probative to take contentions lacked sufficient respect this are without merit. jury. the case . oil Defendant asserts that certain well concedes The Government $5,000, in the investments amount of contention the merit of defendant’s capital and the value of stock of residence, which was the value of a brick Lion, Inc., $4,673.- Red the amount erroneous sold defendant erroneously omitted from the were opening ly net worth from the omitted opening computation. net What worth gains capital computation. sched respect we have said with the Red lat for the ule of defendant’s tax return reviewing Lion stock in the contention year property was ter states that that toas misconduct of counsel Government acquired a cost in 1945 at defendant disposes of this item. The entries only $11,000. is the Since this basis defendant’s 1946 tax return which are respect with evidence record support said to assertion that defend- prop acquired this defendant time when acquired “Capital ant stock” in 1945 erty, should, as the Government the sum were an obvious reference a stock concedes, as have included as an been goods inventory. record is silent computation of defendant’s net set ownership as to the existence or of Red 31, 1945. This as of December worth corporate respect Lion shares. With only however, omission, Count I. affects investments, the oil well the evidence is unreported the total Since posi- in conflict. The record contains year computation fa most testimony acquired tive that defendant vorable to the is an amount Government jury these assets in and the could approximately only, $13,800, feel against question have resolved this de- must have resulted in that this omission conflicting review fendant. The evi- prejudice to defendant as to the serious beyond scope dence is of our function. charges employing of Count I. When objects method, Defendant also includ- net worth items the Government closing prove, beyond doubt, ed as assets in the must worth reasonable allegedly amount of lia which were liabilities. There “that substantial tax conflicting bility willfully is, however, testimony been Unit has averted.” with might Doyle, 11528, Cir., to each of States v. No. them. well ed F.2d.788, States, note, Sasser United our review on but we conclude briefly refer to the evi- 208 F.2d 535. result of this think it wise to interject proof dence transactions. omission was into the as these figure I to Count erroneous grew $12,000 first item is a tending reduce would the evidence to $35,000 by held out of a cashier’s check prove “a of tax li substantial” evasion year defendant at the end of the taxable ability support to that which would a check, by 1948. This the Union issued . finding maximum willful evasion in an Company Trust Bank and National Elgin, only slightly exceeding $2,800. amount defendant, payable to his The error accounts for almost 80% per- named wife and one Gordon. the computation. shown deficit Government's signed payable promissory to note sons a only speculate canWe as $23,000. In amount of Union jury to whether the would have found a computing net worth at the defendant’s year. for substantial evasion that $35,000 check was in- close magnitude an error of this think computative a $23,000 an note as asset and cluded $14,000 total of less than liability. Defendant contends that aas prejudiced necessarily defendant. The computation a does not reflect re- this judgment to I as Count is reversed. transaction which defendant bor- lated fully $12,000 representing re- item was rowed dif- mentioned The last computations and between the Union note ference the net worth flected charges First National proof of check from the going of the Bank. to the positive III; consequently, testimony record includes we The and II Counts the investi- Fourth When considera- Amendment. on the check issued Union that gation began, Agent Special and $12,000 Weber cash $23,000loan and of the tion Agent presented them- that Revenue Auld testified paid Gordon defendant. Highland where for selves at office supplied funds none he they lat- that met defendant asked and that purchase of the check obligation permitted partnership of be to examine the was used to relieve ter deny that books. that he witness testified Defendant does not note. One participant this to their of the a consented examination National was First argues $12,000. books, but that the evidence ob- extent to the transaction suppressed re- clearly Union tained should have been be- shows that record $23,000 obli- did that as a cause Weber not reveal he was the transaction corded gation. Agent Special purpose not or that he had a testified disclose Gordon investigation. respect, Na- in favor First a note executed tional, of such a Weber he transac- testified when met de- and no record Highland, produced. fendant at he identified him- tion was Special Agent, displayed self as a his of tes was also a conflict There and asked credentials to examine the timony respect $7,500 with a trans partnership; books that defend- Afield between defendant and one action ant consented to the examination and supply any purchased another in which Gromer bookkeeper directed payable $15,000 cheek de cashier’s a agents books and records which the fendant, latter which the endorsed and, wanted, sought that, thereafter, he Both to Gordon as a loan. delivered and received the consent of defendant’s re transactions occurred in 1948. With co-partner might that he examine the spect transaction, there the Afield books. dispute $7,500 was a as to whether the argument represented actually essentially loan made or This is not dif mere whether it was a commitment to ferent from that advanced Turner v. States, Cir., pay Affeld’s account sums to the ex cer $7,500 upon proper tiorari denied 350 tent demand. U.S. figure up closing This wherein was set defendants contended that evi corresponding worth asset dence obtained from without lia their books and rec bility. $15,000 suppressed, With ords should have spite check been de purchased he Gromer testified that their consent it for examination of books, defendant and delivered it to De the reason that him. the in agents vestigating fendant insists that there is no evidence warned them purchased might the check was with de the evidence used in a fendant’s prosecution. funds. We have examined the criminal The court there record believe there was aptly stated, sufficient page 222 F.2d at 931: “The jury upon evidence submit each agents investigation made no to which of these matters. There was substan did defendants not consent. The book which, believed, sup tial if evidence keeper was ordered the defendants to finding ported requisite the that defend show the books and of records the busi willfully ant understated * * his income agent; ness to *. the The evi substantial amounts in both and 1947 Agent is silent dence as whether to 1948, receipts and that black-market re began investigation the Forbes as a rou by him ceived in the sale of automobiles examination to tine ascertain the civil likely was the of source his enhanced liability of defendants or intended net worth. beginning to search for evi if Defendant insists dence of crime. But even further that the latter made, assumption partner evidence obtained from was no there vio ship Highland taxpayer’s books of Motor Sales lation of constitutional rights. inquiry always should have been excluded from is gives evidence relevant illegally taxpayer freely as in seized violation whether the of the his

806 argu remaining dis is no Defendant’s there consent, toas that alleged defense of principle ment to relates This pute instance.” in this Gro He contends that v. United embezzlement. approval in Zacher cited with mer, co-partner, in 1951 219, filed a suit certiorari States, F.2d 8 227 Highland 542, partner of for dissolution 993, 76 S.Ct. denied 350 U.S. Eggleton charging ship States, Cir., defendant had em 6 227 F. that v. United arising partnership out of funds bezzled overceiling 493, cases. evasion both 2d He sales of automobiles. as briefly defendant’s note We refusing in to that court erred serts deny charge trial court erred that the stipulation of the admit evidence the sup hearing, ing, his motion to without settling refusing parties that suit and made evidence, which was press this give to defendant’s tendered instructions supported defend prior trial and to. relative the defense of embezzlement. however, think, We ant’s affidavit. Argument appeal phase of on this hearing duty to afford a trial court of rests on decision of Commissioner by the upon is limited motion such a Wilcox, 404, 327 Internal Revenue v. U.S. respect, In this prayer motion. of the 546, moneys 752, 90 66 S.Ct. L.Ed. deny, affidavit, defendant, did not in his obtained do not consti embezzlement tacitly, rather, admitted least but tute embezzler. think books, examination of the he consented inapplicable to that decision is the case says of not know of Weber’s he did but rulings of at bar that the the court Agent. only Special of ficial title below were correct both as to the ad production hearing requested of was the and as to mission evidence instruc special prescribing the duties 'manuals tions. showing agents. no to war There sought hearing, granting Defendant of a inasmuch introduce rant the stipulation in prove the course of that the the cross- no offer as there was plaintiff’s agents examination witness Gro was submitted evidence mer, and to Cf. cross-examine the defendant’s consent. witness other than with States, 147, with the 1951 lawsuit. The 348 United U.S. Smith v. ruled that this court evidence was be 99 L.Ed. 75 S.Ct. yond scope proper cross-examina unlike United States v. case is Gromer was not tion. called as a de F.Supp. 528, Wolrich, D.C., 129 in which witness, attempt fense and no was made treasury was evidence that there introduce evidence to a defense agents defendant’s consent secured in defendant’s embezzlement case in investigation the merely assurance believe, brings This, ques chief. routine, fact, when were holding our tion within in United States seeking of fraud for criminal evidence Bender, Cir., certio suggestion prosecution, is no There rari denied 349 U.S. deception as the court condemned such 1253, that L.Ed. the control over the States, v. United U.S. Gouled orderly presentation of evidence resides 261, L.Ed. 647. There is no judge. in the sound discretion trial suggestion ap- lack consent as States, Cir., any event, peared in Fitter v. United the defense of embezzlement, Brasley, rule, 258 D.C., States under Wilcox F. has application bar, of In re Sub- no to the case at 268 F. 59. The case since Tecum, D.C., F.Supp. poena under Illinois law defendant Duces cannot be compulsory acquisition guilty of the crime embezzlement involved be wrongful partnership of records which were used in cause his conversion of against partners. partnership of to own one the funds his use. I.R. evidence S., Here, partners postulate, consented to the c. both ex- S.H.A. § record, Upon supported the this Illinois amination. must decisions inter statute, preting having this is that the evidence obtained from one conclude Highland's properly property pos- in interest funds in books was admitted. his guilty page if E. is of embezzlement at session 974: “If he took the suit in- wrongfully appropriates dependently the whole clearly he for himself he was Ehle, People fees, own v. 273 entitled fund his use. and he was not liable to 970; People O’Far Ill. 112 N.E. v. indictment for embezzlement this mon- McElroy ey, rell, disbarment, Ill. 93 N.E. or until after a de- People, upon 202 Ill. 66 N.E. 1058. mand had v. been made him for the necessary of em A element of the crime amount and a tender made expenses. his reason- abso bezzlement is the existence an able fees and But no demand right property in other lute someone was ever made.” alleged McElroy than the People, embezzler. v. People O’Farrell, Ill. 93 N. supra. good E. furnishes a illustration of application principle. the of this O’Far Thus, McElroy, defendant, a com agent Vickerage rell was for one to col salesman, mission was convicted an lect the rents from a hotel and also to charging indictment her with the em negotiate its sale. The indictment proceeds of certain the bezzlement charged that O’Farrell had embezzled appeared as sales. Inasmuch it from both the sums collected as rents and the evidence that defendant was enti Colgrove, those received from one in ef tled proceeds deduct her commissions the fecting property. sale the real It paying sales of such before appeared agency, that O’Farrell’s in each prosecuting over balance to wit grew instance, separate out of contracts. ness, the court reversed conviction provided The first that he was to pages 475-476, deduct saying, 202 Ill. N. his commissions from funds collected “By statute, as page E. at 1059: rent to remit the net fund to Vick order to constitute the crime of embez erage. agency contract for the zlement, sale fraudulent conversion must provided of the hotel that O’Farrell was property of If another. to receive a commission for the right sale of plaintiff had a to deduct her com property, provision but made no gross for from the amount missions collect his retention his commission out of ed, money belong then to that extent the funds received for the sale. The her, is, court company she ed to held there was no embezzlement of gross jointly. owned the sum The law rent funds since O’Farrell had an in that, where a has defendant an inter therein, terest but affirmed the money alleged convic property or in the est tion because of his conversion of the fraudulently sale have been converted proceeds in which he had no use, interest. or her there own can be no convic tion the crime of embezzlement.” Before arise, embezzlement can the funds in the fiduciary hands of a Ehle, the conviction embezzle must be held obliga under an absolute upon proof defendant, ment rested tion another, to remit them taking but attorney Burns, had settled a of the whole of a fund cannot possessed by latter, constitute claim posited had de embezzlement, fiduciary if the has an in check therefor his own duty only terest it to account account and had checked bank the sum to another for his distributive personal share for his own out use. court thereof. This summary is a fair follows, applicable stated the rule as law of Illinois as established page 432, page Ill. at N.E. at 973: “ * * * interpreting cases an act all agent relevant guilty an would not be respects identical to 208. § See also agent if embezzlement such had in People Becker, 414 Ill. 111 N.E.2d part ownership terest in or involved, of the funds accounting or until an had been pay demand and refusal to Defendant had an undistributed one- agent prin amount due from cipal.” partnership such to his half interest funds in reversed, question. duty The conviction was His to Gromer was that saying, page accounting Ill. court for N. the latter’s distributive guilty Rehearing share, be for could not On Petition and defendant embezzlement, ac- until an at least Upon defendant's conviction on three sought counting and Gromer been charging counts of an tempts at- indictment sought accounting un- No refused. payment to evade the 1951. til years 1946, taxes for the taxable filed, filing, causing and 1948 or to be if were an embezzlement Even this and returns false fraudulent income tax of such share Gromer’s distributive 145(b), (I.R.C. in violation of 1939), income, 26 U.S.C. partnership § black-market count, sentenced, he was each precautionary on took the Government years prison, to two allowing serve sen- this one-half measure concurrently. run tences to from partnership income as deduction a de- understand do not appeal, worth. We On we reversed the conviction em- that he contention be fendant’s I to Count affirmed as Counts share. Un- his own distributive bezzled petition II and III. a Defendant’s based, contend- result were rehearing less such an absurd alia, upon is inter ar- any event, embezzlement, ed, re- is guments sufficiency addressed to case. moved guilt prove upon the evidence to theory proof. net worth We think vague is made that A assertion nothing thereby points is added Highland may connected with someone argued appeal. raised ad-We funds the black-market embezzled have belonging affirming judgment to our the con- here partners. The diffi to both as to two viction counts. argument culty that the rec with this question A rather troublesome raised any wholly such evi devoid of ord is petition upon is one which de re Insofar as the instructions dence. rely did fendant not either in the trial may jected by have been court the trial namely, appeal, court or us on before grounded upon contention, a such sentence is As we invalid. have properly It was incum refused. were previously stated, charged the indictment prove upon to assert defendant bent separate attempts three to evade income rely wanted if he such embezzlement by filing taxes false and fraudulent re not He is entitled such defense. charge turns, repeated which has been resting upon specu mere to instructions ly allege felony held defined wholly manufactured assertions lative 145(b).1 g.e. Section See United States from thin air. Co., Brass v. Beacon 344 U.S. 73 S. 61; Ct. 97 L.Ed. United States judgment As to Count I the Raub, II is reversed. As Counts and III it is Rosenblum, Cir., States prison Inasmuch as identical affirmed. certiorari denied 338 U.S. imposed upon count, each sentences were 239, 94 548. L.Ed. Defendant now sentences, expressly, all and inasmuch as contends, time, for the first concurrently, be served our re are to charge contains the elements of the mis judgment up of conviction versal 3616(a), in 26 demeanor defined U.S.C. § single does on a count not necessitate (I.R.C.1939) 2, that those elements new trial. willfully attempts in guilty thereof, or or defeat or or cution.” “(b) imprisoned both, other * * of a payment be together any penalties provided fined *. felony and, upon tax for not more Any person thereof, shall, not more with the costs imposed by any manner to evade than five than * * * by law, in addition conviction $10,000, chapter prose years, who be 2. “Whenever es to tent ^[*] fraudulent or be sessment costs of or “he “(a) False returns. Delivers or disclos- both, the collector shall imprisoned defeat or at the prosecution.” intended to ^[*] list, any person— discretion fined not return, evade the ^[*] * * * any be exceeding made; * * exceeding $1,000, * * * *, ^[*] court, one with false year, with as- in- or ^[*]

809 page 134, 688. page at S.Ct. respects 76 U.S. at all felony are of the those implication of however, held, that the therefore, It er it was that, identical question law overlapping a of was impose such a sen trial court for the ror raised had not been which for the court prescribed for greater that than tence ques- “no such and that trial 3616(a). in the court misdemeanor § at 351 U.S. presented here.” tions are page government that both § admits The 135, page 688. at S.Ct. 76 3616(a) apply to income 145(b) and § dissenting ground. Black filed a Mr. Justice identical and cover returns tax Douglas govern opinion, in Mr. Justice however, contends, It stating joined, would that he reverse authority under to elect has the ment judgment, or, case to or at least remand the proceed, al will statute it which ternatively, resentencing un- “for subsequent court the district enact statute, 3616(a).” 3616(a) der the misdemeanor repeals § ment, 145(b), § § 140, page page 351 76 S.Ct. at U.S. at implication. upon post- based 691. dissent is reaching of merits defend- Before presented an issue ulate that the case petition, determine wheth- must ant’s we affecting rights. plain error substantial properly question be raised at can er the that it date. think cannot. this late only canWe that the conclude advisedly, pur- say do not We port majority opinion inherently in Berra im whether, were the to determine pels question a determination that open one, question would construe an plain us before does not reflect error. overlapping two stat- conceded 52(b) designed Rule to reach errors question plain error a “affect- utes as they such substantial nature that ing rights” no- and therefore substantial would, corrected, if not result in mani * * * brought “although not ticeable miscarriage justice. fest United court.” to the attention the [trial] Carpenters Brotherhood of v. United 52(b), 18 Crim.Proc. U.S.C.A. Fed.Rules States, 395, 775, 330 U.S. 67 S.Ct. 91 L. that the think that a determination We question 973; Vasen, Cir., Ed. United States v. 7 present does such error 3, 222 F.2d certiorari denied 350 U.S. pronouncements recent manifest Inasmuch errors within the com Supreme Berra v. United Court prehension provisions rule of this 685, which, States, 131, 351 U.S. S.Ct. 76 are those of such a nature that validity least, imply that the a sen- prevent must be corrected to manifest challenged 145(b) tence under by must be § injustice, it is incumbent a review appropriate proceeding in the trial ing sponte court such error to notice sua court. although presented the issue raised is not in Berra was all ma- indictment respects appeal. States, v. United Screws 325 terial identical to that before 91, 107, 65 U.S. 89 L.Ed. all Berra us. At the close of the evidence 1495; Cir., Dressler, States v. United 7 requested an instruction “that a verdict 972; States, Lash 112 F.2d v. United guilty crime’ ‘lesser under § Cir., 221 certiorari F.2d denied 350 3616(a) permissible.” would 351 U.S. 55; United U.S. States, Cir., 76 S.Ct. Austin v. page page 76 S.Ct. at 687. Al- at though 420; Simmons affirming decision Court’s States, U.S.App.D.C. v. United Berra’s is restricted the nar- sentence Kemble, F.2d United States v. requested question in- row whether that Cf. 197 F.2d 316. United States refused, properly struction Jonikas, Cir., certiorari concluding that did Court refusal denied 344 97 L. U.S. error, the not constitute intendments Ed. 679. opinion much broader. are assumed, arguendo, pronounced face of this both In the Court § appellate courts, 145(b) duty upon 3616(a) applied see federal and “cov- § States, supra, ground.” precisely the Court ered the same Screws took, position is- that the Berra overlapping implication sue of 3616(a) pre- 145(b) was not presented §§ no served because Berra challenge proper to the sentence to the dissenting trial court. As the aptly observed, Justices page 137, U.S. page 689,

S.Ct. at the instruction which requested

Berra advised the lower court “petitioner’s of- contention charged felony was not a but a fense question If not

misdemeanor.”

preserved for under review the circum- case, certainly of that it cannot

stances appeal on raised in which there no intimation of below the error appeal imposition of sentence or on until rehearing petition for was filed. petition is denied. America ex rel. STATES UNITED PISCIONE, Alexander Appellant, Henry Lavine, Cleveland, Ohio, for C. appellant. Charge, LEHMANN, Officer John M. Cockley, Atty., H. U. S. Eben Asst. Immigration & Naturalization Cleveland, Ohio, Canary, Sumner Cleve- Service, Appellee. land, brief, appellee. Ohio, on No. 12733. SIMONS, Judge, Chief Before Appeals Court of United States Judges. MILLER, ALLEN and Circuit . Circuit. Sixth July PER CURIAM. Following hearings administrative 8, 1951,

June and March an order August 21, deportation was entered on the Assistant Commissioner of Immigration and Naturalization order- ing deported grounds appellant on the (1) entry that immigrant at the time of he was an possession of a valid immigration exempted visa and was not requirement, (2) from such at the time entry present unexpired he did not by government passport issued of country allegiance, he owed (3) he sentenced im- had. been

Case Details

Case Name: United States v. Sam Achilli

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 31, 1956

Citation: 234 F.2d 797

Docket Number: 11575_1

Court Abbreviation: 7th Cir.