Mitchell v. United States

• Decision Date: 31 May 1955
• Docket Number: No. 14711.,14711.
• Citation: 221 F.2d 554
• Parties: David H. MITCHELL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

221 F.2d 554 (1955)

David H. MITCHELL, Appellant, v. UNITED STATES of America, Appellee.

No. 14711.

United States Court of Appeals Eighth Circuit.

May 3, 1955.

Rehearing Denied May 31, 1955.

Howard F. Sachs, Kansas City, Mo., Phineas Rosenberg, Harlow B. King and Morelock, Hoskins & King, Kansas City, Mo., were with him on the brief, for appellant.

Joseph L. Flynn, Asst. U. S. Atty., St. Joseph, Mo., Edward L. Scheufler, U. S. Atty., Kansas City, Mo., was with him on the brief, for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

GARDNER, Chief Judge.

This case is before us for the second time pursuant to a judgment of the United States Supreme Court which vacated the judgment of this court and remanded it "for consideration in the light of Holland v. United States 348 U.S. 121, 75 S.Ct. 127, Friedberg v. United States 348 U.S. 142, 75 S.Ct. 138, Smith v. United States 348 U.S. 147, 75 S.Ct. 194, and United States v. Calderon 348 U.S. 160, 75 S.Ct. 186. We have not considered the merits of these cases, nor have we determined their relationship to our recent opinions, supra, believing that reexamination by the Courts of Appeals is desirable even in those cases remotely involving the principles laid down in the net worth decisions."

The case has accordingly been reargued and resubmitted. The basic issues are outlined in our prior opinion reported as Mitchell v. United States, 8 Cir., 208 F. 2d 854. They have not been changed by the judgment of the Supreme Court vacating our decision but the case has been remanded for reexamination because it as tried in the District Court "remotely" involved proof of net income by resort to the so-called net worth theory.

Although defendant interposed no motion for acquittal at the close of all the evidence and saved no exceptions to the instructions as given by the court, he nevertheless on this reexamination urges that the evidence was insufficient to sustain the verdict and that the court committed error in certain of its instructions, and in effect now seeks to retry his case de novo in this court. Thus he contends that:

"1. In income tax prosecution based on net worth theory, there was failure of proof when the Government failed to present evidence that alleged increase in assets was attributable to taxable income rather than non-taxable sources, in that the Government failed to prove a likely taxable source from which the jury could reasonably find that the alleged net worth increases sprang; and under current authorities there was error in submitting such deficient evidence to the jury.

"2. In income tax prosecution based on net worth theory, where alleged net worth increases were evidenced by the Government\'s net worth statement based on cost of assets, the trial court erred in admitting into evidence over objection appellant\'s financial statements based on market values which greatly exceeded cost as an alleged admission supporting said net worth proof; and the trial court further erred in instructions using said market value financial statements as alleged proof of net income under the net worth method.

"3. Under current authorities, the trial court erred in instructions in relation to the net worth method of proving income, in that it did not present a summary of the nature of the net worth method the assumptions on which it rests, and the inferences available for the accused."

As has been observed there was no motion for acquittal interposed by defendant at the close of all the testimony. Only by the interposition of such a motion is the question of the sufficiency of the evidence to sustain a verdict made a question of law reviewable by this court. Leeby v. United States, 8 Cir., 192 F.2d 331; Meier & Pohlmann Furniture Co. v. Troeger, 8 Cir., 195 F.2d 193; Mitchell v. United States, 8 Cir., 208 F. 2d 854, 856. We must therefore again decline to consider the question of the sufficiency of the evidence to sustain the verdict further than to observe in passing that quite aside from the evidence as to taxable income for the years in question...