235 F.2d 710 (8th Cir. 1956), 15428, Hanf v. United States

Docket Nº:15428.
Citation:235 F.2d 710
Party Name:Eugene E. HANF, Appellant, v. UNITED STATES of America, Appellee.
Case Date:July 25, 1956
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 710

235 F.2d 710 (8th Cir. 1956)

Eugene E. HANF, Appellant,

v.

UNITED STATES of America, Appellee.

No. 15428.

United States Court of Appeals, Eighth Circuit.

July 25, 1956

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[Copyrighted Material Omitted]

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C. Stanley McMahon, St. Paul, Minn., for appellant.

Alex Dim, Asst. U.S. Atty., St. Paul, Minn. (George E. MacKinnon, U.S. Atty., St. Paul, Minn., on the brief), for appellee.

Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit judges.

VOGEL, Circuit Judge.

Eugene E. Hanf was tried before and convicted by a jury on Counts 1 and 3 of an indictment charging a violation of 26 U.S.C.A. § 2857, 26 C.F.R. § 194.75 and 27 U.S.C.A. § 203(c)(1). Prior to trial, the court, on motion of the government, dismissed Count No. 2. The indictment, insofar as it may be pertinent herein, is as follows:

'United States of America, Plaintiff, v. Eugene H. Hanf, Defendant.

Indictment

'(26 U.S.C., Sec. 2857, 26 C.F.R., Sec. 194.75)

'The Grand Jury charges:

'Between October 16, 1953, and July 1, 1954, inclusive, in the City of Austin, County of Mower, State and District of Minnesota, Eugene E. Hanf, did then and there wilfully, wrongfully, unlawfully and intentionally fail to make entries in and properly keep Record 52B, 'Wholesale Liquor Dealer's Monthly Report', and Form 338, 'Wholesale Liquor Dealer's Monthly Report (Summary of Forms 52A and 52B)', and knowingly and intentionally and wilfully submitted and filed said forms and documents, containing false statements and false entries, with the United States Treasury Department, Internal Revenue Service.

'Count II

'(Dismissed.)

'Count III

'(27 U.S.C., Sec. 203(c)(1).)

'Between October 16, 1953, and July 1, 1954, inclusive, in the City of Austin, County of Mower, State and District of Minnesota, Eugene E. Hanf, did wilfully, wrongfully, unlawfully and intentionally engage in the business of purchasing distilled spirits for resale at wholesale, without first having procured a wholesaler's basic permit.'

At all times dealt with herein, the appellant had been an off-sale retail liquor dealer in Austin, Minnesota, doing business under the name of Bell Liquor Store. He was also the holder of a wholesaler's special tax stamp under the provisions of 26 U.S.C.A. § 3250(a)(1), 1939 Internal Revenue Code. As the holder of a wholesaler's special tax stamp, the appellant was permitted to sell distilled spirits in lots of five wine gallons or more to the same person at the same time provided he kept Treasury Department records Forms 52, 52A, 52B and 338 as required by 26 U.S.C.A. § 2857(a), 1939 Internal Revenue Code, and the regulations issued by the Commissioner of Internal Revenue to be found in 26 Code of Federal Regulations, § 194.75(a).

Appellant made no reports on the required Forms 52A and 52B. Form 338 was falsified and, as such, submitted. The government further established that beginning in 1952 and including the time

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covered by the indictment substantial sales were made in excess of five wine gallons at one time to one person but that such sales were not reflected in the forms hereinbefore mentioned.

It was the position of the government that under the Internal Revenue laws the appellant, as the holder of a Federal Retail Liquor Dealer's Stamp, was permitted to sell distilled spirits in quantities of less than five wine gallons to the same person at the same time and, under the Internal Revenue laws, the appellant, as the holder of a Federal Wholesale Liquor Dealer's stamp, was permitted to sell in quantities of five wine gallons or more to the same person at the same time, but that under the provisions of 27 U.S.C.A. § 203(c)(1) the appellant was not permitted to sell to trade buyers for resale unless he was the holder of a basic permit; that appellant had never applied for a basic permit and has never been issued a basic permit at any time, and that accordingly he had no right to purchase distilled spirits at wholesale for resale to trade buyers. That he did purchase for resale at wholesale is beyond dispute. Upon conviction, the appellant was sentenced to a period of imprisonment of 3 months and a fine of $1500.00 on Count 1 and to pay a fine of $1, 000.00 on Count 3, the appellant to be imprisoned until payment of the fines or until otherwise discharged as provided by law.

Appellant raises five points on appeal to this court. They will be considered in the order in which they appear in appellant's brief.

Appellant's first point goes to Count 1. Appellant claims that 'Count 1 of the indictment does not charge an offense against the United States in that it does not contain the essential facts of the offense intended to be charged'. One of the principal cases relied on is Harris v. United States, 8 Cir., 1939, 104 F.2d 41, 44. In that case the first paragraph of the indictment charged defendant with making 'a false 'Statement of Mailing" and later in the second paragraph referred to the instrument as a 'receipt'. The court concluded that two different instruments were contemplated; therefore the charge against defendant was ambiguous or at least not clear. To establish a crime, it was necessary that the paper be properly identified and this was not done. In the instant case, there was no question of proper identification. The statute violated was clearly set forth. Appellant was aware, or could have been made aware, of the offense being charged. The material facts constituting the offense were alleged. Failure to state every fact concerning the offense does not destroy the entire pleading. In short, in the Harris case the indictment was flagrantly deficient. It and the other cases cited by appellant are not authority for appellant's contention.

With reference to the question of sufficiency of the indictment, the trial court, in denying appellant's motion to dismiss Count 1, stated:

'The purpose of an indictment is to acquaint a defendant with the offense with which he is charged so that he can prepare his defense and protect himself against double jeopardy. As defendant points out, Count 1 does not allege that Hanf is a person who is required by law to keep such records and make such reports as are set forth in this count. However, that this indictment acquaints the defendant with the charge is evident, and in view of the charge that he unlawfully failed to comply with the statute, to all intent and purposes he is informed that he is one of the persons who is required under the law to keep such records and file such reports. A reading of the indictment would permit no other interpretation, and defendant was fully acquainted with the Government's contention that he was required under the law to make such records and to file such reports as fully as if a formal statement in the indictment was made to that effect.'

In a similar attack on an indictment, this court said, in Hewitt v. United States, 8 Cir., 1940, 110 F.2d 1, 6,

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certiorari denied 310 U.S. 641, 60 S.Ct. 1089, 84 L.Ed. 1409:

'The sufficiency of an indictment should be judged by practical, and not by technical, considerations. It is nothing but the formal charge upon which an accused is brought to trial. An indictment which fairly informs the accused of the charge which he is required to meet and which is sufficiently specific to avoid the danger of his again being prosecuted for the same offense should be held good.'

See also United States v. Goldberg, 8 Cir., 1955, 225 F.2d 180; Wolpa v. United States, 8 Cir., 1936, 86 F.2d 35, certiorari denied 299 U.S. 611, 57 S.Ct. 317, 81 L.Ed. 451; Cowl v. United States, 8 Cir., 1929, 35 F.2d 794, 797, and cases therein cited.

We are of the opinion that here the indictment sufficiently apprised the appellant of the formal charge which he had to meet. If he desired further information, a demand for a bill of particulars was open to him under Rule 7(f), Federal Rules of Criminal Procedure, 18 U.S.C.A.

Appellant's second point is also against Count 1 of the indictment. It is that 'Count 1 of the indictment is duplicitous in that it charges more than one offense in one count'. The government's first reply to the charge that Count 1 of the indictment was duplicitous is that the attack thereon for duplicity was not timely and was properly denied for that reason. The government points to Rule 12(b) of the Federal Rules of Criminal Procedure which provides in part as follows:

'(1) Defenses and Objections Which May Be Raised.

'Any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion.

'(2) Defenses and Objections Which Must Be Raised.

'Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding.

'(3) Time of Making Motion. The motion shall be made before the plea is entered, but the court may permit it to be made within a reasonable time thereafter.'

The indictment against the appellant was returned on September 9, 1954. On September 27, 1954, the appellant appeared with his counsel...

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