United States v. Litman

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation246 F.2d 206
Docket NumberNo. 12152.,12152.
PartiesUNITED STATES of America v. Benjamin N. LITMAN, Appellant.
Decision Date08 July 1957

Leonard J. Schwartz, Philadelphia, Pa. (J. Victor O'Brien, Philadelphia, Pa., on the brief), Fox, Rothschild, O'Brien & Frankel, Philadelphia, Pa., for appellant.

John A. Erickson, Asst. U. S. Atty., Philadelphia, Pa. (G. Clinton Fogwell, Jr., U. S. Atty., Philadelphia, Pa., on the brief), for appellee.

Before BIGGS, Chief Judge, and GOODRICH and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

A jury has found appellant guilty of the crime of knowingly and willfully failing to make income tax returns at the times required by law for the years 1952, 1953 and 1954. Appealing this conviction, he urges, first, that the court should have entered a judgment of acquittal because willfulness within the meaning of the statute1 was not proved and, second, that the trial judge committed fundamental error in his charge.

The defendant is a physician whose income is derived principally from the ownership and operation of a small private hospital. No income tax returns were filed by him for the years 1952, 1953 and 1954 until March 16, 1956. Three extensions of time, aggregating the six-month legal maximum, had been granted postponing the required filing of the 1952 return until September 15, 1953. Similarly, extensions of time for filing the 1953 return postponed the due date until September 15, 1954. The 1954 return was not in default until October 16, 1955, as a result of similar extensions of time. These extensions were requested for the defendant by his accountant and the reasons given each year were that the accountant was ill and overburdened with work.

These explanations are to be contrasted with those offered by the defendant himself in writing and by his accountant orally in the spring of 1955, shortly after the defendant was notified by the Internal Revenue Service that it was investigating his failure to file returns. The excuses then given were that essential records could not be found after a dishonest bookkeeper had left defendant's employ, and that defendant — not the accountant this time — had been ill. Indeed, according to the defendant's 1955 story, the lost records had just been found and the preparation of the returns was about to go forward.

When this case came on for trial only the accountant, other than character witnesses, testified for the defense. He then stated that he had discovered that records essential to the preparation of defendant's returns were missing in January 1954, and that he himself had found them more than a year later, in May 1955, mixed in with some of the defendant's medical records. The defendant is not shown as assisting in the search until he joined the accountant in looking for the records on one day in October 1954. Even this is somewhat at odds with testimony of a revenue agent that the defendant told him of beginning the search for the missing records in December 1954, nearly a year after the date of discovery of loss as stated by the accountant.

The accountant also testified that the 1952 records of defendant's cash receipts and disbursements were incomplete and that as early as 1953 he undertook to instruct defendant's changing clerical helpers in the proper procedures of record keeping. He characterized successive clerical employees of the defendant as "incompetent".

We think this evidence gave the jury an adequate basis for a finding that the defendant's failure to file income tax returns when due was "willful" in that the omission was advertent and motivated by the bad purpose of preventing the government from receiving returns at the time required by law. To begin with, the delay in filing was great and persistent over three consecutive taxable years. Such a pattern of behavior, as distinguished from a single occurrence, itself suggests willfulness. Next, the excuses given to support requests for extensions of filing time were quite different from those given later to cover the same periods of delinquency. Moreover, on the defendant's own statement a very damaging inference could reasonably be drawn from the fact that financial records, which allegedly could not be found for a year and a half, appeared very quickly among defendant's medical papers after an official inquiry was announced. Along the same line, the jury may well have considered it revealing that the accountant complained to the defendant of inadequate records as early as his 1953 attempt to prepare a 1952 return, but did not receive adequate data until about the time the Internal Revenue Service instituted its 1955 investigation. There was...

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28 cases
  • Edwards v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 18, 1963
    ...v. United States, 248 F.2d 944 (4th Cir. 1957), cert. denied, 355 U.S. 940, 78 S.Ct. 428, 2 L.Ed.2d 421 (1958); United States v. Litman, 246 F.2d 206 (3d Cir.), cert. denied, 355 U.S. 869, 78 S.Ct. 118, 2 L.Ed.2d 75 (1957) (the omission must be "advertent" and motivated by "bad purpose"); Y......
  • United States v. Malinowski, Crim. A. No. 70-717.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 27, 1972
    ...of the legal obligation and the purpose to prevent the government from getting that which it legally requires. Accord, United States v. Litman, 246 F.2d 206 (3 Cir. 1957), cert. denied, 355 U.S. 869, 78 S.Ct. 118, 2 L. Ed.2d 75 (1957); United States v. Martell, 199 F.2d 670 (3 Cir. 1952), c......
  • United States v. Vitiello
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 15, 1966
    ...States v. Palermo, 3d Cir., 1958, 259 F.2d 872; accord Haner v. United States, 5th Cir., 1963, 315 F.2d 792; cf. United States v. Litman, 3d Cir., 1957, 246 F.2d 206. Our affirmative statements of the meaning of "willfulness" in section 7203 or its predecessor clearly exclude any type of ca......
  • Ayash v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 29, 1965
    ...241 F.2d 790, cert. denied 354 U.S. 921, 77 S.Ct. 1379, 1 L.Ed.2d 1436; United States v. Litman, U.S. 869, 78 S.Ct. 118, 2 L.Ed.2d 75. 3 Cir., 246 F.2d 206, cert. denied 355 Ordinarily, evidence of crimes other than the one charged is not admissible in the criminal prosecution. Hughes v. Un......
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