321 F.2d 261 (8th Cir. 1963), 17079, Gajewski v. United States

Docket Nº:17079.
Citation:321 F.2d 261
Party Name:Loren R. GAJEWSKI and Mervin A. Gajewski, Appellants, v. UNITED STATES of America, Appellee.
Case Date:July 26, 1963
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 261

321 F.2d 261 (8th Cir. 1963)

Loren R. GAJEWSKI and Mervin A. Gajewski, Appellants,

v.

UNITED STATES of America, Appellee.

No. 17079.

United States Court of Appeals, Eighth Circuit.

July 26, 1963

Rehearing Denied Aug. 26, 1963.

Page 262

Francis Breidenbach, Bismarck, N.D., and John Fred Schlafly, Alton, Ill., for appellants; W. A. Jacobsen, of Watford City, N.D., on the brief.

Page 263

John O. Garaas, U.S. Atty., Fargo, N.D., for appellee.

Before JOHNSEN, Chief Judge, MATTHES, Circuit Judge, and GIBSON, District Judge.

MATTHES, Circuit Judge.

Loren R. Gajewski and Mervin A. Gajewski, appellants, are brothers (42 and 36 years old, respectively,) and are the children of Otto A. Gajewski, who died in 1959, and Lillia B. Gajewski, who died in 1961. At all times pertinent to this proceeding appellants were engaged principally in farming in McKenzie County, North Dakota.

In three counts of an indictment filed October 24, 1960, appellants were charged with committing conspiracies in violation of 18 U.S.C.A. § 371. 1 In the fourth count of the indictment Loren R. Gajewski was charged with a substantive offense.

In summary, Count One alleged that on or about June 22, 1954, prior thereto and continuing thereafter, appellants unlawfully conspired and confederated together and with Otto A. Gajewski, to defraud the United States by impeding, obstructing and attempting to defeat the operation of the Agricultural Adjustment Act of 1938, as amended, (7 U.S.C.A. § 1281 et seq.) and to commit certain offenses against the United States in violation of said Act and the rules and regulations promulgated thereunder, and in violation of 18 U.S.C.A. § 1001. 2 More specifically, the indictment alleged that, pursuant to the conspiracy, a tract of land designated as the 'Home Farm,' owned in part by Otto A. and Lillia B. Gajewski and in part by Loren R. Gajewski, was registered and operated in accordance with the Act, and that wheat allotments were assigned and wheat marketing cards properly issued for this farm. It was additionally alleged, however, that another tract of land designated as the 'South Farm,' first partially owned and later operated by them free of the restrictions operated by appellants, was illegally imposed by the Act. Explicitly, Count One charged that in furtherance of the conspiracy, and in violation of the Act and its attendant rules and regulations, appellants failed to register the South Farm, failed to procure wheat allotments for it, but nevertheless annually harvested wheat from approximately 200 acres of the South Farm during the years of the conspiracy and marketed such wheat by use of the marketing card issued for the Home Farm.

In Count Two appellants were charged with conspiring to violate the Social Security Act, but inasmuch as appellants were acquitted of this alleged offense, further reference to this count of the indictment is unnecessary.

Count Three alleged a conspiracy under 18 U.S.C.A. § 371, supra, to commit an offense against the United States in violation of 18 U.S.C.A. § 1001, supra. The gravamen of this count is that during March, 1955, prior thereto and continuing through 1959, appellants, in furtherance of their scheme and with Lillia B. and Otto A. as co-conspirators, filed income tax returns in the name of Otto A. Gajewski for the years 1951 through 1958 in which Otto A. Falsely and fraudulently claimed Loren R. as a dependent for each of said years and Mervin A. as a dependent for each of the years except 1951. Additionally, it was alleged that during the early part of 1960,

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appellants, with their co-conspirator, Lillia B., filed an income tax return for 1959 in the name of L. B. Gajewski in which appellants were falsely and fraudulently claimed as her dependents.

As noted, the fourth count was directed solely against Loren R. Gajewski, and charged him with making false, fraudulent and fictitious statements in his 1959 income tax return, in violation of 18 U.S.C.A. § 1001, supra.

Loren and Mervin were found guilty on Counts One and Three, and Loren was found guilty on Count Four. Each was sentenced to imprisonment for a term of two years on Counts One and Three, the terms to be served concurrently, and Loren was sentenced to a term of two years on Count Four, to be served concurrently with the sentence imposed on Counts One and Three.

During the trial, Loren was represented by employed counsel but Mervin, although financially able and fully aware of his right to counsel, understandingly chose to represent himself. It is manifest that Mervin actively participated in every phase of the proceeding.

At the close of the Government's case and again after all of the evidence was in, separate motions for judgment of acquittal were filed and denied. One of the contentions here urged is that there is no substantial evidence in the record to support the verdicts of guilty and that the motions for judgment of acquittal were erroneously denied.

The rather voluminous record consists almost entirely of evidence offered by the Government. Although appellants did not testify and only four witnesses were offered in their behalf, the nature and theory of appellants' defense, directed in the main to the first count, is readily apparent from the numerous pretrial motions filed by them and from Mervin's cross-examination of Government witnesses. In summary, appellants' position was that the Agricultural Adjustment Act is unconstitutional; that it was communistically inspired and that they had the untrammeled right to operate their farm free of Government restrictions and controls. 3

In examining the record and upon considering the evidence, virtually uncontradicted, we are of the view that there was substantial competent evidence to support the conviction of both appellants under Counts One and Three, and Loren's conviction under Count Four. Even if it were not so, we are required to affirm if the evidence was sufficient to sustain the conviction under any count, since concurrent terms of imprisonment were imposed whereby each appellant received a total sentence of two years, a sentence which did not exceed that which might lawfully have been imposed under any single count. (Fine of $10,000 and five years' imprisonment or both. 18 U.S.C.A.§ 371; 18 U.S.C.A. § 1001). Barenblatt v. United States, 360 U.S. 109, 115, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959); Abrams v. United States, 250 U.S. 616, 619, 40 S.Ct. 17, 63 L.Ed. 1173 (1919); Burger v. United States, 8 Cir., 262 F.2d 946, 954 (1959), cert. denied, 359 U.S. 990, 79 S.Ct. 119, 3 L.Ed.2d 979 (1959); Bunn v. United States, 8 Cir., 260 F.2d 313, 315-316 (1958); Williams v. United States, 8 Cir., 260 F.2d 125, 131-132 (1958), cert. denied, 359 U.S. 918, 79 S.Ct. 596, 3 L.Ed.2d 579 (1959).

In view of the foregoing rule and the overwhelming evidence of guilt under Count Three, our discussion of the evidence will be limited to that count.

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In May, 1955, pursuant to a prior conference with an Internal Revenue Agent, appellant Loren R. Gajewski presented to the agent income tax returns purporting to show farming operations and income tax liability of Otto Gajewski for the years 1951, 1952 and 1953. Returns had not previously been filed by Otto or Lillia for said years. 4 In the 1951 return Loren and Arden Gajewski, another adult son of Otto A. and Lillia B., were listed and claimed by Otto as dependents. In the 1952 return, Loren, Mervin and Arden were claimed as dependents and in the 1953 return, Loren and Mervin were so claimed. During the interview with the agent, Loren admitted that he had prepared the 1951, 1952 and 1953 returns for his father. For the years 1954 through 1959, returns were filed in which both appellants were claimed as dependents. 5

By claiming appellants as dependents, Otto and Lillia were able to avoid the tax liability which would have been imposed if the reports had not falsely and fraudulently shown that appellants were dependents of the taxpayers.

Under the 1954 Internal Revenue Code, 26 U.S.C.A. §§ 151, 152, a child of a taxpayer may be claimed as a dependent if he has received over half of his support from the taxpayer for the calendar year in which the taxable year of the taxpayer begins, and if either the child has not attained the age of 19 years, or has a gross income for the year of less than $600. See also, Internal Revenue Code, 1939, 26 U.S.C.A. § 25. Here it was conclusively established that appellants, adult individuals who were actively and extensively engaged in farming operations and who also received other income, had gross income far in excess of $600 in each of the taxable years in question, and neither received more than half of his support from his parents.

There was also evidence in abundance from which the jury could find that appellants had unlawfully entered into a conspiracy to cause the false and fraudulent tax returns to be filed on behalf of Otto and Lillia. An expert Government witness testified that the same typewriter had been used to prepare all of the questioned returns. It stands undisputed that Loren prepared the returns for his father for 1951, 1952 and 1953. It was shown that Mervin was present on one of the occasions when the Internal Revenue Agent had a conference with Loren in regard to the filing of the returns. Additionally, the evidence supports an inference that Mervin was the moving and dominating influence in the activities and conduct of appellants which culminated in the returning of the indictment.

As is typical of conspiracy prosecutions, the evidence to establish the conspiracy was largely circumstantial, but, as we observed in Isaacs v. United States, 8 Cir., 301 F.2d 706, 724 (1962), cert. denied, 371 U.S. 818,...

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