United States v. Arnold, 10114.

Decision Date25 March 1966
Docket NumberNo. 10114.,10114.
Citation358 F.2d 633
PartiesUNITED STATES of America, Appellee, v. Oliver W. ARNOLD, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Harvey S. Lutins, Roanoke, Va. (Honeyman & Lutins, Roanoke, Va., on the brief), for appellant.

Thomas B. Mason, U. S. Atty., for appellee.

Before BOREMAN and BRYAN, Circuit Judges, and MARTIN, District Judge.

BOREMAN, Circuit Judge.

The appellant, Oliver W. Arnold, was tried by the District Court without a jury and convicted of violating section 7262 of the Internal Revenue Code of 1954. That section makes it a misdemeanor for a person to do "any act which makes him liable for special tax under subchapter B of chapter 35 without having paid such tax." The special tax for which Arnold was held to be liable and to have failed to pay was the occupational tax of $50 per year imposed by section 4411 of the Internal Revenue Code of 1954 upon any person engaged in the business of accepting wagers or engaged in receiving wagers on behalf of such a person. Following Arnold's conviction, he was sentenced to pay a fine of $1,000.

Arnold contends vigorously that the evidence presented by the Government was not sufficient to support the guilty verdict. Both in his brief and oral argument, he had concentrated his attack upon the sufficiency of the evidence pertinent to accepting or receiving wagers. That evidence is briefly summarized as follows:

Mr. Lonnie Dale, who operated a printing business, testified that during the football seasons of 1963 and 1964 Arnold engaged him to print large quantities of "football cards." These cards listed teams opposing each other on a certain date, gave point spreads and made provision for the identification of those teams selected to "win" by the holder of the card. Mr. Dale further stated that Arnold ordered the cards in the name of "James Smith"; that he did not know that defendant's name was Arnold until his (Dale's) wife overheard a telephone conversation in which defendant stated that his name was Oliver Arnold; that Arnold picked up and paid for the cards at Dale's place of business when they had been printed; that on one occasion Arnold commented to him that he had had a terrible week the previous week; and that on another occasion Arnold told him that he had just had one of his very best weeks.

Robert J. Fleming testified that on October 24, 1964, he saw Arnold and another man sitting at the counter of a public grill with a small pile of money between them, that Arnold said to the other man, "There is no new money in here" and "Wait until we get the stuff from the Hotel Roanoke. There will be plenty of new money in here." Fleming further testified that he saw Arnold again on October 26, 1964, at which time Arnold told him that the "bookies had told him to take all the Detroit money that they could get"; that, "We had two people to pick twelve winners"; and, showing him some cards, "This is a C card. This guy won $900 * * * This one is worth $1200." Fleming stated that the card shown to him by Arnold on that occasion had ink circles drawn around certain teams listed on the card.

If the only element requiring proof was accepting or receiving wagers, we would have no feeling of hesitation in affirming Arnold's conviction for the evidence was sufficient from which the trial court could reasonably conclude that the defendant had been engaged in the business of accepting wagers or had been receiving wagers for someone engaged in such business.1 However, it is evident from a reading of section 7262 that a violation of that section occurs only where the person accepting or receiving wagers does so without having paid the $50 occupational tax. The presentation of proof of this second essential element poses a question which requires additional consideration and comment.

The Government rested after offering the evidence as summarized above. No evidence had then been offered to show that Arnold had failed to pay the tax. Arnold's counsel made a motion for judgment of acquittal, which motion was immediately overruled. The defendant declined to put on any evidence and rested his case also. The court then heard closing argument by Arnold's counsel, who devoted his remarks almost totally to the claimed insufficiency of the evidence to establish the first element of the charged offense, Arnold's acceptance or receipt of wagers. The court's attention was not directed to the failure of proof of nonpayment of the required tax.

Following argument by Arnold's counsel, the court stated that it did not care to hear any argument from the United States Attorney since it believed Arnold to be guilty of the offense charged. The court then proceeded to state orally its findings that Arnold was engaged in the business of accepting wagers but made no finding that Arnold had not paid the $50 tax. Arnold's counsel then indicated in response to an inquiry from the court that he had nothing to say with reference to the question of punishment. Whereupon the court apparently started to impose sentence, saying, "All right, please stand." At this point the following discussion took place:

"MR. MASON United States Attorney: Your Honor, before the pronouncement of sentence, could I just interrupt and get into the record the certification of the district records of the Internal Revenue Service as to nonpayment of tax. There was no issue made of this during the trial.
"MR. LUTINS Defense counsel: I\'m going to object, Judge. He has already rested, and the Court has
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  • Rogers v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 19, 1966
    ...75 S.Ct. 127, 99 L.Ed. 150; United States v. Fleischman, 1950, 339 U.S. 349, 360-361, 70 S.Ct. 739, 94 L.Ed. 906; United States v. Arnold, 4 Cir., 1966, 358 F.2d 633, 636. The burden is solely upon appellant to prove the Appellant's claimed errors Nos. 2 and 3 appear to be an attack on the ......

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