Banks v. United States

• Citation: 223 F.2d 884
• Decision Date: 25 July 1955
• Docket Number: No. 14648.,14648.
• Parties: Thomas W. BANKS, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

223 F.2d 884 (1955)

Thomas W. BANKS, Appellant, v. UNITED STATES of America, Appellee.

No. 14648.

United States Court of Appeals Eighth Circuit.

June 28, 1955.

Rehearing Denied July 25, 1955.

Joseph A. Maun and John W. Graff, St. Paul, Minn., for appellant.

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

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

THOMAS, Circuit Judge.

Appellant, Thomas W. Banks, was indicted, tried and convicted in the District Court of Minnesota, for willfully and knowingly attempting to evade his income taxes for the years 1945, 1946 and 1947, in violation of § 145 (b) of the Internal Revenue Code, 26 U.S.C.A. Upon appeal to this court the judgment of conviction was affirmed on May 27, 1953. 8 Cir., 204 F.2d 666. The Supreme Court denied a petition for certiorari 346 U.S. 857, 74 S.Ct. 73, 98 L.Ed. 370. Thereafter the order denying certiorari was vacated and the case was restored to the docket of the Court. 347 U.S. 1007, 74 S.Ct. 861, 98 L.Ed. 370.

The charge of income tax evasion against appellant was proved by the government by the net worth method. On December 6, 1954, the Supreme Court decided four other net worth cases: 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.

On January 10, 1955, a petition for certiorari was granted; the judgment was vacated, and the case was remanded to this court "for consideration in the light of Holland v. United States", and the Friedberg, Smith and Calderon decisions of the Supreme Court.

On January 24, 1955, this court entered an order placing the case upon the calendar of the court for rehearing at the March, 1955, session and limiting the argument of counsel to the question of alleged errors of the trial court in its rulings with reference to the admissibility or sufficiency of the evidence admitted or rejected as proof of net income under the so-called net worth method and to any alleged error in the instructions of the court relating to such net worth method.

Elaborate printed briefs have been filed by the parties and the case has been argued orally. Basically counsel for appellant contend that the trial court erred in denying appellant's motion for a judgment of acquittal or for a new trial. In support of this general contention counsel argue that

1. The government's case was founded upon uncorroborated admissions of appellant;

2. The government failed to investigate leads available to it independently to verify the uncorroborated admissions of appellant; and

3. The court erred in failing to give certain requested instructions.

It will be noted that appellant did not testify in his own behalf at the trial and he offered no evidence to explain or deny the charge in the indictment or the evidence of the government.

The facts in the case and the contentions of appellant on the appeal are related and considered by this court in the opinion reported in 204 F.2d 666, supra.

Appellant urges most emphatically that the government's case was founded upon his own uncorroborated admissions. The rule requiring corroboration of admissions and confessions in criminal cases, and particularly in "net worth" cases is stated and discussed at length by the Supreme Court in Smith v. United States, 348 U.S. 147, 156, 75 S.Ct. 194, 199, in which it is said:

"There has been considerable debate concerning the quantum of corroboration necessary to substantiate the existence of the crime charged. It is agreed that the corroborative evidence does not have to prove the offense beyond a reasonable doubt, or even by a preponderance, as long as there is substantial independent evidence that the offense has been committed, and the evidence as a whole proves beyond a reasonable doubt that defendant is guilty. (Citations.) But cf. United States v. Fenwick, 7 Cir., 177 F.2d 488. In addition to differing views on the substantiality of specific independent evidence, the debate has centered largely about two questions: (1) whether corroboration is necessary for all elements of the offense established by admissions alone (citations), and (2) whether it is sufficient if the corroboration merely fortifies the truth of the confession, without independently establishing the crime charged, compare (citations). We answer both in the affirmative. All elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense `through\' the statements of the accused."

The record here discloses that the trial court throughout the trial and in his instructions to the jury carefully protected appellant's constitutional rights, especially his right to the presumption of innocence until the evidence of the government established his guilt beyond a reasonable doubt.

We shall first consider the contention that the government's case was founded upon uncorroborated admissions of the appellant. This contention refers to (1) the opening net worth statement for 1936, and (2) the net worth and income for the taxable years 1945, 1946 and 1947. Both contentions are without merit.

The opening or beginning net worth used by the government in its computations was established at $18,578.58 as of the end of the year 1936. This was based upon an affidavit executed by appellant on July 2, 1937, in which he listed his assets as of December 31, 1936. The affidavit was filed by appellant in connection with his defense in a claim then pending against him for unpaid taxes. It is corroborated by the investigations of the revenue agents made soon after it was filed and again after the initiation of the present case. Their testimony fully and adequately corroborates the admissions made in the affidavit.

It is next contended that appellant's admissions in exhibits 70 and 71 were not adequately corroborated. These exhibits were connected with the investigations made by the government of appellant's income and his tax returns for the years involved. Agent George H. McKusick of the Bureau of Internal Revenue was conducting the investigations. In December, 1950, McKusick requested appellant to come to a conference for the purpose of substantiating his tax returns for the years 1945, 1946 and 1947. Appellant refused to come to such a conference but instead sent his attorney, Mr. Joseph A. O'Gordon, with a power of attorney. It developed that Mr. O'Gordon, although he had a power of attorney, could not answer any questions relating to the income or business of the appellant. McKusick then submitted to him a list of questions (exhibit 70) concerning appellant's business transactions which had been discovered in the investigations and requested him to obtain the answers of appellant. In the following February Mr. O'Gordon returned the questions with the answers of appellant on a separate sheet of paper (exhibit 71). Mr. O'Gordon testified at the trial and identified the exhibits.

The admissions in these exhibits amply support the verdict of the jury. And the admissions are amply corroborated by the evidence. They are corroborated in part by appellant's income tax returns, in part by his wife's returns and by bank accounts in her name but which consisted of deposits of appellant's money. These admissions are corroborated by the undisputed evidence that most of the items were received by appellant from the sale of property or corporate stocks and deposited in his wife's bank account but not reported by her as taxable income. Properties were sold which were owned jointly by appellant and some other person. The other person reported his share of the proceeds of such sales but appellant did not include any part of his share in his tax returns. Without detailing here all of such transactions shown in the record we are satisfied that all of the admissions referred to are amply corroborated. The requirements of the Supreme Court in the Smith case, supra, are fully met, wherein the Court say, 348 U.S. at page 156, 75 S.Ct. at page 199:

"All elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense `through\' the statements of the accused." Citing Parker v. State, 228 Ind. 1, 88 N.E.2d 556, 89 N.E.2d 442.

This statement of the Court applies with particular emphasis to appellant's admissions of his living expenses for the taxable years involved. Revenue Agents McKusick and Kleven conducted an investigation of the living expenses of appellant for the three years involved and submitted their findings to appellant's attorney, O'Gordon, and his accountant, Weinstock, both of whom had filed powers of attorney from appellant with the agents. The estimates were submitted by them to appellant and they reported that he would "be happy to use the figures." Thus the independent evidence of O'Gordon and Weinstock "bolstered the confession itself and thereby proved" the amount determined "`through' the statements of the accused."

Appellant's second contention is that the government failed to investigate leads available to it or independently to verify the uncorroborated admissions of the defendant. This contention is without merit and is not applicable to the situation presented here. The admissions referred to are to be found in exhibits 33, 70 and 71. In this case the investigation by the revenue agents preceded the admissions of appellant. The answers and statements of appellant in these exhibits referred only to matters which had been previously investigated by the government. The answers to the questions...