O'brien v. United States, 4532.

• Decision Date: 25 July 1931
• Docket Number: No. 4532.,4532.
• Citation: 51 F.2d 193
• Parties: O'BRIEN v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

51 F.2d 193 (1931)

O'BRIEN v. UNITED STATES.

No. 4532.

Circuit Court of Appeals, Seventh Circuit.

June 29, 1931.

Rehearing Denied July 25, 1931.

James A. O'Callaghan, of Chicago, Ill., for appellant.

George E. Q. Johnson, Jacob I. Grossman, and Dwight H. Green, all of Chicago, Ill., for the United States.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

EVANS, Circuit Judge (after stating the facts as above).

Appellant contended that the evidence fails to show that he willfully failed to file income tax returns for the three years under consideration. Although admitting that his income was such as to necessitate the filing of income tax returns, he offered as his explanation for not doing so his belief that because he was a member of the Illinois State Legislature, he was not required to pay an income tax, nor was he under any duty of making an income tax return. Appellant having so testified, his counsel argues that his failure to file his return must be accepted as not having been willful.

Appellant cites as a further attenuative circumstance, the fact that a large portion of his gross income came from the Sanitary Drainage District of Chicago for work done pursuant to contracts with this District, and that the profits derived from such source were not subject to a federal income tax. No such position was taken in the court below, and we may well ignore it, upon the further ground that appellant's income, for each of these years, aside from the revenue derived from the Drainage District, exceeded the sum of $5,000, and he was, therefore, required to make and file income tax returns thereon.

The narrow question which we are called upon to decide, therefore, is whether the evidence was such as to require its submission to a jury. In other words, could the jury, upon the evidence before it, have found that appellant's failure to file his income tax returns was willful? In a sense the question is one of credibility. Was the court, upon the motion to dismiss, required to accept appellant's statement that he believed himself to be immune from federal income tax because he was a State Representative? His statement without explanation hardly seems reasonable, though perhaps possible. The duty of weighing his explanation, and accepting or rejecting it, was, we think, for the jury. This conclusion is strengthened by other facts which throw some light upon the soundness and rationality of the proffered explanation.

Appellant was a contractor having a substantial business. For a decade, he had represented a district in Chicago in the Illinois State Legislature. His gross income for the three years was nearly a half million dollars. He received over $100,000 a year from the Sanitary Drainage District. He bought and sold stocks and bonds, from which source alone his income exceeded $5,000 in one year. On the other hand, he is pictured by his counsel as a somewhat illiterate, untutored individual with little or no knowledge of the complicated federal income tax laws. There was, however, evidence received which tended to refute his inexperience in and unfamiliarity with business in its various phases.

His very large dealings with the Drainage District, while as a legislator he was voting appropriations to that body, his practice of dividing his bills against the drainage district so that none would exceed $500 in amount, thereby avoiding the statutory requirement that such contracts be awarded the lowest bidder, strongly suggest he was no neophyte in mixing politics and business. We think the jury might, without being unduly incredulous, have rejected his asserted naiveté as specious.

From our study of the testimony, we are satisfied that the court rightfully submitted this question of willfulness to the jury.

Refusal to Grant a Continuance. — Error is assigned because the court refused to continue his case. He was indicted March 4, 1930, and trial began December 9 of the same year. His first application for a continuance was for the purpose of enabling him to present his tax case to the appropriate division of the Bureau of Internal Revenue and, if necessary, to the United States Board of Tax Appeals.

Obviously this application was properly denied for his belated action in seeking to adjust his unpaid taxes with the Government had nothing to do with the prosecution of the criminal action.

A few days later when his case was called for trial, he again asked for a continuance, and as grounds therefor asserted his inability to complete his examination of the books of the Sanitary Drainage District to ascertain what sums had been paid him, stating that the Sanitary District's books had been turned over to the United States Government, and that he was pursuing this inquiry at the time the case was called for trial. There was no showing made that other records were not available, or that he had been diligent in examining the books in the Government's possession. Moreover, it did not appear that he was ignorant of the amounts he had received from the Sanitary District. His protestations that he could not proceed to trial until he had completed his examination of these books in order that he might know the amounts that had been paid to him by the Sanitary District are not impressive of a good faith application for a continuance. The court properly refused to continue the case.

Appellant also complains because the prosecuting attorney, on cross-examination, inquired about certain bills, which indicated their preparation and presentation to the Sanitary District before the work was actually performed. It is argued that the accused was prejudiced by a showing of conduct on his part which pointed to the commission of some other offense or improper practices, which had nothing to do with the federal offenses for which he was on trial.

The court ruled, and we think properly, "The Government has the right to inquire whether the work done thereafter was more or less. If it was more, the income would be increased accordingly; if it was less, of course the income would be reduced accordingly. Of course, these bills all show it themselves whether they are in advance. I would not take much time on this." Apparently, no one at the time this evidence was received considered it other than for the legitimate purpose for which it was admissible. No request was made to limit its scope or to strike it out. Its reception would have been non-prejudicial, if erroneous.

Double Punishment for the Same Offense. — Appellant argues that a count which charged appellant with having willfully failed to file a return for 1926 is the same as one charging him with having willfully attempted to evade and defeat the tax for 1926. With this position we cannot agree. Blockburger v. U. S., 50 F.(2d) 795, decided by this court June 11, 1931. U. S. v. Noveck, 273 U. S. 202, 47 S. Ct. 341, 71 L. Ed. 610. Congress may punish separately each step leading to the consummation of a transaction, which it has the power to prohibit, and also to punish the completed transaction. Albrecht v. U. S., 273 U. S. 1, 11, 47 S. Ct. 250, 71 L. Ed. 505.

The offense of willful failure to file an income tax return is not the same as a willful attempt to evade and defeat an income tax. If the two counts of an indictment are identical, element for element, in necessary allegation and proof, then the two charges are for the same offense. Stone v. U. S., 167 U. S. 178, 185, 17 S. Ct. 778, 42 L. Ed. 127; Ryan v. U. S. (C. C. A.) 216 F. 13, 37. But it is not the presence of a common act or acts condemned by two criminal statutes, but the presence in one of an element absent in the other, that determines whether the two indictments define the same offense. A prosecution for a willful failure to file a return might be maintained although there was in fact no tax due. There could, however, be no such prosecution for a willful attempt to evade or defeat a tax unless there was some tax due from the taxpayer. Moreover, there could be a successful prosecution for a willful attempt to evade a tax even though the accused filed his return.

Appellant likewise argues that inasmuch as no statute makes it a crime to defeat or evade a tax, there can be no punishment for an attempt to commit something which is not a crime. Again counsel's error is traceable to the fact that he fails to recognize the right of Congress to punish separately each step leading to the consummation of a transaction concerning which it has the power to legislate. To illustrate, Congress may enact income tax legislation to raise a part of its necessary revenue. It may provide the machinery for determining and collecting such taxes. In furtherance of such legislation and to insure the full performance of the duties imposed upon its citizens, it may punish those who fail to comply with its requirements. Inasmuch as all crimes against the United States are traceable to acts of Congress, that body may determine what acts hindering the process of collection of income taxes shall be condemned and punished. A violation of any step of the transaction leading to the collection of such tax may be punished. Unquestionably, Congress could have made it a criminal offense for a taxpayer to defeat or evade a tax. Not having done so, however, it was still within its power to punish a willful attempt to evade or defeat a tax.

There was doubtless a good reason why Congress did not make it a criminal offense to defeat or evade a tax. For the moment it discovered that a tax had been evaded, it could proceed to collect it, and thereafter, there would be no defeat or evasion of such tax.

But the taxpayer who willfully attempts to evade the tax might well, in the opinion of Congress, be subjected to a criminal prosecution regardless of the outcome of his attempt.

Another of appellant's contentions is that the crime charged in the indictment is a willful attempt to defeat and evade an income tax while the proof showed not merely an...