Contreras v. United States, No. 14674.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: STRUM and RIVES, Circuit , and DAWKINS
• Citation: 213 F.2d 96
• Parties: CONTRERAS v. UNITED STATES.
• Decision Date: 11 May 1954
• Docket Number: No. 14674.

213 F.2d 96 (1954)

CONTRERAS
v.
UNITED STATES.

No. 14674.

United States Court of Appeals, Fifth Circuit.

May 11, 1954.

213 F.2d 97

C. J. Hardee, D. Newcomb Barco, Jr., Tampa, Fla., for appellant.

J. Hardin Peterson, Jr., Asst. U. S. Atty., Lakeland, Fla., E. David Rosen, Asst. U. S. Atty., Miami, Fla., James L. Guilmartin, U. S. Atty. for the Southern Dist. of Florida, Miami, Fla., for appellee.

Before STRUM and RIVES, Circuit Judges, and DAWKINS, District Judge.

RIVES, Circuit Judge.

The defendant was convicted and sentenced to one year's imprisonment under an information charging:

"That during the month of January, 1953, in Tampa, Hillsborough County, Florida, in the Southern District of Florida, Anastasio Humberto Contreras, who was then and there engaged in the business of accepting wagers as defined in Section 3285(b) (1) (C) and (2), Title 26, United States Code, did wilfully and unlawfully fail to register and pay the special tax required by law to be paid by him; in violation of Sections 2707, 3285, 3290, 3291, and 3294, Title 26, United States Code."

The district court denied the defendant's motion to dismiss the information, his motion for a directed verdict and his motion for new trial.

Appellant's first contention is that the penalties prescribed in 26 U.S.C.A. § 3294(c)¹ are so uncertain, vague, and indefinite as to render the section inoperative and the one year sentence void. This particular objection to the statute was not discussed in United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754. Section 2707² referred to in said Section 3294(c), supra, prescribes penalties with respect to the tax on pistols and revolvers. Subsection (a) of Section 2707 relates to a penalty to be assessed and collected in the same manner as taxes, and intends a mere civil sanction.

213 F.2d 98

Paddock v. Siemoneit, 147 Tex. 571, 218 S.W.2d 428, 7 A.L.R.2d 1062. Subsection (a) is therefore not pertinent here. Subsection (c) refers to "Any person required * * * to collect, account for and pay over any tax * * *." There was no charge that the defendant was required to "collect" or "account for" the tax. Subsection (c) covers also "any person who willfully attempts in any manner to evade or defeat any tax * * *", but the defendant was not so charged. Subsection (b) refers to "Any person required * * * to pay any tax," and that subsection (b) is the only one that could apply to the offense charged against the defendant, viz: that he "did willfully and unlawfully fail to register and pay the special tax * * *."

The language of subsections (b) and (c) of Section 2707 closely parallels that of subsections (a) and (b) of Section 145 dealt with in Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418. The difference between the misdemeanor referred to in subsection (b) and the felony referred to in subsection (c) of Section 2707 is the same, we think, as that noted in the Spies case, supra.

"The difference between the two offenses, it seems to us, is found in the affirmative action implied from the term `attempt,\' as used in the felony subsection. It is not necessary to involve this subject with the complexities of the common-law `attempt\'. The attempt made criminal by this statute does not consist of conduct that would culminate in a more serious crime but for some impossibility of completion or interruption or frustration. This is an independent crime, complete in its most serious form when the attempt is complete and nothing is added to its criminality by success or consummation, as would be the case, say, of attempted murder. Although the attempt succeed in evading tax, there is no criminal offense of that kind, and the prosecution can be only for the attempt. We think that in employing the terminology of attempt to embrace the gravest of offenses against the revenues Congress intended some willful commission in addition to the willful omissions that make up the list of misdemeanors. Willful but passive neglect of the statutory duty may constitute the lesser offense, but to combine with it a willful and positive attempt to evade tax in any manner or to defeat it by any means lifts the offense to the degree of felony." Spies v. United States, 317

...