DeCecco v. United States
| Decision Date | 30 November 1964 |
| Docket Number | No. 6367.,6367. |
| Citation | 338 F.2d 797 |
| Parties | John DeCECCO, Defendant, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Joseph Mainelli, Providence, R. I., for appellant.
Alton W. Wiley, Asst. U. S. Atty., with whom Raymond J. Pettine, U. S. Atty., was on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
This appeal raises only one substantial question.1 The defendant was convicted following a jury trial, on a two-count information charging the failure to pay the special occupational (wagering) tax in violation of 26 U.S.C. §§ 7203 and 7262. The record appendix shows that the defendant presented evidence in his defense, but none to the effect that he had paid the tax. The defendant requested the court to charge the jury that the "mere fact that the Government's evidence is uncontradicted" did not require the jury to accept it. The court gave not this request, but just the reverse. It is true that at the outset it properly instructed the jury that the government had the burden of proving "every material element of * * * the offense." However, it thereafter stated that it was "undisputed" that the defendant had not paid the tax. Then, as to one count inferentially and the other specifically, removed the issue of payment from this instruction.
"If the Government has satisfied you by the required degree of proof, that is, by proof beyond a reasonable doubt, that the defendant on and before March 7, 1963 was engaged in the business of accepting wagers, and that he wilfully failed to pay said tax before engaging in said business, then your verdict as to Count I shall be guilty."
It seems fairly clear, not only because of the court's failure to give the defendant's request, and its reference to the fact of non-payment being undisputed, but also from what it said subsequently, that "wilfully failed to pay" was limited to defendant's state of mind, and assumed the fact of non-payment. When the court came to the second count, where wilfullness was not involved, it laid the matter firmly on the line.
To continue reading
Request your trial
-
People v. Figueroa
...States (D.C.Cir.1964) 341 F.2d 411, 412-413); that the accused's failure to pay a "wagering tax" was "undisputed" (DeCecco v. United States (1st Cir.1964) 338 F.2d 797, 798); and that a particular vehicle had moved in interstate commerce (United States v. Gollin (3d Cir.1948) 166 F.2d 123, ......
-
U.S. v. Evans
...the money in the fund belonged to it. Testimony, though unchallenged, may still be disbelieved. As we said in DeCecco v. United States, 1 Cir., 1964, 338 F.2d 797, at 798, 'No matter how persuasive the government's evidence may seem to the court, there is no burden on a defendant to dispute......
-
U.S. v. Johnson
...States, 341 F.2d 411, 412-13 (D.C.Cir.1964) (per curiam), or whether a defendant has failed to pay a wagering tax, DeCecco v. United States, 338 F.2d 797, 798 (1st Cir.1964). All of those questions turn on a number of factual circumstances rather than on a concrete document's characteristic......
-
People v. Deneweth, Docket No. 3085
...Mich. 363, 8 N.W.2d 99, 145 A.L.R. 886.4 3 Gillespie, Michigan Criminal Law and Procedure, §§ 1638, 1639 and 1658.5 DeCecco v. United States (CA 1, 1964), 338 F.2d 797; Gollin v. United States (CA 3, 1948), 166 F.2d 123, certiorari denied 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151; United St......