Evans v. United States

• Citation: 349 F.2d 653
• Decision Date: 13 October 1965
• Docket Number: No. 21471.,21471.
• Parties: Don L. EVANS, Jr., and Everett M. Sells, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

349 F.2d 653 (1965)

Don L. EVANS, Jr., and Everett M. Sells, Appellants, v. UNITED STATES of America, Appellee.

No. 21471.

United States Court of Appeals Fifth Circuit.

August 23, 1965.

Rehearing Denied October 13, 1965.

COPYRIGHT MATERIAL OMITTED

James S. McGrath, Walter M. Sekaly, Beaumont, Tex., for appellants.

Harry Lee Hudspeth, Asst. U. S. Atty., W. D. of Texas, San Antonio, Tex., Ernest Morgan, U. S. Atty., San Antonio, Tex., for appellee.

Before BROWN and GEWIN, Circuit Judges, and KILKENNY,^* District Judge.

KILKENNY, District Judge:

STATEMENT

Each appellant was convicted, in a jury trial, on 45 counts of an indictment charging violations of the Internal Revenue Code. Four of those counts charged willful failure to register with the District Director of Internal Revenue, as required by the provisions of 26 U.S.C. § 4412. Four counts charged the appellants with willful failure to pay the special tax required by 26 U.S.C. § 4411. Thirty-seven of the counts charged appellants with engaging in the business of accepting wagers and willfully failing to file excise tax returns as required by 26 U.S.C. § 4401. Callender, who was indicted and jointly tried with appellants, was granted a judgment of acquittal in the lower court.

MOTION TO DISMISS

Prior to trial, each of appellants moved for a dismissal of counts 1 through 37 of the indictment, on the ground that each failed to state the location at which the appellants were alleged to have been engaged in accepting wagers. Appellants' theory is that the indictment did not state facts sufficient to show a violation of any of the statutes in question, without alleging the place where the wagers were accepted. These failures, urge appellants, also present jurisdictional defects. We are not impressed with the arguments. The counts charge that the returns were required to be filed with the District Director at Austin, Texas. While we must concede that the indictment is inartfully drawn and could not serve as a model, its defects are not fatal.¹ The gravamen of the offense is engaging in the business of accepting wagers and failing to pay the excise tax. The allegations of an indictment are sufficient if they adequately apprise the accused of the charges against them. Cagnina v. United States, 223 F.2d 149 (5th Cir. 1955). The jurisdiction and venue for willful failure to do an act required by law, lie in the district and division where the act was required to be done. Yarborough v. United States, 230 F.2d 56 (4th Cir. 1956); Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961).

Each of the challenged counts charge the essential facts with sufficient clarity so that a judgment rendered thereon, would be a complete defense to a second prosecution for the same offense. Goldberg v. United States, 277 F. 211 (8th Cir. 1921); Weisman v. United States, 1 F.2d 696 (8th Cir. 1924); Armour Packing Co. v. United States, 153 F. 1, 14 L.R.A.,N.S., 400 (8th Cir. 1907), cited by appellants, and other such cases, are here of no significance. The charges in the questioned counts are adequate.

SUFFICIENCY OF THE EVIDENCE

In our analysis of the evidence, we are asked to distinguish between the force and effect of the record as to Evans and as to Sells. This is particularly true with reference to the first 37 counts.

The statutes² and Wagering Tax Regulations,³ on their face, and as construed in United States v. Calamaro, 354 U.S. 351, 77 S.Ct. 1138, 1 L.Ed.2d 1394 (1957), point the finger of violation at him who is the "banker," who is "engaged in the business of accepting wagers" and the "writer" who "receives wagers for or on behalf of the banker."

The record contains substantial evidence that Evans was engaged in the business of wagering during the years 1955 and 1957. The partnership, of which he was a member, filed excise tax returns on such a business for each month from January, 1956, through, June, 1957. In June, 1957, a meeting was held by the members of the partnership, including Evans, at which time the partners agreed not to renew the partnership wagering tax stamp, nor to renew the wagering tax stamps held by the members. The records of the District Director of Internal Revenue for the indicated district show no registration, payment of special tax or payment of wagering excise tax by Evans from October, 1957, until December, 1960, the period covered by the indictment. About the time of the dissolution, Evans took possession of certain partnership property and paid a retiring partner the sum of $1,000.00 for his share of the partnership equipment, each $500.00 payment, on this obligation, being made with a "shoe box" full of dollar bills and small change. Evans took part in numerous meetings with persons connected with the numbers or policy enterprise, one of the witnesses testifying that he secured bags of money and bets from those writing the policies and delivered them to Evans in a certain parking lot. At the same time, Evans gave this witness a bag of policy slips. One witness testified Evans was the only person who ever ordered supplies, such as manifold books, scratch pads, double carbons and other materials used in policy operations and that Evans paid for these supplies with cash consisting of coins in rolls and one, five and ten dollar bills, sometimes amounting to several hundred dollars. Evans concedes that he filed income tax returns for 1958 reporting income from "gaming," and in 1959 income from "cards and dice games." Additionally, there was evidence that Evans was involved in the "policy" game prior to 1960 in Beaumont, Texas, in association with Sells. The record contains ample evidence that a lottery business was operated in the Beaumont area prior to July, 1957; that Evans was a partner in the business; that the business continued to operate through 1960, even though some of the partners made an affirmative decision in June, 1957, to discontinue registering with the Internal Revenue Service and paying the wagering taxes.

The jury could well find that the evidence excluded every reasonable hypothesis except that of guilt on the issue of whether Evans was "engaged in the business of accepting wagers," and whether he was a "banker," within the meaning of the statutes and the regulations.

Now with reference to the evidence against the appellant Sells. He challenges the sufficiency of the evidence to show that he was anything other than a "pick-up" man, within the meaning of the decision in United States v. Calamaro, supra. Furthermore, he claims there is no evidence to show that his failure to register, pay the special tax, or to file the excise tax return was willful. We disagree. Obviously, the jury was impressed with the testimony of Lucy Martin that she was hired as a "writer" by Sells, obtained the necessary money from him to pay off the "big hits," that such instructions as she had with reference to her duties, were received from him and that the supplies with which she carried on her work were by him delivered to her. The jury could well have believed the testimony of Holland, who testified that he acted as a "pick-up" man for Sells, that he was paid by him, that he worked for Sells for approximately four months as a "pick-up" man. Henrietta Caston, likewise, testified that she was "writing" for Sells and that he paid her salary. There was substantial evidence that Sells gave orders on when to "cut off" for the time being, or quit writing policies for the time being. This, and other evidence in the record, was sufficient to take the case to the jury on the question of Sells' "proprietary interest" in the transactions. On this evidence, direct and circumstantial, the jury could well find that it excluded every reasonable hypothesis except that of guilt, within the meaning of Hamilton v. United States, 304 F.2d 542, 545 (5th Cir. 1962). That being true, we invoke the rule stated in Edwards v. United States, 334 F.2d 360 (5th Cir. 1964), that a defendant, under circumstances similar to those involved in this case, has a burden of going forward with the evidence, to show that the acts were not willful. The functions and duties of Sells bear no resemblance to those of a mere "pick-up" man for a "banker," whose status was discussed in Calamaro.

SEVERANCE

Each appellant complains of the failure of the trial court to grant him a separate trial. A like contention was made, under a similar state of facts, in Daley v. United States, 231 F.2d 123 (1st Cir. 1956), cert. denied 351 U.S. 964, 76 S.Ct. 1028, 100 L.Ed. 1484 (1956). There, seven defendants were charged in seven separate informations with willful failure to register and pay a special tax before engaging in the business of accepting wagers. Later, under Rule 13, Federal Rules of Criminal Procedure, the seven informations were consolidated for trial. The consolidation was upheld on the ground that participation by defendants in gambling transactions at the same locations was the "concluding element" of the crimes with which all were charged. Rule 8(b) permits the joinder in the same indictment, or information, of two defendants if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense. Appellants argue that before such a joinder can be upheld, a conspiracy count must be involved. The authorities hold otherwise. Guon v. United States, 285 F.2d 140 (8th Cir. 1960); United States v. H. J. K. Theatre Corp., 236 F.2d 502 (2d Cir. 1956); Wiley v. United States, 277 F.2d 820 (4th Cir. 1960), cert. denied 364 U.S. 817, 81 S.Ct. 47, 5 L.Ed.2d 47 (1960). Rules 13 and 8(b) were patterned for the express purpose of promoting efficiency and economy in the trial of litigation and thus avoid a multiplicity of trials. These objectives were accomplished in this case without substantial prejudice to the rights of either defendant. We find no abuse of discretion in the action of the trial judge...