Forman v. United States, 15324.
| Decision Date | 26 February 1959 |
| Docket Number | No. 15324.,15324. |
| Citation | 261 F.2d 181 |
| Parties | William R. FORMAN, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles P. Moriarty, U. S. Atty., Seattle, Wash., John S. Obenour, Asst. U. S. Atty., Tacoma, Wash., Charles K. Rice, Asst. Atty. Gen., Richard B. Buhrman, Joseph F. Goetten, Lee A. Jackson, Attys., Dept. of Justice, Washington, D. C., for appellee.
Before HEALY, POPE and FEE, Circuit Judges.
Upon petition for a rehearing the United States asks us to modify our decision by ordering the cause remanded to the district court for a new trial.
We think this suggestion is a proper one. In our opinion we accepted the position taken by the court below in its instructions that the conspiracy charged "was consummated upon the filing of the individual tax returns." We then proceeded, upon the authority of Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931, to hold that the case had been improperly submitted to the jury with instructions that there might be a conviction if it was a part of the conspiracy "to make continuing efforts to avoid detection and prosecution."
The Government concedes that the case was submitted to the jury on an impermissible theory but says that as in the Grunewald case, the indictment here presented an alternative theory. That alternative theory, closely paralleling the alternative legal theory in the Grunewald case, which the Supreme Court held "unexceptionable" is based upon the allegations of paragraph "D" of the indictment quoted in our opinion which charges that the conspiracy was one "to violate * * * § 145(b) of the Internal Revenue Code 26 U.S.C.A. § 145(b) * * * by furnishing officers and employees of the Revenue Department false books and records and false financial statements, and by making false statements to such officers and employees, for the purpose of concealing from the Treasury Department their share of the unreported income * * * and for the purpose of concealing * * * the true income tax liability of Amador A. Seijas. * * *" So read the indictment alleges furnishing false books and reports and making false statements in an attempt to evade taxes within the meaning of § 145(b) which imposes penalties upon "any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter". Such an attempt may be made by false statements to Treasury representatives. United States v. Beacon Brass Co., 344 U.S. 43, 73 S.Ct. 77, 97 L.Ed. 61.
It now appears to us that the case might have been tried upon this alternative theory, namely, that the conspiracy continued past the filing of the returns for the purpose of protecting the taxpayers from tax prosecution. What was...
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