Gendelman v. United States

• Decision Date: 19 October 1951
• Docket Number: No. 12724.,12724.
• Citation: 191 F.2d 993
• Parties: GENDELMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

191 F.2d 993 (1951)

GENDELMAN v. UNITED STATES.

No. 12724.

United States Court of Appeals Ninth Circuit.

October 19, 1951.

Charles H. Carr, Los Angeles, Cal., for appellant.

Ernest A. Tolin, U. S. Atty., Ray H. Kinnison, Bernard B. Laven, Assts., all of Los Angeles, Cal., for appellee.

Before STEPHENS, HEALY, and BONE, Circuit Judges.

STEPHENS, Circuit Judge.

Appellant was convicted, after a trial before a jury, of two violations of Title 26 U.S.C.A. § 145(b),¹ committed for the calendar year 1943. The first alleged violation consisted in filing a false and fraudulent income tax return. The second alleged violation consisted in attempting to evade and defeat a part of the income taxes of his wife by causing to be filed a false return on her behalf. He was sentenced to ten months imprisonment on each count, the periods to run concurrently.

Appellant contends that the evidence was insufficient to show that an offense had been committed as to either count; that there was no proof of the corpus delicti independent of the alleged confessions of the appellant; that for the reasons just stated appellant's motion pursuant to Rule 29² of the Federal Rules of Criminal Procedure for a judgment of acquittal should have been granted; that the trial court erred in overruling appellant's objections to the admission of certain evidence.

In determining whether the trial court properly denied appellant's motion for judgment of acquittal, this court will consider the evidence most favorable to the verdict and such reasonable inferences as the jury may have drawn therefrom. United States v. O'Brien, 7 Cir., 1949, 174 F.2d 341. Full play must be given to the right of the jury to determine credibility, weigh evidence, and draw justifiable inferences of fact. Curley v. United States, 1947, 81 U. S.App.D.C. 389, 160 F.2d 229, certiorari denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850, rehearing denied, 331 U.S. 869, 67 S. Ct. 1729, 91 L.Ed. 1872. If the government's evidence was sufficient to make the question of the alleged deliberate falsity of the appellant's return one of fact for the jury, the appellant was not entitled to a judgment of acquittal. Schuermann v. United States, 8 Cir., 1949, 174 F.2d 397, 398, certiorari denied, 338 U.S. 831, 70 S.Ct. 69, 94 L.Ed. 505, rehearing denied, 338 U.S. 881, 70 S.Ct. 156, 94 L.Ed. 541.

During the year 1943, appellant was engaged in the manufacture and sale of household furniture. It was admitted that none of the numerous enterprises operated by him was carried on in his own name. They consisted of furniture manufacturing enterprises and retail furniture outlets, all in the name of either Edythe Gendelman, appellant's wife, or one Esther Chochem, appellant's aunt who had raised appellant from childhood and considered herself as his mother.

Numerous bank accounts carried during the year were in the names of the same two persons with the addition of one account in the name of Corinne Chochem, daughter of Esther Chochem, over which appellant held a power of attorney. Appellant also held a power of attorney over one of the bank accounts in the name of Esther Chochem. There was evidence that the funds in these accounts were under the control of and were used by appellant in his business dealings.

In answer to a request by the government for further information as to the true ownership of one of his enterprises listed under the name of Esther Chochem, appellant made the following signed statement: "Esther Chochem was the owner of the legal title to the property of the business operated under the name of Super-Built Furniture Mfg. Co., but the income therefrom was received by Julius Gendleman, to whom it really belonged." The income from Super-Built was not reported on appellant's 1943 return.

Bank deposits made by appellant, listed in appellant's books as loans payable, were shown to have been income from sales of merchandise, and were shown to have been later transferred from the loans payable to the drawing account. Based on these bank deposits, the income unreported was estimated to amount to $23,473.81.

Analysis was also made of appellant's financial position by comparing his net worth as of January 1, 1943, with his net worth on December 31, 1943. On a net worth basis, even omitting many includible items from income, the minimum amount not reported was estimated at $19,627.64. See Schuermann v. United States, supra, 174 F.2d at page 399. Appellant reported his net income in 1943 as $2,593.38 and the income and victory tax thereon as $401.25.

While the government had the duty to prove guilt beyond a reasonable doubt, it was not required to prove the exact amounts of unreported income. Skilful concealment can not be made an invincible barrier to proof. United States v. Johnson, 1943, 319 U.S. 503, 517, 63 S.Ct. 1233, 87 L.Ed. 1546. Proof of the amounts of the appellant's income need not measure up to the amount stated in the indictment. Gleckman v. United States, 8 Cir., 1935, 80 F.2d 394, certiorari denied, 297 U.S. 709, 56 S. Ct. 501, 80 L.Ed. 996. What is necessary to take a case of this kind to the jury is a showing that a taxpayer had income which he deliberately failed to include in his return. Schuermann v. United States, supra, 174 F.2d at page 399. Whether such a showing had been made at the close of the government's case was to a great extent dependent upon the credibility of the government's witnesses.

Appellant's defense consisted in attempting to show, through cross-examination of the government's witnesses, that certain items were improperly included in estimates of appellant's income; that certain questionable accounting entries resulted from mistakes of employees; that damaging admissions made in appellant's signed statement were not in fact true.

That being the posture of ...