Helms v. United States
| Decision Date | 08 March 1965 |
| Docket Number | No. 20748.,20748. |
| Citation | 340 F.2d 15 |
| Parties | Norman H. HELMS, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joe B. Goodwin, Beaumont, Tex., Baldwin & Goodwin, Beaumont, Tex., for appellant.
Richard B. Buhrman, Atty., Dept. of Justice, Washington, D. C., Leighton Cornett, Asst. U. S. Atty., Tyler, Tex., Louis F. Oberdorfer, Asst. Atty. Gen., Joseph M. Howard, Atty., Dept. of Justice, Washington, D. C., Wayne Justice, U. S. Atty., for appellee.
Before RIVES and BROWN, Circuit Judges, and NOEL, District Judge.
The appellant-defendant was convicted on two counts of violating Section 7206 (1) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 7206(1). Count 1 charged in substance that on January 29, 1959, the defendant willfully and knowingly made and subscribed a United States individual income tax return, verified by a written declaration that it was made under the penalties of perjury, in which, as he well knew and believed, he had understated his gross income. Count 2 made a like charge as to an income tax return made and subscribed on April 15, 1960.
A bill of particulars ordered on the defendant's motion restricted the charges as follows:
During the years in question, the defendant did business as Jefferson Novelty Company, which owned and operated juke boxes, shuffle boards, and pinball machines also called marble tables. These machines were operated by dropping coins in a slot, and were placed in such places as taverns, bars and restaurants under arrangements by which the money dropped in the juke boxes and shuffle board machines would be split fifty-fifty between the location owner and the defendant. The pinball machines or marble tables were used for a form of petty gambling and took in more money. If a player beat the game, an electrically operated meter would register the number of free games won, which the player could either use at once or for which he would be paid by the location owner at the rate of 5 cents per game. As to these pinball machines, the agreements were that the location owners would first be reimbursed for the amounts paid out as shown by the meter and then would be paid 40% of the remaining money taken in by the machine, leaving 60% of such remainder for the defendant.
During the years in question, one Albert Borel, an employee of the defendant, would call not less than once a week, and sometimes more often, on each of the various locations, "rob" the machines, and deliver to the location owner his share of the contents. Borel was the government's "star" witness. He testified that, on the defendant's instructions, he made two sets of records when he "robbed" the pinball machines. One set showing the true amounts would be signed by the location owner; the other showing fictitious lesser amounts, made up by Borel "out of his head," would also be signed by the location owner. The location owner would be paid his 40% share of the winnings as shown by the true tickets, but would retain a copy of the false ticket only. Borel testified that he would sometimes check in to the defendant and sometimes to the bookkeeper and that he turned in both sets of records and all of the money that he had picked up.
Only seven of the twenty-three location owners listed in the bill of particulars were introduced by the government. They testified that their 40% share of the collections from the pinball machines ranged from $8.00 to $50.00 higher than the amounts shown on the false tickets.
The true tickets showed the meter readings of the pinball machines, but the false tickets did not. There was evidence from other witnesses that the false tickets which did not show the meter readings were the ones used in posting the defendant's books, and in making his income tax returns.
The government failed to prove the 1958 interest income of $54.50 as listed in its bill of particulars, but did offer proof as to part of the 1959 interest income of $640.00 so listed. Those interest items are extremely small as compared to the collections from the pinball machines. The government's evidence did not go beyond its bill of particulars. The defendant introduced no evidence other than his cross-examination of the government's witnesses.
In instructing the jury, the court made no reference to the bill of particulars. The defendant objected and insisted that the jury should be limited to a finding supported by items listed in the bill of particulars. The government does not quarrel with the proposition that the effect of the filing of a bill of particulars is to confine the government to proof of the transactions there contained. It points out that there was no evidence tending to show defendant's receipt of unreported income except with respect to the matters listed in the bill of particulars; and that that was not true in the case relied on by the defendant, People v. Davis, 269 Ill. 256, 110 N.E. 9. In the present case, there was no need to warn the jury not to consider evidence of unreported items not listed in the bill of particulars because there was no such evidence. Such an instruction may have been misleading or confusing to the jury, and the judge was well within the bounds of his discretion in refusing to so charge the jury.
In the course of his oral charge to the jury, the judge employed the following form or boiler-plate instruction:
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