Holbrook v. United States, 15061.

• Decision Date: 08 February 1955
• Docket Number: No. 15061.,15061.
• Citation: 216 F.2d 238
• Parties: J. L. HOLBROOK, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

216 F.2d 238 (1954)

J. L. HOLBROOK, Appellant, v. UNITED STATES of America, Appellee.

No. 15061.

United States Court of Appeals Fifth Circuit.

October 29, 1954.

Rehearing Denied February 8, 1955.

A. C. Wheeler, Gainesville, Ga., J. Hugh Rogers, Atlanta, Ga., Wheeler, Robinson & Thurmond, Gainesville, Ga., for appellant.

James W. Dorsey, U. S. Atty., Atlanta, Ga., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.

HUTCHESON, Chief Judge.

Charged in a one count indictment with knowingly and wilfully attempting to defeat and evade income taxes due and owing by him "by filing and causing to be filed with the Collector of Internal Revenue for the Internal Revenue Collection District of Georgia at Atlanta, Georgia, a false and fraudulent income tax return" for the calendar year 1945, and found guilty, defendant was sentenced to pay a fine of $1500 and to imprisonment for a year and a day.

Appealing from the judgment and sentence, defendant is here pressing upon us two claims of error.

The first attacks the prosecution in the Atlanta instead of the Gainesville division of the district on two grounds: (a) that the Atlanta division of the court was without jurisdiction to proceed in this cause because the offense, if any, was committed in the Gainesville division; and (b) that the court erred in denying defendant's motion, under Rule 21(b), Federal Rules of Criminal Procedure, 18 U.S.C.A., to transfer the case to that division.

Conceding that Bowles v. United States, 4 Cir., 73 F.2d 772 holds directly contrary to ground (a), that the court was without jurisdiction to try this cause in the Atlanta division, appellant insists that Rule 18, Federal Rules of Criminal Procedure¹ is inconsistent therewith and now governs.

Without pointing to any case dealing directly with the question he presents, he urges that the established general principle, that the trial of crimes shall be held in the state and district where they have been committed, requires the ruling here that, since everything that was done by the defendant in this case occurred in the Gainesville division, he should have been prosecuted there.

Invoking the statutory provision, 18 U.S.C.A. § 3237, providing that "Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed", appellant insists that when the defendant "procured Oliver to make his tax return, signed it and mailed it at Cumming, if he was guilty of a crime it was then complete, even had it never been received by the Internal Revenue Collector."

While we find ourselves in general agreement with this view,² we are also in no doubt that since the return was filed in Atlanta and the indictment charged the filing there of false returns, the crime committed in so doing was properly, indeed should have been, prosecuted in the Atlanta division.

For the same reason, the indictment having been drawn so as to charge, as the offense, the filing of a false and fraudulent return with the clerk at Atlanta, the second ground of this claim of error, that the prosecution should have been transferred to the Gainesville Division, is without any sound basis.

Passing to the second claim of error, the one most argued by appellant and the one on which he mainly relies, that the evidence did not make out a case for a jury verdict, we find it no better taken. Urging upon us that the evidence failed in both of the respects essential to a conviction, (1) that the defendant failed to report all of his income, and (2) that such failure if any was wilfully evasive, appellant relies upon the claim: that the record compels the view that he employed one Oliver, an attorney at law expert in such matters, to prepare his income tax returns; that he gave him every assistance possible in preparing the returns; that the evidence of the United States in rebuttal of the information furnished Oliver and the returns made out by him was inaccurate and faulty; and that in pursuing the method employed, the witness for the government has failed to properly...