Jaben v. United States

• Citation: 349 F.2d 913
• Decision Date: 13 September 1965
• Docket Number: No. 17718.,17718.
• Parties: Edward JABEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

349 F.2d 913 (1965)

Edward JABEN, Appellant, v. UNITED STATES of America, Appellee.

No. 17718.

United States Court of Appeals Eighth Circuit.

August 19, 1965.

Rehearing Denied September 13, 1965.

Charles C. Shafer, Jr., Kansas City, Mo., made argument for appellant and filed brief with Jane Robb Thompson, Kansas City, Mo.

K. William O'Connor, Atty., Tax Div., Dept. of Justice, Washington, D. C., made argument for appellee and filed brief with Louis F. Oberdorfer, Asst. Atty. Gen., Dept. of Justice, Joseph M. Howard and Stephen Koplan, Attys., Dept. of Justice, Washington, D. C., and also F. Russell Millin, U. S. Atty., Kansas City, Mo.

Before VOGEL, MATTHES and RIDGE, Circuit Judges.

VOGEL, Circuit Judge.

Edward Jaben, the appellant, was indicted on four counts charging him with violations of 26 U.S.C.A. § 7206(1) and 18 U.S.C.A. § 1001. Counts 1, 3 and 4 charged that three false written statements had been given to the Internal Revenue Service, while count 2 charged that a false oral statement had been made to agents of the Internal Revenue Service. The false statements allegedly made by the appellant asserted that all of his corporation's books, records and accounting data had been destroyed in a fire, whereas the government claimed that all were not destroyed. At the request of the appellant and with the consent of the government, the case was tried to the court without a jury. Judge Oliver found the appellant guilty on all four counts and imposed sentence as follows:

On counts 1 and 2, $500 fine on each count and the costs of the action.

On counts 3 and 4, imposition of sentence was suspended and appellant was placed on probation for a period of five years. One of the conditions of probation was that the $1,000 fine imposed on counts 1 and 2 should be paid during the probationary period.

After denial of a motion for a new trial, appeal was taken to this court.

Appellant first attacks the indictment, charging that the grand jury "enlarged upon the alleged crime by including in the indictment conditions relating to penal statutes which were omitted by Congress." He attempts to demonstrate the correctness of his contention by pointing out that in counts 1, 3 and 4 of the indictment read, "* * * Jaben did willfully and knowingly * * *", whereas 26 U.S.C.A. § 7206(1) uses only the word "willfully", and accordingly argues that there is an enlargement by including the word "knowingly". He also points out that in counts 1, 3 and 4 the indictment read, "* * * defendant well KNEW and BELIEVED * * *", whereas 26 U.S.C.A. § 7206(1) uses only the word "believed", claiming that there was an enlargement by the addition of the word "knew".

As to count 2, appellant points out that the indictment read, "* * * Jaben did WILLFULLY and KNOWINGLY * * *", whereas 18 U.S.C.A. § 1001, as it refers to "false statements", uses only the word "knowingly" and that the grand jury thereby enlarged the charge by adding the word "willfully".

While admitting that he is "unable to locate any authorities dealing with the precise factual situation present in this case * * *", he relies upon the subject of enlargement generally, citing Morissette v. United States, 1952, 342 U.S. 246, 264, 72 S.Ct. 240, 96 L.Ed. 288, and other cases which are of no support for his charge of error. Appellant made the same contention in District Court. Judge Oliver formally determined the matter adversely to the appellant, filing his Memorandum Opinion which is published as United States v. Jaben, D.C. W.D.Mo., W.D., 1963, 224 F.Supp. 603. We agree with Judge Oliver's handling of the questions and, additionally, direct attention to the fact that as to counts 1, 3 and 4, indictments under 26 U.S.C.A. § 7206(1) in similar form have repeatedly been considered and approved by the courts. United States v. Rayor, D.C.S.D. Cal., Central Div., 1962, 204 F.Supp. 486, 487, petition for rehearing dismissed, 9 Cir., 1963, 323 F.2d 519, certiorari denied, 375 U.S. 993, 84 S.Ct. 632, 11 L.Ed. 2d 479; Sherwin v. United States, 9 Cir., 1963, 320 F.2d 137 (note 2, p. 139). Cf. United States v. Accardo, 7 Cir., 1962, 298 F.2d 133 (note 2, p. 134) (reversing on other grounds a conviction in the District Court). We further point out that if the indictment as to counts 1, 3 and 4 did actually require proof of an additional element not necessitated by the language of the statute, the appellant should not be heard to complain. The requirement of proof beyond the wording of the statute would in fact be in appellant's favor. It would force the government to establish something not necessitated by the language of the statute, thereby placing an additional burden on the government.

We find appellant's attack on the wording of count 2 equally frivolous. See Knowles v. United States, 10 Cir., 1955, 224 F.2d 168. Addition of the word "willfully" could not possibly be prejudicial.

For his second claim of error, appellant argues that automatic extensions for corporations do not require a reason or verification and therefore count 3, based upon Form No. 7004, should be dismissed. Count 3 charged and the proof established that in making out Form No. 7004 the appellant declared "under the penalties of perjury" that:

"Reason extension is applied for: The records of the corporation were destroyed in a fire which took place on July 4, 1960. The company is still in the process of trying to find sufficient books and records upon which to base its return."

Appellant argues:

"Since the Internal Revenue Service has by regulations plainly indicated WHERE and WHEN it wants reasons given for an extension, the truth or falsity of a reason given for a PURELY AUTOMATIC extension can not constitute a criminal act. Inasmuch as the granting of the corporate extension is purely automatic, no possible materiality can be subscribed to the so-called reason since there would be no possible chance for the Government to be misled."

26 U.S.C.A. § 6081(b) provides:

"Automatic extension for corporation income tax returns. — An extension of 3 months for the filing of the return of income taxes imposed by subtitle A shall be allowed any corporation if, in such manner and at such time as the Secretary or his delegate may by regulations prescribe, there is filed on behalf of such corporation the form prescribed by the Secretary or his delegate, * * *." (Emphasis supplied.)

Appellant then directs attention to Regulation 1.6081-3, which says:

"(a) A corporation shall be allowed an automatic extension * * provided the following requirements are met:

"(1) An application must be prepared in duplicate on form 7004 * * * and must be signed by a person authorized by the corporation * * *

"(2) * * * upon the timely filing of form 7004 properly prepared, the 3-month extension shall be considered as allowed * * *."

Regardless of the regulation, application Form 7004 furnished by the Treasury Department and required by the regulation for the making of an application for an automatic extension to file an income tax return for a corporation based on 26 U.S.C.A. § 6081(b) contained the following:

"Application is hereby made for an automatic extension of three months for filing the completed return of the corporation named herein in accordance with the provisions of section 6081(b) of the Internal Revenue Code of 1954.

"Reason extension is applied for: ................."

The form also provides:

"SIGNATURE AND VERIFICATION

"I declare under the penalties of perjury that I have been authorized by the above-named corporation to make this application and that to the best of my knowledge and belief the statements made herein are true and correct."

The appellant signed such form, required by the regulation as based on § 6081(b), as president of the corporation and therein gave the reasons the extension was applied for, which reasons were charged to be false. The trial court, who was sitting as the trier of the facts as well as the judge of the law, specifically found that the statement of the appellant made in Form 7004 was made under the penalties of perjury, that the statement was false, was known to be false by the appellant, and was a material misstatement of fact. Appellant's reliance on Freidus v. United States, 1955, 96 U.S.App.D.C. 133, 136, 223 F.2d 598, 601, is misplaced. We find his second claim of error to be without merit.

Appellant contends that the motion for acquittal at the conclusion of the government's case should have been sustained. He argues that:

"Much of what the Trial Court at pages 11 and 12 of its opinion describes as being items relating to Defendant\'s `motivation,\' came NOT from the government\'s case, but from evidence later adduced by the Defendant. If the Defendant had refused to present any testimony or evidence at the conclusion of the government\'s case, the Trial Court would have been pressed to find `motivation\' in what the government had at that point presented."

It has been a long-standing holding of this court, as well as of other Circuits, that where a defendant, subsequent to the close of the government's case in chief, offers evidence of his own which supplies something lacking in the government's case, the defendant has "waived" his contention that there was a failure of proof at the close of the government's case. In Burton v. United States, 8 Cir., 1906, 142 F. 57, at 59, this court said:

"At the conclusion of the evidence for the prosecution the defendant Malchow requested the court to instruct the jury to return a verdict of not guilty as to him, on the ground that no evidence had been produced which tended to show that he was in any way responsible for the mailing of the circular. The request was denied, and he now seeks to press an exception taken to that ruling. But as he did not stand upon his request and exception, but proceeded to offer evidence in his defense, he waived all right to insist that the verdict should be rested solely upon the evidence produced by the

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