Janko v. United States

• Decision Date: 16 August 1960
• Docket Number: No. 16330.,16330.
• Citation: 281 F.2d 156
• Parties: Joseph W. JANKO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

281 F.2d 156 (1960)

Joseph W. JANKO, Appellant, v. UNITED STATES of America, Appellee.

No. 16330.

United States Court of Appeals Eighth Circuit.

July 13, 1960.

Rehearing Denied August 16, 1960.

COPYRIGHT MATERIAL OMITTED

Norman S. London and Sidney M. Glazer, St. Louis, Mo., for appellant.

John A. Newton and Frederick H. Mayer, Assts. U. S. Atty., St. Louis, Mo., William H. Webster, U. S. Atty., St. Louis, Mo., on the brief, for appellee.

Before SANBORN, MATTHES and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

The defendant-appellant, Joseph W. Janko, was found guilty by a jury on each of 3 counts of an indictment charging him with violations of § 7201 of the Internal Revenue Code of 1954, 26 U.S. C.A. § 7201.¹ The first count charged the defendant with a willful and knowing attempt to evade and defeat a large part of his federal income tax for the calendar year 1954. The second and third counts contained similar charges with respect to his federal income taxes for the calendar years 1955 and 1956, respectively. The court imposed sentences of imprisonment for a total of 10 years, viz., 4 years on the First Count, 3 years on the Second Count, and 3 years on the Third Count, the terms to run consecutively.

This was the defendant's second trial before the same judge on the charges under this indictment. The first trial also had ended in conviction upon all 3 counts but a motion for a new trial was granted; this was based upon the fact that 4 members of the first jury, in spite of repeated admonitions from the court, had either read or been advised prior to the verdict of prejudicial newspaper articles about the trial. Cf. Marshall v. United States, 1959, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250.

The alleged crimes here do not consist, as is usually the case, of willful understatements of gross income, but are bottomed, instead, on willful and knowing attempts by the defendant to evade and defeat his income tax for each of the 3 years by improperly asserting his own two minor children as dependents and claiming exemptions for them. The tax amounts involved are small: $134.00 for 1954, and $264.00 for each of the years 1955 and 1956. The defendant claimed in argument that this is the first case where fraud is asserted with respect to exemptions taken for a taxpayer's own existent minor children.

Much of the factual material is not disputed: The defendant's wife, Anna, obtained a default decree of divorce from him in the Circuit Court, City of St. Louis, on January 26, 1954. By that decree she was granted custody of their two minor children, the defendant was given two-hour Sunday visitation rights, and she was allowed alimony of $1 per year and support and maintenance for each of the minor children of $10 per week. During the 3 taxable years the children made their home with their mother and not with their father. The mother and the children resided with her father in his house in St. Louis; her father died in April 1955 but she and the children continued to live in that house for the rest of 1955 and all of 1956. She did no remunerative work outside the home during the 3 years until November 18, 1956, when she accepted employment at a hospital. For 1954 and again for 1956 the defendant used the "small" and simple Form 1040A for his federal income tax return. He used the standard or "large" Form 1040 for his 1955 return. On his 1954 return he designated himself as single; on it he showed wages of $1,420 and tax withheld of $177.90 and asserted the usual personal exemption for himself. Under Item 14 of that return, entitled "Exemptions for your children and other dependents", he listed the 2 children and asserted them as exemptions. The form, however, did not, as was the case with non-children dependents, require a taxpayer to state whether each child had gross income of $600 or more, the amount spent for the child's support, and the amount spent by others, and the defendant set forth no such information. The form he used for 1954 contained no computation of tax. The $177.90 withheld was routinely refunded to the defendant in April 1955. On the 1956 small form return the defendant asserted that his wages aggregated $4,483.13, that his income taxes withheld totalled $602.70, that his proper tax (from the table) was $450 and that there was an overpayment of $152.70. Under Item 15, entitled "Exemptions for your children and other dependents" the defendant again listed the 2 children, gave their address as different from his own, and asserted 3 exemptions, one for himself and one for each of the children. The claimed overpayment of $152.70 was routinely refunded to the defendant in March 1957. The defendant's long form for 1955 was prepared by W. J. Stailey Co. of East St. Louis, Illinois. It required a taxpayer to "list names of your children who qualify as dependents." Here again the defendant named the 2 children and asserted exemptions for them together with his own. This return showed wages of $3,160, tax withheld of $398.80, other income of $1,800, and a total tax (from the table) of $549. The $150.20 excess over the withholding was paid prior to the due date. All 3 returns were duly filed and were filed on time.

There is other evidence, too. Special Agent Carl Heinz testified that in a conference he had with the defendant in September 1957, at the Internal Revenue office in East St. Louis, the defendant acknowledged the 3 returns in question. He also testified:

"Q. Mr. Heinz, did you have occasion to question the defendant at that time in regard to the exemptions on these returns? A. Yes, I did.

"Q. Taking the 1954 return first, do you recall your conversation with the defendant? A. Yes, I do.

"Q. Can you tell us what that was? A. I asked him in a general way whether he understood what was necessary to claim an exemption in a return and he said he did. I asked him whether he understood — whether he contributed more than fifty per cent toward each defendant\'s support and he said yes, he understood that.

"Q. He understood that was what the exemption required? A. Yes, sir.

"Q. All right. Now did the defendant tell you how much he was contributing in the year 1954, toward the support of these two dependents listed? A. Yes, sir.

"Q. What did he say he was contributing? A. He said he averaged twenty dollars a week toward the support of the two children.

"Q. Twenty dollars a week in 1954? A. Yes, sir.

"Q. Did you inquire as to the later two years, 1955 and 1956? A. Yes, sir.

"Q. What did he say in regard to that? A. The same thing, that he contributed twenty dollars toward the support of the two children in those years.

"Q. Did you inquire further as to the basis of making that statement that he was contributing twenty dollars a week? A. Yes.

"Q. Could you tell us your conversation in that regard? A. Well, I asked him how he contributed it, and he said he contributed it in currency, he had no record of the contributions because it was currency. * * *"

Mrs. Janko, known as Mrs. Taylor after September 20, 1958, testified under subpoena that while her father lived he provided the housing and, with it and with his $152 monthly civil service pension, he supported the children in 1954 and until his death; that under her father's will she received the house; that, in substance, she contributed the major portion of the children's support in 1955 and 1956 in providing the house and the upstairs rentals; that the defendant contributed for the children's support between $50 and $60 a year plus about 5 pairs of shoes a year and a coat or two; that these monetary contributions were cash in varying amounts from $5 to $20 given on irregular occasions and usually handed to the son; that in 1954 they received about $300 from the second floor rentals; that these rentals in 1955 amounted to $100 a month when the second floor was rented; that there were weeks when the place was vacant or the tenants did not pay; that there were also rentals in 1956; that in 1955 she spent about $65 a month for food, two-thirds of which was for the children, and about $150 to $200 a year for clothing for the children and made other expenditures for gas, electricity and water; and that the 1956 expenditures on her part were much the same. She did not keep formal records of the payments the defendant made. The defendant's present wife Rosalie, whom he married in January, 1957, testified that during 1956 she drove with the defendant to Mrs. Taylor's home and, while she herself did not enter the house, saw the defendant give $20 in cash to his son on about 10 occasions. She had not known the defendant in 1954 and 1955 and thus had nothing to offer by way of evidence as to his payments in those years.

The defendant did not testify. Neither did his son Joseph. The boy was 11 years of age at the time of the trial and thus was between 6 and 8 during the years in question when the defendant's cash payments to him are said to have been made.

The case which confronts us, therefore, is one involving a small amount of tax dollars, is one which concerns no element of concealment or omission of gross income, is one which involves only a taxpayer's claim of exemptions for his own minor children whose existence is not questioned, but is one resulting, nevertheless, in a total of 10 years' incarceration for the defendant.

The defense's allegations of error are: error in denying a pretrial motion to dismiss; error in denying a motion for judgment of acquittal at the close of the entire case; error in respect to instructions; prejudice arising out of newspaper articles concerning the case; and error in the sentences. We consider these in order.

1. Pretrial Motion to Dismiss the Indictment. The defendant's argument here centers on the charge in each count.² He points out that there is no question of incorrectness in the stated

adjusted gross income and claims that the indictment does not assert that the defendant knew that the tax due was...