Myres v. United States
| Decision Date | 13 June 1949 |
| Docket Number | No. 13714.,13714. |
| Citation | 174 F.2d 329 |
| Parties | MYRES v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
John H. Flanigan, Sr., of Carthage, Mo., James J. Waters, of Kansas City, Mo., and Frank B. Williams, of Springfield, Mo. (Edward V. Sweeney, of Monett, Mo., on the brief), for appellant.
Sam M. Wear, U. S. Atty. and Harry F. Murphy, Asst. U. S. Atty., both of Kansas City, Mo., for appellee.
Before SANBORN, RIDDICK, and COLLET, Circuit Judges.
The United States, by an indictment in four counts, filed in August, 1947, charged the defendant (appellant) with four willful attempts to defeat and evade his federal income taxes for the years 1941, 1942, 1943 and 1944 by filing a false and fraudulent income tax return for each of those years.1 The defendant entered a plea of not guilty. The case was tried to a jury, which returned a verdict of guilty upon all counts. From the sentence entered upon the verdict, the defendant has appealed. He asserts that the sentence was invalid because: (1) the evidence was insufficient to sustain the verdict; (2) the District Court committed prejudicial errors relative to rulings on evidence and instructions to the jury; and (3) counsel for the government were guilty of misconduct which rendered the trial unfair.
There are several considerations which must be kept in mind on review of a case such as this:
1. In determining the sufficiency of the evidence to support the verdict of the jury, this Court must take that view of the evidence which is most favorable to the government, and give to the government the benefit of all inferences which reasonably may be drawn in its favor. Affronti v. United States, 8 Cir., 145 F.2d 3, 5, and cases cited.
2. The burden of demonstrating prejudicial error is upon the appellant. Marin v. Ellis, 8 Cir., 15 F.2d 321, 322; Metropolitan Life Insurance Co. v. Armstrong, 8 Cir., 85 F.2d 187, 195; Kimball Laundry Co. v. United States, 8 Cir., 166 F.2d 856, 859.
3. If the defendant was properly convicted upon any count of the indictment, the judgment appealed from must be affirmed, since the sentence upon all counts was less than the maximum sentence which could have been imposed under any one count. Gantz v. United States, 8 Cir., 127 F.2d 498, 501; Bowen v. United States, 8 Cir., 153 F. 2d 747, 748-749, and cases cited.
The defendant is a member of the Missouri Bar, engaged in the active practice of law at Monett, Missouri. He has specialized in personal injury and death cases. At the time of his trial he was 48 years of age, married, but childless. He came to Monett in 1934. From that time until December 30, 1944, he was associated with Mr. F. P. Sizer, of Monett, first as an investigator and later as a member of the firm of Sizer & Myres. Mr. Sizer was a much older lawyer, whose practice, largely confined to the personal injury field extended over Arkansas, Kansas, Oklahoma and Missouri. The defendant, by January 1, 1941, had acquired a 40 per cent interest in the firm's business. On March 1, 1941, he "was made full partner on all business, future business, to be taken into the office." He was "given a full 50 per cent of all business brought into the office after that date." There was no written partnership agreement. No books of account were kept by the firm or by the defendant prior to January 1, 1945. The defendant kept a record of certain bills that he paid for the firm, from year to year. The firm had case files. Moneys received by the firm were ordinarily deposited in the Gillioz Bank & Trust Company, of Monett, Missouri, in one of three accounts carried on the bank's books as "William J. B. Myres, Trustee," "William J. B. Myres," and "Sizer & Myres." Business expenses were usually paid from these accounts. Mr. Sizer died December 30, 1944, and the defendant took over the firm's business and assets under an arrangement made with Mr. Sizer prior to his death.
For the years 1941 to 1944 inclusive, the defendant filed joint income tax returns for himself and wife. According to his returns, his net income and income tax liability for each of the years in suit were as follows:
Net Income Tax Liability
1941 $4,142.75 $263.97
1942 1,634.30 6.51
1943 1,702.57 142.51
1944 2,740.34 415.28
The source of the defendant's income during the years in suit was his interest in the business of the firm of Sizer & Myres.
The government, in 1944 and 1945, conducted an investigation of the defendant's income tax returns and had some correspondence with him relative to his returns for 1942 and 1943. In June, 1945, a Revenue Agent by the name of Starr called upon the defendant in Monett and advised him that he (Starr) had the defendant's 1942 and 1943 returns to investigate. According to the evidence of the government, which, for the purposes of review, we must accept as true, Starr asked the defendant what records he kept of the income and expenses of the law business. The defendant stated that he had no books, no records, no cancelled checks, no check stubs, no case files for cases closed in 1942 and 1943; that the reason he destroyed cancelled checks, check stubs and case files was that "there had been disbarment proceedings brought against him and Mr. Sizer several years before, and that after they had been exonerated in those disbarment proceedings, Mr. Sizer would not keep any kind of records for fear someone might get in and see them." The defendant told Starr about the bank accounts and consented to their examination. The Revenue Agents assigned to the investigation of the defendant's returns laboriously reconstructed the net income and tax liability of the defendant for the years in suit from the records of the bank, from interviews with clients of the firm, and from other available sources of information relative to the receipts and disbursements of the firm of Sizer & Myres and of the defendant.
Upon the trial, the government, in order to prove its case, was forced to bring into court all of the witnesses whose testimony was necessary to establish a sufficient foundation for the introduction of the schedules and computations made by the Revenue Agents disclosing their reconstruction of the defendant's income for the years in suit. The government's evidence tended to show that, for each of the years 1941, 1942, 1943 and 1944, the defendant had grossly understated his net income and his tax liability, and that his expenditures during those years greatly exceeded his reported income. According to the government's figures, the defendant's net income and income tax liability for the years in suit were as follows:
Net Income Tax Liability
1941 $22,490.76 $ 5,723.40
1942 13,690.87 3,502.16
1943 9,636.25 2,347.06
1944 25,126.74 10,373.58
At the close of the government's evidence, the defendant moved for a verdict of acquittal, which was denied.
The defendant's evidence tended to show that his returns for the years in question were prepared with care, were believed by him to be correct at the time they were filed, and were made without any intent to evade or defeat his income taxes; that he had been willing and anxious at all times to cooperate with the government's Agents in ascertaining the correct amount of his tax liability for those years; that he had the case file in every case that the firm of Sizer & Myres had handled during those years and had all the cancelled checks drawn upon the several accounts in the Gillioz Bank & Trust Company; and that the reason he had not furnished the case files and the cancelled checks to the Revenue Agents was that they had not asked for them.
The evidence of the accountants employed by the defendant to reconstruct his income and income tax liability on the basis of the information derived from the files, checks and other information furnished them by the defendant tended to show that, while the defendant had understated his net income and his tax liability for each of the years in suit, his understatements were not nearly so great as the government asserted. According to the calculations of defendant's accountants, his net income, tax liability, and tax deficiency in each year were as follows:
Net Tax
Income Liability Deficiency
1941 $6,767.10 $ 644.88 $380.91
1942 2,009.27 134.47 127.76
1943 2,512.77 310.51 168.00
1944 5,879.35 1,230.01 814.73
The main reason for the difference between the government's figures as to net income and tax liability and those of defendant's accountants, who testified at the trial, is that, in computing net income, the government assumed that the defendant was entitled to deduct 50 per cent of the business expenses of the firm paid by him; while the defendant's accountants, on the basis of information given them by defendant, took the position that he was entitled to deduct all of the business expenses of the firm paid from the defendant's personal bank accounts and one-half of the expenses paid out of the firm's bank account. In other words, the government's position was that the defendant shared equally in the receipts and expenses of the business; while the defendant's position was that he received half of the income, but bore more than half of the expenses.
The first contention of the defendant is that he was entitled to a directed verdict of acquittal; that the decision of the Supreme Court in Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418, precluded his being convicted under § 145 (b) of the Internal Revenue Code. We cannot agree. A similar contention was...
To continue reading
Request your trial
-
Kansas City Star Company v. United States
...of the jury must be sustained. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680. In Myres v. United States, 8 Cir., 1949, 174 F.2d 329, 332, certiorari denied 338 U.S. 849, 70 S.Ct. 91, 94 L.Ed. 520, this court "In determining the sufficiency of the evidence to su......
-
United States v. Stoehr
...of such testimony is whether it gives needed help. United States v. Augustine, supra, 189 F.2d at page 590; Myres v. United States, supra, 174 F.2d at page 336; United States v. Renee Ice Cream Co., 3 Cir., 1947, 160 F.2d 353, at page 355; Trowbridge v. Abrasive Co. of Phila., 3 Cir., 1951,......
-
Isaacs v. United States
...and compare Mellor v. United States, 8 Cir., 160 F.2d 757, 765, cert. den. 331 U.S. 848, 67 S.Ct. 1734, 91 L.Ed. 1858; Myres v. United States, 8 Cir., 174 F.2d 329, 338, cert. den. 338 U.S. 849, 70 S.Ct. 91, 94 L.Ed. 520; Greenberg v. United States, 1 Cir., 280 F.2d 472, 474; United States ......
-
Carruth v. Hamm
...v. Edwards, 696 F.2d 1277, 1282 (11th Cir. 1983); United States v. Lemus, 542 F.2d 222, 224 (4th Cir. 1976); Myres v. United States, 174 F.2d 329, 335 (8th Cir. 1949); Winebrenner, 147 F.2d at 329. Two courts of appeals have affirmed cases where the trial judge failed to instruct the jury n......