Percifield v. United States, 15119.

• Decision Date: 14 February 1957
• Docket Number: No. 15119.,15119.
• Citation: 241 F.2d 225
• Parties: Raymond PERCIFIELD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

241 F.2d 225 (1957)

Raymond PERCIFIELD, Appellant, v. UNITED STATES of America, Appellee.

No. 15119.

United States Court of Appeals Ninth Circuit.

February 14, 1957.

Maurice J. Hindin, Los Angeles, Cal., for appellant.

Charles K. Rice, Asst. Atty. Gen., Franklin Rittenhouse, U. S. Atty., Las Vegas, Nev., and Stanley H. Brown, Asst. U. S. Atty., Reno, Nev., Clyde R. Maxwell, Jr., Asst. Reg. Counsel, San Francisco, Cal., for appellee.

Before HEALY, POPE, and LEMMON, Circuit Judges.

LEMMON, Circuit Judge.

Convicted by a jury on each of two counts charging income tax evasion, appellant appeals from the judgment sentence pronounced thereon.

The first count in the amended information upon which the trial was had charged appellant with attempting to evade and defeat income tax owed by him and his wife for the year 1948 by means of filing false and fraudulent income tax returns that understated their income tax in the amount of $2,041.92. The second count charged that he willfully and knowingly attempted to evade and defeat the income tax owed by him for the year 1949 by means of filing a false and fraudulent return which understated his income tax in the amount of $559.76.

During the years in question appellant operated a gambling casino at Rangely, Colorado, known as the Ace-High Club. This contained a bar, a lounge, a cafe, and a casino room where games of chance were played, including blackjack or "21", poker, craps or dice, as well as slot machines. This Club had been purchased by the appellant in October, 1947, for $70,000, which included $3,500 worth of inventory. Appellant also owned another gambling place named Nevada Club at Wendover, Nevada.

The government claimed that during the two years involved he supplemented his income by "running games" in Colorado, Wyoming, Montana, Nevada and Utah, in which States he admitted "taking part in games".

Two income tax returns were filed at Reno, Nevada, by appellant for the year 1948, one purporting to report income from the Ace-High Club and the other, income from the Nevada Club.

James W. Bell, a special agent of the Intelligence Unit of the Internal Revenue Service, and Michael E. Thomas, Internal Revenue Agent, were assigned to investigate the tax liabilities of appellant. They interviewed him on September 30, 1952, after placing him under oath. A preliminary investigation revealed that the Glenwood Savings Bank held for collection a promissory note for $55,000 executed by Percifield in part payment for the purchase from one Joe Rosa of the Ace-High Club in October, 1947, for $70,000. Principal payments in the amount of $32,880 had been made on the note during the years 1948, 1949 and 1950. He had told Bell and Thomas that his living expenses totaled about three thousand dollars a year, that he had received no non-reportable income. It was pointed out to him that there were "some $36,000 of monies, of receipts, that had to come from some source," and I Bell asked him where it came from. He said, "I told you that I gambled, but I didn't know that it was that much." He said, "I have taken part in games in Colorado, Wyoming, Montana, Nevada and Utah." He said, "I even left this place for two or three weeks at a time. I have taken part in dice, twenty-one, mostly poker games." He also admitted that he had not kept a record of his gambling income.

Eleanor Jones, a witness for the government, had performed bookkeeping work for Percifield during the period between the "latter part of '47 until about the middle part of '49". Her duties were to "keep the daily records and expenditures and I would summarize and give a monthly total", "that wouldn't be the basic records for the business, but rather the secondary records".

She stated that at the commencement of her employment "I asked him to keep a record of receipts and then wrote it down receipts from bar, from the cafe, and lounge. It had to be separated because of sales tax returns, excise tax returns". Also, "I asked him to report any cash paid out he might have and checks he wrote and make notation of them, what they were for, on the check stub; to sic what type of expenditure it was for and any other income he had. * * * If he had gambling income, I stated sic to keep records". When asked whether "He gave you records?", she replied, "I don't think he put it down. He didn't want to show it on the monthly summary." Further, that he did not comply with her request that he "keep a running cash balance on hand"; and that he did not keep a record of his gambling that she saw.

Mrs. Jones made monthly summary records for appellant for the Ace-High Club for a portion of the year 1947 and the years 1948 and 1949 from daily records furnished by him; these daily records did not include gambling income because "he did not want to show it on his monthly summary". She did not prepare either of the 1948 returns, but she "probably made yearly total of all receipts and expenses, so far as bar, cafe and lounge". It contained no information as to gambling receipts or losses, because he had withheld that information.

She stated that she did prepare the 1949 return from the summary records for the Ace-High Club and from the Nevada Club records. The latter records were given to her by appellant at the time she prepared the return. At that time she asked him if he had any other income. He replied "That he had no other income or losses that should go on his return". She further testified that she knew she had no record of gambling receipts from the Ace-High Club.

Appellant attacks an instruction given by the court on reasonable doubt as inadequate.¹

Appellant has not complied with Rule 18 of this Court.²

Furthermore, no objection was voiced by appellant at the conclusion of the charge, though the judge afforded him an opportunity to do so in the absence of the jury. The Rule precluding a party from assigning as error on appeal any instruction or omission therefrom, unless objection was made thereto before the jury retired to deliberate and unless he stated at the trial distinctly what he objected to and the grounds of the objection, has a well-known and salutary purpose. When observed it affords the trial judge an opportunity to correct any error,³ thus according a defendant a fair trial and eliminating from the case an error that would be otherwise available on appeal in case of a verdict adverse to the defendant.

Although admitting that he failed to comply with Rule 18, appellant asks that we apply Rule 52(b), Fed.Rules Crim.Proc. 18 U.S.C.A., under which we may notice plain error affecting substantial rights though it was not called to the attention of the court. This we decline to do for two reasons: 1. The error in the instruction, if any, is not a plain error. "Plain" means "clearly or plainly apparent" and in this sense it has been stated that what is plain can be seen at the first glance without search or study.⁴ The space devoted in the briefs and the time devoted on oral argument relating to this instruction by respective counsel in condemning and defending it would indicate that the asserted error is anything but plain.⁵ It is quite arguable that the instruction is proper. 2. As stated by Judge McAllister in Lazarov v. United States, 6 Cir., 1955, 225 F. 2d 319, 329, quoted approvingly in the Herzog case, supra, "of course, an appellate court will consider an error in the charge which is seriously prejudicial or amounts to a grave miscarriage of justice even though no objection was made in the trial court." The evidence in the case does not permit the conclusion that the asserted error was seriously prejudicial or that there has been a miscarriage of justice. Cf. Herzog case.

Appellant next attacks instructions given on the net worth method. The instructions given and refused on the subject are not set forth in full in appellant's brief. A general objection was made at the trial but appellant did not specify the grounds of his objections.

The giving and the failure to give other instructions relating to the testimony of character witnesses, cautionary instructions, the net worth method, and "adequacy of the defendant's books": In no instance has appellant complied with our Rule 18. In Gordon v. United States, 9 Cir., 202 F.2d 596 we held that we need not consider a specified error where appellant failed to set out instructions given or requested in totidem verbis and the grounds if any, of the objections thereto. Further, even if Rule 18, subd. 2(d) had been complied with in no instance is the alleged error of such a nature that a miscarriage of justice would have resulted therefrom.

The defendant did not take...