Reynolds v. United States
| Decision Date | 03 May 1961 |
| Docket Number | No. 18590.,18590. |
| Citation | 288 F.2d 78 |
| Parties | Winston M. REYNOLDS, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Crampton Harris, Birmingham, Ala., for appellant.
Edward L. Stahley, Asst. U. S. Atty., Wilfred C. Varn, U. S. Atty., Tallahassee, Fla., for appellee.
Before TUTTLE, Chief Judge, and RIVES and JONES, Circuit Judges.
This appeal is taken from the denial by the trial court of appellant's motion to correct a sentence. Since such a motion may be made at any time under Rule 35, F.R.Cr.P., 18 U.S.C.A., we elect to construe the amended motion filed on August 1, 1960, to be a new motion, with the result that an appeal taken from its denial, if filed within ten days, was timely. In the circumstances of this case we find that the notice of appeal was filed in the clerk's office within the time allowed by Rule 37(a) (2), F.R.Cr.P.1
Proceeding to the merits, we find we are faced with the difficult question: may the same acts or omissions of a taxpayer under the obligation to pay a gambler's tax subject him to prosecution for two offenses, (1) a wilful attempt "to evade or defeat" the tax, and (2) a wilful failure to "pay over" such tax.
Count 3 of the indictment charged that Reynolds did "knowingly, wilfully and feloniously attempt" to evade and defeat the payment of the excise tax on "certain wagers in the sum of $6592.30, representing 10 per cent of wagers alleged to have been made by him during the month of October 1953." Count 5 charged that he "did knowingly, wilfully, and feloniously fail to truthfully account for any pay over * * * the excise tax on such wagers for the same month in the sum of $6592.30."
Counts 4 and 6 similarly charged Reynolds with infractions of the law with respect to taxes on wagers made by him during the month of November, 1953.
On September 17, 1954, Reynolds was convicted following a trial by jury of the counts described above and of Count 2 of the indictment, not relevant here. He was thereafter sentenced to serve one year on Count 2, three years on Count 3, and three years on Count 4, the sentences to run consecutively. Further, he was fined $7,500 on Count 5 and $5,000 on Count 6. Almost six years later appellant instituted the proceedings which led to this appeal.
The determination of the trial court on appellant's motion was based upon its interpretation of Section 1718(b) of the Internal Revenue Code of 1939, 26 U.S. C.A. § 1718(b), and the question raised as to the correctness of that determination is the only substantial issue remaining before this Court on this appeal. The language of that portion of the Code follows:
"Any person required under this chapter to collect, account for and pay over any tax imposed by this chapter who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution."
The precise question for our determination is whether the familiar common law doctrine of merger is applicable to this section of the Code with the result that an attempt to evade the tax merges with a failure to pay the required tax so that a single crime exists under which a defendant may be prosecuted or whether the doctrine is inapplicable and two separate crimes, under either or both of which a defendant may be prosecuted, are established. While both parties to this appeal cite numerous cases in support of their respective positions, none of these is controlling, for this question has never been decided under the section in issue and the positions are merely taken by way of analogy. As was said by the Supreme Court in Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 405, 1 L.Ed. 2d 370, one of the cases relied on, in determining whether the doctrine applied to certain provisions of the Federal Bank Robbery Act, 352 U.S. 325, 77 S.Ct. 403. Thus, while Prince and similar cases, see, e. g., Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed. 2d 407, are authority for the proposition that each statute is unique as to whether there was a Congressional intent "to pyramid the penalties," Prince, supra, 352 U.S. 327, 77 S.Ct. 403, 406, the decisions reached in those cases are not too helpful when we are called upon, as we are here, to...
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