Reynolds v. United States, No. 15284.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtRIVES and CAMERON, Circuit , and DAWKINS
Citation225 F.2d 123
Docket NumberNo. 15284.
Decision Date29 September 1955
PartiesWinston M. REYNOLDS, Appellant, v. UNITED STATES of America, Appellee.

225 F.2d 123 (1955)

Winston M. REYNOLDS, Appellant,
v.
UNITED STATES of America, Appellee.

No. 15284.

United States Court of Appeals Fifth Circuit.

August 23, 1955.

Rehearing Denied September 29, 1955.


225 F.2d 124
COPYRIGHT MATERIAL OMITTED
225 F.2d 125
Zach H. Douglas, Jacksonville, Fla., Clyde W. Atkinson, Tallahassee, Fla., Charles R. Adams, Jr., Frank S. Twitty, Camilla, Ga., for appellant

Harrold Carswell, U. S. Atty., Tallahassee, Fla., Hayford O. Enwall, Asst. U. S. Atty., Gainesville, Fla., for appellee.

Before RIVES and CAMERON, Circuit Judges, and DAWKINS, District Judge.

RIVES, Circuit Judge.

This appeal is from a judgment of conviction on five counts of a six count indictment,1 each charging a gambling tax offense. The sentences on the several counts aggregated seven years imprisonment, $12,500.00 in fines, and the costs

225 F.2d 126
of court. As shown in footnote 1, supra, the counts were in groups of two, according to the kinds of offenses charged; Counts 1 and 2, attempting to evade and defeat the payment of the wagering occupational tax, Counts 3 and 4, attempting to evade and defeat the payment of the excise tax on wagers, and Counts 5 and 6, failing truthfully to account for and pay the excise tax on wagers; and as to each offense it was charged that the same was knowingly, willfully and feloniously committed. By its verdict the jury found the defendant "guilty as charged in Counts 2, 3, 4, 5, 6 of the indictment."

The claimed errors relate to the following rulings of the district court: (1) denial of motion to dismiss indictment and each count thereof; (2) denial of motion for bill of particulars; (3) denial of motion to transfer case to Jacksonville Division of Southern District of Florida; (4) denial of motion for change of venue; (5) admitting telephone conversations in evidence; (6) admitting telephone toll tickets in evidence; (7) admitting photograph in evidence; (8) denial of motion for judgment of acquittal.

(1) Motion to Dismiss. In appellant's original brief, the denial of the motion to dismiss was not specified as error but when the Government in its brief called attention to the recent decision of this Court in Clay v. United States, No. 15,060, 5 Cir., 218 F.2d 483, a supplemental brief on appellant's behalf was filed vigorously urging this point. The opinion in the Clay case, supra, does not show the exact terms of the indictment, and for convenience of reference we copy in the footnote the single count indictment in that case.2 As will be observed, footnote 2, supra, that indictment alleged the quo modo, it charged the attempt to evade the occupational tax "by engaging in the business of accepting wagers * * * without having paid said occupational tax * * *." (Emphasis supplied.) On the other hand, the indictment in the present case (footnote 1, supra), pleads the offense substantially in the language of the statute, which is an approved mode of pleading with the single exception of an instance where the words of the statute do not contain all the essential elements of the offense.3 That exception can have no application here unless it be held that Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418, added a substantive element to those contained in the statute defining a similar offense; and that is not true, for the Spies case simply construed the statutory language, "willfully attempts in any manner to evade or defeat any tax * * *." 26 U.S.C.A. § 145(b), I.R.C.1939. Indeed, in income tax cases, it has been stated that an indictment need not specify the means whereby the defendant attempted to evade and defeat the tax.4 Information

225 F.2d 127
as to the particular means employed may be obtained by bill of particulars.5 As will be later shown in discussing the appellant's third insistence on error, the grounds of the motion to dismiss based on objections to the venue were not well founded. There was, therefore, no error in denying the motion to dismiss the indictment

(2) Bill of Particulars. Appellant next complains in brief of the denial of his "motion for a bill of particulars calling upon the Government to allege plainly and definitely what act or acts were done by him evidencing a wilful attempt to evade or defeat the tax." Actually, there was no such motion, but the particulars called for in the motion were simply:

"As to Counts Three and Five.

"1. How and in what manner the government arrived at the figure of $65,923.00 set forth in each of said counts.

"As to Counts Four and Six.

"1. How and in what manner the government arrived at the figure of $43,755.00 set forth in each of said counts."

The Government was not held to proof of the exact amounts alleged.6 The motion for bill of particulars as filed was addressed to the sound discretion of the court,7 and we cannot say that such discretion was abused in this case.

(3) Motion to Transfer Case. Appellant insists that he could have paid the occupational gambling tax and the excise taxes on wagering at but one place, the Collector's office in Jacksonville, Florida, and, hence, that the venue lay in the Jacksonville Division of the Southern District of Florida. This objection was raised also by motion to dismiss, which, we think, was the technically correct method, inasmuch as the case does not come within the rules providing for transfer.8 In any event, there is no doubt that the objection to venue was duly presented by one method or the other. We think, however, that the venue was properly laid in the district wherein the crime was alleged to have been committed. See Sixth Amendment to the Constitution of the United States. Cf. Haas v. Henkel, 216 U.S. 462, 474, 30 S.Ct. 249, 54 L.Ed. 569. In Holbrook v. United States, 5 Cir., 216 F.2d 238, 239, it was alleged that the attempt to evade was "`by filing and causing to be filed * * * a false and fraudulent income tax return'" and, hence, the case was properly triable in the Atlanta Division, where such return was filed, rather than in the Gainesville Division where the defendant resided. We agree with what was said by the Fourth Circuit in Beaty v. United States, 213 F.2d 712, 715:

"This contention, however, overlooks the fact that the defendant was not indicted for wilfully failing to make returns and pay the taxes in violation of Sec. 145(a), or for making returns which he did not believe to be true and correct as to every material matter, in violation of Section 145(c) of the statute, but for attempting to evade or defeat the payment of the taxes by maintaining false books and records, by concealing assets, and covering up sources of income, and by preparing and filing false and fraudulent income tax returns. It has been held in cases where the charge was confined to an attempt to evade the tax by filing a fraudulent return that the offense was committed where the returns were filed. See the conflicting decisions in United States v. Aaron, D.C.N.D.W.Va., 117 F. Supp. 952, and United States v. Albanese, D.C.S.D.N.Y., 117 F.Supp. 736. The charge in the case at bar, however, includes the making of false records and

225 F.2d 128
the concealment of assets, and if any of these acts are proved to have occurred in the Western District of North Carolina, the case is made out and the trial court had jurisdiction." See 348 U.S. 905, 75 S.Ct. 311, Id., 4 Cir., 220 F.2d 681

In the case at bar no returns were filed nor taxes paid. Each count of the indictment specifically charged that the crime was committed in the Northern District of Florida, and, hence, the venue was properly laid in that district.

(4) Motion for Change of Venue. Proceeding under Rule 21(a) Federal Rules of Criminal Procedure, the defendant moved the court "for a change of venue to another division of this district" on the ground that the trial had been so highly publicized by the press and radio broadcasts that he could not obtain a fair and impartial trial in the Tallahassee Division. In support of that motion, the defendant presented Exhibit "A" consisting of a large file of newspaper clippings and Exhibit "B" consisting of a transcript of numerous radio broadcasts, and cited many authorities culminating with Shepherd v. State of Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740. The court denied the motion for change of venue.

The defendant was indicted February 4, 1954, and the trial at which he was convicted did not commence until September 13, 1954, more than nine months thereafter. Meanwhile, in the Florida State Courts he had been found not guilty of the offense of operating a lottery on March 14, 1954, and his first trial in the Federal Court had resulted in a mistrial on March 28, 1954. In the view of the district judge, the results of those two trials refuted the alleged grounds of prejudice.9

The appellant's counsel properly concede, "that much of the publicity which his case has received was a mere reporting of facts and not subject to censure." They complain particularly, however, of a news story in the Tallahassee Democrat of November 30, 1953, containing the headline, "Cuba Headquarters Uncovered." That was before either of the earlier trials and long prior to the trial at which the defendant was convicted. The date on which another article was published in the same paper headed, "Possible Leon — Phenix City Link Being Studied", does not appear either in the record or in the newspaper clipping.

Appellant bitterly complains that some of the publicity had insinuated that he was a member of a "crime ring" responsible for the death of Charlie McKinnon, a negro who had given statements to State and Federal officers against the defendant, and who was found dead in a ditch near his home in Pelham, Georgia, on January 10, 1954. A warrant charging defendant's employee, Al Tharpe, with the murder of McKinnon was issued, but on preliminary trial in the City Court of Camilla, Georgia, the judge ruled that "the State has failed to make a case for binding this...

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34 practice notes
  • Spinelli v. United States, No. 18389.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 12, 1967
    ...indictment couched in the terms of the statute, as this one is, is usually considered to comply with the rule. Reynolds v. United States, 225 F.2d 123 (5 Cir. 1955), cert. denied 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801; Brown v. United States, 222 F.2d 293 (9 Cir. An indictment is good if......
  • U.S. v. Caldwell, Nos. 72-1513
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 23, 1976
    ...the jury was then sequestered, as it was throughout the trial. 34 Brief of Appellant Caldwell at 57. 35 See Reynolds v. United States, 225 F.2d 123, 129 (5th Cir.), cert. denied, 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801 36 We repeat that the jury was sequestered for the duration of the tri......
  • Northern California Pharmaceutical Ass'n v. United States, No. 17549.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 15, 1962
    ...v. United States, 169 F.2d 739 (4th Cir.), cert. denied, 335 U.S. 826, 69 S.Ct. 51, 93 L.Ed. 380 (1948). 8 See Reynolds v. United States, 225 F.2d 123 (5th Cir.), cert. denied, 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801 9 The record shows that the practice of pharmacy has, with many other sp......
  • U.S. v. Edwards, No. 84-5968
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 6, 1985
    ...of the particular means by which the defendant attempted to evade and defeat the tax is not required. Reynolds v. United States, 225 F.2d 123, 126 (5th Cir.1955), cert. denied, 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801 (1955); United States v. Miro, 60 F.2d 58, 60-61 (2d Cir.1932); Capone v......
  • Request a trial to view additional results
34 cases
  • Spinelli v. United States, No. 18389.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 12, 1967
    ...indictment couched in the terms of the statute, as this one is, is usually considered to comply with the rule. Reynolds v. United States, 225 F.2d 123 (5 Cir. 1955), cert. denied 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801; Brown v. United States, 222 F.2d 293 (9 Cir. An indictment is good if......
  • U.S. v. Caldwell, Nos. 72-1513
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 23, 1976
    ...the jury was then sequestered, as it was throughout the trial. 34 Brief of Appellant Caldwell at 57. 35 See Reynolds v. United States, 225 F.2d 123, 129 (5th Cir.), cert. denied, 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801 36 We repeat that the jury was sequestered for the duration of the tri......
  • Northern California Pharmaceutical Ass'n v. United States, No. 17549.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 15, 1962
    ...v. United States, 169 F.2d 739 (4th Cir.), cert. denied, 335 U.S. 826, 69 S.Ct. 51, 93 L.Ed. 380 (1948). 8 See Reynolds v. United States, 225 F.2d 123 (5th Cir.), cert. denied, 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801 9 The record shows that the practice of pharmacy has, with many other sp......
  • U.S. v. Edwards, No. 84-5968
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 6, 1985
    ...of the particular means by which the defendant attempted to evade and defeat the tax is not required. Reynolds v. United States, 225 F.2d 123, 126 (5th Cir.1955), cert. denied, 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801 (1955); United States v. Miro, 60 F.2d 58, 60-61 (2d Cir.1932); Capone v......
  • Request a trial to view additional results

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