Risinger v. United States, 15901.

• Decision Date: 06 September 1956
• Docket Number: No. 15901.,15901.
• Citation: 236 F.2d 96
• Parties: T. C. RISINGER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

236 F.2d 96 (1956)

T. C. RISINGER, Appellant, v. UNITED STATES of America, Appellee.

No. 15901.

United States Court of Appeals Fifth Circuit.

August 3, 1956.

Rehearing Denied and Opinion Corrected September 6, 1956.

Mack Taylor, Frank B. Potter, Fort Worth, Tex., Al Clyde, Fort Worth, Tex., for appellant.

Heard L. Floore, U. S. Atty., Fort Worth, Tex., for appellee.

Before TUTTLE, CAMERON and JONES, Circuit Judges.

CAMERON, Circuit Judge.

This is an appeal from a conviction on a jury verdict finding appellant Risinger guilty on all five counts of an indictment charging wilful evasion of income taxes for the years 1948, 1949 and 1950 based upon appellant's action in filing false and fraudulent tax returns for himself and his wife in violation of 26 U.S.C.A. (1939) § 145(b). Appellant claims that the Court below committed certain errors in admitting testimony, in failing to charge the jury accurately and adequately, and in failing to acquit appellant because of insufficiency of the evidence to sustain the verdict. Appellant is laboring under the handicap of having failed to take the steps in the Court below which are necessary to permit reliance upon most of the errors charged.

During the years 1948, 1949 and 1950 appellant was engaged primarily in the hotel business. The income tax returns filed by him were made from the books and records kept in connection with this business, but did not include income received from any other business or activity. A large amount of testimony was introduced by the Government from which the jury could determine that the porters and bellboys working in appellant's hotels had, by prior agreement with appellant, split the income received by them from the illicit businesses of prostitution and sale of intoxicating liquors carried on by them as an adjunct to the hotel business.

This direct proof of receipt of unreported income was supplemented by a large volume of proof establishing, under the net worth method, that appellant had made expenditures during the years in question considerably in excess of the income available to him from all legitimate sources. The Government used a large number of witnesses whose testimony, when recapitulated by the Government's experts, showed that, during 1948, appellant's expenditures exceeded his available income by $7,522.67; in 1949 by $12,273.00; and in 1950 by $8,347.20.

In connection with developing this character of proof the Government followed the usual custom of having one of its experts analyze the testimony of the large number of witnesses with whom appellant had had dealings and placing the expert on the stand to gather together the various fragments of testimony and present to the jury the picture resulting therefrom in an understandable and convincing manner.

The specifications of error chiefly argued by appellant relate to the evidence given by the porters of money received from the illicit businesses, it being claimed that said evidence was inadmissible and highly prejudicial; and that appellant's motion for mistrial based upon its reception should have been sustained; and to the claim that the Court below committed error in failing to charge the jury with respect to the rule that the unsupported testimony of an accomplice is insufficient to sustain a conviction.

The testimony of the porters was not hearsay and was clearly admissible to show that appellant received from them large amounts of money which were not reported as income. Cf. Ford v. United States, 5 Cir., 1956, 233 F.2d 56. There was sufficient direct proof, backed up by circumstantial evidence, that this split was made under prior arrangement with appellant. The Court below was careful to limit the effect of this evidence by charging the jury that it should be considered only as it tended to establish that appellant had received income and that the jury should not consider the illicit or immoral character of its source.¹

Appellant requested orally, after the Court's charge had been completed, that if the jury should believe that the porters and bellboys were accomplices of appellant, his conviction could not be sustained upon the uncorroborated testimony of these accomplices. The Court refused to give that instruction and the refusal was, in our opinion, proper. Appellant was indicted and tried for the crime of wilfully filing false and fraudulent income tax returns. There was no proof or hint that the porters were his accomplices in the crime charged against him. In order for one to be an accomplice he must be concerned in the commission of the specific crime with which the defendant is charged, he must be an associate in guilt of that crime, a participant in that offense as principal or accessory.² We conclude, therefore, that the Court did not commit error in connection with the various rulings relating to the testimony of the porters, in overruling the motion for mistrial based thereon or in refusing to give the requested charge predicated upon the assumption that they were accomplices in connection with the crime upon which appellant was convicted.

Appellant next argues that the Court below erred in permitting the Government experts, particularly the witness Haskins, to enter into a detailed explanation of the theory and content of the net worth method of developing income tax violations, and in permitting said witness too much latitude in explaining the various items entering into his computations, and in the effort to advance arguments to sustain the charges of the indictment. We have recently reversed a conviction of violation of the income tax laws, basing our decision in part upon what we found to be prejudicial actions and improper evidence by such government experts. Lloyd v. United States, 5 Cir., 1955, 226 F.2d 9. We referred to decisions of the Supreme Court and of this Court wherein words of admonition had been written in connection with the reception of such evidence.³ A careful reading of the testimony complained of by appellant reveals that quite a few of the questions asked by the Government's attorney were leading and argumentative, and the answers in some instances exceeded the limitations by which the introduction of such evidence is bounded. But we are not able to say that this evidence was clearly prejudicial or that its reception was "plain error."

Appellant is not in position to stand upon the error asserted in connection with this evidence for the reason that he did not object to it when offered or at any other time. During the extended examination of the government witness Haskins, occupying more than fifty pages of the record, appellant objected only once or twice, and then to the form of the question; and in each instance the Court required that the question be reframed so as to "avoid any argument in connection with your questions." Doubtless the Court would have kept the examination completely within legal bounds if called upon by seasonable objection...