Rollinger v. United States, 14846.

• Decision Date: 25 November 1953
• Docket Number: No. 14846.,14846.
• Parties: ROLLINGER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

208 F.2d 109 (1953)

ROLLINGER v. UNITED STATES.

No. 14846.

United States Court of Appeals Eighth Circuit.

November 25, 1953.

Don C. Swanson, Des Moines, Iowa, for appellant.

Robert J. Spayde, Asst. U. S. Atty., Oskaloosa, Iowa (Roy L. Stephenson, U. S. Atty., Des Moines, Iowa, on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and COLLET, Circuit Judges.

GARDNER, Chief Judge.

Appellant was indicted, tried and convicted of the crime of attempting to defeat and evade a large part of the income tax due and owing by him to the United States for the calendar year 1948 by filing and causing to be filed with the Collector of Internal Revenue for the Internal Revenue Collection District of Iowa, at Des Moines, Iowa, a false and fraudulent income tax return in violation of Section 145(b), Title 26, United States Code.

Prior to the time of the transactions here involved appellant was engaged in the raising of hogs and chickens at or near LeMars, Iowa. We shall refer to the appellant as defendant. The income which it is claimed defendant received had no connection with his business as a producer of hogs and chickens but is alleged to have been realized by him as the result of various transactions involving the purchase and attempted sale of diamonds or zircons. It is claimed that defendant, acting as the purported agent or broker for one Mrs. Clara B. Mieras, purchased for and delivered to her various diamonds and zircons during the calendar year 1948 and that during said time in connection with these transactions she paid him large sums of money, either for the alleged purpose of purchasing diamonds or for travel and maintenance expenses, or for "protection" in questionable transactions in procuring the diamonds; that there resulted from the various transactions profit or income to the defendant in an amount exceeding $16,000.00.

It was the claim of the defendant that while he had received the money, it was not taxable income, but that he was indebted to Mrs. Mieras for the entire amount. It was also the claim of the defendant that if from the transactions involved income had been realized by him, that he in good faith believed he was indebted for the entire amount and that he acted in good faith in omitting the amount so received by him from his income tax return; that he had taken and followed advice of counsel on the matter and hence had not wilfully attempted to defeat and evade any part of the income tax due by him for the calendar year 1948.

At the close of the government's testimony, and again at the close of all the testimony, defendant interposed a motion for judgment of acquittal, which motions were denied and the cause was submitted to the jury on instructions to which no objections or exceptions were saved. The jury returned a verdict of guilty and from the judgment and sentence entered pursuant to this verdict defendant prosecutes this appeal. The sole alleged error relied upon is the denial of his motions for judgment of acquittal. He contends that these motions should have been sustained because (1) he had no taxable income for the year 1948; (2) the evidence was insufficient to prove that he acted wilfully and knowingly in failing to report the income charged to have been realized by him during the calendar year 1948; (3) the evidence was as consistent with his innocence as with his guilt and hence his motions for judgment of acquittal should have been granted.

In considering the question of the sufficiency of the evidence to sustain the verdict we must consider the evidence in a light most favorable to the prevailing party. It is not our province to weigh the evidence nor to consider or attempt to pass upon the question of the credibility of the witnesses. These are all questions for the jury and we must assume in the instant case that all conflicts in the evidence have been resolved by the jury in favor of the government. Hanson v. United States, 8 Cir., 186 F. 2d 61; Finnegan v. United States, 8 Cir., 204 F.2d 105. If when so considered there is substantial evidence tending to prove the guilt of the defendant beyond a reasonable doubt then the verdict of guilty should be sustained.

It is first argued that there was no substantial evidence that defendant realized taxable income during the calendar year of 1948. We shall first consider the testimony of Howard E. Anderson who testified that on September 18, 1949, he had a conversation with defendant, in the course of which defendant in substance said that he made six trips to Chicago to pick up diamonds for a lady in LeMars but that he actually bought zircons; that she gave him sums of money but that the zircons did not cost him what she gave him; that he had taken $18,000.00 from her; and that "What I did was wrong, but she had larceny in her heart, too." The defendant having taken the witness stand in his own behalf testified on cross-examination that "I did state to Mr. Anderson that I was purchasing zircons and selling them to Mrs. Mieras as diamonds. I told Mr. Anderson that I purchased zircons and sold them to Mrs. Mieras as genuine diamonds for $18,000.00." This testimony in itself shows that defendant on the diamond transactions realized a profit. In addition it is established by defendant's own testimony that he purchased diamonds and sold them to Mrs. Mieras at a substantial profit which of course resulted in income and was...