Rubenstein v. United States, 4808.

• Decision Date: 01 September 1954
• Docket Number: No. 4808.,4808.
• Citation: 214 F.2d 667
• Parties: RUBENSTEIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

214 F.2d 667 (1954)

RUBENSTEIN v. UNITED STATES.

No. 4808.

United States Court of Appeals Tenth Circuit.

August 4, 1954.

Rehearing Denied September 1, 1954.

Isaac Mellman, Denver, Colo. (Gerald N. Mellman, Denver, Colo., on the brief), for appellant.

Donald E. Kelley, U. S. Atty., Denver, Colo., and Clifford C. Chittim, Asst. U. S. Atty., Boulder, Colo., for appellee.

Before PHILLIPS, Chief Judge, PICKETT, Circuit Judge, and KENNEDY, District Judge.

KENNEDY, District Judge.

The appellant, as defendant in the court below, was indicted for violation of 26 U.S.C. § 145(b), for the attempt to evade and defeat income taxes, and for violation of 26 U.S.C. § 3793(b) (1), for aiding and assisting in the preparation and presentation of a false and fraudulent return, the latter charge referring to the personal return of the defendant's wife, Zelda Rubenstein. The appellant and his wife were engaged in a copartnership, out of whose operations the controversy in this case arises.

The cause was tried to a jury, resulting in a verdict of guilty on both counts, upon which the defendant was sentenced to pay a fine of ten thousand dollars upon each count and have execution therefor and to imprisonment for a period of three years upon each count of the indictment, the term of imprisonment on such counts to run concurrently. The appeal here is from such sentence and judgment.

The points upon which appellant bases his charges of error by the trial court are eight in number, which in abbreviated form are as follows: (1) the Court erred in denying the appellant's motion for a bill of particulars; (2) the trial Court did not properly define "willfully" and "knowingly" as contained in the statute; (3) there was not sufficient evidence presented showing that the appellant aided and assisted in the preparation of the false returns of his wife; (4) there was not a proper instruction to the jury that from a proven situation the tax followed as a matter of law; (5) the jury was not properly instructed upon the essential elements of proof required to be established under the net worth theory; (6) the Court failed to instruct the jury upon the elements of the crime charged in each count of the indictment; (7) the Court erred in admitting certain exhibits on behalf of the government; and (8) the comments and actions of the trial Court were such as to prejudice and inflame the jury against the appellant so as to prevent him having a fair and impartial trial.

As to points 1, 2, 4, 5, 6 and 7 it would plainly appear that these alleged errors have been fully and completely ruled adversely to the appellant either jointly or separately by this court in the cases of Holland v. United States, 209 F.2d 516, and Hooper v. United States, 213 F.2d 30, which, together with the cases cited in those opinions, make it seem unnecessary to further add to the legal literature of this Circuit upon the subjects therein discussed.

As to the point that the Court erred in refusing a bill of particulars it might be mentioned that in addition to such matter being largely within the discretion of the trial judge as stated in the above cited cases, the record shows that the appellant upon two different occasions voluntarily appeared before revenue agents and fully discussed his returns as to his own figures and theirs concerning his 1946 return and those of previous years so that in advance of the trial he was fully advised as to the nature of the government's claim, thereby eliminating any element of surprise upon the trial.

Concerning point 8 — that the attitude of the trial Court was such as to prejudice and inflame the jury against the appellant so as to prevent him from having a fair and impartial trial — the record seems to disclose more than...