Sanseverino v. United States

• Decision Date: 10 September 1963
• Docket Number: No. 7265.,7265.
• Citation: Sanseverino v. United States, 321 F.2d 714 (10th Cir. 1963)
• Parties: Mario SANSEVERINO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

321 F.2d 714 (1963)

Mario SANSEVERINO, Appellant, v. UNITED STATES of America, Appellee.

No. 7265.

United States Court of Appeals Tenth Circuit.

August 22, 1963.

Rehearing Denied September 10, 1963.

Gus Rinehart, Oklahoma City, Okl. (S. Morton Rutherford, Tulsa, Okl., on the brief), for appellant.

John M. Imel, Tulsa, Okl., for appellee.

Before PHILLIPS, PICKETT and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

Appellant was found guilty by a jury of wilfully and knowingly attempting to evade payment of income tax in violation of 26 U.S.C.A. § 7201.¹ The two-count indictment charged the taxpayer with having concealed income and assets in the years 1955 and 1956 and with having understated his income returns for those years by $26,586.95 and $22,912.56. He appeals the judgments of conviction asserting numerous errors in the admission of evidence and the instructions of the court and specifically contending that the statute of limitations had run as to Count I of the indictment.

The indictment was filed May 17, 1962, and charged in Count I the filing of a false return upon April 9, 1956, for the taxable year 1955. The government offered no affirmative proof that the normal six-year period of limitation set by 26 U.S.C.A. § 6531(2) had been tolled but the files and records of the District Court show that a complaint was filed in that court on March 30, 1962. The filing of such complaint, when made by the examining agent and affirmatively stating that the complaint is based upon his personal investigation, effectively tolls the statute under the proviso of Sec. 6531 which provides in part:

"* * * Where a complaint is instituted before a commissioner of the United States within the period above limited, the time shall be extended until a date which is 9 months after the date of the making of the complaint before the commissioner of the United States."

The government had no burden to offer formal proof of that which appears in the case record of the court for such is the cornerstone of judicial notice. Appellant's reference to White v. United States, 5 Cir., 216 F.2d 1, and Flemister v. United States, 5 Cir., 260 F.2d 513, is guideless for in each of those cases the trial court relied, through judicial notice, upon something that did not appear in its record.

Appellant urges that the admission of irrelevant evidence of transactions in years prior to the years under investigation was error and prejudiced his defense. The trial court instructed the jury as to the reasons for the admission of such evidence:

"You are instructed that although the defendant is herein charged with attempting to evade his income taxes for the years 1955 and \'56, the Court nevertheless permitted evidence of like or similar transactions by the defendant in prior years. Such evidence is to be considered by you only insofar as you may find it bears upon or relates to the intent of the defendant, if you find that he failed to pay all of his taxes for a year or years involved in this indictment. In other words, such evidence was admitted for the purpose of throwing light upon the state of mind or intent of the defendant when he filed tax returns for the years 1955 and \'56 and to show that the charged attempts to evade were part of the pattern or course of conduct which had been followed in former years."

Appellant protests that the transactions which were shown, i. e. a stock sale in 1953, large cash transactions and bank deposits, were not similar to his activities in the years under investigation, United States v. Accardo, 7 Cir., 298 F.2d 133, and indeed, implied to the jury that defendant had not paid proper taxes in prior years. We see no error in nor prejudicial effect to the admission of such testimony for it was consonant with the defense that his failure to pay the full tax required of him was a misconception of the law and a laxity in his business habits. The appellant was afforded ample opportunity to refute the implications which he now finds in the evidence and in fact offered evidence showing his entire life in this country and Italy, including its financial aspects. Whether or not the evidence to which he now...