U.S. v. Burks, 74-3426
Decision Date | 21 February 1975 |
Docket Number | No. 74-3426,74-3426 |
Citation | 508 F.2d 672 |
Parties | 75-1 USTC P 9258 UNITED STATES of America, Plaintiff-Appellee, v. J. D. BURKS, Defendant-Appellant. Summary Calendar.* *Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N.Y. et al., 5 Cir. 1970, 431 F.2d 409, Part I. |
Court | U.S. Court of Appeals — Fifth Circuit |
Pat H. Watts, Jr., Pascagoula, Miss., for defendant-appellant.
Robert E. Hauberg, U.S. Atty., James B. Tucker, Asst. U.S. Atty., Jackson, Miss., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
Burks was convicted on six counts of aiding and assisting in the preparation of false and fraudulent tax returns, in violation of 26 U.S.C.A. 7206. He seeks reversal of his conviction contending that improper evidence was admitted at trial, and that the prosecutor's remarks were so prejudicial as to deny him a fair trial. We affirm.
An undercover agent went to Burks, who prepared a false return for him. Shortly thereafter a search warrant was obtained for seizure of Burks' tax returns, record books, computation books, and other books, documents or papers relating to the preparation of tax returns. During the search agents seized a letter from Burks to his sister stating that he had cornered the market because he got more back for his clients. A motion to suppress the letter because it was not listed on the search warrant was denied. The letter was not introduced in the Government's case in chief rather it was used to cross-examine Burks for impeachment purposes and to show willfulness. In United States v. Kane, 5 Cir. 1971, 450 F.2d 77, 85, cert. denied, 1972,405 U.S. 934, 92 S.Ct. 954, 30 L.Ed.2d 810, we said: 'Evidence not described in a valid search warrant but having a nexus with the crime under investigation may be seized at the same time the described evidence is seized.' The letter had a nexus with the crime under investigation. It was properly admitted into evidence.
Burks next argues that the remarks of the prosecutor in opening and closing arguments were so prejudicial as to deny him a fair trial. In opening the prosecutor stated, '. . . you could find that these people are lower class people who depended on Mr. Burks to prepare their tax returns properly.' The statement was objected to by Burks. The prosecutor explained he meant no disrespect but stated that these people did not have the education or...
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