United States v. Barnes

• Decision Date: 06 February 1963
• Docket Number: No. 14990.,14990.
• Citation: 313 F.2d 325
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. J. Lacey BARNES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

313 F.2d 325 (1963)

UNITED STATES of America, Plaintiff-Appellee, v. J. Lacey BARNES, Defendant-Appellant.

No. 14990.

United States Court of Appeals Sixth Circuit.

February 6, 1963.

William E. Badgett, Knoxville, Tenn., for appellant.

John H. Reddy, U. S. Atty., Knoxville, Tenn. (J. H. Reddy, U. S. Atty., Eastern District of Tennessee, Chattanooga, Tenn., on brief), for appellee.

Before O'SULLIVAN and SMITH,¹ Circuit Judges, and BOYD, District Judge.

BOYD, District Judge.

The defendant-appellant was indicted under a twenty-seven count indictment, each count charging him with wilfully and knowingly aiding and assisting in, and counseling, procuring and advising the preparation and presentation to the District Director of Internal Revenue of a false and fraudulent income tax return of another person in violation of Title 26 U.S.C., § 7206(2), Internal Revenue Code of 1954. Each count of the indictment charged that the tax return involved represented the taxpayer therein as entitled to one more exemption than the number to which the taxpayer was actually entitled. The United States Attorney at the trial's commencement dismissed thirteen of the counts aforesaid. At the conclusion of the government's proof in chief, the District Judge sustained appellant's motion for verdict of acquittal on one other count, denying appellant's motion as to the remaining thirteen. The jury convicted appellant on all remaining counts, whereupon the appellant was sentenced to three years on each, the sentences to be served concurrently.

The appellant assigns numerous errors, touching virtually all phases of the proceeding in the trial court. A number of assignments are patently without merit. However, several of the questions raised are considered worthy of brief discussion.

Pursuant to Rule 6(e), Federal Rules of Criminal Procedure, Title 18, U.S.C., the appellant filed in the District Court a motion for dismissal of the indictment herein charging that there was no competent evidence before the Grand Jury upon which a valid indictment could be returned. The motion also sought production of the names of the witnesses appearing before the Grand Jury and transcripts of their testimony. As grounds for the relief sought, the record discloses nothing more than appellant's conclusion that there was no competent evidence before the Grand Jury. The District Court summarily denied the relief sought. The appellant contends that this summary disposition by the court was reversible error. We consider this action by the District Court to be justified and in accord with the Supreme Court's express refusal to establish a rule whereby the minutes of Grand Jury proceedings would be rendered so easily accessible. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397.

Secondly, the appellant urges that his motion for verdict of acquittal at the conclusion of all the proof should have been granted as to all of the remaining counts upon which proof was taken. He maintains that there was no substantial evidence to support the convictions herein. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion. In determining whether there is such evidence in the record we must take that view of the evidence most favorable to the government, with inferences reasonably and justifiably to be drawn therefrom. Battjes v. United States, 172 F.2d 1 (C.A. 6) 1949; Sharp v. United States, 195 F.2d 997 (C.A. 6) 1952.

The appellant, an attorney, maintained his office in the general office area of Appalachian Loan Company in Knoxville, Tennessee. The tenor of the proof was that the appellant for several years either (1) had loaned money to persons apparently entitled to income tax refunds from the government, securing these loans by transfer to him of the taxpayers' interests in the refund claims, or (2) had purchased outright the taxpayers' interests in such refunds. The returns herein were all for the calendar year 1957 and were submitted on Forms 1040-A or "short forms." Also, each of these returns submitted by the appellant to the Internal Revenue Service reflected that there was a claim for one more exemption than the number to which the taxpayer was actually entitled. The falsity of the returns in this regard was not controverted and the taxpayers denied authorizing such false exemption claims, testifying that they merely gave accurate information and signed several forms in blank, including powers of attorney. Several of the taxpayer witnesses considered their transactions with the appellant to be loans. However, most of them termed the transactions as more in the nature of purchases of their W-2 forms. In the greater number of the within transactions the appellant received the refund checks from the government at one of the Post Office boxes at which he customarily received mail. He retained the difference between the amounts he had paid to or credited to the taxpayers and the amounts actually refunded. All of the taxpayer witnesses herein identified the appellant as the individual with whom they had dealt, with the exception of one Mrs. Dodd. Her husband had contacted the appellant regarding their separate returns and she merely identified the documents with respect to her individual return. While one of the taxpayer witnesses testified at the trial that he would not recognize the appellant if he should meet him on the street, this witness did point him out in the courtroom. His testimony concerning identification is open to several interpretations, depending to considerable extent on the manner in which he made the statements. It was properly for the jury to credit or discredit this identification. One witness could...