United States v. Besase, 17035.

• Decision Date: 23 February 1967
• Docket Number: No. 17035.,17035.
• Citation: 373 F.2d 120
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George BESASE, John Besase, Sam Besase, Ted Malson, Angelo Perna and Sam Rappaport, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

373 F.2d 120 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. George BESASE, John Besase, Sam Besase, Ted Malson, Angelo Perna and Sam Rappaport, Defendants-Appellants.

No. 17035.

United States Court of Appeals Sixth Circuit.

February 23, 1967.

John Kennedy Lynch, Cleveland, Ohio, and Paul A. Weick, Akron, Ohio, Marcus L. Friedman, James Slater Gibson, Toledo, Ohio, on brief, for appellants.

John G. Mattimoe, Asst. U. S. Atty., Toledo, Ohio, Merle M. McCurdy, U. S. Atty., Toledo, Ohio, on brief, for appellee.

Before PHILLIPS, PECK and McCREE, Circuit Judges.

McCREE, Circuit Judge.

Following a non-jury trial, appellants were convicted of engaging in business as partners in a single six-member partnership in the conduct of a numbers lottery and with filing false and fraudulent Tax on Wagering Tax Returns for certain taxable periods. Appellants had obtained Wagering Tax Stamps for three two-member partnerships, each of which had filed returns for the specified periods declaring an aggregate amount of wagers substantially less than the amount charged by the government for the alleged six-man partnership.

Eight grounds for reversal are asserted.¹ At the oral argument on appeal, appellant also urged another ground relating to sufficiency of proof: that there was insufficient proof to permit a finding that the alleged six-man partnership failed to file a return for the periods involved. This issue is properly before us on defendants' motion for acquittal. Rule 29, Fed.R.Crim.P. Even without a motion for acquittal, in a nonjury trial, on a plea of not guilty, the sufficiency of the evidence to sustain a conviction should be reviewed as if there had been a formal motion for judgment of acquittal. Hall v. U. S., 286 F.2d 676 (5th Cir. 1960), cert. den. 366 U.S. 910, 81 S.Ct. 1087, 6 L.Ed.2d 236 (1961).

Because we find that the evidence of non-filing by the alleged six-member partnership is insufficient to support a conviction, it is unnecessary to consider the other claims of error.²

A brief recital of the undisputed facts will present the issue more clearly.

Sam Rappaport and Ted Maison registered as partners and obtained a wagering stamp as the "M & R" Company. John Besase and George Besase did likewise as the "Star Company", and Sam Besase and Angelo Perna registered as a nameless partnership. Under these registrations, all of which were filed July 3, 1963, each of the separate partnerships filed monthly wagering excise tax returns with corresponding payments purporting to amount to the ten percent tax on the gross dollar amount of wagers accepted by each partnership. The government alleged that these three partnerships were merely facades behind which an actual six-man partnership functioned and accepted substantially more in wagers than the aggregate amount reported in the three separate partnership returns. It requires little imagination to understand the purpose of this scheme, if it existed as the government undertook to prove, because the wagering activity of the individual members would be regarded by Internal Revenue agents as being conducted pursuant to the occupational stamps which had been issued to the three two-member partnerships.

It thus became incumbent on the government to prove the existence of the six-member partnership and its filing of false and fraudulent returns. In order to prove the second contention, it had to prove (1) that the six-man partnership caused to be filed the three two-member partnership returns (a requirement the sufficiency of proof whereof neither appellants nor appellees argued), (2) that these returns falsely and fraudulently reported the amount of wagers accepted by the six-member partnership, and (3) that the six-member partnership did not file a proper return for such an entity.

On oral argument counsel agreed that the only evidence on the failure of the alleged six-member partnership to file a return was the testimony of one John F. Lucic, an employee of the Internal Revenue Service, and government's exhibits numbered 49, 50, and 51 which were offered in evidence.

We reproduce the testimony of Mr. Lucic.³

Q. (By Mr. Mattimoe) I am showing you what has been marked Government Exhibits 49, 50 and 51, Mr. Lucic. Did you produce those documents this morning at our request?

A. I did.

Q. What are those documents?

A. This is a Certificate of Assessments and Payments, which is a document that is produced certifying the original documents in the name of the taxpayer, as requested, at that address, and concerns certain particular taxes for certain periods, and covers those returns filed with the northern 47 counties of the District of Ohio. This covers the Cleveland District only, no other district.

Q. Who signed them?

A. F. S. Thurber signed them, the District Director.

Q. How is the information on those forms compiled?

A. These are compiled from the original returns or documents, subsequent posting documents in the event there are payments, by a certification clerk.

Q. And in the case of these three documents, under whose supervision or direction was this done?

A. This was done under my direction.

Q. Do those certificates reflect all of the returns that were filed in the case of each of the taxpayers?

A. For this particular —

MR. LYNCH: (Interposing) Objection, your Honor. The question says "all the returns of the taxpayer." We don\'t know who the taxpayers are. It encompasses a broad area, and it hasn\'t been brought out as to how he knows about "all returns."

Q. (By Mr. Mattimoe) Taking Exhibit 49, who is the taxpayer?

A. This is a Form 899, Certificate of Assessments and Payments, in the names of Sam Rappaport and Ted Maison, the M & R Company, address 4555½ Monroe Street, Toledo, Ohio, and it covers the tax on wagering, covering the period from January through November, 1963.

* * * * * *

Q. (By Mr. Mattimoe) Do you recall my question?

THE COURT: Let the Reporter read the question

(THEREUPON, the question referred to was read by the Reporter as follows:

"Q. Does that certificate reflect all of the wagering tax returns which were filed by the taxpayers within this District and within those times you have recited?")

A. It does.

MR. FRIEDMAN: May we have a continuing objection to this, if the Court please?

THE COURT: You may.

Q. And does it likewise reflect all the payments which were made by those particular taxpayers, between those dates you have stated the certificate covers, and made within the Northern Internal Revenue District of Ohio?

A. On those tax returns, yes.

Q. All right. Let us go to Government Exhibit 50. Who is the taxpayer for whom the certificate known as Government Exhibit 50 was made?

MR. GIBSON: May the record show that we object to this compilation in behalf of George Besase and John Besase.

THE COURT: The record may show your objection.

MR. MATTIMOE: Does the Court want to see these forms?

THE COURT: Not at this time.

Q. (By Mr. Mattimoe) Who is the taxpayer on Government Exhibit 50?

A. May I make a clarification here? This has two pages, this exhibit.

Q. It is a two-page exhibit, I believe, yes.

A. The first Certificate of Assessments and Payments covers the taxpayers John, George and Joseph Besase, the Star Company, and is for tax on wagering. It covers the month of January through June, 1963.

Q. And the second page?

A. The second page is the certificate covering the taxpayers John and George Besase, the Star Company, tax on wagering, covering the period July through November, 1963.

Q. Does that certificate, Government Exhibit 50, reflect all of the returns which were filed and all of the payments which were made for those taxpayers you have named from January, 1963, through November, 1963, within

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