United States v. Cotter, No. 7484.

• Decision Date: 01 May 1970
• Docket Number: No. 7484.
• Citation: 425 F.2d 450
• Parties: UNITED STATES of America, Appellee, v. Howard J. COTTER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

425 F.2d 450 (1970)

UNITED STATES of America, Appellee, v. Howard J. COTTER, Defendant, Appellant.

No. 7484.

United States Court of Appeals, First Circuit.

Heard April 6, 1970.

Decided May 1, 1970.

Francis J. DiMento, Boston, Mass., with whom Richard M. Howland and DiMento & Sullivan, Boston, Mass., were on brief, for appellant.

Richard B. Buhrman, Atty., Dept. of Justice, with whom Johnnie M. Walters, Asst. Atty. Gen., Joseph M. Howard, Atty., Dept. of Justice, and Herbert F. Travers, Jr., U. S. Atty., were on brief, for appellee.

Before ALDRICH, Chief Judge, and COFFIN, Circuit Judge.

ALDRICH, Chief Judge.

The defendant Cotter, an employee of the Welfare Department of Springfield, Massachusetts and a lawyer engaged with an associate, one Mitchell, in the practice of law, was tried for income tax violations. Count 1 was for filing a willfully false return for the year 1961, in violation of 26 U.S.C. § 7201, Count 2 for the willful failure to file his 1962 return when due, in violation of 26 U.S.C. § 7203. He was found not guilty by a jury on Count 1, and guilty on Count 2. Following sentencing, he appeals.

The evidence established that the defendant's 1962 return was filed in August 1965. Accompanying it was a statement to the effect that the delay was due to the fact that a substantial part of his income came from his associate whose records had not become available until his death three months before. Although defendant did not take the stand, his defense was an attempt to substantiate that excuse, coupled with an attempt to show, on the issue of willfulness, that he had started to prepare his return before he was investigated.

We have rarely, if ever, been treated to a flimsier defense. To begin with the second point, if it is in any way relevant, it is true that defendant hired an accountant to work on his 1962 return shortly after Mitchell died in May 1965, which was before the Service investigated him. On the other hand, shortly before Mitchell's death the Service had interviewed the defendant about Mitchell, and had learned that Mitchell shared his fees on a 50/50 basis with the defendant. The defendant could not help but know that his turn was next.

As to the alleged unavailability of Mitchell's books, they were in the custody of the office secretary, whose salary was paid by the defendant, and who had a power of attorney on Mitchell's checking account. No reason for any secrecy from the defendant is suggested. The secretary testified that the defendant never asked to see Mitchell's books, nor asked her to obtain Mitchell's permission, if that were needed, to show them.

The defendant argues that if he had taken the stand he might have testified that he himself had asked Mitchell for permission, and that it was refused, and that for the jury to deny him the benefit of that assumption in effect would violate his Fifth Amendment rights. This is a total misconception of the amendment. The Fifth Amendment prevents the drawing of unfavorable inferences from the failure to testify; it does not prevent the drawing of affirmative inferences, or serve to rebut inferences that arise independently from other circumstances, unconnected with the defendant's failure to testify. From the nature of the relationship of the parties the jury could well infer that Mitchell would have permitted defendant to inspect his accounts had defendant requested it.

Nor can it be thought that the defendant did not know that he should file a return. He was a lawyer who had filed personal returns before. His gross 1962 income exceeded $50,000 and his tax thereon proved to exceed $10,000. Our time should not have been wasted by a claim that he was entitled to a directed acquittal.

We are not persuaded by defendant's attack on the indictment. The statute, 1954 Int.Rev.Code § 7203, 26 U. S.C. § 7203, provides, "Any person required * * * to make a return * * * who willfully fails to * * * make such return * * * at the time or times required by law * * * shall * * * be guilty of a misdemeanor." Defendant complains that it was insufficient for the indictment to allege that the defendant "was required by law following the close of the calendar year 1962 and on or before April 15, 1963, to make an income tax return * * *; that well knowing all the foregoing facts, he did willfully and knowingly fail to make said income tax return * * *." Defendant's complaint is that his "failure is not alleged to have continued through April 15, 1963." We do not agree....