United States v. Dowell, 618-70
| Decision Date | 02 August 1971 |
| Docket Number | No. 618-70,619-70.,618-70 |
| Parties | The UNITED STATES of America, Plaintiff-Appellee, v. Alfonzo L. DOWELL and Vivian T. Dowell, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William R. Burkett, U. S. Atty., for plaintiff-appellee.
John W. Walker, and Philip E. Kaplan, of Walker, Kaplan, Lavey & Mays, Little Rock, Ark. (Norman C. Amaker, New York City, of counsel, on the brief), for defendants-appellants.
Before HILL, SETH and DOYLE, Circuit Judges.
Defendants-Appellants, Alfonzo Dowell and Vivian Dowell, husband and wife, were convicted by a jury in the United States District Court for the Western District of Oklahoma of attempting to evade or defeat federal income taxes pursuant to 26 U.S.C. § 7201.1
1. It is here contended by the appellants that the judgment should be reversed and the cause remanded because the trial court erred in denying their motions for judgment of acquittal because of the failure of proof in support of the essential element of willfulness.
2. There existed racial discrimination in the selection of the jury. The defendants are black, but were tried by an all white jury. It is said that while this matter was not raised at trial, it was not effectively waived.
According to the evidence, Dr. Alfonzo L. Dowell is an optometrist, and his wife, Dr. Vivian T. Dowell, is a dentist. They both practice their professions in a clinic in Oklahoma City which was built by them in 1956 and financed through a federal savings and loan association. They have three children, all of whom were in school at the time of trial, and the family lives in a home completed in 1959 and purchased for a total contract price of between $42,000 and $44,000 ($32,000 of which was financed).
During the years covered by the indictment, 1963-1966, appellants' tax returns were prepared by an accountant, one W. T. Avery, from information furnished by appellants. The information furnished to Mr. Avery consisted of their receipt books to show professional income, a summary schedule of rental receipts to show rental income, their check stubs from two or three bank accounts2 and selected cancelled checks to show their expenses. On the basis of this information alone, it appears that the tax returns in question were correctly prepared by Mr. Avery.
For the years covered by the indictment, appellants' tax returns reported income as follows:
GROSS TAXABLE INCOME
YEAR INCOME INCOME TAX
1963 $ 39,682 $289.99 $58.00
1964 38,888 -0- -0-
1965 37,509 -0- -0-
1966 43,807 21.28 2.98
________ _______ ______
Totals $159,786 $311.27 $60.98
After the Government began its investigation of appellants' taxes in 1968, appellants filed amended tax returns for the years in question reporting income as follows:
GROSS TAXABLE INCOME
YEAR INCOME INCOME TAX
1963 $ 50,165.00 $10,080.00 $ 2,579.00
1964 56,133.00 15,055.00 3,703.76
1965 49,169.00 9,331.00 2,111.00
1966 52,428.00 8,794.58 2,027.38
___________ __________ __________
$207,895.00 $43,260.58 $10,421.14
Thus, it is beyond question that appellants understated their income by at least $48,000 during the four years. The inquiry then is whether they did so willfully and whether the Government's evidence was sufficient for the jury to so conclude and for the trial court to have denied appellants' motions for judgments of acquittal.
The attempt to evade or defeat the tax must be a willful attempt. The Government must prove beyond a reasonable doubt that there was an attempt made voluntarily and intentionally, and with the specific intent to keep from the Government a tax imposed by the tax laws. The accused must be shown by the evidence to have been under a duty to pay the Government and must be shown to have known that it was his legal duty to pay. Thus, the evidence must establish beyond a reasonable doubt a wrongful intent to evade the tax. Hargrove v. United States, 67 F.2d 820 (5th Cir. 1933). See also McCarty v. United States, 409 F.2d 793, 795 (10th Cir. 1969). Cf. Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L. Ed. 418 (1943). Such intent may be proved by circumstantial evidence, upon which reasonable inferences can be based. Swallow v. United States, 307 F.2d 81, 83 (10th Cir. 1962); cf. Haskell v. United States, 241 F.2d 790, 793 (10th Cir. 1957).
Courts have held various types of evidence under various types of circumstances to support a reasonable inference of willfulness. For example, the most applicable statement by the Supreme Court in Holland v. United States, 348 U.S. 121, 139, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954), regarded a pattern of underreporting to be sufficient:
The petitioners contend that willfulness "involves a specific intent which must be proven by independent evidence and which cannot be inferred from the mere understatement of income." This is a fair statement of the rule. Here, however, there was evidence of a consistent pattern of underreporting large amounts of income, and of the failure on petitioners\' part to include all of their income in their books and records. Since, on proper submission, the jury could have found that these acts supported an inference of willfulness, their verdict must stand.
In the case at bar, there is strong evidence in support of an inference of willfulness.
1. The amended returns filed for the years in...
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