United States v. Eisenmann
| Decision Date | 24 June 1968 |
| Docket Number | No. 494,Docket 32062.,494 |
| Citation | 396 F.2d 565 |
| Parties | UNITED STATES of America, Appellee, v. Henry H. EISENMANN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Jacob W. Heller of Heller & Dretzin, New York City, for defendant-appellant.
Michael J. Gillen, Asst. U. S. Atty., Eastern District of New York (Joseph P. Hoey, U. S. Atty., on the brief), for appellee.
Before LUMBARD, Chief Judge and SMITH and ANDERSON, Circuit Judges.
Henry H. Eisenmann appeals from a judgment on jury verdict in the District Court for the Eastern District of New York, Judge Rayfiel, convicting him of violating 18 U.S.C. § 1001. Appellant was indicted on two counts: the first that on or about May 15, 1962, in his capacity as an employee of the Internal Revenue Service, he accepted $1,500.00 from Dr. Sidney S. Glass, whose 1958 income tax return was being audited by appellant, with the intent to have his decisions and actions influenced thereby, in violation of 18 U.S.C. § 202; the second that on or about July 31, 1962, in a matter involving the audit of Dr. Glass' return, appellant knowingly and wilfully made a false, fictitious and fraudulent statement and representation, and made and used a false writing and document, and submitted a false and fraudulent report concerning the audit, in violation of 18 U.S.C. § 1001. The jury returned a verdict of not guilty on count 1 and guilty on count 2, and Eisenmann appeals. We find no error and affirm the judgment.
The government's principal witness was Dr. Glass. He testified that in May 1962, appellant came to his home, and asked to see his records for 1958; that he called accountant Frank Salisbury, who went over the records with appellant; and that appellant returned alone later that day, told Dr. Glass that he would be "in a lot of trouble," and said that he could "straighten it out" for $1,500.00. Two days later, Dr. Glass testified, the bribe was paid; and sometime thereafter, Dr. Glass received a statement that there was no change in his tax liability. Salisbury, the accountant, testified that his involvement with the audit was limited to June 1962.
Sandra Glass, the doctor's estranged wife, testified that her income tax return for 1958 had been prepared by an accountant, who had sent her a copy of the return; and that she had never shown the copy to anyone, and specifically not to Dr. Glass or any Internal Revenue Service officer.
Appellant testified that he was assigned to the audit of Dr. Glass' 1958 return in May 1960, and that he first called the doctor in June 1960 to request to see the relevant books and records; that when he went to the doctor's house to get the records, the doctor called Salisbury, and appellant and Salisbury went to the latter's office to begin the audit; and that after that meeting appellant never saw Dr. Glass again. Appellant also testified that he had never seen the original 1958 return filed by Sandra Glass, and that during the audit he relied, as was his practice of twenty years standing, on an unsigned pencilled copy of her return. He also denied that Dr. Glass gave him any money, that he had told Dr. Glass that he owed $4,000 in additional taxes (as Dr. Glass had testified), and stated that his audit had been fair, correct, and honest, and that he had not submitted any false writings to the Internal Revenue Service in connection with the audit.
The report of Eisenmann to which count two of the indictment relates is Government's Exhibit 2. It states, inter alia, that alimony of $4,500 had been paid under a state court decree, that items of income and expense were examined and found to be substantially correct as stated on the return, that the alimony payments were verified by cancelled checks; that the children claimed as deductions on the return lived with the taxpayer during 1958, and that "Wife's retained copy of return inspected and the alimony received was shown as income."
Sandra Glass' original return for 1958 showed that she had claimed as deductions the same children claimed by the doctor, and that she reported alimony income of $5,100 (although the doctor had taken a deduction for alimony payments of only $4,500). There was no evidence that appellant ever saw this return.
Appellant contends that 18 U.S.C. § 1001 does not apply to reports submitted by Internal Revenue officers in the course of their work; that the evidence was insufficient to sustain his conviction for violation of that section; and that there were errors in the instructions to the jury.
The argument that 18 U.S.C. § 1001 is inapplicable here is based on the existence of 26 U.S.C. § 7214(a) (7), which provides that "Any officer or employee of the United States acting in connection with any revenue law of the United States * * * who makes or signs any fraudulent entry in any book, or makes or signs any fraudulent certificate, return, or statement * * * shall be dismissed from office or discharged from employment and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both." This section, appellant submits, evidences a Congressional intent that it should not be a crime for a revenue officer to submit a report which is merely false. The Senate and House committee reports, however, make it very clear that Congress changed the word "false" to "fraudulent" simply "to avoid the implication that this provision would apply to an innocent making of a false entry." 1954 U.S.Code Cong. and Adm.News pp. 4575 and 5255. No such implication is possible with 18 U.S.C. § 1001 since it, unlike 26 U.S.C. § 7214(a) (7), contains the phrase "knowingly and willfully."1 Thus, it is clear on the face of 18 U.S.C. § 1001 that an Internal Revenue agent cannot, contrary to Congressional purpose, be convicted under 18 U.S.C. § 1001 for making an "innocent" false statement. The wording of the two statutes which provide different penalties is thus in harmony with Congressional intent. There...
To continue reading
Request your trial
-
DeMaria v. Jones
...complain because he or she has been prosecuted under the statute which imposes a harsher potential penalty. United States v. Eisenmann, 396 F.2d 565, 568 (2d Cir., 1968); Black v. United States, 405 F.2d 187 (5th Cir., A defendant does not have a constitutional right to be prosecuted under ......
-
U.S. v. Batchelder
...circuits are Ehrlich v. United States, 238 F.2d 481 (5th Cir. 1956) (18 U.S.C. § 1001 and 18 U.S.C. § 1012), and United States v. Eisenmann, 396 F.2d 565 (2d Cir. 1968) (18 U.S.C. § 1001 and 26 U.S.C. § 7214(a)(7)).11 It is true, as the Supreme Court noted in United States v. Bass, 404 U.S.......
-
US v. Lang
...States v. Fern, 696 F.2d 1269, 1274 (11th Cir.1983); United States v. Grotke, 702 F.2d 49, 54 (2d Cir.1983); United States v. Eisenmann, 396 F.2d 565, 568 (2d Cir.1968). In United States v. Bilzerian, 926 F.2d 1285 (2d Cir.1991), the Second Circuit rejected the same argument raised here by ......
-
State v. Carr
...to charge the defendant with § 53a-147 rather than § 29-9. See United States v. Librach, 520 F.2d 550 (8th Cir.); United States v. Eisenmann, 396 F.2d 565, 568 (2d Cir.); State v. Daley, 147 Conn. 506, 508, 163 A.2d 112, cert. denied, 364 U.S. 887, 81 S.Ct. 178, 5 L.Ed.2d The defendant move......