United States v. England

Decision Date06 July 1965
Docket Number14743.,No. 14742,14742
Citation347 F.2d 425
PartiesUNITED STATES of America, Plaintiff (Appellee), v. William B. ENGLAND, Also Known as William Benjamin England, Defendant (Appellant). UNITED STATES of America, Plaintiff (Appellee), v. William Bernard ENGLAND, Also Known as William B. England, Jr., Defendant (Appellant).
CourtU.S. Court of Appeals — Seventh Circuit


Wayne H. Bigler, Jr., Clayton, Mo., John J. Hoban, East St. Louis, Ill., for appellant.

Louis F. Oberdorfer, Asst. Atty. Gen., Joseph M. Howard, Atty. Tax Div., Dept. of Justice, Washington, D. C., Carl W. Feickert, U. S. Atty., East St. Louis, Ill., for appellee.

Before DUFFY and SWYGERT, Circuit Judges, and GRANT, District Judge.

Rehearing Denied June 7, 1965 (En Banc).

GRANT, District Judge.

The indictment in this case charged William B. England and his son, William Bernard England, in one count with willfully attempting, during the period from about June 27, 1955, to the date of the indictment, November 27, 1962, to evade and defeat the payment of income taxes owed by the father1 for the years 1944, 1945, and 1946, "duly assessed" on February 4, 1955, by concealing and attempting to conceal the nature and extent of real estate owned by the father and by making false statements concerning the father's interest in certain real estate, in violation of Section 7201 of the Internal Revenue Code of 1954 and of Title 18, United States Code, Section 2.2

After trial by jury, both appellants were found guilty. The father (William B. England, also known as William Benjamin England, and hereafter referred to as "England Senior") was sentenced to imprisonment for three years. The son (William Bernard England, also known as William B. England, Jr., and hereafter referred to as "England Junior") was placed on probation for a period of three years and sentenced to pay a fine in the sum of $4,000 and costs in the sum of $1,316.64. Each appellant filed a notice of appeal. The assignment of errors relied on therein allegedly arises out of instructions, rulings on evidence, and failure to grant defendants' motion for acquittal.

The evidence introduced at the trial consisted of (1) proof intended to show that valid assessments of income tax deficiencies, interest, and fraud penalties were made against England Senior on February 4, 1955, and (2) proof of various subsequent statements and acts of the appellants calculated to conceal from the Government the nature and extent of the property interests of England Senior, for the alleged purpose of preventing the Government from collecting the assessments.

As to the validity of the tax assessments, the Government introduced several pieces of documentary evidence. It was shown that England Senior was indicted on March 12, 1952, on two counts for willfully attempting to evade the federal income taxes owed by him for 1945 and 1946 by filing false and fraudulent income tax returns. This exhibit, consisting of the indictment, plea and sentence, was admitted in evidence only against England Senior. The same exhibit showed that England Senior on May 4, 1954, was permitted to withdraw his plea of not guilty and that he then entered a plea of guilty. On the same day, he was adjudged guilty and sentenced to pay a fine in the sum of $10,000. Furthermore, at the trial in this cause, England Senior (on direct examination by his own counsel) admitted that he was thus indicted in 1952 and that he pleaded guilty. The 1952 indictment alleged that England Senior reported taxes due of $644.90 for 1945 and of $559.89 for 1946, but that in fact the correct amounts of taxes were $8,303.22 for 1945 and $6,976.96 for 1946.

Having been adjudged guilty on May 4, 1954, as noted, England Senior thereafter signed certain waivers with respect to the assessment and collection of tax deficiencies, interest and penalties, in stated amounts, with reference to the years 1944, 1945, and 1946. Both waivers were on Internal Revenue Service tions on Tax and Acceptance of Over-Form 870, entitled "Waiver of Restric-assessment."3

In addition to the waivers, the Government introduced in evidence two exhibits which were certificates showing that deficiencies, interest and penalties were in fact assessed against England Senior (jointly with his wife for the year 1944) on January 24, 1955, for the years 1944, 1945, and 1946.4

The Government contended that the aforementioned exhibits showed the filing of false returns by England Senior and permitted an assessment after expiration of the three-year statute of limitations prescribed by Section 6501, Internal Revenue Code of 1954.5 Appellants, on the other hand, objected that the assessments were invalid because it was apparent of record that their filing in 1955 occurred long after the running of the statutory period.6 None of the exhibits were ever admitted in evidence against England Junior.

At the close of all the evidence, appellants requested instructions which would have permitted the jury to find the assessments valid or invalid as a matter of fact. These instructions, three in number, were refused by the trial court.7 The Government, on the contrary, requested an instruction that the assessments were valid as a matter of law, and the trial judge so charged the jury. The Government's instruction reads, in part, as follows:

"I now charge you as a matter of law that the assessments made against the defendant William B. England on February 5, 1955, in the amount of $9,849.78 as to the year 1944, and in the amount of $17,182.19 as to the years 1945 and 1946, have been valid obligations of the taxpayer to the United States Government since the dates on which the respective assessments were made until the date, November 27, 1962, on which the present indictment was returned and in the amounts, to the extent that all or any portion of these amounts have not been paid, which I have just enumerated."

Appellants have assigned the giving of the foregoing instruction as error. We are of the opinion that the giving of said instruction by the trial court, and taking from the jury the question of the validity of the assessments, constituted reversible error.

In reversing, we hold that, in the criminal prosecution of one charged with the commission of a felony, the defendant has an absolute right to a jury determination upon all essential elements of the offense. This right, emanating from the criminal defendant's constitutional right to trial by jury,8 is neither depleted nor diminished by what otherwise might be considered the conclusive or compelling nature of the evidence against him. This right is personal to the defendant, and, like his right to a jury trial, is one which he, and he alone, may waive;9 furthermore, in a situation wherein an understandingly tendered waiver is not forthcoming from the defendant, under no circumstances may the trial court usurp this right by ruling as a matter of law on an essential element of the crime charged.

There is no doubt that a valid assessment, and proof thereof, was an essential element of the case against appellants. Banks v. United States, 204 F.2d 666 (8th Cir. 1953), remanded on other grounds, 348 U.S. 905, 75 S.Ct. 311, 99 L.Ed. 710 (1955), reaffirmed, 223 F.2d 884 (8th Cir. 1955). That it was so, in fact, was admitted by the Government, as evidenced by the statement of the Government's attorney to the trial court that, "We have to show there was an assessment, a legal assessment." And, as an essential element of the felony charged, the Government shouldered the burden of proving its existence, as well as the other elements of the crime, beyond a reasonable doubt.10 As the court said in the Banks case, supra, 204 F.2d at 668:

"The court properly instructed the jury that the defendant is presumed to be innocent of the crimes alleged against him in the indictment, and that the burden was upon the government to prove him guilty beyond a reasonable doubt. That burden in this case, in which a violation of § 145(b) of the Internal Revenue Code,11 supra, is charged, required proof (1) that a tax was due from defendant to the government for each of the years charged; (2) that the defendant attempted to evade payment of that tax; and (3) that his attempt so to evade payment was willful." (Emphasis added.)

Nor is there any doubt that the fact of a valid assessment was "in issue". This is so in spite of a contrary result reached in a recent case, quite similar to that before us here, Guy v. United States, 336 F.2d 595 (4th Cir. 1964). There, the defendants were charged with having a still set up in violation of law, working at an unregistered distillery, and possession of materials intended for illegal use in connection with such still. The evidence apparently showed that the still had been dismantled, and the question was raised by the defense whether the several disconnected parts in fact constituted a still. Inasmuch as the evidence on this point was uncontroverted, the trial court took the issue of the existence of a still — admittedly an essential element of the crime charged — from the jury and ruled upon it as a matter of law in favor of the Government. The Court of Appeals for the Fourth Circuit affirmed, stating that, while "issues of fact" must be left with the jury, there could be no such issues of fact "where credible testimony with respect to it is neither denied nor impeached." Id., at 597. In effect, the court ruled that a trial court could rule as a matter of law on an uncontroverted, essential element of a crime.

However, in our view, the holding in Guy ignores the traditional notion that a plea of not guilty by an accused to an indictment or information charging a criminal violation places "in issue" all essential averments contained therein. Once the defendant has entered a plea of not guilty, everything material to a finding of his guilt is "in...

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