United States v. Foster, Crim. No. 25463.

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Citation197 F. Supp. 387
Docket NumberCrim. No. 25463.
PartiesUNITED STATES of America v. Grant FOSTER.
Decision Date30 August 1961

COPYRIGHT MATERIAL OMITTED

Joseph D. Tydings, U. S. Atty., and John R. Hargrove, Asst. U. S. Atty., Baltimore, Md., for plaintiff.

Walter Humkey, Harold L. Ward, and Fowler, White, Gillen, Humkey & Trenam, Miami, Fla., for defendant.

THOMSEN, Chief Judge.

This case is before the court on a series of motions filed by defendant, only four of which require discussion. The indictment contains two counts charging tax evasion by filing fraudulent returns and two charging failure to file.

Count 1 charges a violation of sec. 145 (b), I.R.C.1939, 26 U.S.C.A. § 145(b), in that:

"On or about the 30th day of October, 1953, in the District of Maryland, Grant Foster, a citizen of the United States of America, residing in the Republic of Venezuela, * * did wilfully and knowingly attempt to evade and defeat a large part of the income tax due and owing by him and his wife to the United States of America for the calendar year 1952, by filing and causing to be filed with the Director of Internal Revenue at Baltimore, Maryland, a false and fraudulent joint income tax return * * *, wherein it was stated that their adjusted gross income for said calendar year was the sum of $3,175.46 and that the amount of tax due and owing thereon was the sum of $102.00, whereas, as he then and there well knew, their adjusted gross income for the said calendar year was the sum of $304,291.42, upon which * * * there was owing * * * an income tax of $230,959.47."

Count 2 is similar, except as to dates and amounts. It charges a violation of sec. 7201, I.R.C.1954, 26 U.S.C.A. § 7201,1 since the return was filed on September 24, 1954, for the calendar year 1953.

Count 3 charges:

"That during the calendar year 1955, Grant Foster, a citizen of the United States of America, residing in Costa Rica, had and received a gross income of $22,579.28; that by reason of such income he was required by law, after the close of the calendar year 1955 and on or before April 15, 1956, to make an income tax return to the District Director * * * at Baltimore,2 * * * that * * * he did wilfully and knowingly fail to make said income tax return to the said District Director * * * or to any other proper officer of the United States within the time prescribed by law."

Count 4 charges a similar offense for the year 1956. Sec. 7203, I.R.C.1954, 26 U.S.C.A. § 7203, applies to both.

I.

Defendant has moved under Rule 21 (b), F.R.Crim.P., 18 U.S.C.A., to transfer the entire case to the Southern District of Florida, Miami Division. Rule 21(b) provides:

"Offense Committed in Two or More Districts or Divisions. The court upon motion of the defendant shall transfer the proceeding as to him to another district or division, if it appears from the indictment or information or from a bill of particulars that the offense was committed in more than one district or division and if the court is satisfied that in the interest of justice the proceeding should be transferred to another district or division in which the commission of the offense is charged."

It is not necessary that all of the counts be transferable in order that some of the counts be transferred. United States v. Choate, 5 Cir., 276 F.2d 724.3 This court must therefore consider with respect to each of the four counts (1) whether it can be transferred under Rule 21(b), and (2) whether it should be transferred.

Count 1. Sec. 145(b) of the 1939 Code makes it a felony to attempt in any manner to defeat and evade the payment of an income tax. Congress did not define or limit the methods by which a wilful attempt to defeat and evade might be accomplished. Indictments customarily charge that the defendant wilfully attempted to evade and defeat the tax in some specified manner or by some specified act; e. g., the first count in the case at bar charges that the defendant "did wilfully and knowingly attempt to evade and defeat a large part of the income tax due and owing * * * by filing and causing to be filed with the Director of Internal Revenue at Baltimore, Maryland, a false and fraudulent joint income tax return * * *".

Defendant contends that although the indictment charges only one "manner" in which the attempt to evade and defeat the tax was made, the crime consisted of the entire attempt; that all acts done pursuant thereto were parts of the crime; and, therefore, that the crime was committed wherever any such act was done. Specifically defendant argues: (1) that it appears from the "answer" filed by the government pursuant to the order of this court of June 2, 1961, that the return was placed in the mails in Miami, Florida; (2) that defendant has stated in open court (though not under oath) and through his counsel that he signed the return in Miami; and (3) that it appears from affidavits of other persons that the returns were prepared by accountants in Miami from information furnished to them by one of defendant's attorneys.

Rule 21(b), F.R.Crim.P., supra, requires that the facts showing "that the offense was committed in more than one district" shall appear "from the indictment or information or from a bill of particulars". That requirement has been waived in certain cases, e. g. in United States v. Warring, D.Md., 121 F. Supp. 546, affirmed 4 Cir., 222 F.2d 906, certiorari denied 350 U.S. 861, 76 S.Ct. 102, 100 L.Ed. 764, where the government conceded that the facts stated by the defendant's counsel were true. In the case at bar the government has refused to include in a bill of particulars or otherwise to concede that the returns were prepared or signed in Florida. Because an attorney for defendant stated in a letter dealing with his civil liability, "there is absolutely no connection between Miami and my client", and the various affidavits do not admit that any evasive act was committed or intention formed in Florida, or elsewhere, I cannot say that the government is not justified in refusing to admit the statements upon which defendant relies. Nor can I consider that they have been sufficiently established to satisfy Rule 21(b).

There remains only the particular that the return was mailed from Miami, Florida. It does not appear that defendant was there at the time it was mailed or had directed whence it should be mailed. In view of the general statements in Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 87 L.Ed. 418, and United States v. Johnson, 319 U.S. 503, 515, 63 S.Ct. 1233, 87 L.Ed. 1546, it may be that the mailing constituted an act in furtherance of the attempt. However, in view of Judge Chesnut's opinion in Warring, supra, and of Bowles v. United States, 4 Cir., 73 F.2d 772, 774, United States v. Aaron, N.D.W.Va., 117 F. Supp. 952, and the dissenting opinion of Judge Miller in United States v. United States District Court, 6 Cir., 209 F.2d 575, 577, it is not certain that the mailing of the return was a part of the offense charged in the indictment, which specified only one manner, namely, "by filing or causing to be filed with the Director of Internal Revenue at Baltimore, Maryland, a false and fraudulent joint income tax return".4 It is doubtful, therefore, whether the offense charged in Count 1 was "committed" in the Southern District of Florida. On the other hand, it is clear, indeed conceded, that it was committed in the District of Maryland. Bowles v. United States, supra; United States v. Warring, supra.

Count 2. What has been said about the first count applies also to the second count.

Counts 3 and 4. The third and fourth counts charge wilful failure to file returns for the calendar years 1955 and 1956 respectively, which should have been filed with the District Director for the collection District of Maryland, at Baltimore, since defendant was then residing in Costa Rica.5 Prosecutions for failure to file returns can only be brought in the judicial district where the return should have been filed. Bowles v. United States, 4 Cir., 73 F.2d at page 774; United States v. Lombardo, 241 U.S. 73, 36 S. Ct. 508, 60 L.Ed. 897; United States v. Yarborough, D.Md., 16 F.R.D. 212, affirmed 4 Cir., 230 F.2d 56, certiorari denied 351 U.S. 969, 76 S.Ct. 1034, 100 L. Ed. 1487, and cases cited in the two Yarborough opinions.

Conclusion. Rule 21(b) does not authorize the transfer of the entire case when some of the counts are transferable and some are not. United States v. Choate, supra.

Since it is doubtful whether the first two counts are transferable under Rule 21(b), and it is clear that the third and fourth counts are not transferable, it would not be in the interest of justice to transfer some of the counts to Florida leaving some in this District, even if this court has the power to do so. Moreover, the inconvenience and duplication of effort in conducting two trials in widely separate jurisdictions would override any possible convenience to some of the witnesses and any possible saving to the defendant from not having to bring some of the witnesses to Maryland.

Defendant's argument that venue may be waived does not help him in this case. His contention is fully answered by United States v. Choate, 276 F.2d at pages 727, 728. The many cases cited by defendant support waiver of venue only in cases where jurisdiction had been or might have been properly invoked. The decision in Choate is supported by the reasoning of the Supreme Court in Hoffman v. Blaski, 363 U.S. 335, 343, 80 S.Ct. 1084, 4 L.Ed.2d 1254.

II.

Defendant has also moved to transfer the case to the Southern District of Florida under 18 U.S.C.A. § 3238, which provides:

"Offenses not committed in any district

"The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district where the offender is found, or into which he is first brought."

Defendant was indeed found and arrested in the ...

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