United States v. Gerdel
| Decision Date | 18 February 1952 |
| Docket Number | No. 27012(2).,27012(2). |
| Citation | 103 F. Supp. 635 |
| Parties | UNITED STATES v. GERDEL. |
| Court | U.S. District Court — Eastern District of Missouri |
George L. Robertson, U. S. Atty., Herbert H. Freer, Asst. U. S. Atty., of St. Louis, Mo., for plaintiff.
Robert C. Ely, of St. Louis, Mo., for defendant.
Defendant by indictment is charged in three counts with violation of Section 4047 (e) (2), Title 26 U.S.C.A., 53 Stat. 496. Each count of the indictment is the same except as to the date of the offense. The charge in Count One reads as follows: "Cletus H. Gerdel, hereinafter referred to as the defendant, being then and there an officer and agent appointed and acting under the authority of the revenue laws of the United States, to wit, an Accounting and Auditing Assistant in the office of the Collector of Internal Revenue for the First Collection District of Missouri, Unlawfully, Willfully and Feloniously did knowingly receive of and from one George J. Neumer a certain fee, compensation and reward, except as by law provided, for the performance of a duty, in that he, the said defendant, being then and there an Accounting and Auditing Assistant, as aforesaid, did receive of and from the said George J. Neumer a certain check in the amount of Twenty-five Dollars ($25.00), being then and there of the value of Twenty-five Dollars ($25.00) in lawful money of the United States, said check being dated January 15, 1949, drawn on the Webster Groves Trust Company, Webster Groves, Missouri, payable to "Mr. C. H. Gerdle", and signed George J. Neumer, which said fee, compensation and reward was for the preparation and filing of the income tax return of George J. Neumer and Frances Neumer for the calendar year 1948;"
Defendant entered a plea of not guilty and waived trial by jury in writing. The issue of guilt or innocence as to each count was submitted on agreed statement ("Stipulation") of facts. Facts pertinent to the disposition of the case are as follows:
"1. Defendant, Cletus H. Gerdel, was at all of the time herein mentioned an employee and agent appointed and acting under the authority of the revenue laws of the United States, being an Accounting and Auditing Assistant in the office of the Collector of Internal Revenue for the First Collection District of Missouri, he having first entered such service on or about December 9, 1947; that he was so employed as such agent continuously thereafter up to and including February 19, 1951.
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The Government claims that defendant's duty to prepare income tax returns for taxpayers is not confined to his working hours, but covers the performance of that work rather than the time or place of performance. Defendant's position is that he had no duty to prepare income tax returns except during the hours of his employment and therefore the statute does not apply to the admitted facts of this case.
The Act under which the indictment is brought, a penal section, found in miscellaneous provisions of the Internal Revenue Code, reads as follows:
"(e) Every officer or agent appointed and acting under the authority of any revenue law of the United States —
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"(2) Who knowingly demands other or greater sums than are authorized by law, or receives any fee, compensation, or reward, except as by law prescribed, for the performance of any duty;"
The statute provides that on conviction defendant —
To sustain a conviction under Section 4047, on the Government's theory in this case, the evidence must establish beyond a reasonable doubt: (1) defendant was acting (at time of alleged offense) under authority of the revenue laws of the United States, and (2) knowingly received a compensation for the performance of a duty not authorized.
Defendant is presumed to be innocent. It devolves upon the Government to prove beyond a reasonable doubt every element of the offense charged. The crime charged is a felony. The statute must be strictly construed.
There is no hint in the agreed statement of facts of any fraud involved in defendant's conduct. His services were sought to help prepare an income tax return at a time other than his regular hours of employment by the Government. He prepared the tax return during his off hours and made a charge for his services. The Government has provided no charge for this particular service, of any character.
We have grave doubts that at the time of the performance of the services, described in the "Stipulation", of preparation of the income tax return, defendant was "acting under the authority of any revenue law of the United States". Even the regulations of the Department prohibited such services, as distinguished from giving authority to perform them. We are further not convinced the defendant had any "duty" to prepare the tax return at the time and place referred to in the agreed statement of facts. That the defendant had a "duty" to assist taxpayers and prepare income tax returns under regulations or directive at the Collector's office, does not establish conclusively the duty followed him wherever he went after leaving his place of employment.
Assume the taxpayer appeared at defendant's home on Sunday or on an evening, after work hours, and demanded defendant prepare his income tax return, and defendant refused. Could defendant be said to have violated a duty in so refusing? We think the answer is plainly no. Then can it be logically held that defendant in accepting payment under the same circumstances, for preparing the return, was receiving compensation for performance of a duty? That the official regulations of the Office of Collector of Revenue prohibited defendant from engaging in this off-hours work would indicate conclusively that he had no duty in that respect. Before we can convict the defendant of a felony we must be convinced that the plain meaning of the law covers the conduct complained of by the Government. We are not permitted to read...
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