United States v. Irving, 12072.

• Decision Date: 27 June 1957
• Docket Number: No. 12072.,12072.
• Citation: United States v. Irving, 245 F.2d 354 (7th Cir. 1957)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James D. IRVING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

245 F.2d 354 (1957)

UNITED STATES of America, Plaintiff-Appellee, v.James D. IRVING, Defendant-Appellant.

No. 12072.

United States Court of Appeals Seventh Circuit.

June 27, 1957.

Harry G. Fins, Alvin A. Turner, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., Chicago, Ill., for appellee.

FINNEGAN, Circuit Judge.

Earlier this year we affirmed the judgment of conviction of Irving United States v. Irving, 7 Cir., 1957, 241 F.2d 306, rehearing deniedMarch 14, 1957, certiorari denied 77 S.Ct. 1283 who now applies for an order admitting him to bail pending his appeal from an order entered below denying his motion for a new trial on the ground of newly discovered evidence.The cause is here on the docketing of Irving's notice of appeal June 24, 1957 after the district judge, who rejected the motion for new trial, denied bail.He was the same judge who presided at Irving's trial.

During the course of our opinion (241 F.2d 306, 307)we said, inter alia:"A revenue agent was told by Irving, or his representative, that the `bulge' in his expenses of about $150,000 * * * arose out of money given him by a Robert Mays to invest in a legitimate business.No receipts for that sum were produced or found and no claim has been made against Irving by Mays' estate * * *."Irving, in his current motion states "During the course of preparation for his trial, the affiant diligently attempted to locate two receipts whereby he acknowledged the receipt of a total of $150,000 in September 1951 from Robert Mays * * *."Judgment on the jury's verdict was entered May 28, 1956.In his affidavit, submitted in support of his current application for bail, Irving states: "The affiant Irving did not know of the whereabouts of these receipts until Mr. Edward L. White telephoned him on September 12, 1956 to advise him that these receipts were found among other papers which belonged to Robert Mays and were placed in Mr. White's safe."The balance of this affidavit is devoted to an exposition of the circumstances concerning Mays' proposed investment in business with Irving and the death of Mays in January, 1952.Several other affidavits are also submitted along with this motion for admission to bail.One is by an attorney who in substance relates discussion of the proposed business venture with Mays and Irving, but this affidavit contains nothing corroborating the receipts, nor showing transfer of funds from Mays to Irving.The supervisor of the Division of Small Loans and Bail Bonds, Department of Insurance, State of Illinois has also provided an affidavit here.His is a highly generalized statement reflecting conferences with Mays and Irving, there being other persons present, regarding issuance of a small loans license.Again the affidavit is unsupporting on the matter of receipts or movement of moneys from Mays to Irving.These last two affidavits merely indicate that Irving and Mays contemplated the possibilities of a joint business venture.

Edward L. White, finder of the receipts, now urgently pressed on us by Irving, has also made an affidavit, tracing his own business activities and shifts of locations up to the time he called a representative of the Mosler Safe Company to drill open the safe, September 12, 1956, in which these receipts were found.Among White's statements embodied in his affidavit are these:

"9.Sometime during the latter part of September 1951, Robert Mays made a usual visit at 5047-49 Indiana Avenue.After he left, the affiant noticed that Mr. Mays had left some papers on the desk.The affiant did not examine these papers but telephoned Mr. Mays, who asked the affiant to place them in the affiant\'s Mosler safe.The affiant complied with this request.Shortly thereafter, Robert Mays became ill, was hospitalized, and died in January 1952."

"12.On September 12, 1956, while the affiant was searching the contents of the safe for the title to the truck, he came upon the papers which Robert Mays had left in the office in the latter part of September 1951.The affiant examined these papers and among them found two receipts, both signed by James D. Irving.The first receipt, dated September 3, 1951, acknowledges the receipt of $50,000.00 `For Loan Co.From Robert Mays.\'The second receipt, dated September 12, 1951, acknowledges the receipt by James D. Irving of $100,000.00 `From Robert Mays For Loan Co.\'"

"13.This is the first time that the affiant knew of the nature of the papers left by Robert Mays in September 1951.After the death of Robert Mays in January 1952, the affiant was never contacted either by the widow or Arthur J. Wilson, the administrator of the estate of Robert Mays, relative to any personal effects of the deceased Robert Mays."

"14.The affiant notified James D. Irving the same day."

The indictment on which Irving was convicted is grounded on a violation of Internal Revenue Code of 1939, § 145(b),26 U.S.C. § 145(b) for the calendar year 1952.This was a net worth case and the government introduced as an exhibit the statement of Irving's assets and...