United States v. Levy, Crim. No. 12639.
| Decision Date | 12 March 1971 |
| Docket Number | Crim. No. 12639. |
| Citation | 326 F. Supp. 1285 |
| Court | U.S. District Court — District of Connecticut |
| Parties | UNITED STATES of America, Plaintiff, v. Leonard L. LEVY, Defendant. |
Stewart H. Jones, U. S. Atty., D. Conn., for plaintiff; Cono R. Namorato, Harlow M. Huckabee, John G. Bartels, Sp. Attys., Dept. of Justice, Washington, D. C., of counsel.
Thompson, Weir & Barclay, New Haven, Conn., for defendant; Curtiss K. Thompson, New Haven, Conn., of counsel.
The defendant above named was indicted on November 18, 1969 and charged, pursuant to Title 26, United States Code, § 7201, with two counts of wilful attempted tax evasion (1963 and 1964 returns).
The defendant waived a jury trial and the case was tried before the court at Bridgeport, Connecticut on January 18-22, 1971. The transcript was made fully available soon after the completion of the trial. Both parties submitted memoranda, the court heard extensive oral argument on February 17, 1971. I have considered the evidence submitted at the trial, the transcript of the testimony, the exhibits submitted by both defendant and the United States.
The elements of the crime of tax evasion as defined in Title 26 U.S.C. § 7201 necessary to convict a defendant are as follows:
(1) An additional tax must have been due and owing. Lawn v. United States, 355 U.S. 339, 361, 78 S.Ct. 311, 2 L. Ed.2d 321 (1958); Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1964).
(2) The defendant must have attempted to evade or defeat the tax. Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1942); Sansone v. United States, supra.
(3) The acts of defendant in (1) and (2) must have been wilful. Holland v. United States, 348 U.S. 121, 139, 75 S.Ct. 127, 99 L.Ed. 150 (1954); Spies v. United States, supra; Sansone v. United States, supra.
I have no doubt that the United States has proved the first two elements of the charge, i. e., (1) an additional tax was due and owing, and (2) the acts of defendant constitute attempts to evade or defeat the tax for each of the two years involved.
The substantial understatements of taxable income and income tax on the defendant's 1963 and 1964 income tax; returns (Ex. 1 and 2 respectively) appear to have been as follows:
Taxable Income
Year Reported Corrected Additional
1963 $41,388.61 $75,432.41 $34,043.80
1964 29,335.00 53,337.45 23,982.45
__________ __________ __________
Totals $58,026.25
==========
Income Tax Liability
Year Reported Corrected Additional
1963 $20,518.95 $46,179.81 $25,660.86
1964 11,398.05 26,061.97 14,663.92
__________ _________ __________
Totals $40,324.78
==========
(R. 24-25)
As above indicated, the taxes due were as follows
1963 - Amount due $46,179.81
Amount paid (upon return) 20,518.95
__________
Additional amount due $25,660.86
==========
1964 - Amount due $26,061.97
Amount Paid (upon return) 11,398.05
__________
Additional amount due $14,663.92
==========
(See Stipulation R. 24)
Counsel for defendant stated at trial that (R. 15) Defense counsel at oral argument confirmed this when he said: "I am bound by the stipulation, there is no question about that."
Thus the stipulation and the evidence submitted by the government clearly demonstrated the falsity of defendant's returns.
There was evidence that certain receipts from clients paid to defendant in 1963 were not included in his return for that year:
1. $1,000 fee from one Arnold Andrus, paid in cash on November 30, 1963. (Ex. 3; R. 89-91, 228, 229) 2. Checks for $250.00 and $50.00 from one Vera Rogers. (Exs. 10, 11; R. 125-129, 230)
3. Check for $125.00 from New Haven Electric Contractors Association. (Ex. 12; R. 130-132, 230)
4. Checks from one John German, Jr., in the amounts of $175.00 and $150.00 respectively. (Exs. 18, 19; R. 133-143, 160, 161, 231)
5. Check from one Reginald Brulotte in the sum of $225.00. (Ex. 22; R. 144-145, 152-156, 231-232)
Defendant in his post-trial memorandum argued that the 1963 payments of sums to him by certain clients, to wit, Andrus, Rogers, New Haven Electric Contractors Association, German and Brulotte in 1963 were not proved to be for fees and might be for other purposes. (pp. 11, 12) There was certain testimony hereinbefore stated, indicating that the payments were for services. It is possible that some of the moneys may have been paid for other purposes, but not likely. In any event, none of these facts is indispensable to the determinations I am making herein.
Similar claims are made by defendant as to 1964 payments by Walter Hoffman, Krich Corp. (See Defendant's memorandum, p. 16) As to these payments my comment is the same as for the 1963 payments.
There was evidence that the following receipts by defendant from clients paid in 1964 were not included in his return for that year:
1. Checks in the amounts of $300.00 and $200.00 paid by one John L. McDonald. (Ex. 4; R. 110, 111, 112, 229)
2. Check in the amount of $1,125.00, dated October 6, 1964, paid by Krisch Corporation. (Ex. 23; R. 202-204, 232)
The proof submitted by the government, among other facts, shows that:
1. The amounts of the understatements of income were substantial (see above);
2. The defendant personally maintained whatever financial records were made of his law office receipts, including the so-called "schedules of deposits," bank statements, cancelled checks, etc. (R. 210-212)
3. Defendant himself supplied the preparers of his 1963 and 1964 tax returns with all relevant information appearing in those returns. (R. 36-38, 48-49, 213-214)
4. Schedules of defendant's deposits for the years 1963 (Ex. 44) and 1964 (Ex. 45) were the records prepared by defendant when he submitted his gross receipts to the persons preparing the returns. (R. 213, 214)
In this regard, Exhibits 46 and 47 are adding machine tapes which total the amounts which were designated as income on the 1963 and 1964 schedules respectively. A comparison of the reported gross receipts to the yearly total of the items designated as income on the schedules of deposits is as follows:
1963 1964
Items Designated as Income Per
Schedules of Deposits (Exs
44, 45, 46) $59,745.97 $38,760.44
Reported Gross Receipts Per
Schedule C of Defendant's
Tax Returns (Exs. 1, 2) 45,037.77 36,374.00
__________ __________
Difference $14,708.20 $ 2,386.44
========== ==========
5. Defendant falsely told the special agent that all business receipts were deposits. (R. 212)
In summary, the government at the trial produced adequate evidence in its direct case to prove the first two elements of the charge and hence to raise a prima facie case of Levy's wilfulness based on the presumption of sanity. United States v. Cain, 298 F.2d 934, 936 (7th Cir. 1962).
Both sides conceded that the basic test now applicable in this circuit to the determination of criminal responsibility, in effect, wilfulness, is that set forth in United States v. Freeman, 357 F.2d 606, 622 (2nd Cir. 1966), which reads as follows:
"Section 4.01 provides that `A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.' footnote omitted For reasons which will be more fully set forth, we believe this test to be the soundest yet formulated and we accordingly adopt it as the standard of criminal responsibility in the Courts of this Circuit."
Dr. Berman, one of the expert psychiatrists who testified for defendant, stated that defendant understood that his conduct was wrong. (R. 433) No one testified otherwise.
Hence, the only issue is whether the government has proved beyond a reasonable doubt that Levy had a substantial capacity to conform his conduct to the Internal Revenue laws relative to the two income tax returns.
Testimony submitted by Levy included the opinions of Dr. Ernest Prelinger, a psychologist, who had administered certain tests to defendant (R. 298-347); Dr. Jules V. Coleman, a psychiatrist, who had treated defendant from the beginning of 1960 to June 1961; Dr. Sidney Berman, a psychiatrist who had treated Levy from June 6, 1961 to the present; and Dr. Jay Katz, another psychiatrist, who had examined Levy on May 29, June 3 and September 18, 1970.
Practically all of the expert testimony of psychiatrists Dr. Berman and Dr. Katz, called by defendant, was based upon statements made by defendant to the psychiatrists either in the course of treatment, as in the instance of Dr. Berman, or upon an examination, as by Dr. Katz.
Dr. Berman, who, as stated above, treated defendant from June 1961 to the time of trial, related a detailed history based upon defendant's own statements. This history included the suicide of defendant's father when defendant was 11 years of age, the defendant's feeling of being an outcast and inferior, his anxiety and his...
To continue reading
Request your trial
-
United States v. Moore, 71-1252.
...his possession." 63 Perkins, Criminal Law 878 (2d ed. 1969) (hereinafter Perkins). 64 Id. at 878-79. Compare United States v. Levy, 326 F.Supp. 1285 (D.Conn. 1971). 65 ALI Model Penal Code § 2.09, Comment (Tent.Draft No. 10, 1960), at 66 The defense is sometimes called "compulsion," see Per......
-
State v. Ontra
...Conn. 385, 404, 270 A.2d 837, 848 (1970), cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625 (1971); see United States v. Levy, 326 F.Supp. 1285, 1297 (D.Conn.1971), aff'd, 449 F.2d 769 (2d Cir. 1971). Although the state's affirmative evidence was not overwhelming, it was sufficient ......
-
United States v. Pawlak
...States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943); United States v. Coppola, 425 F.2d 660, 661 (2d Cir. 1969); United States v. Levy, 326 F.Supp. 1285 (D.Conn.), aff'd, 449 F.2d 769 (2d Cir. 1971). The defendant has conceded that the Government established the first element, that a su......
-
U.S. v. Hendrix
...not arise until some evidence is introduced that will "impair" the legal presumption in favor of sanity. See also United States v. Levy, 326 F.Supp. 1285, 1297 (D.Conn.), aff'd, 449 F.2d 769 (2d Cir. 1971). Whether "impair" is equivalent to "destroy" was not made clear. We have, in matters ......