United States v. Lodwick

• Citation: 410 F.2d 1202
• Decision Date: 26 June 1969
• Docket Number: No. 19442.,19442.
• Parties: UNITED STATES of America, Appellee, v. John L. LODWICK, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

410 F.2d 1202 (1969)

UNITED STATES of America, Appellee, v. John L. LODWICK, Jr., Appellant.

No. 19442.

United States Court of Appeals Eighth Circuit.

May 22, 1969.

Rehearing Denied June 26, 1969.

Walter A. Raymond, of Raymond, West & Strader, Kansas City, Mo., for appellant; Kenneth C. West, Raymond, West & Strader, and Harry A. Morris, of Morris, Sanders, King & Stamper, Kansas City, Mo., with him on the brief.

Vernon A. Poschel, Asst. U. S. Atty., Kansas City, Mo., for appellee; Calvin K. Hamilton, U. S. Atty., with him on the brief.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES and HEANEY, Circuit Judges.

VAN OOSTERHOUT, Chief Judge.

This is a timely appeal by defendant John L. Lodwick, Jr., from judgment and sentences imposed on June 21, 1968, after conviction by a jury, on each count of a two-count indictment and from the order entered August 26, 1968, denying defendant's post-trial motion for judgment in accordance with motion for acquittal or a new trial.

Count I of the indictment charged defendant with knowingly attempting to evade a large portion of his 1961 federal income tax by filing a false income tax return substantially understating his income, in violation of 26 U.S.C.A. § 7201. Count II charged defendant with willfully making and subscribing a 1961 income tax return which he did not believe to be true and correct as to all material matters, in violation of 26 U.S. C.A. § 7206(1). The court sentenced defendant to five years upon Count I and three years upon Count II under the provisions of 18 U.S.C.A. § 4208(b). The parties agree the sentences are to be served consecutively.

Defendant relies upon the following points for reversal:

1. The court erred in overruling his motions for acquittal which were reasserted in post-conviction motions as to each count for the reason that the Government failed to prove beyond a reasonable doubt:

(a) That defendant received any substantial items of income during 1961 which were not included in his 1961 tax return.

(b) That defendant in light of his physical and mental condition at the time he signed his 1961 return had cognition, volition and capacity to make him criminally responsible for his acts.

(c) That every element of the offenses alleged in each count was established.

2. The court erred in failing to sustain defendant's motion to require the Government to elect between Counts I and II of the indictment, thereby subjecting the defendant to double jeopardy and double punishment for one alleged offense, in violation of his Fifth Amendment rights.

Defendant in his first point challenges the sufficiency of the evidence to support the conviction on each count. Defendant in brief repeatedly asserts that his conviction is based on circumstantial evidence and hence the proven circumstances must be such as to exclude every reasonable hypothesis but that of guilt and that the proof in this case does not meet such standard. As stated by the defendant, we have on occasion applied such rule in our prior cases. However, the standard advocated by the defendant is rejected by the Supreme Court in Holland v. United States, 348 U.S. 121, 139, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150, as being "confusing and incorrect." The Court holds:

"Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more."

We have recognized in our post-Holland decisions that the exclusion of every reasonable hypothesis other than that of guilt test is no longer valid. Burke v. United States, 8 Cir., 388 F.2d 286, 287, n. 1; McClard v. United States, 8 Cir., 386 F.2d 495, 508-509; Gregory v. United States, 8 Cir., 365 F.2d 203, 205; Wood v. United States, 8 Cir., 361 F.2d 802, 806.

The burden of course is upon the Government to establish each of the essential elements of its case beyond a reasonable doubt. As pointed out in Holland, such right of the defendant is appropriately protected by proper instructions on reasonable doubt. No error is here urged in the court's instructions on reasonable doubt and our examination of the instructions satisfies us that the jury was properly charged on such issue.

In considering the sufficiency of the evidence to support a verdict in a criminal case, the evidence must be considered in the light most favorable to the prevailing party. Kayser v. United States, 8 Cir., 394 F.2d 601, 604; Burke v. United States, 8 Cir., 388 F.2d 286, 288; McClard v. United States, 8 Cir., 386 F.2d 495, 497; Canaday v. United States, 8 Cir., 354 F.2d 849, 851.

The Government as the prevailing party is entitled to the benefit of all reasonable inferences to be drawn from the evidence. Kayser v. United States, supra; Cross v. United States, 8 Cir., 392 F.2d 360; Cave v. United States, 8 Cir., 390 F.2d 58, 69.

In our present case, substantial evidence in support of all elements of the crimes charged is present. Such evidence if believed by the jury is adequate to support the guilty verdicts. Defendant has offered testimony which, if credited, would preclude his conviction. It is the function of the jury to pass upon the credibility of the witnesses and its determination when supported by substantial evidence should not be upset by a reviewing court. Gregory v. United States, supra.

We have carefully examined the record. We shall not attempt to set out the voluminous evidence in detail. It is the Government's position that the defendant in his 1961 income tax return willfully understated his income by some $6625, all of which except for a $350 item arose out of fines defendant assessed in his capacity as a judge of the Magistrate Court, and which he received in 1961 and converted to his own use. The proof that the fines were levied and paid to defendant in currency or by check which he endorsed is clear and it is likewise established that said funds never reached the County Treasury. Most of the fines in controversy were collected on Saturdays when no regular clerk was on duty. A number of the fine payments are covered by a receipt issued by the defendant. Defendant's testimony is that he has no distinct recollection of the particular transactions. He asserts that all fines he collected were turned over to the clerk and that he has never misappropriated the proceeds of any fine. The regular clerks testified that they have never cashed any checks given in payment of fines but have deposited all checks coming into their hands in the appropriate account with endorsement by a "for deposit only" stamp, and that they likewise have accounted for all cash reaching their hands. Defendant opened a special account at the Excelsior Trust Company on October 10, 1961. Some of the fine money in controversy was traced to this account. The account was closed by a check payable to cash on September 17, 1962. Defendant testified that he did not know what became of the money. The clerks testified they were unaware of this account and that they made no withdrawals therefrom. Defendant testified the account was set...