United States v. Maius

• Decision Date: 15 June 1967
• Docket Number: No. 16981.,16981.
• Citation: 378 F.2d 716
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Abraham MAIUS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

378 F.2d 716 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. Abraham MAIUS, Defendant-Appellant.

No. 16981.

United States Court of Appeals Sixth Circuit.

June 15, 1967.

William J. Dammarell, Cincinnati, Ohio, for appellant.

Donald A. Hansen, Tax Division, Dept. of Justice, Washington, D. C., Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Richard B. Buhrman, Attys., Dept. of Justice, Washington, D. C., on brief; Ernest W. Rivers, U. S. Atty., Louisville, Ky., of counsel, for appellee.

Before CELEBREZZE and McCREE, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

The Glen Corporation of Newport, Kentucky, operated a gambling place, as well as the Glen Rendezvous and Tropicana, consisting of a hotel, restaurant, bar and night club.

When, in August 1962 and October 1963, Internal Revenue agents investigated the income tax returns of the Glen Corporation, appellant Maius, who, among other positions he held in the organization, was one of the managers, explained to the agents the accounting procedures of the corporation. He stated that he prepared a daily sheet, which was used by one of the defendants in this case, Tito Carinci, in making entries in a book, which he identified as the record of "casino net wins and losses" for the years 1959 and 1960.

"Gambling loss collections," as the phrase is used in this case, are collections made by banks for the benefit of the Glen Corporation, on checks given by gamblers in payment of their gambling losses. The Government showed that these gambling loss collections paid by the bank to the Glen Corporation amounted to $207,342.67 for 1959, and $144,435.21 for 1960. However, the amount of these same collections was set forth in the Glen Corporation's income tax returns as $73,900 for 1959, and $46,968 for 1960.

As a result, the corporate income was understated on the income tax returns by $133,442.67 for 1959, and by $97,467.21 for 1960.

The additional tax due on the above unreported income was $69,309.14 for 1959, and $46,585.72 for 1960.

Appellant, before being employed by the Glen Corporation, had considerable experience as a restaurant manager. He was hired by the corporation to manage the bar and the restaurant. He also helped to manage the company and to do a large amount of its banking business. He was issued 415 shares of Glen Corporation stock on March 4, 1959, and this certificate was later canceled, and a new certificate was issued to him for 115 shares.

As a result of the investigation of the corporation by the Internal Revenue Service, eight persons were indicted, including the appellant. On July 26, 1965, appellant and Tito Carinci were tried for willfully attempting to evade income taxes of the Glen Corporation for the years 1959 and 1960, in violation of Section 7201 of the Internal Revenue Code of 1954, and for willfully and knowingly aiding and assisting in preparing fraudulent income tax returns of the Glen Corporation for the years 1959 and 1960 in violation of Section 7206(2) of the Internal Revenue Code of 1954. The jury found appellant guilty on four counts of the indictment and he was thereafter sentenced to concurrent prison terms of three years and fined a total of $15,000.

The main issues as stated by appellant are: (1) Did the district court use prejudicial coercion on the jury in forcing it to find on three extra counts after it had indicated a finding on one count? (2) Was there sufficient evidence to sustain the verdict? (3) Were statements which appellant made to Internal Revenue agents properly admitted in evidence when the agents, who had advised appellant of his rights under the Fifth Amendment, did not inform him that he could have an attorney present during the interviews?

The first contention of appellant that the district court used prejudicial coercion in forcing the jury to find on three counts after it had indicated a finding on another count, is based upon the court's having given a so-called Allen charge^* in the following language:

"Let me say this to you, members of the jury. The chances are that without a finding on these other counts that this defendant would have to be retried on the counts upon which this jury has not yet agreed. Of course, you realize that — the time required and the costs, not only to the Government but to the parties, of a trial of this nature. You realize further that these same facts substantially would have to be given to another jury, another four days in a trial, perhaps more, would result, and certainly the next jury that would consider this case is no more able to determine it than you ladies and gentlemen are, having — knowing that they will hear substantially the same evidence. And certainly they would be no more intelligent than you ladies and gentlemen are.

"Now, it is true that, and the Court does not desire that any juror should surrender his own conscientious convictions, but, on the other hand each juror in order to perform his duty must perform it conscientiously and honestly and, of course, according to the law and the

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