United States v. McGonigal

• Decision Date: 05 February 1963
• Docket Number: Cr. A. No. 1424.
• Citation: 214 F. Supp. 621
• Parties: UNITED STATES of America v. John F. McGONIGAL.
• Court: U.S. District Court — District of Delaware

214 F. Supp. 621

UNITED STATES of America v. John F. McGONIGAL.

Cr. A. No. 1424.

United States District Court D. Delaware.

February 5, 1963.

Stanley C. Lowicki, Asst. U. S. Atty., Wilmington, Del., for plaintiff.

Robert C. O'Hora and John P. Daley, Wilmington, Del., for defendant.

LAYTON, District Judge.

Defendant was tried on an information charging him with engaging in receiving (writing) wagers for or on behalf of an unknown person engaged in the business of accepting (banking) wagers and wilfully failing to pay the special wagering or occupational tax of $50 (failing to purchase the $50 gambling tax stamp), contrary to Title 26 U.S.C. §§ 4411 and 7203.¹ Defendant did not take the stand in his own defense. The jury returned a verdict of guilty as to Count 1. Defendant thereupon filed motions for judgment of acquittal and for new trial, to which this opinion is directed.

In order for the jury to return a verdict of guilty, it must find not only that the defendant was engaged in the business of a writer but that his failure to purchase a $50 gambling tax stamp was wilful. In order for a criminal act to be wilful, it must not only be committed deliberately and knowingly, but with a bad motive or evil intent. United States v. Palermo, 259 F.2d 872 (3rd Cir. 1958). Simply stated, in order for the Government to convict here, it must prove beyond a reasonable doubt that this defendant deliberately committed the specified violation with the intention of getting away with it.

The test applicable to a motion for judgment of acquittal is somewhat different from that applicable to a motion for new trial. In the former, the Court scrutinizes the evidence, including reasonable inferences to be drawn therefrom, from the point of view most favorable to the government and assumes the truth thereof. If there is substantial evidence justifying an inference of guilt, irrespective of the evidence adduced by the defendant, the Court must deny the motion. In the latter, where the ground is that the verdict is contrary to the weight of the evidence, the Court weighs the evidence of both sides, considers the credibility of the witnesses, and if the verdict is against the weight of the evidence a new trial must be granted. United States v. Robinson, 71 F.Supp. 9 (D.C. D.C.1947).

With these principles in mind, let us examine the record insofar as it concerns defendant's motion for judgment of acquittal.

The testimony produced by the Government was sufficient to demonstrate satisfactorily that defendant was a "bookie" or, in other words, a writer, but as to the element of wilfulness the evidence was minimal. There was no showing that the defendant knew of the necessity of purchasing a $50 gambling tax stamp, or that he had been in the business for so long and associated so frequently with known gamblers that he should have known of the requirement. There was no evidence of his operation of the gambling business behind a false store front as in so many other cases. Here, defendant seems to have been operating a bona fide fruit and vegetable business.

Indeed, the sole evidence of notice to defendant of the gambling tax stamp requirement, without which no conviction can stand, is the fact that defendant was proved to have been a lifelong resident of Wilmington, coupled with the fact that 29 articles had appeared in the local newspaper since 1956 advising of the necessity of purchasing a $50 gambling tax stamp before engaging in the business of a "bookie" or writer.² The Government was unable to prove whether the articles were front page or that defendant was a regular reader of the local newspaper and, of course, was unable to prove that he had read one or more of the articles in question.

As elsewhere pointed out, in order to convict here, the Government must produce satisfactory proof that defendant wilfully failed to purchase the $50 gambling tax stamp. Thus, the Government had to prove that the defendant knew that as a condition precedent to engaging in the writing of numbers the stamp had to be purchased. Both the Fifth and Third Circuit Courts have had occasion to speak on the subject of the...