United States v. Merriwether, Crim. No. 15387.
| Decision Date | 08 June 1971 |
| Docket Number | Crim. No. 15387. |
| Citation | 329 F. Supp. 1156 |
| Parties | UNITED STATES of America, Plaintiff, v. Ernest N. MERRIWETHER, Defendant. |
| Court | U.S. District Court — Southern District of Alabama |
Charles S. White-Spunner, Jr., U. S. Atty., Mobile, Ala., William R. Favre, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff.
Vincent F. Kilborn, Mobile, Ala., for defendant.
In this case the defendant, Ernest N. Merriwether, was charged in a seventeen count indictment which alleged violations of Title 26, U.S.C. Section 7215, failure to pay over income taxes and F. I.C.A. taxes withheld from employees as required by law. On arraignment, the defendant entered a plea of not guilty. Defendant, his attorney, and the United States Attorney agreed to a withdrawal of the jury demand and transferred the case to the non-jury docket. The case came on to be heard January 15, 1971. At the conclusion of the evidence, the attorney for the United States was granted leave to secure certain documents which were subsequently submitted to the court. At the request of defendant's attorney the arguments were continued for one week. Upon careful consideration of the evidence and arguments of counsel, the court finds as follows:
FINDINGS OF FACT
The defendant, Ernest N. Merriwether, was president and principal active officer of the Dixie Engineering Corporation from the third quarter of 1966 up to and including May 1, 1968, as well as subsequent thereto. The Dixie Engineering Corporation was required to collect, account for, and pay over to the United States the F.I.C.A. taxes and Federal income taxes withheld from employees' wages. Throughout the period including the third quarter of 1966 through the fourth quarter of 1967, Ernest N. Merriwether, as president, failed to collect, truthfully account for, pay over and make deposits and payments of the F.I.C.A. taxes and Federal income taxes withheld from employees' wages.
On January 5, 1968, Mr. Melton Fox of the Internal Revenue Service, United States Treasury Department, personally handed to the defendant a notice to make special deposits of taxes as provided by Title 26, U.S.C. Section 7512. The notice required defendant to collect the F.I.C.A. taxes and income taxes withheld from employees which became collectible subsequent to delivery of the notice, and, not later than the end of the second banking day after such collection, to deposit said taxes in a separate bank account to be established by the defendant in trust for the United States, to be kept therein until paid over to the United States.
After receiving notice as aforesaid, the defendant collected taxes as required in the amounts hereinafter set out, but failed to deposit the taxes in a separate bank account in trust for the United States, within two banking days after the taxes were collected, with the dates the deposits were required to be made tabulated opposite the amount which should have been deposited as set out below.
Date Deposit Amount of
Required Deposit Required
1/9/68 $ 60.62
1/23/68 71.34
1/23/68 66.34
1/30/68 69.62
2/6/68 69.62
2/13/68 65.94
2/20/68 68.37
2/27/68 71.28
3/5/68 116.30
3/12/68 102.42
3/19/68 104.78
3/26/68 86.54
It was agreed in open court that the defendant, since the filing of this indictment, has paid the withheld taxes as set out in the indictment in Counts 13 through 17 inclusive. The United States struck these counts, and no testimony was taken as to them.
All of the evidence in this case, except Defendant's Exhibit #1 which was introduced into evidence upon cross-examination of a government witness, was presented by the United States. The defendant testified the books of the company reflecting this period have been destroyed by fire. All of the evidence with reference to the dates and figures concerning unpaid taxes was compiled from returns made by Dixie to the IRS, or by examination of Dixie's records by IRS agents. Dixie's tax returns reflected F.I.C.A. and income tax withholdings in the amount of $19,114.92 during the period beginning with the third quarter of 1966 and ending with the first quarter of 1968, inclusive.
The defendant, as president, failed to collect, account for, pay over, and make deposits of F.I.C.A. and Federal income tax withholdings which were due and owing. Consequently, on January 5, 1968, when defendant received notice from the IRS, Dixie and the defendant as its president were delinquent. After receiving notice, the defendant, as president failed to establish a separate bank account in his name in trust for the United States, and failed to pay over the F.I.C.A. and Federal income tax withholdings as indicated above. There was uncontradicted evidence from all the banks in the City of Mobile, and its metropolitan area, that there was no account established for the defendant or Dixie in trust for the United States. An agent of the IRS, who examined Dixie's books in May of 1968, prior to their destruction, testified that the books revealed no deposits or withdrawals to or from an account opened in trust for the United States in any bank or savings and loan association in any city.
This cause is treated herein as a case of first impression, the court having found no cases in point, and counsel having cited none. The question presented is one of statutory construction involving the interrelationship of five separate statutes, all within Title 26 of the United States Code. These sections form the basis of the indictment:
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Williams v. State
...case against the defendant. It is not required that the principal be convicted or even that his identity be established. United States v. Merriwether, 329 F.Supp. 1156, affirmed, 469 F.2d 1406 (5th Cir. 1971). In a case of crime admitting degrees of guilt, where the principal offender has b......
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State v. Taplin
...crime. He may be unknown. (Footnotes omitted.) See also United States v. Shuford, 454 F.2d 772 (4th Cir. 1971); United States v. Merriwether, 329 F.Supp. 1156 (S.D.Ala.1971); 53 Am.Jur., Trial § Thirdly, I do not believe that the instruction was prejudicial. If the jury believed that the de......
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Pope v. State
...of the substantive crime and the charge may be supported by proof that he only aided and abetted in its commission. United States v. Merriwether, 329 F.Supp. 1156, affirmed, 469 F.2d 1406 (5th Cir. We have carefully searched the record for error and finding none affirm the judgment of convi......
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United States v. Stevenson, Crim. A. No. 82-14.
...required to make such payments under section 7512 is the corporation, not the individual officers, relying on United States v. Merriwether, 329 F.Supp. 1156 (S.D.Ala.1971). They therefore argue that the indictment omits an essential element of the offense by failing to allege that the corpo......
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In Whom We Trust
...v. Gordon, 495 F.2d 308 (7th Cir. Ill. 1974); United States v. Hemphill, 544 F.2d 341 (8th Cir. Mo. 1976); United States v. Meriwether, 329 F. Supp. 1156 (D. Ala. 1971), affd, 469 F.2d 1406 (5th Cir. Ala. 1972); United States v. Paulton, 540 F.2d 886 (8th Cir. 1976); United States v. Plotki......