United States v. Piper

• Citation: 227 F. Supp. 735
• Decision Date: 13 March 1964
• Docket Number: No. CR-3-63-113.,CR-3-63-113.
• Parties: UNITED STATES of America v. E. M. PIPER.
• Court: U.S. District Court — Northern District of Texas

227 F. Supp. 735

UNITED STATES of America v. E. M. PIPER.

No. CR-3-63-113.

United States District Court N. D. Texas, Dallas Division.

March 13, 1964.

Barefoot Sanders and Robert Ward, Dallas, Tex., for the United States.

Sam Donosky and Ben Henderson, Dallas, Tex., for defendant Piper.

ESTES, Chief Judge.

The defendant was charged by indictment and found guilty by a jury of failing to make a return and failing to pay manufacturer's excise taxes on sales of imported automobiles during the final quarter of 1959, which return and tax were due January 31, 1960. 26 U.S. C.A. § 4061; 26 U.S.C.A. § 6091(b) (1); 26 U.S.C.A. § 6151(a); 26 U.S.C.A. § 7203. The uncontroverted evidence during the two day trial showed, and the defendant admitted, that the defendant neither made the required return nor paid the tax. The sole question was, therefore, the defendant's "willfulness". The uncontroverted evidence showed and the defendant admitted that he knew and had been advised by government agents on four different occasions prior to the critical date that he owed the tax and was required to file a return.

During the trial the court permitted the defendant, over the government's objection, to introduce a blank form Customs Duty Bond which the defendant testified was like the bonds he had obtained on all cars he imported, as the court felt such evidence could possibly bear on willfulness. Also, the court excluded evidence proffered by the government of the defendant's total manufacturer's excise tax liability although the defendant repeatedly "opened the door" by introducing evidence of the total customs duty paid and the total income taxes paid, both in reference to the defense contention that a credit was due against the taxes charged in the indictment. In addition, the court precluded the government from questioning defendant's character witnesses concerning whether or not they had heard that the defendant had (1) attempted to bribe a government official, (2) evaded city taxes, (3) etc.

After due deliberation, the jury found the defendant guilty on both counts of the indictment which carried a total maximum sentence of a $20,000 fine and/or two years in prison.

The defendant was sentenced to serve 90 days and pay a $5,000 fine on Count I, and was given a probated one year sentence on Count II on the conditions that he pay the fine imposed and make restitution of the taxes covered by the indictment, plus penalty and interest.¹

The defendant filed notice of appeal on March 9, 1964 and we are today concerned with his application for bond pending appeal. The application for bond recites:

"I

"That the case involves substantial questions which should be determined by the appellate court.

"II

"That the substantial questions above alluded to consist in the failure of the court to allow requested special charges and instructions as well as the overruling of defendant's motions."

During the course of this prosecution the defendant filed several motions, which are outlined below:

Motion for Continuance — This motion was granted.

Motion for Bill of Particulars —

The defendant claimed that the indictment was (1) vague, ambiguous, and did not detail an offense against the United States; (2) failed to give name and address of each and every person present at the time of the alleged offense; (3) failed to enlighten defendant on how and by what means defendant could know his duty and obligation to file the tax return; (4) failed to set forth whether representations were oral or written, together with when, to whom, and where made, and their context. The government opposed the motion by answer, which answer provided the information requested in items (3) and (4). After hearing and argument of counsel the motion was denied. Such a motion is within the sound discretion of the trial judge. The indictment was substantially in the language of the statute and sufficiently informed defendant of the charges against him to enable preparation of his defense and to protect him against subsequent prosecution for the same offenses. Wong Tai v. United States (1927), 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545; Huff v. United States (5 Cir. 1962) 301 F.2d 760, cert. den. 371 U.S. 922, 83 S.Ct. 289, 9 L.Ed.2d 230 (1962); Demetree v. United States (5 Cir. 1955) 207 F.2d 892 rev. other grounds; United States v. Miller (E.D. Tex.1962) 210 F.Supp. 716; Johnson v. United States (5 Cir. 1953) 207 F.2d 314, cert. den. 347 U.S. 938, 74 S.Ct. 632, 98 L.Ed. 1087 (1954). Names and addresses of witnesses prior to trial is not a proper request. Capriola v. United States (7 Cir. 1932), 61 F.2d 5. Furthermore, this motion was not timely filed, in that same was not filed within ten days after arraignment and good cause was not shown. Rule 7(f), Fed.Rules Crim. Proc. 18 U.S.C.A.

Motion to Dismiss Indictment —

Defendant asserted that the indictment was not found within three years next after the alleged offense was committed and that the prosecution should be dismissed as barred by the statute of limitation. The date of the alleged violations was January 31, 1960. Section 6531(4), Title 26 U.S.C.A. controls and provides:

"* * * The period of limitation shall be 6 years —

* * * * * *

"for the offense of willfully failing to pay any tax, or make any return * * *."

The motion was, therefore, overruled.

Motion for Judgment of Acquittal —

The defendant asserted in this motion that (1) the evidence was insufficient; (2) the government had failed to establish a prima facie case; (3) the government had failed to establish scienter or that the defendant committed the violation "knowingly and willfully." The prefatory remarks set forth the court's reasons for overruling this motion. "`The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.' Glasser v. U. S., 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; * * *." Walker v. United States (5 Cir. 1961), 285 F.2d 52, 57. Moreover, when the defendant introduced evidence in his own behalf, he abandoned his oral motion for judgment of acquittal made at the close of the government's evidence. Harris v. United States (C.A. 5, 1960), 285 F.2d 85; T'Kach v. United States (C.A. 5, 1957), 242 F.2d 937; Jackson v. United States (C.A. 5, 1958), 250 F.2d 897.

At the close of all evidence the court advised counsel of its proposed charge, to which defendant's counsel raised objections and made requests for instructions as follows, all of which were denied:

1. "The definition `beyond a reasonable doubt,' I think, should contain the phraseology `by legal and competent evidence.'"

The instruction given by the court is universally accepted. Holland v. United States (1954), 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150; Walker v. United States (5 Cir. 1961), 285 F.2d 52, 60-61. The jury was instructed to consider only the evidence admitted under the court's rulings.

2. "Further, the definition pertaining to circumstantial evidence, which goes even further, to the exclusion of every other reasonable hypothesis, save and except the guilt of this defendant."

It is not now open to question that this requested instruction is improper. Holland v. United States (1954), 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150; Friedberg v. United States (1954), 348 U.S. 142, 75 S.Ct. 138, 99 L.Ed. 188; Smith v. United States (1954), 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192; United States v. Calderon (1954), 348 U.S. 160, 75 S. Ct. 186, 99 L.Ed. 202; Bryant v. United States (5 Cir., 1958), 252 F.2d 746; Wood v. United States (5 Cir., 1961), 287 F.2d 810.

3. "One requested charge is:

"`You are further instructed that the word "willful" as used in this statute, means with a bad purpose or without ground for believing that one's act is lawful.'"

The requested charge was almost verbatim the accepted charge given by the court. Morissette v. United States (1952), 342 U.S. 246, 72 S.Ct. 240, 96 L. Ed. 288.

4. "The other one is a definition of the word `duty'."

This requested charge was immaterial as the case did not involve any customs duty and for the further reason that the requested definition was taken from Webster's Dictionary, needed no defining by the court, and could only have served to confuse and mislead the jury if given.

5. "Defendant's Requested Charge * * *

"You are further instructed that no mistake of law excuses one committing an offense; but, if a person laboring under a mistake as to the particular fact, shall do an act which would otherwise be criminal, he is guilty of no offense.

"The mistake as to fact which will excuse, under the preceding paragraph, must be such that the person so acting under a mistake would have been excusable had his conjecture as to the fact been correct; and it must also be such a mistake, it does not arise from a want of proper care on the part of the defendant.

"Therefore, if you believe that at the time on the occasions in question, that the defendant was laboring under a mistake of fact, that his bonds previously posted would take care of any and all taxes and obligations due and such mistake of fact did not arise from want or proper care, or if you have a reasonable doubt that such is the fact, you will acquit and say by your verdict not guilty."

The requested charge as to mistake of law and fact was denied by the court because no evidence of substance raised such an issue. Yarborough v. United States (C.A.Md.1956), 230 F.2d 56, cert. den. 351 U.S. 969, 76 S.Ct. 1034, 100 L. Ed. 1487. The uncontroverted evidence showed and defendant admitted that he had been informed that he had to pay the manufacturer's excise tax and make a return before the critical date. Moreover, the court's charge, including the instruction on willfulness, covered the pertinent question of intent.

The defendant's application for bond is predicated upon Rule 46 of the Fed. Rules of Crim.Proc., Title 18 U.S.C.A. (as amended Apr. 9, 1956, eff. July 8, 1956), which...