United States v. Rischard

• Decision Date: 03 January 1973
• Docket Number: No. 72-1374.,72-1374.
• Citation: 471 F.2d 105
• Parties: UNITED STATES of America, Appellee, v. G. Stanley RISCHARD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

471 F.2d 105 (1973)

UNITED STATES of America, Appellee, v. G. Stanley RISCHARD, Appellant.

No. 72-1374.

United States Court of Appeals, Eighth Circuit.

Submitted November 17, 1972.

Decided January 3, 1973.

Robert J. Sheran, Minneapolis, Minn., for appellant.

J. Earl Cudd, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before MATTHES, Chief Judge, ROSS, Circuit Judge, and VAN PELT, Senior District Judge.

ROSS, Circuit Judge.

G. Stanley Rischard (Rischard), a Minneapolis attorney, was convicted by the district court acting without a jury, on four counts of an indictment, two of which alleged that he subscribed his name to a tax return in 1965 and 1966 knowing it to be false, and two of which alleged attempts to evade income taxes in the same years. Rischard appeals alleging that the requisite intent was not proved beyond a reasonable doubt. We affirm the judgment of conviction.

At the outset we note that in criminal cases tried to the court, factual findings made by the trial judge must stand unless determined to be clearly erroneous, at least where such findings concern matters other than the ultimate question of guilt. See Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1960); United States v. Watson, 459 F.2d 588, 591 (8th Cir. 1972); Kilcrease v. United States, 457 F.2d 1328, 1331 (8th Cir. 1972). In this case the trial court made factual determinations that the requisite intent to evade taxes and intent to sign a false return were present, which were the only issues really contested by Rischard, and the resolution of these issues was the equivalent of a determination of guilt. In a jury case 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. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Prionas, 438 F.2d 1049, 1052 (8th Cir.), cert. denied, 402 U.S. 977, 91 S.Ct. 1683, 29 L.Ed.2d 144 (1971); United States v. Robinson, 419 F.2d 1109, 1111 (8th Cir. 1969). When the determination of a question of fact is also determinative of the ultimate question of guilt, the rule should be the same whether the case is tried to a jury or tried to the court. In this case, therefore, we must determine whether or not there is substantial evidence, taking the view most favorable to the Government, to support the fact determination by the trial court relating to intent. See United States v. Delerme, 457 F.2d 156, 160 (3d Cir. 1972); United States v. Saunders, 325 F.2d 840, 841-842 (6th Cir. 1964), cert. denied, 379 U.S. 978, 85 S.Ct. 677, 13 L.Ed.2d 568 (1965); United States v. Tutino, 269 F.2d 488, 490 (2nd Cir. 1959); United States v. Owen, 231 F.2d 831, 833 (7th Cir.), cert. denied, 352 U.S. 843, 77 S.Ct. 42, 1 L.Ed. 2d 59 (1956).

In making its case against Rischard, the Government relied upon evidence tending to establish the following allegations:

1. There was a consistent understatement of income over a period of three years.

2. Rischard\'s educational background and business experience negates any claim that the mistakes were unintentional.

3. Rischard was an adequate bookkeeper as shown by his ability to correctly bill clients and record expenses.

4. Rischard did not disclose the name of one of his banks in his interview with the Internal Revenue Service Agent.

We will examine briefly each of these allegations of the Government in the light of the evidence adduced at the trial.

Consistent Understatement of Income

The appellant concedes that for the indictment years he understated his gross income; however, there is a dispute with regard to the amount. By amended returns filed after he knew the Government had initiated its investigation, Rischard admitted understating his gross income by over $3,000 in 1965 and by over $6,000 in 1966.

It is likewise clear that the appellant understated his taxable income for the indictment years. His amended returns admitted a $2,200 understatement in 1965 and a $5,900 understatement of taxable income in 1966, and the Government showed at trial that the understatement was at least that great in each year.

Furthermore, the appellant's own expert witness admitted at trial that gross income for the year 1964 had been understated also.

A consistent pattern of understatement of income may be used to establish the essential inference of wilful intent. Holland v. United States, 348 U.S. 121, 139, 75 S.Ct. 127, 99 L.Ed. 150 (1954); Canaday v. United States, 354 F.2d 849, 855 (8th Cir. 1966); 10 J. Mertens, Federal Income Taxation, § 55A.09 (1970). The appellant, in contrast, invites consideration of the fact that he filed amended returns as evidence tending to negate the inference of wilful intent. The probative value of filing amended returns is seriously lessened in this case because of the fact that they were filed after the appellant was first notified that he was under investigation by the Government. Cf. 10 J. Mertens, Federal Income Taxation, § 55A.07 (1970). Thus, since the Government need not prove the exact amount of the tax evaded, Burger v. United States, 262 F.2d 946, 955 (8th Cir.), cert. denied, 359 U.S. 990, 79 S.Ct. 1119, 3 L. Ed.2d 979 (1959), and since the appellant does not claim the amount is unsubstantial, the evidence of consistent understatement of income is persuasive evidence of wilful intent.

Educational Background and Business Experience

Rischard is an attorney who is admitted to practice law in the State of North Dakota and in the State of Minnesota. Since graduation from law school he has adjusted insurance claims, worked for the United States Office of Price Administration reviewing files for price violations, worked for the Veterans Administration considering claims for veteran benefits, worked for the Attorney General of the State of Minnesota representing the State in highway condemnation matters, worked for a private law firm, and has engaged in the practice of law by himself, dealing mainly with condemnation matters with some additional domestic relations and personal injury work.

Although the appellant strenuously...