United States v. Roy, Crim. A. No. 1418.

• Decision Date: 24 January 1963
• Docket Number: Crim. A. No. 1418.
• Parties: UNITED STATES of America v. Ida Lee ROY.
• Court: U.S. District Court — District of Delaware

213 F. Supp. 479

UNITED STATES of America v. Ida Lee ROY.

Crim. A. No. 1418.

United States District Court D. Delaware.

January 24, 1963.

Alexander Greenfeld, U. S. Atty., Wilmington, Del., for plaintiff.

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

LAYTON, District Judge.

On January 12, 1962, Ida Lee Roy was charged (1) with engaging in receiving wagers for or on behalf of an unknown person engaging in the business of accepting wagers and wilfully failing to pay the special wagering occupational tax, in violation of Title 26, United States Code, Sections 4411 and 7203; (2) wilfully failing to register, contrary to Title 26, United States Code, Section 4412 and Section 7203; (3) and having failed to register, wilfully failing to pay the ten percent excise tax levied on wagers received by her, contrary to 26 United States Code, Sections 4401 and 7203.

At the conclusion of the Government's evidence, the Court on motion for directed verdict by the defendant, dismissed Count 2, relating to registration. After retiring to consider its verdict, the jury returned undecided and was dismissed as a hung jury.

On March 2, 1962, defendant filed a motion for judgment of acquittal under Rule 29 of the Criminal Rules on the ground that:

1. The evidence was insufficient to prove the element of wilfulness required by each count;

2. The verdict on each count as to the element of wilfulness was against the weight of the evidence.

The test applicable to a motion for judgment of acquittal is as follows. The Court scrutinizes the evidence, including all 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. United States v. Robinson, D.C., 71 F.Supp. 9; United States v. Haynes, D.C., 81 F.Supp. 63, aff'd 173 F.2d 223 (3rd Cir.).

The defendant, although not seriously denying that she was engaged in the numbers racket, took the position that her conduct in accepting bets without having first purchased the $50 gambling tax stamp was not wilful for the reason that she was not aware of the necessity for such stamp. 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 (3rd Cir.), 259 F.2d 872. Simply stated, in order for the Government to convict here, it must prove beyond a reasonable doubt that this defendant deliberately committed one or more of the specified violations with the intention of getting away with it.

Inasmuch as the offenses charged here are misdemeanors, the Government is not held to such an exacting burden of proof as if there were felonies involved. Thus, in Spies v. United States, 317 U.S. 492, 497, 63 S.Ct. 364, 367, 87 L.Ed. 418, the Supreme Court of the United States had this to say:

"The difference between willful failure to pay a tax when due, which is made a misdemeanor, and willful attempt to defeat and evade one, which is made a felony, is not easy to detect or define. Both must be willful, and willful, as we have said, is a word of many meanings, its construction often being influenced by its context. United States v. Murdock, 290 U.S. 389 54 S.Ct. 223, 78 L.Ed. 381. It may well mean something more as applied to nonpayment of a tax than when applied to failure to make a return. Mere voluntary and purposeful, as distinguished from acccidental, omission to make a timely return might meet the test of willfulness. * * * We would expect willfulness in such a case to include some element of evil motive and want of justification.

* * * * * *

"We think that in employing the terminology of attempt to embrace the gravest of offenses against the revenues, Congress intended some willful commission in addition to the willful omissions that make up the list of misdemeanors. Willful but passive neglect of the statutory duty may constitute the lesser offense, but to combine with it a willful and positive attempt to evade tax in any manner or to defeat it by any means lifts the offense to the degree of felony. * * *

"By way of illustration, and not by way of limitation, we would think affirmative willful attempt may be inferred from conduct such as keeping a double set of books, making false entries or alterations, or false invoices or documents, destruction of books or records, concealment of assets or covering up sources of income, handling of one's affairs to avoid making the records usual in transactions of the kind, and any conduct, the likely effect of which would be to mislead or to conceal."

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