United States v. Windham

• Decision Date: 20 February 1974
• Docket Number: No. 73-2883 Summary Calendar.,73-2883 Summary Calendar.
• Citation: 489 F.2d 1389
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dr. Marion Ray WINDHAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

489 F.2d 1389 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Dr. Marion Ray WINDHAM, Defendant-Appellant.

No. 73-2883 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

February 20, 1974.

W. S. Moore, Julie Ann Epps, Jackson, Miss., for defendant-appellant.

Robert Hauberg, U. S. Atty., Donald Strange, Asst. U. S. Atty., Jackson, Miss., Meyer Rothwacks, Scott P. Crampton, Asst. Attys. Gen., Richard B. Buhrman, William D. Hyatt, Attys., Tax Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before BELL, SIMPSON and MORGAN, Circuit Judges.

SIMPSON, Circuit Judge:

This appeal is from conviction and sentence to pay fines totaling $10,000 for two counts of a two-count indictment charging violations of Title 26 U.S.C. Sec. 7201 by knowingly and wilfully attempting to evade and defeat a substantial portion of income taxes owed by appellant for the years 1967 and 1968.¹ The appellant, Dr. Marion Ray Windham, was a physician engaged in general practice in Jackson, Mississippi for a number of years including the tax years involved. The government in keeping with advice to the defendant prior to trial, proved its case by the net worth expenditures method. The guilty verdict was returned June 20, 1973.

The defendant on June 27, 1973 filed a lengthy motion for acquittal, or in the alternative, for a new trial, as to which a hearing was held July 6, 1973, exhibits in affidavit form were received, and oral testimony was taken. The trial judge denied this alternative motion by a lengthy opinion-order on July 20, 1973.

On appeal Dr. Windham does not contest the sufficiency of the government's proof of his guilt. Instead he raises three points of claimed error occurring at his trial which he asserts prejudiced his right to a fair trial. We find no merit in any of the errors asserted and affirm.

The first contention is that it was error to permit Dr. Robert P. Myers, Windham's former partner, to testify that Windham performed certain operations and did not report the fees therefrom as income. The trial counsel for the government indicated in a pre-trial conference that the government would not prove specific items of unreported income in proving its case. The defense was on notice that Dr. Myers would testify as a prosecution witness, but that since he was away and not available for a statement, no Jencks Act material as to his testimony was available.

In compliance with the requirement of Holland v. United States, 1954, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, that the government prove a likely source from which the net worth increases could have originated, Dr. Myers was first asked on direct examination whether Dr. Windham performed abortions during the tax years in question and failed to report the income. An objection was raised, and after a colloquy between court and counsel with the jury absent, the trial judge indicated that the question might be put using the words "certain operations" in place of "abortions". The witness answered affirmatively.² Although defense counsel moved for a mistrial, which was denied, he agreed with the court that the "abortion" question had been asked so casually that it was best not to accentuate the incident in the jury's mind by further allusion to it.

Appellant urges that the testimony was so highly prejudicial as to outweigh its relevance, and that failure to exclude it was prejudicial, citing Ford v. United States, 5 Cir. 1954, 210 F.2d 313, where we reversed a police chief's tax evasion conviction because of testimony as to graft payments by prostitutes. We read Ford as having been reversed because of the speculative, hearsay nature of the testimony, not because of its content. We think the evidentiary purpose of Dr. Myers' testimony was clear, and we do not find that it was introduced or alluded to in a manner calculated to inflame the jury. United States v. Tunnell, 5 Cir. 1973, 481 F.2d 149 is a recent tax evasion net worth case in which we approved proof of criminal activity (prostitution payoffs) as a likely source of funds. In this case the trial judge's jury instructions were clear to the point that the defendant was on trial for tax evasion and for no other crimes.

Somewhat the same considerations govern our rejection of the defendant's claim of prejudice from the rebuttal testimony of two government witnesses to circumstances permitting the inference that he had performed operations at his apartment. During his testimony in his own defense Windham categorically denied on cross-examination that this had ever occurred.³ One of the witnesses, a maid at the apartment house where appellant lived, testified that she had at times found syringes and bloody towels and sheets in his apartment and on one occasion found a large sum of cash hidden in his bed. The other witness, the apartment house manager testified that one of the appellant's mattresses was so blood-soaked it had to be destroyed.

This testimony was relevant, it was material in impeachment of Windham's credibility and it was proper rebuttal. No error occurred when the jury was permitted to consider it.

The testimony of these two witnesses is linked with that of Dr. Myers in appellant's brief as the basis for contending that the government misled him by not disclosing the nature of this testimony prior to trial. As indicated above, Dr. Myers' name was furnished, although the nature of his expected testimony was not available and this was stated. That the government's...