Zacher v. United States, 15310.

• Decision Date: 12 December 1955
• Docket Number: No. 15310.,15310.
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: Clarence A. ZACHER, Appellant, v. UNITED STATES of America, Appellee.

227 F.2d 219 (1955)

Clarence A. ZACHER, Appellant, v. UNITED STATES of America, Appellee.

No. 15310.

United States Court of Appeals Eighth Circuit.

November 4, 1955.

Rehearing Denied December 12, 1955.

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Milton Yawitz, St. Louis, Mo. (William J. Costello, Robert H. Batts, and Rassieur, Long & Yawitz, St. Louis, Mo., were with him on the brief), for appellant.

Robert C. Tucker and Charles H. Rehm, Asst. U. S. Attys., St. Louis, Mo. (Harry Richards, U. S. Atty., St. Louis, Mo., was with them on the brief), for appellee.

Before SANBORN, COLLET, and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

The appellant, Clarence A. Zacher, hereinafter referred to as defendant, was found guilty by a jury on all counts of a five-count indictment, each count charging violation of 26 U.S.C. § 145(b) by the filing of a fraudulent income tax return. The first count is based on defendant's 1947 return, the second on the 1947 return of defendant's wife prepared and filed by defendant, and the third, fourth, and fifth counts are based on joint returns of defendant and his wife for the years 1948, 1949, and 1950, respectively. The defendant appeals from final judgment and sentence upon each of said counts. Jurisdiction of this court is invoked under 28 U.S.C. § 1291.

The Government makes no attack upon the gross income reported. Its case is based on unauthorized deductions. The Amended Bill of Particulars filed by the Government reads as follows:

"1. As to each of the five counts of the indictment it is charged that the defendant filed a false and fraudulent income tax return in that he overstated his deductions. The overstatements of his deductions are as follows:

                  Count I             $3,608.21
                  Count II             1,549.49
                  Count III            5,345.25
                  Count IV             5,944.21
                  Count V              6,953.71
                

"2. The method used by plaintiff in arriving at defendant\'s correct income is as follows: The gross receipts figures as shown in the returns are adopted as true. Certain specific items of deductions are disallowed and the true net income is determined in subtracting from the reported gross the deductions which are allowed. Plaintiff\'s proof will further consist of a showing that certain deductions as claimed on Page 3 of the returns were not, in fact, made and could not have been made because of the lack of cash available and proof that the claimed deductions were not paid or made by check."

Proof was offered of overstatement of deductions relating to contributions, casualty losses, taxes, and repairs to rental property. The facts will be further developed hereinafter.

Defendant asserts twelve errors upon which he relies for reversal. These claimed errors are consolidated and summarized as follows:

1. The Government failed to make a prima facie case.

2. The indictment was barred by the statute of limitations.

3. The indictment was not based on competent evidence.

4. Evidence was obtained from defendant in violation of his constitutional rights.

5. There was a fatal variance between the bill of particulars and the Government's proof.

6. The evidence as to leads furnished was improperly excluded, and the Government failed to follow leads.

7. Prejudicial error was committed in the reception and exclusion of evidence.

8. The court erred in refusing certain requested instructions.

We will proceed with the consideration of the defendant's contentions.

1. The defendant moved for a judgment of acquittal at the close of the Government's evidence and at the close of all of the evidence, and said motion was again urged in motion for judgment notwithstanding the verdict. Since evidence was offered in defendant's behalf, the motion interposed at the close of the Government's case has been waived. United States v. Calderon, 348 U.S. 160, 164, 75 S.Ct. 186; Hoyer v. United States, 8 Cir., 223 F.2d 134. The other motions are before us for consideration.

In determining the sufficiency of the evidence to support the verdict of the jury, we must view the evidence in the light most favorable to the Government, and give the Government the benefit of all inferences that may reasonably be drawn from the evidence. Hoyer v. United States, supra. The principal overstatement of deductions is in connection with contributions. During the four years here involved defendant and his wife claimed contributions totalling $21,428.85 and had cancelled checks to support only $149.50 of said contributions. In the 1950 joint return contributions were claimed as follows:

                  St. John's Catholic Church, St
                      Louis, Mo.                          $791.60
                  Church of the Immaculate Conception
                      St. Louis Mo.                        725.00
                  St. Peter and Pauls Church, St
                      Louis, Mo.                           697.00
                  St. Alphonsus Church, St. Louis
                      Mo.                                  672.50
                  St. Pious Church, St. Louis, Mo.         627.00
                  Webster     College,    Webster
                      Groves, Mo.                          570.00
                  St. Margaret's Church, St. Louis
                      Mo.                                  570.00
                  St. Francis Xavier's Church, St.
                      Louis, Mo.                           547.25
                  Chaminade College, Clayton, Mo.          510.50
                  Father Dempsey's Charities, St.
                      Louis, Mo.                           200.00
                  St. Vincent de Paul's Society, St.
                      Louis, Mo.                            57.00
                  Mary Queen of Peace Church,
                      Glendale, Mo.                        175.00
                  Benedictine Mission Home,
                      Schuyler, Nebr.                      162.50
                  Cardinal Glennon Memorial Hospital
                      Fund, St. Louis, Mo.                  25.00
                  St. Augustine Monastery, Pittsburgh,
                      Pa.                                   75.00
                  Salvation Army, St. Louis, Mo.            26.00
                  Miscellaneous Donations to Missions,
                      Community Chest,
                      Red Cross, etc.                       57.40
                                                        _________
                                                        $6,488.75
                

While amounts claimed for contributions varied, the foregoing is typical of charitable contributions claimed in all involved returns. The Government agents spent considerable time examining the defendant's records. Agent Burton testified that, while he was investigating defendant's returns, defendant admitted that he had nothing to support his contributions claims and conceded that $200 a year, which another revenue agent estimated to be the proper annual amount of contributions, was about the right amount. Later, when defendant was questioned by the examiner under oath, defendant reaffirmed the previous information given to the revenue agents that all income, loans, dividends, gifts, inheritances, and other cash received were uniformly deposited in his own or his wife's bank account, except for certain designated rent checks which were cashed. The agents prepared a schedule showing cash available from checks drawn to cash and the undeposited rent for each of the involved years, which tended to show an insufficient amount of cash available to make the contributions claimed. Defendant admitted that he had previously been shown such statements of cash available. Relative to such statements he answered questions propounded by the agent as follows:

"Q. What would you say about that? A. Well, it simply indicates very definitely that these amounts were not contributed. They couldn\'t be.

"Q. In other words, you realize now that you couldn\'t have contributed the amount you say you did? A. That\'s correct.

"Q. In 1950, Mr. Zacher, your contributions, as I stated before, amounted to some $6,500. This, broken down weekly, is around $125.00 a week. When you were making up your return did you actually think that you gave that much money to various charities? A. It never occurred to me to divide it up. If I had I would have readily seen that I couldn\'t have contributed that."

The defendant's answers as a whole seem clearly to show that his charitable deductions were based upon estimates, that he had no receipts or records to support them, and that he was convinced that he had made overstatements. He denies, however, any willful intent to evade taxes.

Defendant insists that in any event the claimed admissions are admissions after the fact, and that the essential facts tending to be proved by such admissions must be corroborated. He relies upon Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, and Opper v. United States, 348 U.S. 84, 75 S.Ct. 158. The Government concedes that the admissions are an essential part of the Government's case and that they must be corroborated, but contends that the record supplies the required corroboration. The requirements as to corroboration are thus stated in the Opper case, 348 U.S. at page 93, 75 S.Ct. at page 164:

"* * * However, we think the better rule to be that the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti. It is necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement. Thus, the independent evidence serves a dual function. It tends to make the admission reliable, thus corroborating it while also establishing independently the other necessary elements of the offense. Smith v. United States, 348 U.S. 147, 75 S.Ct. 194. It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth. Those facts plus the other evidence besides the admission must, of course, be sufficient to find guilt beyond a reasonable doubt."

In the Smith case, supra, the Court states, 348 U.S. at page 156, 75 S.Ct. at page 199:

"There has been considerable debate concerning the quantum of corroboration necessary to substantiate the existence of the crime charged. It is agreed that the corroborative evidence does not have to prove the offense

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