RESPONDENT: United States
DOCKET NO.: 60
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Eighth Circuit
ARGUED: Mar 26, 1956
DECIDED: Apr 30, 1956
Facts of the case
Media for Berra v. United States
Audio Transcription for Oral Argument - March 26, 1956 in Berra v. United States
Mr. Rosenblum, you may proceed.
Stanley M. Rosenblum:
If the Court please.
This case involves the review of a conviction for income tax evasion.
On May 28th, 1954, the petitioner was indicted in the United States District Court for the Eastern District of Missouri on three counts of willfully attempting to evade his income taxes for the years 1951, 1952, and 1953 by filing false and fraudulent returns, understating the taxes due and owing to the United States.
There was endorsed on the indictment, Section 145 (b) of the Internal Revenue Code of 1939 as the statute violated by petitioner.
This statute provides that any person who willfully attempts, in any manner, to evade or defeat his taxes, shall be guilty of a felony, and upon conviction shall be fined not more than $10,000 on prison for not more than five years or both.
After a jury trial, petitioner was found guilty as charged on all counts.
On October 28th, 1954, the District Court entered its judgement of conviction on each count and sentenced petitioner to four years imprisonment on each count, the terms to run concurrently.
The United States Court of Appeals for the Eighth Circuit affirmed these convictions on all counts.
The evidence summarized show that the alleged unreported income consisted entirely of funds misappropriated from petitioner's employer, the St. Louis Labor Health Institute, which is a medical center providing medical care and dental care to services -- to members of Teamsters' Local 688 in St. Louis, Missouri, and which institute is supported by financial contributions from employers who have in effect collective bargaining agreements with Teamsters Local 688 in the Greater St. Louis area.
Petitioner was a business manager of the institute.He authorized expenditures.He signed and he drew checks on the institute's bank account.
The unreported income, alleged and accepted by the jury as true, came from the amounts which he paid out of the institute's funds, amounts which he paid through a certain subcontractor for work and labor which petitioner knew as a matter of fact had never been done, and which amounts on receipt by the subcontractor were turned back by the subcontractor to the petitioner.
He also paid out institute funds and the other aspect of the -- of the unreported income was funds that he had paid out to another subcontractor for painting and the building of a ratskeller in his personal residence, that is the signing of checks and the paying out of his employer's funds by work done purely at his personal residence.
The amount of taxes evaded was $757 in 1951, $458 in 1952, and $209 in 1953.On each of the three tax evasion counts, the trial court refused to give an instruction, requested by petitioner, which would have told the jury that it could find petitioner guilty of a lesser crime based upon Section 3616 (a) of the Revenue Code of 1939 and Rule 31 (c) of the Federal Rules of Criminal Procedure.
Section 3616 (a) provides that any person who delivers or discloses to a collector any false or fraudulent return with intent to defeat or evade the assessment intended to be made shall be guilty of a misdemeanor, and shall be subject to a $1000 fine or one year imprisonment or both.
Rule 31 (c) of the Federal Rules of Criminal Procedure provides that the defendant may be found guilty of an offense necessarily included in the offense charged.
Specifically, this requested instruction would have told the jury to find the petitioner guilty of a misdemeanor under Section 3616 (a) if it believed that he, the petitioner, the defendant had delivered a false income tax return to the collector with intent to defeat or evade the assessment of his tax.
The Court of Appeals rule adversely to the petitioner on -- on this issue relying on its earlier case of Dillon versus the United States.
The rationale of the Dillon case is that no lesser instruction was required because Section 3616 (a) is inapplicable to income tax violations.
This review here this afternoon is limited to the single question, whether if the trial court should have instructed the jury, the petitioner, who had been indicted for the felony of attempted evasion of income taxes, that is according to the statute endorsed on the indictment, could be convicted of a misdemeanor of filing a fraudulent return with intent to defeat the assessment.
Now, at the outset, I think that it will be helpful to the Court if on behalf of the petitioner, I state certain very elementary and certain basic propositions with which the petitioner and the Government are in full and complete accord.
First, both are agreed that the United States Court of Appeals for the Eighth Circuit was wrong in holding Section 3616 (a) inapplicable to income tax violations, its legislative history, its collocation in the Internal Revenue Code of 1939.
The tacit acceptance by various lower federal courts of the applicability of 3616 to income tax violations and the Government's own use of it to punish certain what it deems in "minor income tax violations" has led the Government to this concession.
Secondly, both are agreed that the allegations of the indictment charging offense under Section 3616 (a) as well as under Section 145 (b), the indictment charges a willful attempt to evade income taxes by filing fraudulent returns.
It is agreed that both statutes punished exactly the same Act and both punished such a willful attempt.
Thirdly, it is agreed that the Government's proof would support a conviction under Section 3616 (a), as well as under Section 145 (b).
And lastly, the petitioner and the Government are in perfect agreement that each offense charged here, the felony and the misdemeanor, does not, and I emphasize that again, does not require the proof of a fact not essential to the other.
And that under the test laid down by this Court in Pereira versus United States, double jeopardy attaches here so that the Government cannot prosecute and could not have prosecuted this petitioner for both offenses, that is the felony and the misdemeanor.
Didn't the crime under the first statute failure to pay the payholder while the crime under that 3616 is the failure to deliver or dispose his account?