Appendix — Burger v. United States

bd .

~s

la

/ ee

-.- APPENDIX

, OPINION.

° ' oe ? .

UNITED STATES COURT OF APPEALS FOR THE ‘EIGHTH CIRCUIT

. "y *

* No. 16,000

ADOLPH C. Burcer, also known as A. C. Bunatr and Anpy

, Burorr, Appellant, ~*

v.

7 ‘Veun STarEs or AMERICA, Apprllee.

Appeal from the United States District Court for the

; ‘Eastern Distrigt yf } Missotri. '

[February 2, 1959.]

Don O.. Russell (William A. Ene was with him on the

brief ) for Appellant. ;

» Murry L, Randall, Assistant United States Attorney

' (Harry Richards, United States Attorney and W.

‘Francis Murrell, Assistant United States Attorney

were with him on the brief) for Appellee.

Before Garpner, Chief Judge, and Wooproven and Was

-- OosterHovT, Circuit Judges. .

Wooprovan, Circuit J udge.

Adolph C: Burger and Carlisle saiidiiae were indicted on

December 18, 1953, in two counts for wilfully and know-

ingly attempting to defeat and. evade a large part of the

taxes due and owing by Andy Burger Motors, Inc., a cor-.

' poration, for the fiscal years ending June 30, 1947, and

* June 30, 1948, respectively, by filing false and fraudulent

‘ax returns of the corporation for those years, all in viola-

tion of 26 U.S.C. § 145(b), Internal Revenue Code, 1939.

- The indictment charged that the net-income returned by,

the corporation for the first period was $472,672.26,

witreas it was $614,744.59, and that the tax, returned was

$179,615.46 and it was $233,602.94; that the net iricome

returned for the second period was $312,636.82, whereas |

‘

\

2a {

it was $351,607.19, and that the .tax’ returned was

$118,334.38, whereas it was $133,143.07.

Prior to the trial the indictment was dismissed iis to

defendant Cooper who was called to teatify by the govern.

meng Defendant Burger had a‘jury trial.on his plea of

not guilty, was convicted on both counts of the indictment,

and sentenced to four, years imprisonment. He .ajpeals.

There wax substantial evidence from which it could he

fairly inferred that: - .

Andy Burger Motors, Ine., was incorporated on July 1.

1946, and at all relevant times was engaged ‘in the business

of selling and servicing automobiles. Its capital stock

belonged to defendant Burger and his wife: one share was

issued ‘to Carlisle Cooper, ‘but it “was endorsed back to

' Burger. Burger. was president and closdly supervised and

controlled the operation of the corporation business, © Act-

ing for the corporation, hgemployed Carlisle Couper as its

general manager in charge of sales and service at its plant

on South Grand Street in St. Louis, and Munson Raymond ;

Crocker as its general manager of Community Motors,

operated as-part of the capital structure of Andy Burger

Motors, Ine., for the first four months of the indictment

period, on Natural Bridge Avenue in that city.” Cooper

also beeame vice president of the corpotation though he

had no financial interest in it. Both Cooper and Crocker

worked a long time under Burger in the enterprises he -

controlled. Crocker was so employed some twenty-four .

years and Cooper at least eight. !

.Late in 1945 and early in 1946, when OPA ececiling regu-

lations were in effect, (Couper was employed in an auto-

mobile sales. and. service business controlled by Burger.

Sometime during that period Burger discussed with Cooper

the practice of making out false invoices. to evidence “the

sale of cars, and of falsifying the entries in the corpera-

tion's books that were derived from the invoices, by show-

ing smaller prices for the cars sold fhan were actually ob-

tained for them from the purchasers on the sale. It was

said that ofhers were doing it. and Burger instructed

4 .

, , ; '

Comet to follow the practices;in their business and agreed’

* that Cooper weuld he paid tenbpex cent of the excess money

s¢ obtained over the false price stated in the invoice.

Burger instructed Cooper to deliver the money’ received

from sales of cars in excess of the price stated in the in-

voice to him and to keep an account of the sales made on

~~ that -basisso_that. Rurger ‘*** * * would know what the

transactions were and what they covered’’. The books of

the corporation based the amounts of its receipts from the

sales of cars upon the amounts stated in the inyoices, so

that the false invoices produced false amounts, ‘shown as

received, from sales of cars‘on the corporation books.

?

. Pursnant to Burger’s instructions, Cooper made sales of

ears and issued false invoices which were delivered jo the

- purchasers and to the. corporation bookkeeper showing

the sale price to be less than the money obtained on the

- sale, The OPA ceiling prices were remov ed jn November, —

1946, some four months after the incorporation of the Andy

Burger Motors, Ine., and thereafter Burger directed Cooper

t> continue, the practice of making sales at priges ahove

the prices stated in the sales invoices. He tokd Cooper:

“Tt-wan the way we sel up our hooks and if we change now

we will dixciose whit we have done before’. The selling

of cars by the corporation at prices in excess of the prices

shown on thé false invoices was accordingly continued

consistently throughout the two year indctinent period.

The amounts of the payments that were ff excess of. th

amounts shown on the invoices were alwdys collected in

cash money. Cooper was provided with smyll hooks con-

taining perforated detachable sheets arranged so that the

entriés made on a page of the hook would be copied with

carbon onto the. next sheet. In the regular course of sales

made at prices above invoice prices, ooper would enter

a memorandum of the real transaction in ‘the small book,

sufficient to identify it with the corresponding corporation

- stock ‘number and sale records and also the amount of

cash money in excess ‘af the invoice price réteived from

the sale, He made these entries at the time of the trans-

actions; in his office at the place of-business of «Andy

~Burger Motors, Inc., and in many cases in the presence of

-

.

“

' whieh cou..ained the account of the sale’ producing the

e

- 4a

-

-

6 VR iene ili

the ‘purchasers, some of ahem swore, to seeing him do it. | @

-The entries fill nearly eleven books. They show cash | | ;

received over the false invoice price during the two in.

_!dictment years on 941 cars; such cash overage received

during the first ‘year amounting to $161,602.69 and during

the second year to $60,651.00—both amounts being greater.

than the amounts of insufficiency in the tax: returns of the-

corporation for the. — years covered in the inditt-

ment.

Jn ‘obedience to or s atountions, Cooper turned

over to Burgér all of the money received on account of: |

excess charged for the cars over the invoice price. Burger

then paid him ten per cent of such money as he had agreed:

‘to do. With the delivery of the cash to Burger, Copper

detached from the books and delivered the original entries,

‘money, to- Burger in compliance with Burger's request.

Cooper réefained the copy sheets in the books' in his: own.

possession. They were identified and the entries therein

were fully explained by Cooper onthe witness stand.

They were receiveg in evidence and are: ineluded by. refer.

ence in the record here. ~

Muyson Raymond ‘Crocker was general manager of

another automobile sales. and ‘service. agency; called (om-

munity Motors Company; which was part ‘of and operated

#ithin the eapital structure of Andy Burger Motors under

the supervision and control of. defendant Burger. Crocker

received the same directions from Burger as Cooper had

received: to follow the practice of charging an additional .

cash amount over a faise invoice price in the sale of cars.

. The direction wis given in late 1945 or early 1946 and the

practice was followed under Crocker’s ‘management until

the Community Motors Company was taken out of: the

capital structure of Andy Barger Mftors, Ine., in. No-*

vember, 1946. Crocker continued thd practice until 194%.

The agreement betwéen Burger and Crocker was that -

(focker should be paid'ten pér cent of the excess cash

received over invoice. price. of ears sold and Crocker was

to give the remaining ninety per cent to Burger. (Copies,

of the false invoices were turned over to the bookkeeper

" ©

da

>

i the becine were kept in accord with them. Crocker

did not keep-a record of ‘the sales made under his manage-

ment of the eash received fram them in that manner. He

had been longer in responsible’ employment under Burger .

than Cooper and Burger did not require him to keep ac-

coint of the exeess moneys’ he received: He was con-

; " strained to‘testify from memory. Crocker accounted to

Burger from time to time throughout the indictment period

for all the cash rec@ived-on the sale of cars above the

invoiceGrice and paid over ninety per cent of it te Burger

and kept ten per cent. He swore that to the best of his

recollection, about 75 per cent of -the corporation’ s new

ears sold under his management had ‘‘trade-ins’’, and that

eash over and above invoice price was obtained on the

sale of about seventy-five per cent of the used cars. The

estimates given ‘by Croeker’ on, the witness stand ind the

estimates of customers, who had bought from the agency

under his management in accordance with- the described

practice, established that large amounts of cash considera-

tion for cars, were not disclosed by the corporation’ s books,

or invoices, or ineliided in the corporation income tux

returns, but were effectually concealed.

In consequence of the practice carried 0 on.under Burger's .

directions, the tax returns of. Andy Burger Metors, Inc.,

were made up-in each of the indictment vears fron, the

false invoices and wrongfully omitted that. portion of the

price that was recciv ed over invoice prices.

Each of those tax returns was signed and filed by de-

fendant Burger, -president of: the corporation. ~

Carlisle Cooper, Munson Raymond Crocker, and defend- -

ant Burger were questioned by Internal Revenue agents

concerning the practice of falsifyi ng the invoices ‘and the:

corporate books and the tax returns. They made denials

of having engaged in the. practice and made detailed state-

ments exculpating t themse]ves. Cooper and Crocker were:

prosecufed in federal court for their perjury.

Cooper plead not guilty and. stood trial. Burger’ s at-

‘ torney was employed to defend him and Cooper was given

a

\

6a. _

\

' od :

"to understand that Burger. would take care of the at-

torney’s.fee, which he did. A transcript of the proceedings .

. was delivered daily to their attorney during the trial of

Cooper, and Burger and Cooper had conyersations in which

the: thought was mutually expressed that the government

had not.produced any evidence in court and they felt they.

‘had a good chance of winning, »

Cooper was conv ieted and his conviction: was: affirmed

on appeal. Cooper v, United States, 8 Cir., 233 F.2d 821.

He was subjected to imprisonment. Thereupon- Burger |

agreed to see that Cooper's wife “got along while he was

. gone’’. He also provided: a salary of $550.00 a month for

Cooper during his imprisonment and as soon as that ended

- he took Cooper back in the employment ‘of Andy Burger

’ Motors, Inc., at a thousand dollars a month.® Cooper gave

Burger some promissory notes signed in- blank and also a

deed of trust'on his home in connection, with the “large _

sums of money Burger advanced for hig.after | his arrest,

but Cooper was never called on to.make any payment. on

the notes. Cooper was under fidelity bond to the corpora.

tion in the. sum of $25,000, but _— wisely no actidn

to recover on that bond.

Crocker did not stand trial, but plead guilty to the { false

swearing, in the matter of the false invoices and conceal-

ment of consideration. received for cars ‘sold, before the

‘Internal Revenue*agents and was sent to prison. While

there, Burger caused him: to be paid $550.00 a ‘month, and

. ’ after his prison term expired took him back into his em-

ploy at a thousand-dollars a. month. Crécker also was

-under fidelity bend to the corporation = was never

‘¢, Sued on, - : : ;

oNeither Cooper, nor Crocker, nor Burg ‘Suabihid any :

samounts, in the?r tax returns for the indictment years on .

account of the amounts received during the period as con-

sideration for. the ears sold for more than invoice prices.

. But Coopér and Crocker have since signed .waivers for

the government and investigation: ‘of the amounts of tax

chargeable against them for the period was being made

at the time of this trial. m

‘el ad ee

about whether Cadillae he was driving, Or

2 2 ae

A great many of the corporation’s sales of cars’ for

‘amounts above the prices shown on false invoices were

-.made to dealers who resold the cars. All of sych dealers

confirmed that they had bought cars from the corporation

and the companies included in its capital structure on that

basis during the indictment years. — ° ! :

" One of such dealers was Montgomery Motor Sales which

bought several hundred cars in that way from Andy Bur-

ger Motors, Inc., and its agencies during the period. Three -

of the Montgomery officials so testified. Elbert Mont-

gomery also explained that his company followed the same

plan of issuing its invoices to its purchasers ‘showing cer-

tain prices received and keeping its books in accord with

such invoices, but actually receiving and collecting’ cash

additional to that price not shown by the books, During

the original investigation of Andy Burger Motors, Inc.,

by the Internal Revenue officers Cooper felt unsure about

what tHe entries ‘in Montgomery’s books might show as

to such sales made\to it. The Montgomery: Company had

not originally been inst tocc of his and he had come to

deal with them only after diséussing them “with Burger

who had known them previously. - After conferring with

Burger, Cooper went. to ‘the Montgomery place of busi-

hess and checked theit books and found ‘they did not re-

cord the cash paid by them ‘for cars bought from Andy .

Burger Motors, Ine.,- in addition tothe prices shown on

) I

their sale invoices. Cooper ther took Elbert -Montgomery

. tosce Burger. They met him in‘a certain alley adjacent

to Burger’ so-called A.B.C. store in St. Louis. Cooper

did not with them during their , Moc He merely

‘tated to Burger at the outset that’ Mentgomery had not

signed anything for the Internal Revemi agent& who had

‘been to see him and walked: away and-did not h\ar what

. they said. Their interview lasted ten or.

minutes.

argument

e Lineeln

Burger drove, was’ the better ear. Nothing else) Burger

testified (somewhat contradicting his testimony elsewhere

that he ‘did no selling of cars’’) that he only ‘‘wanted to

see) Montgomery abont selling him some Lincoln

cars * * or ; . ' 2 \ .

Montgomery. swore it was merely .a_ frien

\

es e Pas 2s

Sa.

The defendant Burger testified at length ~ in his. own

behalf. He deniedY%giving any instructions to Cooper or’

-. to Crocker to make sales‘of corpor&tion cars at prices

over the invoice prices and declared that he had no knowl’

_ edge, at the time of signing the Andy Barger Motors,-

Ine.; ‘tax’ returns, of any sales being made on that basis

a

ae under ‘the management ‘of either of them. He had been |

“inquired of by Internal Revenue agents and had made

the denials to them. Hé declared that neither Cooper nor

Crocker had ever delivered: to: hini any money obtained

in that eng and that, he had never seen, the record of

sales made a¥ over. invoice ‘prices in, the books kept. by

‘Cooper until copies were shown to him shortly before the

trial’ of this case. He made inquiry of the corporation's

‘‘various. personnel’’, Yncluding Cooper and Crocker, but

‘was nnable to find any evidence that any’ sales had been

made in that way’’. He ‘*opened all the po ks and records

of -Andy Burger. Motors, Inc., to investigating | ‘Internal |

~ Revenue officers’’, \He first came to. the belief that, Cooper...

_and Crocker had made sales and received money on them,

in excess of ‘invoice prices, after Cooper’s triafon the |

perjury ‘charges. against him, and after Crocker had

plead guilty, to the charges against him. ee

At the close of all the evidence inotion: for fai

-verdicté in defendant’s #avor ’ was presented and} denied

Appéllant contends for reyersal that the court erred:

(1) in failing to find that the‘first count of the indictmen

was barred by, thé Statute of-Limitations; (2) (a) a

ceiving the evidence of Cooper and Crocker who /h

been convicted. of perjury and made false invoices; (b) i

receiving the bddks of aecount maintained by : Coopery.

‘(¢) in receiving the evédence .of transactions prior and

subsequent to.the indictment period; (d) in keseltirgs

estimates of ‘certain witnesses of. overage cash amounts

claimed to have been paid hy. purchasers of cars 5 (3) in

giving and failing to give certain instructions ; (4) in mak-

“ing prejudicial remarks’ in the presence of the jury; and

(5) in denyin® defendant's motion’ at the close of: the evi:

dence for acquittal for insufficiency of evidence.

OCR PINRO Stree ahs

9a

i |

The indictment alleged that the offense oceurred en Sep-

tember 11, 1947, which was the day the. defendant caused

the corporation’s tax return to be filed.. A complaint

charging the defendant Burger with having committed the .

same offense alleged against him in the indictment herein

was filed with the proper United States Commissioner on

September 9th, 1953, and a warrant was issued thereon

and served on. defendant, who waived hearing and. was .re-

leased Gn bond. The Statute of. Limitations was six years.

-‘as provided in Title 26 U.S.C. § 3748 (1939), but the same

section extends that period, where a complaint charging

the offense has been filed, until the discharge of the grand

jury at the next session within the district. Zacher’ y.

United States, 8 Cir., 227 F.2d 224-295,

The indictment herein was returned on December 18,

1953, by the same grand jury which was in session at the. —

time the complaint was filed. Although the action of the |

Commissioner ‘before whom the complaint was filed was

duly transmitted ‘to the clerk of the district court, it be-.

came misfiled in another file of a ease entitled United

States v. Burger.- During the trial of :this case Burger

attacked the sufficiency of the complaint filed with the

- Commissioner to tell the statute beyond the six years on

the ground that the complaint did not charge the same

. Offense against him as is set forth in the indictment. The

court properly denied the motion. The point was without

merit: and has not been argued here. A point is made

here however that the statute was not tolled because of the

- misting whith ecenrred in the clerk’s office, It is equally

without merit: No prejudice of any kind was occasioned

* defendant by the misfiling. The statute was satisfied by

the transmittal of the record té the clerk's office where it

‘was available to defendant and-ns stated, it was used by

defendant on his trial. j 4

. - In addition, since appellant was given concurrent sen-

_ fences, the second count..is sufficient to sustain’ the judg-

ment appealed from, .{ulahan v. United States, 8 Cir.,

214 F.2d 441, 442 and éasés cited there; Schumacher vy.

United States, 8 Cir., 216 F.2d 780, 783.

Q “ 10a “ j

” Il. ; e p

(a) There was no error in receiying the: testimony of

~ defendant’s long timé associates in business, Cooper and

Crocker, on account of their having sworn falsely (as they

».. admitted) in favor of themselves And thé defendant to the

“reyenué: agents. Their credibility was solely for the jury.

Dein v. United States, 8 Cir., 246 Fed 335, 336; United

States v. Reina, 2 Cir., 242 F.2d 302, 307.

The fact” that they were accomplices with defendant,

in his attempt‘ vade taxes presented -no reason to cx:

elude their testimony... “It has been held over and over °.

again that in the federaljurisprudence a conviction may

depend upon the- uncorroborated testimony of - an - ae. :

ecomplice.’?’ United States v. Reina, supra, 242 F.2d at °

307 ;' Haakinson v. United States, 8 Cir., 238 F.2d 1 7%

- 779, and cases cited there.

see EG:

, (b) The looks in which Cooper, kept aecounts of a class

o of sales of corporation cars made under his management |

were properly received in evidence. ‘They were kept by

the general manager at the direction of the president of

‘, . fhe_corporation and the entries. were made at the place

4 (of the business, at the time of the. transaction, and in the

: regular fourse of -the business transacted. The indict-

ment years begin’ with. the last page of the first book

and, as stated by the prosecution without dispute, they.

show cash overages during the indictment years’ on some

‘, ‘941 ears. A count shows that on &%5 of those cars, mostly

usedcars, the books show the date, name of pure ‘haser,

Andy Burger Motors; Inc. stock number, inwoice price

‘amd cash overage. On 136 new cars the. books“®nly show ..

one figure, one or two names; and date. Cooper testified

that in such caseg the name was-cithet, the purchaseér’s ot

an intermediary who paidkAim.the-cash or both and- that

the figure represents the cash. On 8@ of: these 136 cars the

‘hooks also contain. the word ‘‘éver’’ or ‘“overage”’. The

accounta#i® was able, frorh the books alone, to tie in all but

_ 26-0f the cars with the a of Andy mrarget Motors,

1 There are exceptions shown in the text = but they are not relevant here. b,

: . A

o- 5 *

.

'

pnaitueen eae ee

Ine. Cooper testified that 5 of these 26 were sold by him

for another Burger, business, _Burger’s® father, and a

Burger employee. The cars which the accountant found

‘in the invoices of Andy Burger Motors, Inec., are listed,

with information ‘from the invoices, in the order in which

they appear on the Cooper records and in the record of

exhibits. They were élearly books kept in thd ordinary

course of business for business purposes. Smith vy. United

States, 8°Cir., 286 F.2d 260, 265, Certiorari denjed, 352

U. S. 909; United States v. Brewster, 2 Cir., 231 F.2d 213,

214; Bodnar v. t/nited States, 6 Cir., 248 F.2d 481, 482;

Leathers vy, United 8tates,9 Cir,, 250 F.2d 159, 160-162 ;

United States v. Mortimer, 2.Cir., 118 F.2d 266; 2707. Cer-

tiorari denied, .341. U.S: 616; McFee v. United States, 9

Cir, 53 F.2d 553, 554. Certiorari denied, 285 U.S. 546.

‘Moreover, as they were made by Coo er at the request of

, : y |

» the defendant Burger, they: were also admissible for that

reason * and Cooper who made them could-explain them.

McFee vy, United States, supra, 53 F.2d at 553—further,

they were admissible because Burger was given a copy of

them.. As this Court stated in Smith y. United States,

supra, 236 F.2d at 266: ‘*The admissibility of records and

entries made in the regular course of business is tg un

questioned. United States y. Mortimer, 2 Cir., 118 FS 2d

226, certiorari denied, 314 U.S. 616, 62 S.Ct. 58, 86 L.Ed.

496. This is especially true in United States Courts. 28

US.C.A. § 1732.°, There was no error in receiving them

inevidence, ; ~

(ce) The point ‘that the court erred in receiving ¢évi-

dence. concerning the begipnings of defendant’s practice

of falsifying the corporation’s records of amounts re- -

‘ceived from its sales of ears before the indictment period

‘is without merit. The government did not go into the

figures or amounts prior to’ the indictment period, ‘but it

"was: proper and necessary to ‘an understanding of the case

to show that the charged attempt to evade tax was not an

isolated act, but that: défendant's intent was te evade by -

means of a practice or course of, conduct. Tha is some

argument for defendant that jt; was begun only to avoid

OPA ceilings, which would. be irrelevant 4f the infent, to .

° - -.

- a». ‘ \

12a

evade was Also present. The court was not in error in

receiving the evidence of Burger’s instructions at the be-

ginning of the practice and following it up by taking end

concealing the income during the indictment period. No

testimony as to his conduct prior to the offense was re.

ceived that did not tend to prove his intent to defeat and

evade the corporation's tax as charged i in the Indictment.

‘See Bedell v. United States, 8 Vir, 226 F.2d 585, 589;

Giardano vy, United States, 8 Cir, 251 F.2d 109, 115; Hoyer

United States, 8 Cir, 223 F.2d 134, 138,

Pesce s conduct toward. Cooper and Crocker after he

“had made the corporation tax returns, and the Internal.

' Revenue investigations had begun, was clearly ‘admissible

_ as showing consciousness of guilt and criminal intent. See \

‘Luthtran vy, United States, 8 Cir., 93 F.2d 395, 399; Bruce

vy. United States, 8 Cir, 73 F.2d 972, 974; Segal v. United

States, 8 Cir., 246 F.24 814, 818; Green vy. United States,

DA‘. Cir., 259 F.2d 180, 182. Indeed, a large part of de-

fendant’* own testimony concerned his awn conduct dur-

ing and after the investigation begun by revenue agents.

(d) Dealers, Pho- paid cash over invoice price, and

Cooper and Crocker were all permitted to give their esti-

mates as to amounts of money that were received from

some sales of cats ‘over theamounts shown by the in- ’

voices of the sales, when ‘that was the best evidence avail-

able.’ In view of the proof that the corporation's records

of the amounts were false, there was no better evidence -

to be had in some instances than the recollection of the

witnesses. ‘There was no error in teeviving their best

recolle¢tion concerning amounts. Théy did. not draw,

them out of ‘the air. They had been deeply concerned”

and knew whereof they spoke, It was for the jury to ap-

praise theig tevtimony, They had known the exact.

amounts at the time of the transactions and we find @

error in allowing their testimony. Further, the govern-

ment was not obliged to show the exact amount of tax

evaded. Gleckman vy, United States, 8 Cirg 80 F.2d 394.

399-400; Beard vy. United States, 4 Cir., 222 F.2d 84, 89

citing United States v. Johnson, 319 US. 03, 517- 518,

63 S.Ct. ‘1233, 87 L.Ed. 1546. ~

13a

® .

Appellant contends that the coart erred in failing to

instruct the jury, as requested, to the effect that “if the

corporation did not authorize Carlisle, Cooper and Muan-

son Raymond Crocker to receive [the cash payments they

received o¥er the invoice prices} and did not ratify the

receipt thereof’’ that ‘‘said payments were not corporate

income”’ and it is argued that the judgment ‘should be re-

versed on account of the error. ;

But there. was no occasion for the court to give an in-

struction in that forin to confuse the jury. In order to

show that Cooper and Crocker were authorized to séll the

corporation’s cars, as they did, so as to receive the cash

payments they received over the invoice price for the cor-

poration’s cars, the government relitd on the evidence

that defendant Burger, president of the corporation im

fall control of its business, at its places of business, was

'. the ne who directed the transactions. He denied it and ©

said he had rio knowledge of any of the transactions and

never got any part of the proceeds: The issue contest

before the jury trying ‘Burger was, therefore, whether @r *

«not he did have knowledge and understanding of and an-

thorized and directed. the sales as Cooper

made them. That,was the issue to which the courf\ direct

- itself and instructed, fully and clearly; that it néces-

sary, in order to convict Burger, to establish rea-

sonable doubt defendant's knowledge and understa ing

of all the gssengial elements of the offense: all of “which

were fully explained; and that he made omissions in his

corporate tax returns wilfully and, knowingly and wath

intent to evade and defeat a tax that he knew to be owing.

Corporations act only through their agents md if Bur-

ker knew of and directed the salew of the corporaté prop-

erty as made, he could not exelude the considefation >e-

feived on the sales from his return of the corporate in-

come. Even if taking part of the consideration by Burger,

Cooper and Crocker could be regarded as stealing or em.-

hezzling or receiving constructive dividends, the taking

‘was from the corporation. First it was income to the

Corporation.

>

\

é

. a

on

i — 2 “

oe.

Pertinent. declaration was made by the First’ Cikeuit in

Currier y. United States, 166 F.2d 346, where the: defend.

ant took to hie own use remittances sent to his family cor.

: poration, of which he .was the president, in paymeut pf

goods sold by it, and failed to make tax. return in respect

to the remittances taken, either for himself or for the

: corporgtion ‘The indictment under 145(b) was against

e corporation and its president and the court sum-

marized its conclusion inthe final paragraphs of its opin-

ion 1 (166 F.2d at 348) as follows:

‘In short the case is one of an individual attempt-

' ing to evade taxes on himself and on his corporation.

No purpose would be served by a further review of

the evidence or the defendant’s conténtions.

‘“‘The judgments of conv iction were ‘proper. and Age

P affirmed. ao ;

We find no error, either, in instructions given or those

refused. ‘

Iv. 7 |

"The defense naturally expressed horror \¢t the perjury |

proven against witnesses Cooper and Crocker which each

of them disclosed early in his testimony. Naturally the

entries majle by Cooper, concerning the sales of cach of

941 cars, and the numerous reported interrogations of him, ©

also opened a very wide field for erqxs-examination of him

in this ease, - It was: liberally availed | ‘of by defendant. —

¢‘omplaint is made here “because: the ‘court expressed the

hope during the trial that counsel woyld not ‘* * * ® find it

necessary to go over every statement * * *”’ Cooper made ~

‘and that counsel could ‘* * * * limit [the] cross-examination |

[as to the perjury] to some- degree to conserve the time.

of: the Court aml jury’’. No exception was taken to the

court's’ remark and it was made with such respectful -

‘courtesy and consideration towards ecvunsel that none

could be taken, See Adams Dairy Company v. St, Louis

Dairy Company, ® Cir., 260 F.2d.46, 55-56 and cases cited

there. Counsel was not-in ary way limited in the cross-

~~

lda

examination, The court’s remarks present no ground for —

. ,erjticism or ‘reversal of the judgment,

| V.

Substantial evidence supports the verdict. |

We find the judgment to be without error. <

_ Affirmed, ° ._ “a

JUDGMENT

UNITED STATES COURT OF APPEALS FOR THE EIGHTH «CIRCUIT

No. 16,000 “

Apoten (. Burcer, also known as A. (. Buroatr anp Anpy

: - Buroer, Appellant, .

. ee Vv.

‘ Unitep States or AMERICA.

Appeat-from the United States Dist rict Court for the

Eastern Distriet of Missouri.

_This cause came on to be heard on the rdcord from the

United States District Cou?t for the EKaste istrict of

Missouri, and was argued by counsel,

On Consideration Whereof, it is now here ordered and

adjudged by this Court, that the judgment and sentence

of the said District Court, in this cause, be, and the same

is hereby, affirmed. . :

And it is further Ordered by this Court that the defend-

ant in the said’ District Court, Adolph (. Burger, also

known-as A. C. Burger and Andy ‘Burger, do surrender

himself to the ¢ustody of the United States Marshal for

the Eastern District of Missouri, if not ‘now in custody,

in execution of the judgmentand sentence imposed upon.

him, within thirty days from and after tue date of the °

filing of-the mandate -of this Court in ‘the said District

Court. . ‘ |

February 2, 1959.

es