Brief for the United States in Opposition — Dolleris v. United States

Iu the Sugrene Court of the United States

OcToBeR TERM, 1968

No. 1271

KENNETH H. DOLLERIS, PETITIONER

ya a VU.

UNITED STATES OF AMERICA

ON PETITION POR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF-APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

‘The district court filed no opinion, The opinion’ of

the court of appeals (Pet. la-9a) is not yet officially

reported. ;

JURISDICTION ;

The judgment of the court of appeals (Pet. la-

9a) was entered on March 20, 1969. The petition was

filed on April 16, 1969. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1). —

QUESTIONS PRESENTED

1. Whether petitioner properly preserved his ob-

jection to unsolicited testimony of a revenue agent

that petitioner’s -counsel lad, during interviews,

(1)

351-216 —69

Pews.ceeee. Fie a

2

warned him of his’ rights under = Fifth and Sixth

Amendments.

2. Did the evidence warrant a finding that cash -

petitioner recelved from the sale of serap -was not

’ reported in his income tax return.

STATEMENT

After a jury trial, petitioner was found — guilty

on all nineteen courits of an indictment which char ged

him, variously, with subseribing false income tax re-

turns for himself and his corporation and. with filing

such returns with intent to evade and defeat the

taxes due thereon for fiscal years ending in 1961

through 1965, in violation of Section 7201 and Sec-

tion 7206 of the Internal Revenue Code of 1954. He

was sentenced to a fine of $2,000 and imprisonment

of one year and one day on each count, to be served

concurrently. (R. 29-87, 403.)

Petitioner had made thirty-six sales of scrap on

behalf of D. & W. Sales and Service, Inc., for which

he requested and personally received $48,007.50 in

cash from the purchasers. In ten of these transac-

tions, part of the purchase price was, at petitioner’s

direction, paid by checks made out to. the corpora-

tion, and in other instances of scrap sales the entire

purchase price was paid by checks to the corporation.

(R. 144, 148, 171-172, 287; Govt. Ex. 32.)

Revenue Agent Morgan testified that the records of

the purchasers showed invoices for these sales and

weight tickets made out on stationery of the D. & W.

corporation. He also testified that while the D. & W.

corporate records did reflect the payments received by

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check and the weight tickets for such sales, they did

not reflect the cash sales or the weight tickets relating

thereto, and that such cash sales were not reported by

the corporation or petitioner. (R. 246-247, 275-288.)

The accountant who prepared the tax returns (Old-

hain) testified that he prepared them on the basis of

the records of bank deposits and oral statements of

petitioner and his employees that all currency*had

been deposited. In an audit of currency for the thirty-

nine month period ending on April 30, 1964, he

determined that $13,185 in currency -had not been

reported in the tax returns. He accepted petitioner’s

explanation that this had been spent for unrecorded

and undocumented company expenses, and Revenue

Agent Morgan testified that this $13,185 was not in-

eluded in his computations of unreported income. (R.

58-78, 88, 108-109, 292.)

When Special Agents of the Internal Revenue.

Service interviewed petitioner: in his office in January

and Mareh of 1965, he answered their questions both —

personally and. through his attorney. Thereafter, all --

answers were given by the attorney, who advised the

agents that the missing records were not available,

that the proceeds of all scrap sales had been recorded

and the cash had been placed in a metal box from

_ which it was removed and deposited when needed or

used for deductible expenses. (R. 245-251.)

ARGUMENT

1. There is no merit to the contention (Pet. 9-12)

that petitioner was deprived of his ‘privilege not to

incriminate himself. Although the petitioner quotes

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various portions of the record,’ his reliance is, as the

court of ‘appeals observed (Pet. 2a), essentially on the

followi ing testimony of Revenue Agent Morgan (R.

249-250) :

Q. All right. Now, did vou meet them on or

about October 18th, 19659

A. Yes. At’ that time Agent McLellan, Spe-

eial Agent McLellan, was with me and we met

Mr. Dolleris and Mr. Jones in. Mr. Dolleris’

office at D & W. ‘

Q. And what was the purpose of meeting

with them?

A. To discuss the examination.

Q. Did vou talk to Mr. Dolleris ?

A. Yes. And Mr. Jones advised Mr. Dolleris

not to answer questions because they might be

used against him. And at that time Agent Me-

_ Lellan stated that under the Constitution Mr.

iat Fs

Dolleris had the right to’refuse to answer any

questions | that he thought might ineriminate

him.

Q. Was anything. said about these se rap sales

to Brodey & Brodey? .

A. Yes. We discussed this— Jo ones said that

scrap sold to Brodey was weighed at D & W

and picked up there by a~Brodey truck. He

said that Dolleris might have helped weigh the

scrap and he said that he had the list of trans-

actions which I had given him on: March 17th,

but he had not determined the cause of the

discrepancies.

’ refers: to the transcript of testimony and proceedings

certified to this Court.

~

)

No objection was made at any time to this testi-

mony in the trial court on the constitutional grounds

now argued. By not giving the trial court an oppor-

tunity tou evaluate his present contentions and to cure

any possible prejudice, petitioner. waived his objec-

tion, Henry Vv. Mississipy, 379 U.S. 448, 451 (see Pet.

3a), so that the issue was not properly’ preserved.

Furthermore, as the court of appeals held ( Pet.

Bu), this tegtimony was not elicited by the govern-

ment. The prosecutor's question was “Did you talk

to Mr. Dolleris?” and the answer “Yes” was respon-

sive. The remainder of the answer was volunteered

by the witness on a question that was neither objec-

tivnable nor objected to. Compare Boeckcuhaupt v.

United States, 392 IF. 2d 24, 28 (C.A. 4) The trial

court, moreover, Charged the jury in the usual manner

that they shduld not consider or discuss the defend-

ant’s failtire to take the stand (Rt. 399).

. Contrary to petitioner’s contention (Pet. 13-14),

the evidence fully warranted a finding that he did

not report currency received for certain sales of

2‘The cout of appeals also was warranted in concluding that

any possible error was harmless beyond a reasonable doubt. The

jury was aware that afier petitioner stopped answering ques-

tions, his attoi ney continued to supply factual explanations on

his behalf both in and out of petitioner's presence, <and his

attorney advised the jury that he did this because of his

client’s right to counsel. (R. 362.)

* Petitioner’s contention (Pet. 12) that it was erroneous to

give this charge because he did not request it has no merit,

especially in view of his failure to take any exception to the

charge. Bellard vy. United States. 356 F. 2d: 437, 489 (C.A. 5),

certiorari denied, 385 fe S. 856; United Stat:s v. Schwartz, 398

F. 2d 464, 469 (CLA. \

\.

’ . ‘ ‘\

¢

na Oy REY er

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scrap. This contention is based entirely on sununaries

(R. 333-341) in which petitioner’s accounting witness

(Button) totalled all the currency deposits he found

in the corporation’s cash receipts journal and deposit ¢

tickets. But the jury was not compelled to conclude —

that Mr. Button’s total of $51,286.51 necessarily in-

cludes the $48,007.50 in currency received from scrap

sales. The schedules Mr. Button prepared assume

that the company kept large amounts of eash on hand

for extended periods, although his own auditor (Old-

ham) testified that he found no cash on-hand in pre-

paving certified audits for the period from January 31,

1962 to April 30, 1964. (R. 62-63; defendant’s ex: -

3-5).

Mr. Button admitted that in totalling the eurrency

deposits he made no attempt to analyze the sources of

_ this currency although he conceded that cash was re-

cetved by the company from many sourees other than

sales of scrap. On the other hand, Revenue Agent Mor-

gan testified that he had inspected the company rec-

ords and analyzed the cash sales, and that his anal- ~

ysis showed sufficient accumulations of currency to

account for cash deposits. (R. 245-246, 304-306, 342,

348-349.) Ҥ

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CONCLUSION

The petition should be denied.

Respectfully submitted.

May 1969.

Erwin N. Griswo.p,

Solicitor General.

JOHUNNIE M.. WALTERs,

Assistant Attorney General.

JosEPH M. Howarp,

JoHN P. BURKE, |

U.S. GOVERNMENT PRINTING OFFICE: 1969

Attorneys.

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