Opposition Brief — Raymond v. United States

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club, but argued, as he does here, that he was not a

retail dealer in liquors within the statutes and that

lis failure to pay the tax was not willful.

ARGUMENT

I. Petitioner attacks the sufficiency of the evidence

supporting his conviction (Pet. 8-22), asserting that

Miss Erickson conducted a private concession in his

club and that she, as an independent cont ‘actor,

was the dealer required to pay the tax. The opinion

of the court below details the pertinent facts which

support the trial court’s determination that petitioner,

net Miss Erickson, was the retail liquor dealer, and

knowingly failed to pay the tax (Pet. App. A 2-4).

Although Miss Erickson testified that she had con-

ducted a private concession, the trial judge discredited

her testimony, On cross-examination, she said “* * * T

Was the only employee, or the only worker, IT mean”

(Tr. 247). The remainder of her story, as the court

below noted (Pet. App. A 3), was highly improbable.

The evaluation of this evidence was a matter for the

judge, as the trier of fact. United States v. Creek,

403 F. 2d 220 (C.A. 6); Butzman v. United States, 205

FP. 2d 348 (C.A. 6), certiorari denied, 346 U.S. 828.

The record as a whole fully supports the trial court’s

conclusion that petitioner controlled Miss Erickson’ S

activities, owned some of the liquor dispensed, and

was the dealer obligated to pay the tax.

There is similarly ample evidence in support of

the trial court’s conclusion that petitioner’s failure to

«

pay the required tax was willful. The court found that

petitioner’s business records were altered to reflect

Miss Erickson’s purported status as an independent

contractor during the period covered by the indictment

(Tr. 382-383). In addition, petitioner’s prior experi-

ence in the liquor business indicates, as the court in-

ferred, that he knew of the federal tax requirements.

See Orloff v. United States, 153 F. 2d 292 (C.A. 6);

see also United States v. Dryden, 423 F.2d 1175 (C.A.,

9), certiorari denied, 398 U.S. 950. On these facts the

court was justified in holding that petitioner willfully

failed to pay the tax.

2. Petitioner further argues (Pet. 22-23) that his

prosecution for failure to comply with 26 U.S.C. 5121

(a) and 5142(a) violated his Fifth Amendment right

against self-incrimination. Petitioner did not raise this

contention in either the trial court or the court of

appeals, and thus may be deemed to have waived it;

in any event, it is without merit. The courts of

appeals have uniformly ruled that the statutory

scheme of taxing liquor is a genuine revenue raising

program, and is not unconstitutional as requiring self-

incrimination. E.g., United States v. Fricano. 416 F.

2d 434 (C.A. 2); United States v. Hunt, 419 F. 2d 1

(C.A. 3), certiorari denied, 397 U.S. 1016: United

States v. Walden, 411 F. 2d 1109 (CLA. 4), certiorari

denied, 396 U.S. 931; United States v. Dryden, su pra;

United States v. Whitehead, 424 F.2d 446 (CA. 6).

6

CONCLUSION

[t is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

Erwin N. Griswo tp,

Solicitor General.

WILL WILson,

Assistant Attorney General.

BEATRICE ROSENBERG,

PETER A. CHAPIN,

Attorneys.

Marcn 1971.

©.S. GOVERNMENT PRINTING OFFICE: 1971

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