Opposition Brief — Goldbaum v. United States

yy e

INDEX

Page

Opinion below 1

Jurisdiction ]

Questions presented 2

Statutes and rule involved é

Statement 4

\rgument 10

Conelusion 18

CITATIONS

Cases:

Anderson v. United States, 30 F. 2d 485 13

Banks v. United States, 204 F. 2d 666, certiorari denied

October 19, 1953

Beckman v. United States, 96 F. 2d 15 15

Rell v. United States, 185 F. 2d 302, certiorari denied,

340 U.S. 930 17

Bruno v. United State 308 U.S. 287 15, 18

Bruan v. United States, 175 F. 24 223 1]

Corbett v. United States, 89 F. 2d 124 14

Dear Check Quong v. United States, 160 F. 2d 251 17

Epstein v. United States, 174 F. 2d 754 1]

Garst v. United States, 180 Fed. 339 12,13

Glasser v. United States, 315 U.S. 60 17

Goldshy v. United States, 160 U.S. 70 15

Giurera v. United States, 40 F. 2d 338 12

Harrison v. United States, 200 Fed, 662 12

Hendrey v. United States, 233 Fed. 5 12

Himmelfarh v. United States, 175 F. 2d 924, eertiorari

denied, 338 U.S. 860 14

UcCow v. United States, 169 F. 2d 776, certiorari denied,

335 U. S. 898 12, 14

McLendon vy. United States, 13 F. 2d 777 12

Quercia v. United States, 289 U.S. 466 17

Rossi v. United States, 289 U.S. 89 17

Samuel v. United States, 169 F. 2d 787 14

\chuermann v. United States, 174 F. 2d 397, certiorari de

nied, 338 U. S. 831 15

Strickland v. United States, 155 F. 2d 167 ll

Stryker v. United States, 95 F. 2d 601 14

Stutz: v. United States, 47 F. 2d 1029 13

Thompson v. United States, 145 F. 2d 826, certiorari de

nied, 324 U. S. 861 1]

(1)

"

Cases—Continued

Page

United States v. Augustine, 189 F. 2d 587 15

United States v. Austin-Bagley Corp., 31 F. 2d 229, cer-

tiorari denied, 279 U.S. 863 13, 15

United States v. Becker, 62 F. 2d 1007 13

United States v. Dolasco, 184 F. 2d 746 11,14

United States v. Fenwick, 177 F. 2d 488 11

United States v. Fleischman, 339 U.S. 349 17

United States v. Franke!, 65 F. 2d 285, certiorari denied,

290 U. S. 682 17

United States v. Kemble, 197 F. 2d 316 14

United States v. Spagnuolo, 168 F, 2d 768, certiorari

denied, 335 U. 8S. 824 14

United States v. Valenti, 134 F. 2d 362, certiorari denied,

319 U.S. 761 14

Wilson v. United States, 162 U.S. 613 17

Wilson v. United States, 149 U.S. 60 18

Yee Hem v. United States, 268 U. 8. 178 17,18

Statutes:

Internal Revenue Code, See. 145 (26 U.S.C. 145) 2

18 U.S.C. 3481 3

Miscellaneous:

89 A.L.R. 1379, Note 13

Branson, Instructions to Juries (3rd ed., 1936) :

Sees. 65-66 13

See. 3227 13

Federal Rules of Criminal Procedure, Rule 30 3,15

Randall, Instructions to Juries (1922):

Sees. 226-235 13

See. 1983 13

II Wharton, Criminal Evidence (llth ed., 1935), See.

926 1

I Wigmore, Evidence (3rd ed., 1940), Sees. 25-26 15

IX Wigmore, Evidence (3rd ed., 1940), See, 2497 15

nthe Supreme Court of the United States

OcroBeR TERM, 1953

No, 414

Austin F. McFEE, PETITIONER

Vv,

Unirep STaTes OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals (R. 444-

456) is reported at 206 F. 2d 872.

JURISDICTION

The judgment of the Court of Appeals was en-

tered on August 24, 1953. (R. 457.) On Septem-

ber 17, 1953, by order of Mr. Justice Clark, the

time for filing a petition for a writ of certiorari

was extended to October 23, 1953. The petition was

filed on October 15, 1953. The jurisdiction of this

Court is invoked under 28 U.S.C, 1254(1). See

(1)

a A APOE NERS Wh sh ah RI aI I OOOO GN. PLUME

2

also Rules 37(b)(2) and 45(a), Federal Rules of

Criminal Procedure.

QUESTIONS PRESENTED

1. Whether, where the Government’s proof of

wilful tax evasion is circumstantial, a court

is required to give the jury a specific instruction to

acquit the defendant if the proof is not such as to

exclude every reasonable hypothesis except that of

guilt, over and above the usual instruction on the

presumption of innocence and on reasonable doubt.

2. Whether it was error for the trial court to

comment, during its instruction to the jury, on the

fact that certain primary records were not pro-

duced by the defense to contradict the Govern-

ment’s prima facie case.

STATUTES AND RULE INVOLVED

Internal Revenue Code:

Sec. 145. Penalties.

+ * . * *

(b) Failure to Collect and Pay Over Taz, or

Attempt to Defeat or Evade Tax.—Any per-

son required under this chapter to collect,

account for, and pay over any tax imposed by

this chapter, who willfully fails to collect or

truthfully account for and pay over such tax,

and any person who willfully attempts in any

manner to evade or defeat any tax imposed by

this chapter or the payment thereof, shall, in

addition to other penalties provided by law, be

guilty of a felony and, upon conviction

BBS PA aR apne ee ar er edette, — ’ =.

te Nae ee

thereof, be fined not more than $10,000, or im-

prisoned for not more than five years, or both,

together with the costs of prosecution.

* . * He *

(26 U.S.C. 145.)

Criminal Code:

Src. 3481. Competency of Accused.

In trial of all persons charged with the com-

mission of offenses against the United States

and in all proceedings in courts martial and

courts of inquiry in any State, District, Pos-

session or Territory, the person charged shall,

at his own request, be a competent witness.

His failure to make such request shall not

create any presumption against him.

(18 U.S.C, 3481.)

Federal Rules of Criminal Procedure:

Rule 30. Instructions.

At the close of the evidence or at such earlier

time during the trial as the court reasonably

directs, any party may file written requests

that the court instruct the jury on the law as

set forth in the requests. At the same time

copies of such requests shall be furnished to

adverse parties. The court shall inform coun-

sel of its proposed action upon the requests

prior to their arguments to the jury, but the

court shall instruct the jury after the argu-

ments are completed. No party may assign as

error any portion of the charge or omission

4

therefrom unless he objects thereto before the

jury retires to consider its verdict, stating dis-

tinetly the matter to which he objects and the

grounds of his objection. Opportunity shall be

given to make the objection out of the hearing

of the jury.

STATEMENT

On November 8, 1951, a two-count indictment was

filed against petitioner in the United States Dis-

trict Court for the District of Idaho charging him

with violations of Section 145(b) of the Internal

Revenue Code. The first count alleged that peti-

tioner filed a false income tax return for the year

1945 in which he stated that his net income was

$25,166.67 on which the tax was $10,021.05, whereas

he knew that his income was $105,077.90 and that

the tax was $71,076.35. The second count alleged a

false return for the year 1946 in which petitioner

claimed a net income of $39,679.01 and a tax of

$18,091.55, whereas the figures should have been

$115,748.77 and $74,881.45. (R. 3-4.) After a jury

trial petitioner was found guilty as charged, and

on May 1, 1952, he was sentenced to eighteen

months’ imprisonment and a fine of $7,500 on each

count. The terms of imprisonment were consecu-

tive, but the second term was suspended and he was

placed on probation for two years to follow the

term of imprisonment on condition that he pay all

income taxes due. (R. 32-33.)

The Evidence.—During the years involved, peti-

tioner derived a major portion of his income from

the North Idaho Sales Company, which owned and

serviced numerous coin-operated slot machines

POOR COPY

over a wide territory in Idaho.’ (R. 64-66, 72, 206-

207, 295, 298, 334, 338, 347-348, 351-353, 392.) The

amounts collected from these machines by peti-

tioner’s route men were recorded on receipts of

which two carbon copies were made, One of the

carbons was left with the owner of the location at

which the machine was being operated ; the original

receipt, the other carbon, and the money collected

were turned in to a girl employee in the office of

the North Idaho Sales Company. The girl checked

the cash against the receipts and deposited the

cash in the bank. She then turned the receipts and

carbons over to petitioner and did not see them

thereafter? (RR. 204-209, 296-298, 334-336, 547-

349, 355-359, 360-366, 397-399.) The extent of the

slot machine business is apparent from the follow-

ing tabulation of gross income derived from that

source as shown on the books of the Sales Company

(R. 384):

1942 $169,307.89

1943 173,144.48

1944 140,405.95

1945 191,446.83

1946 246,469.77

Petitioner reported all the income actually re-

corded in the books of the North Idaho Sales Com-

' He also had income from several taverns, and from rents,

dividends and interest. (R. 62-74.) The North Idaho Sales

Company, originally a partnership between petitioner and his

daughter, was a sole proprietorship during the years involved

in this ease, (R. 189-190, 254.)

2 The petition erroneously states (Pet. 8) that only the “third

triplicate copy” was turned over to petitioner. (R. 358, 366,

399.)

a De a oe a ae he eC ns re |

ew

pany. (R. 70,76, 167-168.) However, the account-

ant who prepared the returns did not audit the

books, and he did not examine the receipts of the

route men. (R. 77-80.) When internal revenue

agents began an investigation of the returns for

1945 and 1946, they discovered that petitioner had

spent considerably more than his reported income

during those years. He told the agents that the

source of these expenditures was a cash fund of

$50,000 which he had at the close of 1941, and he

promised to produce records and a witness. He pro-

duced neither; and the witness, when interviewed

by the agents, had no information to give. (R. 237-

240, 259-272.) The slot machine receipts, although

requested, were never furnished to the agents. (R.

260, 399.)

Under the circumstances the Government used

the expenditures method to compute petitioner’s

true net income for 1945 and 1946. It was shown

that he had expended large sums, in investments,

in loans, in attorneys’ fees, and in payment of a

Federal District Court fine, which far exceeded

his snown resources plus his reported income. (R.

218-241.) The computation revealed that for the

year 1945 he had a net taxable income of $105,077.90

of which he had reported only $25,166.67, and that

for the year 1946 he had a net income of $110,448.77

and reported only $39,679.01. (R. 241-245.) This

result was corroborated by a net worth computa-

tion. (R. 245-249.)

In order to prove that these 1945-1946 expendi-

tures must have been made from current income,

7

and could not have come from some cash fund

accumulated during prior years, the Government

showed that during 1934 and 1935 petitioner was

employed as a butcher and lived very economically

(R. 150-154, 200-203) ; that his interest in the slot

machine business was very small at that time (R.

200-203) ; and that, on the basis of the income re-

ported in his returns and his known expenditures

for the period from 1936 through 1944, he could

not have acecumulated much more than $20,000

(R. 188-197, 217-218, 273-279). A thorough exami-

nation was made to determine all possible assets

and sources of income. (R. 237-240, 259-272.)

Even if he had, as he claimed, $50,000 in cash at the

end of 1941, that sum would have been exhausted

by his expenditures during 1943 and 1944 (R. 256),

and he would have needed $150,000 in cash at the

end of 1944 to account for all the unexplained ex-

penditures during 1945 and 1946 (R. 257).

Petitioner himself did not take the stand. Some

of his witnesses testified that he kept indefinite

amounts of eash in safes, which amounts were not

recorded in the books. (R. 302-306, 332-333, 394-

397.) Another witness testified that petitioner had

assets worth over $100,000 in 1943 which the Gov-

ernment had not taken into consideration in its

computation. (R. 307-325.) The receipts mace

out by the slot machine route men were not intro-

duced in evidence.

The Instructions —Apparently no written re-

* The Court of Appeals deseribed the testimony of this wit-

ness as “contradictory and highly questionable”. (R. 450.)

a See aad

ert wom pao QB

ae meme + "aay

quest for a specific instruction on the nature of

circumstantial evidence was filed at the close of the

evidence,’

In his charge to the jury (R. 412-426) the trial

judge gave the usual instruction that the ¢ iovern-

ment had the burden of proving petitioner guilty

beyond a reasonable doubt (R. 415-416). He ex-

plained briefly the Government’s expenditure and

net worth methods of proof (R. 420-421) and said

(R. 420)—

This is in the nature of circumstantial evi-

dence. Therefore, you should consider

whether or not the Government has precluded

every reasonable source of these funds except

earnings for the years charged. However, the

Giovernment is not required to refute all pos-

sible speculation * * *,

Then, after briefly defining the two types of evi-

dence, he said (R, 421)—

Circumstantial or indirect evidence, under

our law, as well as positive or direct evidence,

is competent evidence and is to be given such

weight as you determine it is entitled to,

The trial judge also warned the jury during the

course of the charge that they should not be in-

fluenced hy any comment he might have made as to

the facts. (R. 425.) A little later, he instructed

them that, while the burden of proof never shifted

from the Government, they might consider the fail-

—_—_——

* Those written requests which actually were filed by the

defense (R. 38) have not been included in the record.

— —

ure of petitioner to offer any explanation of dis-

crepancies indicated by the Government’s proof.

(R. 417-418.) During this discussion he called

attention to the slot machine receipts and said

(R. 417)—

None of the witnesses, bookkeeper, manager

or other witnesses for the defense produced

these tickets and all said they had no knowl-

edge of these tickets. The tickets were traced

to the possession of defendant MeFee. It

seems to the Court that if the tickets balanced

with the bank account that it would have been

an easy matter for the defense to produce the

tickets if they have not been destroyed. Why

were they not produced to show the receipts

of the slot machines for these years ¢

Just prior to the conclusion of the charge the jury

were told that petitioner was not required to prove

his innocence, that he was not required to take the

stand himself, and that his failure to testify raised

no adverse presumption. (R, 422.)

The defense objected to the court’s failure to give

“the requested instruction that not only must the

evidence prove guilt but that it must prove the

hypothesis of guilt to the exclusion of all other

hypotheses’, (R. 424.)

The defense also objected to the court’s ‘‘eom-

mentasto * * * the failure of the defendant to

retain the sales slips, or collection slips’. The

judge recalled the jury and specifically instructed

them that they should not be influenced by this

comment. (R, 424.)

phate ORE 2-0

10

After the jury had been deliberating for about

eight hours, they returned to the courtroom at 8:30

p.m. and the foreman informed the court that they

had not yet been able to agree on a verdict. The

court asked whether they had any questions and

the foreman replied that they would like to hear

again the instruction on circumstantial evidence.

The court then reread that portion of his original

charge in which he had defined the two types of evi-

dence and explained the weight to be given cireum-

stantial evidence. (R. 425-426.) There was no

objection.

The record does not reveal how much longer the

jury deliberated before it returned with its verdict.

ARGUMENT

1. The evidence that petitioner wilfully evaded

payment of his income taxes was circumstantial.

The trial court instructed the jury on the presump-

tion of innocence, reasonable doubt, and the gen-

eral nature of circumstantial evidence, but refused

to add a formula to the effect that, for cireum-

stantial evidence to be sufficient to sustain a verdict

of guilty, it must be such as to exclude every hy-

pothesis other than that of guilt. Petitioner con-

tends (Pet. 10-13) that the Courts of Appeals in

some circuits hold that such an instruction is re-

quired.

In the first place, the original charge actually

contained the substance of the desired instruction

in language closely keyed to the facts of the pres-

ent case. While explaining to the jury the Govern-

_—

ment’s use of the expenditure and net worth meth-

ods to prove unreported income, the one critical

issue in the case, the court said (R. 420) :

11

This is in the nature of circumstantial evi-

dence. Therefore, you should consider

whether or not the Government has precluded

every reasonable source of these funds except

earnings for the years charged. However, the

(Government is not required to refute all pos-

sible speculation * * *. [Emphasis sup-

plied. ]

The Court of Appeals correctly said (R. 454)

that the instruction given stated the law ‘‘with

much more clarity and foree’’ than the abstract ob-

jection made by petitioner at the close of the charge

(supra, p. 9).

Furthermore, there is no present conflict of deci-

sions calling for a review by this Court. Many of

the cases cited in the petition are not in point, for

they deal, not with instructions to the jury, but

with the quantum of circumstantial evidence re-

quired to take the case to the jury or to sustain the

verdict.” Obviously, the various formulae used by

appellate courts in defining and redefining this

concept need not necessarily be used in instructing

the jury. In pointing out this distinction, the

* In this class are Bryan v. United States, 175 F. 2d 223, 226

(CA. 5th): Strickland v. United States, 155 F. 2d 167, 168

(C.A. 5th); Thompson v. United States, 145 F. 2d 826 (C.A.

Sth), certiorari denied, 324 U.S. 861; Epstein v. United States,

174 F. 2d 754, 769 (C.A. 6th); United States v. Fenwick, 177

F. 2d 488, 490 (CA. 7th); ef. United States v. Dolasco, 184 F.

2d 746, 748 (C.A. 3d).

—_—__

EE eE .__a_aqQ SS

12

Court of Appeals for the Ninth Circuit said in an-

other recent case ( McCoy v. United States, 169 F.

2d 776, 786, certiorari denied, 335 U. 8. 898) :

Of course, the jury’s conclusion must have

support in the evidence to the effect that

there is no hypothesis determinable from the

proof under which the verdict of guilt could

reasonably be avoided, but this is not saying

that any technical form of instruction need

be given.

A different formula from that requested by peti-

tioner, namely, that the jury should acquit if the

circumstances are as consistent with innocence as

with guilt, has been discussed in several cases. In

the old case of Garst v. United States, 180 Fed. 339,

343, never since cited with approval, the Fourth

Circuit held that such an instruction should be

given. <A dictum to the same effect in Gurera vy.

United States, 40 F. 2d 338, 340 (C.A. 8th), has

likewise never been cited with approval. In Mce-

Lendon y. United States, 13 F. 2d 777, 779, the

Sixth Circuit held that the usual instruction on the

presumption of innocence and reasonable doubt

was sufficient, although it was better practice to

tell the jury that they should acquit the defendant

if the circumstances were as consistent with inno-

cence as with guilt and did not exclude every other

reasonable hypothesis but that of guilt.’

° The court relied on Hendrey v. United States, 233 Fed. 5, 18

(C.A. 6th), which in turn relied on Harrison v. United States,

200 Fed. 662, 664 (C.A. 6th), a case involving the sufficiency of

the evidence.

a Se

13

The only cases which we have been able to find

which clearly require a specific instruction that cir-

cumstantial evidence must be such as to preclude

every other reasonable hypothesis except that of

guilt are two old cases in the Fifth Circuit. These

are Anderson VN. United States, 30 F. 2d 485, and

Stutz v. United States, 47 F, 2d 1029, Neither has

ever been cited with approval.

All recent federal authority clearly holds that it

suffices in all cases to charge the jury on the pre-

sumption of innocence and reasonable doubt, and

that it is simply confusing to indicate that some

different degree of proof is required in a case in

which the evidence of guilt is wholly cireumstan-

tial.’ Judge Learned Hand first called attention to

this in United States v. Austin-Bagley Corp., 31 F.

2d 229, 234 (C.A. 2), certiorari denied, 279 U.S.

863, and a few years later the same jurist criticized

the Garst, Anderson and Stutz cases in the follow-

ing language (United States vy. Becker, 62 F. 2d

1007, 1010 (C.A, 2d) ):

The requirement seems to us a refinement

which only serves to confuse laymen into sup-

posing that they should use circumstantial evi-

dence otherwise than testimonial. All conelu-

sions have implicit major premises drawn

from common knowledge; the truth of testi-

mony depends as much upon these, as do infer-

ences from events. A jury tests a witness’s

7 For the confusion in state court decisions see Randall,

Instructions to Juries, Sections 226-235, 1983; Branson, Jn-

structions to Juries (3rd ed., 1936), Sections 65-66, 3327; Note,

89 A.L.R. 1379.

14

credibility by using their experience in the

past as to similar utterances of persons in a

like position. That is precisely the same

mental process as when they infer from an ob-

ject what has been its past history, or from an

event what must have preceded it. All that

can be asked is that the importance of the re-

sult to the accused shall demand a correspond-

ing certainty of his guilt; and this is commonly

and adequately covered by telling them that

the conclusion: shall be free from fair doubt.

To elaborate this into an inexorable ritual, or

to articulate it for different situations, is

more likely to impede, than to promote, their

inquiry.

So far as we have been able to determine all recent

federal decisions have followed this view.* See Cor-

bett v. United States, 89 F. 2d 124, 128 (C.A. 8th) :

Stryker v. United States, 95 F. 2d 601, 604 (C.A.

10th) ; United States v. Valenti, 134 F. 2d 362, 364

(C.A. 2d), certiorari denied, 319 U.S. 761; United

States v. Spagnuolo, 168 F, 2d 768, 770 (C.A, 2d),

certiorari denied, 335 U.S. 824; McCoy v. United

States, iS9 F. 2d 776, 784-786 (C.A. 9th), certiorari

denied, 425 U. S. 898; Samuel v. United States.

169 F. 2d 787. 791 (C.A. 9th); Himmelfarb v.

United States, 17 i. 9d 924, 942 (C.A. 9th), cer-

tiorari denied, 338 U.S. 860; United States v.

Kemble, 197 F. 2d 316, 320 (C.A. 3d); ef. United

* The Banks ease, cited by petitioner, is not to the contrary.

The court simply said that the defendant was given the instruc-

tion he had requested. Banks v. United States, 204 F. 2d 666,

672-673 (C.A. 8th), certiorari denied October 19, 1953.

OR COPY

BLEED THROUGH “

-—

neers :

15

States v. Dolasco, 184 F. 2d 746, 748 (C.A. 3d);

United States v. Augustine, 189 F. 2d 587, 591

(C.A. 3d). Eminent text writers have offered the

same criticism of the specific instruction desired

by petitioner. See I and IX Wigmore, Evidence

(3rd ed., 1940), Secs. 25-26, 2497; II Wharton,

Criminal Evidence (11th ed., 1935), Sec. 926. And

the Fifth Circuit itself tacitly abandoned its earlier

holding and quoted from the Austin-Bagley Corp.

case With approval in Beckman vy. United States,

96 F. 2d 15.

In addition, petitioner apparently did not file

a written request for such an instruction at the

close of the evidence as required by the provisions

of Rule 30 (supra, p. 3). The record does not

contain the requested instructions, and the petition

does not state that a written request was submitted

on this point. The charge was, therefore, not ‘‘ap-

propriately invoked’’. Bruno v. United States,

308 U.S. 287, 293; Goldsby v. United States, 160

U.S. 70, 77; Schuermann v. United States, 174 F.

2d 397, 400-402 (C.A. 8th), certiorari denied, 338

U.S. 831.

Petitioner complains (Pet. 14-16) that the sup-

plemental instruction on circumstantial evidence,

given at the jury’s request after they had been de-

liberating for some time, likewise failed to include

the formula he desired, and, in addition, made no

mention of reasonable doubt. But petitioner did

not, as required by Rule 30, call the trial court’s at-

tention to any supposed deficiency in the supple-

FaNS

WI ILLS TRE IY

Oe ee

16

mental instruction. As has been shown, it was un-

necessary to include his specific formula. The jury

had been carefully instructed on reasonable doubt

during the course of the original charge, and if

petitioner felt that the effect of this was weakened

by the supplemental charge he could easily have

obtained clarification. We think, however, there

was clearly nothing in the supplemental charge to

indicate to the jury that they could convict peti-

tioner if they had a reasonable doubt of his guilt.’

2. Petitioner contends (Pet. 16-18) that the trial

court’s comment to the jury on the failure of the

defense to produce the receipts of the slot machine

route men was, in effect, an instruction that it was

incumbent on him to take the stand and produce

the slips. This contention also is plainly without

merit.

The prosecution had presented a clear prima

facie case that petitioner had unreported income

from some source during the years in question, and

it had shown that the original records of the route

men had not been made available to the agents dur-

ing their investigation despite the fact that they

had been requested. Producticn of the slips might

have negated the slot machine business as the

source of the unreported income, yet several of pe-

titioner’s route men and office girls testified in his

behalf without producing them. The trial judge

pointed out this patent fact. He also twice cau-

* There is nothing in the record to indicate whether the jury

returned with their verdict shortly after receiving the charge

or deliberated far into the night.

17

tioned the jury that they were not bound by his

comments on the evidence; he instructed them that

the burden of proof rested with the Government

and never shifted to petitioner; and he specifically

warned them that petitioner’s failure to take the

stand raised no adverse presumption. (Supra,

pp. 8-9.)

The comment on the slot machine receipts was

justilied by the facts. The right of a federal trial

judge to comment on the evidence is unquestioned,”

and he may point out the failure of a taxpayer to

offer any explanation for discrepancies between

his returns and his actual income as indicated by

the Government's proof." ** [The judge] is free,

not only to give his impressions of the witnesses,

hut to point out the rational implications of the evi-

dence, * * *.°? United States v. Frankel, 65 PF.

21 QRS, 288 (CLA, 2d), certiorari denied, 290 U.S.

682. Certainly, if a jury may weigh the failure of

an accused murderer to explain recent possession of

property of the deceased,” if it may draw an infer-

ence of guilt from the unexplained possession of

contraband narcoties,” there was no error in the

present instruction, Though a jury may not con-

sider the failure of a defendant to take the stand,

Quercia v. United States, 289 U. 8. 466, 469; Glasser v.

United States, 315 U. 8. 60, 82.

"Cf, Bell v. United States, 185 F. 2d 302, 309 (C.A. 4th),

certiorari denied, 340 U. 8. 930.

12 Wilson v. United States, 162 U. 8. 613, 619.

% Yee Hem v. United States, 268 U.S. 178, 185; Dear Check

Quong v. United States, 160 F. 2d 251, 252-258 (C.A.D.C.) ;

cf, United States v. Fleischman, 339 U.S. 349, 360-364; Rosst

a an

Pare ME IO :

18

it may consider the failure of the defense to counter

the strength of the Government’s case. ‘If the

accused happens to be the only repository of the

facts necessary to negative the presumption aris-

ing from [the Government’s case], that is a misfor-

tune * * * which is inherent in the case.”” Yee

Hem v. United States, supra, 268 U.S. 178, 185.

The decision of the Court of Appeals is not in

conflict with Wilson v. United States, 149 U.S. 60,

or Bruno vy. United States, 308 U.S. 287. In those

cases the reference was specifically to the failure

of the defendant to take the stand, not to the fail-

ure of the defense.

CONCLUSION

The decision of the Court of Appeals is clearly

correct and no conflict of decisions exists. The

petition for a writ of certiorari should be denied.

Respectfully submitted,

Rosert L. STERN,

Acting Solicitor General.

~ H. Brian Hoiianp,

Assistant Attorney General.

* Exuis N. SLACK,

*> w? Davin L. Luce, | <*%

. JosepH M. Howarp,

Special Assistants lo the Attorney General.

NoveMBER, 1953

Tou S GOVERNMENT PRINTING OFFICE 1953 278058 se