Appendix — Ford v. United States

22

prejudiced by the article. The Court overruled the motion

and its action is specified by the appellant as an error. The

published article was a rather sensational report of a rather

extended interview, but the only portions which could be

said to have any direct influence upon the mind of a juror

were the statement that the witness Clough had the greatest

admiration for the lowest prostitute when compared to his

own contempt for city officials who accept money for per-

mission to operate, and his reference to unscrupulous

politicians and pay-offs as the curse of America. The rest

of the article related to the Mayor’s views regarding the

toleration of prostitution. In urging that the District Court

erred, the appellant quotes from American Jurisprudence

as follows:

“It is improper for jurors to read newspaper accounts

of the progress of a trial or relating to the case on trial.

But a new trial should not be granted by a trial court

because thereof unless the facts are such that it cannot

determine with reasonable certainty whether the result

was effected. Nor is a verdict vitiated by the finding

of a newspaper in the jury room where the jury had

no knowledge of its contents.” 53 Am. Jur. 644, Trial

Para. 895

In the pocket supplement to the above-cited volume the

editors have made an addition to the foregoing text in these

words:

“It is within the discretion of the trial Court as to

whether, after impanelment, during a criminal trial,

the jurors may be interrogated or polled as to whether

they have read newspaper articles pertaining to the

alleged crime or the trial.” 1955 Cum. Supp. Vol. 53,

Am. Jur. p. 40. See Annotation 15 A.L.R. 2d 1152.

23

This Court, considering a similar question, in a case where

the Government had been permitted to impeach its own

witness and the press reported upon the impeachment and

the subsequent arrest of the witness for perjury, said:

“On the day following impeachment of the witness

Diaz, appellant presented to the court a written mo-

tion for a mistrial, to which was attached the front

page of an El Paso morning newspaper containing an

account of the arrest of Diaz for perjury in denying

receipt of the stolen property from appellant. Appel-

lant orally informed the Court that similar accounts

had been broadcast over the El Paso radio stations.

The court overruled this motion, and denied a request

by appellant that the jurors be interrogated relative

to their knowledge of the radio and newspaper reports

in connection with the case, and further instructed

them, in case such reports had already reached the jury,

that they should not be considered for any purpose.”

Apodac v. United States, Sth Cir. 1953, 200 F. 2d 775.

The appellant does not complain that no further in-

struction was given the jury, and of course would not

be heard in the making of such a complaint as no in-

struction was requested. The refusal to permit inter-

rogation of the jury regarding the newspaper article

was not error.

Other questions raised are without merit and do

not require discussion. The judgment before us on ap-

peal is AFFIRMED.

A TRUE COPY:

TESTE

/s/ JOHN A. FEEHAN, Jr.

Clerk of the United States Court of

Appeals for the Fifth Circuit.

24

APPENDIX C

JUDGMENT

Extract from the Minutes of April 19, 1956.

No. 15672

Frep M. Foro,

VERSUS

UNITED STATES OF AMERICA

This cause came on to be heard on the transcript of the

record from the United States District Court for the West-

ern District of Texas, and was argued by counsel;

On consideration whereof, It is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court appealed from in this cause be, and the same

is hereby denied.

* %* +

I, Douglas W. McGregor, attorney for Petitioner, Fred

M. Ford, hereby certify that on the}/x~* day of June,

1956, I served copies of the foregoing Petition for Certiorari

on the United States by mailing a copy thereof in a duly

addressed envelope to Honorable Russell B. Wine, United

States District Attorney for the Western District of Texas,

Post Office Box 1701, San Antonio, Texas, and by mailing

a copy to The Solicitor General, Department of Justice,

Washington, D. C., with air mail postage prepaid.

/ fal

bine, nw. Wh Ang

Douctas W. McGrecor

Attorney for Petitioner

2331 Gulf Building

Houston 2, Texas

INDEX

Page

Opinion below-.- ------------------------------------- 1

Re cco t. a nkawna wea smme tata kaeen wee 1

Question presented_---------------------------------- 1

Statute involved_------ Sipe alae Papo eo Sade Teens 2

i 2c, cc yaacewanas cine whee ss ap eknaenwee 2

Argument-.-------- ie ate niet sali arad a kare ei 3

Conclusion.--------- etc cieiaaeaGed : 5

CITATIONS

Cases:

Capone v. United States, 51 F. 2d 609--------------- 4

Commerford v. United States, 64 F. 2d 28_.---------- 4

Ford v. United States, 210 F. 2d 313_--------------- 5

Gendelman v. United States, 191 F. 2d 993-_--~-- Re 5

Gleckman v. United States, 80 F, 2d 394. -...-------- 5

Goldbaum v. United States, 204 F. 2d 74_------------ 5

Guzik v. United States, 54 F. 2d 618__-------------- 3,4

Holland v. United States, 348 U.S. 121_.----------- 5

Leeby v. United States, 192 F. 2d 331-_-------------- 5

Tinkoff v. United States, 86 F. 2d 868._..----------- 5

United States v. Johnson, 319 U.S. 503--.---------- 5

United States v. Schenck, 126 F. 2d 702; certiorari

denied sub nom. Moskowitz v. United States, 316

eR Re Ae ee Letra hott ee 5

United States v. Yeoman-Henderson, Inc., 193 F. 2d 867-

Statute:

Internal Revenue Code of 1939:

Sec. 145 (b) (26 U.S. C. 1952 ed., See. 145)----- 2

eT OEY Lian 6 oon ncdknnsdenccanwesanene 4

eee CONE AUR ch ca ceccws sesecubebene 4

3¥2344—56

wy SLANE THEO ee

Gn the Supreme Court of the United States

OcToBER TERM, 1956

No. 180

Frep M. Forp, PETITIONER

v.

Unirep STatTes oF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals (Pet. 14-23)

is not yet reported.

JURISDICTION

The judgment of the Court of Appeals was entered

on April 19, 1956 (Pet. 24) and a petition for re-

hearing was denied on May 22, 1956. The petition

for a writ of certiorari was filed on June 19, 1956.

The jurisdiction of this Court is invoked under 28

U.S. G., Section 1254 (1).

QUESTION PRESENTED

Whither, as a condition precedent to use of the net

worth method of proof in a prosecution for wilful at-

(1)

2

tempted evasion of income taxes, the Government

must show a determination of the exact amount of

the defendant’s civil income tax liability by the Com-

missioner of Internal Revenue.

STATUTE INVOLVED

Internal Revenue Code of 1939:

Sec. 145. PENALTIES.

* * —_ *

(b) Failure to Collect and Pay Over Taz,

or Attempt to Defeat or Evade Tax—Any

person required under this chapter to collect,

account for, and pay over any tax imposed by

this chapter, who willfully fails to colleet or

truthfully account for and pay over sueh 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 thereof,

be fined not more than $10,000, or imprisoned

for not more than five vears, or both, together

with the costs of prosecution.

* * * * *

(26 U.S. C. 1952 ed., See. 145.)

STATEMENT

On February 27, 1952, petitioner was indicted in the

United States District Court for the Western District of

Texas on three counts of wilful attempted evasion of in-

dividual income taxes for the years 1945 through 1947,

in violation of Section 145 (b) of the Internal Rev-

enue Code of 1939. After a jury trial petitioner was

3

convicted, but the Court of Appeals reversed for er-

rors in the admission and exclusion of evidence.

Ford vy. United States, 210 F. 2d 313 (C. A. 5th). After

a second jury trial, lasting approximately five days,

petitioner was again convicted on all counts. (R.

586.) On June 28, 1955, he was given a general sen-

tence of four years’ imprisonment. (R. 587, 609.)

The Court of Appeals affirmed. (Pet. 14-23.)

The Government’s evidence showed that petitioner

was employed by the Galveston Police Department

from 1925 until 1947, when he was fired as chief of

police; that his reported income for the prosecution

years totalled $8,807.10; that his correct income, com-

puted by the net worth-expenditures method, was

£42,863.91; that he dealt entirely in currency; and that

in addition to his reported income (which consisted

entirely of his salary as chief of police) petitioner

had income from gambling and from protection pay-

ments from the onerator of a house of prostitution.

The defense consisted of the testimony of two char-

acter witnesses. (R. 29, 34, 39, 369-370, 387-388, 409-

439, 552-568.)

ARGUMENT

Petitioner’s sole contention—that in a eriminal

prosecution for income tax evasion based on the net

worth-expenditures method the Government must put

into evidenee a determination of the defendant’s

civil tax liability by the Commissioner of Internal

Revenue—is patently insubstantial. The point does

not appear to have been raised since the earliest days

of income tax evasion prosecutions, when it was found

to be without merit in Guzik v. United States, 54 F.

4

9d 618, 619 (C. A. 7th), certiorari denied, 285 U. S.

545 and Commerford V. United States, 64 F. 2d 28,

30 (C. A. 2d), certiorari denied, 289 U. 8. 759." The

contention apparently grew out of certain language

used in Capone vy. United States, 51 KF. 2d 609, 619

(C. A. 7th), certiorari denied, 284 U. 5. 669, and now

relied upon by petitioner. (Pet, 6-7.) In that case,

however, the court was dealing with Capone’s con-

tention that the Government had not proved a count

alleging that he had wilfully refused to pay certain

taxes which had actually been assessed against him

by the Commissioner. The language relied on has

nothing to do with the crime of atteupting to evade

income taxes, Which is complete when the taxpayer

wilfully and knowingly files a false return with in-

tent to defeat or evade a substantial part of the tax

due. United States v. Ye oman-Henderson, Inc., 198

IF. 2d 867, 869 (C. A. 7th) and cases cited; Guzik Vv.

United States, supra. The statutory provisions re-

lied upon by petitioner (Pet. 11-12—Nections 272 (a)

(1), 3612 (a) and 3612 (f) of the Internal Revenue

Code of 1939) plainly concern only the civil aspects

of tax assessment and collection, and petitioners argu

ment arises from a confusion of the civil and eriminal

aspects of the revenue laws. Civil tax eases are dis-

putes between the taxpayer and the Commissioner,

The question is the eract amount of tax owed, and

the burden of proof rests upon the taxpayer to show

that the Commissioner’s determination is erroneous.

In criminal cases, however, the burden of proof. is

! These were not net worth eases, though Gozile was based mainly

on bank deposits.

5

on the Government, but the Government need only

prove that the defendant fraudulently evaded some

of his income taxes; it does ‘*not have to prove the

exact amounts of unreported income.” United States

y. Johnson, 319 U. 8. 503, 517" = In any event, the

Government could not, even if it would, put into evi-

dence the Commissioner’s determination because it

would be irrelevant to the issues in the criminal case

and incompetent as hearsay.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

Simon E, SoOBELOFF,

Solicitor General.

CuarLtes K, Rice,

Assistant Attorney General.

JoserH M. Howakp,

Ricuarp B. BuyrMay,

Attorneys.

JuLty 1956.

: This Court has recognized that the net worth proof is required

to establish only a reasonable approximation of the amount of un-

reported income. Holland vy. United States, 348 U.S. 121, 129, 155.

Cf. also, Goldbaum v. United States, 24 I’, 2d 74.78 (C. A. 9th),

certiorari denied : 346 U.S. 831; Leeby v. United States, 192 F.2d

991 334 (CA. Sth) 2 Geodelman vy. United States, 191 F. 2d 993,

996 (C. A. 9th). certiorari denied, 342 U. S. 909; United States v.

Schenck. 126 F, 2d 702, 704 (C. A. 2d), certiorari denied sub nom

Moskowite y. United States, 316 U. 8. 105; Tinkoff v. United

States. 8G F. 2d S68, S78 (C. A. 7th), certiorari denied, 301 U.S.

689: Gleckman v. United States, 80 F. 2d 394, 399-401 (C. A. 8th),

certiorari denied, 297 U. 5. 709.

O, S. GOVERNMENT PRINTING OFFICE te8e