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UNITED STATES v. MEMOLO

July 18, 1947

UNITED STATES
v.
MEMOLO



The opinion of the court was delivered by: KIRKPATRICK

The defendant was convicted of wilfully attempting to evade and defeat his individual income taxes. He now moves for a new trial on the ground of after discovered evidence. The history of the case and the various steps which have kept it before the courts for more than two years have no part in the disposition of this motion and need not be recounted.

 If the government's case, as to both years involved had been built upon the unreported income arising from the Maloney and Crolly checks and nothing else, there might be some ground for the defendant's contention that he has met the burden of showing that the after discovered evidence is more than merely cumulative or corroborative and that, had it been available at the trial it might have caused the jury to have reached a verdict of acquittal.

 However, entirely apart from the money derived from the Maloney and Crolly checks, the defendant admittedly received, in 1938, payments of $ 41,000 from the Bethlehem Steel Co. (the purchaser of the receivership assets) and fees from various clients amounting to $ 16,532.22; and in 1939, payments from the Bethlehem Steel Co. of $ 40,084.99 and fees from clients amounting to $ 14,592.16. He reported professional income of approximately $ 42,000 in 1938 and $ 20,000 in 1939. Thus, assuming that his fees other than the Bethlehem payments were included in amounts which he did report, there was an unreported deficiency of, roughly, $ 50,000 out of the $ 81,000 paid to him by Bethlehem. The defendant's explanation of his failure to report these items was that he was holding the money pending arrangements as to its division between himself and Mr. Decker who had acted with him as counsel for the receivers and that, until the division was actually made, he did not think he was required by the law to report, as income, any part of it. He was a lawyer of over 35 years experience, licensed to practice before the Treasury Department for nearly 20 years and the best that the defendant's counsel, in his brief on appeal, could say about the defendant's explanation of this part of the deficiency was that it 'is not so impossible as it appears in the mere statement of the same.'

 The defendant further testified that, after he had had the money in his possession between a year and two years, an agreement was reached, whereupon (in 1940 or 1941) he paid $ 30,000 of it in cash to Decker, a fact which, admittedly, he did not disclose to the agents (who began to investigate his tax returns as early as 1941) until after Mr. Decker's death, which occurred in 1943. Of this alleged transaction he admitted that no record of any kind was ever made and no receipt or release taken. It is not contended by the defendant that the loans to Greenes had anything to do with the part of the deficiency just referred to and his newly discovered evidence has no bearing whatever upon it.

 In order to justify the granting of a new trial upon newly discovered evidence, the evidence must be, among other things, 'so material that it would probably produce a different verdict, if the new trial were granted.' United States v. Johnson, 7 Cir., 142 F.2d 588, 592. Whether it would have such effect must be determined upon consideration of the government's case as a whole and where, as in the present case, there is evidence the force of which could not be in the slightest degree affected by the newly discovered evidence, sufficient and more than sufficient to support the verdict, a new trial should not be granted.

 The motion is denied.

19470718

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