The opinion of the court was delivered by: GOURLEY
This is a motion for judgment of acquittal and/or new trial following defendant's conviction for income tax evasion for the years 1949, 1950, 1951 and 1953, 26 U.S.C.A. § 145(b).
Motion for Judgment of Acquittal
Viewing the evidence in the light most favorable to the government as this court is required to do in consideration of a motion for judgment of acquittal, the government established that during the indictment years, defendant had earnings from Bethel Borough and Bethel School District for services as tax collector, from insurance companies for which he wrote policies, from a real estate business and from a Building and Loan Association. Proof of defendant's income was based upon the records of the Borough and School District, the insurance companies for which he sold insurance, his real estate business and the Building and Loan Association of which he was an officer. Defendant was given credit for all business deductions that could be determined, and all personal deductions claimed or to which he was entitled. In this manner, his net income was proved and since it substantially exceeded reported income, the difference was treated as unreported income.
Although defendant contended that he maintained books and records, he would not make them available either to the revenue agents or at trial. Upon trial, he gave such completely unrealistic and improbable explanations as to the net incomes reported by him on his tax return that the jury could well have concluded that he was purposely misrepresenting his correct net income.
I am satisfied that the government presented evidence upon which a jury could reasonably find that the defendant had substantially understated his income in each of the indictment years; that he had either maintained no books and records of his income and expenses or refused to make them available to the revenue agents; that he had refused to discuss with the investigating agents his income or expenses, and that the tax evaded as a result of the understatement was substantial.
A motion for acquittal should be granted only where the evidence does not permit the conclusion of guilt beyond reasonable doubt within the fair operation of a reasonable mind. Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229. There having been sufficient evidence for the jury to find, as it did, that there was a substantial evasion of taxes and that the understatement was wilful an intentional, motion for acquittal will be refused.
Motion for new trial sets forth the following reasons:
1. The verdict is contrary to the weight of the evidence.
2. The verdict in not supported by substantial evidence.
3. The verdict is contrary to the weight of the law.
4. The court erred in permitting evidence that the defendant had availed himself of the Fifth Amendment at an inquiry attended by the defendant, without ...