The opinion of the court was delivered by: KRAFT
Defendant moves for a judgment of acquittal or for a new trial following a jury's finding of guilty on five counts of an indictment charging willful attempt to evade and defeat wagering excise taxes owing by him, in violation of Sec. 7201, Internal Revenue Code of 1954, 26 U.S.C. § 7201.
The undisputed evidence established a closely organized and large-scale operation of the numbers game in and about Reading, Pennsylvania, during the latter part of 1959 and early months of 1960, the period covered by the indictment. That activity is a criminal offense under Pennsylvania law. The evidence also established in intricate detail that the participants in this enterprise had, through a variety of carefully planned stratagems, made every effort to conceal its operations.
On October 3, 1959, following an intensive investigation, Government agents raided premises in Reading and found a large numbers bank in operation. The officers seized over $ 4,000 in cash, together with adding machines, numbers slips, summary sheets containing code markings, and other gambling paraphernalia. Defendant Minker was not on the premises. On the same day, pursuant to a search warrant, officers made an exhaustive search of Minker's apartment in Reading. They found nothing which pertained to gambling.
The evidence established that Minker resided in a rented apartment which was one of four dwelling units in an apartment building on Hampden Boulevard, Reading. The tenants of all four apartments deposited their trash in a container located at the rear of the building. One Anthony Damore removed the trash from the premises three times a week, pursuant to a private contract with the superintendent of the apartment house.
On November 16, 1959, the agents requested Damore to turn over to them the trash collected from these premises. Damore readily agreed, and faithfully delivered the trash to the agents from November 18, 1959 to March 29, 1960. Minker's trash was easily identified since it was generally in a bag or a box which contained letters or other articles bearing Minker's name.
In sorting through Minker's trash, the agents came upon torn bits of adding machine tapes, envelopes and other slips of paper. Many of these fragments contained handwriting as well as adding machine figures. In what must be deemed a masterpiece of patient and persistent effort, the agents painstakingly pieced together these fragments and achieved a well-nigh perfect reconstruction of the originals. These reconstructions were assembled in two sizable volumes and introduced into evidence (G-12A, G-12B).
On March 25, 1960, Government agents raided a farmhouse in Exeter Township, a short distance outside of Reading. They found a large numbers bank in operation, and seized some $ 4,000 in cash, adding machines, numbers, slips and other numbers paraphernalia.
Among the articles seized in the raid was a 'numbers banker's summary sheet,' which played a vital role in the evidence (G-7D). This was a summary of the bank's daily operations from February 29 to March 24 (1960), both days inclusive. The writers appear thereon by code designations, e.g., 'Z', 'C', 'L', '1', etc., eleven in all. Under each code are figures representing total wagers for the day, total cash and total 'hits', if any. The evidence indicated that 'cash' represented wagers less writer's commission, generally 35%. The summary sheet also contained a column for expenses, covering such items as pads, rent, phone, etc. The figures appearing on the summary sheet, either separately or in combination, corresponded exactly with the figures on the reconstructed adding machine tapes and other memoranda recovered from Minker's trash, day by day throughout the period covered by the summary sheet. The detailed analysis and comparison of the figures by the Government's experts could leave no doubt in any reasonable mind that the two sets of figures reflected the same series of transactions.
The Government produced a handwriting expert who testified that in his opinion, based on proved or admitted specimens, the handwriting on the re-assembled bits of paper was that of Minker.
The materials obtained from Minker's trash, together with the summary sheet seized in the second raid (G-7D), enabled the Government's accounts to calculate, to a high degree of accuracy, the gross amount of the wagers for each of the five months from November 1959, through March 1960.
Finally, the Government's evidence established that Minker had filed no tax returns for the months in question.
Defendant did not take the stand and submitted no evidence in answer to the Government's case.
Defendant's first contention is that the evidence was insufficient to warrant the conclusion, beyond a reasonable doubt, that defendant was under a duty to pay the tax. Boiled down to its essence, the argument is that the proofs fail to establish a proprietary interest in the lottery, that they were equally consistent with a finding that defendant 'was only a means of transmitting information.' The question was clearly for the jury, and its verdict was the only reasonable one possible under the evidence. The records pieced together from defendant's trash showed the defendant in possession of complete summaries of the bank's operations, including the totals of the wagers, the cash, the 'hits', the net profits, -- even the day-to-day expenses. The information was of the kind that would only be supplied to the 'banker'. When it appears that defendant received this detailed information day after day for a period of over four months, the inference is inescapable that defendant was the proprietor of the enterprise. On these tapes and bits of paper were notations and calculations, in defendant's handwriting, of a nature clearly indicating a financial interest. Any reasonable doubt at this point, is resolved by defendant's disposition of this information. His destruction and discarding of the records is clearly indicative of ownership, and renders specious the argument, unsupported by evidence, that defendant was a mere 'bookkeeper', or a 'transmitter' of the information.
Equally wanting in merit is defendant's contention that the verdict was against the weight of the evidence and that a ...