protection. It is clear beyond peradventure that the jury decided that the unreported income was proved beyond any reasonable doubt and that the calculations of the witness Klotz were based on proven facts. Once again we repeat that this entire, long and difficult case was one in which the issues hinged largely on credibility and, in our opinion, any verdict other than that which was returned would have been clearly against the weight of the evidence.
Fourth, as to Count II of the indictment, which charged the defendants with attempting to evade the payment of taxes by filing a false application for discharge of property from a Federal Tax Lien, defendants contend that although the Government produced evidence showing that the date of the agreement of sale of such property had been altered, no evidence was produced to link the defendants with such alteration. Our recollection of the evidence agrees with defendants in this regard. Therefore, we shall direct a judgment of acquittal as to Count II for both defendants.
Fifth, as to Count V, it is charged that the defendants presented a statement of financial condition to the Government from which certain properties were omitted. It is defendants' contention that because these properties were either so encumbered by taxes, etc., or so small as to be valueless, defendants saw no reason for listing them on the statement of financial condition. Defendants contend that any properties omitted from this statement which were not valueless were omitted by inadvertence. Therefore, argue defendants, it was error to allow the jury to find willful, deliberate omissions on the part of defendants in an attempt to evade their taxes. There was also evidence from which the failure to list these properties was explained by the taxpayers' reliance on the advice of reputable counsel and their accountants. In short, as to this count, we are of the opinion that a reasonable doubt was raised in favor of defendants. Accordingly, we will enter judgment of acquittal as to Count V.
Sixth, Mr. Mousley was questioned about his alleged refusal to turn over his records to the Internal Revenue Service. Defendants now contend that the evidence elicited on this cross-examination was a violation of Mr. Mousley's constitutional right not to give evidence against himself. It is our recollection that the defendants themselves first introduced evidence of the alleged cooperation on the part of Mr. Mousley with the Internal Revenue Service. In any event, the Court is certain that any questions asked Mr. Mousley relating to his 'cooperation with Government agents' were severely restricted by the Court. Furthermore, the Court's charge fully protected the defendants in this regard. We wish to emphasize here that no exception to that charge was taken, either as to this point or as to any other point. In addition, we note that the failure of a taxpayer to furnish records to investigating agents has been held to be a proper subject of comment by trial courts. Smith v. United States, 236 F.2d 260, 268 (8 Cir. 1956); Myres v. United States, 174 F.2d 329 (8 Cir. 1949); Olson v. United States, 191 F.2d 985 (8 Cir. 1951); and Beard v. United States, 222 F.2d 84 (4 Cir. 1955).
We emphasize again that almost all of the issues presented by this motion were matters for the jury, involving as they did the credibility of witnesses. Therefore, except as mentioned above, the motion for judgments of acquittal will be denied as to all counts except count Nos. II and V. Furthermore, it is our considered opinion that the interests of justice do not warrant the granting of a new trial.
And now, to wit, this 29th day of January, 1962, IT IS HEREBY ORDERED THAT:
1. The defendants' motion in arrest of judgment is DENIED.
2. The defendants' motion for a new trial is DENIED.
3. The defendants' motion for a judgment of acquittal as to Count Nos. I, III, IV, VI, VII, VIII and IX is DENIED.
4. The defendants' motion for a judgment of acquittal as to Count Nos. II and V is GRANTED.
The defendants, William A. Mousley and Mae E. Mousley, shall appear in Court for sentencing on February 26, 1962, at 1:30 p.m.
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