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UNITED STATES v. ENGLAND

May 8, 1964

UNITED STATES OF AMERICA, PLAINTIFF,
v.
WILLIAM B. ENGLAND, A/K/A WILLIAM BENJAMIN ENGLAND, AND WILLIAM BERNARD ENGLAND, A/K/A WILLIAM B. ENGLAND, JR., DEFENDANTS.



The opinion of the court was delivered by: Juergens, District Judge.

  A one-count indictment was returned by the grand jury against the defendants, William B. England, a/k/a William Benjamin England, and William Bernard England, a/k/a William B. England, Jr. The indictment, generally stated, charges that commencing on or about the 27th day of June, 1955, and continuing to the date of the return of the indictment, the defendants, William B. England, a/k/a William Benjamin England, and William Bernard England, a/k/a William B. England, Jr., did wilfully and knowingly attempt to evade and defeat the payment of income taxes, then due and owing by defendant William B. England and Mary England to the United States of America for the year 1944, in the amount of $9,849.78, more or less, and by William B. England for the years 1945 and 1946, in the amount of $17,182.19, more or less, duly assessed against William B. England and Mary England on February 4, 1955, the said William B. England then having and owning real property subject to levy by the United States of America for the collection of such taxes, by concealing and attempting to conceal from the Director of Internal Revenue the nature and extent of real property owned by said William B. England and the location thereof and by wilfully and knowingly making false statements as to the ownership and interest in said real property owned by William B. England and located at 1118-1120 North Ninth Street and at 803-805 Exchange Avenue in the City of East St. Louis, Illinois, in violation of Title 26 United States Code § 7201, and Title 18 United States Code § 2.

A jury found both defendants guilty.

Separate motions of the defendants for acquittal, for new trial, and their combined motion in arrest of judgment are for disposition.

In support of their motion in arrest of judgment, the defendants assert that the indictment does not state facts sufficient to constitute an offense against the United States.

The indictment charges the defendants not with the evasion of income tax but rather with wilfully and knowingly attempting to evade and defeat the payment of income tax by concealing and attempting to conceal assets belonging to William B. England and by making false statements as to the ownership of certain properties. A person or persons can evade and defeat tax by a combination of such things as failing to file a return, filing a false return, failing to keep records, concealing income, or other means. These things can provide the means of evading or defeating the tax in the first instance by preventing an assessment of it either by the taxpayer or by the Commissioner. Cohen v. United States, 9th Cir., 1962, 297 F.2d 760. The two defendants here are charged with attempting to evade the payment of income taxes due and owing which were assessed against William B. and Mary England on February 4, 1955. The statute under consideration defines at least two separate crimes; namely, the attempt to evade or defeat tax and the attempt to evade or defeat payment of tax. Here the defendants are charged with the latter. The indictment states sufficient facts to constitute an offense against the United States; namely, wilfully and knowingly attempting to evade and defeat the payment of income tax.

The defendants' motion in arrest of judgment is without merit and will be denied.

In support of his motion for acquittal, defendant William Bernard England (hereinafter referred to as "England, Jr.") asserts that the evidence affirmatively showed there was no valid assessment of the taxes alleged to be due in the indictment within the statutory period for making such assessment; that there was no evidence of an assessment or of taxes due and owing by defendant William B. England admitted or admissible against this defendant; that there was no evidence of any actions or words by this defendant indicating a purpose to evade collection of back taxes allegedly owed by defendant William B. England by reason of the actions and false statements charged in the indictment; that there was no evidence of any action by this defendant to evade taxes which were not outlawed by the Statute of Limitations; that there was no evidence that this defendant ever intentionally acted to conceal properties or make false statements concerning them to evade William Benjamin England's alleged back taxes; that the evidence affirmatively showed that the only knowledge about the interest or ownership of properties referred to in the indictment was obtained by this defendant from William B. England and not on the basis of personal knowledge; that the evidence affirmatively showed that any taxes owed by defendant William B. England and properly assessed for 1944, 1945 and 1946 were collected long before February 4, 1955 and that it was impossible for this defendant to attempt to evade payment of any such taxes; that there was no corroborative evidence of the falsity of any statements attributed to this defendant; and that the indictment alleged more than one crime in the only count and was duplicitous.

In support of his motion for new trial, defendant England, Jr., asserts that the Court erred in denying his motion for acquittal made at the conclusion of the plaintiff's case and his motion for acquittal made at the conclusion of the evidence; that the verdict is contrary to the weight of the evidence; that the verdict is not supported by substantial evidence admitted or admissible against this defendant on all elements of the case; that the verdict is contrary to the statutes of the United States relating to the assessment and collection of taxes; that the Court erred in admitting testimony against this defendant of witnesses Curtis Matthes, John Kassly, Norman Mueller, Leo McCarthy, Margaret Dougherty and Paul Mueller as well as exhibits identified by them or by other means, over this defendant's objections; that the Court erred in charging the jury and refusing to charge the jury as requested; that this defendant was substantially prejudiced and deprived of a fair trial by reason of a statement made by the attorney for the government, wherein he referred to this defendant as "an ambulance chaser"; that the Court erred in denying this defendant's motion for a mistrial; that the Court erred in admitting testimony and exhibits reflecting penalties and interest charged to defendant William Benjamin England by the government but not alleged in the indictment and by admitting testimony and exhibits setting out amounts of taxes, interest and penalties allegedly owed which were far in excess of the amounts charged in the indictment, over defendants' objections; that the Court erred in admitting testimony and exhibits designed to show actions done by this defendant which were outlawed by the Statute of Limitations, over defendants' objection; that the Court erred in admitting testimony and evidence against both defendants which was admissible, if at all, only against defendant William Benjamin England, over this defendant's objections.

In support of his motion for new trial, defendant England, Sr., asserts that the Court erred in denying this defendant's motion for acquittal made at the conclusion of the plaintiff's case and at the conclusion of the evidence; that the verdict is contrary to the weight of the evidence and is not supported by substantial evidence on all elements of the case; that the verdict is contrary to statutes of the United States relating to assessment and collection of taxes; that the Court erred in admitting testimony of witnesses Curtis Matthes, Norman Mueller and Paul Mueller as well as exhibits identified by them or by other means, over this defendant's objections; that the Court erred in charging the jury and refusing to charge the jury as requested; that this defendant was substantially prejudiced and deprived of a fair trial by reason of a statement made by the attorney for the government during cross-examination of William B. England, Jr., an attorney, when the attorney for the government referred to the co-defendant as "an ambulance chaser," said defendant being this defendant's son; that the Court erred in denying defendant's motion for a mistrial and in admitting testimony and exhibits reflecting penalties and interest charged to this defendant by the government but not alleged in the indictment and by admitting testimony and exhibits setting out amounts of taxes, interest and penalties allegedly owed which were far in excess in the amounts charged in the indictment, over this defendant's objections; that the Court erred in admitting testimony and exhibits designed to show actions done by this defendant which were outlawed by the Statute of Limitations and in admitting testimony and evidence against both defendants which was admissible, if at all, only against defendant William B. England, Jr., over this defendant's objections.

Section 6501 of the Internal Revenue Code of 1954 provides in pertinent parts as follows:

"§ 6501. Limitations on assessment and collection

    "(a) General rule. — Except as otherwise provided
  in this section, the amount of any tax imposed by
  this title shall be assessed within 3 ...

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