Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.
Defendant-appellant, William Joseph Russo, was indicted in two counts for violation of Title 26 U.S.C. § 7203. Count I charged that he was engaged in the business of accepting wagers and had received such wagers, but had knowingly failed to pay the special occupational tax on wagering for the taxable period ending June 30, 1964.Count II charged that defendant was engaged in the business of receiving wagers and had received such wagers but had knowingly failed to register and file a return with the District Director of Internal Revenue.
After trial, the jury found defendant guilty only of Count II. He was sentenced to serve six months and to pay a fine of $1,000. This appeal followed.
Defendant states the contested issues as follows:
1. Whether there is sufficient evidence in the record to support a guilty finding under Count II.
(a) There was no proof that the defendant was aware of the federal tax and that he "wilfully" refused to pay it.
(b) There is no proof that defendant failed to file a tax at the time when the law required him so to do.
3. Whether the jury's verdict in finding the defendant not guilty under Count I which charged the defendant "was engaged in the business of accepting wagers" and that he "did receive wagers on his own behalf" negated and vitiated the verdict of guilty under Count II wherein the defendant was charged with being in the business of accepting wagers and that by reason therefore he was required to register with the District of Internal Revenue and to file a return, Form 11C.
4. Whether it was a violation of the defendant's right to a fair trial to permit the prosecutor to produce evidence that the defendant refused to answer certain questions of the interrogating agent when the defendant was arrested.
The government asserts that defendant may not now raise the issue that the evidence was insufficient to sustain the verdict because there was no motion for acquittal at the close of all the evidence. United States v. Jones, 7 Cir., 1953, 204 F.2d 745, 748, cert. den. 346 U.S. 854, 74 S. Ct. 67, 98 L. Ed. 368. Nevertheless, the government argues that viewed, as it must be, in the light most favorable to the government, the evidence does support the conviction on Count II.
Stanley Wheeler, an Internal Revenue Agent, testified that he observed defendant, on four different days at the race track engaging in conversations with various individuals who passed currency to defendant, who then entered notations on a piece of paper.
Agent Wheeler testified further that he himself approached defendant on each of the four days prior to certain races, gave defendant money, which defendant accepted, stated that he "wanted" certain horses, variously referring to them by name or number and indicating the allocation of the money, e. g. he said "I want No. 9, Major Byrd, 3 and 3" passing over $6.00. The defendant on each occasion repeated the gist of Agent Wheeler's statement and made notations on a card or piece of paper.
Some of Agent Wheeler's evidence was corroborated by another Internal Revenue agent, Howard Pollitz, who observed defendant and Agent Wheeler on August 24, 1963, ...