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United States v. Dana

February 3, 1972

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
RICHARD D. DANA, DEFENDANT-APPELLANT



Duffy, Senior Circuit Judge, Kiley and Kerner,*fn1 Circuit Judges.

Author: Kiley

KILEY, Circuit Judge.

Defendant Dana appeals from his conviction by a jury on each of five counts of an indictment charging willful attempts to evade income tax for the years 1962-66, in violation of 26 U.S.C. ยง 7201.

The evidence most favorable to the government shows that during the years in question Dana was a salesman for Inland Container Corporation and sold packaging materials to Western Printing Company (Western). During this same time he also operated a business known as Display Products (Display) which sold coin displayers to Western.

Mielke, the production manager of Western, was a good friend of Dana. They devised the following scheme: Mielke, for Western, would order merchandise from Display. Although Display would make no delivery or only part delivery of the merchandise ordered, it would bill Western for the full amount of the order. Mielke would then approve the bills and the issuance of checks to Display in payment of the bills. They agreed to divide 60% of the proceeds of the Western checks equally between them, and Dana promised to use the remaining 40% to pay their respective income taxes.

Dana claims that the court erred in allowing the government to introduce summaries of its evidence; by failing to give certain instructions; by making prejudicial comments; and by erroneously ruling with respect to examination of witnesses.

I.

In presenting its case to the jury the government relied essentially on the testimony of Mielke, and on the inflated invoices and Western checks issued for the spurious orders. The government also introduced summaries of the evidence for the 1962-66 tax years. The summaries were prepared for the jury by the government witness Kabaker.

We see no merit in Dana's contention that the district court abused its discretion in admitting Kabaker's summaries of unreported income into evidence. Dana argues that the exhibits do not contain proper references to the evidence on which the summaries are based, and that he was denied the "opportunity to voir dire" Kabaker before his summaries were admitted. We are not persuaded by the argument.

There were four summaries pertaining to Dana's tax liability for the year 1962. The first is captioned: Summary of Evidence of Unreported Receipts from Western Printing and Lithographing Company, Unreported Purchases and Unreported Expenses of Richard D. Dana Doing Business as Display Products Company -- to August 31, 1962. It has several columns showing the dates, numbers, and the amounts of invoices billed to Western. It also lists the numbers and amounts of checks issued to Display in payment of the invoices, with appropriate references to corresponding exhibit numbers. A second summary contains similar data from September through December 31, 1962.*fn2

The third summary is captioned: Summary of Evidence of Merchandise Purchases by Display Products Company for 1962. It contains five columns listing the date, amount and number of the Western checks issued in payment to Display. It also sets out the name of the payee and the exhibit numbers corresponding to the transactions.

The fourth summary for 1962 is entitled: Computation of Taxable Income for the Year 1962. It lists Dana's reported and unreported taxable income, with reference to the exhibit number of the original 1962 tax return and the preceding summaries showing the total unreported receipts for 1962. It computes Dana's additional income tax liability for 1962 by taking the difference between the total corrected income tax due and the tax actually reported.

The summaries for the years 1963, 1964, 1965 and 1966 are essentially similar to those pertaining to 1962. The respective columns give the dates, check numbers, amounts and pertinent exhibit numbers. The tax computations for the later years are also analogous to those in the 1962 summary.

This court has approved the use of summaries such as those prepared and testified to by the government witness Kabaker. United States v. Tolbert, 406 F.2d 81, 85 (7th Cir. 1969); United States v. Bernard, 287 F.2d 715, 722 (7th Cir. 1961), cert. denied, 366 U.S. 961, 6 L. Ed. 2d 1253, 81 S. Ct. 1921 (1961). And the district court's ruling here can be reviewed "only upon a clear showing ...


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