had run it thus barred the submission of the lesser offense to the jury in effect deprived the jury of convicting the defendant of the misdemeanor for the year 1953 if in fact they believed he only committed a misdemeanor.'
But if the jury believed the defendant 'only committed a misdemeanor' it would have found the defendant not guilty of the felony charge for 1953. This it did not do. The defendant's contention, if accepted, would result in giving the jury a patent and unlawful invitation to compromise. It needs hardly be added that no persuasive authority was cited to support this novel proposition. Furthermore, counsel for the defendant conceded during the trial that it would be improper.
Defendant also argues that the Court's ruling, limiting the number of character witnesses to four, prejudiced the defendant by causing the jury to believe the defense could not make good on its statement during voir dire that certain judges would be called on behalf of the defendant,
whereas, actually the judges could not be called because of the Court's ruling. Here, too, during the trial, counsel for the defendant agreed with the Court's ruling.
Aside from this, it readily can be seen from an examination of the transcript that the failure to call Judge Letts, or any other judge, rested entirely with the defense.
It knew of the limitation to four before any of the character witnesses were called. All the discussion regarding 'prejudice' centered around the 'inability' to call Judge Letts. Yet the defense named three judges during voir dire and no effort appears to have been made to call either of the other two. Even assuming, therefore, that the jury could remember what had been said on voir dire (one month earlier), no explanation was proffered at any time regarding the absence of these two judges. Under the circumstances, it remains the opinion of the Court that four character witnesses was a sufficient number for the defendant to establish his reputation without becoming oppressive.
The defendant also contends that the Court erred in its instructions regarding the obligation of the Government to check into leads or plausible explanations concerning the defendant's financial history (tr. pp. 2866-67); and in its instructions regarding the use, by the Government, of fraud, misrepresentation, or deceit to obtain records from the defendant (tr. pp. 2869-70). The Court has reviewed its charge and is of the opinion that it is correct under the authorities. See, e.g., Holland v. United States, 1954, 348 U.S. 121, 135-136, 75 S. Ct. 127, 99 L. Ed. 150; Smith v. United States, 1954, 348 U.S. 147, 150-151, 75 S. Ct. 194, 99 L. Ed. 192; United States v. Frank, 3 Cir., 1957, 245 F.2d 284, 285-286, certiorari denied 1957, 355 U.S. 819, 78 S. Ct. 25, 2 L. Ed. 2d 35.
The Court has carefully considered the remaining contentions of the defendant and finds them to be without merit.
Accordingly, the motion for judgment of acquittal and the motion for a new trial are denied.
income reported actual income tax reported actual tax due
count 1 (1951) $ 4,259.34 $18,027.51 $ 510.89 $ 5,412.03
count 2 (1952) 1,954.16 8,052.91 34.22 1,601.99
count 3 (1953) 2,019.50 13,299.47 48.73 3,585.78
count 4 (1954) 3,760.89 11,801.86 376.35 2,624.88
count 5 (1955) 3,244.79 7,224.24 250.09 1,171.44
$15,238.68 $58,405.99 $1,220.28 $14,396.12
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