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February 12, 1960


The opinion of the court was delivered by: YOUNGDAHL

Abraham Chaifetz, an attorney, resident of the District of Columbia, was indicted for income tax evasion by the grand jury for the District of Maryland on January 7, 1958. *fn1" The indictment contained five counts, covering the five-year period of January 1, 1951 through December 31, 1955 and charged that Chaifetz had willfully attempted to evade income tax by failing to report net income totalling $ 43,167.31 and, therefore, federal income taxes of $ 13,175.84. *fn2" After a trial which took more than a month, the defendant was found guilty by the jury of the felony charged in the third count, *fn3" and of the misdemeanor included within the fourth count. *fn4" The jury acquitted on the first, second and fifth counts.

The defendant has now moved for judgment of acquittal and, alternatively, for a new trial.

 The defendant contends that there was insufficient evidence upon which the jury could have based its verdicts of guilty on the third and fourth counts. The argument runs: this was a net worth prosecution; *fn5" the jury acquitted the defendant on the first count which covered the 'base year'; since the Government did not prove its contentions regarding the base year, as is evidenced by the jury's verdict, all succeeding years -- bottomed as they are on the closing net worth of the preceding year -- must fall.

 The argument must be rejected. There was sufficient evidence in this case for the jury to have found the defendant guilty on each of the felony counts. The jury was not compelled to find the defendant guilty on count one in order to find him guilty on any of the succeeding counts. The jury was carefully instructed that willfulness is an essential element in the charge of tax evasion. *fn6" Quite conceivably, the jury was convinced that the Government's presentation of the defendant's net worth during 1951, 1952 and 1953 was correct; was not convinced that the defendant had acted willfully with regard to 1951 and 1952, but was convinced of the defendant's willfulness with regard to his 1953 return. Therefore, the jury acquitted the defendant on counts 1 (1951) and 2 (1952) and found him guilty on count 3 (1953). This hypothesis is especially plausible when one considers that the Government showed the greatest number of specific omissions from income on the 1953 return.

 Moreover, even if it is assumed that the jury's verdicts on the counts were inconsistent, the short answer to the defendant's contention is simply that there is no requirement for consistency. *fn7"

 It has also been argued that the Court should have submitted the misdemeanor charge on the first three counts, as well as the last two, even though, as to the first three counts, the statute of limitations had run on the misdemeanor charges. *fn8" Defendant's motions papers read:

 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. *fn9"

 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, *fn10" 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. *fn11" 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. *fn12" 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. *fn13"

 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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