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United States v. Rosenfield

decided: November 6, 1972.

UNITED STATES OF AMERICA, APPELLEE,
v.
SEYMOUR ROSENFIELD APPELLANT



Seitz, Chief Judge and Hastie and Hunter, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

A jury found appellant guilty of wilfully failing to file tax returns in violation of 26 U.S.C. § 7203. Appellant's defense was that he believed that he did not have to file if he did not have the money to pay the tax, and he did not have the money to pay.

The Government introduced evidence of appellant's income for the years in question. After appellant had testified that he was married, the Government was permitted to cross-examine him to show that he was, in fact, divorced. The Government then devoted a portion of its closing argument to appellant's false statement.

Appellant presents several arguments to justify a reversal. None of them do, and we will consider them seriatim.

EVIDENCE OF APPELLANT'S INCOME

Appellant contends that it was error to introduce the evidence of the amount of his income because it was evidence of a crime for which he had not been charged, i.e., tax evasion. The jury's verdict may thus have been based on an offense not charged in the indictment and which appellant was not prepared to defend. Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1959).

The evidence was properly admitted by the district court. There is no question that the appellant's income was evidence of another crime. The central question, though, is whether it is relevant to an element of the crime charged. Such evidence is very probative as to the element of wilfulness. United States v. MacLeod, 436 F.2d 947 (8th Cir. 1971), cert. denied, 402 U.S. 907, 91 S. Ct. 1378, 28 L. Ed. 2d 647 (1971). The district court admitted that evidence solely as to wilfulness and gave a jury charge to that effect to which appellant did not object.

DIVORCE

Appellant testified on direct examination that he was married. He argues that it was improper for the Government to ask him during cross-examination whether he was divorced.

There is nothing in this argument to justify a reversal. Appellant introduced this matter, and it was certainly proper for the Government to impeach him on it. See, e.g., Sleek v. J. C. Penney Company, 324 F.2d 467, 474 (3d Cir. 1963); Mintz v. Premier Cab Ass'n, 75 U.S.App.D.C. 389, 127 F.2d 744 (D.C.Cir.1942); C. T. McCormick, Handbook of the Law of Evidence 43 (1954). Its use of appellant's false statement was confined to reasonable limits and was relevant to appellant's credibility.

JURY CHARGE

Appellant claims that the jury charge on the issue of wilfulness was incorrect because it does not meet the standards set in prior court decisions.*fn1 See, e.g., United States v. Murdock, 290 U.S. 389, 54 S. Ct. 223, 78 L. Ed. 381 (1933); Edwards v. United States, 321 F.2d 324 (5th Cir. 1963); United States v. Palermo, 259 F.2d 872 (3d Cir. 1957). 10 Mertens, Law of Federal Income Taxation § 55A.09 (1958). He particularly objects to that portion of the charge which deals with "ignorance of the law." He ...


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