BOREMAN, Circuit Judge.
Attorney Herman L. Taylor was charged in an indictment containing two counts with failure to file federal income tax returns for 1956 and 1957 and, in a separate indictment, for willfully and knowingly attempting to evade and defeat a large part of his federal income tax by filing a false tax return for 1955.
Defendant appeals from his conviction on the charge of filing a false return and challenges the Court's right to impose certain of the special conditions of probation in both cases. The two cases were consolidated in this court for briefing, oral argument and decision.
Three questions are presented for our consideration: (1) Whether the District Judge erred in permitting cross-examination of defendant, who testified in his own behalf, concerning certain tax matters unrelated to the charge on which he was being tried; (2) whether there is sufficient evidence to sustain the conviction of willfully attempting to evade federal income taxes; and (3) whether certain conditions of probation were properly imposed.
On cross-examination and without objection defendant testified that during 1955 state revenue agents of North Carolina audited his state income tax returns for 1952, 1953 and 1954. He then admitted, in answer to a question by the United States Attorney, that he paid some additional state income tax after the audit. Defense counsel objected to the latter question and answer, but the objection was overruled. The United States Attorney asked defendant also if he had filed federal income tax returns for 1956 and 1957. Later, defendant was asked concerning the filing of returns reporting social security and income taxes withheld from the salary of his secretary. Objections were made to these questions but were overruled. The jury was instructed that the answers to such questions should be considered only in arriving at a determination of defendant's intent when he filed his 1955 federal income tax return.
It is well established that evidence of collateral facts, circumstances and other acts of a defendant of a character kindred to that for which he is on trial, whether occurring prior or subsequent to the alleged offense, may be admitted with proper explanation to the jury as to the limits within which it may be considered and for what purposes. Morrison v. United States, 270 F.2d 1 (4th Cir.), cert. denied, 361 U.S. 894, 80 S.Ct. 196, 4 L.Ed.2d 150 (1959); Hatem v. United States, 42 F.2d 40 (4th Cir.), cert. denied, 282 U.S. 887, 51 S.Ct. 103, 75 L.Ed. 782 (1930). The information elicited from defendant over objection might well bear upon his attitude toward
Defendant contends that the evidence was insufficient to support his conviction. He admits that there was a substantial understatement of his 1955 income in his return for that year and urges that this is the only evidence introduced by the prosecution to show that he willfully filed a false return with intent to evade his federal income tax. He relies on the principle that mere understatement of income is not sufficient evidence of criminal intent.
The jury was carefully instructed that the Government must prove all elements of the offense charged, including the knowing and willful filing of a fraudulent return with intent to evade and defeat the payment of income tax. We think the evidence was sufficient, when considered in the light most favorable to the prosecution, to sustain the jury's determination of guilt beyond a reasonable doubt.
As before stated defendant was placed on probation on the conditions, among others, that he pay his District Director of Internal Revenue the sum of $32,210.40 by March 1, 1962, and that he pay by May 1, 1962, "an additional tax that might be found to be due for the years 1958, 1959, and 1960" with interest and penalties thereon. The defendant challenges the validity of these conditions.
We are told that the declared taxes for 1958 through 1960 aggregate $3,355.69 but, with that exception, there is no explanation of the various items included in the figure of $32,210.40. The testimony of the Internal Revenue Agent who investigated defendant's tax affairs and whose computations were apparently accepted as the basis of the District Judge's order is quite confusing and certainly does not set forth an account of defendant's total tax liability with precision and clarity. We are thus unable to ascertain from the record before us the amount of tax actually owed by defendant for the years 1950 through
We are of the opinion that the District Judge exceeded the authority given him under the Probation Act, 18 U.S.C. § 3651 (1958),
The Government refers us to and quotes language from McKinney v. Finletter, 205 F.2d 761, 763 (10th Cir. 1953), as follows:
Such a doctrine is indeed well recognized and is perhaps most frequently applied in habeas corpus cases. See, e. g., United States v. Pridgeon, 153 U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631 (1894); Harlan v. McGourin, 218 U.S. 442, 31 S.Ct. 44, 54 L.Ed. 1101 (1910); McKinney v. Finletter, supra. It has not, however, been limited to such cases. See, e. g., Karrell v. United States, 181 F.2d 981 (9th Cir.), cert. denied, 340 U.S. 891, 71 S.Ct. 206, 95 L.Ed. 646 (1950), (case remanded for modification of probation order when part of such order declared invalid). This court, in Kitt v. United States, 138 F.2d 842 (4th Cir. 1943), recognized the rule that an excessive sentence is not absolutely void but is voidable as to the excess beyond the maximum authorized by statute. There, however, the court held that it was not limited to striking the excess and allowing the valid portion of the sentence to remain but could "remand the case for an entirely new resentence" where that appeared to be the wiser course.
In the case at bar, all portions of the sentence are lawful except those special conditions of probation which require the present payment of taxes and penalties as to which there has been no formal determination of the amount due. The conditions of probation may be reframed so as to require the payment in full, within a specified time, of all taxes and penalties with interest thereon, and for any year, (1) found by the jury to have been evaded (2) shown by the defendant's returns to be due, or (3) determined and assessed by the Commissioner. Doubtless the defendant should be allowed to contest, in good faith, any proposed assessment, but there may be incorporated in the conditions of probation adequate safeguards against contests for the purpose of delay. This might be done by requiring, within a specified time, the payment, or a deposit of adequate security for the payment, of all taxes and penalties tentatively determined by the Commissioner to be due,
Other devices and appropriate terms will occur to the District Judge. We mention these only to indicate the insubstantiality of the modification of the terms of probation required by our opinion. The District Court may still require, as a condition of probation, the payment of all taxes and penalties lawfully determined to be due and collectible. The only limitation is that the amounts of the payments should be referable to a more formal determination than the District Court's calculations based upon otherwise unapproved computations of a Revenue Agent.
Since the required changes in the conditions of probation need have little effect upon their substance and since, upon remand, the District Court will have wide discretion in reframing special conditions of probation, we think it unnecessary to vacate the sentence. The remand, therefore, will be with directions to reframe the special conditions of probation so that such conditions will be in conformity with this opinion.
Conviction affirmed and case remanded for modification of conditions of probation.
"Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.
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"While on probation and among the conditions thereof, the defendant —
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"May be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had; * * *."