422 F2d 862 United States v. J Devereaux

422 F.2d 862

UNITED STATES of America, Appellee,
Michael J. DEVEREAUX, Appellant.

No. 23949.

United States Court of Appeals Ninth Circuit.

Dec. 22, 1969.

Manuel H. Garcia (argued), Tucson, Ariz., for appellant.

Rubin Salter, Jr. (argued), Jo Ann D. Diamos, Asst. U.S. Attys., Richard K. Burke, U.S. Atty., Tuscon, Ariz., for appellee.

Before DUNIWAY and HUFSTEDLER, Circuit Judges, and PENCE,1 district judge.


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Devereaux appeals from a conviction of aiding and abetting one Beauchat to acquire and obtain, in the District of Arizona, a quantity of marihuana without having obtained a permit and without having paid the special tax thereon, in violation of 26 U.S.C. 4744(a).


As proof of the allegation that Beauchat failed to pay the tax, the Government offered only the testimony of the Chief of the Collection Division, Internal Revenue Service, for the district encompassing the State of Arizona, that a search of his records failed to indicate any registration or payment of the transfer tax for marihuana by either Beauchat or Devereaux. While such evidence supports the proposition that the tax was not paid in Arizona, it does not negate the possibility that the tax was paid elsewhere. There was no evidence indicating where the alleged acquisition of marihuana by Beauchat may have taken place.


The evidence is therefore insufficient to prove that the tax was not paid. This deficiency is not rectified by the presumption which 4744(a) makes available to the Government, because the Government offered no evidence to show that it had made the demand for the order form upon which this presumption is predicated. Thus it was error for the trial court to deny Devereaux's motion, under Rule 29(a) of the Rules of Criminal Procedure, for judgment of acquittal.


The conviction is reversed.


Honorable Martin Pence, United States District Judge, District of Hawaii, sitting by designation