473 F2d 1313 United States v. Vanderburgh

473 F.2d 1313

73-1 USTC P 9304

UNITED STATES of America, Plaintiff-Appellee,
v.
Kenneth VANDERBURGH, Defendant-Appellant.

No. 72-2549.

United States Court of Appeals,
Ninth Circuit.

Feb. 9, 1973.

Howard A. Anderson (argued), Gerald A. Rein (argued), of Morrison, Huppin, Ewing & Anderson, Spokane, Wash., for defendant-appellant.

Carroll D. Gray, Asst. U. S. Atty. (argued), Dean C. Smith, U. S. Atty., Spokane, Wash., for plaintiff-appellee.

Before KOELSCH and WRIGHT, Circuit Judges, and EAST,* District Judge.

PER CURIAM:

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1

The Judgment of Conviction on two counts of income tax evasion for the reporting years of 1965 and 1966, under Title 26 U.S.C. Section 7201, is affirmed.

2

The Defendant-Appellant asserts eleven errors of law. We conclude all eleven asserted errors are without merit and comment on only these:

ISSUE 1:

3

The investigating Internal Revenue Special Agents failed to give the Defendant an adequate warning of his rights when he was initially contacted.

4

The record reveals a more than adequate warning under United States v. Chikata, 427 F.2d 385 (9 Cir. 1970) and the books of account were voluntarily turned over. Simon v. United States, 421 F.2d 667 (9 Cir. 1970), cert. denied 398 U.S. 904, 90 S.Ct. 1691, 26 L.Ed.2d 62.

ISSUES 5, 6, 7, 8 and 9:

5

These requested instructions were partisan pinpoints of phases of the Defendant's defense. The record reveals that the substance of the requested instructions refused by the trial court were adequately covered by the instructions given, when considered as a whole.

ISSUE 10:

6

It was error to permit the Government to prove its case through the net worth method because the Defendant maintained a complete and adequate set of books of account.

7

The record reveals the set looked good at first blush, but, also, substantiates the truism of these sage words:

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8

"DeLucia also contends that where he himself kept a set of books and records the District Court erred in permitting use of the net worth method of proof. This would mean that simply because taxpayer has kept a set of books, the veracity of which is in question, the Government is estopped from going beyond those books to prove their falsity or inaccuracy. This is absurd." United States v. De Lucia, 262 F.2d 610, 614 (7 Cir. 1958).

9

Defendant's enlargement on bail is revoked, effective now.

10

Affirmed.

*

Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation