485 F2d 248 United States v. J Bishop

485 F.2d 248

73-2 USTC P 9674

UNITED STATES of America, Plaintiff-Appellee,
v.
Cecil J. BISHOP, Defendant-Appellant.

No. 71-1950.

United States Court of Appeals,
Ninth Circuit.

Sept. 18, 1973.

J. Richard Johnston (argued), Robert H. Solomon, Johnston, Klein, Horton & Solomon, Oakland, Cal., for defendant-appellant.

John P. Burke (argued), Scott P. Crampton, Asst. Atty. Gen., Fred B. Ugast, Acting Asst. Atty. Gen., Tax Div., Dept. of Justice, Washington, D. C., John P. Hyland, U. S. Atty., Sacramento, Cal., John J. Kilgariff, Meyer T. Rothwacks, Richard B. Buhrman, Joseph H. Reiter, Tax Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before ELY and WRIGHT, Circuit Judges, and POWELL, District Judge.*

PER CURIAM:

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1

This case has previously been before this court. United States v. Bishop, 455 F.2d 612 (9 Cir. 1972). Certiorari was granted. 409 U.S. 841, 93 S.Ct. 64, 34 L.Ed.2d 79. The decision was reversed and the case remanded. 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973). The remand directs consideration of two claims of error not reached in the prior disposition. They are that: (1) The court erred in admitting evidence as to the appellant's 1961 income tax return (the charges in the indictment involved returns for the years of 1963, 1964 and 1965); and (2) the court erred in admitting evidence that the taxpayer reported an item of income in his 1964 return that was not received until 1965.

2

The 1961 return was admitted to show a pattern of overstatement of deductions. (Tr. 508-517, 600, 623-626). Internal Revenue Agent Beyers testified (Tr. 601-608) about certain non-allowable deductions in 1961 that were similar to deductions proven improper for the years of the indictment. No prejudicial error appears here.

3

The 1965 income item was shown to have been reported in the 1964 return only to show knowledge and wilfulness by the defendant and was not offered or admitted as proof of defendant's overstatement of expenses. (Tr. 505-507).

4

On the Supreme Court mandate and finding no error in the claims reviewed above, the conviction of the appellant is affirmed.

*

Honorable Charles L. Powell, Senior United States District Judge for the Eastern District of Washington, sitting by designation