244 F2d 541 United States v. J Gannon

244 F.2d 541

UNITED STATES of America, Appellee,
John J. GANNON, Defendant-Appellant.

No. 290.

Docket 24312.

United States Court of Appeals Second Circuit.

Argued May 13 and 14, 1957.

Decided May 23, 1957.

Seymour M. Waldman, of Waldman & Waldman, New York City (Louis Waldman, of Waldman & Waldman, New York City, on the brief), for defendant-appellant.

Morton S. Robson, Asst. U. S. Atty., S. D.N.Y., New York City (Paul W. Williams, U. S. Atty., New York City, on the brief), for appellee.

Before CLARK, Chief Judge, and SWAN and POPE, Circuit Judges.


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Defendant's receipts of income in 1951 were so substantial that his failure to file a return was completely inexcusable, and his only hope to upset his just conviction is based upon his claims of error in the admission of evidence. But these are without merit. Evidence of weekly and other substantial receipts from his employers as claimed "expense" money was directly admissible as an integral part of the plaintiff's case, since the size, amount, and circumstances of these receipts were sufficient to permit the jury to believe that payments by way of compensation were included. The prosecution did not have to prove specific amounts, and the defendant made no attempt to disclose that he spent these sums or any part for the benefit of his employers. And evidence of similar omissions to file a return in six prior years is relevant on the issue of his intent; the multiplication of instances tends to negative any element of innocent intent. 2 Wigmore on Evidence § 302, p. 196 (3d Ed.1940); United States v. Brand, 2 Cir., 79 F.2d 605, 606, certiorari denied Brand v. United States, 296 U.S. 655, 56 S.Ct. 381, 80 L.Ed. 466.