United States v. William P. Johnson, Jr.

OPINION OF THE COURT

PER CURIAM.

The defendant, Johnson, was charged with willfully failing to file personal income tax returns for the calendar years 1960, 1961, and 1962. 26 U.S.C. § 7203. He pleaded not guilty and elected to be tried to the court without a jury. Johnson was a partner in an architectural engineering firm. He did not deny that returns were not filed when due but asserted that his failure to file was not willful. He contended that he did not file returns because he did not have funds available to pay the taxes and further that the filing of partnership information returns, 26 U.S.C. § 6031, negatived any proof of willfulness in his failing to file personal returns. Under the circumstances the issue of Johnson’s willfulness was one to be determined by the finder of facts. We cannot say there was insufficient evidence to support the finding of willfulness.

The United States introduced evidence, as we have indicated, tending to establish Johnson’s willfulness. This consisted in part of an Internal Revenue Service representative’s testimony that a search had been made and that Johnson’s 1955 and 1956 tax returns could not be found. Although those years were not in issue, the United States contended that the evidence was relevant in establishing a pattern of conduct. Johnson asserts that this is prejudicial. We rule to the contrary. Ayash v. United States, 352 F. 2d 1009 (10 Cir. 1965).

The appellant filed a motion in this court on June 17, 1967 for a new trial based on alleged newly-discovered evidence. On June 20, 1967 the appellant filed a motion to remand the case so that the court below might consider and pass on the previously filed motion, requesting us to retain jurisdiction of this .appeal pending the disposition of such motion by the court below. We will not retain jurisdiction and the appellant may make such motion in respect to a new trial based on newly-discovered evidence as he sees fit in the court below. We, of course, express no opinion as to the merits of his contentions.

The judgment of the court below will be affirmed.