Before GOODRICH, KALODNER and STALEY, Circuit Judges.
Appellant, W. Herbert Hoover, was tried and convicted on three counts of violating Section 145(b) of the Internal Revenue Code of 1939 by wilfully and knowingly attempting to evade and defeat his income tax for the years 1948, 1949, and 1950. 26 U.S.C. § 145(b).
Appellant first attacks the sufficiency of the indictment, contending that none of the counts charge an offense. The first count*fn1 charged:
"That on or about the 10th day of January, 1949, in the Western District of Pennsylvania, W. Herbert Hoover, late of Woodbury, Pennsylvania, did wilfully and knowingly attempt to evade and defeat a large part of the income tax due and owing by him to the United States of America for the calendar year 1948 by signing and tendering to an Internal Revenue Service official at Altoona, Pennsylvania, a false and fraudulent income tax return, wherein said false and fraudulent income tax return he stated that his adjusted gross income for said calendar year was the sum of $2,936.93 and that the amount of tax due and owing thereon was the sum of $140.00; whereas, as he then and there well knew, his net income for the said calendar year was the sum of $23,513.00, upon which said net income he owed to the United States of America an income tax of $7,212.97, and which return was filed with the Collector of Internal Revenue for the First Internal Revenue Collection District of Pennsylvania.
"In violation of Section 145(b), Internal Revenue Code; 26 U.S.C., Section 145(b)."
The relevant portion of Section 145(b) states:
"* * * any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall * * * be guilty of a felony * * *."
The appellant contends that the "signing and tendering" of a false return charged in the indictment does not constitute a violation of Section 145(b).We disagree. Section 145(b) does not contain any limiting specifications as to what conduct will constitute a violation of the section. On the contrary, that which is prohibited is an attempt to evade or defeat taxes in any manner .In Spies v. United States, 1943, 317 U.S. 492, 63 S. Ct. 364, 87 L. Ed. 418, the Supreme Court had occasion to interpret Section 145(b) and made it clear that Congress did not "define or limit the methods by which a willful attempt to defeat and evade might be accomplished and perhaps did not define lest its effort to do so result in some unexpected limitation." 317 U.S. at page 499, 63 S. Ct. at page 368.
It is true that in Spies, the Court said that the "attempt to evade or defeat" had to be found in some affirmative willful action by the taxpayer, but the Court explicitly stated that it was not constricting the scope of the Congressional provision that an "attempt" may be accomplished "in any manner." So long as there exists affirmative and positive conduct coupled with a tax-evasion motive, a Section 145(b) violation exists. 317 U.S. at page 499, 63 S. Ct. at page 368. See United States v. Croessant, 3 Cir., 1949, 178 F.2d 96; United States v. Albanese, 2 Cir., 1955, 224 F.2d 879.
We think that the present indictment contains charges of affirmative actions which are sufficient to constitute a violation of Section 145(b). It states that the defendant signed his name to an income tax return with knowledge that the return did not correctly state his income, and tendered the return to an Internal Revenue Service official at Altoona. That the indictment does not explicitly state whether or not the tender was accepted is immaterial. The tender was a positive, affirmative attempt to evade taxes. We do not see why it should make a difference whether the Internal Revenue Service official accepted or refused the tender. Either would not make the defendant's attempt any the less an attempt.
Appellant's next contention is that the proof conclusively shows that the prosecution was wrongfully brought in the Western judicial district of Pennsylvania. There is no substance to this contention. The signing and tendering of a false and fraudulent return occurred at Altoona, Pennsylvania, which is in the Western District of Pennsylvania. Thus, the indictment and trial occurred in the same district in which the offense was committed.
It is true that the defendant's returns were filed at Philadelphia, which is in the Eastern District of Pennsylvania, but defendant was not indicted for or convicted of filing a false return. He was indicted for affirmative action, other than filing, namely signing and tendering a false return. The filing is not an essential element of a Section 145(b) violation. United States v. Albanese, 2 Cir., 1955, 224 F.2d 879, 882.
Next the appellant contends that he was improperly limited in his cross examination of government witness Yaskin. Yaskin was a special agent with the Intelligence Division of the Internal Revenue Service who, during the investigation of this case, had interviewed the appellant on three occasions. During these interviews, numerous questions were asked of and answered by appellant. On direct examination, Yaskin testified to some of appellant's answers. These answers tended to impute to appellant knowledge of falsity concerning his income tax returns. On cross examination, the defense sought to elicit from Yaskin additional answers given by appellant during the interviews in an effort to show that Yaskin's direct testimony presented an incomplete and inaccurate picture. Appellant now contends that he was restricted in his attempt to elicit additional answers and that the restriction was improper because "the opponent, against whom a part of an ...