Before GOODRICH, MCLAUGHLIN and KALODNER, Circuit Judges.
Following a jury trial, defendant-appellant Rudolph R. Bregman was found guilty*fn* of violation of Section 7206(4) of the Internal Revenue Code of 1954*fn1 which, inter alia, makes removal or concealment of property upon which a levy is authorized by Section 6331*fn2 of the Code a felony.
Bregman prosecutes this appeal from the District Court's judgment of sentence, entered following denial of his motion for judgment of acquittal.
Two questions are presented:
(1) Does Section 7206(4) make criminal a book entry which falsely reflects a change in the right to possession of property;
(2) Was there a fatal variance between the indictment and proof?
The one-count indictment charged the defendants as follows:
"That on or about October 30, 1954, at Philadelphia, in the Eastern District of Pennsylvania, Rudolph R. Bregman and Milton H. L. Schwartz, with intent to evade and defeat the collection of taxes assessed against Rudolph Motor Service, Inc., did knowingly and unlawfully remove and conceal eighteen (18) Strick Trailers, property of Rudolph Motor Service, Inc., upon which a levy was authorized by Section 6331 of the Internal Revenue Code of 1954,
"In violation of 26 U.S.C. Section 7206(4)."
Viewing the evidence in the light most favorable to the government, as the jury's verdict required, the critical facts may be stated as follows:
Bregman was president of Rudolph Motor Service, Inc. ("Rudolph"); his co-defendant Schwartz was its counsel. In the fall of 1953 Rudolph owed various federal taxes and revenue agents demanded their payment. Rudolph then had possession of, and record title to, the 18 Strick trailers referred to in the indictment. At that time, acting for Rudolph, Bregman and Schwartz promised the government agents to pay the taxes in arrears and urged them not to file tax liens against Rudolph's property, including the 18 trailers. The promise to pay was not fulfilled. On October 30, 1954 Bregman made false entries in the corporate records of Rudolph indicating that the 18 trailers had been "repossessed" as of that date.
Bregman here concedes that "there was sufficient evidence presented from which a jury could find that an entry was made on the books of Rudolph Motor Service, Inc. changing the right to possession" of the 18 Strick trailers, but he says, (1) making a false book entry which changes right to possession does not violate Section 7206(4), and, (2) if it does, he was only charged in the indictment with removal and concealment of "18 Strick Trailers, property of Rudolph Motor Service, Inc.", and not with making a false book entry with respect to the trailers.
The trust of Bregman's argument with respect to his first contention is that Section 7206(4) relates only to the physical removal or concealment of property and the courts, he says, have uniformly so held in construing its predecessor statute, Section 3321(a)*fn3 of the Internal Revenue Code of 1939, which was in turn derived from R.S. § 3450, as amended by the Act of June 26, 1936. He further urges that the fact that Section 7206(4) extended the provisions of Section 3321(a) to include offenses committed in order to avoid ...