356 F2d 469 Myers v. United States

356 F.2d 469

Sam G. MYERS, Appellant,
UNITED STATES of America, Appellee.

No. 21783.

United States Court of Appeals Fifth Circuit.

February 14, 1966.

Rehearing Denied March 15, 1966.

Newton B. Schwartz, Schwartz & Lapin, Houston, Tex., for appellant.

Morton L. Susman, Asst. U. S. Atty., Woodrow Seals, U. S. Atty., Jerald D. Mize, James R. Gough, Asst. U. S. Attys., Houston, Tex., for appellee.

Before JONES and BROWN, Circuit Judges, and DYER, District Judge.


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Of the many procedural errors Appellant asserts to have occurred in his trial for tax evasion, only one has any semblance of merit or requires discussion: permitting the jury to use a summary of the evidence prepared by a Government agent who testified. Though the submission to the jury in tax evasion cases, where the facts are often voluminous and complicated, of summaries of the evidence (in either narrative or tabular form) has often been approved, Ballantyne v. United States, 5 Cir., 1961, 293 F.2d 112, 116, rehearing denied, 294 F.2d 958, cert. denied, 1962, 369 U.S. 802, 82 S.Ct. 641, 7 L.Ed.2d 549; Conford v. United States, 10 Cir., 1964, 336 F.2d 285; Swallow v. United States, 10 Cir., 1962, 307 F.2d 81; Turner v. United States, 4 Cir., 1955, 222 F.2d 926, cert. denied, 350 U.S. 831, 76 S.Ct. 65, 100 L.Ed. 742; United States v. Kelley, 2 Cir., 1939, 105 F.2d 912; see 10 Mertens, Federal Income Taxation § 55A.22, at 142 (rev. ed. 1964), their preparation and use must be carefully handled by the trial Judge. Having carefully examined the complained of summary, the evidence it purports to cover, and the Court's instructions accompanying its submission to the jury, we find no impropriety in either the preparation or use here.


Although the summary does not include all the evidence, or Appellant's theories of the evidence, it does not purport to. See Flemister v. United States, 5 Cir., 1958, 260 F.2d 513. It does not contain anything not in the record, United States v. Ward, 3 Cir., 1948, 169 F.2d 460, and identifies in detail the evidence summarized, Lloyd v. United States, 5 Cir., 1955, 226 F.2d 9. Finally, in view of its contents and the Judge's instructions regarding its use, this summary did not usurp the province of the jury. Steele v. United States, 5 Cir., 1955, 222 F.2d 628.


All other contentions are devoid of merit.