409 F2d 2 Julio Dejoris,-Cross, v. United States of America, -Cross.

409 F.2d 2

69-1 USTC P 15,887

Julio DeJORIS, Plaintiff-Appellant-Cross Appellee,
UNITED STATES of America, Defendant-Appellee-Cross Appellant.

No. 26600.

United States Court of Appeals Fifth circuit.

March 21, 1969.

Sidney A. Soltz, Miami, Fla., J. Leonard Fleet, Hollywood, Fla., for plaintiff-appellant-cross appellee.

Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Robert N. Anderson, Stephen H. Hutzelman, Attys., Dept. of Justice, Washington, D.C., William A. Meadows, Jr., U.S. Atty., Miami, Fla., Meyer Rothwacks, Gilbert E. Andrews, Attys., Dept. of Justice, Washington, D.C., for defendant-appellee-cross appellant.

Robert L. Steuer, Asst. U.S. Atty., of counsel.

Before PHILLIPS,1 BELL and MORGAN, Circuit Judges.


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DeJoris brought this action to recover $1,050 in cabaret taxes paid by him, on the ground that they were unlawfully assessed. The United States filed a counterclaim. From a judgment on a jury verdict in favor of the United States for $18,851.40 on its counterclaim, DeJoris has appealed.

Two issues are presented:


1. The sufficiency of the evidence to support the verdict; and


2. The correctness of an instruction given to the jury.


A review of the record leaves us without any doubt that the verdict was supported by substantial evidence and should not be disturbed.


Counsel for DeJoris did not object to the instruction given by the court, in accordance with the provisions of Rule 51 of the Federal Rules of Civil Procedure, nor at all. Neither did he request an instruction on the matter covered by the instruction which he now undertakes to assert as error. We are convinced that the instruction, if erroneous, which we do not hold, did not constitute such a plain, fundamental and prejudicial error that we should notice it, absent an objection in accordance with such Rule 51.




Of the Tenth Circuit, sitting by designation