Guy R. Pezznola v. United States of America, (Two Cases)

232 F.2d 907

• Court: Court of Appeals for the First Circuit
• Decided: May 31, 1956
• Docket: 5061_1
• Status: Published

Opinions

WOODBURY, Circuit Judge.

The defendant was sole proprietor of the enterprise known as Guy’s Garage prior to its incorporation as Guy’s Super Service Garage, Inc. His first name appears in the corporate title, he was an organizer of the corporation, he was a stockholder, and he was treasurer from its creation through the years here involved. He had access to the corporate records, and he with only Duggan, the president, now deceased, and Mrs. Simansky, the bookkeeper, had access to the cash drawer and the right to take cash therefrom. He signed the incorrect tax returns for the years'in question, and in each of those years the net income actually earned by the corporation was over three times the amount of net income reported-. He also made some of the sales which were later understated on the corporate books. Perhaps none of these things standing alone would sustain a conviction. Together, however, they seem to me-clearly to warrant the conclusion that Pezznola was not a mere mechanic employed by the corporation, or as its treasurer was a mere figurehead, but instead was an active, participating, corporate officer of managerial rank who signed the returns knowing full well that they were false and fraudulent.

Moreover, the above matters provide an illuminating background against which to view Mrs. Simansky’s testimony. From the record it is very evident that Mrs. Simansky was not only a reluctant but also an evasive witness. I cannot agree that on the written record her testimony is not susceptible of the interpretation that, although she could not remember in any given transaction whether Duggan or Pezznola directed her to make a false entry, each one of -them did so on various occasions. Her reluctance to be specific does not .affect this view, for this is not a case of a single isolated incident of falsification which might be lost in the haze of memory. There were nearly eighty falsified transactions on the corporation’s books. Her very choice of the alternative method of expression indicates to me that both Pezznola and Duggan were involved. I can hardly believe that she would have even mentioned Pezznola’s name, either in the alternative or otherwise, if he had never given her any direction to falsify the corporation’s books. Furthermore, even if her involved words when printed are susceptible of differing interpretations, their meaning when uttered, because of their complexity born of her obvious reluctance and evasiveness, depended in unusual degree upon intonation and demeanor observable to the trial judge and jury but not to us.

In this situation I conclude that there was sufficient evidence for the jury to find beyond a reasonable doubt that the defendant wilfully and knowingly attempted to defeat and evade taxes due from Guy’s Super Service Garage, Inc.

The judgments of the District Court are affirmed.

MAGRUDER, Chief Judge, concurs.