(dissenting).

I am unable to agree with the conclusion reached in the majority opinion that the judgment of conviction must be reversed because “There was, under the law, a fatal variance between the pleading and the proof, * * * ”. Since the majority opinion does not consider any of appellant’s specifications of error save the one on which the judgment of conviction is reversed, I, likewise, will limit remarks to that one subject.

I concede that the majority opinion correctly states the rule in this Circuit “that materiality is an essential element of the crime of making a false statement; i. e., in order to gain a conviction under 18 U. S.C. § 1001, 1 the government must prove that the false statement was ‘material’ as that term has been defined in the case law.” That rule was enunciated by this Court in Brandow v. United States, 9 Cir., 1959, 268 F.2d 559 at page 565, where we stated:

I will first consider the allegations of the indictment. Count one in material parts states: [that defendant herein] “did, in a matter within the jurisdiction of the United States Treasury Department, make the following false and fraud-lent statement in an income tax return which he filed with the Director of Internal Revenue for the Internal Revenue Collection District of San Francisco: 2. That his farm income gross profits for 1955 were $130,248.24 and consisted of fruits and nuts sales of $78,932.50, cotton sales of $30,600.20, and nursery sales of $20,715.54, whereas, as he well knew, his farm income gross profits for 1955 totaled $165,029.40 and consisted of fruits and nuts sales of $85,-786.34, share crop sales of $7,970.05, cotton sales of $30,600.20 and nursery sales of $40,672.81.” Count two of the indictment in material parts states: [the defendant herein] “did in a matter within the jurisdiction of the United States Treasury Department, make the following false and fraudulent statement in an income tax return which he filed with the Director of Internal Revenue for the Internal Revenue Collection District of ,San Francisco: 2. That fruits .sales for 1956 were $32,209.53 and his cotton sales for 1956 were $26,476.42, whereas, as he well knew, his fruit sales for 1956 were $41,301.65, and his cotton sales for 1956 were $40,214.16.”

I recognize that the indictment does not in express language allege wherein the alleged false statements are material. However, an indictment is not required to set out all those elements of the offense which must be found by the court or jury before an accused may be found guilty.

The indictment specifically alleges in each count thereof that the appellant falsely and fraudulently in income tax returns filed by him for the years 1955 and 1956 understated his income in the respective amounts of $34,781.16 and $22,-829.86. The materiality of such false statements is readily apparent. Certainly such false statements were calculated to induce Treasury Department reliance or action. The falsity of the statements was established beyond reasonable doubt.

*78 The majority opinion appears to eon-cede that the allegations of the indictment sufficiently allege the offense denounced by Title 18 U.S.C. § 1001 , but reverses the judgment of conviction on the ground that there was a fatal varianee between the pleading in the indictment and the proof received, in that the indictment alleges “his [appellant’s] farm income gross receipts for 1955” and “his fruit and cotton sales for 1956”, and that the proof offered under the first indictment brought under Section 145 (b) of the Internal Revenue Code of 1939 and Section 7201 of the Internal Revenue Code of 1954 did not establish beyond a reasonable doubt that the income falsely reported belonged to the appellant, as E °/+?ÍC? the app+ellan^waS aC‘ qmtted of the charges set forth m the first indictment Because of such acquittal, the majority opinion assumes that the income reported by appellant for the two years in question was the income ox _ . , appe an s mo er. n my view, sue ac qmttal does not conclusively establish that the income reported by appellant was not his, nor does it conclusively establish that the income reported by appellant was the income of his mother. Based on such assumption, the majority opinion notes that the income tax returns filed by appellant only required that he report “his” income. The majority opinion then states, “It [income tax return] did not require that he report the amounts which constituted income to any other person, Appellant was in much the same position as a nominee of a stock brokerage account. He is not required to report as his own, income in which he has no beneficial interest.” The majority opinion continues, “Since, then, appellant only was required to report his own income, and since he only purported to do that, appellant s statement of . . ,, , ,, . ... his income is the only matter m which, as to him the Internal Revenue Service had a legitimate interest.” I am unable to agree that appellant’s statement of “his” income is the only matter in which the Internal Revenue Service had a legitimate interest. Had no income been reported from the extensive agricultural sources mentioned in appellant’s income tax returns, an investigation would undoubtedly have been commenced by the Internal Revenue Service to discover who should report such farm income. The fact that appellant reported some of the income from such sources would have a tendency to lull the Internal Revenue Service into the belief that all such income was being reported. The legitimate interest of the Internal Revenue Service extends not only to the appellant’s income but to whomsoever is required to report income from any source stated in the return.

As I see the problem, the false statementg ma(Je ^ & ^ h-g -n_ come ^ retums me¿t the standard of materialit Mi down in Brandow v. United & The false state. , , . , , ,, ments were material because they were caicujated to induce reliance or action by ^ Treag Department.

It appears to me that when the majority opinion states, “This Court refuses to construe the statute in question so as to permit a taxpayer to be convicted of reporting more taxes than he rightfully owes, regardless of what his intentions may have been” that this Court engrafts a new requirement for materiality not stated in Brandow v. United States, supra. The undisputed fact is that appellant falsely and fraudulently filed income tax returns grossly understating income from extensive agricultural sources. In my view, there is no further act that should be or reasonably can be required to complete a violation of Title 18 U.S.C. § 1001 .

satisfied that there is no fatal . . . , , ,, . , variance m this case between the plead- , „ „ in^an Pro°

I would not reverse the judgment of conviction on the specification of error upon which the reversal is based.

. Title 18 U.S.C. § 1001 .