Paritem Singh Poonian v. United States

Appellant was charged under two different indictments which were consolidated for trial without a jury. The first indictment, containing four counts, was brought under Section 145(b) of the Internal Revenue Code of 1939 and Section 7201 of the Internal Revenue Code of 1954. By that indictment, appellant was charged with having willfully evaded federal income taxes for the years 1953 to 1956, inclusive. The second indictment, containing two counts, was brought under Section 1001, Title 18 United States Code. By that indictment, appellant was charged with having made false and fraudulent statements in his income tax returns for those years. Count I of the second indictment charged that, as to 1955, the statements in the tax return were false in that appellant had understated gross profits from “his” farm income. Count *75 II of the second indictment charged that, as to 1956, the statements in the tax return were false in that appellant had understated “his” fruit and cotton sales.

The trial court, sitting without a jury, acquitted the appellant of the charges contained in the first indictment. The parties agree that the acquittal was based on the proposition that the government had…

(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…

294 F.2d 74 PARITEM SINGH POONIAN, Appellant, v. UNITED STATES of America, Appellee. No. 17068. United States Court of Appeals Ninth Circuit. August 24, 1961. 1 John V. Lewis and Richard H. Foster, San Francisco, Cal., for appellant. 2 Laurence E. Dayton, U. S. Atty., John Kaplan, Asst. U. S. Atty., San Francisco, Cal., for appellee. 3 Before HAMLEY and JERTBERG, Circuit Judges, and ROSS, District Judge. 4 ROSS, District Judge. 5 Appellant was charged under two different indictments which were consolidated for trial without a jury. The first indictment, containing four counts, was brought under Section 145(b) of the Internal Revenue Code of 1939 and Section 7201 of the Internal Revenue Code of 1954. By that indictment, appellant was charged with having willfully evaded federal income taxes for the years 1953 to 1956, inclusive. The second indictment, containing two counts, was brought under Section 1001, Title 18 United States Code. By that indictment, appellant was charged with having made false and fraudulent statements in his income tax returns for those years. Count I of the second indictment charged that, as to 1955, the statements in the tax return were false in that…