INGRAM v. UNITED STATES

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Argument of Wesley R. Asinof

Chief Justice Earl Warren: Number 457, Horace Ingram, L. E. Smith, Mary Law et al., Petitioners, versus United States of America.

Mr. Asinof.

Mr. Wesley R. Asinof: Mr. Chief Justice, and may it please the Court.

In this particular case, the petitioners were originally indicted in the District Court for the offense of felony, not a misdemeanor but the offense of felony for a conspiracy to avoid and evade the payment of federal tax relating to wagering.

Chief Justice Earl Warren: Relating to what?

Mr. Wesley R. Asinof: Wagering, wagers.

There are only four of these petitioners before the Court.

Originally, there were 31 defendants indicted.

Numerous of the defendants were acquitted.

Justice Felix Frankfurter: How many were tried at the same time?

Mr. Wesley R. Asinof: 26.

Justice Felix Frankfurter: 26.

Mr. Wesley R. Asinof: And, there were a group of them acquitted, some were convicted.

Justice Felix Frankfurter: How many lawyers for the defendants?

Mr. Wesley R. Asinof: They were approximately eight or nine counsel in the trial of this case.

The case consumed almost a month to try, a little less than four weeks, four full weeks.

Boiling all of the facts of the case, and the long involved facts over the period of four weeks, down to its very essentials, I think that I could fairly state that the evidence amounted to this.

As to the petitioner Horace Ingram, the fact showed that he was the banker or the principal involved in a lottery known as the numbers game.

The petitioners Rufus Jenkins, Mary Law and L. E. Smith can fairly be shown by the evidence to have been employees of Horace Ingram, not principal but employees.

Mary Law, I believe, the -- the only evidence that connects her at all with the offense is that, in one occasion, she was found to have been checking tickets at a lottery headquarters and, likewise, the evidence seems to be abundant as to the petitioner Smith, to that affect and probably that he performed some other errands in and about the lottery business.

And, as to the petitioner Rufus Jenkins, I don't know exactly what connection the evidence actually would show that he had or what part he played, but it at -- at the very least, we'd say that it does not show him to be a banker.

Justice Charles E. Whittaker: Didn't the Court of Appeals and the District Court find him to be a principal?

Mr. Wesley R. Asinof: That, if Your Honor please, was because of the fact that the jury did convict him upon the substantive count of failing to pay the tax, as well as the felony conviction on a conspiracy.

And, we say that it -- that that finding, of course, was completely without evidence, that there was no evidence to support any finding that Rufus Jenkins was a principal in this particular enterprise.

Now, we do admit and we concede that, as to Horace Ingram, that the evidence is sufficient to support the misdemeanor conviction of failure to pay, but --

Justice Felix Frankfurter: Did the evidence bear on the profit of the -- of the petitioners other than Ingram?

Mr. Wesley R. Asinof: No, Your Honor.

Justice Felix Frankfurter: What their take was out of this profit and --

Mr. Wesley R. Asinof: No, Your Honor.

Justice Felix Frankfurter: -- was charged?

Mr. Wesley R. Asinof: It did not.

Justice Felix Frankfurter: Nothing at all?

Mr. Wesley R. Asinof: Nothing.

Justice Felix Frankfurter: We don't know whether they got $10 a day or whether a sizable share in the profit?

Mr. Wesley R. Asinof: Your Honor, there was no evidence that I can recall of that particular fact.

The evidence in the case seemed to be based upon the fact, altogether, that there was a large-scale lottery operation being conducted in this case.

And, other than that, the Government, in order to try to pass some federal liability upon the petitioners in this case, as distinguished from the state violation for operating a lottery, attempted to show that, in the operation of this lottery, that the defendants and the alleged conspirators, in carrying out this lottery, concealed their activities.

There was no evidence of any concealment of funds.

There was no evidence of any concealment of items which would be related to tax or which would be related directly to tax or to income in any way, but the concealment was shown to have consisted of having cars painted different colors or changing headquarters from day to day and things of that nature that the Government contended were concealment and, of course, we admit that they did show concealment.

Justice Felix Frankfurter: What -- what other testimony was there, except that interesting item that the income, or was it the gross, was reduced to $3,500 a day?

Mr. Wesley R. Asinof: That was --

Justice Felix Frankfurter: What else was there bearing on the size of the operation?

Mr. Wesley R. Asinof: I do not believe, if Your Honor please, that there was any other evidence as to the size of the operation with -- with respect to anything except that one statement, and that was a statement attributed to have been made by Ingram to one of the state investigators sometime, I believe, a year -- about a year before the actual raid was made on March 27th, 1957.

And, that was an admission that he was supposed to have made at that time that his business had been reduced to $3,500 a day.

Independently of that, I do not believe that there is any other evidence in the record.

Justice Felix Frankfurter: And you say there is nothing in the record to indicate what the -- what the monetary reward of Smith, Mary Parks Law, and Rufus Jenkins were.

Mr. Wesley R. Asinof: That's right.

Justice Felix Frankfurter: You say the -- the record is bad.

Mr. Wesley R. Asinof: The record is bad.

Justice Felix Frankfurter: Whether they, being a very small -- whether they had a very small remuneration or whether they had a good-for-sized chair in it.

Mr. Wesley R. Asinof: Well, that is completely solemn.

There is no -- the -- the entire evidence in the case, as I stated, for the period of four weeks, was devoted to the operation of the lottery and the only time tax was ever mentioned was by one witness who was a Government witness to the effect that the defendants had not registered or paid their tax.

That was --

Justice Felix Frankfurter: But was there anything in the record from which a jury could barely draw the inference that this was a -- this was a large-scaled money making enterprise and that the three people, three petitioners here, other than Ingram had an important stake in the profit making.

Mr. Wesley R. Asinof: No, Your Honor.

Justice Felix Frankfurter: Not a word, you say?

Mr. Wesley R. Asinof: No, Your honor.

That was -- apparently, the Government was not concerned with that at that particular time.

That is the reason that we -- that is --

Justice Felix Frankfurter: Was there --

Mr. Wesley R. Asinof: -- the compliant that we are making.

Justice Felix Frankfurter: Was there any other -- was there any evidence to indicate the relationship of those three that I've named to Ingram showing that they were -- that they must have been in the know both of what was going and what was done or what was not done?

Mr. Wesley R. Asinof: Well, now, of course the Government contends that, in as much as this thing went on over a period of a year-and-a half or two years, that --

Justice Felix Frankfurter: You don't --

Mr. Wesley R. Asinof: -- the showing --

Justice Felix Frankfurter: You don't deny that?

Mr. Wesley R. Asinof: No, Your Honor.

We -- we don't --

Justice Felix Frankfurter: You guys --

Mr. Wesley R. Asinof: -- we don't deny that.

Justice Felix Frankfurter: -- are clear on that?

Mr. Wesley R. Asinof: Yes, sir.

Now, --

Justice Felix Frankfurter: Because of that, is it suggested that, therefore, they must have known what Ingram was about?

Mr. Wesley R. Asinof: The Government contends that, Your Honor.

The Government contends that, because of the fact that they were so closely connected in the lottery headquarters in checking up tickets, that they must have known that he wasn't paying the tax.

I believe that that's what the Government bases their case upon.

Justice Felix Frankfurter: And it's one of your chief burdens to destroy that argument, is it not?

Justice John M. Harlan: Was there any proof in the record to the tax was due?

Mr. Wesley R. Asinof: The only proof in the record that a tax was due was the evidence of the fact that these persons were engaged in the operation of a lottery in one capacity or another, and it's for that reason that they should have registered and paid the excise tax of $50 per year.

Justice Felix Frankfurter: Well, is there any question that, under the law, the excise tax was due?

Mr. Wesley R. Asinof: No, there is no question, Your Honor.

Justice Felix Frankfurter: And there is no question that it wasn't paid.

Mr. Wesley R. Asinof: That's right, except as to the -- in other words, we do not raise the point as to Ingram --

Justice Felix Frankfurter: I understand that.

Mr. Wesley R. Asinof: -- but as to the other defendants.

Justice Felix Frankfurter: I mean, the effect of -- of liability for a nonpayment --

Mr. Wesley R. Asinof: No question.

Justice Felix Frankfurter: -- of --

Mr. Wesley R. Asinof: No question.

Justice Felix Frankfurter: -- of federal -- of wages -- wages for the tax.

Mr. Wesley R. Asinof: That's right.

We raise no question there.

Now, in the Court of Appeals and the trial judge relied very heavily upon the Spies case on the question of concealment as to whether or not evidence of concealment was sufficient to show a conspiracy to evade and defeat the payment of a federal tax.

Now, of course, the Spies case was a substantive case.

It was not a conspiracy.

Spies had admitted, at the opening of the trial, that he had failed to pay the tax and that the tax was due and, therefore, had admitted a misdemeanor.

The only question in the Spies case was whether evidence of concealment was sufficient to raise the offense from the degree of a misdemeanor of failing to pay to the degree of a felony of attempting to evade and defeat its payment.

And, of course, this Court held that evidence of concealment was sufficient to show that.

But, now, in the -- in the present case, we say that the present case is inapplicable to the Spies case for these three different reasons.

First, the only question in the Spies case involved was wether a misdemeanor or a felony applied and, therefore, the evidence of concealment was necessary for the Government to prove in order to raise it from a misdemeanor to the felony.

Second, we say that the concealment in that case was of items directly related to income.

In other words, the -- the falsification of books or the hiding of income or anything of that nature directly related to income would tend to raise it from a misdemeanor to a felony.

And, the third thing that distinguishes it is that that charge was a charge it -- was a substantive charge and concealment was one of direct elements involved in the charge against Spies to raise it from a misdemeanor to a felony, whereas, in the case at bar, being a felony conspiracy and the evidence concededly showing that these other the petitioners were not, or at least two of them, perhaps maybe the third one, but at least two of them, it's been conceded by the Court of Appeals and conceded when the jury found them not guilty, that they were not themselves liable to the payment of tax.

And, here, the Government comes in and attempts to use evidence of concealment as direct evidence to show that they had violated the federal law, whereas, in Spies case, that situation was entirely different.

Justice John M. Harlan: This is one of the facts that brought this establishment up under Georgia law.

Mr. Wesley R. Asinof: That's the part that I'm getting to, if Your Honor please.

Under Georgia law, it is a violation.

It is a misdemeanor to operate a lottery under Section 26-6502 of the Georgia Code.

I've set that out in my brief.

It's a misdemeanor under Georgia law, and the point we raise is this.

That concealment, in this case, if the Government relies upon concealment as evidence to show that the federal law has been violated, then the Government's case must fall because concealment was a necessary element to the successful operation of the -- in order to have violated the state law.

Justice Felix Frankfurter: So, if that's right --

Mr. Wesley R. Asinof: Now --

Justice Felix Frankfurter: -- why do you treat the two disjunctively?

Mr. Wesley R. Asinof: If Your Honor please, perhaps I can explain my position in this way, that -- that, under the state law, it is a misdemeanor admittedly and, being a misdemeanor and being a violation of law, therefore, concealment would be considered to be necessary in order to be able to evade the state law and to operate a lottery.

It couldn't be operated openly unless it was operated in violation of state law.

Justice Felix Frankfurter: Now, that would -- that would be proof, certainly, of Ingram.

Mr. Wesley R. Asinof: Yes, sir.

Justice Felix Frankfurter: Now, would it be true in your view?

Would it follow inferentially that it would be true as to these other three even under state law?

Mr. Wesley R. Asinof: Yes, sir.

That is the point that we are raising.

It certainly would be true as to them for this reason.

They admittedly were not required or liable for the payment of any federal tax and, therefore, how could their concealment be said to be any evidence of a -- of -- of the other.

Now, I have -- my time is up right now and I want to say --

Chief Justice Earl Warren: We'll recess now.

Mr. Asinof, you may proceed.

Mr. Wesley R. Asinof: Mr Chief Justice and may it please the Court.

On the question of concealment, we say that there can be no logical inference that can be drawn in this case but that the concealment was for -- solely for the purpose of avoiding detection, prosecution, and punishment from the state authorities.

And, I make that statement for this reason.

The operation of a lottery is a violation of the laws of the State of Georgia, and all these persons who were involved in the operation of the lottery in any capacity were liable as principals under the state law.

All the petitioners in this Court were liable under the state law.

We also contend that, under the ruling of this Court in Kahriger, that three of these petitioners would certainly not have been liable for the payment of any federal tax and, therefore, it would be illogical to hold that concealment on their part was for the purpose of avoiding or evading the payment of federal tax when there was no tax liability there and that, consequently, concealment can only be considered, logically, to be for the purpose of having -- for escaping detection, prosecution, and punishment from the state authorities.

And, we say this also with --

Justice John M. Harlan: You mean, as a matter of permissible inferences that a jury could draw from this record?

Mr. Wesley R. Asinof: Yes, Your Honor, and I also believe as a matter of law.

I believe as a matter of law, I don't --I don't believe that -- I don't believe that any jury could draw the inference in this case or would be permissible to draw an inference in this case that concealment was for the purpose of avoiding detection under the federal law when there was no liability on their part to the payment of any federal tax.

Justice John M. Harlan: It might make a distinction between the so-called banker running in that respect.

Mr. Wesley R. Asinof: Yes, there could be.

Justice John M. Harlan: There could be.

Mr. Wesley R. Asinof: Now, of course, I'd like to --

Chief Justice Earl Warren: But if they were employees of the banker, might they not have his interest in mind in concealing the --

Mr. Wesley R. Asinof: Yes, Your Honor.

That is highly possible and I've thought of that also, but there is no evidence that the concealment was for that purpose and that is our point that -- that -- the --

Chief Justice Earl Warren: They'd have to read what is in a man's mind when --

Mr. Wesley R. Asinof: No.

Chief Justice Earl Warren: -- he's in an illegal project?

Mr. Wesley R. Asinof: Well, of course it would be illegal under state law, but we said -- we say not illegal under federal and that, consequently, there would be no evidence that the concealment was for that purpose because it was not consuming of items directly related to tax.

Justice Felix Frankfurter: It was -- it was rather essential in order to keep out of the net of the state to have this enterprise carried on secretly, illicitly.

Mr. Wesley R. Asinof: Yes, Your Honor.

Justice Felix Frankfurter: And not to make a disclosure to the fact that it was being carried on.

Is that right?

Mr. Wesley R. Asinof: That's correct, Your Honor.

Justice Felix Frankfurter: Now, if there had been a -- if the federal law had been obeyed, Ingram would have to write -- make a public statement, in effect, that “I am carrying out a lottery,” wouldn't he?

Mr. Wesley R. Asinof: Yes, Your Honor.

Justice Felix Frankfurter: That being so, why is it a non-reasonable inference that these other people, no matter what their state is in relation to his business was, that these other people must therefore have known that he didn't comply with federal law because if he had complied with federal law, the goose would have been cooked.

Mr. Wesley R. Asinof: That's right.

Justice Felix Frankfurter: Well, why doesn't that -- why isn't that practical fact a sufficient basis for inference by the jury that these people knowingly helped him in carrying on a business in -- in evasion of a federal duty?

Mr. Wesley R. Asinof: Because the payment or nonpayment of the federal tax was a question that was up to Ingram himself and not --

Justice Felix Frankfurter: But -- but an agreement --

Mr. Wesley R. Asinof: -- up to these --

Justice Felix Frankfurter: That is true.

They could not be convicted.

It could not -- they could not permit the substantive federal offense.

Well, then, they were not within its purview, but does that mean they couldn't have conspired with him that he should evade --

Mr. Wesley R. Asinof: It doesn't mean --

Justice Felix Frankfurter: -- his duty?

Mr. Wesley R. Asinof: -- it doesn't mean, if Your Honor please, that they could not have conspired with him, but it means that there is no evidence of the fact that --

Justice Felix Frankfurter: I am suggesting the evidence is derived from the fact that they -- that they helped him to carry on a business.

They helped him to carry on a business in disobedience to the federal duty to make a disclosure and pay a tax, and they knew that they were helping consciously to help him evade the federal law because it requires just less than moronic intelligence to know he couldn't have made the disclosure without, as I say, putting it onto his business.

Mr. Wesley R. Asinof: Well, he could have -- he could have been paying his tax.

There's no evidence to the effect that they knew.

Justice Felix Frankfurter: He could not have paid his tax and registered could he?

Mr. Wesley R. Asinof: He could have, Your Honor.

Justice Felix Frankfurter: And -- and not come -- not an unfair practice if it were to the state authorities?

Mr. Wesley R. Asinof: No, Sir.

That would be up to the state authorities to find that from the federal.

Justice Felix Frankfurter: Would it be difficult for them, if he actually -- if he actually registered?

Just what is the process?

Where would he be doing that?

Mr. Wesley R. Asinof: He would register at the -- at the Director of Internal Revenue.

Justice Felix Frankfurter: Where?

Mr. Wesley R. Asinof: In Atlanta.

Justice Felix Frankfurter: In Atlanta, and wouldn't that be accessible to the state authority?

Mr. Wesley R. Asinof: Yes, Your Honor.

Justice Felix Frankfurter: Well, is it an awfully big Jump?

Is it too big a jump?

That's the real question.

Mr. Wesley R. Asinof: Well --

Justice Felix Frankfurter: Is it too big a jump that that is as much evidence as though he had told these fellows “now, you want to keep -- be very careful because I don't want to get in trouble with the federal authorities”?

Suppose there is evidence to that extent.

Mr. Wesley R. Asinof: If there were evidence to that extent, Your Honor, they --

Justice Felix Frankfurter: You think that --

Mr. Wesley R. Asinof: -- the Government would have made out a case.

Justice Felix Frankfurter: That would have been a conspiracy, --

Mr. Wesley R. Asinof: Yes, Your Honor.

Justice Felix Frankfurter: -- although they could not be prosecuted for the substantive offense.

Mr. Wesley R. Asinof: That's right.

Justice Felix Frankfurter: Now, what I'm suggesting to you is that are they saying “be very careful because I see that I don't get in the clutches of the federal law” if he, in effect, -- in effect, told them that, by their knowledge -- inevitable knowledge that he'd be -- did make a disclosure to the District or -- what is he called?

Mr. Wesley R. Asinof: The Director of Internal Revenue.

Justice Felix Frankfurter: The Director in Atlanta, the state authority would be wise to.

Mr. Wesley R. Asinof: Well, of course, state authorities don't often.

There are -- it -- it is a matter of common knowledge, Your Honor, that some of these operators in various states do register and pay their tax and some do not.

And, of course, I don't know that that would be imputed to them whether he had or had not.

We -- we liken it to the -- to the same type of a case if a man runs a large department store and he has many agents working for them sales people and cashiers and otherwise, and the fact that he evades and defeats the payment of his income tax, that no inference can be drawn that the sales people who work for him are assisting him in that or have entered into a conspiracy with him to do that because of the fact that they work for him.

And, we say --

Justice Felix Frankfurter: Well, I -- I suggested the difference between a department store and this because a department store owner isn't under an almost inherent compulsion or temptation, to put it mildly, not to pay.

That isn't true of a -- that isn't true of -- in carrying on any legitimate business.

The fact of the illicit cashing of the business, under Georgia Law, gives important proof that he doesn't want to give the publicity that he would be afforded by the state authorities if he did comply with the federal Act.

Mr. Wesley R. Asinof: That's right.

Justice Felix Frankfurter: Is that right?

Mr. Wesley R. Asinof: Yes, Your Honor.

Well, we contend that the evidence doesn't indicate that and that -- that there is no inference that can be drawn from that.

If Your Honor please, --

Chief Justice Earl Warren: Mr. Asinof, doesn't -- doesn't that same law require him to keep posted in his -- his place of business a copy that receipt?

Mr. Wesley R. Asinof: The law does require that, but that was not charged in the indictment in this case as one of the -- either the objects or --

Chief Justice Earl Warren: Yes.

Mr. Wesley R. Asinof: -- there was no evidence of that.

Chief Justice Earl Warren: Yes, but if the law did require that then it wasn't done and those who are working with him in this illicit project were trying to protect his interest, might -- may not be protecting him against --

Mr. Wesley R. Asinof: Well, that --

Chief Justice Earl Warren: -- against detection for not having -- having posted in his place of business.

Mr. Wesley R. Asinof: Well, now, that of course, if there was evidence that they knew that it had not been posted, that probably would be evidence of the fact that they knew that he hadn't paid his --

Justice Felix Frankfurter: Is that --

Mr. Wesley R. Asinof: -- federal tax.

Justice Felix Frankfurter: Is that a separate offense, --

Mr. Wesley R. Asinof: Yes, Your Honor.

Justice Felix Frankfurter: Not to post?

Mr. Wesley R. Asinof: Yes, I believe it is.

Justice Felix Frankfurter: And what is the punishment for that?

Mr. Wesley R. Asinof: I believe that's a misdemeanor.

Chief Justice Earl Warren: Is there any question about whether it was posted or not?

Mr. Wesley R. Asinof: No, Your Honor, there's no evidence of that.

Chief Justice Earl Warren: Either way?

Mr. Wesley R. Asinof: No, Sir.

Now, we contend this also.

I'd like to make this point clear to the Court.

That Ingram, the banker, cannot be guilty of a conspiracy because he cannot conspire with himself.

Just merely the fact that he would be required to pay the tax would not make him guilty of a conspiracy.

If -- if the Court finds that he was required to pay the tax and of course -- and if he was the only one that did not conspire with any of these other persons who were engaged as employees, then, of course, he could not be convicted of the conspiracy, and that is the only thing that he was convicted of.

Now, one other thing I would like to bring to the attention of the Court and that is this, that there are two different types of conspiracies.

There's a main conspiracy and a subsidiary conspiracy, and these rules were laid down in the Grunewald, Lutwak, and Krulewitch cases by this Court.

And, the teaching of those cases means this.

That if the object of a conspiracy embraces concealment as a necessary ingredient of the substantive offense itself, then concealment belongs to the main conspiracy.

Whereas, if the object of concealment is to escape detection, prosecution, and punishment, it -- it is merely a subsidiary conspiracy.

Now, the Court of Appeals in this case held that the purpose of the concealment was to avoid detection from -- detention, prosecution, and punishment.

If that be the case, then, of course, it is merely a subsidiary conspiracy to conceal.

It was not a part of the substantive offense -- or the -- the object of the conspiracy itself.

And, being subsidiary, then the proof of it would not tend to prove the main conspiracy itself and there is no evidence in this case which would prove the main conspiracy itself.

Mr. Chief Justice, I would like to reserve the remainder of my time for rebuttal.

Chief Justice Earl Warren: Yes.

Justice Potter Stewart: Just before you sit down, Mr. Asinof, if I may, may I -- I just want to clear.

Do you question the accuracy of the instructions to the jury given by the trial judge?

Mr. Wesley R. Asinof: No, Your Honor.

We don't -- we don't think that the instruction would be involved because we contend that the evidence was not sufficient to support that.

Justice Potter Stewart: Assuming the evidence was sufficient, do you think the instructions were inaccurate --

Mr. Wesley R. Asinof: Instruction -- the instructions --

Justice Potter Stewart: -- statement of the law?

Mr. Wesley R. Asinof: Well, we -- we didn't -- we didn't accept the instructions --

Justice Potter Stewart: You did not?

Mr. Wesley R. Asinof: -- and I think they were correct, but I do not believe the evidence were sufficient to support them.

Justice Potter Stewart: Thank you.

Chief Justice Earl Warren: Mr. Evans.

Argument of J. Dwight Evans, Jr.

Mr. J. Dwight Evans, Jr.: Mr. Chief Justice and may it please the Court.

Some of the gambling terminology used in this case is different from that in Calamaro.

In Calamaro, there was involved the writer, the writer being the person who receives the wager from the beter for and on behalf of the banker, the person you has the financial risk in the wager.

The evidence indicated that the pickup man involved in that enterprise was simply a messenger.

This Court held in Calamaro that the pickup man was not liable for the special stamp tax since he was not, within the meaning of the statute, receiving wagers.

Now, there was expert testimony in this case as to a typical large lottery operation in Atlanta.

In Atlanta, you have the writer and the banker.

A pickup man was very different.

A pickup man would be a writer who would supervise other writers.

He would recruit writers and it's his job to see that the -- the tickets were all picked up by a certain time so that they would be in the hands of trusted personnel of the banker before the winning number became known in Atlanta.

There's also a ribbon man.

Now, a ribbon man, in essence, is a banker who is laying-off bets with another larger banker and his --his compensation is the weigh of percentage from the other banker.

There is testimony as to that, expert testimony as to that.

Now, the mere messenger which would be comparable to the pickup man in Calamaro was called a drag man, a sack man, or a pickup boy and it was his job to carry the tickets from points in Atlanta, usually what they called a stash, a place where they hid the tickets or after they were delivered to him from the pickup man, to carry the tickets from Atlanta to a rendezvous outside of Atlanta in the countryside.

And, there, the drag man or the sack man, as he's called, would deliver these tickets to the headquarters personnel and, sometimes, to the banker at this rendezvous location.

Now, there was a check up -- what they called, in this case, a check up headquarters.

That is the -- was a place out in the countryside in Atlanta, a secret place, where the tickets were checked over to find if there were any winning numbers and to make up the records necessary for settling accounts between the writers, the pick up man, and the banker.

This location was, it was testified, usually kept secrets from the mere messenger because of the fact that the messenger, if apprehended, would be inclined to cooperate with the law enforcement officers and reveal the location of this secret headquarters out in the country.

This headquarters changed periodically so that it wouldn't be detected.

The headquarters -- there were also involved in the operation in Atlanta people called the headquarters personnel.

These people were certainly more than mere clerks.

They knew the location of the secret check up headquarters where the tickets were going over and the records prepared for the simple reason that they work there.

They had to be personnel who were close to and trusted by the banker for the simple reason that, at the time that they worked with the tickets, was a time after the winning number had become known and, if their interests weren't -- didn't coincide with those of the banker, they could slip in, on their own behalf, winning numbers, and this could be quite ruinous to the banker.

It was testified by expert witness that the headquarters personnel usually worked directly under the supervision of the banker or under the supervision of one of the banker's trusted helpers.

Now, in this case, the petitioners Ingram and Jenkins were convicted of the offenses named in Counts 2 and 3, that is, the failure to pay the special stamp tax and the failure to register.

And, the Court of Appeals below indicated that, in that Court, petitioners Ingram and Jenkins abandoned appeal on those issues.

From -- as Mr. Asinof has conceded, the record very clearly indicates that Rufus -- rather, Horace Ingram was a banker.

There is also, we submit, evidence that Rufus, Ingram was a principal of some sort in this operation.

There was a testimony that could -- the jury could infer and find, reasonably, that Rufus Jenkins was either a pickup man and, as a pickup man, he would operate as a writer or a ribbon man, a banker laying-off bets with a Horace Ingram and receiving a commission.

There was evidence that, in 1957, Horace -- Rufus Jenkins was under surveillance by the state and the federal officers, that he was seen repeatedly at a place where it was suspected that there was lottery, numbers lottery, going on.

That he was at this location once and noticed the federal officers and took flight, that there was a chase.

Some jump boys who were diversion boys that where, for diversionary purposes, jumped out of the car and ran.

There was a chase.

After Rufus was caught, there was no lottery found.

But, subsequently, a couple of weeks later, in talking with the officers, Rufus Jenkins admitted that, at the time when the jump -- boys jumped out of the car, they had left the bag of lottery next to him on the sit of -- of his car.

There was testimony that Rufus Jenkins was seen at Horace Ingram's garage, which was the city headquarters for this lottery, the place where -- what was called the money headquarters where the money settlements were made to the scene at this place repeatedly, that he was seen counting money with Horace Ingram, that there is also evidence that he was referenced on bond for some of the people.

There's testimony as to that.

There was also testimony that he had a -- when he had gone away for a short time, that he had turned over some automobiles that he used in his lottery business to Horace Ingram, and Horace Ingram had sold the cars and that Rufus Jenkins was upset about this.

Now, as to petitioners Smith and Law, they were only convicted of the conspiracy offense, the conspiracy to evade the excise tax and the special stamp tax.

They were convicted along with Horace Ingram and Rufus Jenkins of conspiracy.

And, we submit that the evidence shows that petitioner Smith was Horace Ingram's right-hand man in his operation and that Mary Law was also a very important and knowledgeable participant in this lottery.

Both of them were involved in the inner circle of this lottery.

Both of them worked in the check-up headquarters.

Now, as Mr. Asinof has stated, the jury clearly was instructed correctly as to this Court's holding in Calamaro as to the elements of conspiracy and that it could convict petitioners' conspiracy only upon finding beyond a reasonable doubt that evasion of the federal wagering taxes was one of the objectives of conspiracy.

There was abundant direct evidence that the petitioners and others conspired together and were operating numbers lottery in violation of state law.

We submit there is also evidence from which the jury here could find that evasion of federal taxes was also an objective of this conspiracy.

This was not a small fly-by-night operation.

This was a large operation.

There was some question as to any evidence as to the size.

There is more than just the evidence regarding the statement by Horace Ingram that he had, one time, been reduced to $3,500 a day.

There was testimony that a large operation in Atlanta would usually have between $2,000 to $3,000 gross a day.Horace Ingram was complaining about being reduced to $3,500.

Also, on the raid on March 27th 1957, on the Horace Ingram's garage in Atlanta, the -- there was a good -- a large quantity of typical lottery paraphernalia found.

This garage was an automobile repair garage.

There were large quantities of brown paper bags found which were used extensively in the numbers lottery to carry the tickets.

Hundreds of these bags were found.

There were -- there was a large quantity of the three-by-five tablets of paper which were used in Atlanta to write the numbers on.

There were also -- there was also found large quantities of the other supplies that are used in a lottery operation.

Also, --

Justice Potter Stewart: Well, isn't --

Mr. J. Dwight Evans, Jr.: -- in --

Justice Potter Stewart: -- isn't it conceded by the petitioners that the evidence was very clear to support a finding that there was a large-scale numbers operation going on and -- and an effort on -- by all parties concerned in it to conceal it?

Isn't that all conceded here?

Mr. J. Dwight Evans, Jr.: Well, I thought it was but, in Mr. Asinof's answer to Mr. Justice Frankfurter, I thought he gave the impression that the only evidence of a large-scale operation was the $3,500.

When the -- in the raid that -- on March 27th on the garage on petitioner's -- rather, petitioner Horace Ingram and defendant Christian, who is not a party here but was a party below, there was a total of $9,000 -- almost $9,000 found.

There is also testimony by one of the messengers that was apprehended and testified, testified that he worked for Horace Ingram in 1954, that he carried usually between 75 and 80 bags of lottery to the secret rendezvous location with Ingram Smith.

And, at this would -- there was testimony that would indicate that this would represent about 75 to 80 writers, the -- each bag representing the tickets from a writer.

Justice John M. Harlan: Are you saying, as to the conspiracy to evade tax, was a gambling tax?

Mr. J. Dwight Evans, Jr.: That's right.

Justice John M. Harlan: What do you say the Court of Appeals' statement that it was not necessary for the Government to prove, in connection with that charge, either that a tax was due or that the tax had not been paid?

Mr. J. Dwight Evans, Jr.: Well, of course in this case, Your Honor, there is evidence that the tax --

Justice John M. Harlan: And I read you brief to --

Mr. J. Dwight Evans, Jr.: -- was paid.

Justice John M. Harlan: I beg your pardon?

Mr. J. Dwight Evans, Jr.: The tax was paid.

We believe that all of the -- all the Court of Appeals is indicating there is that you don't have to show in a conspiracy that they were successful in obtaining the objective.

However, in this case, we don't have that problem because, in this case, there is testimony by representatives in the Internal Revenue Service that none of the defendants who were named in the indictment nor any of the conspirators, at any time, paid the excise tax, the special stamp tax, or registered.

Justice John M. Harlan: Well, the pickup man didn't have to.

Mr. J. Dwight Evans, Jr.: Well, that's right, Your Honor, but there was testimony that none of -- that no one did.

Justice John M. Harlan: Well, my question to you is can you hold the pickup man on the theory that they were engaged in a conspiracy to evade taxes, meaning the banker's taxes, without proof that it -- there is some proof that a tax was due and that it was not paid.

Mr. J. Dwight Evans, Jr.: Well, we believe that the evidence in this case shows a lottery was being operated, that they were taking in money, the statement about $3,500.

There's also a testimony by a newspaperman in Atlanta who was surveying -- surveilling the garage there in Atlanta, Horace's garage, and he saw Horace and that, one time, bring in two stacks of money over a quarter high.

Justice John M. Harlan: But the Court of Appeals did not sustain the conviction, as I read its opinion, on that ground.

The charge was, as you have -- as you have vindicated, namely, that they could infer from this evidence that the tax had not been paid, and so forth.

But, the Court of Appeals did not uphold it on that ground and, as I see it, they never evaluated the record in terms of that being an essential part of the Government's case.

Mr. J. Dwight Evans, Jr.: Well --

Justice Felix Frankfurter: Do you admit that it is?

Can't there be a conspiracy to evade taxes that are not due or not paid because -- and because it's a conspiracy in 1959 to evade taxes due and payable in 1960?

Mr. J. Dwight Evans, Jr.: Well, our position here is that Rufus Jenkins and Horace Ingram were liable for the tax and that these other parties --

Justice Felix Frankfurter: Do you think -- I am asking you.

Do you think it is necessary that a conspiracy to -- for the evasion of these wagering taxes that involve -- should relate to taxes that are due and payable and have not been paid?

Mr. J. Dwight Evans, Jr.: Well --

Justice Felix Frankfurter: Is it -- anymore in a conspiracy to murder means that there must have been a murder?

Mr. J. Dwight Evans, Jr.: Well, that -- that's right, Your Honor.

The -- the -- I think, as I pointed out before, you can have a conspiracy to evade tax which isn't successful where they don't succeed in evading the tax.

In this case, we don't think that we have to -- to meet that because, clearly, there was a lottery.

There were tax -- there was evidence that taxes were not paid.

No -- there's no tax to pay.

Justice Felix Frankfurter: My difficulty with your case is very different.

My difficulty is that the only places on which you can -- on which in this case, as I see it, a conviction for a conspiracy on the part of -- of people who are not liable substantively under the Act, a charge for conspiring with the man who was is that from the mere fact of their employment in being certainly subsidiary position with a money interest in relation to the enterprise that is, as to which there is no evidence, from the mere fact that they were employed in this enterprise, the jury was allowed to infer and the judgment must be sustained that they conspired, cooperated, collaborated, actively were engaged in a partnership with him for the nonpayment of that tax because, presumably, they knew (a) that a tax had to be paid and (b) that he wasn't going to pay it.

Mr. J. Dwight Evans, Jr.: Well, Your Honor, my answer to that is this.

The -- these two people that weren't liable for the tax, as Smith and Law, were not simple messengers.

They were important persons in this lottery operation.

The evidence clearly shows, and maybe I should summarize it, at this point, what the evidence shows as to Smith and Law, because --

Justice Felix Frankfurter: Was there any -- before you do that, people may be important and even indispensable.

A man may have just as a fellow who beats -- just gives one beat to a drum in a long symphony may be indispensable, but it doesn't follow that, therefore, he knows what everybody else in the enterprise says they do.

Was there any evidence in this case, anything brought home to these nontaxable people, that the taxes -- that there such a thing as federal taxes and there's a duty to pay them, and that Ingram was not going to carry out that duty, was there a conscious cooperation other than the fact that this was a lottery?

Mr. J. Dwight Evans, Jr.: Well, Your Honor --

Justice Felix Frankfurter: Any what they asked -- was there any -- was there any -- any evidence that some had the knowledge of the existence of such a -- of the wagering -- what's -- what's the Act called, technically?

Mr. J. Dwight Evans, Jr.: The wagering tax.

Justice Felix Frankfurter: The Wagering Tax Act, was there any knowledge of the existence of such a federal statute brought over them?

Mr. J. Dwight Evans, Jr.: Well --

Justice Felix Frankfurter: Or would you say that, as a matter of law, it must be presumed that they knew there was such a statute?

I take no stop in such a fictitious assumption that people know the law.

Mr. J. Dwight Evans, Jr.: Well, of course --

Justice Felix Frankfurter: I think all the law that a man is supposed to know that I don't know, I don't see why I should attribute knowledge to laymen.

Mr. J. Dwight Evans, Jr.: The -- this tax -- the taxes involved here in the registration provisions that a company that's taxed and it require those that have to pay the special tax to register publicly --

Justice Felix Frankfurter: I understand Ingram.

Mr. J. Dwight Evans, Jr.: The --

Justice Felix Frankfurter: I have no trouble with him.

Mr. J. Dwight Evans, Jr.: Well, these provisions have been on the books since 1951.

This conspiracy alleged the indictment to have commenced in 1954.

So, it's at least two-and-a half years after these statutes were enacted.

Also, these taxes are taxes which apply to this particular type of enterprise.

This is a tax that is limited to the people that were in the lottery business.

Now, as to whether --

Justice Felix Frankfurter: Do you mind if I -- is there anything in the record to show that there was a -- a newspaper campaign that the Atlanta Constitution printed a lot of stuff showing how the -- the federal tax was being evaded and that that take away the executive, anything like that?

Mr. J. Dwight Evans, Jr.: No, there is --

Justice Felix Frankfurter: All you're saying is that these people couldn't have been so interested as not to know there was such a law.

That's what you're saying?

Mr. J. Dwight Evans, Jr.: Well, I -- I have more -- more to say than just that, Your Honor.

There is evidence in the record that these -- the personnel in this lottery were under surveillance not only by the County officials of Fulton County, Alabama, but also the Internal Revenue Officials, and that the Internal Revenue Officials were apprehending some of them.

Now, on page 7 of the Government's brief, the statements, in the -- there‘s a -- a reference about the arrest of Walker and McDowell who were two drag-men who were arrested in 1954.

Mr. Robert Joiner, the record shows, was -- accompanied the Fulton County Officials in making that arrest.

Justice Felix Frankfurter: Well, not -- does it also show that -- that these three people knew that the federal authorities were at their heels.

Mr. J. Dwight Evans, Jr.: Well, yes, I think we can infer that.

There was --

Justice Felix Frankfurter: Well, I should think you're inferring on -- inferring on inferences.

I mean, that my trouble with the case.

Mr. J. Dwight Evans, Jr.: Well, Your Honor, there was testimony that both Smith and Law would gather along with Horace Ingram and, at times -- times, others would gather at noontime in devious ways and, by taking circuitous routes and evasive driving tactics, would go out into the outskirts of Atlanta.

Now, for -- since -- from -- at various times from 1954 through 1957, these people were pursued by the federal officers.

They were under surveillance.

Justice Felix Frankfurter: To their knowledge?

Mr. J. Dwight Evans, Jr.: It would appear from the record, yes, that they did know that they were being followed --

Justice Felix Frankfurter: How did --

Mr. J. Dwight Evans, Jr.: -- because the --

Justice Felix Frankfurter: How did it appear in the record?

Mr. J. Dwight Evans, Jr.: Well, from the tactics that they took, Your Honor.

Justice Felix Frankfurter: Well, but they might be escaping the local police or the state police.

Have you got state police on -- in Georgia, whatever they've got?

Mr. J. Dwight Evans, Jr.: The County.

Justice Felix Frankfurter: The County.

Mr. J. Dwight Evans, Jr.: Well, --

Justice Felix Frankfurter: This is, after all, a criminal case and people are going to jail.

Mr. J. Dwight Evans, Jr.: And there --

Justice Felix Frankfurter: And there is such a thing as beyond reasonable doubt.

Mr. J. Dwight Evans, Jr.: Other than the surveillance of them and the continual following of them by federal officers, and the fact that federal officers --

Justice Felix Frankfurter: Which -- which its knowledge has not been brought home to them.

Mr. J. Dwight Evans, Jr.: Well, --

Justice Felix Frankfurter: It's just by your inference.

Mr. J. Dwight Evans, Jr.: These -- these people didn't take the stand to testify, Your Honor, certainly it goes --

Justice Felix Frankfurter: They were entitled not to.

I mean, --

Mr. J. Dwight Evans, Jr.: That's right.

They, however, were --

Justice Felix Frankfurter: You can't make it your case out of their mouths, you know.

Mr. J. Dwight Evans, Jr.: Well, they -- they were personnel in the lottery operation, and another personnel were apprehended by county and federal officers.

Justice Felix Frankfurter: Did they know that they were apprehended by federal officers or did they merely know they were apprehended?

Mr. J. Dwight Evans, Jr.: Well, the record isn't too clear on that, Your Honor.

They weren't charged with a federal offense, but --

Justice Felix Frankfurter: The problem isn't with you, Mr. Evans, the trouble is with your record.

Mr. J. Dwight Evans, Jr.: Well, I think that we -- it -- this Court can imply that these people who were important people in the inner circle of this lottery were aware of the federal laws --

Justice Felix Frankfurter: But that is the thing --

Mr. J. Dwight Evans, Jr.: -- that applied particularly to this lottery operation.

Justice Felix Frankfurter: That is the case.

That's what I meant to put to you a little while ago.

The case is that an operation of this magnitude carried on for so long of continuous period in which these people played an important role, support sufficient basis for allowing the jury to infer that they knew, in the first, the requirements of the federal law and that, from that knowledge and their share in the enterprise, presumably, that in the requisites of criminal prosecution, they actively -- what they did and what they failed to do falls with the active conscious planning with Mr. Ingram.

Is that right?

Mr. J. Dwight Evans, Jr.: We think the jury could --

Justice Felix Frankfurter: That's the case, --

Mr. J. Dwight Evans, Jr.: -- affirm that.

Justice Felix Frankfurter: -- isn't it?

Mr. J. Dwight Evans, Jr.: Now, --

Chief Justice Earl Warren: I wonder if you would -- I wonder if you would now tell us exactly what evidence there was against Law and Smith.

Mr. J. Dwight Evans, Jr.: Yes, I can --

Chief Justice Earl Warren: And, that -- that would bear on what you're speaking about now.

As I understood counsel, there's only one bit of evidence against Law and that was that, at the time of the raid or whenever it was, she had in her possession some tickets.

I understood him to say that's the only thing in the record.

Now, will you tell me over and above that, what there is concerning her and also those who were -- set and situated.

Mr. J. Dwight Evans, Jr.: Yeah.

I'll summarize it as to Mr. Smith and Law.

Chief Justice Earl Warren: Yes.

Mr. J. Dwight Evans, Jr.: And, this is a summary, Smith was observed, as early as 1954, at Horace Ingram's garage at around noon time.

And, noon time -- the Horace Ingram's garage was indicated because, clearly, it was the money headquarters of this operation.

Justice Potter Stewart: Incidentally, when was this federal statute enacted?

Mr. J. Dwight Evans, Jr.: 1951, Your Honor, November 1951.

Justice Potter Stewart: Thank you, thank you.

Justice Felix Frankfurter: When did we finally pass on it, Mr. Evans?

Mr. J. Dwight Evans, Jr.: What was that?

Justice Felix Frankfurter: When did we pass on it?

Mr. J. Dwight Evans, Jr.: You passed on it in 1957, June 1957.

Justice Felix Frankfurter: That slows it down for delay, doesn't it?

Mr. J. Dwight Evans, Jr.: Well, these -- these --

Justice Felix Frankfurter: Don't let --

Mr. J. Dwight Evans, Jr.: Smith and Law --

Justice Felix Frankfurter: I didn't mean to divert you from the Chief Justice's question.

Mr. J. Dwight Evans, Jr.: Alright, thank you.

There was testimony by Clarence Walker, a drag man, a messenger, for Horace Ingram in 1954 that he took 75 to 85 sacks of lottery a day to points outside Atlanta and delivered them to Horace Ingram and Smith, and then, would later come back to the same rendezvous and pick up the ribbons and take them back to Atlanta.

Between 1954 and 1957, a whole series of surveillances indicated that Smith regularly met with Horace Ingram, Mary Law and, sometimes, Eugene Thomas and Mary Ingram around noon time.

They'd gather in their cars and, by circuitous routes and evasive tactics, they'd go out into the country.

They were followed quite often, but unsuccessfully, by county and federal officers.

There was testimony that it was at noontime when the headquarters personnel would gather to go out to the check up headquarters.

This is due to the fact that the number is obtained from the stock market reports in New York and they would become unknown about noontime.

That's when these people would be going out, and it was -- they were repeatedly seen.

This group -- this is one group gathering together.

There was testimony by Eddie Allen who worked for -- who testified that he worked for Horace Ingram in 1955, that he delivered lottery tickets to Horace Ingram, Smith, and Mary Law at places outside the city.

The meeting place, he testified, was changed once a month.

In December of 1955, another employee of Horace Ingram was apprehended driving a truck which had a secret compartment in it, and lottery tickets were found in this compartment.

While the truck -- truck was stopped, Horace -- Horace Ingram and Smith came by and were pursued but were not caught.

Turner informed investigator Carter that Horace Ingram would pay his bond and fine.

This was the usual arrangement that was testified for the banker to pay the bonds and fine.

When Turner pleaded guilty, Smith appeared at the courthouse, paid Turner's $1,000 fine and paid $100 attorney fee.

In December 1955, Smith bought, a -- for delivery to Horace Ingram's garage, a large quantity of ham and turkey, the name of a fictitious purchaser.

The payments were made by Smith and the police officers were seen carrying ham and whiskey that Christmas from Horace Ingram's garage.

In the afternoon of September 20, 1956, Smith, Mary Law, along with Eugene Thomas, and John Ingram, were caught at the check up headquarters, out in a rural county outside of Atlanta, operating the -- a typical lottery check up headquarters.

Smith plead guilty to the state charge of lottery and on his bond, as a reference, there appeared the initials H.I.

Smith was seen regularly at the garage in the months of -- the garage there in Atlanta in the months of January, February, and March 1957 carrying, at various times, sacks and, one time, carrying out an adding machine.

And, in the March 27th raid -- the evening of March 27th, Ingram -- rather, Smith was found there at the garage and, on his person, there was found a lottery ribbon.

Also, Smith was seen giving -- he was present with Horace Ingram when the two -- rather, when Horace Ingram was seen giving money to a policeman in January of -- January 9th, 1957.

My time has run over, Your Honor.

I can just briefly state the --

Chief Justice Earl Warren: If there is anything more on Bar and Smith, just read it briefly, please.

Mr. J. Dwight Evans, Jr.: Well, there's nothing more on that print of the summary of Smith's activities as detailed by the record.

Now, as to Mary Parks Law, she also was seen, in 1954, at Horace Ingram's garage, the city headquarters for this operation.

She, was -- along with Smith, was seen regularly gathering with Horace Ingram, Smith and, sometimes, a couple of others at noontime and this group -- going out to the country, indulging in the evasive tactics to throw off the law officers who were trying to follow them and detect the check-up headquarters.

As I indicated before, Eddie Allen testified that he delivered tickets to her, along with Horace Ingram and Smith.

She was found in the checkup headquarters in 1956 and, at time, she gave a false name.

She claimed that her name was Marie Ranson.

She pleaded guilty to a state lottery charge and her bond, as under the name Marie Ranson, the false name, and the bond -- her bond for this state charge had the reference -- has, as a reference, the initials H.I.

Later, after the detection of this check0-up headquarters, she was again seen with Smith, going -- at noontime, going out into the outskirts of Atlanta.

Subsequent to the raid on the garage on March 27th, Mary Law was again picked up by John Ingram and Eugene Thomas, and there were efforts on the part of those three to go out in the country.

At that time, the law officers continued to follow them even though they knew that they were -- the parties knew that they were being followed, and they didn't go anywhere at that time.

That, I believe, is a summary of the evidence.

Thank you very much.

Chief Justice Earl Warren: Mr. Asinof.

Rebuttal of Wesley R. Asinof

Mr. Wesley R. Asinof: In this case, the evidence, as outlined by the Government, still fails to show that any of these other persons had any pecuniary interest in this enterprise as a principal.

The fact that Mary Law's having been seen on numerous occasions going out, the testimony by the same witness also shows on cross examination that on none of those occasions did he ever trail Mary Law and find that she was actually at a lottery headquarters, and the same thing holds true as to the other.

They just simply said that they got together about that time and they were seen driving out in different parts of town on different days.

There is no evidence in the case to indicate that Mary Law, at anytime, had any pecuniary interest how much he would receive, how much he would be paid, and whether or not she ever handled any money.

Now, the Government relies pretty heavily upon the expert testimony in this case, but the expert testimony merely goes to the fact of how the lottery operates and it does not specifically show what went on in this particular case.

And, I stated in my opening and I've stated in my brief, we've conceded that this was a large-scale lottery operation, but this Court is not concerned with the size of the operation.

This Court is not concerned with the fact that these persons violated the laws of the State of Georgia.

This Court is concerned only with whether or not the evidence is sufficient to show that a conspiracy was entered into to evade and defeat the payment of federal tax.

And, in that connection, I want to say that, again, and reiterate to the Court that if Horace Ingram owed federal taxes and did not pay them all, if he evaded and defeated the payment of it.

But, if that was solely his idea as to the evasion and to the defeating of those federal taxes, and there's no evidence that any other person actually conspired with him to evade and defeat the payment of the tax, but that the evidence merely shows that they simply did assist him in the operation of a lottery, then the conviction against Horace Ingram on the conspiracy count should not stand.

And, likewise, the conviction as to all of the others in the case, to be allowed to stand upon the record and the evidence in this case would be actually in conflict with the Kahriger case from this Court.

Now, we also want to, again, reiterate that this concealment or conspiracy to conceal in this case was not a main conspiracy or was not main.

It was subsidiary and, being subsidiary, we -- we must consider that, along with the extension of the Grunewald and the Lutwak and the Krulewitch case, that there should be an extension of the principle in that or the doctrine of that case -- in those cases.

There should be an extensions so that, where it is merely a subsidiary conspiracy to conceal, then the proof of that subsidiary conspiracy to conceal should not be accepted as proof of the conspiracy itself where there is no other evidence independent of that subsidiary evidence of subsidiary conspiracy to conceal.

Justice Potter Stewart: Don't you say, Mr. Asinof, that, at most, what the evidence shows here is a conspiracy which is subsidiary to a subsidiary conspiracy?

Mr. Wesley R. Asinof: That's right.

Justice Potter Stewart: In other words, that the basic conspiracy was to operate an illegal lottery, illegal under the laws of Georgia.

Mr. Wesley R. Asinof: Violation of the laws.

Justice Potter Stewart: And that a subsidiary to that conspiracy was to conceal the operation of that illegal activity, and that illegal conspiracy, and necessary to that subsidiary concealment conspiracy was not to pay the federal tax.

Mr. Wesley R. Asinof: I would like to add to that, if Your Honor please, that this -- that this was actually stated by the Circuit Court of Appeals that the concealment was for the purpose of evading prosecution and punishment, and that if the concealment is merely for that purpose and not for the purpose of committing the crime itself, and I think I pointed that out in my brief, if that was the purpose of the concealment then, of course, it would be subsidiary and, being subsidiary, himself would not be sufficient standing alone to prove that there was a conspiracy to violate the federal law,

Chief Justice Earl Warren: Well, Mr. Asinof, as I see it, there are two -- two different crimes here, of course, the state crime and the federal crime.

The state crime is only a misdemeanor, but to conduct the gambling operation like this without paying the -- the tax -- a federal tax is -- is more than a misdemeanor, isn't it?

Mr. Wesley R. Asinof: No, Your Honor.

Chief Justice Earl Warren: Well, it's --

Mr. Wesley R. Asinof: It's a misdemeanor also, but it --

Chief Justice Earl Warren: Yes.

Mr. Wesley R. Asinof: -- it willfully -- willfully evading and --

Chief Justice Earl Warren: Yes.

Mr. Wesley R. Asinof: -- defeating --

Chief Justice Earl Warren: Well --

Yes.

Mr. Wesley R. Asinof: -- would be a felony.

Chief Justice Earl Warren: Yes, that -- that makes it a felony.

Now, why should we be forced to the conclusion that the -- the main conspiracy was to avoid the state law, which was only a misdemeanor, where it was just as essential if he was going to -- to operate the -- the gambling affair without punishment, that he must conceal the fact that he hadn't paid his tax?

Mr. Wesley R. Asinof: Because --

Chief Justice Earl Warren: Why is one subsidiary to the other?

Mr. Wesley R. Asinof: Because the state -- the state violation would be -- would be inherent that these persons had violated the state law, but no evidence that these persons had violated the federal law independently of that concealment.

And, therefore, the concealment itself would have to be said to be the federal violation, to make out the federal violation, because, without it, the Government has nothing.

The Government has no evidence that these persons are liable to the payment of tax and, therefore, the concealment would -- could -- could only logic -- it could only logically follow that a jury should only -- could only conclude that the concealment was for the purpose of escaping detection, prosecution, and punishment from the state authorities because that was the only law that they had violated because it cannot be assumed that they violated the federal law because they had not violated the federal law were it not for the concealment itself.

And, therefore the concealment itself must be used to make out the federal violation.

Chief Justice Earl Warren: Well, the operation was as flagrant as you indicate it was.

It might well be that they were more afraid of the Federal Government than they were of the State Government.

Mr. Wesley R. Asinof: Well, of course, since this Court has passed upon a question in the Kahriger case, Congress has not seen fit to change the law so as to put these persons within the purview of the Wagering Tax Act.

And, so, we must, therefore, that Congress accepts that as their intent.