United States v. Augustine

Before BIGGS, Chief Judge and MARIS and HASTIE, Circuit Judges. Opinion of the Court Per Curiam: This is a companion case to No. 10,328, United States of America v. Salvatore J. Augustine, in which a per curiam opinion has been filed concurrently with this. In the instant case the appellant asserts a new defense which in substance is that he may have embezzled funds from the corporation of which he and his brother, Salvatore, were the owners and that therefore under the doctrine of Commissioner v. Wilcox, 327 U.S. 404, he cannot be convicted for failure as a corporate officer to report corporate income under Section 145(b) of the Internal Revenue Code, 29 U.S.C.A. § 145(b). He does not use the blunt word ""embezzled"", as we have done, but insists rather that the United States was required to prove that he was innocent of the misappropriation of funds from his own corporation if he was to be proved guilty of violation of the Revenue Code.