7203 - Bail

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Fraud Statutes 

Additional Information:

 

7203 - Accountant-Client Privilege
7203 - Accrual Basis
7203 - Admissibility 1 p1
7203 - Admissibility 1 p2
7203 - Admissibility 1 p3
7203 - Admissibility 1 p4
7203 - Admissibility 1 p5
7203 - Admissibility 1 p6
7203 - Admissibility 2 p1
7203 - Admissibility 2 p2
7203 - Admissibility 2 p3
7203 - Admissibility 2 p4
7203 - Admissibility 2 p5
7203 - Admissibility 3 p1
7203 - Admissibility 3 p2
7203 - Admissibility 3 p3
7203 - Admissibility 3 p4
7203 - Admissibility 3 p5
7203 - Admissibility 4 p1
7203 - Admissibility 4 p2
7203 - Admissions p1
7203 - Admissions p2
7203 - Advice of Counsel p1
7203 - Advice of Counsel p2
7203 - Amendment
7203 - Appeal Right to
7203 - Appeal Timeliness
7203 - Appeal Waiver
7203 - Appeal without merit
7203 - Arrest
7203 - Fraudulent Return
7203 - Defeat & Evade Income Taxes p1
7203 - Defeat & Evade Income Taxes p2
7203 - Defeat & Evade Income Taxes p3
7203 - Defeat &  Evade Income Taxes p4
7203 - Attorney Disqualified
7203 - Attorney's Testimony p1
7203 - Attorney's Testimony p2
7203 - Attorney's Testimony p3
7203 - Attorney's Testimony p4
7203 - Bail
7203 - Bank Records &  Net Worth Increases 1 p1
7203 - Bank Records &  Net Worth Increases 1 p2
7203 - Bank Records &  Net Worth Increases 1 p3
7203 - Bank Records &  Net Worth Increases 1 p4
7203 - Bank Records &  Net Worth Increases 1 p5
7203 - Bank Records &  Net Worth Increases 1 p6
7203 - Bank Records &  Net Worth Increases 2 p1
7203 - Bank Records &  Net Worth Increases 2 p2
7203 - Bank Records &  Net Worth Increases 2 p3
7203 - Bank Records &  Net Worth Increases 2 p4
7203 - Bank Records &  Net Worth Increases 2 p5
7203 - Bank Records &  Net Worth Increases 3 p1
7203 - Bank Records &  Net Worth Increases 3 p2
7203 - Bank Records &  Net Worth Increases 3 p3
7203 - Bank Records &  Net Worth Increases 3 p4
7203 - Bank Records &  Net Worth Increases 3 p5
7203 - Bank Records &  Net Worth Increases 4 p1
7203 - Bank Records &  Net Worth Increases 4 p2
7203 - Bank Records &  Net Worth Increases 4 p3
7203 - Bank Records &  Net Worth Increases 4 p4
7203 - Bank Records &  Net Worth Increases 4 p5
7203 - Bank Records &  Net Worth Increases 5 p1
7203 - Bank Records & Net Worth Increases 5 p2
7203 - Bank Records & Net Worth Increases 5 p3
7203 - Bank Records & Net Worth Increases 5 p4
7203 - Bank Records & Net Worth Increases 5 p5
7203 - Base Sentence p1
7203 - Base Sentence p2
7203 - Base Sentence p3
7203 - Base Sentence p4
I7203 - Bill of Particluar Conspiracy
7203 - Bill of Particulars
7203 - Books and Records
7203 - Burden of going forward with evidence
7203 - Burden of Proof
7203 - Carryback Offset
7203 - Changing Plea
7203 - Character witness p1
7203 - Character witness p2
7203 - Circumstanial Evidence p1
7203 - Circumstanial Evidence p2
7203 - Circumstanial Evidence p3
7203 - Circumstanial Evidence p4
7203 - Collateral Estoppel
7203 - Collection
7203 - Commitment by U.S. Commissioner
7203 - Communication to Jury
7203 - Compromise
7203 - Consolidation
7203 - Conspiracy p1
7203 - Conspiracy p2
7203 - Conspiracy 1 p1
7203 - Conspiracy 1 p2
7203 - Conspiracy 1 p3
7203 - Conspiracy 1 p4
7203 - Conspiracy 1 p5
7203 - Conspiracy 1 p6
7203 - Conspiracy 1 p7
7203 - Conspiracy 1 p8
7203 - Conspiracy 2 p1
7203 - Conspiracy 2 p2
7203 - Conspiracy 2 p3
7203 - Constitutional Grounds 1 p1
7203 - Constitutional Grounds 1 p2
7203 - Constitutional Grounds 1 p3
7203 - Constitutional Grounds 1 p4
7203 - Constitutional Grounds 1 p5
7203 - Constitutional Grounds 2 p1
7203 - Constitutional Grounds 2 p2
7203 - Constitutional Grounds 2 p3
7203 - Constitutional Grounds 2 p4
7203 - Constitutional Grounds 2 p5
7203 - Constitutional Grounds 3 p1
7203 - Constitutional Grounds 3 p2
7203 - Constitutional Grounds 3 p3
7203 - Constitutional Grounds 3 p4
7203 - Constitutional Grounds 3 p5
7203 - Constitutional Grounds 4 p1
7203 - Constitutional Grounds 4 p2
7203 - Constitutional Grounds 4 p3
7203 - Constitutional Grounds 4 p4
7203 - Constitutional Grounds 5 p1
7203 - Constitutional Grounds 5 p2
7203 - Constitutional Grounds 5 p3
7203 - Constitutional Grounds 5 p4
7203 - Constitutional Grounds 5 p5
7203 - Constitutional Grounds 6
7203 - Contempt Finding Ag. Defendant's Counsel
7203 - Continuance p1
7203 - Continuance p2
7203 - Continuance p3
7203 - Conviction Required
7203 - Copies of Records p1
7203 - Copies of Records p2
7203 - Corporation Officer
7203 - Costs
7203 - Credit for Time Served
7203 - Criminal Contempt
7203 - Cross-Examination PART 1 p1
7203 - Cross-Examination PART 1 p2
7203 - Cross-Examination PART 1 p3
7203 - Cross-Examination PART 1 p4
7203 - Cross-Examination PART 1 p5
7203 - Cross-Examination PART 2
7203 - DefendantHaving Facts Available p1
7203 - DefendantHaving Facts Available p2
7203 - DefendantHaving Facts Available p3
7203 - Degree of Proof p1
7203 - Degree of Proof p2
7203 - Depositions
7203 - Different Statute Cited
7203 - Discovery, Scope Of
7203 - Documentary Evidence in Jury Room
7203 - Double Jeopardy 1 p1
7203 - Double Jeopardy 1 p2
7203 - Double Jeopardy 1 p3
7203 - Double Jeopardy 1 p4
7203 - Double Jeopardy 1 p5
7203 - Double Jeopardy 2 p1
7203 - Double Jeopardy 2 p2
7203 - Double Jeopardy 2 p3
7203 - Double Jeopardy 2 p4
7203 - Enhanced Sentence Sophisticated Means p1
7203 - Enhanced Sentence Sophisticated Means p2
7203 - Enhanced Sentence p1
7203 - Enhanced Sentence p2
7203 - Entrapment
7203 - Erroneous calculation of tax
7203 - Exclusion of Oral Testimony
7203 - Exercise Privilege-Exclusion from Courtroom
7203 - Expert Witness p1
7203 - Expert Witness p2
7203 - Expert Witness p3
7203 - Expert Witness p4
7203 - Extenuating Circumstances
7203 - Fact Finding p1
7203 - Fact Finding p2
7203 - Fact Finding p3
7203 - Fact Finding p4
7203 - Fact Finding p5
7203 - Failure of IRS to File Return
7203 - Failure to Assess Tax
7203 - Failure to Prosecute p1
7203 - Failure to Prosecute p2
7203 - Failure to Prosecute p3
7203 - Failure to Prosecute p4
7203 - Failure to Prosecute p5
7203 - Failure to Report Income 1 p1
7203 - Failure to Report Income 1 p2
7203 - Failure to Report Income 1 p3
7203 - Failure to Report Income 1 p4
7203 - Failure to Report Income 1 p5
7203 - Failure to Report Income 1 p6
7203 - Failure to Report Income 2 p1
7203 - Failure to Report Income 2 p2
7203 - Failure to Supply Information
7203 - False Return
7203 - Fictitious names
7203 - Fraud Case Procedures p1
7203 - Fraud Case Procedures p2
7203 - Fraud Case Procedures p3
7203 - Fraud Case Procedures p4
7203 - General Exception
7203 - Good Faith p1
7203 - Good Faith p2
7203 - Good Faith p3
7203 - Good Faith p4
7203 - Government Agent Prosecuting Claim
7203 - Grand Jury 1 p1
7203 - Grand Jury 1 p2
7203 - Grand Jury 1 p3
7203 - Grand Jury 1 p4
7203 - Grand Jury 1 p5
7203 - Grand Jury 2 p1
7203 - Grand Jury 2 p2
7203 - Hearsay Evidence p1
7203 - Hearsay Evidence p2
7203 - Hearsay Evidence p3
7203 - Hearsay Evidence p4
7203 - Hearsay Evidence p5
7203 - Hostility of the Court p1
7203 - Hostility of the Court p2
7203 - Hostility of the Court p3
7203 - Hypnosis
7203 - Identification
7203 - Ignorance of Law
7203 - Immunity p1
7203 - Immunity p2
7203 - Immunity p3
7203 - Impeachment p1
7203 - Impeachment p2
7203 - Improper Comment PART 1 p1
7203 - Improper Comment PART 1 p2
7203 - Improper Comment PART 1 p3
7203 - Improper Comment PART 1 p4
7203 - Improper Comment PART 1 p5
7203 - Improper Comment PART 2 p1
7203 - Improper Comment PART 2 p2
7203 - Improper Comment PART 2 p3
7203 - Improper Comment PART 2 p4
7203 - Improper Comment PART 2 p5
7203 - Improper Comment PART 3
7203 - Improper Question
7203 - Incrimination 1 p1
7203 - Incrimination 1 p2
7203 - Incrimination 1 p3
7203 - Incrimination 1 p4
7203 - Incrimination 1 p5
7203 - Incrimination 2 p1
7203 - Incrimination 2 p2
7203 - Incrimination 2 p3
7203 - Incrimination 2 p4
7203 - Incrimination 2 p5
7203 - Incriminaton Before Grand Jury p1
7203 - Incriminaton Before Grand Jury p2
7203 - Instructions to Jury 1 p1
7203 - Instructions to Jury 1 p2
7203 - Instructions to Jury 1 p3
7203 - Instructions to Jury 1 p4
7203 - Instructions to Jury 1 p5
7203 - Instructions to Jury 2 p1
7203 - Instructions to Jury 2 p2
7203 - Instructions to Jury 2 p3
7203 - Instructions to Jury 2 p4
7203 - Instructions to Jury 2 p5
7203 - Instructions to Jury 3 p1
7203 - Instructions to Jury 3 p2
7203 - Instructions to Jury 3 p3
7203 - Instructions to Jury 3 p4
7203 - Instructions to Jury 3 p5
7203 - Instructions to Jury 4 p1
7203 - Instructions to Jury 4 p2
7203 - Instructions to Jury 4 p3
7203 - Instructions to Jury 4 p4
7203 - Instructions to Jury 4 p5
7203 - Instructions to Jury 5 p1
7203 - Instructions to Jury 5 p2
7203 - Instructions to Jury 5 p3
7203 - Instructions to Jury 5 p4
7203 - Instructions to Jury 5 p5
7203 - Instructions to Jury 6 p1
7203 - Instructions to Jury 6 p2
7203 - Instructions to Jury 6 p3
7203 - Instructions to Jury 6 p4
7203 - Instructions to Jury 6 p5
7203 - Instructions to Jury 7 p1
7203 - Instructions to Jury 7 p2
7203 - Instructions to Jury 7 p3
7203 - Instructions to Jury 7 p4
7203 - Instructions to Jury 7 p5
7205 Convictions p1
7205 Convictions p2
7205 Convictions p3
7205 Convictions p4
7205 Convictions p5
7205 Double Jeopardy
7205 Exemption Certificates
7205 Hostility of the Court
7205 Indictment
7205 Information
7205 Intent to Deceive Lacking
7205 Right to Counsel
7205 Trial, Timeliness
7205 Variance
7205 Venue
7205 Willfulness
7206 False Returns 1 p1
7206 False Returns 1 p2
7206 False Returns 1 p3
7206 False Returns 1 p4
7206 False Returns 1 p5
7206 False Returns 2 p1
7206 False Returns 2 p2
7206 False Returns 2 p3
7206 False Returns 2 p4
7206 False Returns 2 p5
7206 False Returns 3 p1
7206 False Returns 3 p2
7206 False Returns 3 p3
7206 False Returns 3 p4
7206 Basis for Allegation of Fraud
7206 Concealment of Assets p1
7206 Concealment of Assets p2
7206 Conspiracy 1 p1
7206 Conspiracy 1 p2
7206 Conspiracy 1 p3
7206 Conspiracy 1 p4
7206 Conspiracy 2 p1
7206 Conspiracy 2 p2
7206 Constitutionality p1
7206 Constitutionality p2
7206 Constitutionality p3
7206 Costs
7206 Disclosure of Returns
7206 Estoppel p1
7206 Estoppel p2
7206 Estoppel p3
7206 Evidence 1 p1
7206 Evidence 1 p2
7206 Evidence 1 p3
7206 Evidence 1 p4
7206 Evidence 1 p5
7206 Evidence 2 p1
7206 Evidence 2 p2
7206 Evidence 2 p3
7206 Evidence 2 p4
7206 Evidence 2 p5
7206 Evidence 3 p1
7206 Evidence 3 p2
7206 Evidence 3 p3
7206 Evidence 3 p4
7206 Evidence 3 p5
7206 Evidence 4 p1
7206 Evidence 4 p2
7206 Evidence 4 p3
7206 False Claims Against U.S.
7206 False Documents p1
7206 False Documents p2
7206 False Statements in Return 1 p1
7206 False Statements in Return 1 p2
7206 False Statements in Return 1 p3
7206 False Statements in Return 1 p4
7206 False Statements in Return 1 p5
7206 False Statements in Return 2 p1
7206 False Statements in Return 2 p2
7206 False Statements in Return 2 p3
7206 False Statements in Return 2 p4
7206 False Statements in Return 3 p1
7206 False Statements in Return 3 p2
7206 False Statements in Return 3 p3
7206 False Statements in Return 3 p4
7206 False Statements in Return 3 p5
7206 False Statements in Return 4 p1
7206 False Statements in Return 4 p2
7206 False Statements in Return 4 p3
7206 False Statements in Return 4 p4
7206 False Statements in Return 4 p5
7206 False Statements in Return 5 p1
7206 False Statements in Return 5 p2
7206 False Statements in Return 5 p3
7206 False Statements in Return 5 p4
7206 False Statements to IRS Agents p1
7206 False Statements to IRS Agents p2
7206 False Statements to IRS Agents p3
7206 Forgery
7206 Grand Jury
7206 Guilty Plea p1
7206 Guilty Plea p2
7206 Immunity
7206 Indictment 1 p1
7206 Indictment 1 p2
7206 Indictment 1 p3
7206 Indictment 1 p4
7206 Indictment 1 p5
7206 Indictment 2 p1
7206 Indictment 2 p2
7206 Instructions to Jury 1 p1
7206 Instructions to Jury 1 p2
7206 Instructions to Jury 1 p3
7206 Instructions to Jury 1 p4
7206 Instructions to Jury 1 p5
7206 Instructions to Jury 2 p1
7206 Instructions to Jury 2 p2
7206 Instructions to Jury 2 p3
7206 Instructions to Jury 2 p4
7206 Instructions to Jury 2 p5
7206 Instructions to Jury 3 p1
7206 Instructions to Jury 3 p2
7206 Instructions to Jury 3 p3
7206 Instructions to Jury 3 p4
7206 Instructions to Jury 3 p5
7206 Jury Verdict Disregarded
7206 Jury p1
7206 Jury p2
7206 Jury p3
7206 Lesser Included Offense p1
7206 Lesser Included Offense p2
7206 Motion For Continuance
7206 Motion to Sever
7206 Motion to Transfer
7206 Motion to Vacate Sentence
7206 Net Worth Statement
7206 Offer in Compromise
7206 Perjury
7206 False or Fraudulent Returns p1
7206 False or Fraudulent Returns p2
7206 False or Fraudulent Returns p3
7206 False or Fraudulent Returns p4
7206 False or Fraudulent Returns p5
7206 Prior Convictions
7206 Prior Law
7206 Probation
7206 Prosecutor's Comment p1
7206 Prosecutor's Comment p2
7206 Restitution
7206 Right to Counsel p1
7206 Right to Counsel p2
7206 Sentence p1
7206 Sentence p2
7206 Sentence p3
7206 Sentence p4
7206 Sentencing Guidelines 1 p1
7206 Sentencing Guidelines 1 p2
7206 Sentencing Guidelines 1 p3
7206 Sentencing Guidelines 1 p4
7206 Sentencing Guidelines 1 p5
7206 Sentencing Guidelines 2 p1
7206 Sentencing Guidelines 2 p2
7206 Sentencing Guidelines 2 p3
7206 Statute of Limitations p1
7206 Statute of Limitations p2
7206 Venue
7206 Willfulness Defined p1
7206 Willfulness Defined p2
7206 Willfulness Defined p3
7206 Willfulness Defined p4
7207 Conviction
7207 Defenses
7207 Motion to Dismiss
7207 Sentencing
7207 Willfully Defined
7210 Willful Failure to Obey Summons
7212 Assault
7212 Bribery
7212 Constiutionality
7212 Indictment
7212 Interference p1
7212 Interference p2
7212 Interference p3
7212 Interference p4
7212 Jury Instructions
7212 Rescue of Seized, Levied Property p1
7212 Rescue of Seized, Levied Property p2
7212 Sentence p1
7212 Sentence p2
7212 Statute of Limitations
7212 Suppresion of Evidence
7215 Constitutionality
7215 Conviction
7215 Corporation
7215 Defenses
7215 Evidence
7215 Intent
7215 Speedy Trial
7216 Consent
7216 Preparer Defined
7216 Scope of Statute
7217 IRS Employees

 

Bail

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7203: Willful Failure to File Return, Supply Information, or Pay Tax: Bail

 

[61-2 USTC ¶9739] United States of America , Appellee, v. Grant Foster, Appellant Grant Foster, Petitioner v. The Honorable Roszel C. Thomsen, United States District Judge, and the United States District Court for the District of Maryland, Respondents

(CA-4), U. S. Court of Appeals, 4th Circuit, Nos. 8378, 8460, 296 F2d 249, 10/25/61, Affirming unreported District Court decision, dismissing appeal from interlocutory order, and denying petition for mandamus

[1954 Code Sec. 7201]

Tax evasion: Reduction of bail: Mandamus for change of venue: Right of appeal.--Where taxes of $300,000 were involved in an indictment for tax evasion, bail of $200,000 was not excessive and a motion to reduce it was properly refused as the defendant did not show any hardship. Petition for mandamus to require a change of venue from one district court to another was denied because it was merely an attempt to substitute another remedy for an appeal from the district court's interlocutory order (not appealable) denying the venue change.

Harold L. Ward, Walter Humkey (Sherwin P. Simmons, Fowler, White, Gillen, Humkey & Trenam, on brief), for appellant, petitioner. Joseph D. Tydings, 301 Davison Chemical Bldg., Charles and Fayette Sts., Baltimore 1, Md. (Arnold M. Weiner, Assistant United States Attorney, on brief), for appellee, respondents.

Before SOBELOFF, Chief Judge, and BOREMAN and BRYAN, Circuit Judges.

PER CURIAM:

Immediately after his arrest in Miami , Florida , on February 4, 1961, Grant Foster, an American citizen residing in Panama , posted a cash bail bond in the amount of $200,000.00. The bond was conditioned upon his appearance to answer an indictment filed in the United States District Court for the District of Maryland, for violation of the Internal Revenue laws. 1 No objection to the amount of bail was made until April 21, 1961, when a petition was filed in the United States District Court for Maryland for a reduction. Seven days later, when the defendant was arraigned, the court held a hearing on the petition. Extensive arguments were made by counsel for the defendant as well as for the Government. The defendant was present in the courtroom, but no tender of any evidence was made on behalf of the defendant to show hardship or any facts bearing on the financial condition of the defendant. It was the Government's contention that the defendant, a resident of Panama , was the principal owner--it claimed he was in fact the sole owner--of a corporation which was engaged in road building in Central America . The corporation had in a bid for work represented itself to be worth $4,500,000.00 The Government further showed, and there was no substantial issue as to this, that the defendant had no close ties in the United States , and that the amount of taxes involved in the indictment exceeded $300,000.00. Apparently, while the defendant made occasional visits to the United States , he had no regular schedule for his visits and no place of business in this country.

The appeal here is from the District Court's refusal to reduce the amount of the bail. We find in these circumstances no basis for holding that the bond as originally fixed, was excessive, or that the District Judge abused his discretion in later refusing to reduce it.

Before us, even though requested by the court, the defendant still failed to show any factual basis for his charge of hardship in the amount of bail. Asked to explain why he failed for a period of nine months to apply to this court or to any judge thereof for lower bail, counsel for the defendant replied that since the bail question is concededly appealable, he preferred to reserve it as a vehicle to bring before this court for review at the same time other issues, such as were raised in his motions attacking the indictment as insufficient and barred by limitations and seeking transfer of the case to the Southern District of Florida. These issues are interlocutory in character and normally are not the subject of appeal before final judgment.

In addition to the appeal on the bail question, which is properly before us, the defendant filed a Petition for Writ of Prohibition or Mandamus to require the District Judge to order the transfer of the trial of the criminal case to the Southern District of Florida. The defendant's contention is that the motion for such transfer should have been granted under Rule 21(b) of the Federal Rules of Criminal Procedure, or, in the alternative, under 18 U. S. C. A. §3228.

By this strategy the defendant seeks to substitute another remedy for appeal, and to achieve an immediate review of inter-locutory orders without awaiting final judgments as is required for an appel. We are of the opinion, however, that the defendant may not maintain such a petition but must first stand trial, and may later renew his contentions in the course of an appeal to this court in the event of his conviction.

At this term of court we had occasion to say:

"Mandamus may not ordinarily be resorted to as a mode of review when a statutory method has been prescribed. The writ may not be used as a substitute for an appeal, and it may not be used as a means for obtaining review of an order of the trial court which is not appealable because it does not constitute a final determination of the case." Bartsch v. Clarke, No. 8456, decided by this court October 12, 1961, . . . F. 2d . . ..

The order as to bail is affirmed; the appeal from the interlocutory order is dismissed, and the petition for prohibition or mandamus is denied.

1 Court one of the indictment charged that the adjusted gross income of Foster and his wife for 1952 was $304,291.42, on which a tax of $230,959.47 was due, whereas their tax return showed an income of only $3,175.46 with $102.00 due in taxes. Count two charged that their adjusted joint income for 1953 was $104,337.29 with a tax of $58,459.48 due, whereas their return showed an adjusted gross income of only $3,331.91 with a tax of $132.00. Count three charged that Foster a gross income during 1955 of $22,579.28, and count four charged that his gross income for 1956 was $9,570.80, for which two years Foster failed to file any tax return. Thus, for the years in question, Foster is charged with an adjusted gross income of $440,778.79 on which there was due a tax well in excess of $289,418.95. He has shown for the entire period only $6,507.37 income, and $234.00 as taxes due.

 

 

[57-1 USTC ¶9483]Frank Costello v. United States of America

Supreme Court of the United States , No. 666, 352 US 1028, 77 SCt 642, 3/11/57

On writ of certiorari to the United States Court of Appeals for the Second Circuit.

[1939 Code Secs. 145(b) and 3616(a)--similar to 1954 Code Secs. 7201 and 7207]

Criminal tax evasion: Applicable Code Section: Bail pending decision in a similar case.--Petitioner was found guilty of tax evasion under 1939 Code Sec. 145(b) and was sentenced under that section. He contends that he should have been sentenced under 1939 Code Sec. 3616(a), which would make his offense a misdemeanor punishable by a lighter maximum sentence. Because the Supreme Court has granted certiorari in Achilli v. U. S., 56-2 USTC ¶9638, involving the same issue it holds that petitioner is entitled to bail, the Government having presented no adequate reason why bail should not be granted. Bond is required in the sum of $25,000.

Edward B. Williams, 1000 Hill Bldg., Washington, D. C., and Morris Shilensky and Osmond K. Fraenkel, 120 Broadway, New York, N. Y., for petitioner, J. Lee Rankin, Solicitor General, and Charles K. Rice, Assistant Attorney General, Washington, D. C., for respondent.

PER CURIAM:

Petitioners in both the above cases have applied to individual Justices for bail under Rule 46 of the Federal Rules of Criminal Procedure. The relevant circumstances concerning bail are identical in both cases. Both were convicted of income tax evasion involving §145(b) of the Internal Revenue Code of 1939. Both were sentenced to imprisonment for five years on each of three counts, the sentences to run concurrently. Both contend that they should have been sentenced under §3616(a) of the Internal Revenue Code of 1939, which makes it a misdemeanor (punishable by a maximum of one year's imprisonment) to file a false return with intent to evade tax, the offense for which each was convicted. The question petitioners raise was discussed but not decided in Berra v. United States, 351 U. S. 131 [56-1 USTC ¶9480]. This question is presented in Achilli v. United States, No. 430, which the Court has set for hearing during the week of April 29. Pending final determination of this question, we think petitioners are entitled to bail, the Government having presented no adequate reason why bail should not be granted. Accordingly, petitioners are admitted to bail, pending the disposition of the Achilli case, by executing a good and sufficient bail bond in the sum of $25,000, the same to be approved by a district judge of the court in which petitioners were convicted. Following approval, the bond will be posted with the clerk of the district court.

 

 

[55-1 USTC ¶9230]J. A. Herzog, Appellant v. United States , Appellee

In the Supreme Court of the United States , No. --, October Term, 1954, 75 SCt 349, February 11, 1955

Application for admission to bail pending determination of appeal in the United States Circuit Court of Appeals for the Ninth Circuit.

[1939 Code Sec. 145(a)--similar to 1954 Code Sec. 7201]

Criminal prosecution: Bail pending appeal: "A substantial question."--Application for bail following judgment of conviction for income tax evasion was denied by the District Court and also by the Court of Appeals. It was granted by the Supreme Court on the ground that the case involved "a substantial question which should be determined by the appellate court." Whether the grand jury minutes could be inspected for the purpose of impeaching a witness who had testified before it presents such "a substantial question."

Sol A. Herzog (now deceased), 70 Pine St., New York 5, N. Y., James M. McInerney, 1317 F. St., N. W., Washington, D. C., and Spurgeon Avakian, Financial Center Bldg., Oakland 12, Calif., for appellant. Philip Elman, Special Assistant to the Attorney General, Department of Justice, Washington 25, D. C., for appellee.

DOUGLAS, Circuit Justice:

This is an application for bail after judgment of conviction for federal income tax evasion that led to a sentence of one year in prison and a fine of $5,000. The District Court denied bail. After oral argument, a panel of three members of the Court of Appeals also denied bail. This application was then made to me as Circuit Justice, a procedure authorized by Rule 46(a)(2) of the Rules of Criminal Procedure, which provides:

"Bail may be allowed pending appeal or certiorari only if it appears that the case involves a substantial question which should be determined by the appellate court. Bail may be allowed by the trial judge or by the appellate court or by any judge thereof or by the circuit justice. The court or the judge or justice allowing bail may at any time revoke the order admitting the defendant to bail."

The problem presented by this application is a difficult and recurring one. After the District Judge, who has tried the case, and the Court of Appeals, which will hear the case on the merits, both deny bail, the Circuit Justice should be most reluctant to grant such relief. The reason is not only the great deference owed their judgment but also the knowledge that those judges, being closer to the actual arena of the trial and its environment, are more apt than he to have a sense of what the scales of justice indicate in the particular case. Yet a responsibility rests on the Circuit Justice which cannot in good conscience be delegated to others. And if, after giving that deference to his Brethren below which is deserved, there are still doubts, he alone must resolve them.

["A Substantial Question"]

I heard oral argument in this case. There was no suggestion whatever that this applicant should be confined lest he escape or not respond to the judgment entered on appeal. The Court of Appeals has, indeed, granted a stay of execution to continue for seven days after I have ruled on this application. Hence, the only question presented to me is whether Herzog's case "involves a substantial question which should be determined by the appellate court" within the meaning of Rule 46(a)(2).

The construction of the words "substantial question" is itself a substantial question. It obviously does not mean a decision on the merits, for Rule 46(a)(2) defines the question as one "which should be determined" on appeal.

A question might seem "substantial" to one person and not to another. My years of experience on the Supreme Court with petitions for certiorari is enlightening in this regard. The practice is to grant those petitions on a vote of four Justices. Those who vote to deny the petition, either because they think the decision below was right or that the petition presents nothing substantial, often vote to reverse after oral argument. Further study of a problem often changes a vote. Further study may do more; it may indeed change the views of the majority of a court. It has happened over and again in the Supreme Court; and I am confident it also happens in other courts.

Only the other day, bail was denied in Patterson v. United States, 75 S. Ct. 256, by the District Court, by the Court of Appeals, and by the Circuit Justice. The appeal, however, was expedited lest the right of appeal be lost while the appellant was serving his short sentence. When the Court of Appeals reached the merits, it reversed. United States v. Patterson, 23 L. W. 2381.

[Criteria]

When, therefore, the issue is whether a "substantial question" is presented within the meaning of Rule 46(a)(2), the first consideration is the soundness of the errors alleged. Are they, or any of then, likely to command the respect of the appellate judges? It is not enough that I am unimpressed. I must decide whether there is a school of thought, a philosophical view, a technical argument, an analogy, an appeal to precedent or to reason commanding respect that might possibly prevail. If the question were one presented by a petition for certiorari to this Court and I were asked to grant a stay, I would grant it despite my own convictions on the merits, once I felt that any of my Brethren would be impressed with the argument. Though there were only one likely protagonist of that view on the Court, I would feel that the question should be saved for decision by the entire bench. The fact that one judge would be likely to see merit in the contention is likewise enough to indicate its substantiality for the purpose of Rule 46(a)(2). There is room for argument on many rules of law and on most of their applications. The shadow of a doubt across one's own conclusions is itself sufficient, at least where bail is involved. Bail is basic to our system of law. See the Eighth Amendment; Stack v. Boyle, 342 U. S. 1. Doubts whether it should be granted or denied should always be resolved in favor of the defendant. See the opinion of Mr. Justice Butler, as Circuit Justice, in United States v. Motlow, 10 Fed. (2d) 657, 663.

I do not believe, however, that there is necessarily an end to the problem under Rule 46(a)(2), even though I reach the conclusion that on the merits there is no appellate judge who would likely reverse the judgment of conviction. That does not necessarily mean that there is no substantial issue which "should be determined by the appellate court." A question may nevertheless be "substantial" within the meaning of the Rule, if it is novel, or if there is a contrariety of views concerning it in the several circuits, or if the appellate court should give directors to its district judges on the question, or if in the interests of the admin istration of justice some clarification of an existing rule should be made.

In the present case, appellant's brief on the merits, recently filed in the Court of Appeals, is a printed document of 63 pages. I have read it with care and have examined portions of the record to which it refers. There is nothing apparent in the brief indicating any flagrant miscarriage of justice, though interesting points of law are presented. There is, however, one question of law that seems to me to present a "substantial question" within the meaning of Rule 46(a)(2).

[Grand Jury Minutes]

The question relates to the use of the grand jury minutes for impeachment purposes. A critical witness was on the stand for cross-examination. Counsel for defendant wanted to inspect the witness' testimony before the grand jury in order to impeach him. He request was denied. *

Rule 6(e) of the Rules of Criminal Procedure provides in part:

"Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the court preliminary to or in connection with a judicial proceeding . . .. No obligation of secrecy may be imposed upon any person except in accordance with this rule." (Italics added.)

There has been a conflict between the policy requiring secrecy of grand jury minutes and the policy which seeks to leave no stone unturned in seeking justice in a particular case. See In re Bullock, 103 Fed. Supp. 639. Rule 6(e) has partially resolved that conflict by allowing disclosure of the grand jury minutes "in connection with a judicial proceeding."

The Court of Appeals for the Ninth Circuit does not seem to have ruled on the question presented here beyond the statements in Metzler v. United States, 64 Fed. (2d) 203, 206, that the veil of secrecy can be lifted from the grand jury minutes when "the ends of justice can be furthered thereby." But that case was decided prior to Rule 6(e) and I have found no subsequent Ninth Circuit case squarely in point here. Cf. United States v. Smyth, 104 Fed. Supp. 279, 281.

[Alper in Point]

United States v. Alper, 156 Fed. (2d) 222, 226, decided by the Court of Appeals for the Second Circuit, is, however, in point. While a witness was being cross-examined, his testimony before the grand jury was requested by the defendant to see whether there were inconsistencies between it and the trial testimony. The trial judge refused the request. The Court of Appeals reversed on another ground. Yet in referring to the right of counsel on cross-examination to inspect the grand jury minutes to ascertain whether the witness testified differently at that time, the court said:

". . . as the same question may arise on the new trial it seems desirable to refer to some of the matters which the judge should take into account in exercising his discretion. These will include the timeliness of the request for the minutes, the delay in the trial which may result, and the extent of the burden which will be imposed upon the judge by a comparison of the witness's grand jury testimony with his trial testimony. If the witness's grand jury testimony is very lengthy, it would be an intolerable burden and would unduly delay the trial to require the judge to go through it on the mere chance that some inconsistency favorable to the accused might be found. The trial of an indictment is of course an inquiry into the truth of the charge; but in such trial the judge must be as little an advocate of the accused as of the prosecution. When the testimony before the grand jury is in small enough compass to make any contradictions between it and the witness's trial testimony readily discoverable it is a tolerable duty to impose upon the judge an examination of the minutes. But to demand that he peruse many pages of an examination of a witness to discover possible contradictions is altogether to falsify his position; for then he becomes in effect an active assistant of the defense. He would have to bear in mind all that the witness had sworn to, and pick out from a mass of what may be, and usually is, verbiage any parts that may be contradictory. That involves an active participation favorable to one side, which should not be required. A great part of the law of evidence is based upon the practical difficulties that would incidentally arise from the admission of what, strictly speaking, is logically relevant; it is founded upon the recognition that here, as elsewhere in the law, we are seeking not logical perfection but the just settlement of a controversy. The duty we are discussing is preeminently in this class and it is particularly one about which it would be unsafe to generalize."

It is obvious that, whatever the ultimate outcome, under that ruling Herzog's request for inspection of the grand jury minutes would have been treated differently in New York than it was in California. Which is the better way of handling the matter, or whether there is still another which is to be preferred, is a considerable question in the admin istration of justice.

I express no opinion on the merits. I only conclude that the question is a "substantial" one "which should be determined" by the Court of Appeals, within the meaning of Rule 46(a)(2).

I will accordingly admit Herzog to bail in the amount of $5,000, to be posted with and approved by the District Court.

* The record shows the following transpired:

"Mr. Avakian: I believe that . . . any testimony of a witness previously given relating to the subject matter at hand should be made available to the defense.

"And I think that is particularly appropriate here. It appears to be that in one other instance previously given testimony appears to be somewhat different from the testimony given here, and that is the reason--

"The Court: You are arguing now about a fact. If that is your reason, I can't agree. I can't agree, as a judge, that there is a basis for that statement.

"Mr. Avakian: The purpose of my request is for impeachment, your Honor.

"The Court: Yes, but the Grand Jury proceedings are not open in the federal court, not unless there is some ground for them that would vary the rule. I never heard of such a thing, not in the federal court.

"I know that in the state court, of course, the Grand Jury testimony can be used, but that is not true in federal court. No more than a fishing expedition. And I don't say that with any degree of criticism applicable to this case, but generally that is all it would amount to in any case unless there was some ground of fraud or misconduct on the part of the Grand Jury, or something like that.

"Mr. Avakian: It isn't attacking the validity of the Grand Jury proceedings, your Honor, but is for impeachment purposes.

"The Court: You have to make some showing that it would be impeaching, otherwise it is a fishing expedition and would delay every criminal proceeding in federal court. Never would have an end to these proceedings.

"Mr. Avakian: I don't believe it would take more than ten or fifteen minutes for us to read the testimony.

"The Court: Well, I will deny the application."

 

 

[79-2 USTC ¶9433]United States of America, Plaintiff v. Terrence J. Karmann, Defendant

U. S. District Court Cen. Dist. Calif., No. CR 79-43-AAH, 471 FSupp 1021, 6/8/79

[Code Secs. 7203 and 7205]

Bail pending appeal: Order denying release: Menace to society.--The taxpayer was denied bail pending appeal. He was convicted of failure to file returns for several years and for filing false W4-E certificates. The taxpayer was denied bail because the court determined that he was a menace and a danger to himself and to society, and would set a bad example for other taxpayers.

Andrea Sheridan Ordin, United States Attorney, Rob ert L. Brosio, Eric L. Dobberteen, Assistant United States Attorneys, Los Angeles, Calif. 90012, for plaintiff.

Findings of Fact, Conclusions of Law and Order Re Denial of Release Pending Appeal

HAUK, District Judge:

The defendant, in propria persona, having made an appropriate application for release after a judgment of conviction, and the Court having refused to release the defendant pending appeal, the Court now states in writing the reasons for this action in accordance with Rule 9(c) Federal Rules of Appellate Procedure. These findings of fact and conclusions of law are based on the records and files of this case, and the pleadings herein, including the facts of this case, and oral argument at the time of sentencing. The Court makes the following Findings of Fact and Conclusions of Law:

Findings of Fact

I. The defendant has engaged in a consistent and continuing course of conduct, deliberately, intelligently, and without equivocation, in defiance of the laws constitutionally enacted by the Congress of the United States, to wit, the Internal Revenue Code, as amended to date, 26 U. S. C. §1, et seq. In this regard, the defendant has been convicted by a jury of two violations of 26 U. S. C. §7203 and one violation of 26 U. S. C. §7205.

II. The defendant has deliberately, intelligently, and knowingly engaged in the filing of false W4(E) certificates, not only those with which he was charged and convicted in Count Two of the Indictment, but also, in the opinion of this Court, for the calendar years 1978 and 1979 in that he submitted false information to his employer, the Times Mirror Company in Los Angeles, wherein he certified and has certified each time that he incurred no federal tax liability for the preceding calendar year and that he anticipated incurring no federal income tax liability for the following year covering the taxable year 1976 and the following year 1977; the taxable year 1977 and the following year 1978; the taxable year 1978, and the following year 1979; whereas he then and there well knew that he had incurred federal income tax liability for the year 1976, and he anticipated a federal tax liability for 1977; further, that he then and there well knew that he had incurred a federal income tax liability in 1977 and he anticipated a federal income tax liability for 1978; and finally that he then and there well knew that he had incurred a federal income tax liability in 1978 and he anticipated a federal income tax liability for 1979.

III. During the calendar year 1976 he earned a gross income of $14,915.01 and was required by law to report such income and any deductions or credits to which he was entitled, following the close of the calendar year 1976 and before April 15, 1977. Nevertheless he willfully and knowingly failed to do so.

IV. During the calendar year 1977, he received a gross income of $14,754.29 and by reason thereof, he was required by law following the close of the calendar year 1977 and before April 15, 1978, to make an income tax return setting forth these items of gross income and any deductions or credits to which he was entitled. Well knowing these facts he did willfully and knowingly fail to make such return.

V. For the calendar year 1978, based upon the defendant's own statement to the Court at a pretrial hearing on March 5, 1979, the Court finds that he had a gross income of at least $14,000 for the calendar year 1978 and was required on or before April 15, 1979, to make an income tax return to the appropriate officials; well knowing all these facts, he did willfully and knowingly fail to make such income tax return as required by the law.

VI. Any conclusion of law deemed to be a finding of fact is hereby incorporated into these findings of fact.

Conclusions of Law

I. The subject matter of this action is controlled by Title 18, Rule 9(c), Federal Rules of Appellate Procedure.

II. By reason of the foregoing findings of fact, the Court concludes that the defendant by reason of his conduct has made a mockery of the income tax laws and the regulations issued thereunder and has indicated he will continue to do so in defiance of the law; that he thereby constitutes a menace and a danger not only to himself, but also to society; and that if this activity is permitted to continue in defiance of the law, it would set an extremely bad example for other taxpayers and money earners and cannot be tolerated. Therefore, on the facts of this case, the Court concludes that the defendant has failed to carry the burden that he will not flee or pose a danger to the community. Rule 46(c), Federal Rules of Criminal Procedure and Rule 9(c), Federal Rules of Appellate Procedure.

III. The Court further concludes that any appeal taken by the defendant will be frivolous and taken for purposes of delay. Rule 9(c), Federal Rules of Appellate Rpocedure and Title 18 U. S. C. §3148.

Order

Accordingly defendant's motion for granting of bail pending appeal should be and is denied.

 

 

[53-1 USTC ¶9352]United States of America, Plaintiff v. Ely Glazer, Defendant

In the United States District Court, Eastern District of Missouri, Eastern Division, No. 27125(2), 14 FRD 86, December 24, 1952

Evasion of taxes: Bail pending appeal.--Motion for bail after conviction for income tax evasion is denied where there was nothing new or novel in the complaint, the facts of the case are not unique, defendant had a fair trial, and no showing was made that the case involves a substantial question which should be determined by the appellate court, or that in the Court's discretion he should be admitted to bail pending appeal. The factor of hardship on the defendant is immaterial.

George L. Rob ertson, United States Attorney, and Ted A. Bollinger and Marvin C. Hopper, Assistant United States Attorneys, all of St. Louis, Mo., for plaintiff. Morris A. Shenker, 408 Olive Street, and Sidney Glazer and Martin A. Rosenberg, Arcade Building, St. Louis, Mo., for defendant.

Memorandum

HULEN, District Judge:

Defendant made an unsuccessful oral application for bail at time motion for new trial was overruled, following a conviction for income tax evasion on two counts. The sentence was a year and a day and a fine of $10,000.00 on Count One and a fine of $10,000.00 on Count Two. The following motion is now for ruling:

"The defendant renews his application for bail and calls the Court's attention to Rossi v. United States, 8th Cir., 11 Fed. (2d) 264."

The motion for new trial contained seventy-one assignments of error. By oral argument and brief only five of the complaints were submitted to this Court.

The motion for new trial was overruled December 12, 1952 (see memorandum opinion). On the same day defendant filed with the Clerk his election "to commence service of the sentence imposed."

A motion was filed asking for suspension of sentence. In substance it relates: "Tax liens were filed against the defendant in the amount of $679,293.72"; 1 that "The fair value of all of the defendant's assets in cash, bonds, real estate, evidence of indebtedness, stocks, etc." levied upon, turned over by defendant, or on which tax liens have been filed, "to satisfy the claims is of the approximate amount of $500,000.00." The motion concludes:

"b. Defendant has been advised that even though the claims of the United States Government may be excessive, that he may not expect to receive any of the funds that were turned over by him to the United States Government as the final claim will still be in excess of all of his assets.

"c. It would be to the best interests of the United States Government for defendant to remain at large and to continue his business, the earnings of which will be used to meet the claims of the United States Government."

Rossi v. United States, supra, was decided in 1926. The holding of that decision--

"Cases of this character, however, are rare, and accused and convicted persons under ordinary circumstances and in the vast majority of cases should be admitted to bail, both before their conviction and during the pendency of their writs of error until the appellate court has affirmed the judgments against them."

has been affected in our opinion by Rule 46(a)(2), Federal Rules of Criminal Procedure:

"Bail may be allowed pending appeal or certiorari only if it appears that the case involves a substantial question which should be determined by the appellate court. * * *"

Prior to the adoption of the new criminal rules, the Eighth Circuit Court of Appeals, in Bernacco, et al. v. United States, 299 Fed. 787, declared:

"The court is clear that the allowance to bail after conviction is not an absolute right, but entirely within the exercise of sound judicial discretion. This was true at common law."

Rule 42(a)(2) became the law in May, 1934. In United States v. Delaney, 8 Fed. Supp. 224, the impact of the new rule is stated:

"The shift from the use of 'frivolous' to 'substantial' would seem to be another indication of the still shifting emphasis. It apparently transfers the burden from the government to the defendant. That has always been the law in England."

In United States v. Burgman, 89 Fed. Supp. 288, the law is stated:

". . . two requisites must be met in order to justify the enlargement of a defendant on bail pending appeal. First, it must appear that the case involves a substantial question of law. Second, it must appear that the case is one in which in the discretion of the Court, it is proper to grant bail."

* * *

"When a defendant is convicted, the presumption of innocence vanishes and a heavy presumption of guilt supplants it."

This Circuit held, in Baker v. United States, 139 Fed. (2d) 721 (1944):

"A man who has been found guilty in District Court and sentenced has no absolute right to bail pending appeal; he has a right to apply for bail."

The inquiry must now be--is there any substantial question raised by defendant which should be determined by the appellate court, and, in the Court's discretion is this a proper case in which to grant bail?

It can and has been argued that for this Judge to pass on whether or not there is a substantial question presented on defendant's motion for a new trial which should be presented to the appellate court, is to abrogate to himself the prerogatives of the Judges of the latter Court. This can and must be true in a sense. But if the assertion of the conclusion is to be the determinative factor in granting bail, then Rule 46(a)(2) means nothing. Its force is equally spent if, when a motion for bail is presented, the Judge permits himself to be deterred from following the spirit and wording of the rule by the charge that to deny bail is to predetermine the action of the Court of Appeals. We think the Supreme Court meant to place a responsibility on the trial court when it promulgated Rule 46(a)(2). Therefore it is the duty of the Court to give its best efforts to meeting the responsibility. Defendant has his right to go to the Court of Appeals on the question of bail, without waiting for a hearing on the merits. If our judgment be error, the error can be corrected forthwith. A trial Judge should not arbitrarily deny bail on appeal and force all appealing defendants to go to the higher Court for a decision on bail. Each case should receive the Judge's conscientious attention and best judgment. We have been on the bench of this Court over nine years and during that time we have denied bail in three cases, including this one. We say without boast, but as some indication of the norm of consideration given to such matters, that in the other two cases the sentences were affirmed.

Defendant's oral motion for bail, as well as the written motion, were accompanied by no reference to any assignment of error. Defendant apparently is of the belief he is entitled to bail merely by applying for it. We have of our own motion gone back to the points presented in the motion for new trial and have reexamined them.

Are new or novel points raised in the motion for new trial? Are unique facts presented not covered by the controlling opinions? Are important questions concerning the scope and meaning of decisions of the Supreme Court presented? Is there a showing of denial of a fair trial? Such are matters to be considered, with the burden on defendant. (D'Aquino v. United States, 180 Fed. (2d) 271).

Defendant's main assignment goes to the question of the sufficiency of the evidence to make a submissible case. The defendant for 1945 and 1946 kept no books or records, or if any were kept he refused to make them available to the Revenue agents investigating defendant's tax returns. On request the defendant did produce some, but not all, of his cancelled checks on one bank. Neither defendant nor his auditor would furnish defendant's cancelled checks on another bank during the investigation. He refused to furnish a net worth statement. This left the plaintiff with no alternative but to use "such method as in the opinion of the Commissioner does clearly reflect the income" of defendant. (26 U. S. C. A. 41). They used the expenditures and net worth method. This method raises no new question. The same complaint defendant now makes has been made on many occasions. We recognize the law to be that a definite starting period must be fixed. The starting period does not have to be fixed "to a mathematical certainty". (United States v. Schuermann, 174 Fed. (2d) (8 Cir.) 397 [49-1 USTC ¶9281]). On a motion hearing defendant's attorney conceded the amount of assets was fixed definitely and correctly when the examination was made by Government agents. It was a simple matter to determine the assets acquired after December 31, 1944. The reasonable inference deducible from the evidence is that defendant's unreported income was from transactions in violation of the law. (Leeby v. United States (8 Cir.) 192 Fed. (2d) 331 [51-2 USTC ¶9497]). There is a basis in such testimony, not only for the source of income, but for intent to conceal such income from the Government. (United States v. Skidmore (7 Cir.) 123 Fed. (2d) 604 [41-2 USTC ¶9716]). Failure to keep records, keeping cash in safe deposit boxes, defendant's method of transacting his private business affairs, were obviously calculated not only to conceal their magnitude but to thwart successful investigation by others, and is further evidence of willful attempt to evade income tax. (United States v. Chapman (7 Cir.) 168 Fed. (2d) 997 [48-1 USTC ¶9312]). An atmosphere of secrecy and defiance has hovered over the defendant's case since its inception. We find that attitude in the refusal of the defendant to cooperate with the examiners of the Revenue Department, particularly after counsel and auditors for defendant came into the investigation. Not only has defendant refused to cooperate, but on every occasion when asked for an explanation on decisive matters, he has remained mute. This course of conduct continued up to and including the trial. Defendant did not take the stand. (It was present when defendant refused to let Government agents examine currency bills of large denominations which defendant had in his safe deposit box. The serial number was wanted to trace black market transactions from the east. It was present when defendant caused the examiners to receive a typed, unsigned statement that defendant would furnish certain cancelled checks, but thereafter failed to do so.) 2 After defendant employed attorneys they were given a list of various cash deposits, exchange items, checks, etc. for explanation. None of these were ever explained, despite repeated requests for information. Such conduct is compatible with fraud, inconsistent with innocence, and furnishes a necessary element of proof for a conviction on the expenditures and net worth method, under the statute on which the indictment was based. (Jelaza v. United States (4 Cir.) 179 Fed. (2d) 202 [50-1 USTC ¶9149]). There is nothing new or novel in defendant's complaint on this record. The facts are not unique. They represent a plan not uncommon and found in many cases of those who would cheat the Government on their lawful obligations. We think defendant had a fair trial. His guilt was established by circumstantial but strong evidence.

Defendant's attorney made the following statement in his oral argument for probation:

"That all of his years of labor, work and accumulation have been used up in satisfying the Government's claim; and not only that, but that in all probability there will be a substantial deficiency, in addition to the assets which have been used, and that it will be some years, even if he is successful earning any money, in attempting to satisfy these claims that the United States Government is claiming that they are owing, with the interest accumulating, it would be almost impossible, even if he were to earn more money than he is, for him to accumulate enough money to keep current.

* * *

"MR. HOPPER: Since the jeopardy assessment in the latter part of 1948, the defendant has paid approximately $250,000.00 on the total assets taxes, which originally approximated, with interest, I think around eight hundred fifty some odd thousand dollars. So that would bring the balance that we have suggested of about $600,000.00 now due and owing, including interest. As to just what the defendant's assets are for the liquidating of stock--"

"THE COURT: Over what period was the tax of $300,000.00?"

"MR. HOPPER: That was for the period, 1942 through 1951."

"MR. SHENKER: No, no. 1942 to 1947." 3

Order

Defendant's motion for bail is overruled, because it has not been made to appear that the case involves a substantial question which should be determined by the appellate court, or that in the Court's discretion defendant should be admitted to bail pending appeal.

1 The conviction was for failure to report income for years 1945 and 1946. Incomes for prior years are also made the basis for claims of civil liability.

2 This was developed on the hearing for bail and is not in the trial record.

3 On defendant's showing that all his assets are under government control, we made the fines collectible on execution.

 

 

[54-2 USTC ¶9676]E. L. Klingstein, Appellant v. United States of America, Appellee

(CA-4), In the United States Court of Appeals for the Fourth Circuit, No. 6893, 216 F2d 494, October 8, 1954

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond.

[1939 Code Sec. 145--similar to 1954 Secs. 7201-7203]

Criminal penalties: Bail pending appeal.--Taxpayer who was convicted of income tax evasion and sentenced was not allowed bail pending appeal. The Court refused taxpayer's contentions that the presentence investigation report was unfair and the parole officer was prejudiced against him on account of race.

Jacob P. Lefkowitz in support of motion, and James R. Moore, Assistant United States Attorney, in opposition.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

On Motion for Bail

PER CURIAM:

This is a motion to admit to bail pending appeal a person who has been sentenced to a term of imprisonment on a plea of nolo contendere to a charge of fraudulent income tax evasion. Appellant complains because the sentencing judge had before him a presentence investigation report which appellant contends to be unfair. We have examined the report of which appellant complains and find that the criticisms made of it are entirely unfair and unwarranted, and while it contains many matters unfavorable to appellant it also contains many favorable matters, and the report does not sustain the charge of appellant that the probation officer was prejudiced against him on account of race. The face that the report was before the sentencing judge furnishes no ground for the relief which appellant asks. We have examined also the proceedings had at the time of sentence and find no ground for the contention that appellant was denied due process or that the judge refused to listen to matters urged in defense or mitigation of punishment. On the contrary it appears that the judge gave appellant full opportunity to be heard and to present witnesses in his behalf and listened for several hours to his counsel and to witnesses offered in his behalf. The showing made on the motion before us does not justify admission to bail pending appeal.

Motion denied.

 

 

[35-2 USTC ¶9458]John D. Kitrell, also known as J. D. Kitrell, Appellant, v. United States of America, Appellee

(CA-10), United States Circuit Court of Appeals, Tenth Circuit, No. 1253, 76 F2d 333, Decided March 28, 1935, Cert. denied, 296 U. S. 643, 56 S. Ct. 248

Appeal from the District Court of the United States for the District of Colorado.Bail pending appeal is denied, the Court holding that objections to the sufficiency of the indictment were not well taken. Bail is not allowed pending appeal unless it appears that the appeal involves a substantial question which should be determined by the appellate court.

Harry Silverstein (David Rosner was with him on the application), for appellant. Byron G. Rogers, Assistant United States Attorney, for appellee.

Before LEWIS and McDERMOTT, Circuit Judges.

PER CURIAM:

Appellant was convicted on three counts of an indictment, each of which was based on the Revenue Act of 1928. 45 Stat. 835 (26 U. S. Code, Sec. 2146). Clearly the pleader rested counts one and two on sub(b) of said section, which defines a felony; and count three on sub(a) which defines a misdemeanor. Count one charges the appellant with a willful and felonious attempt to defeat and evade his income tax in an amount exceeding $70,000 for the calendar year 1930. It is set forth that appellant's gross income for 1930 was more than $300,000, and that his net income was in excess of that amount, and it is charged that as a means of willfully and feloniously attempting to defeat and evade said tax he willfully failed to make a return on or before March 15, 1931, or at any other time or any return whatsoever, and that he never made any payment to the Collector of Internal Revenue of any sum on account of said tax for said calendar year.

The charge in the second count and the facts therein set forth are in substance like those in the first count, except the tax which he attempted to defeat and evade was for the calendar year 1931 in the amount of more than $8,000.

The third count also deals with the tax for the calendar year 1931, but it only charges a willful failure to make return for that year on or before March 15, 1932, or at any other time, and that he has never made payment of any sum whatever to the Collector on account thereof.

The appellant was sentenced to four years' imprisonment on counts one and two, said terms to run consecutively, and he was fined $2,500 on each count. On the third count he was sentenced to one year's imprisonment to run concurrently with the terms imposed on the other two counts and fined $1000.

The bill of exceptions has not been settled, and, of course, is not here.

The application here [for bail pending appeal] rests only on an attack on the sufficiency of the several counts of the indictment, more particularly on counts one and two. It is said that each is bad for duplicity in that each charges an attempt to defeat and evade the tax and a failure to make a return, and that the only method of tax evasion charged is the failure to make return. But the third count does not charge that the defendant willfully attempted to defeat and evade the tax for 1931. It only charges that his gross income was over $5000, bringing him within the requirement of the statute that he make return, which he willfully failed to do, whereas the offenses charged in the first and second counts were willful attempts to defeat and evade the tax for each of the two years. Nor can it be maintained that either of the counts is duplications. The questions thus raised seem to now be authoritatively settled against appellant's contention. O'Brien v. United States, 51 F. (2) 193, Certiorari denied, 284 U. S. 673; Oliver v. United States, 54 F. (2) 48, Certiorari denied, 285 U. S. 543; United States v. Miro, 60 F. (2) 58; United States v. Commerford, 64 F. (2) 28, Certiorari denied, 289 U. S. 759; Hargrove v. United States, 67 F. (2) 820. See also, Albrecht v. United States, 273 U. S. 1, 11; Blockburger v. United States, 284 U. S. 299.

The two subparagraphs (a) and (b) express a clear intention to define different offenses. The first makes it a misdemeanor to willfully fail to make the required return. The second makes it a felony to willfully attempt in any manner to evade or defeat the tax or the payment thereof; and the counts make that distinction clear and definite. They separately charge in accord with the definition.

Application for bail was first made to the District Judge. In denying it the District Judge said: "Being of the opinion that there is no substantial question involved I have no alternative but to deny bail at this time." We take that statement as having been made because of the last paragraph of Rule 6 of the Rules adopted by the Supreme Court in Criminal Cases. 292 U. S. 663.

Bail shall not be allowed pending appeal unless it appears that the appeal involves a substantial question which should be determined by the appellate court.

The discussion of the District Judge preceding the excerpt supra, relates in part to the sufficiency of the three counts. Assuming the authority and duty of this Court to overrule the District Judge in that finding, a proper regard for his views causes us to feel that we should be slow to take a contrary view, unless clearly convinced he was in error. However, our own investigation and consideration of the contentions for the applicant convince that the criticisms of the charges in the three counts are not well taken.

The application is denied.

 

 

[57-2 USTC ¶9786]United States of America, Plaintiff-Appellee v. James D. Irving, Defendant-Appellant

(CA-7), U. S. Court of Appeals, 7th Circuit, No. 12072, 245 F2d 354, 6/27/57, Denying motion for bail pending appeal from unreported District Ct. decision

Emergency motion for bail pending appeal.--The court denies taxpayer's emergency motion for bail pending appeal from an order of the District Court rejecting taxpayer's motion for a new trial based on newly discovered evidence, and denying bail. Taxpayer's 1952 income was reconstructed by the government on the basis of net worth increase as disclosed by statements of assets and liabilities as of December 31, 1951 and December 31, 1952. The statement showing a net worth of about $16,000 at the end of 1951 was signed by the taxpayer. The net worth at the end of 1952 was about $220,000. The motion for a new trial and for bail is based on taxpayer's assertion that he has found a receipt for $150,000 which was given to him in September 1951 for investment in a legitimate business venture, and that his 1952 reconstructed income should be reduced by that amount. Since taxpayer claims that this receipt was found in September, 1956, it must have been available when his brief was filed in October, 1956, on his first appeal from the District Court conviction, but its existence was not disclosed at that time. Bail is denied because the appeal is frivolous or taken for delay, or both.

Harry G. Fins and Alvin A. Truner, Chicago, Ill., for appellant. Rob ert Tieken, United States Attorney, Chicago, Ill., for appellee.

Emergency Motion for Bail Pending Appeal

FINNEGAN, Circuit Judge:

Earlier this year we affirmed the judgment of conviction of Irving [United States v. Irving, 241 Fed. (2d) 306 (7th Cir. 1957) [57-1 USTC ¶9398], rehearing denied March 14, 1957, certiorari denied June 3, 1957] who now applies for an order admitting him to bail pending his appeal from an order entered below denying his motion for a new trial on the ground of newly discovered evidence. The cause is here on the docketing of Irving's notice of appeal June 24, 1957 after the district judge, who rejected the motion for new trial, denied bail. He was the same judge who presided at Irving's trial.

During the course of our opinion (241 Fed. 2d 306, 307 [57-1 USTC ¶9398]) we said, inter alia; "A revenue agent was told by Irving, or his representative, that the 'bulge' in his expenses of about $150,000 . . . arose out of money given him by a Rob ert Mays to invest in a legitimate business. No receipts for that sum were produced or found and no claim has been made against Irving by Mays' estate . . ." Irving, in his current motion states "During the course of preparation for his trial, the affiant diligently attempted to locate two receipts whereby he acknowledged the receipt of a total of $150,000 in September 1951 from Rob ert Mays . . ." Judgment on the jury's verdict was entered May 28, 1956. In his affidavit, submitted in support of his current application for bail, Irving states: "The affiant [Irving] did not know of the whereabouts of these receipts until Mr. Edward L. White telephoned him on September 12, 1956 to advise him that these receipts were found among other papers which belonged to Rob ert Mays and were placed in Mr. White's safe." The balance of this affidavit is devoted to an exposition of the circumstances concerning Mays' proposed investment in business with Irving and the death of Mays in January, 1952. Several other affidavits are also submitted along with this motion for admission to bail. One is by an attorney who in substance relates discussion of the proposed business venture with Mays and Irving, but this affidavit contains nothing corroborating the receipts, nor showing transfer of funds from Mays to Irving. The supervisor of the Division of Small Loans and Bail Bonds, Department of Insurance, State of Illinois has also provided an affidavit here. His is a highly generalized statement reflecting conferences with Mays and Irving, there being other persons present, regarding issuance of a small loans license. Again the affidavit is unsupporting on the matter of receipts or movement of moneys from Mays to Irving. These last two affidavits merely indicate that Irving and Mays contemplated the possibilities of a joint business venture.

Edward L. White, finder of the receipts, now urgently pressed on us by Irving, has also made an affidavit, tracing his own business activities and shifts of locations up to the time he called a representative of the Mosler Safe Company to drill open the safe, September 12, 1956, in which these receipts were found. Among White's statements embodied in his affidavit are these:

"9. Sometime during the latter part of September 1951, Rob ert Mays made a usual visit at 5047-49 Indiana Avenue. After he left, the affiant noticed that Mr. Mays had left some papers on the desk. The affiant did not examine these papers but telephoned Mr. Mays, who asked the affiant to place them in the affiant's Mosler safe. The affiant complied with this request. Shortly thereafter, Rob ert Mays became ill, was hospitalized, and died in January 1952."

"12. On September 12, 1956, while the affiant was searching the contents of the safe for the title to the truck, he came upon the papers which Rob ert Mays had left in the office in the latter part of September 1951. The affiant examined these papers and among them found two receipts, both signed by James D. Irving. The first receipt, dated September 3, 1951, acknowledges the receipt of $50,000.00 'For Loan Co. From Rob ert Mays.' The second receipt, dated September 12, 1951, acknowledges the receipt by James D. Irving of $100,000.00 'From Rob ert Mays For Loan Co.'"

"13. This is the first time that the affiant knew of the nature of the papers left by Rob ert Mays in September 1951. After the death of Rob ert Mays in January 1952, the affiant was never contacted either by the widow or Arthur J. Wilson, the admin istrator of the estate of Rob ert Mays, relative to any personal effects of the deceased Rob ert Mays."

"14. The affiant notified James D. Irving the same day."

The indictment on which Irving was convicted is grounded on a violation of Internal Revenue Code of 1939, §145(b), 26 U. S. C. §145(b) for the calendar year 1952. This was a net worth case and the government introduced as an exhibit the statement of Irving's assets and liabilities as of December 31, 1951 signed by him. Our examination of the record filed in the first appeal discloses the following items listed on the statement: "Assets: Cash in bank, $1,189.50; Cash on hand: $13,000 . . . net worth as of December 31, 1951, is $16,489.50. . . ." There are some adjustments in the record, but these figures suffice here. A government witness testified during the trial that at the end of 1952 "There were assets of $225,103.13; liabilities of $5,729.74, making a net worth of $219,773.39."

The gist of Irving's claim for bail at this instant stage is shortly stated in this passage from his latest motion:

"At the time of the discovery of these documents (the two receipts), this cause was in the process of appeal and, under the provisions of Rule 33, the District Court could grant no relief until the appeal had been terminated on June 10, 1957. Appellant respectfully submits that the newly discovered evidence is material and if in his possession at the time of trial, could have very well resulted in a verdict of acquittal. This involved a net worth case and the inability of the Government to prove unreported income of $176,000 as alleged, but rather only $26,000, may have well caused a verdict of acquittal by the jury."

Of course the merits of Irving's motion for a new trial on the ground of newly discovered evidence is not now before me for decision. See e.g. United States v. Marachowsky, 213 Fed. (2d) 235, 238 (7th Cir. 1954). But his motion for bail and documents filed in support of it are all part of the backdrop against which I must apply liberalized Rule 46(a)(2) governing bail on review after July 9, 1956. Federal Rules of Criminal Procedure, 18 U. S. C.

[Appeal Is Frivolous or Taken for Delay]

I am denying bail because in my opinion Irving's present appeal is frivolous or taken for delay, probably both. It is frivolous in my considered judgment when the impact of his affidavit is fully appreciated. Irving knew the existence of the receipts on September 12, 1956. From the docket entries in the office of the clerk of this court it appears that the first appeal was docketed August 20, 1956 and after an extension of time, Irving as defendant-appellant filed his brief and appendix on October 19, 1956. No move of any kind was made by defense counsel to apprise this court of the receipts which Irving, on his own sworn statement, now tells me he was aware of in September, 1956. Significantly, I think, Irving's then defense attorney waived oral arguments in the cause on January 16, 1957. This court was then still unadvised of that which Irving claims is now so critical as to warrant bail. When Irving's petition for rehearing was filed February 27, 1957 the attorney who briefed for Irving and earlier waived oral argument, took us to task on the matter of the receipts, despite the fact, I am presently informed, that his client knew of them in September, 1956. I am unaware of the contents of Irving's petition to the U. S. Supreme Court for certiorari to our Court from our judgment of February 12, 1957, but I think this "newly discovered evidence" was commencing to become a little stale along about that time.

I would underscore White's statement of the September, 1956 date because it corroborates Irving and for the purposes of the instant motion satisfies me that Irving possessed the information in September. Nothing in the papers before me, at this time, shows that Irving withheld the information from his counsel or a date when the receipts were handed over, if they were. What has been thus traced spells out inexcusable silence and delay.

Although Irving's present attorneys have left unmentioned Ward v. United States, 76 S. Ct. 1063 (1956) [56-2 USTC ¶9932] and United States v. Allied Stevedoring Corporation, 235 Fed. (2d) 909 (2nd Cir. 1956) [57-1 USTC ¶9394] I have considered them in reaching may ruling here based upon the controlling force of Rule 46(a)(2) Federal Rules of Criminal Procedure, 18 U. S. C.

"Bail may be allowed pending appeal . . . unless it appears that the appeal is frivolous or taken for delay . . . ."

That part of the Rule following the word "unless", I think, confers discretion upon a judge of this court.

The emergency motion for bail pending appeal is hereby denied.

 

 

[56-2 USTC ¶9932]John Ward and Michael Bowers, Petitioners v. United States of America

Supreme Court of the United States, 76 SCt 1063, 8/8/56, Aff'g unreported CA-2 decision which affirmed District Court (U. S. v. Allied Stevedoring Corp., et al.), 56-2 USTC ¶9800

On Petition for Admission to Bail.

[1939 Code Sec. 145(b)--similar to 1954 Code Sec. 7201]

Criminal tax evasion: Bail pending appeal on conviction and sentence: New Rule 46(a)(2) of Federal Rules of Criminal Procedure.--Bail was denied defendants by the the trial court after conviction and sentence of defendants for income tax evasion under 1939 Code Sec. 145(b), for the reason that the likelihood of their flight "was a danger not to be disregarded." Justice Frankfurter of the Supreme Court, sitting ad hoc Circuit Justice, also denies defendants' petition for bail, awaiting final decision on the effect of the new Rule 46(a)(2) of the Federal Rules of Criminal Procedure, effective July 9, 1956, which would allow bail pending appeal unless it appears that the appeal is frivolous or taken for delay.

JUSTICE FRANKFURTER, as Circuit Justice:

This is a petition for bail pending an appeal before the Court of Appeals for the Second Circuit from a conviction for evasion of income taxes, in violation of 26 U. S. C. §145(b). An indictment against the petitioners, together with some co-defendants, was filed on July 29, 1953. They were arraigned on July 30, 1953, but not brought to trial till February 6, 1956. After a seven-weeks' trial, they were found guilty, and on April 16, 1956, Bowers was sentenced to five years' imprisonment and Ward to four years' imprisonment, with an additional fine of $10,000 for each. An application for bail was denied by the trial court. A notice of appeal was duly filed and made the basis of a motion for bail before the Court of Appeals after its denial by the District Court [56-2 USTC ¶9800] and by a single Circuit Judge. The motion was made on May 2, argument was heard on May 7, and after some intermediate steps the Court of Appeals denied the motion, on June 4, 1956. Thereupon, a petition for bail came before me, sitting as ad hoc Circuit Justice, since my brother HARLAN, the regular Circuit Justice for the Second Circuit, had recused himself.

[New Rule 46(a)(2)]

When the Court of Appeals disposed of the motion for bail, on June 4, 1956, the Rule then in force for admission to bail after conviction was as follows:

"Bail may be allowed pending appeal or certiorari only if it appears that the case involves a substantial question which should be determined by the appellate court. . . ." Rule 46(a)(2) of the Federal Rules of Criminal Procedure.

But on April 9, this Court had submitted to Congress a new Rule 46(a)(2), to take effect on July 9, 1956. It reads:

"Bail may be allowed pending appeal or certiorari unless it appears that the appeal is frivolous or taken for delay. . . ."

Obviously, as the Government recognizes, the amendment has greatly liberalized the basis for admission to bail in the federal courts pending an appeal from a conviction. By the time the matter first came before me, the new Rule was law. Since the Court of Appeals had denied bail without giving reasons, I could not tell whether they took into account the changed situation presented by the Rule which was then in process of becoming, though it was not formally, effective. Accordingly, it seemed to me appropriate that the lower courts should have an opportunity to pass upon the petition for bail under the standards that now govern. I therefore remanded the matter to the Court of Appeals for direct disposition by it, or for further consideration by the District Court. The Court of Appeals took the latter course and on July 17 determined that the request for bail should again be passed on by the trial judge. After further hearing, the trial judge again denied bail, supporting his denial by what the Court of Appeals has characterized as "a carefully reasoned and detailed opinion." The motion for bail by Bowers and Ward was thereupon renewed before the Court of Appeals. That court, in a per curiam opinion, denied the renewed motion, whereupon the petitioners again asked me to allow bail.

Both the lower courts have set forth the grounds for their denial. They have expressed themselves to be duly mindful of the controlling force of Rule 46(a)(2), as amended. The issues that are raised here have been fully canvassed in the briefs filed by the petitioners and the Government. Both sides have addressed themselves to the proper scope of the amended Rule and its appropriate application to the specific circumstances of this prosecution.

[Rule Liberalized]

It is common ground that the amended Rule 46 has made a decided change in the outlook on granting bail after conviction. The Government, as I have already indicated, accepts the statement in my memorandum of July 13, 1956, that the old Rule 46(a)(2) has by the amendment "been greatly liberalized." Putting to one side its qualifications, I think the Government is right in saying that the granting of bail except for "frivolity" establishes a higher minimum standard than the old concept of "substantial question." It is also right in indicating that the new Rule effectuates a shift from putting the burden on the convicted defendant to establish eligibility for bail, to requiring the Government to persuade the trial judge that the minimum standards for allowing bail have not been met. The authoritative interpretation of the amendment must, of course, await a decision by the Supreme Court. In the meantime, however, one cannot escape his individual responsibility in passing on a petition like this.

The Government commendably acknowledges that the new Rule has made an important change. The Rule expresses a general attitude, the significance of which is that inasmuch as an appeal from a conviction is a matter of right, the risk of incarceration for a conviction that may be upset is normally to be guarded against by allowing bail unless the appeal is so baseless as to deserve to be condemned as "frivolous" or is sought as a device for mere delay. The Government suggests, however, that there may be considerations other than frivolity or delay, which may conscientiously move a trial judge to deny bail without disloyalty to the amended Rule. I am bound to say that the Government is rightly cautious in suggesting the extent of the area of discretion that still remains under the amended Rule.

[Reason for Denying Bail]

Elaboration of whatever occasions for discretion may remain had better be left to the specific occasions which may give rise to such claims. The present situation presents one consideration that suffices for disposition of this case. The granting of bail certainly presupposes confidence that a defendant will respond to the demands of justice. In fixing the amount of bail, Rule 46(c) explicitly adverts to the trust-worthiness of a defendant. The bail must be of an amount to "insure the presence of the defendant." Impliedly, the likelihood that bail within tolerable limits will not insure this justifies denial of bail. One of the reasons that led the District Court to deny bail to Bowers and Ward was "that there is considerable motivation for these defendants to flee the Court's jurisdiction and that they have ample means to accomplish this purpose." I read this to mean that the District Judge felt that the likelihood of a flight was a danger not to be disregarded. I cannot reject this conclusion of the District Court because it was based on confidential probation reports. See Williams v. New York, 337 U. S. 241. Such a judgment is, to be sure, a prophecy but I cannot sit as the district judge and make my own. Presumably, this reason of the District Court in denying bail was one of the considerations included in the "reasons" for the action taken by the District Court which the Court of Appeals respected in not overruling "the exercise of sound judgment" by the District Court. On this ground, I must deny the petition.

Asking a Circuit Justice to grant bail pending appeal in the Court of Appeals, after denial by the two lower courts, presents a difficult dilemma. An error of principle in the denial of bail, an indisputable question of law, calls for correction, whether the matter comes before the whole Court, as in Stack v. Boyle, 342 U. S. 1, or before an appropriate Circuit Justice. But when it is a question of the application of duly recognized standards, and such application turns on what may fairly be called "facts," or on a necessarily prophetic judgment like the trustworthiness of a convicted defendant, I do not conceive it to be the function of a Circuit Justice to exercise an independent judgment as though he were sitting in the district court. And yet, even where "facts" are involved, a standard may be recognized in principle but honored, however unconsciously, in the breach. I think the practical way out of this dilemma lies in the more effective admin istration of criminal justice and, more particularly, in an appropriate procedure for criminal appeals.

[Court Criticizes Delays]

Nothing has disturbed me more during my years on the Court than the time span, in so many cases that come here, between the date of an indictment and the final appellate disposition of a conviction. Such untoward delays seem to me inimical to the fair and effective admin istration of the criminal law. I see no reason whatever why we in this country cannot be as expeditious in dealing with criminal appeals as is true of England. Applications for appeals are heard in the English Court of Criminal Appeal within eight weeks of conviction; in murder cases appeals "are generally before the court not later than three weeks after the conviction." Lord Chief Justice Goddard, "The Working of the Court of Criminal Appeal," 2 J. Soc'y Public Teachers of Law 1, 3 (1952). An examination of the volume of reports of the Court of Criminal Appeal for the year 1954 reveals the following: Generally only two to three months elapsed between the entry of the judgment from which review was sought and the actual hearing of an appeal; the shortest period was one month, in a murder case; the longest period was five and one-half months. This is true of a court, it should be noted, that has something like 1200 applications annually coming before it, disposed of by judges who have considerable additional judicial duties. Conviction in this case was had nearly four months ago, and probably two months more will pass, unless I am misinformed, before the case may be heard on its merits. The indictment here was found more than three years ago and the appeal is not likely to be reached in less than six months after conviction.

I do not mean to imply criticism of any person or judge or court for what is a good illustration of the general leaden-footedness of criminal prosecutions. The fault lies with the habit of acquiescence in what I deem to be a reprehensible system. I duly note that in this case it was suggested to the petitioners by the Circuit Judge in denying their application for bail to apply for an order advancing the case for early argument, and on the part of the Government there was an offer toward facilitating the appeal, although its specific scope and effectiveness are controverted by the petitioners. To my mind, however, a more drastic procedure for the early disposition of a criminal appeal than agreement among the parties is required. The Government should, I believe, be the active mover for an early hearing, thus putting upon the convicted defendant the responsibility for setting forth sound reasons for postponing such a hearing. I am not able to understand why it should not become the settled practice for the Government to move, after an appeal is taken from a conviction, for the hearing of the appeal on the stenographic minutes at the earliest possible moment that a Court of Appeals can accommodate its calendar to the disposition of business that has first call, namely, a criminal appeal. This is especially desirable in a case where bail has been denied. The time to argue a case is when the various legal points, including the claim that there was not sufficient evidence to go to the jury, are fresh in the minds of counsel. I cannot but believe that it would, on the whole, also facilitate consideration by courts of appeals of criminal appeals to have the minutes of the trial before them and to be referred by counsel, fresh from combat, to the claims in controversy as they are supported or contradicted by the stenographic minutes. I am confident that all the courts of appeals would be responsive to such a demand for as speedy a disposition of criminal appeals as the interests of justice permit, including, of course, in the interests of justice, adequate preparation and due deliberation. Motion denied.

 

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