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[70-1 USTC ¶9227] United States of America , Appellee v. Benjamin J. Butera, Defendant, Appellant

(CA-1), U. S. Court of Appeals, 1st Circuit, No. 7387, 420 F2d 564, 1/21/70, Affirming unreported District Court

[Code Sec. 7201]

Crimes: Attempted tax evasion: Indictment: Grand jury selection: Discrimination: Prima facie case: Burden of proof.--The government successfully met its burden of proving a fair and importial method of selecting members of a grand jury where the defendant, indicted for attempted tax evasion, had presented a prima facie case of discrimination showing underrepresentation of (1) certain age groups, (2) women, (3) the less educated.

Peter Mills, United States Attorney, Edward G. Hudon, Assistant United States Attorney, Portland , Me. , for appellee. Lawrence E. Merrill, Gene Carter, Gerald E. Rudman, Rudman, Rudman & Carter, 96 Hailow St., Bangor, Me., for appellant.

Before ALDRICH, Chief Judge, MCENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge:

Benjamin J. Butera was indicted for attempted income tax evasion by the federal grand jury for the Southern Division of Maine in March 1968. On April 8, he filed with the district court a motion to dismiss the indictment on the ground that it had been returned by a grand jury drawn from an improperly constituted jury pool. A hearing was had and evidence heard, and defendant's motion was denied. Sub. nom. United States v. Bryant, 291 F. Supp. 542 (D. Me. 1968). ¹ Defendant was subsequently found guilty of the offense charged. He brings this appeal to contest the denial of his motion to dismiss the indictment.

Defendant contends that the grand jury which returned his indictment was improperly constituted because certain segments of the population of southern Maine were inadequately represented on the jury pool from which his grand jury was drawn. More specifically, he claims underrepresentation of (1) the young and the very old, (2) women, (3) the less educated, and (4) people of certain Maine counties. He concedes that proportional representation is not required; he also concedes that the disparities did not arise from any purposeful or deliberate discrimination in the sense that the jury pool selection system was admin istered with a lack of good faith. He claims simply that the system used in Maine resulted in unconstitutional discrimination against members of what he claims are legally cognizable groups. ²

The Constitutional Mandate

This contention necessitates a determination of what the Constitution requires concerning the selection of juries. The Supreme Court has consistently required that jury selection systems draw their jurors from a fair cross section of the community. ³ It has been suggested that such non-discriminatory jury selection is an essential aspect of our democratic form of government. ⁴ However, the Court has long recognized that fair and reasonable qualifications for jury service eligibility can be imposed even though they detract from a cross section in the actual jury pools. ⁵ Moreover, the Court has recognized that it is neither possible nor necessary--in order to assure an impartial jury--that there be a fair cross section of the community on each individual grand and petit jury. ⁶ In particular, Hoyt v. Florida, 368 U. S. 57 (1961), demonstrates the Court's conviction that an impartial jury can be assured even though members of one's class are not present either on the jury or in the jury pool. In that case, despite the fact that the defendant--who had killed her husband with a baseball bat--was tried by an all-male jury drawn from a virtually all-male jury pool, the Court upheld the conviction because there had been no impermissible discrimination against women in the operation of the jury system.

We conclude from these cases that the Supreme Court has focused on whether the alleged underrepresentation in the jury pool is the result of discrimination in the juror selection system. Concededly, most of the jury exclusion cases have involved alleged state discrimination and thus the application of the Fourteenth Amendment's assurance of equal protection. Here we deal with a federal jury and can exercise our supervisory power in addition to the Constitutional requirements. ⁷ However, even in exercising this supervisory power, the Supreme Court has focused on discriminatory selection practices. Ballard v. United States , 329 U. S. 187, 195 (1947); Thiel v. Southern Pacific Co., 328 U. S. at 220, 225. We therefore understand the Constitutional mandate to be for a jury selection system free of discrimination.

In carrying out this mandate, the Supreme Court has normally imposed on the defendant the initial burden of demonstrating, prima facie, the existence of purposeful discrimination. ⁸ However, the exact meaning of "purposeful discrimination" has been elusive at best. Such discrimination has been found when the jury commissioners limited their selections to acquaintances or certain lists of persons which necessarily resulted in discrimination against a class of persons not falling within either category. ⁹ It has been found when Negroes were underrepresented and the list or method used indicated each prospective juror's race, thereby providing the opportunity for discrimination. ¹⁰ Sometimes it has been found when complete exclusion or significant disparities existed which could not be adequately explained or justified by the responsible officials. ¹¹ At other times it has been found when jury commissioners, albeit completely well-intended, deliberately excluded certain groups. ¹²

Thus, while "purposeful discrimination" may connote an element of bad faith in ordinary usage, the term has not been so limited by the Supreme Court; rather, the breadth with which the term has been used by the Court indicates that purposeful discrimination exists whenever significant unexplained disparties exist. In other words, it is not the significant disparties themselves which are unconstitutional, Atkins v. Texas, 325 U. S. at 403-404; Hoyt v. Florida, 368 U. S. at 69; they only raise the inference of discrimination. E.g., Billingsley v. Clayton, 359 F. 2d 13, 17 (5th Cir. 1966); cert. denied, 385 U. S. 841 (1966); Witcher v. Peyton, 382 F. 2d 707, 709-710 (4th Cir. 1968); Salary v. Wilson, 415 F. 2d 467, 470-471 (5th Cir. 1969). Once that inference has been raised, it is the government's failure or inability to demonstrate that the disparities are not the product of discrimination which confirms the inference and invalidates the jury pool. E.g., Witcher v. Peyton, 405 F. 2d 725 (4th Cir. 1969). Finally, our reading of the cases indicates that underrepresentation of the more sociologically distinct groups in our country necessitates a more compelling demonstration by the government to overcome the inference of discrimination. Compare Hoyt v. Florida , 368 U. S. 57 (1961) with Whitus v. Georgia, 385 U. S. 545 (1967).

Defendant's Prima Facie Case

Defendant has the burden of showing, prima facie, discriminatory selection practices. White v. Georgia , 385 U. S. at 550-551. Equally important, he has to show such discrimination against "distinct" groups in the general population. Hernandez v. Texas , 347 U. S. at 478-480. We think he has disclosed sufficient disparities, in three cognizable groups, to raise a reasonable inference of discrimination which the government should come forth to dispel.

Defendant's first claim relates to age; he insists that the young and very old were not adequately represented on the jury pool. Obviously there are some significant disparities in the age groups as defendant has classified them. ¹³ Equally obvious, we think, is the problem of deciding what age groups are cognizable for purposes of defendant's prima facie case. See King v. United States , 346 F. 2d 123, 124 (1st Cir. 1965). We do not believe that that question can be given a definitive answer which will be satisfactory for all cases; rather, we think that age groupings must be viewed from several perspectives in order to give a fair view of the significance of any disparity.

We take defendant's breakdown of age groups as one acceptable perspective. More importantly, we note that there were only 148 persons under age 40 when defendant's "true cross section", see n. 13, indicated 335, and that there were only 20 persons under age 30 when the "true cross section" indicated 147. Below age 35, defendant's three age groupings show minimal representation on the jury pool; above age 35, the representation appears satisfactory and raises no inference of discrimination. ¹⁴ These observations, when taken together, indicate to us a sufficient disparity to infer--in the absence of some explanation and justification--some discrimination against young adults. Moreover, the government has not directed our attention to any jury qualification or exemption which would on its face adequately explain this underrepresentation of young adults. ¹⁵

Finally, we are satisfied that young adults constitute a cognizable--though admittedly ill-defined--group for purposes of defendant's prima facie case. We cannot allow the requirement of a "distinct" group to be applied so stringently with regard to age grouping that possible discrimination against a large class of persons--in our case, those between 21 and 34--will be insulated from attack. Nor can we close our eyes to the contemporary national preoccupation with a "generation gap", which creates the impression that the attitudes of young adults are in some sense distinct from those of older adults. That apparent distinctness is sufficient for us to say that neither class could be excluded from jury pools without some justification. Accordingly, we find the "significant disparity" with regard to age which raises the inference of discrimination and shifts the burden of explanation to the government.

Defendant's second claim relates to an alleged discrimination according to sex; his figures indicate that the actual jury pool was only 36 per cent female when the "true cross section" was about 52 per cent female. While this class poses no problem of definite identification, the disparity is not so great as it was with regard to age. However, a 30 per cent underrepresentation of so large and important a group as women cannot lightly be dismissed; it at least raises an inference of discrimination. Unlike the situation in Hoyt v. Florida, 368 U. S. 57 (1961), there is no statutory provision to explain the disparity. That males and females can have sufficiently different points of view to be considered legally cognizable groups for purposes of defendant's prima facie case should not require the authority which we nevertheless cite. Ballard v. United States , 329 U. S. at 193-194 (Douglas, J.).

Defendant's third claim relates to educational attainment; he insists that his statistics indicate an impermissible underrepresentation of the less educated. ¹⁶ Expressed in another manner, they indicate that 83.6 per cent of the actual jury pool had at least a high school diploma, while only 43.2 per cent of the general population of Maine over age 25 did; 18.1 per cent of the actual jury pool had at least a college degree, compared with 5.5 per cent of the general population.

It seems clear that these disparities give rise to an inference of discrimination against the less educated, despite the difficulty, similar to that encountered with regard to age groupings, of defining any precise group to be termed "less educated". Again, to require a more precise definition would introduce unnecessary and unrealistic inflexibility and might effectively preclude anyone from ever showing a "distinct" class in terms of educational attainment. Moreover, we think the statutory requirement of literacy on its face explains only a part of the variance; there is no statutory provision for "blue ribbon" juries which might explain the remainder. Fay v. New York , 332 U. S. 261 (1947). Finally, we are convinced that the less educated are a sufficiently large group with sufficiently distinct views and attitudes that its diluted presence on the actual jury pool requires some explanation by the government. See Thiel v. Southern Pacific Co., 328 U. S. at 220, 223-224.

Defendant's fourth contention gives us more difficulty. His figures indicate some disparities between the actual jury pool and the general population of southern Maine in terms of county residence. ¹⁷ First of all, these are generally not as serious discrepancies as those which have appeared above. Secondly, we note that the relevant statute provides that jurors can be selected with regard to their distance from the courthouse, 28 U. S. C. §1865(a) (1964), the validity of which has not been attacked by defendant. See Katz v. United States, 321 F. 2d 7, 8-9 (1st Cir. 1963), cert. denied, 375 U. S. 903 (1963). At least part of these rather minor disparities may be attributable to this statute. More importantly, however, we are not aware that residents of counties can be said to hold views and attitudes which are in any way "distinct" from those of their neighbors in nearby counties, nor has defendant given us any evidence of such distinctness. While common experience tells us that people's attitudes differ to some degree along lines of age, sex and extent of education, we are not aware that they differ along county lines. We have been willing above to give a broad meaning to the requisite "distinctness" of classes but in each instance we could point to some indication that the groups isolated by defendant--at least in a general sense--possessed the essential element of distinctness. ¹⁸ That term would have no meaning at all were we to say--in the absence of any supporting evidence--that residents of some counties have views and attitudes genuinely distinct from those of nearby counties. Cf. Krause v. Chartier, 406 F. 2d 898, 901 (1st Cir. 1968) (drawing of jurors from last names T-Z not unconstitutional).

The defendant having raised an inference of discrimination against young adults, women, and the less educated, the burden shifts to the government to dispel that inference. It should be remembered at the outset that, while a true cross section is the ultimate ideal, it is by no means the Constitutional mandate. What is required is a jury selection system free of discrimination against properly cognizable groups.

The Government's Explanation

The Government offered the testimony of one of the Jury Commissioners--the other having died prior to the hearing--as well as various documents evidencing the manner in which the "key man" system was admin istered in Maine during the 1960's. A full explanation of the system appears in United States v. Bryant, 291 F. Supp. at 544-546. Briefly, the two Jury Commissioners, working in conjunction with the district court, first determined that about 900 persons were needed for the jury pool in the Southern Division. They then determined how many of those 900 should be drawn from each community by ascertaining the total number of registered voters in southern Maine , dividing that number by 900, finding that about one of every 275 registered voters would be needed, and then allocating a rough quota to each local community based on that proportion. Thereafter, they obtained through the Maine Register the names of several hundred "key men", most of whom were local town officials. ¹⁹ These key men were asked by letter to send the names of four or five potential jurors to the Jury Commissioners, who then sent questionnaires to the persons recommended. After receiving the completed questionnaires, the Jury Commissioners struck nearly half for reasons of statutory ineligibility or apparent hardship and placed the remaining names in the jury pool for selection at random of a grand jury.

Defendant concedes that the key man system is not per se invalid. ²⁰ From the evidence adduced before the district court, it appears that the Jury Commissioners acted at all times in good faith--defendant concedes that--and in conscientious accordance with the applicable statutes and the suggestions gleaned from the 1960 Judicial Conference Report, 26 F. R. D. 409 (1960); indeed, the defendant relied exclusively on his statistical analysis and challenged no particular aspect of the admin istration of the system.

It has become well-established that voter registration lists are appropriate for use in jury selection systems. ²¹ Thus, there can be no objection to the fact that such lists were used here to determine how many persons should be taken from each community. ²² there was no claim that the key men were selected in a discriminatory manner; indeed, the evidence adduced would belie such a claim. See n. 19, supra. The letter which the Commissioners sent to the key men--291 F. Supp. at n. 7--did not suggest that they confine their selections to persons of fair education, intelligence or esteem. Moreover, there was no reason to suspect that the key men would not be acquainted either personally or by reputation with a fair cross section of their local communities in Maine . Thus, we are satisfied that the persons recommended to the Commissioners as potential jurors were selected in a non-discriminatory manner.

There is, however, the question concerning the Commissioner's exclusion of nearly half the persons recommended, in order to get down to the 900 persons needed for the jury pool. Part of that exclusion can be attributed to the fact that some key men sent too many names; when this occurred, the extra names were struck. Secondly, the Commissioner testified that some young adults who had been recommended were struck because they were out of the state for reasons relating to their education and were thus either ineligible under the uncontested qualifications for jury service--residence for one year--or were so far away that jury service would have posed a substantial hardship. Surely military service by some young men might put them in this same category. Thirdly, some young adults--particularly women, apparently--were excused from jury service when their questionnaires indicated that such service would be a hardship because of employment or the presence of young children at home. Finally, the Commissioner has indicated that almost 10 per cent of the recommended jurors were found unqualified for jury service for mental or physical reasons. Hearings on S. 383-387, S. 989, S. 1319 Before a Subcommittee of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., at 964 (1967). See United States v. Caci, 401 F. 2d 664, 671 (2d Cir. 1968), vacated on other grounds, 394 U. S. 310 (1969).

Defendant has not contended that such individual excuses from jury service for hardship or disqualification were improperly granted. Importantly--see Thiel v. Southern Pacific Co., 328 U. S. at 224--it appears that members of the classes in question were excused only upon request or clear evidence from the questionnaire that excusable hardship did exist and not simply as a matter of course. That such exclusions were made by the Jury Commissioners rather than the district judge is not fatal. E.g., United States v. Caci, 401 F. 2d at 671; United States v. Coppola, 296 F. Supp. 903, 904 (D. Conn. 1969).

We of course acknowledge that a system which persistently produced substantial and recognized underrepresentations of sociologically distinct groups would not be insulated from attack simply because it was fair on its face. Moreover, mere protestations or even evidence of subjective good faith would not dispel the inference that those who admin ister the system had purposed the results which they knew the system was producing. Here, however, the system was operated substantially in accordance with the 1960 Judicial Conference suggestions; the principle governing the selection of the several hundred key men was a neutral one; the letters from the Jury Commissioners to the key men were unexceptionable, as were the questionnaires sent to the prospective jurors; there was no suggestion that the Commissioners applied improper standards in disqualifying or excusing individual jurors; the Commissioners made an effort to retain persons whose groups might otherwise be depleted; ²³ and, so far as we have reason to believe, this case--directed to the representation of groups of varying degrees of distinctness--is the first occasion that such protests have formally been brought to the attention of the Jury Commissioners.

We therefore conclude that this key man system was reasonably designed to obtain a fair cross section for the jury pools in southern Maine and that it has been admin istered in an effort to effectuate this design--Rabinowitz v. United States, 366 F. 2d 34, 57 (5th Cir. 1966), without discernible discrimination against any group. ²⁴ The Constitution's mandate for a non-discriminatory jury selection system is not frustrated simply by the existence of certain inadvertent disparities arising from an otherwise fair system. As we said at the outset, it would be virtually impossible to assure a full representation of every cognizable group in every jury pool; all the Constitution requires in this regard is a jury selection system completely free of discrimination. This one was.

The sole remaining question is whether this case presents any need for us to exercise our supervisory power over the federal jury selection systems within our purview. Fay v. New York , 332 U. S. at 287. We think not. As we observed in our discussion, there were some aspects of the system which could be improved to provide greater assurance of full representation for all cognizable groups. But Congress perceived these imperfections before they were brought to our attention; in 1968, Congress amended the existing federal jury system to provide that jury pools are to be chosen at random from a fair cross section of those eligible in the community. 28 U. S. C. §1861, et seq. (1964). Accordingly, there is no need for us to offer any supervisory suggestions for improvements of the key man system.

Affirmed.

¹ Four other defendants had filed similar motions, which were consolidated and denied sub. nom. United States v. Bryant. Of the five, only Butera has appealed.

² At least one circuit court has recently held that one must be a member of the excluded class--or, apparently, allege and show actual prejudice--before he can challenge such exclusion. Woodruff v. Breazeale, 401 F. 2d 997 (5th Cir. 1968); Salisbury v. Grimes, 406 F. 2d 50, 51 (5th Cir. 1969); see also Smith v. Maryland , 362 F. 2d 763, 764 (4th Cir. 1966). However, as the decision affirmed in Woodruff and relied on in Salisbury--Woodruff v. Breazeale, 291 F. Supp. 130 (N. D. Miss. 1967)--makes clear, this "same class" rule is only intended to apply to state juries, not federal juries. Without necessarily approving the rule as it applies to state juries, we are certain that no such "same class" rule has been recognized with regard to federal juries, which are the problem in our case, because of our supervisory power over the federal district courts of the First Circuit. See Fay v. New York , 332 U. S. 261, 287 (1947), and cases cited in n. 3. Woodruff v. Breazeale, 291 F. Supp. at 132. Thus, the fact that defendant Butera was not a member of any of the alleged excluded groups is of no consequence in our case.

³ Strauder v West Virginia, 100 U. S. 303, 308-309 (1879) (Fourteenth Amendment); Smith v. Texas, 311 U. S. 128, 130 (1940) (same); Glasser v. United States, 315 U. S. 60, 85-86 (1942) (Sixth Amendment); Thiel v. Southern Pacific Co., 328 U. S. 217, 220 (1946) (statutory construction); cf. Witherspoon v. Illinois 391 U. S. 510, 518-520, 524-525 (1968).

⁴ Smith v. Texas, 311 U. S. at 130; Thiel v. Southern Pacific Co., 328 U. S. at 220, 223-224; Ballard v. United States, 329 U. S. 187, 195 (1946); Fay v. New York , 332 U. S. at 299-300 (Murphy, J., dissenting).

⁵ Rawlins v. Georgia, 201 U. S. 638 (1906) (approving statutory exemption for lawyers, ministers, doctors, and railroad engineers); Fay v. New York , 332 U. S. 261 (1947) (approving "blue ribbon" juries for certain cases); Hoyt v. Florida, 368 U. S. 57 (1961) (approving statutory exemption for women unless affirmative request to serve).

⁶ Akins v. Texas , 325 U. S. 398, 403 (1945); Smith v. Texas , 328 U. S. at 220; Swain v. Alabama , 380 U. S. 202, 208 (1965).

⁷ In a constitutional sense, we think the same standard applies to both state and federal jury selection systems, Fay v. New York, 332 U. S. at 287; we cannot believe that the Constitution permits a state jury to be less impartial than the federal jury governed by the Sixth Amendment's "impartial jury" provision. However, as we noted above in n. 2, our supervisory power over the federal district courts in this Circuit allows us to impose our notions of good policy over and above the Constitutional requirements of equal protection, Bolling v. Sharpe, 347 U. S. 497, 499-500 (1954), and due process, Fay v. New York , 332 U. S. 287; Brown v. Allen, 344 U. S. 443 at n. 23 (1953). Cf. King v. United States , 346 F. 2d 123, 125 (1st Cir. 1965).

⁸ E.g., Whitus v. Georgia, 385 U. S. 545, 550-551 (1967); Hernandez v. Texas, 347 U. S. 475, 480-481 (1954); Avery v. Georgia, 345 U. S. 559, 562-563 (1953); Hill v. Texas, 316 U. S. 400, 404-405 (1942); Norris v. Alabama, 294 U. S. 587, 591, 598 (1935).

⁹ Smith v. Texas , 311 U. S. at 132 (personal acquaintances only); Hill v. Texas, 316 U. S. at 404 (same); Cassell v. Texas, 339 U. S. at 287-290 (same); Glasser v. United States, 315 U. S. at 83, 86 (women chosen only from list of members of League of Women Voters).

¹⁰ E.g., Whitus v. Georgia , 385 U. S. at 551-552; Avery v. Georgia, 345 U. S. at 560-561; Norris v. Alabama , 294 U. S. at 594-595.

¹¹ E.g., Sims v. Georgia, 389 U. S. 404, 407 (1967); Jones v. Georgia, 389 U. S. 24, 25 (1967); Coleman v. Alabama, 389 U. S. 22, 23 (1967); Hernandez v. Texas, 347 U. S. at 480-482; Smith v. Texas, 311 U. S. at 131; Norris v. Alabama, 294 U. S. at 596, 598; see Brown v. Allen, 344 U. S. at 471.

In some cases, the Court found the disparities insufficient to raise an inference of purposeful discrimination. E.g., Swain v. Alabama , 380 U. S. at 208-209; Akins v. Texas , 325 U. S. at 405-406. See generally M. Finkelstein, "The Application of Statistical Decision Theory to the Jury Discrimination Cases", 80 Harv. L. Rev. 338, 340-349, 350 (1966).

¹² E.g., Thiel v. Southern Pacific Co., 328 U. S. 217 (1946) (daily wage earners excluded); Glasser v. United States, 315 U. S. at 83-86 (all women not members of League of Women Voters excluded).

¹³ Defendant's expert supplied the following statistics which were accepted by the district court, 291 F. Supp. at 549-550:

                            Actual                  "True

Age                      Jury Pool         Cross Section"

21-24 ..........            5                   65

25-29 ..........           15                   82

30-34 ..........           45                   91

35-39 ..........           83                   97

40-44 ..........           112                  93

45-49 ..........           124                  88

50-54 ..........           117                  83

55-59 ..........           109                  76

60-64 ..........           109                  69

65-69 ..........           131                  61

70-74 ..........           58                   48

75 and over ....           11                   66

 

We have decided to accept defendant's statistics based on the actual population of Maine --as opposed to statistics based on the number of persons actually eligible for jury service--for reasons which are in part unique to this case. First, as we discuss below, we think the government has adequately explained the disparities which the defendant has pointed up; we cannot assume the disparities would have been greater had defendant used the number of "jury eligibles" rather than simply the general population of Maine . Secondly, it may be so difficult to obtain full and accurate figures for "jury eligibles" that to require such figures would--at least in some cases--place an insuperable burden on defendant. But see, apparently, United States v. DiTommaso, 405 F. 2d 385, 388 (4th Cir. 1968), cert. denied, 394 U. S. 934 (1969). We do admit that we will be content with a somewhat greater disparity when general population figures are used, simply because they do not clearly reflect the proper measure for a fair cross section: the number of persons actually eligible for jury service under valid statutory qualifications.

One other aspect of defendant's statistics troubled us. The figures offered in his brief were not the same as those stated and relied on in the district court's opinion; yet there is no indication in defendant's brief that the district court's understanding of the proper figures was erroneous. Of course we must decide the same case that the district court decided, so that the figures used by that court--uncontested on appeal--are the figures we will use.

¹⁴ We think our decision in King v. United States, 346 F. 2d 123, 124 (1st Cir. 1965), provides a full answer to defendant's complaint that the very old were not adequately represented.

¹⁵ Defendant has not complained about the total exclusion of persons under 21. If he had, an adequate response would have been the statute limiting jury service to persons 21 and over. Thus, a defendant would have to demonstrate the invalidity of that statute before he could complain of the exclusion of person under 21. But see United States v. Tantash, 409 F. 2d 227, 228 (9th Cir. 1969), cert. denied, 395 U. S. 968 (1969) (statute limiting jury service to those 21 and over held valid).

¹⁶

School Years                 Actual                  "True

Completed                 Jury Pool         Cross Section"

1-8 .............          7.0%                 36.4%

9-12 ............          54.2%                49.5%

13-16 ...........          37.0%                12.4%

17 plus .........          1.7%                 1.7%

 

It should be noted that these figures represent the jury pools for both the Southern and Northern Divisions combined, and the general population of all of Maine ; they are not broken down to give statistics for the actual jury pool for the Souther Division and for the general population of southern Maine . However, because we have no reason to suspect any significant discrepancy between the figures we have and those we should have, and in light of our ultimate resolution of this issue, we do not deem this flaw in defendant's proof to be fatal.

¹⁷

                             Actual                  "True

County                    Jury Pool         Cross Section"

Androscoggin
 ....           98                   134

Cumberland

 ......           343                  283

Franklin

 ........           41                   30

Kennebec
 ........           103                  138

Knox ............           49                   47

Lincoln

 .........           53                   30

Oxford

 ..........           72                   67

Sagadahoc .......           41                   35

York

 ............           119                  155

 

¹⁸ We must admit to some dissatisfaction with defendant's handling of this "distinct group" problem throughout his case. Hernandez v. Texas, 347 U. S. 475, makes it quite clear that a part of the defendant's case for purposeful discrimination is evidence that the group discriminated against is in some sense "distinct". The mere statistical delineation of groups in our society--for example, by county--carries no inference of the requisite distinctness.

¹⁹ It should be noted that about one third of the key men were women. Moreover, the selection of key men from the Maine Register depended entirely on the fact that those chosen were local town officials--infrequently, a school teacher or minister or similar such person was chosen in addition to the local officials--which put them in a position to know a cross section of the local citizenry. There is no indication in the Maine Register of either age or educational attainment, only of community and position or occupation therein. Finally, it was undisputed that the Commissioners rarely knew personally the persons they selected to be key men.

²⁰ E.g., United States v. DiTommaso, 405 F. 2d 385, 390 (4th Cir. 1969), cert. denied, 394 U. S. 934 (1969); Mobley v. United States, 379 F. 2d 768, 773 (5th Cir. 1967); Sanders v. United States, 415 F. 2d 621, 623-624 (5th Cir. 1969); United States v. Hoffa, 349 F. 2d 20, 29-30 (6th Cir. 1965); Pope v. United States, 372 F. 2d 710, 721-724 (8th Cir. 1967).

²¹ E.g., Gorin v. United States [63-1 USTC ¶9295], 313 F. 2d 641 (1st Cir. 1963), cert. denied, 374 U. S. 829 (1963); United States v. Caci, 401 F. 2d 664 (2nd Cir. 1968), vacated on other grounds, 394 U. S. 310 (1969); Simmons v. United States, 406 F. 2d 456 (5th Cir. 1969); Camp v. United States, 413 F. 2d 419 (5th Cir. 1969); Kemp v. United States, 415 F. 2d 1185 (5th Cir. 1969).

²² Moreover, the persons recommended by the key men were not limited to registered voters.

²³ We agree with the decision in Brooks v. Beto, 366 F. 2d 1 (5th Cir. 1966) (en banc), cert. denied, 386 U. S. 975 (1967)--disapproving Collins v. Walker, 329 F. 2d 100 (5th Cir. 1964), aff'd on reh'g, 335 F. 2d 417 (1964), cert. denied, 379 U. S. 901 (1964)--that purposeful inclusion may sometimes be justified in order to correct an existing imbalance. Accord: James v. United States , 416 F. 2d 467, 472 (5th Cir. 1969).

²⁴ We take some support from the decision in Hunt v. United States, 400 F. 2d 306 (5th Cir. 1968), cert. denied, 393 U. S. 1021 (1969). The obvious analytical difference between us detracts nothing. That court said that the significant disparities were adequately explained and that therefore the defendant had not made out his prima facie case. We say that significant disparities make out the prima facie case but that the government's explanation of the operation of the jury selection system rebuts that prima facie case.

 

 

 

[69-2 USTC ¶9735] United States of America , Appellee v. Paul Anthony Coppola, Appellant

(CA-2), U. S. Court of Appeals, 2nd Circuit, No. 33900, 425 F2d 660, 11/19/69, Affirming District Court, 69-2 USTC ¶9460, 296 F. Supp. 903

[Code Sec. 7201]

Crimes: Tax evasion: Willful attempt: Conviction: Constitutionality: Lesser-included offenses: Felony v. misdemeanor.--The taxpayer's challenge to the constitutionality of Code Sec. 7201, which punishes income tax evasion as a felony, could not be sustained on the ground that such section covered exactly the same ground and offenses as Code Secs. 7203 and 7207, which punish as misdemeanors the failure to pay a tax due and the filing of a fraudulent return. The offenses were not the same; the misdemeanors were lesser-included offenses of the felony and no equal protection claim arose on a valid conviction of the felony.

Richard B. Buhrman, Johnnie M. Walter, Assistant Attorney General, Joseph M. Howard, Department of Justice, Washington, D. C., 20530, Stewart H. Jones, United States Attorney, for appellee. Jocob D. Zeldes, Elaine S. Amendola, 955 Main St. , Bridgeport , Conn. , for appellant.

Before LUMBARD, Chief Judge, KAUFMAN and HAYS, Circuit Judges.

PER CURIAM:

Paul Coppola pleaded guilty to a charge of wilfully attempting to evade the payment of $15,592.84 in income taxes for the year 1961 by filing a fraudulent income tax return in violation of 26 U. S. C. §7201. He was sentenced to two years imprisonment and fined $10,000. On this appeal from the judgment of conviction entered by Judge Mansfield, sitting by designation in the District of Connecticut [69-2 USTC ¶9460], he challenges the constitutionality of §7201. ¹ The basis for this challenge is the contention that, on the facts charged, §7201, which punishes income tax evasion as a felony, covers exactly the same ground and offenses as §§ 7203 and 7207, which punish as misdemeanors the failure to pay a tax due and the filing of a fraudulent income tax return. Coppola therefore urges that §7201 is void for vagueness and that to allow a prosecuting attorney to choose the provision under which a given defendant is to be prosecuted would constitute an improper delegation of power and could lead to violations of the equal protection clause of the Constitution.

There is no basis to Coppola's claim that the three sections cover exactly the same offenses. In Sansone v. United States [65-1 USTC ¶9307], 380 U. S. 343, 351-52 (1965), the Supreme Court clearly stated that the government must prove more to secure a felony conviction under §7201 than is required for a misdemeanor conviction under either §7203 or §7207. ² The elements of a §7201 felony violation are wilfulness, a tax deficiency, and an affirmative act constituting an evasion of a tax, such as the filing of a fraudulent tax return. In order to prove a violation of either misdemeanor provision, however, the government need show only two of these three elements--wilfulness and failure to pay a tax due for §7203 or wilfulness and an affirmative act for §7207. Since all three elements required for a §7201 conviction were present in this case, the indictment--and plea of guilty--were appropriate.

Because of the Supreme Court's decision in Sansome, Coppola directs our attention to the charges of the indictment rather than to the terms of the statutes. He contends, and we agree, that proof of the charges contained in the instant indictment would establish not only a violation of §7201 but violations of §§ 7203 and 7207 as well. This contention, however, merely establishes that §§ 7203 and 7207 are lesser included offenses, not that §7201 is unconstitutional. In order to state a claim of constitutional dimensions, Coppola must establish the converse, that a violation of either misdemeanor section would invariably constitute a violation of the felony provision. The exegesis in Sansone stands as an effective barrier to any attempt to maintain this position. Indeed, Justice Goldberg provided a clear illustration of a situation which would give rise to a violation of §7207 but not of §7201. Sansone v. United States [65-1 USTC ¶9307], 380 U. S. 343, 352 (1965). A taxpayer's fraudulent misstatement of his gross receipts could be offset by an understatement of his deductible expenses.

Since an attempt to avoid the payment of appropriate income taxes is the most common reason for wilfully filing a fraudulent income tax return, it is very likely that most wilful misrepresentations in tax returns will give rise to tax deficiencies and therefore that most violations of §7207 will also constitute violations of §7201. But this statistical probability of considerable overlapping casts no doubt on the constitutionality of §7201. Rather, it shows that, despite its specific reference to fraudulent tax returns, §7207 creates an exception to the rule that the filing of a fraudulent tax return will generally give rise to a felony prosecution under §7201 and does not itself establish a general rule that such an act shall be punishable only as a misdemeanor. Cf. United States v. Beacon Brass Co. [52-2 USTC ¶9528], 344 U. S. 43 (1952).

In brief, we are unable to distinguish Coppola's claims from those of a defendant charged with first degree murder who argues that since proof of the facts set forth in the indictment will show him guilty of manslaughter as well as murder, he must be convicted for manslaughter rather than murder. Coppola attempts to rebut this analogy by arguing that a defendant charged with murder would always he entitled to an instruction on the lesser included offense of manslaughter. What he neglects to mention is that if he had placed in dispute a factual element required for conviction under §7201 but not for conviction under §§ 7203 or 7207, he too would have had a right to a charge on the lesser included offense. Sansone v. United States [65-1 USTC ¶9307], 380 U. S. 343, 350 (1965). It was his own decision to admit rather than to contest the charges against him.

Affirmed.

¹ Coppola entered his plea of guilty on the condition that he be allowed to contest the constitutionality of §7201 on appeal. See United States v. Grassia, 354 F. 2d 27 (2d Cir. 1965), vacated on other grounds [68-1 USTC ¶15,820], 390 U. S. 202 (1968).

² It is on this ground that we distinguish the dissenting opinion of Justice Black in Berra v. United States [56-1 USTC ¶9480], 351 U. S. 131 (1956), in which Justice Douglas concurred and on which Coppola places considerable and unjustified reliance. Berra involved §3616(a) of the Internal Revenue Code of 1939, the predecessor of §7207. Conviction under §3616(a) required proof of an "intent to defeat or evade" taxes. Therefore, if §3616(a) applied to the income tax, any proof sufficient to establish a violation of §3616(a) would also establish a violation of the felony provision of the 1939 Code, §145(b). For this reason, Justice Black questioned the constitutionality of §145(b) on grounds similar to those urged upon us by Coppola. However, in the Internal Revenue Code of 1954, the statute involved in this case, the requirement of an "intent to defeat or evade" taxes appears only in §7201 and not in §7207. Thus, the dissent in Berra has no relevance to cases arising under the 1954 Code.

 

 

[61-1 USTC ¶9289] United States of America , Plaintiff v. Frank Leonard Wortman, Elmer Sylvester Dowling, Edward Wortman, George Frank, Gregory Moore, and Sam Magin, Defendants

U. S. District Court, East. Dist. Ill., Criminal No. 19199, 10/28/60

[1954 Code Secs. 7201, 7206(2) and 1939 Code Sec. 145(b)]

Criminal procedure: Pretrial motions: Motions to dismiss: Change of venue: Improper Grand Jury: Inspection and discovery: Pretrial production and inspection: Severance: Bill of particulars: Testimony before Grand Jury: Inspection of Grand Jury minutes.--In criminal proceedings involving a nine-count indictment, including a conspiracy count, the court ruled on various motions: (1) Denied defense motions to dismiss indictments which charged that the government engaged in prejudicial publicity efforts, that indictments failed to state sufficient facts, and that overt acts were alleged in the disjunctive rather than the conjunctive; (2) Granted elections of defendants to be tried in the districts of their residence at the time of the alleged commission of the offenses charged, but retained jurisdiction of the conspiracy count; (3) Denied motions to dismiss which charged the improper and illegal selection of the Grand Jury; (4) Denied motions for inspection and discovery because of lack of showing of materiality of items requested and of reasonableness of request; (5) Denied motions for severance because of insufficiency of reasons for request; (6) Denied certain motions for bills of particulars because of sufficiency of indictment and transferred another motion for a bill of particulars to another district because of election granted under (2) above; (7) Denied motions to dismiss and suppress indictments which charged violation of constitutional rights because of Grand Jury subpoenas and procurement of testimony before Grand Jury; (8) Denied motions to inspect and copy Grand Jury minutes; and (9) Denied motions of inspection and pre-trial production of documents and evidence under Rule 17(c) of the Federal Rules of Criminal Procedure and quashed subpoenas served thereunder upon the U. S. Attorney.

C. M. Raemer, United States Attorney, Room 327, Post Office Bldg., East St. Louis, Ill., for plaintiff. Morris A. Shenker, 408 Olive St. , St. Louis , Mo. , for Frank Leonard Wortman and Elmer Sylvester Dowling. Saul E. Cohn, 601 Murphy Bldg., East St. Louis, Ill., for Edward Wortman. Rob ert J. O'Hanlon, 7 North 7th St. , St. Louis 1, Mo. , for George Frank. Norman London, 705 Olive St. , St. Louis 1, Mo. , for Gregory Moore. Ray M. Foreman, 708 Baum Bldg., Danville , Ill. , for Sam Magin.

JUERGENS, District Judge:

A nine count indictment was returned against the defendants, Frank Leonard Wortman, Elmer Sylvester Dowling, Edward Wortman, George Frank Gregory Moore and Sam Magin.

Counts I, II and V of the indictment charge that the defendant Frank Leonard Wortman did wilfully and knowingly attempt to evade and defeat a large part of income tax due and owing by him and his wife to the United States of America for the years 1953, 1954 and 1955.

Counts III, IV and VI charge the defendant Elmer Sylvester Dowling with having wilfully and knowingly attempted to evade and defeat a large part of the income tax due and owing by him and his wife to the United States of America for the years 1953, 1954 and 1955.

Counts VII and VIII charge that the defendant Gregory Moore did wilfully and knowingly aid and assist in and produced, concealed and advised the preparation and presentation to the District Director of Internal Revenue at Springfield , Illinois , of false and fraudulent partnership returns of income.

Count IX is a conspiracy count and charges that all six of the defendants did unlawfully, wilfully and knowingly combine, conspire, confederate and agree together to violate certain enumerated laws of the United States.

[Motions Filed]

All of the defendants have filed their motion to dismiss the indictment based on the allegation that the Government has engaged in such efforts at publicity which will result in prejudice to the defendants and also on the grounds that the indictment is insufficient.

The defendants, Dowling, Magin, Moore and Frank, have filed their separate motions electing to be tried in the districts of their residence at the time of the alleged commission of the offenses and their further motions requesting that the motions filed herein be transferred to the districts of their residence.

Each of the defendants has filed his separate motion to secure the names of the grand jurors who served on the grand jury drawn on June 15, 1959.

Each defendant filed his separate motion to dismiss the indictment based on an alleged improper grand jury.

Each of the defendants filed his separate motion for inspection and discovery under Rule 16.

Each defendant filed his motion for production and inspection under Rule 17(c). Subpoenas were issued pursuant to the motion. The United States has filed its motion to quash the subpoenas.

The defendants have each filed a separate motion for severance.

The defendants, Frank Leonard Wortman and Elmer Sylvester Dowling, filed their joint motion for bill of particulars. Defendant Gregory Moore filed his separate motion for bill of particulars. All defendants filed their motions for bill of particulars as to Count IX of the indictment.

The defendants, Magin, Frank, Moore and Edward Wortman, filed their separate motions to dismiss the indictment because they had been called as witnesses before the grand jury and also filed their separate motions to suppress because of testimony given before the grand jury.

The defendants, Magin, Moore, Frank and Edward Wortman, filed their motion to inspect the grand jury minutes.

[Joint Motions to Dismiss]

In support of their joint motion to dismiss the indictment, the defendants alleged that (1) the Government, by and through its officers, has engaged in such efforts at publicity, calculatedly prejudicial to the defendants, that it has made it impossible for them to secure a fair trial; (2) each count of the indictment fails to state facts sufficient to constitute an offense against the laws of the United States; (3) it appears upon the face of each count of the indictment that no offense was committed by any of these defendants against the laws of the United States; (4) the indictment fails to state facts with sufficient certainty and definiteness to enable the defendants to plead the judgment of this Court in bar of further prosecution; (5) the indictment is in other respects insufficient. By supplement to the joint motion to dismiss the indictment, the defendants assert that the overt acts in the substantive counts of the indictment, alleging an attempt to evade taxes, are alleged in the disjunctive rather than the conjunctive and that consequently the indictment is insufficient in that it is in this respect uncertain and indefinite.

Supplementing their motion to dismiss the indictment for the reason that the Government has engaged in causing the publication of publicity adverse to the defendants, the defendants have filed a number of photostatic copies of news articles appearing in the St. Louis Post-Dispatch, the St. Louis Globe-Democrat and the East St. Louis Journal.

At the oral argument on the motions, newspaper reporters from the various newspapers testified concerning the source of the information which appeared in the various news articles in their respective newspapers. Examination of these witnesses utterly failed to support the defendants' contention that the news articles, which they allege are prejudicial, were inspired by the Government or any of its agents. Some small part of the information published was obtained by reporters through discussions with various investigating officers over a period of years.

Information concerning the length of time that the Internal Revenue Service had been investigating the conduct of the defendants was obtained from an official of the Internal Revenue Service. This was, however, the only direct information which the reporters testified was received directly from agents of the Government. Such release of information can hardly be deemed to have been an engagement at publicity which would be calculated to prejudice the defendants at the trial and to attempt to deny them a fair trial.

The Court has examined the publications and finds that the conduct of the defendants has been discussed in the various newspapers printed in this area. Many of these articles have been other than flattering. However, the Court finds that the publications do not have a sufficient bearing on the charge here as would result in causing a prejudice to the rights of these defendants.

Generally in items 2, 3, 4 and 5 in support of their motion to dismiss, the defendants allege that the indictment fails to state sufficient facts to constitute an offense against the United States; that the indictment fails to show that an offense was committed by any of the defendants; that the indictment fails to state facts with sufficient certainty which would enable the defendants to plead the judgment of this Court in bar of further prosecution; and that the indictment is otherwise insufficient.

Rule 7(c) of the Federal Rules of Criminal Procedure, Title 18, U. S. C. A., provides in pertinent parts as follows:

". . . The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged . . ."

This rule is designed to simplify indictments by eliminating unnecessary phraseology. Nevertheless, it does not, nor was it intended, that this rule should alter or modify the formal functions and requirements of an indictment. Every essential element of the offense sought to be charged in an indictment must still be alleged. Wilson v. United States , 158 F. 2d 65. It is not necessary for the indictment to allege mere matters of evidence; however, sufficient facts must be alleged to apprize the accused of the crime charged against him with sufficient certainty as will enable him to make his defense and avail himself of a conviction or acquittal for protection against a subsequent prosecution for the same offense. Every essential ingredient of the offense must be alleged with precision and certainty. Spies v. United States [43-1 USTC ¶9243], 317 U. S. 492. An examination of the indictment in the light of the sections of the statute alleged to have been violated discloses that the charges made in the indictment substantially follow the statute, which embodies all of the elements of the crime. The indictment further sets out the alleged acts constituting the offense. Each count states facts sufficient to give notice to the defendants of the crime against which they are to defend. The facts alleged are sufficient to give this Court jurisdiction, and sufficient facts are alleged to enable the defendants to plead the judgment in this cause as a defense to a further prosecution for the same offense.

The defendants further assert in their supplement to the joint motion to dismiss the indictment that the event acts in the substantive counts of the indictment are alleged in the disjunctive rather than in the conjunctive and are, therefore, insufficient.

It is true that where a count states two or more separate offenses, it is duplicitious and faulty. According to the authorities, when a statute denounces several things joined disjunctively with "or," as a crime, the pleader, in drawing an indictment, should connect them by the conjunctive "and," and under such an indictment guilt may be established by proof of any one of the things conjunctively charged. The Court has examined the indictment and the statutory provisions upon which the indictment is based and finds that the indictment does not join two prohibited purposes alleged in the statute by a disjunctive. The substantive counts of the indictment charge that the defendants named in Counts I, II, III, IV, V and VI did "wilfully and knowingly attempt to evade and defeat a large part of the income tax due and owing." Counts VII and VIII charge that the defendant named therein "did wilfully and knowingly aid and assist in, and procure, counsel and advise the preparation and presentation to the District Director of Internal Revenue at Springfield, Illinois, of a false and fraudulent partnership return of income . . ." Only one crime is charged in each of the substantive counts. The argument of the defendants that there is more than one crime charged in the indictment, which are joined by the disjunctive, is without merit.

The defendants' joint motion to dismiss the indictment must be denied.

[Elections for Change of Venue]

The defendants, Gregory Moore, George Frank, Sam Magin and Elmer Sylvester Dowling, have filed their election to be tried in the district of their residence at the time of the alleged commission of the offenses with which they are charged in the indictment.

This election is based on the provisions of Section 3237, Title 18, U. S. C. A., which provides in pertinent parts as follows:

"§3237. Offenses begun in one district and completed in another

"(a) Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.

"Any offense involving the use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce or mail matter moves.

"(b) Notwithstanding subsection (a), where an offense involves use of the mails and is an offense described in section 7201 or 7206(1), (2), or (5) of the Internal Revenue Code of 1954 (whether or not the offense is also described in another provision of law), and prosecution is begun in a judicial district other than the judicial district in which the defendant resides, he may upon motion filed in the district in which the prosecution is begun, elect to be tried in the district in which he was residing at the time the alleged offense was committed: . . ."

The evidence established that the defendant Gregory Moore resides in the Eastern District of Missouri and was residing in the Eastern District of Missouri at the time the alleged offenses were committed; that the defendant George Frank resides in the Eastern District of Missouri and was residing in the Eastern District of Missouri at the time the alleged offenses were committed; that the defendant Sam Magin resides in the Southern District of Illinois and was residing in the Southern District of Illinois at the time the alleged offenses were committed; that the defendant Elmer Sylvester Dowling resides in the Southern District of Illinois and was residing in the Southern District of Illinois at the time the alleged offenses were committed.

Count III of the indictment charges the defendant Elmer Sylvester Dowling with having violated Section 145(b), Title 26, United States Code (Internal Revenue Code of 1939). Counts IV and VI charge the defendant Elmer Sylvester Dowling with violations of Section 7201, Title 26, United States Code (Internal Revenue Code of 1954).

Section 145(b), Title 26, United States Code (Internal Revenue Code of 1939), although not specifically enumerated in Section 3237, above set out, would appear to be included therein. The offense set out in Section 145(b) is also contained in Section 7201; and, therefore, the violation of Section 145(b) of the 1939 Code would also be included in the provisions of Section 3237 pertaining to the election to be tried in the district of residence. The violation charged in Count III of the indictment against Elmer Sylvester Dowling should be treated in the same manner as the violation charged against the defendant Dowling in Counts IV and VI.

Counts VII and VIII charge the defendant Gregory Moore with violations of Section 7206(2), Title 28, United States Code.

Count IX of the indictment is a general conspiracy count and alleges violation of Section 371, Title 18, U. S. C. A.

The obvious intent of Congress in passing paragraph (b) of Section 3237 was to permit a defendant to be tried in the district of his residence, thus avoiding the necessity of a defendant, who is charged with a violation of the Internal Revenue laws, having to travel great distance to defend a charge under these sections. The Congress apparently did not provide the courts with discretion in determining the facts or circumstances under which a transfer would be justified; rather, Congress intended that defendants be given the absolute right to be tried for alleged violation of the sections enumerated in paragraph (b) of Section 3237 in the district of their residence regardless of the distance involved.

The situs of the trial in the Southern District of Illinois is approximately one hundred miles from the residence of the defendant Elmer Sylvester Dowling. The situs of the trial in the Eastern District of Illinois is approximately nine miles from the defendant's residence. The distance from the United States District Court for the Eastern District of Missouri ( St. Louis ) is but a few miles distance from the place of holding court in East St. Louis in the Eastern District of Illinois. However, inasmuch as the courts do not have any discretion in the matter, the Court has no alternative but must transfer for trial those counts of the indictment charging violation of the sections enumerated in paragraph (b) of Section 3237.

Section 3237(b), Title 18, is limited to violations of the sections enumerated therein and does not require transfer of a cause involving the violation of Section 371, Title 18, United States Code. Section 3237(b), Title 18, does not require the conspiracy charge to be transferred even though the conspiracy may have been in furtherance of a violation of the offenses enumerated therein. If Congress had intended that conspiracies to violate the enumerated sections be also transferred to the district of residence upon request of the persons so charged, it could have said so.

The defendants have also filed their motions requesting that the motions directed against the indictment be transferred to the districts of their residence.

The defendants being entitled to be tried in the districts of their residence at the time of the commission of the alleged offenses, the motions directed against the counts of the indictment which have been transferred should also be transferred to the respective districts for trial.

In accordance with, and because of, the foregoing, this Court did at the time of the oral arguments enter its order transferring Counts III, IV and VI and the motions pertaining thereto for hearing and trial to the Southern District of Illinois, Counts VII and VIII and the motions pertaining thereto for hearing and trial to the Eastern District of Missouri, and retained jurisdiction of Count IX of the indictment and all motions relating thereto.

[Request for Grand Juror's Names]

Each of the six defendants filed a separate motion requesting the Clerk of the United States District Court for the Eastern District of Illinois to furnish to the defendants a complete list of names of all grand jurors and their addresses, drawn under order of June 15, 1959, for service at East St. Louis, Illinois, July 13, 1959, and further requested the names and addresses of those jurors who served on that grand jury.

The defendants ordinarily would not be entitled to this information. The Government in its answer to the motion took a passive attitude to the request and made no objection to supplying the information. The defendants were supplied with the requested information by the United States Attorney at the hearing on the motions.

[Attacking Grand Jury]

The defendants have each filed separate motions to dismiss the indictment and each count thereof, alleging as grounds therefor the following:

"1. The indictment was not returned by a legally constituted grand jury.

"2. The Grand Jury which returned the indictment was an illegal body.

(a) The names of the persons serving as jurors, who returned the indictment, were not publicly drawn from a jury box into which the Jury Commissioner and the Clerk or his deputy, had previously and alternately placed one name in the jury box without reference to party affiliation until the box contained at least Three Hundred (300) names, or such larger number of names as determined by the Court, as required by law.

(b) The names of the persons serving as jurors, who returned the indictment, were not publicly drawn from a box as to which, the Jury Commission determined that at the time of the drawing of the Grand Jury there were at least Three Hundred (300) names in the box of qualified jurors, as required by law.

(c) The names of the persons serving as jurors, who returned the indictment, were not publicly drawn from a box containing the names of not less than Three Hundred (300) qualified persons at the time of such drawing, as required by law.

(d) The names of the persons serving as jurors, who returned the indictment, were not publicly drawn from a box of qualified jurors so as to insure the selection of Grand Jurors without the exercise of discretion, power of choice or arbitrary acts by anyone, as required by law.

(e) The names of the persons serving as jurors were arbitrarily and capriciously selected by the Clerk and Jury Commissioner.

(f) The names of the persons serving as jurors were selected by the Clerk and Jury Commission from a small undefined territorial portion of the Eastern District of Illinois, without any legal authority to make such selection.

(g) The names of the persons contained in the jury box were not qualified jurors chosen by the Jury Commission consisting of the Clerk and the Jury Commissioner, but were all chosen by the Clerk only.

"3. The Jury Commission failed to follow the prescribed statutory requirements in the selection of persons from which the Grand Jury would be chosen.

"4. Such defects in the institution of the prosecution resulted directly from the acts of the Jury Commission, the particulars of which are set out in the affidavit attached hereto and made a part hereof.

"5. The defendant has been denied his lawful and statutory right to challenge grand jurors as drawn or empaneled, by fiat or order of the United States District Court for the Eastern District of Illinois, and by action of the Clerk of said court, by refusing to reveal such names after having returned an indictment against this defendant."

The defendants seek to fortify the motions by an affidavit of Bohlen J. Carter, the jury commissioner, which they allege shows the means and method by which the grand jurors were selected and that the method of selection was not in conformity with the requirements specified in the statute for the selection of jurors and, therefore, the grand jury was improperly drawn. The affidavit referred to and relied on by the defendants was executed on the 7th day of May, 1959, and filed with the Clerk of this Court on the 8th day of May, 1959. The grand jury which returned the indictment here under attack was drawn pursuant to an order of Court on the 15th day of June, 1959. The affidavit could have little bearing on the method of selection followed by the Jury Commissioners in selecting the grand jury which returned this indictment.

Douglas H. Reed, Clerk of this Court, and Bohlen J. Carter, Jury Commissioner, the Jury Commission at the time the grand jury was drawn, testified regarding their actions in selecting the grand jury which returned this indictment.

Douglas H. Reed testified he was the Clerk of the United States District Court for the Eastern District of Illinois and a member of the Jury Commission at the time the grand jury here under attack was selected; that the names of the prospective jurors were secured by the Jury Commission by sending out requests to various persons whose names and reputations were known to the witness or the Jury Commissioner; that generally a form letter was attached, setting forth the standards required of jurors; that on occasion names were given by close acquaintances of the witness without the questionnaire first having been sent and that these names were received from persons whom the witness knew to be qualified to submit names and who were familiar with the requirements of jurors; that when it appeared from the answered questionnaire that an individual was infirm or had some physical or mental deficiency or there was some cause which would render him or her unfit as a juror, such name was not placed in the jury box; that upon receiving the names of qualified jurors, this witness and the Jury Commissioner placed the names received in the jury box; that he never excluded anyone as a juror; that there was no restriction contained in the order pursuant to which this grand jury was drawn and that the grand jurors were drawn from the entire district; that there were more than three hundred (300) names in the jury box; that he always insisted that the Jury Commissioner be present when the names for a jury were drawn; that four years ago all new names were placed in the jury box in order to insure that the box was current.

Bohlen J. Carter, Jury Commissioner, testified that he had served as Jury Commissioner until Douglas H. Reed had left office and that he was serving as Jury Commissioner at the time the grand jury here under attack was drawn; that he became a jury Commissioner in 1946; that he did not check the names in the jury box upon taking office but that he had checked the names contained in the box prior to June 12, 1959; that there were never less than three hundred (300) names in the box at any time; that he had sent out letters to various people, asking for juror names; that these names were received and added to the box from time to time and on occasion he had supplied names personally. This witness further testified that the affidavit, which he had executed and which was referred to by the defendants, had been prepared by Ray Foreman, attorney for the defendant Sam Magin, and had been presented to him for his signature; that he had read the affidavit but at the time was in a hurry and had not read it as closely as he should; that he had signed the affidavit too hastily; that subsequent to executing the affidavit, he had checked more closely and found that statements concerning the distances and number of cards contained in the box were incorrect. He further testified that the affidavit was made prior to the date that the jury here under consideration was drawn and did not relate to the method or the means by which this jury was drawn.

The manner of drawing the names of grand jurors is prescribed by Section 1864, Title 28, U. S. C. A., which provides in pertinent parts as follows:

"The names of grand and petit jurors shall be publicly drawn from a box containing the names of not less than three hundred qualified persons at the time of each drawing.

"The jury box shall from time to time be refilled by the clerk of court, or his deputy, and a jury commissioner, appointed by the court.

* * *

"The jury commissioner and the clerk, or his deputy, shall alternately place one name in the jury box without reference to party affiliations, until the box shall contain at least 300 names or such larger number as the court determines."

Contrary to the defendants' assertions, the evidence was conclusive that the jury box contained at least three hundred (300) names of qualified jurors at the time this grand jury was drawn; that the names of the persons serving as jurors were properly drawn; that the persons serving as jurors were not in any way arbitrarily and capriciously selected by the Clerk and the Jury Commissioner; that the jurors were selected from the entire district and not from a small undefined territorial portion of the district as the defendants charge; that the names of the persons contained in the jury box were chosen by the Jury Commission; that in selecting the grand jury the Jury Commission followed the statutory requirements in making the jury selection.

In these motions the burden to establish that the jury officials were derelict in the performance of their duty rests with the defendants. United States v. Brandt, 139 F. Supp. 362. Not only have the defendants failed to support this burden, but they have failed to show by any evidence that the Jury Commission did not, in fact, comply with the requirements of the statute. Accordingly, the motion to dismiss, premised on the illegality and insufficiency of the grand jury, will be denied.

[Discovery and Inspection]

The defendants have filed separate but identical motions for discovery and inspection pursuant to Rule 16, Title 18, U. S. C. A.

In these motions they request that the Government be ordered to produce and to permit the inspection and copying, before trial of this cause, all books, papers, documents and objects, obtained from or belonging to the defendants or obtained from others by seizure or by process, stating as reason therefor that the materials requested are material to the preparation of the respective defendants' defense.

The Government has no objection to the Court setting a time and place so that all defendants may examine for a reasonable time all books, papers, documents and objects, belonging to the defendants, which have been obtained by seizure or process. But the Government objects to the motions insofar as they pertain to all books, papers, documents and objects obtained from third parties by seizure or by process.

The Government's objection is based on the ground that the motions are so broad that they cover all evidence that it has in its possession and do not designate documents requested; that the motions are blanket requests and amount to nothing more than a fishing expedition whereby the defendants seek to obtain, prior to trial, all evidence the Government has concerning the case.

Rule 16 of the Federal Rules of Criminal Procedure, Title 18, U. S. C. A., provides:

"Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable."

The Advisory Notes of the Committee on the Rules point out that it is very doubtful under the existing criminal law that discovery is possible. However, courts have granted a defendant the opportunity to inspect impounded documents belonging to him. The Rule is a restatement of this procedure.

"In addition, it permits the procedure to be invoked in cases of objects and documents obtained from others by seizure or by process, on the theory that such evidential matter would probably have been accessible to the defendant if it had not previously been seized by the prosecution. The entire matter is left within the discretion of the court."

Rule 16 provides for the discovery of documents or tangible objects, obtained from or belonging to the defendant or obtained from others by seizure or by process, after a showing that the request is reasonable and that the items sought may be material to the preparation of the defendant's case. United States v. Louie Gim Hall, 18 F. R. D. 384.

Before the defendants are entitled to inspection and copying or photographing of designated books, papers, documents, etc., there must first be a showing that the items requested are material and that the request is reasonable; and in order to make such a showing something more is required under the rules than the mere allegations on the part of the defendants. The motions do not designate any documents or things but are naked requests for all documents. The defendants have made no showing that their requests are reasonable as is required by the rules.

Further, as indicated by the Rules Committee, documents or things obtained from others by seizure or process are made available on the theory that such evidential matter would probably be accessible to the defendants if it had not previously been seized by the prosecution. Here the documents seized from third parties have been returned to them, so that the request does not come within the theory of the rule as disclosed by the Rules Committee.

The defendants seek to have the door opened in order to discover the Government's evidence and the details of the Government's case. They are not entitled to such evidence except upon a showing that the ends of justice cannot otherwise be served. There has been no such showing. United States v. Taylor , 25 F. R. D. 225.

The Government does not object to producing for inspection and copying those documents obtained by seizure or process, belonging to the defendants, and the motions will be granted as to those items because of such consent.

As to those books, papers, documents and objects obtained from or belonging to others, the motions will be denied for the reasons above stated.

[Severance Motions]

Each of the defendants has filed his separate motion for severance, alleging in support thereof the following grounds:

1. The jury will have insurmountable difficulty in distinguishing the alleged acts of this defendant from the alleged acts of his co-defendants.

2. Evidence in this cause may be introduced by the Government which may be inadmissible against this defendant, but which may be admissible against one or more of his co-defendants, all to the prejudice of this defendant.

3. Evidence may be introduced by his co-defendants, which would be inadmissible against this defendant in separate trial, to the prejudice of this defendant.

4. This defendant, as well as his co-defendants, will obtain a fair and more impartial trial if he is tried alone.

5. There is a misjoinder of defendants and offenses in the indictment.

All of the defendants, except the defendant Frank Leonard Wortman, have alleged additional grounds in support of their motions as follows:

6. Defendant Frank Leonard Wortman has been convicted of a felony, and for this reason this defendant could not obtain a fair and impartial trial unless his trial is separate from Frank Leonard Wortman's trial.

7. A continued mass of publicity, some of which has been inspired by the plaintiff's prosecuting officials as to the charges in his indictment, the investigation connected with this indictment and the criminal connections and activities of Frank Leonard Wortman, make it impossible for this defendant to obtain a fair and impartial trial while joined with Frank Leonard Wortman.

Rule 14 of the Federal Rules of Criminal Procedure, Title 18, U. S. C. A., provides:

"If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires."

When an application for a severance is made by a defendant under Rule 14, it is address to the discretion of the court. Opper v. United States , 348 U. S. 84.

In deciding such application the court must determine whether the alleged prejudice to the defendants in being joined and tried with other defendants overbalances possible prejudice to the Government which might result from a separate trial. United States v. Dioguardi, 20 F. R. D. 10.

Where proof of the charges against all the defendants is largely dependent upon the same evidence and the alleged acts are of the same or similar character, severance should not be granted except for the most cogent reasons. A trial of many defendants can be conducted with care and decorum so that the court can place whatever safeguards commend themselves in its effort to afford each defendant a separate and impartial consideration of his case. By exercising care in charging and marshalling evidence at the end of the trial, the judge can materially aid the jury in successfully considering each defendant separately. United States v. Bonanno, 177 F. Supp. 106. The fact that one defendant has a prior felony conviction is not grounds for a severance as to his co-defendants. United States v. Dioguardi, 20 F. R. D. 10.

Joinder of offenses and of defendants is prescribed by Rule 8 of the Federal Rules of Criminal Procedure, Title 18, U. S. C. A., which provides as follows:

"Rule 8. Joinder of Offenses and of Defendants

"(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

"(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count."

Where two or more defendants are indicted for a joint transaction, it is inadvisable to split up the case into many parts for separate trials, in the absence of very strong and cogent reason therefor. This is especially true in conspiracy charges from the very nature of the case. Davenport v. United States , 260 F. 2d 591 (9 Cir. 1958).

The Court has meticulously examined the defendants' reasons in support of their motions for severance and finds that the reasons are insufficient under the circumstances of the case to justify a severance. A severance is unnecessary to avoid prejudice of the defendants. At the trial of the cause the trial judge may adequately guard against the charges made by these defendants, if in fact they are true, by properly instructing the jury concerning the evidence as it is admitted. Dircretion must be exercised in sucy matters so that over-all justice may be done, and in the exercise of that discretion the Court must in the interest of justice deny the motions of severance of defendants as requested.

[Bills of Particulars]

The defendants, Frank Leonard Wortman and Elmer Sylvester Dowling, filed their motion for bill of particulars as to Counts I, II, III, IV, V, VI and IX. Since Counts III, IV and VI have been transferred to the United States District Court for the Southern District of Illinois, the bill of particulars requested as to Counts III, IV and VI will not be considered by the Court because the motions pertaining to these counts have also been transferred.

The defendant Gregory Moore filed his motion for bill of particulars as to Counts VII, VIII and IX. This motion for bill of particulars pertaining to Counts VII and VIII will be transferred to the United States District Court for the Eastern District of Missouri for consideration and will not be considered by this Court.

The remaining defendants filed motions for bill of particulars, asking that Count IX of the indictment be made more definite and certain.

The motion for bill of particulars as pertains to Counts I, II and V asks as follows:

"The movants pray that the charges and allegations in Counts I, II, III, IV, V and VI of the indictment be ordered made more specific and certain by setting forth in the bill of particulars for each count:

(a) The books and records which the plaintiff alleges that each defendant caused to be maintained in a false and misleading manner.

(b) In what respects such books and records are allegedly false and misleading.

(c) The assets which the plaintiff alleges were concealed by each defendant.

(d) How these assets were allegedly concealed.

(e) The sources of income alleged to be covered up and amount and nature.

(f) How the amounts, nature and sources of income were allegedly covered up.

(g) The items on the tax return for the year involved alleged to be false and misleading.

(h) If the plaintiff is computing net income under Section 41 of the Internal Revenue Code, state the means of computation, that is, whether the computation is based on net worth, unexplained bank deposits, expenditures, or by another method, for each year and each defendant.

(i) The type and amount of each deduction against claimed total gross income allowed and disallowed in computing the alleged net income.

(j) The nature and kind of each item, together with its source, which is alleged by plaintiff to constitute the total gross income of these defendants.

(k) The nature of the records or documents which will be relied on to show the defendants' total gross income as alleged by the plaintiff.

(1) How the filing of income tax returns at Springfield , Illinois , within the Southern District of Illinois, was done or accomplished with the Eastern District of Illinois.

(m) Whether any portion of the alleged total gross income consisted of other than cash received during the year involved, and if so, what portion, and

(n) Who received each of the various items of income making up the total alleged gross income for each year involved.

"The movants further pray that the charges and allegations in Counts II and IV of the indictment be ordered made more specific and certain by setting forth in the bill of particulars for each count:

(o) The method or means of computation of the alleged income for the Peerless Club.

(p) A list of the specific items which make up the gross or net receipts of the Peerless Club and the expenses allowed against claimed total gross income in computing the alleged net income of the Peerless Club.

(q) The documents relied on to indicate the gross or net receipts and the expenses allowed for the Peerless Club.

(r) The percentage of net income of the Peerless Club alleged to constitute income to these defendants.

(s) The method or means of computation of the alleged income for the Paramount Club.

(t) A list of the specific items which make up the gross or net receipts of the Paramount Club and the expenses allowed against claimed total gross income in computing the alleged net income of the Paramount Club.

(u) The documents relied on to indicate the gross or net receipts and the expenses allowed for the Paramount Club.

(v) The percentage of net income of the Paramount Club alleged to constitute income to these defendants."

The motions of all of the defendants for bill of particulars directed to Count IX of the indictment are in all pertinent parts identical. The motion of defendant Sam Magin provides as follows:

"The movant prays that the charges and allegations in Count IX of the indictment be ordered made more specific and certain by setting forth in the bill of particulars:

(a) How, and in what manner, the alleged purpose of the alleged conspiracy, 'wilfully to defraud the United States of America of income taxes due and owing for the calendar years 1944 to date from defendant Frank Leonard Wortman,' was to be accomplished; what factual thing, transaction, state of affairs or condition was to be brought about as the fruition of the alleged conspiracy which would effect the defrauding of the United States of America of income taxes due and owing by the defendant Frank Leonard Wortman for the calendar years 1944 to the date of the indictment; what, as a matter of fact and not naked legal conclusion, the alleged conspirators, and each of them, did (or failed to do) in furtherance of the alleged conspiracy; and whether the United States of America was, as a matter of fact, defrauded of any income tax due and owing by or from the defendant Frank Leonard Wortman for any calendar year following the year 1943 and, if so, the amount thereof for each such year.

(b) How, and in what manner, the alleged purpose of the alleged conspiracy, 'wilfully to defraud the United States of and concerning the exercise of its governmental function and right of ascertaining, computing, levying, assessing, and collecting income taxes due and owing to the United States of America for the calendar years 1944 to date by defendant Frank Leonard Wortman,' was to be accomplished; what factual thing, transaction, state of affairs or condition was to be brought about as the fruition of the alleged conspiracy which would effect the defrauding of the United States of and concerning its governmental function and right of ascertaining, computing, levying, assessing, and collecting income taxes due and owing to the United States of America for the calendar years 1944 to date by the defendant Frank Leonard Wortman; what, as a matter of fact and not naked legal conclusion, the alleged conspirators, and each of them, did (or failed to do) in furtherance of the alleged conspiracy; and whether the United States of America was, as a matter of fact, defrauded of and concerning the exercise of its governmental function and right of ascertaining, computing, levying, assessing, and collecting income taxes due and owing by or from the defendant Frank Leonard Wortman for any calendar year following the year 1943 and, if so, for what year or years.

(c) How, and in what manner, the alleged purpose of the alleged conspiracy, 'to commit the crime of wilfully attempting to evade and defeat a large part of the income taxes to be due and owing to the United States of America by the defendant Frank Leonard Wortman, for the calendar years 1944 to date' of the indictment, was to be accomplished; what fact or facts were to be brought about as the fruition of the alleged conspiracy which would constitute the said crime; what, as a matter of fact and not naked legal conclusion, the alleged conspirators, and each of them, did (or failed to do) in furtherance of the alleged conspiracy; and whether the crime of wilfully attempting to evade and defeat any part of income taxes due and owing to the United States of America by the defendant Frank Leonard Wortman for any calendar year following the year 1943 and, if so, in respect of what years or years it was committed.

(d) How, and in what manner, the alleged purpose of the alleged conspiracy, 'to commit the crime of knowingly and wilfully falsifying, concealing and covering up by trick, scheme and device, material facts in matters within the jurisdiction of an agency of the United States, viz., the Internal Revenue Service of the United States Treasury Department, during the period from 1944 to' the date of the indictment, was to be accomplished; what trick, scheme and device was to be employed as the fruit of the conspiracy; what material facts were to be falsified, concealed and covered up; what, as a matter of fact and not naked legal conclusion, the alleged conspirators, and each of them, did (or failed to do) in furtherance of the alleged conspiracy.

(e) The nature and extent of the proprietary and financial interest of the defendant Frank Leonard Wortman sought to be concealed by the alleged conspiracy, and the names of the partnerships, associations and corporations in which such interest was owned and held, and the years in which it was owned or held; and how, and in what manner, the alleged conspiracy sought to effect the concealment thereof.

(f) What false and misleading entries the alleged conspiracy and conspirators sought to cause to be made in books and records of the partnership known as Gregory Moore, et al, the partnership known as Plaza Amusement Company, and the proprietorship known as Paddock Liquor Company, and the names (or identifying descriptions) of the books and records in which the alleged conspiracy sought to cause them to be made.

(g) What proper books and records the defendants failed to keep; what certain partnership returns of income the defendants failed to file; how, and in what manner, and to what extent, in detail, any partnership return filed by the defendants was inadequate or incomplete; what books and records caused to be kept by the defendants were false and fraudulent, and how in what respect, in detail, they were false and fraudulent, and what partnership returns of income, caused by them to be prepared, were false and fraudulent, and how and in what manner, in detail, they were false and fraudulent.

(h) What property and interests in business were caused by the defendants to be concealed in the names of persons other than Frank Leonard Wortman; when they were so concealed; who actually owned such property and interests; and the nature and extent of the interests of Frank Leonard Wortman therein.

(i) What false and misleading entries were caused by the defendants to be made in the books and records of Jack Langer's Mounds Club, Inc., and Plaza Amusement Company, Inc.; the names of the books and records (or identifying descriptions thereof) in which such entries were made; the true ownership of such companies thereby allegedly concealed; and the capital investment therein by Frank Leonard Wortman, and

(j) The date of each allegedly false and fraudulent income tax return of Frank Leonard Wortman caused to be prepared and filed by the defendants, and the income year covered thereby; and the manner in which each of such returns was false and fraudulent."

At the outset it must be pointed out that the function of a bill of particulars is to inform the accused of the nature of the charge with sufficient clarity to enable him to prepare for trial and to prevent surprise and to enable him to plead his acquittal or conviction in bar of any further prosecution for the same offense. United States v. Stein, 18 F. R. D. 17.

The rule is that if a defendant is not sufficiently informed by an indictment of the nature and cause of the accusations made against him and is fearful that upon trial he will be surprised by the evidence of the government, he can apply for a bill of particulars which the trial court, in the exercise of a sound legal discretion, may grant or refuse, as the ends of justice require. Mellos v. United States , 160 F. 2d 757.

The indictment here reveals that the nature of the charge is pleaded in detail. The details pleaded are sufficient to give the defendants notice of the charges against which they are to defend and are sufficient to enable the defendant, or defendants, to plead acquittal or conviction in bar of any future prosecution for the same offense. The indictment is of the form commonly used in tax prosecutions. The first count alleges that the defendant Frank Leonard Wortman did wilfully and knowingly attempt to evade and defeat income tax for the year 1953 by maintaining or causing to be maintained false and misleading books and records, by concealing assets and covering up the amounts, nature and sources of income, by preparing or causing to be prepared a false and fraudulent joint income tax return on behalf of himself and his wife, and by filing or causing to be filed with the District Director of Internal Revenue at Springfield, Illinois, a false and fraudulent joint income tax return on behalf of himself and his wife, wherein he stated that their net income for the calendar year was the sum of $50,200.94 and that the amount of tax due and owing thereon was the sum of $20,824.62, whereas he then and there well knew the joint net income for the said calendar year was the sum of $92,209.78 or more, upon which said taxable income there was owing to the United States of America an income tax of $49,739.34 or more. Counts II and V are set out in the same detail as Count I. Court IX is a conspiracy count against all of the defendants and charges a conspiracy to violate specific sections of the Internal Revenue Code and the Criminal Code, each of which are set forth in the indictment, and further sets out the method and means whereby the conspiracy is charged to have been accomplished. In addition, this count charges overt acts which are alleged to have been performed in the furtherance of the conspiracy. The dates involved in the overt acts are set out and the tax returns involved are also identified.

The indictment is sufficient and a bill of particulars is not warranted and will be denied.

[Grand Jury Procedure]

The defendants, Edward Wortman, George Frank, Sam Magin and Gregory Moore, have each filed separate motions to dismiss the indictment and have also filed their separate motions to suppress and their separate amendments to their motions to suppress.

The defendants, Edward Wortman, George Frank and Sam Magin, have filed identical motions to dismiss and to suppress, and all four of the above-named defendants have filed identical amendments to their separate motions to suppress.

The motions of the defendants, George Frank, Edward Wortman and Sam Magin, to dismiss are bottomed on the reasons (1) that the defendants were subpoenaed and compelled to testify before the grand jury and were interrogated before the grand jury in the matters and things charged in the indictment; (2) that the grand jury was at the time of the defendants' appearances conducting an investigation regarding the activities of the defendants in order to determine whether the defendants had violated any of the laws of the United States; (3) that the defendants were not at any time advised or warned by the grand jury or by the United States Attorney or Assistant United States Attorney conducting the inquiry that they were under investigation by the grand jury or that they could not be compelled to testify against themselves; (4) that the use of the testimony before the grand jury and all evidence obtained directly and indirectly therefrom would constitute a violation of defendants' privilege against self-incrimination.

The motion of the defendant Gregory Moore to dismiss asserts as grounds therefor that the defendant was subpoenaed on certain dates set out in the motion and compelled to appear before the grand jury while the United States Attorney and the grand jury were investigating the defendant's conduct for alleged offenses against the laws of the United States, including the statutes cited in the indictment; that the defendant filed a motion to quash the subpoena, which motion was overruled, and the defendant compelled to appear; that while appearing before the grand jury, the defendant refused to answer on the grounds of possible self-incrimination and was subsequently brought before the Court and ordered to answer certain of the questions and ordered back to the grand jury room to comply; that the defendant returned to the grand jury room and complied with the Court's order and that the defendant was not warned of his rights under the Fifth Amendment; that the defendant was subpoenaed and compelled to appear before a special agent of the Internal Revenue Service while the Internal Revenue Service was investigating the defendant's conduct for alleged offenses against the laws of the United States pertaining to Internal Revenue, including the offenses cited in the indictment; that the subpoena ordered the defendant to produce certain books, memoranda and papers and that the defendant was not advised or warned that he was being investigated and that the evidence obtained directly or indirectly from this appearance violated defendant's privilege under the Fifth Amendment; and that the interrogation was isolated from the observation of the public in violation of his right to a public trial, contrary to the Sixth Amendment to the United States Constitution.

The defendants, Edward Wortman, George Frank and Sam Magin, assert in support of their motions to suppress that they were subpoenaed to appear and testify before the grand jury of the Eastern District of Illinois; that they did appear and were interrogated relative to the matters upon which they were subsequently indicted and did testify with regard to the matters; that the grand jury was at the time of the defendants' appearances conducting an investigation regarding the activities of the defendants and that the defendants were not warned of their rights; that the use of the testimony before the grand jury would constitute a violation of defendants' privilege against self-incrimination under the Fifth Amendment to the United States Constitution.

The defendant Gregory Moore asserts in support of his motion to suppress in general the same grounds which he asserts in support of his motion to dismiss the indictment.

All four defendants in their separate amendments to their separate motions to suppress further assert as grounds therefor that the defendants were isolated from counsel and from observation of the public during the interrogation, which deprived each of the defendants of the right to a public trial as guaranteed by the Sixth Amendment to the United States Constitution.

At the outset it must be pointed out that each of the defendants was at all times, prior to being called before the grand jury, represented by counsel, and at the hearing on the motions there was testimony that the various counsel for the defendants were permitted to be present and were present in areas adjacent to the grand jury room in which the investigations were made and that one or more did consult with his attorney during the course of the investigations. Thus, it would appear that the defendants of their own knowledge, and that of counsel, were certainly aware of their rights guaranteed to them by the Fifth Amendment to the United States Constitution.

The motion of the defendant Gregory Moore belies any lack of information concerning his constitutional guarantees inasmuch as the defendant asserted to the utmost those rights.

The interrogation of the defendants before the grand jury without assistance of counsel in the grand jury room and away from the observation of the public is not grounds for dismissing the indictment. Under the provisions of Rule 6 of the Federal Rules of Criminal Procedure, Title 18 U. S. C. A., proceedings before a grand jury, when in session, may be conducted in the presence of the grand jury, the attorney for the government, interpreter when needed, a stenographer, and the witness himself. The presence of an attorney for the witness is not permitted.

An appearance before a grand jury is not a trial in the manner in which the term "trial" is used in the Sixth Amendment. A grand jury is an investigative body, whose purpose it is to investigate and determine whether or not there is a reasonable belief that a crime has been committed. If they reasonably believe that a crime has been committed, they then return an indictment against the person or persons they believe committed the crime. The fact that a grand jury has returned an indictment does not mean that those charged therein are guilty of the offense. Innocence or guilt must then be determined by a court and jury. It is this latter process which is properly used to mean a trial as that term is used in the Sixth Amendment.

It is well settled that the appearance of a witness before a grand jury in response to a subpoena does not constitute a violation of his constitutional right against self-incrimination even though the witness is later indicted by the same grand jury. United States v. Wilson , 42 F. Supp. 721.

The mere possibility that the witness may later be indicted furnishes no basis for requiring that he be advised of his rights under the Fifth Amendment when summoned to give testimony before a grand jury. United States v. Scully, 225 F. 2d 113 (2 Cir. 1955). United States v. Wilson , 42 F. Supp. 721.

At the time of the appearances of these defendants before the grand jury, they were at most merely potential defendants; and in fact no indictment was returned by the grand juries before which these defendants appeared. Each defendant was subject to call as a witness before the grand jury and had only the right of any witness to decline to answer when interrogated concerning matters which might tend to incriminate him. As stated by Professor Wigmore, the privilege is "an option of refusal and not a prohibition of inquiry." United States v. Keenan [59-1 USTC ¶9349], 267 F. 2d 118 (7 Cir. 1959). The mere summoning of a witness before a grand jury gives no basis for the assumption that his constitutional privilege will be impaired. His duty is to answer frankly until some question is propounded, the answer to which might tend to self-incrimination. United States v. Mangiaracina [50-2 USTC ¶9467], 92 F. Supp. 96 (U. S. D. C. W. D. Mo. 1950).

Response to a grand jury subpoena does not constitute coercion. The grand jury is authorized to call witnesses in the course of its deliberation, and witnesses are required as a public duty to testify. If a witness is asked questions which tend to incriminate him, it is his duty to claim the privilege and to refuse to testify. In this case it is not shown nor claimed that any of the defendants were indicted by any of the grand juries before which they testified. Rather, the indictment here under consideration was returned by a completely different grand jury than that grand jury before which these defendants appeared. In general, the testimony of a witness before the grand jury, later indicted, is admissible at his trial. Stanley v. United States , 245 F. 2d 427 (6 Cir. 1957).

Obviously, there was no violation of the Fifth Amendment in the examination of the defendants before the grand jury.

The assertion of the defendant Gregory Moore that his compelled appearance before a special agent of the Internal Revenue Service violated his constitutional right against self-incrimination, for failure to advise or warn him of his right under the Fifth Amendment, is without merit. This appearance occurred during the year 1959, and to say that the defendant was aware of his constitutional privilege long before this time would be an understatement since he had on previous occasions availed himself of the full protection accorded by the Fifth Amendment in various hearings which he was required to attend.

After full consideration of the defendants' motions in the light of the authorities and precedence, the Court finds that the motions of the defendants, Gregory Moore, Edward Worman, Sam Magin and George Frank, to dismiss the indictment should be denied and that the defendants' motions to suppress should be denied.

The Government filed its motion to strike and dismiss the motions of the defendants, Edward Wortman, Sam Magin, Gregory Moore and George Frank, to dismiss the indictment and their respective motions to suppress the testimony given by the defendants, Edward Wortman, Sam Magin, Gregory Moore and George Frank. The motions referred to in the Government's motion to strike have been disposed of on the merits; therefore, the Government's motion to strike is no longer material.

[Inspection of Grand Jury Minutes]

The defendants, Sam Magin, Gregory Moore, Edward Wortman and George Frank, filed their separate motions to inspect the grand jury minutes and move the Court for an order authorizing each of the defendants to inspect and copy the minutes and transcripts of their respective testimony before the grand jury and to inspect and copy the minutes and transcripts of the grand jury testimony of all witnesses who testified prior to the defendants' appearances before the grand jury.

The defendants each assert that a copy of the minutes and transcripts requested is necessary for the preparation of his defense in order that he may be fully informed as to the matters to which he testified before the grand jury and in order that he might show that he himself was under investigation at the time he was subpoenaed by the grand jury for the purpose on indicting him on the offenses charged in the indictment.

The grand jury is charged to investigate the facts presented to it and to return an indictment only if there is legal and competent evidence that an offense has been committed and reasonable ground to believe that those charged are guilty. There is a strong presumption that the grand jury has faithfully discharged its duty. Cox v. Vaught, 52 F. 2d 562 (10 Cir. 1931). The testimony before the grand jury is not a matter to be displayed before the public generally and should not be disclosed except upon good cause shown, and such cause should be reasonably founded upon facts. Only in such circumstances should the secrecy of the proceedings before the grand jury be violated.

Under Rule 6(e) of the Federal Rules of Criminal Procedure, Title 18, U. S. C. A., under no circumstances has the court authority to grant a petition for a copy of the proceedings before the grand jury; however, by way of interpretation the federal courts have extended their jurisdiction so that they may remove the seal of privacy from grand jury proceedings when in the court's discretion the furtherance of justice requires it. These courts have further stated, however, that granting inspection of grand jury records and proceedings is a power to be sparingly exercised.

Secrecy has characterized grand jury proceedings from earliest times, and secrecy of proceedings before a grand jury is fundamental to our crminal proceedings. Exceptions are made only for such purposes as impeachment of a witness or prosecution for perjury by a witness. In re Bullock, 103 F. Supp. 639.

The reasons for secrecy of proceedings before a grand jury at common law were:

1. To prevent the escape of those indicted;

2. To insure the grand jury freedom in its deliberations;

3. To prevent any person from annoying the grand jurors;

4. To prevent subornation of perjury with witnesses who may testify before a grand jury and later appear at the trial of those indicted by it;

5. To encourage free and untrammeled disclosure by persons who have some information with respect to the commission of crimes; and

6. To protect the innocent person who is accused but exonerated from disclosure of the fact that he has been under investigation.

Proceedings before a grand jury must in the interest of justice be held in the utmost secrecy, and such secrecy may be waived only upon a showing that injustice will otherwise result. Proceedings of a grand jury may be removed in part from the cloak of secrecy in prosecution for perjury. This Court has previously supplied to one of the defendants herein (namely, Sam Magin) a transcript of his testimony before the grand jury. The veil of secrecy was lifted to permit the defendant access to pertinent portions of the proceedings before a United States grand jury for the Eastern District of Illinois for the reason that the defendant was charged with having committed perjury before that grand jury; and, accordingly, the testimony of the defendant Sam Magin before that grand jury was provided to him. However, in order to permit a further removal of the secrecy of grand jury proceedings, the defendants must establish good cause and show the Court that failure to do so would result in an injustice. This these defendants have not done. In fact, they have failed to show any cause why the Court should grant their motions to inspect proceedings before the grand jury or to be supplied with a copy of their statements before the grand jury, other than their mere assertion that it is needed to prepare their defense. In order for this Court to exercise the discretion granted to it in removing the secrecy of the grand jury proceedings, something more must be shown.

Accordingly, the Court cannot say that in the exercise of its discretion he would be justified in providing the defendants with disclosure of the grand jury proceedings. Their motions to inspect and copy the grand jury proceedings will be denied.

The Government filed its motion to quash or modify the subpoena served on J. G. Philpott, District Director of Internal Revenue.

At the hearing on this matter the Court entered an order modifying the subpoena complained of. That motion need not be further considered in this opinion.

[Pretrial Production of Evidence]

Each of the defendants filed his separate motion for production of documentary evidence and objects under Rule 17(c) of the Federal Rules of Criminal Procedure, Title 18, U. S. C. A., and has attached thereto a subpoena which was served on the United States Attorney for the Eastern District of Illinois, asking that he produce the following documents:

(1) All documents, books, papers and objects (except memoranda prepared by government counsel, documents or papers solicited by or volunteered to government counsel which consist of narrative statements of persons or memoranda of interviews), obtained by government counsel in any manner other than by seizure or process,

(a) in the course of the investigation by the Grand Jury which resulted in the return of the indictment herein, and

(b) in the course of the government preparation for trial of this cause, such books, papers, documents and objects (aa) which have been presented to the Grand Jury, or (bb) which are to be offered as evidence in the trial of these defendants.

(2) All documents, books, papers and objects (except memoranda prepared by government counsel and documents or papers solicited by or volunteered to government counsel, which consist of narrative statements of persons or memoranda of interviews), obtained by government counsel in any manner other than by seizure or process, in the course of the investigation by agents of the Federal Bureau of Investigation and other governmental agents and police officers, if such books, papers, documents and objects are to be offered as evidence in the trial of the defendants.

(3) All documents, books, papers and objects obtained by the government counsel in any manner other than by seizure or process, in the course of the investigation by governmental agents in the course of ghe government's preparation for trial of this cause, if such books, papers, documents and objects tend to impeach the testimony of any prospective prosecution witness.

(4) All memoranda of any kind and all statements allegedly given by the defendant to governmental agents.

(5) All memoranda and other writings in possession of the government which are going to be used for the purpose of refreshing the memory of any witness at the time of the trial of the defendants.

(6) All books, papers, documents and objects obtained from or belonging to defendants or obtained from others by seizure or by process.

(7) All photostats of books, papers, documents and objects heretofore mentioned in paragraphs 1 through 5 of this subpoena.

The United States Attorney filed his motion to quash the subpoenas of all the defendants or in the alternative to modify said subpoenas.

Rule 17(c) is not a pre-trial discovery vehicle but is designed as an aid in obtaining evidence which defendants can use at the trial. Only where it appears that the defendant may use his statements for evidentiary purposes, may its production be compelled pursuant to Rule 17(c). In allowing inspection, however, the trial judge has much discretion, and the rule has been construed as sanctioning inspection only when good cause is shown. United States v. Malisia, 154 F. Supp. 511 (U. S. D. C. S. D. N. Y. 1957).

The fact that subpoenaed material may be evidentiary and subject to production at the trial under a subpoena duces tecum obtained by a defendant does not mean that the defendant is entitled as a matter of right to pre-trial production and inspection under Rule 17(c). Whether a pre-trial production and inspection will be required is discretionary.

In determining whether in a given case discretion should be exercised in favor of or against pre-trial production and discovery under Rule 17(c), it is necessary to keep in mind that although 17(c) and 16 have related purposes, they have different functions and applications. One of the practical objectives of 17(c) is to provide a means for sifting, in advance of trial, documents to be offered in evidence, where they are multitudinous. It is necessary to guard against action under Rule 17(c) which, contrary to its spirit and purpose, is aimed at obtaining discovery. The purpose of a subpoena duces tecum is to enable a party to obtain evidence at the trial to use in support of his case and not to pry into the case of his adversary. A court should be liberal in a criminal action in holding documents to be evidentiary for the purpose of permitted a party to obtain their production at the trial by subpoena; however, pre-trial production any inspection is a different matter. It should be conditioned on some showing by the defendant that the subpoenaed documents have evidentiary, as distinct from discovery, value to him.

In the instant case the defendants have failed to show affirmatively that the materials sought under the subpoenas are evidentiary in nature and have not set forth in their motions any reasonable grounds why the materials subpoenaed should be produced and consequently have presented no showing of good cause which is necessary and indispensable in a request for pre-trial production of documents under Rule 17(c). An examination of the subpoenas clearly shows that the defendants are on a fishing expedition which is contrary to the purpose of Rule 17(c). Accordingly, the Court in its discretion grants the motion of the United States Attorney to quash the subpoenas as they pertain to pre-trial discovery and the subpoenas requesting pre-trial discovery will be quawhed.

[Disposition of Motions]

For the above and foregoing reasons the Court does hereby ORDER, ADJUDGE and DECREE:

That the defendants' joint motion to dismiss the indictment, premised on the grounds that the Government engaged in such efforts as publicity, calculatedly prejudicial to the defendants; that the indictment is insufficient; and that the overt acts in the substantive counts of the indictments are alleged in the disjunctive rather than the conjunctive, be and the same is hereby denied.

That the separate motions of the defendants to dismiss the indictment, based on the alleged illegality of the grand jury, be and the same are hereby denied.

That the defendants' separate motions for inspection and copying, pursuant to Rule 16, of those documents obtained by seizure or process belonging to the defendants, be and the same are hereby allowed, and as to those books, papers, documents and objects obtained from or belonging to others, the motions be and the same are hereby denied.

That the separate motions of the defendants for severance be and the same are hereby denied.

That the joint motion of the defendants, Frank Leonard Wortman and Elmer Sylvester Dowling, for bill of particulars be and the same is hereby denied.

That the motion of defendant Gregory Moore for bill of particulars be and the same is hereby denied.

That the motions for bill of particulars of the defendants, Edward Wortman, Sam Magin and George Frank, be and the same are hereby denied.

That the motions of the defendants, Edward Wortman, George Frank, Sam Magin and Gregory Moore, to dismiss the indictment, based on the grounds that they were compelled to appear before the grand jury, be and the same are hereby denied.

That the motions of the defendants Edward Wortman, George Frank, Sam Magin and Gregory Moore, to suppress the testimony of the defendants before the grand jury and further to suppress all evidence obtained directly or indirectly from such testimony be and the same are hereby denied.

That the motions of the defendants, Sam Magin, Gregory Moore, Edward Wortman and George Frank, to inspect the grand jury minutes be and the same are hereby denied.

That the motion of the United States to quash the subpoenas issued pursuant to Rule 17(c) be and the same is hereby allowed and the subpoenas are hereby quashed.

 

 

[55-1 USTC ¶9267]Louis J. Gariepy, Appellant v. United States of America , Appellee

(CA-6), In the United States Court of Appeals for the Sixth Circuit, No. 12061, 220 F2d 252, March 9, 1955

Appeal from the United States District Court for the Eastern District of Michigan.

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

Tax evasion: Objection to jury panel: Instructions given and refused: Limitation on cross-examination: Court's hostility: Verdict sustained.--The conviction of taxpayer on charges of tax evasion under 1939 Code Sec. 145(b) was, on motion for acquittal, held supported by substantial evidence. The following other assignments of error at the trial were overruled: (1) that the court denied taxpayer's challenge to the array of the jury panel for the reason that it was drawn from only certain counties where there was extensive publicity on the indictment, (2) that the indictment charged no offense under Code Sec. 145(b) for which he could be convicted under the evidence, (3) that the returns in question were unsigned, (4) that the instructions to the jury were improper and requested instructions were improperly refused, (5) that cross-examination was unduly limited, (6) that improper comments were made by the Court in the hearing of the jury, and (7) that the Court manifested hostility to taxpayer's attorneys in the trial.

James E. Haggerty, Harry Nayer (James E. Haggerty, Harry Cohen, Harry M. Nayer, Edward P. Echlin, Detroit , Mich. , on brief), for appellant. George E. Woods, Detroit, Mich., William A. Barnett, Rogional Office Internal Revenue Department, Chicago, Ill. (Fred W. Kaess, Detroit, Mich., John D. Kiley, William A. Barnett, Regional Counsel, Chicago, Ill., on brief), for appellee.

Before MARTIN, MCALLISTER and STEWART, Circuit Judges.

MARTIN, Circuit Judge:

Appellant, Louis J. Gariepy, a Detroit doctor specializing in surgery and enjoying a lucrative practice, was convicted by jury verdict on two counts of an indictment charging him with violation of section 145(b) of the Internal Revenue Code, 26 U. S. C. A., 145(b). He was sentenced to four years' imprisonment on each of the two counts, the sentences to run concurrently, and was fined $5,000 on each count. His office nurse and confidential financial secretary, Marie L. Loechner, who had been jointly indicted with him, was acquitted by the verdict of the jury.

Before returning its verdict, the jury inquired as to whether it "could return a verdict of guilty as to one of the defendants and make a recommendation of mercy." The judge replied affirmatively, but told the jurors that the recommendation would not be binding upon the court. He assured them, however, that their recommendation would be given "full consideration in any consequences that may follow." When subsequently pronouncing sentence on appellant, the judge stated that he had considered the probation report and, "chiefly," the recommendation of mercy made by the trial jury. He asserted that the evidence of guilt of the appellant was overwhelming, and that had the jurors failed to return a verdict of guilty they would have violated their oaths and simply would have pardoned the defendant. He said that appellant had had a fair trial and that his rights had been properly protected, "both by eminent and able counsel and also by the court."

The court was impelled to find that appellant had committed perjury, inasmuch as he knew that he had understated his income; that the doctor had wilfully thrown obstacles in the way of the investigating officers over a long period of time; that he had deliberately destroyed his records and thereby prevented the revelation of the extra sums of money which he had received; and that he had done this after the revenue officers had visited his offices for the purpose of examining his records. The judge considered that he would be recreant in his duty if he failed to impose a sentence which the facts required--not only because the defendant was a man of high reputation in his community, but also because of the example set for people of no influence who would be brought before the criminal bar of the court.

[The Facts]

The income tax returns of Dr. Gariepy for the respective years involved--1945 and 1946--were not signed by him, but had been prepared by his employee, the Rex Beasaw Income Tax Service, from information obtained from the co-defendant, Marie Loechner, who had secured the data in the defendant's office and from the so-called Rex "black books" which were daily record books of receipts and disbursements. The entry of income had been regularly made by Mrs. Lucille Baldinger, receptionist and bookkeeper for the doctor during 1945 and until August of 1946. Disbursements had been entered in these books by Miss Loechner. Payments for major surgery, however, had been deliberately omitted from the "black books" during 1945 and partially during 1946, although, in the latter year, some surgical fees had been entered. The appellant had directed the transmission of the information furnished the Rex Beasaw Service. The record discloses that he was informed as to the system of bookkeeping employed in his office and kept in touch with his business records.

Mrs. Baldinger testified that appellant would "glance" at her entries in the black books and that on one occasion when he observed that the entry of a surgical charge had been made in one of these books had said: "That should be on the account sheet and filed in the closet." The witness testified further that she would either place the account sheets on Dr. Gariepy's desk with the mail, or would take them into his office and show them to him. These were the yellow account sheets on which surgical charges were entered. They were kept, so she said, in a filing cabinet in a closet of the front office. The surgical cases and the non-surgical cases were handled in an entirely different manner, the record of surgical cases being placed in the closet at the end of each day. The open account sheets were kept in the top section of the cabinet and the closed accounts in the bottom section.

Both Dr. Gariepy and Miss Loechner had informed Mrs. Baldinger of the payment of surgical fees so that she could make appropriate entries on the account sheets kept in the closet. Mrs. Baldinger testified that at the end of each day, she would put into a large envelope all the checks and cash received by her during that day, with a notation of the total amount, and would give the envelope to Dr. Gariepy before he left the office. Dr. Gariepy stated that he turned over these receipts to his wife, who made the bank deposits. When she was out of town, a long-time associate of his in the x-ray department would substitute for her in making the deposits.

[Government Investigation]

Revenue Agent Price testified that, when the government investigation began, he was told by Dr. Gariepy that his entire set of books consisted of the "black books" and a commercial check book. When he questioned Dr. Gariepy about his accounts receivable, the doctor stated that he destroyed the record of an account when it was paid; and that he did not maintain an accounts receivable ledger, or duplicate receipts. The revenue agent was shown a sample of the yellow cards upon which patients' accounts are kept, but was told by the doctor that, because the medical history of the patients appeared on the cards, they could not be made available to the agent. When the doctor was informed that it would be necessary to inspect the hospital records in order to determine his income, he admitted that he had duplicate receipts and suggested that these be used by the investigators for that purpose. Shortly thereafter, he stated that he could not furnish the receipt books because they had been destroyed. He explained that Special Agent Kitchen, who was not investigating his returns, had telephoned him concerning the tax liability of his brother; and that the agent informed him that his [appellant's] income tax had been closed and that it was, therefore, unnecessary that the doctor preserve these records. Special Agent Kitchen denied that he had made any such statement to Dr. Gariepy.

The most convincing evidence of Dr. Gariepy's guilt was that, after he knew his income tax returns were being investigated, he deliberately removed from the closet in his office the yellow sheet records of his paid surgical fees and transferred them to the attic of his home. He admitted that he had personally transported them in suitcases at intervals and had permitted them to be destroyed while his house was being cleaned and redecorated. The jury obviously did not believe his rather incredible excuse for destroying important records--that a revenue agent who was not even working on his case had told him that the case against him was closed.

[Testimony of Witnesses]

Numerous patients of Dr. Gariepy were called as government witnesses and testified that, during 1945 and 1946, they had made payments to the doctor, or to his nurse or other representatives, for professional services in various amounts from $50 to $500. Most of these patients had receipts or cancelled checks in support of their testimony. The inference is plain, therefore, that payments made to the doctor for professional services to these patients had not come from and were not made by insurance companies listed on Exhibits 112 and 113, which were made up by the revenue agents from information in the insurance record books kept by Miss Loechner.

Revenue Agent Philpott testified that, upon examination of the black books, he had found no reference to the payments which the patients claimed to have made. He swore that in numerous instances he found an entry, "NC," in the receipt column of a patient who testified that he, or she, had paid the doctor. Dr. Gariepy explained that the entry "NC" meant that no charge had been made. The witness, Philpott, testified further that an examination of the duplicate receipt book covering the period from August 3 to August 21, 1945, showed fourteen duplicate receipts ranging in amount from $27 to $250. These had not been recorded in the black books. He found four items, corresponding in date with the date of receipts, carrying the entry "NC" following the respective names of the patients.

Another government witness testified that he had computed the additional income revealed by testimony of patients and found that Dr. Gariepy's unreported income amounted to $18,255 for 1945 and $11,733 for 1946. From this, he calculated that the doctor's tax had been understated on his 1945 return by $13,605.85 and, on his 1946 return, by $5,025.88.

After hearing the testimony of the income tax examiners, co-defendant Loechner changed her story from that originally told by her to the government examiners and also from that told to the examiners by Dr. Gariepy and his then attorney. She testified that she took the total of the black books, the total of the yellow sheets less the Michigan Medical Service total, and submitted this information, along with the information from Form 1099 sent by the Michigan Medical Service, to the Beasaw office; and that she used the insurance memorandum books [from which Exhibits 112 and 113 were compiled] in preparing information for the tax returns. Her testimony concerning receipts from surgical fees and payments made by insurance companies was contradicted by many patients who had paid surgical fees without benefit of any insurance or with the aid of the Michigan Medical Service. Her testimony was also contradicted by a representative of the Michigan Medical Service. Of some seventy patients who testified, many said that, in 1945, they were not insured at all but had paid Dr. Gariepy for professional services. Others of them testified that they were insured by Michigan Medical Service and had paid Dr. Gariepy specified amounts. The total of these payments to the doctor aggregated $8,965. Thirty-five patients swore to a total of $5,506 for the year 1946, paid either from their own funds or by Michigan Medical Service. Miss Loechner's testimony concerning the fees and the insurance records was confused and confusing, boiling down to an admission that she did not know where she got the information contained in the records. The record in the case reveals that she said: "Where I got the information that I recorded in that insurance--and I add the word 'surgery' now, I don't know anywhere in particular, except I do know what the amount was taken in from surgery. I got the information from the yellow account sheets. How I knew when I went to the yellow account sheets, that an item that I picked from the yellow account sheet was to go under American Medical Society I didn't know. As I said before, there was no reason for that book. That book had nothing to do with it. I have no reason for it. Why I made such a list I don't know. There is no particular reason, except one thing, as I said before, those insurance companies that different patients had had association with and they were on their charts or account sheets. When I made a list up of those patients from the account sheets right now I wouldn't know from the account sheet under what company to put them. There was no reason. As I say, that had nothing to do with the income tax." The yellow sheets about which she testified so glibly were those destroyed by Dr. Gariepy.

[Substantial Evidence of Evasion]

We think there is unquestionably substantial evidence that appellant Gariepy caused his income tax returns for the years in question to be understated in a deliberate and wilful effort to evade taxes. He was not wholly unacquainted with a simple system of accounting, as evidenced by the fact that when working in a drug store before becoming a doctor he made bookkeeping entries in his employer's records. His testimony disclosed that he was well acquainted with the method by which his books were kept; and that he well understood the difference between a day book and a ledger sheet. He testified that all the money received from his professional services was reflected in ledger sheets, except such portion thereof as was recorded in the Rex Beasaw books. He said that "by adding the Rex books and the ledger sheets you got the total amount." He admitted that he had been given by Mrs. Baldinger, at the end of each day, all checks and cash taken in. He swore that he had not included in the black books all the monies which he received, for the reason that the ledger sheets reflected all such money not appearing on the black Rex books. He knew that to get a complete accounting of the total amount of money received by him in any one year would require the addition of the sums shown on the account ledger cards and the receipts appearing in the black books; and, yet, while the accuracy of his income tax returns for 1945 and 1946 were in serious question, he permitted these allimportant ledger sheets to be destroyed after he had deliberately removed them from his office to the attic of his home. Not until after he was informed that the investigation would require contact with his patients to ascertain what they had paid him did he reveal the fact that he had kept duplicate receipt records.

The doctor told Revenue Agent Price that he maintained a record of accounts receivable but destroyed the record when an account was paid. He preserved records of unpaid accounts only. In January of 1947, Dr. Gariepy commenced transferring the information on the yellow cards to new records and carried the old records home.

The government obtained from Mt. Carmel Hospital a list of the doctor's patients and sent them questionaires in an effort to determine his correct income. One of these patients testified that when she received the questionnaire she telephoned the doctor and asked him what to do with it. He told her to send it to him. She did. When it was returned to the Bureau of Internal Revenue, there was typed on it: "I do not remember the dates. I do not keep my receipts longer than one year." The patient testified that she had not typed this statement on the questionnaire. Another patient stated that when he received the list of questions he took it to Dr. Gariepy and inquired about it. The doctor told him that it was just a routine check-up and to forget it. The doctor stated that he would take care of it, then tore up the questionnaire and threw it into a wastebasket. These two incidents, coupled with the other evidence, were incriminating.

Under the authorities, the conduct of Dr. Gariepy was of such character as to support a plain inference that he wilfully attempted income tax evasion. As was said in Spies v. United States, 317 U. S. 492, 499 [43-1 USTC ¶9243]: ". . . By way of illustration, and not by way of limitation, we would think affirmative willful attempt may be inferred from conduct such as keeping a double set of books, making false entries or alterations, or false invoices or documents, destruction of books or records, concealment of assets or covering up sources of income, handling of one's affairs to avoid making the records usual in transactions of the kind, and any conduct, the likely effect of which would be to mislead or to conceal."

[Motion for Acquittal]

As authority for the proposition that the jury in the instant case had substantial evidence upon which to convict appellant of wilful income tax evasion and that the district judge properly denied the motion of appellant for judgment of acquittal made at the close of the government's case and renewed when all the evidence in the case had been received, see opinions of this court in Battjes v. United States, 172 Fed. (2d) 1 (C. A. 6) [49-1 USTC ¶9149]; Gariepy v. United States, 189 Fed. (2d) 459, 463 (C. A. 6) [51-1 USTC ¶9318], wherein conviction of appellant's brother for income tax evasion was affirmed. See illustrative authorities from other circuits: Kobey v. United States, 208 Fed. (2d) 583 (C. A. 9) [54-1 USTC ¶9106]; United States v. Lange, 161 Fed. (2d) 699, 704 (C. A. 7) [47-1 USTC ¶9249]; Myres v. United States, 174 Fed. (2d) 329, 336 (C. A. 8) [49-1 USTC ¶9275], certiorari denied 338 U. S. 49; Olson v. United States, 191 Fed. (2d) 985, 989 (C. A. 8) [51-2 USTC ¶9468]; Sasser v. United States, 208 Fed. (2d) 535, 539 (C. A. 5) [54-1 USTC ¶9118]; Barshop v. United States, 191 Fed. (2d) 286, 293 (C. A. 5) [51-2 USTC ¶9425], certiorari denied 342 U. S. 920; Maxfield v. United States, 152 Fed. (2d) 593, 597 (C. A. 9) [46-1 USTC ¶9115], certiorari denied 327 U. S. 794.

[Undue Publicity]

Appellant avers that the district court erred in denying his challenge to the array of the petit jury panel, for the reason that the entire panel was drawn from Wayne and Oakland Counties , which constitute only two of the sixteen counties comprising the Southern Division of the Eastern District of Michigan. The indictment and trial of appellant's brother, Dr. Bernard Gariepy, had received unusual publicity in newspapers published in Wayne and Oakland Counties , as well as from radio and television. After conviction of appellant's brother [Gariepy v. United States, 189 Fed. (2d) 459 (C. A. 6) [51-1 USTC ¶9318], supra], the indictment of appellant for income tax evasion had been predicted by radio broadcast, as well as in newspapers published in Detroit. There was no professional association between the brothers Gariepy and, as alleged in the affidavit in support of the challenge to the panel array, there had been no "fraternal association" between them for more than fifteen years. Undoubtedly, appellant received bad press notices in Detroit , where he was engaged in practice.

The pertinent Code provision is that both grand and petit juries shall be selected from such parts of the district as the court directs, so as to be most favorable to an impartial trial, and not to incur unnecessary expenses or unduly burden the citizens of any part of a district with jury service. Section 186a, Title 28, U. S. C. A.

Appellant cites Delaney v. United States, 199 Fed. (2d) 107, 113 (C. A. 1); Frantz v. United States , 62 Fed. (2d) 737, 738 (C. A. 6); Walker v. United States , 116 Fed. (2d) 458, 462 (C. A. 9); and Local 36, International Fishermen, etc. v. United States , 177 Fed. (2d) 320, 338-342 (C. A. 9) [opinion written by the designated trial judge in the instant case]. In the first cited authority (Delaney), the court said that it was not "a case of pre-trial publicity of damaging material, tending to indicate the guilt of defendant, dug up by the initiative and private enterprise of newspapers", but was a case where the United States, through open committee hearings in its legislative department shortly before the trial of a pending indictment, had caused and stimulated "massive pre-trial publicity, on a notionwide scale." The Frantz and Walker cases carry no further than to support the power of the trial court to exercise discretion in the matter of summoning jury panels.

Appellant emphasizes the opinion of this court in Marson v. United States, 203 Fed. (2d) 904, 909 (C. A. 6), wherein we reversed a conviction in a criminal case because of the refusal of the district judge to interrogate the jurors to ascertain whether they had been prejudiced by reading a newspaper article that linked the defendant's name with those of two convicted criminals. In that case, moreover, we held that the judge had examined the jurors on voir dire in a manner highly prejudicial to the defendant and had refused to question the jurors in compliance with proper motions made by defendant's counsel. The action of the judge in the Marson case is in no wise comparable to the situation found here. The record fails to show that the examination of jurors in the instant case was in any manner improper. Inasmuch as no showing has been made of abuse of the court's discretionary power, no error is found in the action of the trial court in denying appellant's challenge to the array. See United States v. Gottfried, 165 Fed. (2d) 360, 363, 364 (C. A. 2), certiorari denied 333 U. S. 860, rehearing denied 333 U. S. 883.

[Sufficiency of Indictment]

Appellant urges that the instant indictment cannot sustain his conviction under section 145(b) of the Internal Revenue Code "where the only means of the attempt to defeat and evade income taxes" alleged was the filing of unsigned tax returns. He draws a distinction between the misdemeanor with a maximum penalty of one year's imprisonment and a fine for wilful failure to file a return, as defined in section 145(a), I. R. C., and the felony defined in section 145(b) of the Internal Revenue Code, in the wilful attempt to evade or defeat the payment of income taxes. He relies principally upon the opinion of the Supreme Court in the Spies case (317 U. S. 492). A careful reading of the opinion in that case does not warrant the inference which appellant seeks to draw from it. Mr. Justice Jackson declared that a wilful attempt to defeat or evade taxes may be accomplished by "any conduct, the likely effect of which would be to mislead or to conceal." See United States v. Smith, 206 Fed. (2d) 905 (C. A. 3) [53-2 USTC ¶9538]; Montgomery v. United States, 203 Fed. (2d) 887, 889 (C. A. 5) [53-1 USTC ¶9336]. Compare Emmich v. United States , 298 Fed. 5, 9 (C. A. 6) [1924 CCH ¶3481]. Here the attempted evasion was accomplished by appellant's filing with the Collector of Internal Revenue false documents which purported to be income tax returns. See also United States v. Beacon Brass Co., 344 U. S. 43 [52-2 USTC ¶9528]. The indictment was sufficient to inform the accused of the crime charged, so that he could adequately prepare his defenses and could plead the judgment in bar of another trial for the same offense. United States v. Behrman, 258 U. S. 280. This doctrine is so well established in this jurisdiction and elsewhere as to require no repetition here of authorities so often cited.

[Unsigned Returns]

Appellant argues that the "purported" returns did not constitute income tax returns under the law; that the filing of the unsigned documents did not constitute the commission of an affirmative act requisite to sustain conviction under section 145(b). We think this contention runs contrary to the holding of this court in Emmich v. United States, 298 Fed. 5, 9 (C. A. 6) [1924 CCH ¶3481], where it was said: "The real character of the offense lies, not in the failure to file a return, or in the filing of a false return, but rather in the attempt to defraud the government by evading the tax." The specious contention of appellant comes rather late. At the trial, he did not deny that the documents filed with the Collector of Internal Revenue on his behalf were in fact income tax returns. Indeed, he identified the documents as his income tax returns for 1945 and 1946 and denied that he had purposely omitted signing the returns; and, in respect of the 1946 return, stated that the tax was paid by his wife in conformity with the return.

Appellant insists that the following sentence in the charge of the court to the jury constitutes reversible error: "The defendant Gariepy must be taken to have had knowledge that his income for the calendar years 1945 and '46 was as stated by the accountants in the purported tax returns for those years respectively." The opinion of this court in Lurding v. United States, 179 Fed. (2d) 419, 421, 422 (C. A. 6) [50-1 USTC ¶9159], is cited as direct authority for reversal. There, we said that the "doctrine of respondeat superior is not to be drawn from the law of negligence and applied to criminal liability." But we said, further, that the fact that the taxpayer did not make out the return "becomes immaterial only when the Government has established, by direct proof or by circumstances, that the taxpayer knew or perhaps should have known that the return was false." Lifting out of context an isolated paragraph of a charge as a basis of complaint that the selected statement constitutes reversible error, where the charge in entirety fully and adequately protects the lawful rights of the appellant, does not meet our approbation. The instructions of the experienced trial judge made it clear that Dr. Gariepy should not be convicted unless it was proved by convincing evidence beyond any reasonable doubt that his conduct constituted a knowing and wilful attempt to defeat and evade his lawful income taxes.

[Jury Instructions]

The jurors were told, inter alia, that: "Before the defendant can be found guilty, you must find beyond a reasonable doubt such omissions, if any, had been made with the specific intent to defeat and evade part of the income tax due and owing for the particular year in question." And, following the paragraph of the charge of which complaint is made, the judge instructed: "The defendant cannot be held guilty simply because he was a poor bookkeeper or that there were poor office systems in practice in his office, or that he was pressed by the amount of business that he was doing, if you find such is the case; but you must find that the returns for the year in question failed to reflect the amounts of money received knowingly and wilfully. It must be proved beyond a reasonable doubt that the defendant knew that substantial sums of money received by him from patients for surgery were not placed of record in such a manner that these payments would be reflected in his income tax return. If you find that substantial amounts both in number and in volume were actually paid to the defendant Gariepy either personally or through the defendant Loechner, or to any other person, and of which he knew that such amounts were not shown to be included on the purported tax return, you may consider whether the defendant knew such amount was not being reported on the purported tax return, and then you will consider the question of wilfulness . . . but you cannot find the defendant Gariepy guilty unless you find beyond a reasonable doubt that he had knowledge that he received more money than that reported and wilfully attempted to defeat and evade the tax imposed thereon in the manner charged in the indictment. . . . It must be proved that the defendant acted not only knowingly, as I said above, but that he has acted wilfully in an attempt to evade and defeat a particular tax charged or a portion of it. . . . Wilfulness is an essential element of the crime charged. Wilfulness is the state of mind of the defendant where he is fully aware of the existence of a tax imposed upon him by the law which he seeks to evade or defeat. Wilful evasion requires an intentional act or omission as compared to an accidental or inadvertent. It requires a specific wrongful intent to defeat or evade the tax obligation known to exist. . . . There can be no crime without a criminal intent, as the court has just now instructed you, and in this case, the specific intent is necessary to constitute the crime under the charge made in the indictment."

No exception was taken by appellant's attorneys to the paragraph of which complaint is now made. Rule 30 of the Federal Rules of Criminal Prcedure provides that error cannot be assigned to any portions of or omissions from a charge, unless objection thereto is made before the jury retires. The rule requires that the grounds for the objection be stated distinctly. We agree with the expression in United States v. Raub, 177 Fed. (2d) 312, 315 (C. A. 7) [49-2 USTC ¶9422], that Rule 52(b) should not be lightly invoked. That rule gives the appellate court discretion to notice plain errors or defects affecting substantial rights. See Paschen v. United States , 70 Fed. (2d) 491 (C. A. 7) [1934 CCH ¶9234]; Barshop v. United States, 191 Fed. (2d) 286 (C. A. 5) [51-2 USTC ¶9425], certiorari denied 342 U. S. 920; Norwitt v. United States, 195 Fed. (2d) 127 (C. A. 9), certiorari denied 344 U. S. 17; Norris v. United States, 205 Fed. (2d) 828 (C. A. 2) [53-2 USTC ¶9511].

Appellant assigns error on the part of the court in charging the jury that the duty of filing a correct and accurate income tax return was personal to the appellant and could not be delegated. This assignment of error is, likewise, based on no exception taken at the trial. The law did impose a non-delegable duty upon appellant to file a correct and accurate income tax return; and, in the entire context, as has been plainly indicated heretofore, the appellant was given in the court's charge to the jury the benefit of accurate and fair instructions which adequately protected his interests. Banks v. United States , 204 Fed. (2d) 666, 673 (C. A. 8) [53-1 USTC ¶9402], certiorari denied 346 U. S. 857; Beaty v. United States, 203 Fed. (2d) 652 (C. A. 4) [53-1 USTC ¶9329]; Paschen v. United States, 70 Fed. (2d) 491, 499 (C. A. 7) [1934 CCH ¶9234].

Complaint is made of alleged error in the court's charge when the jurors were told that evidence of previous good reputation "may not only raise a doubt of guilt, but may, in connection with all the other evidence in the case [Italics added], bring conviction of innocence", with the added comment, "however, persons of previous good reputation have been known to commit crimes." The assignment of error is not well taken. See Colbert v. United States , 146 Fed. (2d) 10, 11 (D. C. App.); United States v. Antonelli Fireworks Company, 155 Fed. (2d) 631, 639 (C. A. 2). These cases, we think, correctly interpret the expression of the Supreme Court in Edgington v. United States, 164 U. S. 361, 366. As was stated in the Antonelli case, supra, the effect of the Edgington case, by net balance, seems to be that a trial court should not tell a jury to consider character evidence only when the scales are in balance.

[Requested Instructions Denied]

The district court was not in error in rejecting appellant's special requests to charge, numbered respectively XXV, pertaining to reputation evidence, and XXVI, pertaining to reasonable doubt. The proposition pertaining to XXV has been discussed. As to XXVI, the court accurately charged concerning "reasonable doubt." Appellant avers that the charge of the district court was "erroneous, confusing and contradictory, when it charged (1) that the alleged offense could be committed in any manner, and (2) that it could only be committed in the manner alleged in the indictment." [Italics supplied.] Again, in a strained effort to charge error, the appellant lifts out of context a portion of the court's instructions to the jury. The charge, read as a whole, was both clear and correct. The jury was told specifically: "You cannot find the defendant Gariepy guilty unless you find beyond a reasonable doubt that he had knowledge that he received more money than that reported and wilfully attempted to defeat and evade the tax imposed thereon in the manner charged in the indictment." [Italics added.] The defendant failed to take exception to the portion of the charge of which complaint is now made, thus again failing to observe the requirement of Rule 30, Federal Rules of Criminal Procedure.

Appellant complains that the district judge erred when, in responding to the jury's inquiry, he instructed that one defendant could be convicted by them with a recommendation for leniency. The judge was scrupulously careful and accurate in answering the jury's inquiry as he did. Compare Burchman v. United States , 163 Fed. (2d) 761, 762 (D. C. App.); United States v. Parker, 103 Fed. (2d) 857, 863 (C. A. 3).

[Limitation of Cross-Examination]

Appellant urgently insists that the trial judge committed reversible error in shutting off cross-examination of J. G. Philpott [a special agent and group supervisor of the Internal Revenue Service at Detroit ] concerning reports by government agents working under him as to payments alleged to have been made to Dr. Gariepy by various insurance companies. The subject matter was important, in that the theory of the government was that the amounts of money reflected in the doctor's black books and on the "insurance lists" [prepared by government agents from a "memorandum" book, or books, made up by the doctor's nurse, the co-defendant Marie Loechner], which had been introduced in evidence as Government Exhibits 112 and 113, were the amounts which had been disclosed in his income tax returns; whereas, in fact, they did not constitute a complete record of receipts from his professional practice, inasmuch as some 138 witnesses had testified to having paid the doctor amounts ranging from $25 to $500, of which there was no record any where in the doctor's books.

Dr. Gariepy testified that he had not prepared the insurance books and had never seen them; and that he had no knowledge of them. Miss Loechner testified that she had made up what she called the "insurance memorandum books" after she had given to Rex Beasaw the figures for the doctor's income tax. She said, moreover, that the so-called insurance books were not kept in the ordinary course of the doctor's business and had nothing to do with it. She furnished the accountants with figures derived from the yellow account sheets and from the black books. Asked why she made up these insurance memorandum books, she answered, "Well, the only thing I can recall right now, it was just possibly a way of keeping track of some of the companies that either we, the office, or the patients may have had some dealings with, or insurance papers that were filled out." She said it could be possible that there were some entries in the insurance books of payments made by the insurance companies direct to the patients, who later paid the money to the doctor.

Government Agent Philpott had not personally examined the insurance company records and had not previously testified concerning them when he was questioned by appellant's attorney regarding the results of the government's investigation as to payments made by insurance companies to appellant during the years 1945 and 1946. The best evidence of this would have been the records of the insurance companies. The attorney for the government urged that it was incumbent upon defendants to have brought in the insurance companies "as part of the defense of this case." Defendant's attorneys asserted that they had been taken by surprise. The trial judge disagreed with them.

As far as the record shows, appellant failed, after the incident, to call as witnesses the government agents who had made the investigations at the offices of the insurance companies; but introduced certain insurance company officials with the result that some of the payments were disclosed, but many records, according to the officials, had been destroyed after three years, or were at the home offices and not available for the trial, or such records had not been kept in complete form.

It would seem that the trial court acted within the limits of its discretion in denying appellant the right to cross-examine Philpott concerning records which he, himself, had not made; and, moreover, appellant, in preparation of his defense, should not have relied upon eliciting by cross-examination facts which he deemed important to be proved but should have made timely preparation to present his affirmative proof. Cross-examination is, of course, of highest importance in an effort to elicit truth, but its limitation in the circumstances of each case rests largely within the sound discretion of the trial court. Glasser v. United States , 315 U. S. 60, 83; Banning v. United States , 130 Fed. (2d) 330, 337 (C. A. 6), certiorari denied 317 U. S. 695. See also Bell v. United States, 185 Fed. (2d) 302, 310, 311 (C. A. 4) [50-2 USTC ¶9499]; United States v. Hornstein, 176 Fed. (2d) 217, 220 (C. A. 7) [49-2 USTC ¶9326]; Chevillard v. United States, 155 Fed. (2d) 929 (C. A. 9); United States v. Stoehr, 196 Fed. (2d) 276, 280 (C. A. 3) [52-1 USTC ¶9299], certiorari denied 344 U. S. 826.

[Court's Comments]

Appellant insists that the trial court committed reversible error in saying to the United States Attorney in the presence and hearing of the jury: "I think your case can be made without calling all those witnesses." At the time of the judge's comment, the government had introduced some seventy former patients of Dr. Gariepy who had testified that they had made payments to him for professional services. The judge stated that it would be a waste of both his and the jury's time to call very many more witnesses testifying along the same line and that he would place a limitation upon such testimony. In the context, the judge's remark would not tend to create the impression upon the jury that he considered the proof already adduced sufficient to establish the guilt of the accused. Defendant's attorney made so much ado about it, however, that the judge, later on in the trial, thus addressed the jury: "Ladies and Gentlemen of the Jury, counsel seem to have thought that the court had made a mistake by indicating that I didn't think that maybe it was necessary to call all the witnesses of this type. That is true, and I may find it necessary to place a limitation on this type of witness. I want you to remember that in what I said I did not express any opinion on the merits of this case or the guilt or innocence of the defendant. That is a question we will leave for you." [Italics suppled.] In our judgment, this explanation was adequate to relieve any possible adverse impression which might have been conveyed to the jury by the court's admonition to the district attorney. The criticism of the trial judge would seem to be captious. As was abserved in Glasser v. United States, 315 U. S. 60, 83, magnification on appeal of instances of little importance in their trial setting should be guarded against. The trial judge stated that a parade of government witnesses that was in the offing could have been "quite prejudicial to the defendant" and that in limiting the number of witnesses he had actually acted in the interest of the defendant. We think he acted discreetly.

No parallelism whatever with the present case is found in the circumstances disclosed in Starr v. United States, 153 U. S. 614, cited by appellant.

[Court's Hostility]

Finally, appellant charges that the attitude of the trial judge toward appellant's attorneys manifested extreme impatience and almost hostility, as contrasted with his solicitude and consideration for government counsel; and that his conduct of the trial, when considered as a whole, constituted denial to appellant of his right to a fair and impartial trial. Appellant has cited and we have given due consideration to the following authorities: United States v. Minuse, 114 Fed. (2d) 36, 39 (C. A. 2); Egan v. United States , 287 Fed. 958, 971; Frantz v. United States , 62 Fed. (2d) 737, 739 (C. A. 6); Braswell v. United States , 200 Fed. (2d) 597, 602 (C. A. 5); Starr v. United States, 153 U. S. 614, 626; Bollenbach v. United States, 326 U. S. 607, 612; Sunderland v. United States, 19 Fed. (2d) 202, 216 (C. A. 8); Wheeler v. Wallace, 53 Mich. 355, 358 (opinion by Mr. Justice Cooley).

While in the instant case the distinguished trial judge was at times quite tart toward appellant's counsel in his rulings and comments, we are not convinced that he transcended the bounds of propriety or exhibited an attitude of such hostility towards these able and courteous attorneys as to cause a verdict to be rendered against appellant which otherwise would not have been found by the jury. The evidence of appellant's guilt of the crimes charged was adequately substantial.

There being no reversible error disclosed by the record of proceedings and trial in the district court, its judgment of conviction and sentence is affirmed.