Basis for Allegation of
Fraud
7206-
Fraud and False Statements: Basis for Allegation of Fraud
[53-2 USTC ¶9450]Lester E. Butzman,
Sr., Appellant v. United States of America, Appellee Gilbert M. Craig,
Appellant v. United States of America, Appellee
(CA-6),
In the United States Court of Appeals for the Sixth Circuit, Nos. 11704,
11705, 205 F2d 343, June 22, 1953
Appeals from the United States District Court for the Northern District
of Ohio, Eastern Division.
Penalties: Conviction on criminal charge: Adjudication on appeal of
alleged procedural errors.--The two appellants were found guilty in
the District Court and each received a prison sentence for falsely and
fraudulently executing an application for "tentative adjustment
with respect to amortization deduction", in which it was
represented that taxpayer was entitled to tax refunds. Although separate
indictments were returned, the appellants were represented by the same
attorney, and, upon motion of the Government, the cases were
consolidated for trial, which was without a jury. Errors assigned by the
defendants were disposed of as follows:
Validity of indictment.--Allegations in the indictment were
sufficient although facts upon which the charge was based were not set
forth in detail, especially in view of the fact that defendants went to
trial on the indictment without asking for a bill of particulars or
making a motion to dismiss the indictment. The indictment met the
requirements of alleging basic facts covering the essential elements of
the crime with enough particularity to apprise each defendant of the
nature of the charge and to enable him to protect himself from a
subsequent prosecution on the same charge. Furthermore, the indictment
did not fail to charge defendant with a crime, since he was charged with
falsely executing a particular type of document which contained
representations which were not true.
Sufficiency of evidence.--Under the circumstances of the case,
the District Judge was justified in finding that the Government
officials who passed upon the amortization application had the right to
rely upon representations therein without making an independent
investigation of Government records, and the evidence sustained his
finding that the application was executed and filed with intent to
defraud. Evidence was also sufficient to sustain the finding that the
second defendant aided, assisted, or counseled the preparation of the
document in question.
Determination of credibility of witnesses.--The credibility of
witnesses is a question for the trial judge, and hence there was no
reversible error in his conclusion that testimony of three Government
witnesses proved defendant had certain knowledge, notwithstanding the
latter's testimony to the contrary.
Denial of motion for charge of venue.--The District Court did not
err in refusal to sustain defendants' motion for a change of venue where
the motion alleged a fair and impartial trial could not be obtained in
the district in which the indictment was returned, trial by jury was
waived, and no complaint is made of failure to receive a fair and
impartial trial by the judge who tried the case.
Statute of limitations.--The statute of limitations on the
indictment started to run when the application for adjustment of tax
liability was filed, not at an earlier date when such document was
completed.
Right of co-defendant to separate counsel.--Where two defendants
are represented by the same counsel and a conflict of interest between
them develops, the aggrieved party is entitled, unless the right was
waived, to separate counsel of his own choosing. Such conflict here
arose over waiver of trial by jury. Ruling on the appeal of such
defendant is suspended for presentation of the issue to the trial court,
since the issue was raised for the first time on appeal. BACK
REFERENCES: Sec. 29.145-1 at 533 CCH ¶1092.095, 1092.098, 1092.116,
1092.1467, 1092.1731; and Secs. 3748 and 3793 at 534 CCH ¶1768K.05 and
1832.02. Affirming as to one appellant judgment of District Court in
unreported case, and, as to other appellant, remanding case for further
proceedings.
Daniel H.
Wasserman, Cleveland, Ohio (Michael Leo Looney, Cleveland, Ohio, was
with him on the brief), for appellant Lester E. Butzman, St. Paul P.
Cohen, Niagara Falls, N. Y. (Cohen, Fleischmann, Augspurger, Henderson
& Campbell, Niagara Falls, N. Y., of counsel), for appellant Gilbert
M. Craig. Frank E. Steel,
Cleveland
,
Ohio
(John J. Kane, Jr.,
Cleveland
,
Ohio
, was with him on the brief), for appellee.
Before SIMONS,
Chief Judge, and ALLEN and MILLER, Circuit Judges.
MILLER,
Circuit Judge:
The appellant,
Lester E. Butzman, Sr., was found guilty in the District Court had
received a sentence of three years for falsely and fraudulently
executing a document required by the provisions of the Internal Revenue
laws, §3793(a)(1), Title 26, U. S. Code. Appellant, Gilbert M. Craig,
was also found guilty in the same trial and received a sentence of one
and one-half years for wilfully aiding and advising the preparation and
presentation to the Collector of Internal Revenue of a false and
fraudulent document executed by the appellant Butzman, §3793(b)(1),
Title 26, U. S. Code. Although separate indictments were returned, the
appellants were represented by the same attorney, and, upon motion by
the Government, the cases were consolidated for trial. They were heard
by the Court without a jury. The appeals come to us on a single record.
The appeals will be disposed of separately.
In case No.
11704, the indictment charged that on
January 14, 19
46, Butzman "did wilfully and knowingly, falsely and fraudulently,
with intent to defraud, execute a document required by the provisions of
the Internal Revenue laws and regulations, to-wit: Application for
Tentative Adjustment with Respect to Amortization Deduction, which
document was filed with the Collector of Internal Revenue . . ., in
which document it is represented that the said Lester E. Butzman, Sr.,
was entitled under the provisions of the Internal Revenue laws to claim
a credit for the years 1941, 1942 and 1944 of refunds totaling
$56,078.61, whereas as the said defendant then and there well knew the
information contained in the application aforesaid was false and untrue,
in that the Necessity Certificates which formed the basis of the claim
for the refund in said Application had not been granted and the said
defendant was not entitled to the refund as claimed; . . ."
[Facts
as to First Defendant]
There was
evidence showing the following facts: The appellant started his
employment with the Ohio Tool Company in 1922 at which time the Company
was a partnership operating a small specialty machine shop. During the
1930s he became the sole owner of the business. The business underwent a
tremendous expansion in its operations after the start of the War in
1939. About the end of 1937, William J. Franz was employed to do the
accounting work for the company. In 1941, at the suggestion of Franz,
the business was made a family partnership consisting of the appellant,
his son Lester E. Butzman, Jr., and his daughter Betty Jane Downs.
On
October 8, 19
40, §124, Internal Revenue Code was enacted as part of the defense
mobilization program. It provided for an accelerated amortization
deduction of emergency facilities installed by the taxpayer, based on a
period of sixty months, upon an election by the taxpayer to do so, made
by filing a statement of such election with the Commissioner. §124(d)(4),
Internal Revenue Code. The procedure was for the taxpayer to file an
application with the War Department, upon which, after being processed,
a certificate would be issued certifying the facility as necessary in
the interest of national defense during the emergency period. Such a
certificate would entitle the applicant to write off the cost of the
facility over a five-year period. This was in lieu of the deduction with
respect to such facility provided by §23(l), Internal Revenue Code,
relating to exhaustion, wear and tear, and obsolescence. Sometime in
1942, Franz discussed with appellant about making application to take
advantage of this amortization deduction, and appellant gave Franz a
power of attorney for the purpose of making such applications. On
April 23, 19
43, an informal application was filed with the War Department, Tax
Amortization Branch, followed by a formal application dated
May 21, 19
43, in the amount of $853,840.78, which was given the number WD-N-22024.
Another application for the amount of $67,994.02 was also filed on
June 26, 19
43, which was given the number WD-N-23426.
On
September 11, 19
43, a preliminary notice of rejection was mailed to the Ohio Tool
Company which stated that application No. WD-N-22024 was untimely and
that there were adequate facilities in existence. This was followed by
an official letter of rejection mailed on
October 9, 19
43. Application No. WD-N-23426 was officially rejected by letter of
October 8, 19
43 on the ground that there was insufficient evidence of shortage of
capacity in the industry. These letters, after being received by the
Company, were turned over to Franz.
Differences
arose between Butzman and Franz, and about
November 1, 19
43, appellant Craig was employed by the Company as Comtroller on a
full-time basis, for the purpose of taking over Franz's work and to
generally supervise the office. The Company's own accounting staff did
not take over the entire accounting work until the Spring of 1944. At
approximately that time Franz turned over to Craig the greater part, but
not all, of his files with respect to the Ohio Tool Company. One of the
files retained by Franz contained the letter of
October 9, 19
43 from the War Department denying the Company's application WD-N-22024.
The other letter of rejection was not located, either in Franz's files
or the Company's files.
On July 31,
1945, Congress enacted the "Tax Adjustment Act of 1945" which
permitted war production facilities which became substantially worthless
at the close of the War to be amortized retroactively over the period
from 1940 to 1945. §7 of the Act, (§124(j) and (k), Internal Revenue
Code), provided for the filing of an application by a taxpayer who had
elected to take the amortization deduction under §124(d)(4) for
tentative adjustment with respect to the taxes for taxable years prior
to the taxable year in which the application was filed. In September,
1945, the President proclaimed the ending of the emergency period as
defined in §124(e)(2) of the Internal Revenue Code. Smith, an employee
in the Company's accounting department, having become advised of the Tax
Adjustment Act, recommended that applications be filed for adjustment of
the tax liabilities for 1941-1944 and for refunds payable pursuant to
such adjustments. He discussed the matter with Craig and with Internal
Revenue agent Coleman, who was working at the Ohio Tool Company plant.
On December 20, 1945, Craig wrote the Commissioner of Internal Revenue
that the Ohio Tool Company elected to amortize the Emergency Facilities
covered by Certificates of Necessity within the period covered by the
President's proclamation to September 30, 1945. This letter stated:
"The following Certificates of Necessity are affected: WD-N-22024,
WD-N-23426." By letter of December 29, 1945, the Commissioner
acknowledged receipt of this election, advising that the election did
not constitute a claim for credit or refund, and that if a tentative
adjustment with respect to amortization deduction under section 7 of the
Tax Adjustment Act of 1945 was desired, application should be filed with
the Collector for its district on Form 1046, which could be obtained
from the Collector. Smith obtained the forms from the local Internal
Revenue office, and prepared and filed an application for each of the
three partners. Butzman's application, signed by him, was filed with the
Internal Revenue office by Smith on January 14, 1946. It is this
application which is the basis of the present proceedings.
The
application specifically referred to Necessity Certificates Nos.
WD-N-22024 and WD-N-23426, the election by the Company on
December 20, 19
45 to terminate the amortization period under the authority of the
President's Proclamation, and the termination of the amortization period
by reason thereof on
September 30, 19
45. It was supported by detailed amortization schedules and copies of
original income tax returns for 1941-1944 of both the partnership and
Butzman individually, together with recomputed tax returns for the
partnership and Butzman individually for the same years on the basis of
the accelerated amortization.
Internal
Revenue Agent Coleman was working at the plant of the Company in
connection with an audit of the returns of the partnership and its
members. Shortly prior to
May 3, 19
46, he asked Craig to show him Certificates of Necessity WD-N-22024 and
WD-N-23426. They were not located in the Company's files, and at a
conference on
May 3, 19
47, in Franz's office, Franz found in his files one of the two letters,
but not both, which denied the applications for the two Certificates of
Necessity. The Company's attorney, thinking that possibly a
reapplication had been made and approved, promptly thereafter wrote to
the Commissioner requesting certified copies of the two Certificates and
was advised by the Tax Amortization Branch, Civilian Production
Administration, by letter of
July 1, 19
46, that the files indicated that the two applications were never
approved but were denied by letters of October 8th and 9th, 1943.
In the
meantime, the three partners received checks from the Treasurer of the
United States
for refunds totaling approximately $109,000, dated June 11th and 13th,
1946. Smith checked the amounts, which totaled $1,000 more than they
were entitled to, and upon instructions from Craig refunded that amount
to the Government. The proceeds of the checks were deposited in the
account of the Ohio Tool Company. The Bureau made no demand for a return
of the money. The money was not repaid to the Government after the
partners were advised that the Certificates of Necessity had not been
issued, Craig taking the position that the partners were entitled to
refunds in accordance with general accounting principles of obsolescence
and amortization. Coleman made a report dated
August 2, 19
46, recommending that the application be reassessed, and that the
resulting taxes be assessed back to the taxpayer for each of the years
involved. At the time of the trial there had been no final determination
of what refund, if any, the partners were entitled to in accordance with
general accounting principles of obsolescence and amortization.
[Sufficiency
of Allegations in Indictment]
Appellant's
first contention is that the indictment is invalid because it charges
the appellant in general terms with having committed a crime, instead of
charging him with commission of specific acts which would constitute a
commission of the alleged crime. We recognize the general rule that an
indictment is insufficient if it states conclusions rather than the
facts upon which the conclusions are based. Johnson v.
United States
, 294 Fed. 753, 755, C. A. 9th; Boykin v.
United States
, 11 Fed. (2d) 484, 485, C. A. 5th; Alabama Packing Co. v.
United States
, 167 Fed. (2d) 179, 181-182, C. A. 5th. However, such facts need
not be stated in detail. Rule 7(c) of the Federal Rules of Criminal
Procedure provides "The indictment or the information shall be a
plain, concise and definite written statement of the essential facts
constituting the offense charged." An indictment is sufficient to
meet modern requirements if it alleges basic facts covering the
essential elements of the crime against the
United States
with enough particularity to fairly apprise the defendant of the nature
of the charge and to enable him to protect himself from a subsequent
prosecution for the same offense. Todorow v.
United States
, 173 Fed. (2d) 439, 446-447, C. A. 9th; Ross v.
United States
, 180 Fed. (2d) 160, 164, C. A. 6th. Appellant bases his contention
upon that part of the indictment which alleges that the document
represented that Butzman "was entitled under the provisions of the
Internal Revenue laws to claim a credit for the years 1941, 1942 and
1944 of refunds totaling $56,078.61," which he claims is a
representation of law. However, before that allegation is made the
indictment alleges, using the words of the statute, that the appellant
did on January 14, 1946, in the Eastern Division of the Northern
District of Ohio, falsely execute a document required by the provisions
of the Internal Revenue laws. This is an allegation of fact rather than
a conclusion of guilt. The remainder of the indictment gives additional
facts which identify the particular document referred to. Appellant did
not make a motion to dismiss the indictment, nor did he ask for a bill
of particulars, but went to trial on the indictment. In our opinion, the
allegations are sufficient. Leonard v.
United States
, 18 Fed. (2d) 208, 211-212, C. A. 6th; Koa Gora v.
Territory
of
Hawaii
, 152 Fed. (2d) 933, 935, C. A. 9th. Upon a proceeding after
judgment, no prejudice being shown, it is enough that the necessary
facts appear in any form or by fair consideration can be found within
the terms of the indictment. Hagner v.
United States
, 285
U. S.
427, 433; Gariepy v.
United States
, 189 Fed. (2d) 459, 461, C. A. 6th [51-1 USTC ¶9318]; Keys v.
United States, 126 Fed. (2d) 181, 185, C. A. 8th.
[Issue
as to Whether Indictment Made a Criminal Charge]
Of a similar
nature is the appellant's contention that the indictment does not charge
him with a crime in alleging that the appellant represented that he was
entitled under the provisions of the Internal Revenue laws to a credit
for the taxable years in question, in that such a representation was not
false, due to the fact that appellant was actually entitled to a credit
under the general accounting principles of obsolescence and amortization
provided by Sec. 23(l), Internal Revenue Code. The charge in the
indictment is not limited to such a representation. It charges the
appellant with falsely executing a document described as an Application
for Tentative Adjustment with Respect to Amortization Deduction, which
document represented, on the basis of facts which the appellant knew to
be untrue, that the appellant was entitled to an income tax credit. The
indictment must be considered in its entirety. So considered, we are of
the opinion that the indictment does not charge him with falsely
claiming a refund but charges him with falsely executing a particular
type of document which contained facts which were not true. Appellant's
argument on this point fails to meet the issue.
[Evidence
as to Intent to Defraud]
Appellant also
contends that as a matter of law there was no intent on his part to
defraud the Government, because the Government knew through its own
files that the Certificates of Necessity had not been issued, and that
any representation by the appellant to the country was not calculated to
deceive, because it was made to the party who had actual knowledge of
its falsity. In order to defraud the Government, pecuniary loss to the
Government is not necessary. Any impairment of the administration of its
governmental functions is sufficient.
United States
v. Goldsmith, 68 Fed. (2d) 5, 7, C. A. 2nd; Johnson v.
Warden, 134 Fed. (2d) 166, 167, C. A. 9th;
United States
v. Tynan, 6 Fed. (2d) 668, 669, S. D. N. Y. The commission of
the crime is not dependent upon the success of the fraudulent intent. Thacher
v.
United States
, Fed. case, No. 13851, affirmed, 103
U. S.
679. See
United States
v. Kapp, 302
U. S.
214, 217-218. Nevertheless, in the present case the Government acted
upon the misrepresentations, was actually deceived by them, and paid
money which it would not have paid except for such misrepresentations.
Under the circumstances of this case, we think that the District Judge
was justified in finding that the Government officials charged with the
duty of passing upon the Application, had the right to rely upon the
representations without making an independent investigation of
Government records, and that the evidence sustains his finding that the
Application was executed and filed with the intent to defraud. Buckley
v. Buckley, 230 Mich. 504, 509; Western Mfg. Co. v. Cotton &
Long, 126 Ky. 749, 755-757; Morrison v. Bank of Mount Hope,
(W. Va.) 20 S. E. (2nd) 790; Strand v. Griffith, 97 Fed. 854, C.
A. 8th.
[No
Reversible Error in Trial Judge's Judgment as to Credibility of
Witnesses]
Appellant also
contends that the evidence was insufficient to justify a finding of
guilt, in that it failed to show beyond a reasonable doubt that he had
knowledge that the Certificates of Necessity had not been issued. His
contention is that although the letters of rejection were received by
the Company, the matter was handled by Franz and the auditing
department, and such information was not brought to his attention.
Although three witnesses, Franz, Figley, who was an employee of Franz,
and Voos, a civilian employee in the Ordnance Department at
Cleveland
, testified that appellant knew that the Certificates of Necessity had
not been issued, appellant claims that these witnesses were biased and
prejudiced, and that the Court should have accepted his own testimony to
the contrary. The trial judge, in his oral opinion, discussed the
credibility of these witnesses at considerable length, and concluded
that there was sufficient credible testimony from them to prove
knowledge on the part of the appellant. It is well settled that the
credibility of witnesses is a question for the trial judge. Goldman
v. United States, 245 U. S. 474, 477; Hawk v. Olson, 326 U.
S. 271, 279; Wilson v. United States, 149 Fed. (2d) 780, 782, C.
A. 6th.
[Issue
of Change of Venue Waived by Election to Be Tried by the Court]
Appellant
contends that the Court erred in overruling his motion for a change of
venue. The motion was based upon several news articles and a cartoon
appearing in different editions of the Cleveland Press, which depicted
appellant as a war profiteer and a tax dodger, and as one, who although
having gone through bankruptcy, was nevertheless able to own a big
Florida
ranch on which he lived in ease and comfort. The motion claimed that the
publication of these articles had created so great a prejudice against
the appellant that he could not obtain a fair and impartial trial in the
district where the indictment was returned. The District Judge was of
the opinion that the circulation of the Cleveland Press was largely
restricted to
Cuyahoga
County
, in which
County
Cleveland
is located, and pointed out that 28 of the 52 prospective jurors were
from outside
Cuyahoga
County
. Being of the opinion that a fair and impartial jury could be obtained
from jurors who had not read the articles in question, he overruled the
motion. No jurors were questioned. Appellant thereafter waived a trial
by jury. He now contends that this was not a voluntary waiver on his
part, in that he was forced to do so by the trial court's refusal to
sustain his motion for a change of venue. The argument is unsound. A
different question would be presented if appellant had carried through
with his motion, interrogated the prospective jurors, and shown that a
fair and impartial jury could not have been obtained. From the facts
disclosed by the present record, it seems entirely possible that such a
jury could have been impaneled. Under the circumstances, it was not an
abuse of the trial court's discretion in overruling the motion.
United States
v. Beadon, 49 Fed. (2d) 164, 166, C. A. 2nd, cert. denied, 284
U. S.
625; Kersten v. United States, 161 Fed. (2d) 337, 339, C. A.
10th, cert. denied, 331
U. S.
851. In any event, the question was waived by appellant's election to be
tried by the Court. No complaint is made that he failed to receive a
fair and impartial trial by the District Judge who tried the case. The
way to have preserved the alleged error was to have proceeded with a
trial by jury under protest and let the record show whether the jury as
so impaneled provided the appellant with the fair and impartial trial to
which he was entitled. Jones v. Williamsburg City Fire Inc. Co. (
Kansas
), 116 Pac. 484; Grogan-Cochran Lumber Co. v. McWhorter (
Texas
Civil Appeals), 15 S. W. (2d) 126. In electing to pursue the course
which he took, appellant was attempting to obtain whatever advantage
might result from the trial without a jury, and if unsuccessful still
maintain that the result was not binding upon him. Under such
circumstances, the election is clearly binding upon the appellant.
Compare Metcalf v.
United States
, 195 Fed. (2d) 213, 217, C. A. 6th; Marx v.
United States
, 86 Fed. (2d) 245, 251, C. A. 8th; Hagner v.
United States
, 54 Fed. (2d) 446, 449, C. A. D. C.; Levine v.
United States
, 182 Fed. (2d) 556, 558, C. A. 8th.
The appellant
Craig, in addition to advancing the same arguments on his own behalf as
were advanced by Butzman in his appeal, contends that the evidence was
insufficient to show that he participated in the preparation or filing
of the document on which the indictment was based, that the six-year
statute of limitations barred the proceeding against him, and that he
was deprived of the "assistance of counsel" guaranteed by the
Sixth Amendment of the Constitution.
[Evidence
Sufficient to Establish Second Defendant as Party to False Document]
As shown by
the foregoing statement of facts, appellant Craig wrote and signed the
letter of
December 20, 19
45 in which he notified the Commissioner of the Company's election to
amortize the Emergency Facilities covered by the two Certificates of
Necessity. Although the Application itself was prepared by his
assistant, Smith, signed by Butzman, and filed by Smith, the evidence
shows that Smith conferred with Craig about making the Application
before this letter was written. In our opinion, this evidence was
sufficient to sustain a finding that Craig aided, assisted or counseled
the preparation of the document in question.
[Statute
of Limitations Did Not Start Until False Document Was Filed]
Appellant
Craig's reliance upon the Statute of Limitations is based on a
computation of time starting with the completion of the Application and
appendices on or about
December 31, 19
45, which was more than six years prior to the date of the indictment,
January 10, 19
52. However, if the time began to run with the filing of the Application
fourteen days later on
January 14, 19
46, the indictment was not barred by limitations. No crime was committed
by Butzman until the Application was filed. No crime would have been
committed by Craig if the Application had not been filed. We are of the
opinion that the statute did not start to run until the Application was
filed on
January 14, 19
46.
[Issue
as to Second Defendant's Right of Representation by Separate Counsel
Matter for Trial Court Decision]
The attorney
who represented appellant Butzman was the regularly employed attorney of
the Ohio Tool Company. He also undertook to represent the appellant
Craig. Craig contends that although no conflict of interest might have
shown itself when this dual representation was undertaken, a review of
the record as a whole shows that such a conflict developed. Reference is
made to the fact that it was to the interest of Butzman to shift
responsibility for the alleged false document to one or more of his
employees, and that it may have been to Butzman's interest, when faced
with unfavorable newspaper publicity, to have waived a jury trial, but
there was no such reason for waiving such a trial on the part of Craig.
Such a conflict of interest deprives an accused of the effective
"assistance of counsel" as defined by Supreme Court decisions.
Glasser v.
United States
, 315
U. S.
60, 70;
United States
v. Hayman, 342
U. S.
205, 208. See also Powell v. Alabama, 287
U. S.
45. This right is too fundamental to permit a Court to indulge in nice
calculations as to the amount of prejudice arising from its denial. Glasser
v.
United States
, supra, at p. 76.
It is well
settled that the right to the assistance of counsel can be waived. Johnson
v. Zerbst, 304
U. S.
458, 469; United States v. Hayman, supra, at pp. 208-209.
However, every reasonable presumption will be indulged against the
waiver of such a fundamental right, Glasser v.
United States
, supra, at p. 70, and the Court should "not presume
acquiescence in the loss of fundamental rights." Johnson v.
Zerbst, supra, at p. 464. The Supreme Court also said in Johnson
v. Zerbst, supra, at p. 464, that an intelligent waiver of the right
to counsel depends upon the particular facts and circumstances in each
case, and, at p. 465, "whether there is a proper waiver should be
clearly determined by the trial court, and it would be fitting and
appropriate for that determination to appear upon the record."
Representation
by a particular attorney may be under such circumstances as not to meet
the constitutional requirement. Glasser v.
United States
, supra; United States v. Hayman, supra. The issue was not raised in
the trial court, and the present record does not show under what
circumstances Craig consented to the dual representation. Apparently
Craig's present contention is that he did not intelligently and
voluntarily waive his right of representation by separate counsel of his
own choosing. The Government's contention that such contentions can not
be substantiated does not deny appellant the opportunity of supporting
them by evidence. Walker v.
Johnston
, 312
U. S.
275, 287. The issue is one which should properly be presented to the
trial court instead of being raised for the first time in this Court on
an incomplete record. Sec. 2255, Title 28, U. S. Code, provides for such
a hearing. United States v. Hayman, supra. The ruling on the
appeal of Craig will be suspended for a reasonable period of time,
during which the appellant may present this issue to the trial court, if
he so desires, following which the matter may be again brought to us for
a final ruling.
The judgment
in Lester E. Butzman, Sr. v. United States is affirmed.
The case of Gilbert
M. Craig v. United States is remanded to the District Court for
further proceedings consistent with the views expressed herein.