False Claims Against U.S.

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7206- Fraud and False Statements: False Claims Against U.S.

 

[60-1 USTC ¶9178]Mack Kitchens, Jr., Appellant v. United States of America , Appellee

(CA-10), U. S. Court of Appeals, 10th Circuit, No. 6050, 272 F2d 757, 11/18/59, Affirming an unreported District Court decision

[1954 Code Sec. 7206]

Fraud and false statements: Scheme to obtain refund checks: Forging endorsement to Treasury checks.--The taxpayer prepared and filed a number of returns on Form 1040 and requested refunds based on attached W-2 forms showing amounts withheld in excess of the tax due. Taxpayer, or his wife, endorsed the refund checks and cashed them. The jury found the taxpayers guilty of filing false claims against the United States , forging, publishing, and uttering the signature of a fictitious payee in an endorsement to United States Treasury checks, and conspiring to commit these offenses. The indictment in the language of the statute was not duplicitous, and the taxpayer was not misled by these charges, nor was it error for the trial judge to read the statute defining the crimes of forgery and uttering or publishing forged instruments to the jury. Also, the taxpayer's plea of insanity was fairly presented to the jury.

Richard M. Kranzler, Denver , Colo. , for appellant. John F. Raper, Jr., United States Attorney, Cheyenne , Wyo. , for appellee.

Before MURRAH, Chief Judge, and PHILLIPS and PICKETT, Circuit Judges.

PICKETT, Circuit Judge:

Mack Kitchens, Jr., and his wife, Betty, were convicted on separate indictments charging them with filing false claims against the United States , forging and uttering United States Treasury checks, and conspiring to commit the foregoing offenses.

Mack Kitchens, Jr. appeals from judgments and sentences which total 15 years confinement. ¹ The principal questions presented here, on a consolidated record, arise out of his defense of insanity.

[Scheme to Obtain Refund Checks]

The charges grew out of a rather elaborate and far-flung scheme to obtain refund checks from the Department of Internal Revenue. The scheme included the preparation and filing of income tax returns on regular 1040 forms and the request for refunds based on attached W-2 forms showing amounts withheld by employers in excess of the tax due on earnings from such employment. A large number of such returns bearing fictitious names and addresses were filed by Kitchens and his wife, including seven that were found to have been filed in the State of Wyoming . When the refund checks were received by Kitchens or his wife through the mail, they were endorsed--usually by Kitchens--and cashed.

[Insanity Plea]

Upon arraignment, Kitchens entered pleas of not guilty and not guilty by reason of insanity. It was learned that Kitchens had a long history of claimed insanity and had at different times been adjudicated insane and committed to mental institutions. These commitments followed arrests for violation of criminal statutes. Prior to trial in this case, under the provisions of Title 18, U. S. C. A. §4244, the United States requested that there be a judicial determination of the mental competency of Kitchens to understand the proceedings against him and to properly assist in his own defense. He was ordered committed to the Veterans Administration Hospital at Sheridan , Wyoming for a period of 30 days for an examination by a qualified psychiatrist. The result of this examination was a report that Kitchens' behavior was typical of a person with an anti-social reaction but that he was competent to understand the proceedings against him and to assist in his defense, and was not insane or mentally incompetent.

When the question of the defendant's sanity arises in the trial of a criminal case, the burden is upon the prosecution to prove the defendant sane beyond a reasonable doubt. McKenzie v. United States , 10 Cir., 266 F. 2d 524. To sustain this burden, the prosecution introduced the testimony of a number of psychiatrists and other witnesses who had had occasion to observe and examine Kitchens, and each testified that he was sane at the time of the commission of the offenses charged and at the time of trial. The defendant submitted competent evidence directly in conflict with that of the prosecution, but we think it would serve no useful purpose to discuss it in detail. It suffices to say that the government's evidence meets the reasonable doubt test and that the jury resolved the conflict adverse to Kitchens.

The defense offered in evidence a number of hospital records, findings of psychiatrists, and the court records of three habeas corpus cases which Kitchens had brought seeking his release from a mental institution. The habeas corpus cases questioned the legality of Kitchens' confinement and related to his sanity. The trial court admitted the exhibits, including the court records, for the limited purpose of permitting experts to refer to them and to be examined with regard to their contents. Relevant portions of them were admissible for the purpose of showing the history of the previous mental condition of Kitchens and as bearing on the issue of his sanity at the time the alleged offenses were committed. Whitney v. Zerbst, 10 Cir., 62 F. 2d 970. Although the exhibits were not admitted unconditionally into evidence, all of the information in them was before the jury as a result of reference made to them by several witnesses, including Kitchens. There was no prejudicial error in the court's action in admitting the exhibits for a limited purpose only.

While conceding that the trial court's instructions on the law of insanity were those usually given in such cases, it is contended that because of the unusual circumstances and prior adjudications of insanity, additional instructions should have been given. No objection was made to the instructions but it is urged that the error was grave and resulted in such a miscarriage of justice that this court should consider them. Ordinarily instructions to the jury will not be reviewed on appeal unless appropriate objections have been made. Rule 30, Fed. Rules Crim. Proc. The courts, however, have generally held that the rule is otherwise "where there is manifest error and it is necessary to prevent a miscarriage of justice." Corbin v. United States , 10 Cir., 253 F. 2d 646; Ditrich v. United States , 10 Cir., 243 F. 2d 729; Madsen v. United States , 10 Cir., 165 F. 2d 507. In referring to the previous adjudications, the court instructed the jury that it was not bound by them and should make its own independent determination as to the sanity of Kitchens at the time the alleged offenses were committed. Nothing was said in regard to a presumption that insanity continued after an adjudication. ² The jury was instructed that when the question of insanity arose, the burden was then upon the prosecution to prove the mental responsibility of the defendant. Upon proof of the prior adjudications and the introduction of other evidence of insanity, the government assumed the burden of proving the defendant sane beyond a reasonable doubt. A like question was discussed by this Court in Whitney v. Zerbst, supra, where it was held that evidence of adjudication of insanity is admissible on the issue of insanity in a later trial, but "it is not conclusive and may be rebutted by other evidence." ³ And see Frame v. Hudspeth, 10 Cir., 109 F. 2d 356, reversed on other grounds, 309 U. S. 632. Although when a person is adjudicated to be insane, the condition is presumed to continue so long as the judgment is effective, we are satisfied that considering the instructions as a whole, the issue of insanity was fairly presented to the jury under the facts of this case. The effect of the presumption is to place upon the prosecution the burden of proving the defendant sane beyond a reasonable doubt, the same burden that arises whenever any evidence of insanity is presented.

[Taxpayer Not Misled by Terms of Indictment]

In the counts concerning Treasury checks of the United States , it was alleged that Kitchens falsely made, uttered, published and forged the signature of the payee as an endorsement, knowing the same to be false and forged. The trial court denied a motion requiring the United States to elect upon which of the offenses named in these counts it would proceed to trial. The language of the indictment is that of the statute, (18 U. S. C. A. §495) and we have held in numerous cases that if a statute embraces several separate and distinct acts as a crime, an information or indictment in the language of the statute alleging more than one of the statutory offenses is not duplicitous, if pleaded in the conjunctive. Cathcart v. United States, 244 F. 2d 74, cert. denied 354 U. S. 924; McDonough v. United States, 227 F. 2d 402 [56-1 USTC ¶9125]; Troutman v. United States, 100 F. 2d 628. Kitchens was not misled by the charges, which, in fact, he admitted in an attempt to protect his wife.

In defining certain of the charges against Kitchens, the trial court read to the jury the statute upon which those charges were based. It is urged that this was such gross error that this court should consider it even though there were no objections to the instructions. There is no merit to this contention. Title 18, U. S. C. A. §495, which was read to the jury, defines in clear and unambiguous language the crimes of forgery and uttering or publishing forged instruments. No further definition of the offenses was requested and we find no prejudicial error. 23 C. J. S., Criminal Law, §1194.

It is urged that the endorsement of the United States Treasury checks issued to a fictitious person does not constitute forgery. The law is to the contrary. In Buckner v. Hudspeth, 105 F. 2d 393, this court said:

"Furthermore to constitute forgery the name alleged to be forged need not be that of any person in existence. It may be wholly fictitious if the instrument is made with the intent to defraud and shows on its face that it has sufficient efficacy to enable it to be used to the injury of another."

See also Rowley v. United States, 8 Cir., 191 F. 2d 949; Milton v. United States, C. A. D. C., 110 F. 2d 556.

Other assignments of error, including the sufficiency of the evidence to sustain the conspiracy indictment, have been considered and found to be wholly without merit.

Affirmed.

¹ Kitchens was sentenced to 5 years imprisonment on one count charging the offense of filing false claims against the United States , and 10 years on one count charging forgery. Sentences on all other counts were to run concurrently, either with the 5 year sentence or the 10 year sentence.

² The record discloses that in 1956 Kitchens was committed to a Montana hospital for the insane and immediately escaped; that during the period in which the crimes charged were being committed, he was returned to the institution and shortly thereafter was declared competent by a Montana court and released.

³ In discussing the right to try a person, who has been adjudged insane, for a subsequent criminal offense and to determine the issue of insanity at the time of the alleged offense, the court said:

"We cannot subscribe to the doctrine that a person committed for insanity who escapes and commits a criminal act is, because of such commitment, immune from prosecution therefor.

"Where, after an adjudication of insanity and commitment to an asylum in a civil proceeding, a person so adjudged and confined commits a criminal act, a court having jurisdiction over the offense may take him into custody and try him for such offense in the absence of statutory provision to the contrary. Myers v. Halligan (C. C. A. 9) 244 F. 420; In re McWilliams, 254 Mo. 512, 164 S. W. 221.

"While insanity, in the sense that term is used in the criminal law, at the time the criminal act was done may be asserted as a defense to the criminal charge and present insanity may be asserted as a bar to trial on such charge, the issues with respect to such a defense or bar are for the determination of the court having jurisdiction of the criminal offense. In re McWilliams, 254 Mo. 512, 164 S. W. 221. The court may submit the issue of present insanity as a bar to trial to a jury impanelled for that purpose, or may determine the issue itself. Insanity at the time of the commission of the offense is a defense and presents an issue under the plea of not guilty for the determination of the jury at the trial for the offense. Ex parte Charlton (C. C. N. J.) 185 F. 880; Charlton v. Kelly, 229 U. S. 447, 462, 33 S. Ct. 945, 57 L. Ed. 1274, 46 L. R. A. (N. S.) 397; Youtsey v. United States (C. C. A. 6) 97 F. 937."

 

 

[60-2 USTC ¶9777]John Russell Hanson, Appellant v. United States of America , Appellee

(CA-9), U. S. Court of Appeals, 9th Circuit, No. 16,403, 271 F2d 791, 10/30/59, Affirming unreported District Court decision

[U. S. Code, Title 18, Secs. 287 and 495]

False claims against U. S.: Forgery with intent to defraud U. S.--There was sufficient evidence to support conviction of defendant on 22 separate counts for wilfully and knowingly filing false claims for refund of income taxes of fictitious persons and for forging endorsements of the fictitious persons on United States Treasury checks. Judgment of conviction and sentence of the District Court was affirmed upon a finding that no reversible error resulted in the trial proceedings.

Paul Fitting, McKenna & Fitting, Law Bldg., Suite 400, Los Angeles 12, Calif., for appellant. Laughlin E. Waters, United States Attorney, Leila F. Bulgrin, Assistant United States Attorney, Robert John Jensen, Assistant United States Attorney, Los Angeles, Calif., for appellee.

Before CHAMBERS, ORR and MARTIN, Circuit Judges.

MARTIN, Circuit Judge:

The appellant, John Russell Hanson, was indicted in twenty-two separate counts for violations of sections 287 ¹ and 495, ² Title 18, United States Code.

[Indictment Charges]

His violations of section 287 were charged to consist in his presenting to the Internal Revenue Service of the United States Treasury Department claims for refunds of income taxes upon Form 1040A, which stated that certain fictitious persons were wage earners, having earned stated amounts and having had specified sums of income taxes withheld. The indictment charged that defendant well knew the claims to be both fraudulent and fictitious, there being no such wage earners in existence, no such amounts earned, no such sums withheld and no such named dependents as were specified in the claims.

Appellant's violation of section 495, as charged in the several counts of the indictment, consisted in his knowingly and wilfully forging on United States Treasury checks for specified amounts the endorsements and signatures of the payees (fictitious persons) for the purpose of receiving the specified sums from the United States and in uttering and publishing as true, with intent to defraud the United States, the foregoing Treasury checks bearing the purported endorsements of the payees: all the checks being forged, as appellant well knew.

[Verdict Irregularity]

There was an irregularity in the verdict of the jury in that, apparently inadvertently, the word "guilty" preceding the words "as charged in Count One of the indictment" was stricken by the drawing of a line through it. In sentencing the defendant, the United States District Judge cured the irregularity by imposing no punishment on that count. The language of the verdict made it clear that appellant was convicted on all the other twenty-one counts in the indictment. The jury's verdict plainly stated: "Guilty as charged in Count Two of the indictment; Guilty as charged in Count Three of the indictment * * *," through Count Twenty-Two.

Appellant was sentenced to total imprisonment of twenty-eight years.

[Facts]

The fraudulent method employed by Hanson to swindle the government was unusual. He would rent Post Office boxes under fictitious names and then file false returns and claims for refund of income taxes under these names, giving a Post Office box number as the address of the supposed taxpayer. Checks for refunds were received by appellant at these Post Office boxes. After opening bank accounts in small nearby towns, by the deposit of petty cash in the names of the fictitious persons for whom the income-tax refunds had been asked, appellant would take to the bank the government check which had been sent to cover each of the refunds. Almost simultaneously, he would withdraw most of the money in each of the bank accounts.

[Jurisdiction]

The United States presents the question of whether or not this court has jurisdiction to take cognizance of the appeal. The judgment and commitment was filed on December 5, 19 58, the twenty-eight-year sentence having been pronounced on that date. On December 12, 19 58, an order was entered by the United States District Judge directing that the judgment be entered on December 15, 19 58; and, as shown by the record, on December 12th the Judge had stated to counsel for appellant (successor to defendant's trial attorney) that he had instructed the Clerk of the United States District Court not to enter the judgment immediately, in order that the succeeding attorney would not be crowded for time. The Clerk stated that the judgment had not been entered at the time and that the ten days for appeal had not begun to run. In these circumstances, we think the appeal was timely. All the cases cited in appellee's brief are differentiable from the exact situation confronted here.

[Peremptory Challenges]

Appellant contends that he was denied the full use of his peremptory challenges. The situation developed was that, in the selection of the jury, separate lists of peremptory challenges were made by the United States Attorney and the defendant, respectively. The defendant's attorney wrote twelve names on his list. He was told correctly by the presiding judge that he was entitled by law to only ten challenges; whereupon, he eliminated two names from his list, one of which was the name of the juror who became foreman of the jury. The United States had peremptorily challenged two of the same jurors who appeared on the list of appellant. From this circumstance, appellant insists that he was entitled to two additional challenges.

The authority of Pointer v. United States, 151 U. S. 396, directly rejects the argument of appellant. The Supreme Court there made it plain that the United States District Court is not bound to the particular method of selecting a jury that is required by local law; and that, where the subject is not controlled by statute, the order in which peremptory challenges shall be exercised is in the discretion of the court. It was stated that the right of peremptory challenge "is not of itself a right to select, but a right to reject, jurors." The opinion of the Supreme Court concluded: "The objection that the government should have tendered to him the twelve jurors whom it wished to try the case, or that he was entitled to know before making his challenges the names of the jurors by whom it was proposed to try him, must mean that the government should have been required to exhaust all of its peremptory challenges before he peremptorily challenged any juror. This objection is unsupported by the authorities, and cannot be sustained upon any sound principle." See also United States v. Macke, 159 F. (2d) 673 (C. A. 2); United States v. Keegan, 151 F. (2d) 248 (C. A. 2); Kloss v. United States, 77 F. (2d) 462, 463 (C. A. 8); Philbrook v. United States, 117 F. (2d) 632, 635, 636 (C. A. 8).

[Exclusion of Witnesses]

The appellant charges that the district court committed prejudicial error in failing to exclude certain witnesses from the court-room during the testimony given by other witnesses. He stresses heavily the authority of Wigmore on Evidence, Vol. 6, (3rd Ed. 1940) pages 347, 354, 357-358. We are in accord with the expressions of the great teacher as to the value, in the administration of justice, of the sequestration of witnesses during a jury trial. But, in the circumstances of the instant case, we think no reversible error was committed by the trial judge in declining to put certain witnesses "under the rule" when requested to do so on the second day of the trial. From consideration of the record of proceedings, we are of opinion that no prejudice resulted to appellant from the court's action. This case falls within the ambit of the decision of this court in Charles v. United States, 215 F. (2d) 831 (C. A. 9; 1954) [54-2 USTC ¶9598]. See also Witt v. United States, 196 F. (2d) 285 (C. A. 9; 1952); Mitchell v. United States, 126 F. (2d) 550, 553 (C. A. 10); United States v. Postma, 242 F. (2d) 488 (C. A. 2).

A pertinent paragraph will be found at page 494 of the last-cited opinion, written by Judge Hincks: "By a long and unbroken line of federal cases it is well established that the exclusion of witnesses is a matter for the sound discretion of the trial court. The same rule prevails, we believe, in a majority of state court jurisdictions. See, e.g. People v. Cooke, 292 N. Y. 185, 54 N. E. 2d 357. Although in many cases the exclusion of witnesses is obviously desirable for such effect as it may have to prevent the perjurious parroting of testimony, we think it better to leave the decision to the judge than to adopt a rigid rule requiring exclusion of all witnesses as a matter of right. Not infrequently justice may be better served, we think, by allowing witnesses to remain in the court room than by relegating them to the public corridors of the court house, where they will be exposed to the possible importunities and threats of hostile parties. We do not overlook Wigmore's advocacy of the rule of exclusion as of right, 6 Wigmore, Evidence, Sec. 1839 [3rd Ed. Supp. 1955]. Nevertheless, we adhere to the principle underlying the discretionary rule prevailing in the federal courts." See Kaufman v. United States, 163 F. (2d) 404, 408-409 (C. A. 6), certiorari denied, 333 U. S. 857.

The criticism by appellant as to the prejudicial misconduct of the United States Attorney during the argument is so utterly without merit as to require no discussion.

[Proof of Forgery]

Finally, the appellant contends that no forgery was proven. Eight counts of the indictment charged violations of U. S. C., Title 18, section 495, in the forging of endorsements on government checks and the uttering as true of the checks with the forged endorsements thereon. Greathouse v. United States, 170 F. (2d) 512 (C. A. 4), is not in point. That case recognized that the rule that forgery may exist even if the name used be an assumed or fictitious name is applicable only where the writing is issued as the writing of the fictitious individual; and is not applicable when the name is signed by the defendant himself under the pretense that he has been authorized by an existing person to sign his name. The court said: "When the writing is not passed off as the writing of another, it is immaterial whether the person it purports to designate is real or fictitious."

In Hubsch v. United States, 256 F. (2d) 820, 824 (C. A. 5), it was stated that "where a person not only takes an assumed name but uses that name to designate a fictional person with characteristics, personality and a semblance of identity, the use of the fictitious name as an instrument of fraud in the impersonation of a fictional person is as much a forgery as though the fictional character was real." The court expressed rejection of the narrow doctrine concerning forgery and held that "a forgery may be committed by the fraudulent use of an assumed or fictitious name."

Rowley v. United States, 191 F. (2d) 949, 951 (C. A. 8), held that the crime of forgery may be committed by the signing of a fictitious or assumed name, provided that the instrument as so completed was made with intent to defraud. So, also, in Buckner v. Hudspeth, 105 F. (2d) 393, 395 (C. A. 10), Judge Phillips stated: "Furthermore, to constitute forgery the name alleged to be forged need not be that of any person in existence. It may be wholly fictitious if the instrument is made with intent to defraud and shows on its face that it has sufficient efficacy to enable it to be used to the injury of another." See Meldrum v. United States , 151 Fed. 177, 181 (C. A. 9); Logan v. United States , 123 Fed. 291, 292 (C. A. 6); United States v. Turner, 7 Pet. 132, 136, 8 L. Ed. 633.

In Milton v. United States, 110 F. (2d) 556, 560, 561 (D. C. App.), the following language was used by the Court of Appeals: "It is well settled that the signing of a fictitious name, with fraudulent intent, is as much a forgery as if the name used was that of an existing person. [Citing numerous cases]. The public mischief, i. e., the legal tendency to defraud, is equally great in either event."

It is undeniably true on the record here that in making and uttering the forged documents involved the appellant used assumed names for dishonest purposes and with intent to defraud the United States . Both upon principle and upon authority, he therefore violated the criminal statutes of the United States against forgery and the uttering of forged instruments.

[Conclusion]

There is abundant evidence to support the verdict of the jury in finding the defendant-appellant guilty on all counts of the indictment upon which he was convicted and sentenced; and no reversible error appears from the record of the trial in the case.

The judgment of conviction and sentence entered by the United States District Court is therefore affirmed.

¹ "Whoever makes or presents to * * * any department or agency * * * any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be fined not more than $10,000 or imprisoned not more than five years, or both."

² "Whoever falsely * * * forges * * * any * * * writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States or any officers or agents thereof, any sum of money; or

"Whoever utters or publishes as true any such * * * forged * * * writing, with intent to defraud the United States , knowing the same to be * * * forged, * * *; * * *

"Shall be fined not more than $1,000 or imprisoned not more than ten years, or both."

 

 

[61-1 USTC ¶9391]Owen Walter Swepston, Appellant v. United States of America , Appellee

(CA-8), U. S. Court of Appeals, 8th Circuit, No. 16,682, 289 F2d 166, 4/18/61, Affirming an unreported District Court decision

[1954 Code Sec. 7206]

Fictitious and fraudulent refund claims: Guilty pleas: Imposition of consecutive sentences: Motion to vacate without hearing.--None of the numerous errors assigned were sufficient to reverse conviction for filing fraudulent and fictitious refund claims. The suggestion that separate sentences for separate offenses charged in an indictment may not be imposed and made to run consecutively is obviously without merit. No hearing is necessary or required if the motion and the files of the record of the case conclusively show that the prisoner is entitled to no relief. Nor did the District Court err in imposing sentences on four counts of the information which were not included in the original complaint filed with the United States Commissioner since the U. S. Attorney is not bound by the proceeding before the United States Commissioner. Further, the defendant's plea of guilty precludes any collateral attack upon the grounds of a defective indictment or information.

Owen Walter Swepston, pro se, United States Penitentiary, Leavenworth, Kan. Edward L. Scheufler, United States Attorney, and Clark A. Ridpath, Assistant United States Attorney, Kansas City, Mo., for appellee.

Before VOGEL and BLACKMUN, Circuit Judges, and BECK, District Judge.

VOGEL, Circuit Judge:

This is an appeal from the denial without hearing of a motion for vacation or correction of sentence made under §2255 of Title 28 U. S. C. A.

Owen Walter Swepston, the appellant, after first consulting with his court-appointed counsel, appeared in open court and filed a waiver of indictment. Thereafter upon arraignment and with the assistance of counsel he offered a separate plea of guilty to each count of a five-count information charging five separate offenses, all in violation of §287, Title 18 U. S. C. A. Each count in the information separately charged the appellant with making and presenting a false claim against the government by filing a false, fictitious and fraudulent claim for an income tax refund. After the guilty pleas were offered, the District Court specifically inquired of the appellant: Whether he understood that the penalty for each offense could be five years in the penitentiary or a fine of $10,000 or both, to which appellant answered in the affirmative; if anyone had threatened or intimidated him in any fashion, to which appellant replied in the negative; if he was doing this voluntarily after consulting with his counsel, to which he replied, "Yes"; and if there was anything unusual about his arrest or in regard to the transaction, to which the appellant replied, "No, sir." The court thereupon accepted the pleas of guilty and ordered sentencing suspended pending an investigation by a probation officer.

Subsequent to the pre-sentence investigation and report, which indicated that Swepston had filed many false claims for tax refunds in different districts in the United States , that he had a long history of criminal convictions, including seven previous penitentiary sentences, appellant again appeared in court. After his counsel, who appeared with him, was given an opportunity and did speak in his behalf, he was sentenced to:

"* * * imprisonment for a period of three (3) years on each of counts 1, 2, 3, 4 and 5; said sentences of imprisonment to be served consecutively to each other for a total sentence of imprisonment of fifteen (15) years; without costs."

Appellant is presently serving this sentence in the United States Penitentiary at Levenworth , Kansas .

[Motion To Vacate]

In his motion to vacate, filed in the District Court on September 22, 19 60, appellant set forth the following grounds: (1) illegal arrest; (2) illegal search and seizure; (3) unnecessary delay in being taken before a United States Commissioner; (4) inadmissibility of his confession; (5) failure of the United States Commissioner to inform him of the charges later filed against him in the information; (6) coerced plea of guilty; (7) ineffective assistance of counsel; and (8) failure of the court to clearly and effectively impose consecutive sentences.

Holding that the files and records of the case conclusively show that the appellant was entitled to no relief, the District Court denied the motion without hearing. From such denial Swepston appeals.

[Defendant's Contentions]

In his pro se appearance in this court, appellant refers to the fact that he is not learned in the law and asks that the records in the case speak for themselves. We have sent for and have examined the original file in its entirety, including transcripts of the proceedings at the time of waiver of indictment and arraignment and at the time of the imposition of sentences. We find nothing therein helpful to the appellant's contentions. His brief filed in this court is not too clear. No specific mention is made therein as to some of the allegations in his original motion concerning unlawful arrest, illegal search and seizure, unnecessary delay in being taken before a United States Commissioner, coerced plea of guilty and ineffective assistance of counsel. Here he makes the following main contentions:

1. That the sentencing court erred in imposing consecutive sentences;

2. That the court erred in overruling his motion to vacate judgment under §2255 without granting him a hearing;

3. That the District Court erred in imposing sentences on four counts of the information because they were not included in the original complaint filed with the United States Commissioner.

[Imposition of Consecutive Sentences]

As to the first contention, appellant relies chiefly upon the fact that no statute specifically authorizes a federal court to impose consecutive sentences. None is necessary. The right to impose consecutive sentences is inherent in the courts. Consecutive sentences for separate counts of the same indictment or information have long been sanctioned and cases involving them have been before the Supreme Court of the United States many times. See Ebeling v. Morgan, 1915, 237 U. S. 625; United States v. Daugherty, 1926, 269 U. S. 360; Blockburger v. United States, 1932, 284 U. S. 299; Gore v. United States, 1958, 357 U. S. 386, rehearing denied, 358 U. S. 858; Harris v. United States, 1959, 359 U. S. 19, rehearing denied, 359 U. S. 976.

In a case quite similar to the instant one, Turner v. United States, 8 Cir., 1959, 271 F. 2d 855, the appeal was from an order of the District Court denying without a hearing a §2255 motion for vacation or correction of sentence. Appellant there had been convicted and sentenced upon his plea of guilty to an information which in five separate counts charged him with five separate violations of §287, 18 U. S. C. A., the same statute here involved. Claiming that the consecutive sentences imposed violated his constitutional rights not to be twice put in jeopardy for the same offense, appellant asserted error. In a per curiam opinion, this court said at page 856:

"* * * He concedes that no authority in support of this contention could be found. It is safe to say that there is no such authority. See and compare: Ebeling v. Morgan, 237 U. S. 625, 629-631, 35 S. Ct. 710, 59 L. Ed. 1151; United States v. Daugherty, 269 U. S. 360, 46 S. Ct. 156, 70 L. Ed. 309; Blockburger v. United States, 284 U. S. 299, 301, 305, 52 S. Ct. 180, 76 L. Ed. 306. The information charged five separate offenses and would have sustained an aggregate maximum sentence of twenty-five years." (Italics supplied.)

In Ellerbrake v. King, 8 Cir., 1940, 116 F. 2d 168, 170, rehearing denied January 13, 19 41, this court stated:

"Sentences for separate crimes may be consecutive. Asgill v. United States , 4 Cir., 60 F. 2d 780, 782; Brown v. Johnston, 9 Cir., 91 F. 2d 370.

Neither is there any merit in the contention that Congress by the enactment of Title 18, U. S. C. A., Section 709a et seq., ¹ abolished the long sanctioned practice of imposing consecutive sentences or sentences to begin in the future. Brown v. Johnston , 9 Cir., 91 F. 2d 370, 372."

In Terrell v. Biddle, 8 Cir., 1943, 139 F. 2d 32, certiorari denied, 321 U. S. 794, rehearing denied 322 U. S. 767, second rehearing denied 322 U. S. 769, Judge John Sanborn, speaking for this court, said:

"* * * The suggestion that separate sentences for separate offenses charged in an indictment may not be imposed and made to run consecutively is obviously without merit." 139 F. 2d at page 33.

See also Lipscomb v. United States, 8 Cir., 1955, 226 F. 2d 812, 816, certiorari denied, 350 U. S. 971, rehearing denied, 350 U. S. 1003; Sherman v. United States, 9 Cir., 1957, 241 F. 2d 329, 336, 337, certiorari denied, 354 U. S. 911, rehearing denied, 355 U. S. 852; Kay v. United States, 6 Cir., 1960, 279 F. 2d 734, 735.

While appellant may have had one overall scheme to defraud the government by the filing of many false claims for income tax refunds, he nevertheless committed a separate violation of the statute every time he filed a false claim. Each count of the five-count information charged a separate violation of the statute. Each was a separate crime. Each was punishable separately. They were in no way dependent upon each other. Each false claim for income tax refund was in the name of a different person and was for a separate and different amount. Five crimes were charged and appellant, by his pleas, admitted having committed them. It would seem perfectly clear that the power to impose consecutive sentences under such circumstances rests squarely with the sentencing court. Only Congressional Act could change the inherent power of the court so to do.

[Denial of Motion Without Hearing]

Appellant's second claimed error goes to the denial of his motion without a hearing. No hearing is necessary or required under §2255 if "* * * the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief * * *." Accordingly, under such circumstances, the court need proceed no further but may overrule the motion without hearing. United States v. Hayman, 1952, 342 U. S. 205; Lipscomb v. United States, 8 Cir., 1955, 226 F. 2d 812, certiorari denied, 350 U. S. 971, rehearing denied, 350 U. S. 1003; Godwin v. United States, 8 Cir., 1951, 191 F. 2d 932. See Michener v. United States , 8 Cir., 1949, 177 F. 2d 422; 20 A. L. R. 2d 993, 996. Such is the situation here. The District Court's conclusion that there was no merit in any of the grounds relied on by the appellant in his original motion was eminently sound. His claims as to illegal arrest, unlawful search and seizure, delay in being taken before a United States Commissioner and inadmissibility of his confession were effectively disposed of by his guilty pleas and do not entitle him to a hearing. Hall v. United States, 8 Cir., 1958, 259 F. 2d 430, certiorari denied, 359 U. S. 947; United States v. Salzano, 2 Cir., 1957, 241 F. 2d 849; Gonzalez v. United States, 1 Cir., 1954, 210 F. 2d 825, certiorari denied, 353 U. S. 966; Warren v. United States, 5 Cir., 1956, 232 F. 2d 629; Edwards v. United States, D. C. Cir., 1958, 256 F. 2d 707, certiorari denied, 358 U. S. 847; Richardson v. United States, 10 Cir., 1952, 199 F. 2d 333; Plummer v. United States, D. C. Cir., 1958, 260 F. 2d 729; United States v. Scales, 7 Cir., 1957, 249 F. 2d 368, certiorari denied, 356 U. S. 945.

Equally without merit were appellant's allegations in his original motion that he was coerced into pleading guilty and deprived of effective assistance of counsel. The court was meticulous in ascertaining whether or not the guilty pleas were voluntarily and understandingly made. Upon the court's specific inquiry the appellant admitted that he had not been threatened or intimidated into entering guilty pleas and that the pleas were made voluntarily and after consulting with his counsel. His present belated allegations denying the truth of that which he had theretofore admitted in open court are mere conclusions, void of factual support and do not justify the granting of a hearing. Taylor v. United States, 8 Cir., 1956, 229 F. 2d 826, 832, certiorari denied, 351 U. S. 986; United States v. Sturm, 7 Cir., 1950, 180 F. 2d 413, 414, certiorari denied, 339 U. S. 986; United States v. Pisciotta, 2 Cir., 1952, 199 F. 2d 603, 606; Burgett v. United States, 8 Cir., 1956, 237 F. 2d 247, 251, certiorari denied, 352 U. S. 1031; Bartholomew v. United States, 8 Cir., filed February 15, 19 61.

Appellant's third claimed error here is that the District Court erred in imposing sentences on four counts of the information because they were not included in the original complaint filed with the United States Commissioner. The contention is utterly without merit. The United States Attorney is not bound by the proceedings before the United States Commissioner. Deutsch v. Aderhold, 5 Cir., 1935, 80 F. 2d 677, 678:

"The United States attorney of the district where a violation of a federal statute occurs is charged with the duty of prosecution and vested with complete control over the proceedings, in the exercise of sound discretion. If the facts show a violation of two or more statutes, he may elect under which he will prosecute, in the absence of a prohibitory statute. He is not bound by any action of the arresting officer or a United States commissioner, acting as a committing magistrate under the provisions of Rev. Stat. 1014, as amended (18 U. S. C. A. §591). He may ignore the proceedings before the United States commissioner entirely. R. S. §771 (28 U. S. C. A. §485); Confiscation Cases, 7 Wall. 454, 19 L. Ed. 196; Morse v. U. S. , 267 U. S. 80-85, 45 S. Ct. 209, 69 L. Ed. 522."

Additionally, it is pointed out that appellant's plea of guilty precludes in this case any collateral attack under §2255 upon the grounds of a defective indictment or information. Keto v. United States, 8 Cir., 1951, 189 F. 2d 247, 249; Rowley v. United States, 8 Cir., 1951, 191 F. 2d 949, 951; Barnes v. United States, 8 Cir., 1952, 197 F. 2d 271, 273; Collins v. United States, 8 Cir., 1954, 211 F. 2d 789, 700, rehearing denied May 4, 19 54; Alm v. United States, 8 Cir., 1956, 238 F. 2d 604, 605, certiorari denied, 353 U. S. 939.

The order appealed from is affirmed.

¹ Predecessor to 18 U. S. C. A. §3568, Effective Date of Sentence.

 

[67-2 USTC ¶9597]Robert E. Morgan, Appellant v. United States of America, Appellee Robert E. Morgan, Appellant v. United States of America, Appellee

(CA-9), U. S. Court of Appeals, 9th Circuit, Nos. 17,245, 19,293, 380 F2d 686, 6/19/67, Affirming unreported District Court decisions

[Criminal Code Secs. 287, 641 and 1001]

Crimes: Filing of false document: Conversion of U. S. treasury check: False claims for refund.--None of the numerous errors assigned were sufficient to reverse convictions for filing a false document, for theft by conversion of a U. S. treasury check, and for filing false claims, all charged to have been done by the filing of false income tax returns and claiming alleged refunds.

Robert E. Morgan, Wheaton, Ill., appellant in pro per. Milton Stern, Jr., 861 Bryant, San Francisco, Calif., for appellant in No. 17245. Joseph H. Lewis, 1741 N. Ivan Ave. , Hollywood , Calif. , for appellant in No. 19293. Cecil F. Poole, United States Attorney, Charles W. Getchell, Assistant United States Attorney, San Francisco, Calif., for appellee in No. 17245. John K. Van de Kamp, United States Attorney, Robert L. Brosio, Arthur I. Berman, Assistant United States Attorneys, Los Angeles, Calif., for appellee in No. 19293. Mitchell Rogovin, Assistant Attorney General, John P. Burke, Tax Division, Department of Justice, Washington, D. C. 20530, Melvin Sears, Regional Counsel, Internal Revenue Service, San Francisco, Calif., for appellee.

Before CHAMBERS and BARNES, Circuit Judges; and SMITH, ^* District Judge.

BARNES, Circuit Judge:

This opinion relates to two appeals, each taken in forma pauperis, from two convictions of two counts each.

I. No. 17,245 is an appeal from the United States District Court for the Northern District of California, Southern Division, of a judgment of conviction for using a false document in violation of 18 U. S. C. §1001; and for theft by false pretenses and conversion of a United States Treasury check for $444.11, in violation of 18 U. S. C. §641; as each were charged in two counts (Counts I and II) of a twelve count indictment, and which related to United States 1955 income tax returns filed by appellant and others.

During the time the acts alleged in No. 17,245 took place, appellant was confined as an inmate in Folsom Prison, a California State Penal Institution. Appellant was also charged and tried on Counts III and VI, but the jury disagreed. Appellant was charged jointly with codefendant Davenport in Counts III and IV; with codefendant Escarrega in Count IX; with codefendant Holley in Count XI. Davenport was the sole defendant in Counts VII and VIII. Escarrega was the sole defendant in Count X. Count XI was a conspiracy count charging codefendant Holley. Counts IX to XII were severed, and appellant and codefendant Davenport only went to trial on Counts I to VIII. Davenport then pled guilty, and the trial proceeded as to appellant alone. All defendants named were inmates of the California State prison at the time the offenses allegedly occurred.

II. No. 19,293 is an appeal from a judgment of conviction on Counts III and IV of a six count indictment filed in the United States District Court for the Southern District of California, Central Division (now the Central District of California). Count III charged the making and presenting of a false claim for $428.80, based on an alleged income tax refund due William G. Steinhoff; and Count IV charged the making and presenting of a false claim for $428.80 based on an alleged income tax refund due appellant himself.

During the time the acts alleged in No. 19,293 took place, appellant was an inmate of the Wayside Honor Ranch, a California State Penal Institution, where he worked as a trusty in the maximum security hospital. His alleged confederate and codefendant who pleaded guilty, was one "Maximillian B. Michelson."

Michelson pleaded guilty to Counts IV and VI, and the court granted appellant an acquittal as to Counts I, II and V. The conviction of appellant was on each of the remaining two Counts, III and IV, appellant not being charged in Count VI.

III. Jurisdiction below was predicated on 18 U. S. C. §§ 287 and 3231 in No. 19,293; on 18 U. S. C. §§ 641 and 1001 in No. 17,245; and in each case, jurisdiction here rests on 28 U. S. C. §§ 1291 and 1294.

IV. Appellant files documents on his behalf in never ending cascades, and without regard to court rules.

To clear out some underbrush, and to enable us to reach the issues, we hold and order as follows:

1. Appellant's application (filed April 12, 19 67) for stay of the hearing of his two appeals (referring to both No. 17,245 and No. 19,293) then calendared for April 17, 19 67, was denied on that date, April 17, 19 67.

2. Appellant's "Memorandum to the Court" in No. 17,245, dated April 12, 19 67, received by the clerk of this court on April 18, 19 67, is ordered "Lodged."

3. Appellant's "Motion" in No. 19,293 for order "to have reporter's transcript prepared on Hearings of Motions for Bill of Particulars, Discovery and Inspection, etc., etc., on September 25, 19 62," which motion is dated April 20, 19 67, and which was received by the clerk of this court on April 24, 19 67, is denied as untimely, and the document is ordered to be marked "Received."

4. Appellant's "Request" in No. 17,245 "that election not to serve sentence filed March 1, 19 65 be made part of record," etc., which "Request" bears date of service of April 20, 19 67, and which was received by the clerk of this court on April 24, 19 67, is denied as untimely, and the document is ordered to be marked "Received."

5. Appellant's alleged "Affidavit," numbered in No. 17,245 and No. 19,293, "in support of Motion for Order to Clerk to file Supplement (sic) Appellant Brief," and failing to show date of any oath, which was received by the clerk of this court is ordered not to be filed, as it is not timely, and the document is ordered to be marked "Received."

6. Appellant's Opening Brief in No. 19,293 was filed herein on September 13, 19 66. Appellant's so-called "Supplemental Brief" in No. 19,293 was filed herein on January 31, 19 67. Appellant's so-called "First Traverse Brief" in No. 19,293 was received by the clerk of this court on January 31, 19 67 and lodged on February 27, 19 67. Appellant's "Reply Brief" was presented for filing out of time, having been received by the clerk of this court on April 10, 19 67, and thereafter "Lodged."

It is hereby ordered that said "Appellant's First Traverse Brief," and said "Appellant's Reply Brief' be filed, and so marked by the clerk of this court.

7. It is hereby further ordered that appellant's motion to amend his brief entitled "Appellant's First Traverse Brief to Appellant's Reply Brief' be denied.

8. It is hereby further ordered that "Appellant's Oral Argument Hearing Memorandum" in No. 19,293, received by the clerk of this court on April 13, 19 67, and so marked, be filed.

V. We note the two count conviction in No. 17,245 resulted, on December 22, 19 60, in sentences of two consecutive five year terms, "to run consecutively to any period of actual confinement under sentence or sentences of imprisonment now being served by the defendant in California State Prison", etc.

The two count conviction in No. 19,293 resulted, on January 28, 19 63, in sentences of two five year terms, consecutive to each other, "and to run consecutive to the sentence defendant is now serving with the State, and consecutive to Federal sentence defendant may have to serve pursuant to judgment" rendered in No. 17,245.

VI. Errors alleged in No. 17,245 are as follows:

(1) The court lacked jurisdiction.

This is based upon appellant's statement that the offense, if any, was committed at Represa , California , the site of Folsom Prison, within the Northern Division of the Northern District of California, while San Francisco was in the Southern Division of the Northern District of California.

A short answer is a reference to Rules 18 and 19 of the Federal Rules of Criminal Procedure. Rule 18 refers to the District where the offense was committed, not the Division. And, under Rule 19, the defendant must consent to a trial in another District. It he raises no objection, it is assumed he consents. Entirely apart from the Rules or If he raises no objection, it is assumed he tried in the Division where the offense was committed.

Exhibit No. 1 is a Federal Income Tax Form 1040A for 1955, made out in Morgan's name, with its Represa address, and his box number, similar to his number as a state prisoner. This Exhibit was filed with and processed by the District Director of Internal Revenue in San Francisco, as required by law (26 U. S. C. §6091). Its processing number was R166332, which number was placed on, and only on, the refund check arising out of that return. Exhibit 2 was the Treasury check, bearing number R166332, issued to appellant and his wife, and addressed to them at the prison. Appellant testified he received Exhibit 2 through the mail and sent it to his Los Angeles attorney for cashing. This attorney arranged for the second endorsement, cashed the check, and divided the proceeds; $200 of which went to appellant.

These facts clearly establish that the Form 1040A was "made" in Represa, filed and processed in San Francisco , that the refund check was issued and mailed there. Count I charges appellant "used" the false document in San Francisco , not the conjunctive that he "made and used" the false document there, as the statute reads. (18 U. S. C. §1801.) The false pretenses required to establish a violation of 18 U. S. C. §641, and to constitute a stealing were made to the Federal government in San Francisco . See Smith v. United States , 233 F. 2d 744, 747 (9th Cir. 1956). Cf. Morissette v. United States , 342 U. S. 246, 249 (1952). The cashing of the check was effected in Los Angeles , outside of the Northern District entirely, thus completing the proscribed act, begun in one District, and completed in another. 18 U. S. C. §3237 reads as follows:

"(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: Provided, That the motion is filed within twenty days after arraignment of the defendant upon indictment or information."

Appellant never attempted to proceed under §3237(b).

(2) Error in the denial of continuances of the trial.

Appellant, a disbarred attorney, originally elected to act as his own attorney, and he waived counsel, preferring to proceed in propria persona. (R. T., Vol. 2, pp. 3, 4.) He asked to expedite the trial, and waived time to plead. On September 9, 19 60, the trial was set for October 3rd, 1960. (R. T., Vol. 2, p. 13.) On September 15th, 1960, Mr. Cragen appeared for defendant. Subsequently motions for continuances were made by appellant on the date set for trial (the trial date having been set over six weeks previously, and there being several defendants pressing for trial). Two judges denied the respective motions. Appellant then proceeded to trial with an attorney.

As an example of appellant's argument on this phase of the case, he states that after eighteen days of trial "for the prosecution" (it was actually eight), his counsel could not make an opening statement "because he was not prepared." Brief, p. 15, citing R. T. pp. 886-887. No support for such a statement appears at pages 886-887 of the record.

Counsel for defendant declined to make an opening statement when the trial started. (R. T., Vol. 5, pp. 140-141.) After eighteen days of trial, he still declined to make an opening statement. (R. T., Vol. 10, pp. 911-912.)

We have repeatedly stated the practicalities of the trial court practice require us to respect the general rule that continuances of trials must be left to the good, considered, careful judgment of the trial court, and that we will interfere only where there appears a clear abuse of that wide discretion necessarily granted; otherwise we will not review it. Elkins v. United States , 266 F. 2d 588, 595 (9th Cir. 1959). See also Shockley v. United States, 166 F. 2d 704 (9th Cir. 1948), cert. den. 334 U. S. 850 (1948). No such abuse of discretion here appears. ¹

(3) Insufficiency of the evidence.

Not only was there sufficient evidence, but an examination of the testimony and the more than ninety exhibits for the government discloses a superabundance of evidence, which if believed by the trier of fact, was amply sufficient to convict. We would characterize the nature of the evidence against appellant as overwhelming. Much of the evidence which he produced was proved false in several ways.

(4) Refusal to quash exhibits.

The court's refusal to quash Exhibits 7 and 11, and the charge that the government violated the pretrial order previously made by the trial judge, are each equally, and utterly, without merit, as the record clearly shows.

(5) The effect of the Writ of Habeas Corpus Ad Prosequendum.

Appellant has contrived an intricate argument based on his own erroneous views as to the nature of a writ of habeas corpus ad prosequendum. He beings with the fallacious and erroneous premise that the writ can lawfully issue only at the request of the prisoner. (See VIII, subdivision (4), post.) Since the writ involved in this appeal was issued at the request of the United States Attorney, appellant concludes that it was null and void. Therefore, he contends, when the California authorities released him to the federal authorities the release was absolute. From this point he goes on to assert that (1) he was entitled to bail pending trial, and (2) his federal sentence should have begun immediately upon conviction, rather than awaiting the completion of his California sentence. Appellant's house of cards falls because his original premise is erroneous.

The writ of habeas corpus ad prosequendum is specifically authorized by 28 U. S. C. §2241(c)(5). As the Supreme Court explained in Carba v. United States, 364 U. S. 611 (1961), habeas corpus is a generic term, embracing both habeas corpus ad subjiciendum (to inquire into the cause of the restraint) and habeas corpus ad prosequendum (to bring the prisoner to trial). In that case the Court said:

"The Chief Justice [Marshall in Ex parte Bollman, 4 Cranch (8 U. S.) 75 (1807)], following the English practice, particularly 3 Blackstone, Commentaries *129, noted that the writ ad prosequendum was necessary to remove a prisoner in order to prosecute him in the proper jurisdiction wherein the offense was committed. In his discussion of the common usage of the various writs, he recognized in Ex parte Bollman, supra, that the Congress had without qualification authorized the customary issuance of the writ ad prosequendum by a jurisdiction not the same as that wherein the prisoner was confined." 364 U. S. at 615.

It is the "customary issuance" which appellant here tells us is void. The argument is completely without merit. It is clear that the prisoner's consent is irrelevant to the issuance of the writ. United States v. Kipp, 232 F. 2d 147 (7th Cir. 1956). In Kipp it was even said that the prisoner had no standing to attack the operation of the writ as it required his return to state authorities, but a footnote in Carbo v. United States , supra at 612, n. 1, casts doubt on such a position. It is nevertheless unquestionable law that the writ of habeas corpus ad prosequendum may issue without it having been requested by the prisoner.

Appellant's assertion that his federal sentence should have begun to run immediately upon conviction is without merit in light of our previous determination that the writ of habeas corpus ad prosequendum was lawfully issued and California 's release was therefore conditional rather than absolute.

(6) Privileged communications.

Appellant urges (a) that the introduction of three privileged communications (Exs. 7 and 11) between the client and lawyer violated the rule against such evidence when witness Butterfield testified; and (b) that said letters were not shown him prior to trial, which failure violated an existing order for discovery and inspection.

(a) The first contention has no merit. Appellant asked Mr. Butterfield to act as a conduit for the funds he fraudulently obtained. Appellant neither sought nor obtained legal advice from Mr. Butterfield. The record discloses that Mr. Butterfield was not employed to render any legal advice or legal assistance with respect to appellant's 1955 income tax return, or the refund he sought based thereon. Cf. discussion in Olender v. United States [54-1 USTC ¶9254] 210 F. 2d 795 at 806 (9th Cir. 1954) and cases therein cited, particularly federal tax cases.

(b) The second contention likewise is without merit. The order for inspection was not made by the court as broad as was appellant's request. The court limited the discovery to "anything they [the government] claim they took from him." Other than this limited grant, appellant's motion was denied "as it now stands without prejudice." (R. T., Vol. 3, p. 26.) Three days later the trial judge interpreted his own order to mean "those documents . . . prepared and filed with the Government by the defendant, that he ought to see them. As to others, no." (R. T., Vol. 4, p. 38.) Exhibits 7 and 11 were "other" documents. No element of surprise or unfairness appears in the record.

(7) Codefendant's plea of guilty.

Appellant urges that the guilty plea of codefendant Davenport was prejudicial to appellant and entitled him to a mistrial.

(a) Part of the prejudice here charged was based on the alleged presence of the jury when Davenport was taken from the courtroom through a corridor, and Davenport 's former wife, who feared him, was present in the corridor. Appellant's motion for mistrial was based on the alleged fact that the prosecution contrived with a government agent to hold Davenport 's wife in the corridor so that this confrontation would occur, and Davenport was placed under such emotional stress as to induce him to plead guilty. (R. T., Vol. 7, p. 325.) ² A careful examination of the record (R. T., Vol. 7, pp.314-334) discloses (i) that the prosecutor represented that he had tried to delay removing Davenport from the courtroom in order to avoid any such confrontation; (ii) that, according to the bailiff who had custody of the jury, no juror witnessed the alleged "confrontation."

The court, passing on the merits of the factual question, denied the motion for mistrial; and carefully instructed the jury that they should draw no inferences from the fact Davenport was no longer on trial, but should judge the evidence against each defendant separately. (R. T., Vol. 7, pp. 334-336.) The jury was so instructed immediately after Davenport 's plea, when the fact was fresh in their minds, and the jury was therefore not burdened with the problem of lack of any instruction as to the negative or neutral effect on appellant's case of Davenport 's plea. Thus, the jury was not called upon, at the conclusion of the case, to "unring" a bell.

The factual situation here presented--a plea of guilty by a codefendant during a trial, is not an unusual situation where there exists a multi-count indictment of alleged coconspirators. See our recent discussion of the problem in Osborne v. United States, 371 F. 2d 913 (9th Cir. 1967), at p. 923 et seq. There a laconic instruction was given, after a plea in course of the trial. (Cf. quotation, p. 923.) Here a much longer and carefully detailed instruction was given. (R. T., Vol. 7, p. 334, line 21 to p. 336, line 22.) There, as here, no other instruction was requested or offered, and no objection to the explanation, as given, was made. (cf. cases cited in Osborne, supra, particularly United States v. Crosby, 294 F. 2d 928, 948 (2d Cir. 1961) and Davenport v. United States, 260 F. 2d 591 (9th Cir. 1958).

(b) A further prejudice is charged by appellant because of the joinder of the twelve counts against four defendants. Such a joinder of both defendants and offenses is permitted by Court Rules 6(a) and (b). A severance was originally denied as to all defendants; then a second motion granted as to codefendants Escarrega and Holley (who subsequently pleaded guilty); then Davenport pleaded guilty, and the trial proceeded as to appellant alone--a result which was precisely what appellant sought by his earlier motion for a severance.

The joinder of the twelve counts, reduced in number by Escarrega's and Holley's plea, was not improper. ³ Counts I and II, on which appellant was convicted, charged him alone with the two crimes. The jury disagreed only on counts which charged appellant with conspiring with other codefendants. The inference is that they weighed the evidence against appellant alone, uninfluenced by the codefendants' actions.

A red herring appears by inference in appellant's brief at this point. (Opening Brief, p. 45.) Appellant, a lawyer, and one who by reason of his careful references elsewhere in his many briefs and motions to the record, is thoroughly aware of the necessity and value of specific references to the record, on any appeal, states, without reference to the record or any exhibit, that Davenport confessed his participation in the appellant's fraudulent schemes. Without saying such alleged confession implicated appellant, the latter states it "was relative to charges wherein defendant Morgan was on trial." He then quotes good law to the effect that a confession, implicating a codefendant, may be received in evidence only as to the party making the statement. In the absence of a charged conspiracy, this is good law, but here (i) no reference to the specific statement is made; (ii) no reference to any language implicating appellant is made; (iii) no reference to any objection or requested instruction is made, and (iv) no reference to any other portion of the record before us, is made. Under such circumstances the bald assertion made by appellant remains a red herring, and nothing more. The 1966 amendment to Rule 14 of Rules of Criminal Procedure has no significance.

(8) Denial of a new trial.

Appellant next urges as error the denial of his motion for a new trial. He urges the unique theory that the government failed to prove the offenses charged in Counts I and II, because, he infers conceding (a) the earnings which he reported were false; (b) that his alleged wife for whom he claimed an exemption had been long divorced; (c) that his Social Security number was false; (d) that the corporation named as his employer did not exist; and (f) that the alleged withheld taxes were not withheld; he had merely asked the government to use such false figures and for it to figure out the tax he owed and compute the alleged refund due him--hence "the Internal Revenue, not defendant Morgan, arrived at the conclusion that Morgan was to receive $444.11. Therefore appellant claims he is blameless for the amount refunded him." (Opening Brief, p. 46.)

We need say nothing more about this argument than that it does not appeal to us. We reject it as proof of error. Needless to say, no law is cited to sustain this unusual theory.

(9) Due process.

Appellant's last point is that he was denied due process by unnecessary delay in the preparation of the record on appeal.

There is absolutely no merit in such a contention. The Appellee's Brief, pages 36 and 37, adequately discloses the many motions made by appellant between July 13, 19 61 and June 28, 19 65, to augment and change the record. ⁴ As we have pointed out, supra, such motions are still being made by appellant, even after the hearing date of this appeal, and after the two cases were placed under submission by this court on April 17, 19 67.

VII. Finding no error, we affirm the judgment of conviction of appellant on each of the two counts in case No. 17,245.

We turn to case No. 19,293. Appellant charges the following errors, each of which will be considered in turn:

VIII. (1) That appellant was tried on December 4, 19 62, but was not given a copy of the indictment filed against him until December 3, 19 62.

This point illustrates the difficulty in attempting to meet various charges of error made without restraint by appellant as representations of fact, irrespective of their truth, so long as a possibility exists the point might favor him.

When this technical point was first urged by appellant, the entire record was not before the court. Finally, when the Fourth Supplemental Reporter's Transcript was prepared and filed, it disclosed clearly (page 4, lines 8 and 9) that a copy of this arraignment was served on the appellant in open court on May 21, 19 62.

In his Opening Brief, appellant represents to this court that he never saw the indictment until December 3, 19 62. Relying on Rule 10 of the Fed. R. Crim. P., he strongly urges this as a reason for reversal. He filed his brief on September 19, 19 66. On January 23, 19 67, the "Fourth Supplemental Transcript of Record" was then filed by the government. It establishes convincingly that appellant's factual presentation on this point is false. When confronted with such proof, appellant does not even propose to argue the matter on his "Oral Argument Hearing Memorandum," filed by him on April 13, 19 67.

It is such changes of position on appellant's part that make this appeal difficult to analyze in an orderly manner. It is sufficient to state here that appellant's first alleged error is based on a false factual assumption; and is without merit.

(2) Denial of a Bill of Particulars.

Appellant's second alleged error was the court's denial of his motion for a Bill of Particulars. This denial, on September 24, 19 62, was, says appellant, an abuse of discretion.

A similar motion was made May 3, 19 62, and denied. In it, appellant had asked for nothing specific. At the trial, the government proposed to go into other acts of a similar nature (filing false claims at the Internal Revenue Office in Baltimore ) to show appellant's "intent," or a "previous similar course of conduct." Appellant objected that the government was endeavoring to prove other and different crimes than those charged against appellant. The trial judge chided the government for having previously opposed appellant's motion for a Bill of Particulars, and subsequently offering evidence of similar crimes on the theory of intent. (R. T., pp. 135, line 14 to 137, line 5.)

None of this proves that the trial judge abused his discretion in denying a Bill of Particulars. It shows a disposition on his part to protect the defendant's interests.

No objection was made to Government Exhibit 9, "Exemplars of Royal Standard Typewriter located at Hospital, Wayside Honor Rancho, Castaic , California ," and it went into evidence. (R. T. p. 28.) The appellant's objections went to the following exhibits:

Ex. 7. Tax refund check of defendant.

Ex. 8. Tax refund check of defendant.

Ex. 10. Exemplars of typewriting of Smith-Corona typewriter owned by Dr. Arzoo, Physician, Wayside Honor Rancho, Castaic, California.

Ex. 11. Photostatic copy of William G. Steinhoff's Income Tax Return for 1959.

Ex. 12. Income Tax Return of R. Evans Morgan, 1250 Magnolia Street, Los Angeles, California, for 1959; Soc. Sec. #553-23-4456; Employer, Maryland Auto Wrecking Co., Md.

Ex. 13. Income Tax Return for Robert E. Morgan, 1250 Magnolia Street, Los Angeles, California, for 1959; Soc. Sec. #299-28-3353; Employer, U. S. Navy.

Ex. 14. Income Tax Return for Robert B. Morgan, 1250 Magnolia Street, Los Angeles, California, for 1959; Soc. Sec. #104-20-4458; Employer, Chavez Ravine Development Co., Los Angeles, California.

Ex. 15. Income Tax Return for Michael Jason for 1959, Soc. Sec. #106-12-4356; Employer, Sunset Roofing Co., Los Angeles , California .

Ex. 16. Income Tax Return for William T. Adams for 1959, Soc. Sec. #107-20-4436; Employers, Anderson Lumber Co. and Spaulding Tire Co., Los Angeles, California.

All were offered to show defendant's similiar actions, and his intent. The court allowed them to be marked for identification only. (R. T. pp. 128-140.) Subsequently, they were all, save two, placed in evidence (R. T. pp. 317-321) to show intent only. ⁵

Without citing any cases in an attempt to demonstrate that proof of intent or previous similar acts are error, appellant urges that a Bill of Particulars would have disclosed the government's reliance on similar acts, and hence its denial was error. We cannot agree. There was no abuse of discretion. The motion for a Bill of Particulars was not specific in its demand, as it must be. United States v. Hudson , 176 F. Supp. 327, 328 (M. D. Ga. 1959), United States v. Callahan, 18 F. R. D. 486 (W. D. Wash. 1956). It does not entitle a defendant to explore at will all evidence the government may hold against him. Wong Tai v. United States , 273 U. S. 77 (1927), Yeargain v. United States , 314 F. 2d 881, 882 (9th Cir. 1962), Rodella v. United States , 286 F. 2d 306, 310 (9th Cir. 1960).

(3) Motion for Discovery and Inspection.

Error is alleged in the denial of appellant's Motion for Discovery and Inspection, filed July 25, 19 62, under Rule 17(b) and (c) (subpoenas) and 18 U. S. C. §3500 (Jenck's Act) (C. T. p. 18).

Appellant on this appeal blandly changes his position, and asserts the motion was made under Rule 16 (Opening Brief, p. 10). It was not. This is a second false statement in his brief.

Appellant requested three things:

(a) Certain "Grand Jury Testimony relating to Income Tax Returns and claim in names of Wm. T. Adams, William G. Steinhoff, Robert E. Morgan, Michael Jason, John Doe, Internal Revenue Special Agent, Los Angeles Office";

(b) Statements made by appellant and his codefendant Maximillian B. Michelson; and

(c) Statements of prospective government witnesses.

The government offered and agreed to make available to appellant any statement he had given to any United States investigating agency, but declined to give statements of other witnesses, relying on the exclusionary provisions of 18 U. S. C. §3500:

"(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) to an agent of the Government shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case."

The government was required to go no further than it did. No case is cited by appellant to indicate it should have. There was no error in this respect.

(4) Appellant urges that when he was taken from state's prison to the federal court to stand trial for a federal crime by means of a federal writ of habeas corpus ad prosequendum, he became a federal "prisoner" entitled to bail before trial.

This point has no merit. (See VI, subdivision (5), supra.) Appellant urges that only an application filed by him, or someone in his behalf authorizes the issuance of a writ of habeas corpus ad prosequendum. Appellant recognizes the existence, but denies the authority, of 28 U. S. C. §2241, and particularly subdivision (c)(5) thereof:

"(c) The writ of habeas corpus shall not extend to a prisoner unless-- . . .

(5) it is necessary to bring him into court to testify or for trial."

The writ of habeas corpus ad prosequendum is proper to bring a prisoner under incarceration by state or federal court to trial for alleged violations of laws. United States v. Kipp, 232 F. 2d 147 (7th Cir. 1956), Gilmore v. United States, 129 F. 2d 199 (10th Cir. 1942), cert den. 317 U. S. 631 (1942). This is the inherent power of the court. United States v. McGaha, 205 F. Supp. 949 (E. D. Tenn. 1962). See also Carbo v. United States, 364 U. S. 611 (1961).

Trial and sentence by federal court of a state prisoner brought before a federal court by a writ of habeas corpus ad prosequendum has long been standard procedure, the propriety of which has not been open to question by the prisoner. United States v. Schurman, 84 F. Supp. 411 (S. D. N. Y. 1949). Cf. also, Price v. Johnston, 159 F. 2d 234 (9th Cir. 1947) and Strand v. Schmittroth, 251 F. 2d 590, 610, n. 60 (9th Cir. 1957), cert. dismissed 355 U. S. 886 (1957). See also, Carbo v. United States , supra, p. 612, n. 1.

The United States Marshal was required to return the prisoner to a state penal institution. Under such circumstances, both common sense and the doctrine of comity require that the state prisoner not be released by the federal authorities on bail.

As this court said in Strand v. Schmittroth, supra, at p. 595:

"Actual consent of one sovereign, whether express or implied, to proceeding in another forum wipes out all distinctions and is conclusive of all questions. If consent can be found, there need be no search for other or better grounds. Abstruse reasoning into bases of jurisdiction and similar difficult propositions is avoided."

And see cases cited in note 9, 251 F. 2d at 595.

We hold the district court properly denied appellant's release on bail.

(5) Bias and prejudice.

Appellant next urges that the court erred in refusing to disqualify itself upon grounds of bias and prejudice.

Appellant urges that the trial judge "helped the government to prosecute their case." The trial judge's criticism of government counsel's presentation of the case was little help to the government. An examination of the entire Reporter's Transcript demonstrates the charge is absurd, and merits no further consideration by this court.

Unfavorable rulings by the trial court may constitute grounds for reversal if they amount to error, but do not constitute nor demonstrate his "bias and prejudice." Deitle v. United States , 302 F. 2d 116 (7th Cir. 1962). See also, Barkan v. United States, 362 F. 2d 158, 160 (7th Cir. 1966). Cf. also, Barnes v. United States, 241 F. 2d 252, 254 (9th Cir. 1956).

(6) Aid in preparing appeal.

Appellant urges a denial of his constitutional rights exists in that the court refused to order law books and legal documents to be made available to defendant in jail.

In support of this alleged error not one case is cited in appellant's Opening Brief, in his first Traverse Brief nor in his Supplemental Brief. Long selected portions of the record are presented to this court, most of it argument advanced by appellant below, and none of which tells the entire story. We have read the record and are convinced the trial judge did all in his power to insist that defendant should be represented by counsel. This appellant refused. When the court appointed counsel, appellant (as he admits) rejected the appointment of any attorney.

In his Opening Brief, appellant states he filed, on July 25, 19 62, a "Motion for an Order to be directed by the court authorizing and allowing defendant to have in his possession at the jail law books and legal documents essential to the preparation of his defense." He makes no reference to where in the record this motion may be found. The district court rules require any such motion to be in writing. Southern District of Calif. Rule 3(d). After a diligent search of the Clerk's Transcript, including the Second, Third and Fourth Supplemental Transcript, we find no such motion was ever made or filed. We do find that there was "Lodged" a proposed "Order" on July 25, 19 62, which was unfiled, undated and unsigned. (Second Supplemental Transcript of Record, p. 1.) We also find a letter from the clerk of the district court to the clerk of this court, dated September 26, 19 66, which states the only document relating to such a motion is defendant's proposed order, lodged, but not filed. Neither the Third nor Fourth Supplemental Transcript of Record refer to any such motion, nor do the sixteen Minute Orders appearing in said Third Supplemental Transcript of Record.

We cannot pass on matters which do not appear in the record before us. So far as the record discloses, nowhere did the appellant raise, or the court pass upon, the alleged motion; nor did either the court or the appellant, subsequent to July 25, 19 62, raise any issue as to the oldging, rather than the filing, of the proposed order.

We realize that appellant will urge, as he has in his "Supplemental Brief (sic)," (filed January 31, 19 67) that "the government has failed to prosecute a timely appeal," or to furnish appellant with all portions of the record he subsequently decides he needs or wants. But he here asks us to act on a portion of the record which allegedly exists, but where there is no evidence of its existence in the record. We refuse to do so.

(7) Motion for Mistrial.

In appellant's Opening Brief, the error here alleged is that the court abused its discretion in denying appellant's motion for a mistrial.

This motion was made on the second day of trial. On the first, codefendant Michelson had withdrawn his plea of not guilty on all counts charged, and entered a guilty plea to two counts, IV and VI.

Appellant stated his motion as follows:

"Now, for a day I sat at counsel table speaking for myself as the only defendant before the jury. On several occasions Mr. Keller has referred to the co-defendant, co-conspirator, but the jury views only Morgan sitting here with the Sheriff's Department and the government opposing him.

I feel that the fact that the court did take two pleas of guilty and did not dispose of the other four counts as to the defendant Michelson, that in all legal aspects of this trial Michelson has been on trial for the four counts that have not been dismissed. But he has not not been at counsel table. I feel this is highly prejudicial to myself because I am viewed here by the jury as the sole person.

Because of all this and because of new information that has been brought before the court this morning I feel that I am in line in making a motion for mistrial based upon this situation. I submit that to the court." (R. T. p. 155, lines 8-23).

There then followed thirty pages of testimony as to Mr. Michelson's plea (R. T. pp. 155-185) to determine if he had been given any immunity or reward, or promise of immunity or reward. The court found he had not.

The record fails to disclose that the court ever ruled on defendant's motion; or that defendant ever pressed a request for a ruling.

Appellant cites in his Opening Brief no case in support of his position. In his First Traverse Brief and his First Supplemental Brief, he cites Riggs v. United States, 280 F. 2d 750 (5th Cir. 1960). There, in a holding that is pure dictum, the court stated that if the district court actually failed to exercise its discretion in that respect (whether to grant or deny a motion for mistrial) a vacation or reversal of its judgment would be required.

The court of appeals in Riggs, supra, specifically states the two errors upon which it reversed the trial court. They were:

"First, the government produced two surprise witnesses [who testified to a transaction] known to the government, [which] was in no way referred to among the overt acts of the alleged conspiracy or in any other way in any count of the indictment." (280 F. 2d at 753.)

The court denied the motion for mistrial under an erroneous belief in the law. "Assuming that the court did exercise its discretion to deny the motion for mistrial, we find no abuse of discretion." ( Id. at 754.)

Second: proof was introduced "that another jury had recently found defendant guilty of a different but unspecified felony," which case was then on appeal and not final. (Ibid.) "For the errors indicated, the judgment is reversed and the cause is remanded." ( Id. at 755.)

The trial court should have exercised its discretion, and appellant should have made a record if it refused to do so. But the court was never again asked, and never refused, to exercise its discretion. On the whole record, the error alleged is so insignificant that it could be held error, we have no hesitation in characterizing it as harmless error (Rule 52(a), Fed. R. Crim. P.), and we do so hold.

(8) Certified copies.

The next error urged by appellant is the introduction of Government's Exhibits 21, 22 and 23.

Appellant refers to Exhibit 21 as a "Certificate from the Department of the Navy." (R. T., p. 305, discloses that the Certificate from the Secretary of the Navy was Ex. 23.)

(a) Exhibit 23 states the enlisted personnel diaries of the U. S. S. Piedmont (Ad-17) fail to disclose any diary entries pertinent to the on-board status of Robert E. Morgan. It was certified by Vice Admiral Loomis, Chief of Naval Personnel, as "a true statement of the non-service of Robert E. Morgan as shown in the personnel diaries of the U. S. S. Piedmont (AD-17) during the year 1959. . . ." There was a further certification, under seal, for the Secretary of the Navy, by the Acting Judge Advocate General to the authenticity of the Chief of Naval Personnel's certificate.

Exhibit 13 discloses that the Robert E. Morgan, for the year 1959 (when Robert E. Morgan was actually confined in a penal institution), claimed income received in a certain amount, on Form 1040A, and that the employer he named was "U. S. S. Piedmont AD-17 U. S. Navy."

(b) Exhibit 22 was a group of photostatic copies of applications (Form SS-5) for social security numbers, or for changes in social security numbers, then in the files of the Department of Health, Education and Welfare of the United States .

They were certified as true copies under the seal of that Department, and by the Secretary to the Associate General Counsel of that agency, "pursuant to the provisions of §623d, Chapt. 11A, Title 5, of the United States Code, and the authority vested in me by the Secretary (24 F. R. 8612). . . ."

When Morgan allegedly filed his false Form 1040A for 1959 income tax refund, he gave as his Social Security Number 299 28 3253. Exhibit 22 disclosed that Social Security Number 299 28 3353 had been issued in 1951 to one Harry Jack Blasberg of Cleveland , Ohio .

Exhibit 22 disclosed the social security number used to obtain a 1959 refund (Ex. 15) was not issued to Michael Jason (an elleged employee of Sunset Roofing Company of Los Angeles, California), but belonged since 1952 to Maggie V. Gantt of New York, N. Y.

Exhibit 22 also disclosed that the Social Security Number 107 20 4436 claimed for William T. Adams, allegedly employed by Anderson Lumber Company and Spaulding Tire Company in Los Angeles, California (Ex. 16), was issued to Jerome Sidney Berg of Brooklyn, N. Y. All other social security numbers referred to in Exhibit 22 were material to some evidence and issue in the case.

(c) Exhibit 21 was a certificate from the Director of Department of Employment of the State of California , and disclosed that none of the various alleged employers named in the alleged false refund claims were ever registered as employers under the California Unemployment Insurance Code, namely:

Chavez Roofing Development Co., Los Angeles

Sunset Roofing Company, Los Angeles

Anderson Lumber Co., Los Angeles

Spaulding Tire Company, Los Angeles

Anderson Finance Company, Los Angeles

Again, all the alleged employment by these alleged employers of alleged employees claiming refunds was material to some evidence and issue in the case.

A weak objection was made by appellant. (R. T. p. 306.) Reference is made in his briefs to Communist Party v. Board, 254 F. 2d 314 (D. C. Cir. 1958). It is not in point.

All such documents were clearly admissible either by Rule 44(b) or Rule 44(a)(1) of the Federal Rules of Civil Procedure, and Rule 27 of the Federal Rules of Criminal Procedure.

IX Appellant urges there was insufficient evidence to convict him. It would be rare to find a case where more evidence of appellant's violation of law exists. The evidence is ample to convict.

X Appellant urges that returning the jury for further deliberations, after it had found a verdict on one count, but not on the second, was error. (Cf. R. T. p. 455 et seq.)

No objection was made at the time by appellant. (Rule 30, Fed. R. Crim. P.) The court was careful to indicate he was not forcing a verdict for or against the defendant. He committed no error.

XI Appellant now objects that the trial judge advised the jury he had granted a verdict of acquittal to appellant as to Counts I, II and V.

The court properly instructed the jury on this matter. (R. T. p. 435, line 22 to p. 436, line 22.) The entire instructions, taken as a whole (R. T. pp. 421 443), were fair to a whole (R. T. pp. 421-443), were fair to fact the defendant made no objection when this subject was touched upon, and had no objection to make when all instructions were finished. (R. T. p. 443, lines 2-5.) Appellant did ask for an "accomplice" instruction, which the court felt was unnecessary, but gave it. Again the appellant, then defendant, stated he was satisfied. (R. T. p. 444.)

We find no error, but if any existed, it was waived. (Rule 30, Fed. R. Crim. P.)

XII Appellant urges the admission of Exhibit 11, a certified copy of a lost or misplaced document, was error.

Unless there was a failure to satisfactorily identify the document, "the reproduction . . . is as admissible in evidence as the original itself, in any judicial . . . proceeding, whether the original is in existence or not. . . ." 28 U.S.C. §1732(b).

The court"s ruling admitting the photostatic copy of government form 1040A (Ex. 11) was correct.

XIII Appellant urges that the court permitted the government to reopen the case so as to prove venue, after the defendant's motion to acquit. This is clearly a matter involving judicial discretion. It was not abused, and we find no error. Haugen v. United States , 153 F. 2d 850 (9th Cir. 1946).

Appellant urges the procedure allowed is "like allowing the government to reopen their case after a verdict of not guilty." That involves a verdict of acquittal, and hence jeopardy. This does not.

XIV Appellant urges the denial of his motion for a new trial was error, because of all the errors hereinbefore detailed, i.e., the "totality of errors." We have found no error sufficient to reverse, and find no totality of harmless error which calls upon us to set aside a fair conviction.

Appellant's Supplemental Brief raises three other alleged errors not touched upon above, which we should mention.

XV Appellant asks the judgment of conviction be reversed because the court "should have furnished appellant with a copy of instructions it was going to give the jury."

Rule 30, Fed. R. Crim. P., requires the judge to advise counsel what instructions they have proposed that he will not give, but nothing more. No copy of instructions is required to be given anybody by the judge. We find no error.

XVI Error is charged that the witness Steinhoff was not called. He was available, if living, to either side. Appellant asserts the government was required to call him, but cites no case to support his theory, and we know of none.

XVII Appellant claims he was charged under the wrong statute (18 U. S. C. §287), and that he should have been charged under 18 U. S. C. §1001. The two sections define crimes, cf. United States ex rel. Marens v. Hess, 317 U. S. 537, 540, n. 2 (1943), and the government has the right to sue under any statute under which it thinks it can secure a conviction. Again, appellant cites no cases in support of his position. We find no error.

Finding no error in any of the matters raised by appellant in No. 19,293 we affirm the conviction on each count.

^* Russell E. Smith, United States , District Judge, District of Montana, sitting by designation.

¹ Although Mr. Cragen protested in these hearings, and by affidavit filed November 4, 19 60 that he was not prepared to go to trial, there is no showing that any aspect of appellant's defense had to be neglected. The one persistent object of pretrial preparation stated by appellant and Mr. Cragen was to get prison records and prior statements of the prison convicts who were involved in the case (see motions filed October 24, 19 60 and November 4, 19 60). The records show that numerous subpoenas duces tecum and writs of habeas corpus ad testificandum were issued on behalf of appellant, and that the Folsom Prison education supervisor, five prison inmates and three jail inmates were called as defense witnesses in addition to the five prison inmates and two prison officers called and cross-examined as government witnesses. Professor Paul L. Kirk was also called as an expert handwriting witness for defendant at the government's expense. (Appellee's Brief, No. 17245, p. 19.)

² Davenport also, at this time, seeing his former wife in the elevator, and the elevator door closing, hit the wall and "glass" in the corridor, cutting his hand. When the trial judge asked him about how this event occurred, Davenport said:

"I walked out of this courtroom and I recognized a person that I saw in the hallway and I got mad at myself for putting this particular person in the predicament that I had put them in (sic) by my false claim I had made on income tax returns, so I just blew my stack."

"THE COURT: You were mad at yourself?

"DEFENDANT DAVENPORT : Yes, sir.

"THE COURT: What did you do?

"DEFENDANT DAVENPORT : I just turned around and hit the wall and that didn't satisfy me, and I hit it again, and consequently, I hit a glass." (R. T., Vol. 7, p. 318.)

Presumably the person seen by Davenport was his former wife.

³ A motion to sever "is addressed to the discretion of the District Judge. Such a motion is rarely granted." Davenport v. United States , 260 F. 2d 591, 594 (9th Cir. 1958).

Here "No very strong or cogent reason" for severance was urged. Dowdy v. United States , 46 F. 2d 417, 421 (4th Cir. 1931), Shockley v. United States , 166 F. 2d 704 (9th Cir. 1948), Cert. den. 334 U. S. 850 (1948).

⁴ "Appellant's motion for:

Record on appeal:

1. Reporter's transcript of oral proceedings for September 22, 19 60 and September 23, 19 60

Filed with Supplemental Record of December 21, 19 66.

2. All Government exhibits

Contains all Government exhibits which were introduced in evidence, except the following:

No. 3. Escarrega tax return--1957

No. 4. Escarrega tax refund check--1957

No. 6. Holley tax refund check--1957

No. 29. Tinsley 1956 tax return

No. 90. Appellant's prison correspondence record.

3. All defendant's exhibit (sic)

Are in record on appeal, except for Defendant's Exhibit J, which was not received in evidence.

4. All written motions filed

On file in record on appeal.

5. All exhibits pertaining to Counts I and II

All defendant's exhibits are on file except No. J which was not received in evidence.

Government exhibits pertaining to Counts I and II which were received in evidence were Nos. 1, 2, 7, 10, 11, 12, 13, 14, 35, 36, 37, 63, 64, 65, 78, 79, 81, 84, 87, 88, 89, 90 and 91. All of these are in the record on appeal, No. 90, as explained above.

6. September 8, 19 60, writ of habeas corpus ad prosequendum

Supplied on January 30 19 67 by appellee. This writ was not part of the record in this case, but in a preceding indictment.

Appellant's motion for:

Record on appeal:

7. September 15, 19 60, writ of habeas corpus ad prosequendum

No such writ discoverable.

On September 9, 19 60, the District Court ordered the Warden to produce appellant again on September 15, 19 60, which would indicate no writ necessary or issued.

8. February 6, 19 61, writ of habeas corpus ad prosequendum

No such writ issued.

This was the return date for the writ issued January 17, 19 61, which is in the record on appeal."

(Appellee's Brief, No. 17,245, pp. 36-37.)

⁵ Ex. 14, p. 317, to show intent only.

Ex. 15, p. 318, to show intent only.

Ex. 16, p. 318, as to Count II.

Ex. 13, p. 319, to show intent only.

Ex. 12, p. 320, to show intent only.

Ex. 7, p. 321, to show intent only.

Ex. 8, p. 321, to show intent only.

Ex. 11, p. 324, to show intent only.

 

 

[61-2 USTC ¶9746]Roger S. Bandy, Appellant v. United States of America , Appellee

(CA-8), U. S. Court of Appeals, 8th Circuit, No. 16,479, 296 F2d 882, 11/15/61, Affirming unreported District Court decision

[1954 Code Sec. 7206]

Fraud: False claims for tax refunds: Fair trial.--An indigent defendant indicted for filing false claims for income tax refunds was not denied a fair trial on the grounds of lack of time to secure a handwriting expert and denial of a motion to subpoena witnesses. The defendant's counsel did not call a handwriting expert and, after the court offered to provide one at Government expense, made no effort to secure one, allegedly because there was no time before trial, of which defendant and his counsel had due notice and which they had requested to be held at an early date. The request to subpoena witnesses, who resided many miles away, was made after the Government had rested its case, and after there had been ample time to prepare for trial and to subpoena witnesses.

Charles A. Seigel, 722 Chestnut St. , St. Louis , Mo. , for appellant. John O. Garaas, United States Attorney, Fargo , North Dakota , for appellee.

Before VOGEL, VAN OOSTERHOUT and BLACKMUN, Circuit Judges.

[On Remand]

VOGEL, Circuit Judge:

On September 10, 19 59, Roger S. Banda, appellant herein, was convicted by a jury on all counts of a six-count indictment charging violations of 18 U. S. C. A. §287 in that he unlawfully, under fictitious names, presented to the Treasury Department of the United States, through the District Director of Internal Revenue for North Dakota, fraudulent claims for refunds of income taxes. Bandy attempted to appeal from his conviction and sentence and asked leave to proceed in forma pauperis. The trial judge allowed him to file his notice of appeal without payment of costs but refused to allow him to proceed further in forma pauperis, certifying that the appeal was not taken in good faith. In Bandy v. United States, 8 Cir., 1959, 272 F. 2d 705, this court appointed counsel to represent Bandy in relation to his motion. Therein we stated, at page 706:

"In the responsibility thus imposed of assisting appellant to make manifest the basis of this claim that the district judge was not warranted in certifying that the appeal was not taken in good faith, it is hoped that counsel may, with the co-operation of the United States Attorney, be able to work out an agreed statement, such as was suggested by us and effected in Weber v. United States, 8 Cir., 254 F. 2d 713; Id., 8 Cir., 256 F. 2d 119, 120."

Counsel so appointed (on December 10, 19 59) was Mr. Ralph B. Maxwell, of West Fargo , North Dakota , who had served as court-appointed counsel for appellant at the time of his trial before a jury in District Court. Subsequently, and on December 21, 19 59, this court on its own motion appointed Mr. Francis J. Magill, of Fargo , North Dakota , to assist Mr. Maxwell in representing Bandy. Thereafter an agreed statement of the case was worked out through counsel, submitted and filed with this court. Based upon that agreed statement and the record and the briefs of counsel, this court in Bandy v. United States, 8 Cir., 1960 [60-1 USTC ¶9426], 278 F. 2d 214, 216, held that the certificate of the trial judge was not arbitrary, unwarranted or erroneous and dismissed the appeal as frivolous.

[Error in Agreed Statement]

On petition for writ of certiorari to the Supreme Court of the United States, it was discovered that an error had occurred in the "Agreed Statement of the Case" entered into by counsel, in that it was indicated in the agreed statement that at the arraignment of the appellant on August 12, 19 59, at which time a plea of not guilty was entered as to all counts, the trial court had ordered that defense counsel could select and employ a handwriting expert of his own choice at government expense. The date was incorrect. In truth and in fact it was not until September 2, 19 59, at a hearing on Bandy's motion for discovery and inspection of government documents, etc., that the trial court stated to Bandy's counsel that he would authorize the employment of a handwriting expert of Bandy's own selection at government expense "and an order will be made when one is selected." This was six days before trial, which had been set for September 8, 19 59. On September 4, 19 59, the trial court formally executed an order providing that counsel for Bandy could select and employ at the expense of the United States a handwriting expert of his own choice and directing the Marshal to pay the expense thereof. Based on this error in date and on other assertions of Bandy, the Supreme Court in Bandy v. United States, 1960, 364 U. S. 477, 81 S. Ct. 244, 5 L. Ed. 2d 34, ordered

"The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. In light of the circumstances pointed out by the Government surrounding the alleged inability of the petitioner to secure the services of his own handwriting expert, the error which occurred in the 'Agreed Statement of the Case' and which was repeated by the Government in its brief and the Court of Appeals in its opinion, the failure to subpoena witnesses with respect to petitioner's alibi, and the dispute which arose with respect to representation of petitioner by his appointed counsel on appeal, the judgment is vacated and the cause is remanded to the Court of Appeals for a hearing of the appeal."

We have proceeded with a hearing on the appeal and in connection therewith appointed Mr. Charles Alan Seigel of St. Louis , Missouri , to prosecute the matter in Bandy's behalf.

The case has been presented here on the original failes, a complete transcript of the testimony taken during the trial and at the sentencing of the appellant, the briefs of counsel and oral arguments.

On this appeal there are presented and argued the following claimed errors:

1. The court having determined that it was necessary for appellant to have the service of a handwriting expert in order to properly conduct the defense of his case, and in the interest of justice, and appellant having been convicted solely on the opinion testimony of the government's handwriting expert, appellant was deprived of a fair trial and of due process of law by not being allowed sufficient time or opportunity by the court to retain the services of his own handwriting expert.

2. The court in denying appellant's request to subpoena witnesses to support his defense of alibi deprived appellant of a fair trial and of due process of law.

[Statement of Facts]

On June 2, 19 59, Roger S. Bandy was arrested in New York City upon a complaint issued in North Dakota charging the filing of false and fraudulent claims for income tax refunds. At the time, Bandy was also being sought as a parole violator. On June 5, 19 59, Bandy was taken before a United States Commissioner where he waived examination and bail was fixed at $10,000. On June 16, 19 59, Bandy was taken before a United States District Court in Brooklyn , New York , and his removal to the District of North Dakota was ordered. He arrived in Fargo , North Dakota on July 11, 19 59, and for want of bail was placed in the Cass County Jail. Bandy was an indigent defendant. On July 17, 19 59, Ralph B. Maxwell, a former United States Attorney and former Assistant United States Attorney, was appointed to represent him. On July 31, 19 59, a grand jury returned a six-count indictment, Count I of which charged that on or about January 14, 19 59, Bandy, in violation of 18 U. S. C. A. §287, had made and presented for payment to the District Director of Internal Revenue at Fargo a claim against the United States in the amount of $193.41, in the form of a fraudulent income tax return falsely claiming a refund when he knew that he was not entitled to such refund. The other five counts were substantially identical with Count 1 except as to amounts and dates. All of the offenses were alleged to have been committed in January, 1959. Arraignment was had on August 12, 19 59, Bandy entering a plea of not guilty as to all counts. Bail was reduced to the amount of $7500. It was not furnished. At the time of arraignment counsel for Bandy moved for a prompt trial, whereupon the District Judge ordered a special jury term of court for the purpose of trying Bandy, directing that it commence on September 8, 19 59, at Fargo , North Dakota .

[Motion for Discovery and Inspection]

On August 26, 19 59, Mr. Maxwell filed in behalf of Bandy a motion for discovery and inspection, requesting access to and right to copy and photograph various records, documents and writings and specimens of Bandy's handwriting in the possession of the United States that would be used as a basis of expert testimony at the trial. The accompanying affidavit, executed by Bandy, expressed the belief that the government's case would be based on testimony of one or more handwriting experts and that he was

"* * * entirely destitute and without any funds whatsoever to employ handwriting experts of his own; that he will therefore have to rely entirely upon cross-examination and impeachment of the government's handwriting experts whose testimony will be adverse to him; that in order to adequately prepare for such cross examination it is essential and material that the Defendant know well in advance of trial, the handwriting specimens that will be used, the charts and diagrams that have been prepared to be used against him and the substance of any reports and conclusions of any handwriting experts and reasons therefor; that the lack of time to develop properly the course of cross examination of the said experts (which under defendants (sic) financial circumstances will have such immense importance in the defense of this case) will unfairly penalize Defendant and deprive him of a fair trial; * * *."

No request was made under Rule 17(b), Federal Rules of Criminal Procedure, 18 U. S. C. A., or otherwise for a handwriting expert at government expense. No request was made to subpoena any other witnesses.

[Employment of Handwriting Expert Authorized]

At the hearing on Bandy's motion for discovery and inspection on September 2, 19 59, the trial court inquired of Mr. Maxwell in the presence of the appellant Bandy

"* * * whether he considered the assistance of a handwriting expert essential to the defense of the Defendant, to which said Counsel replied in the affirmative, but stated the Defendant had no funds with which to amploy (sic) such an expert."

The trial court thereupon advised Mr. Maxwell and appellant that he would authorize the employment of a handwriting expert of the appellant's own selection at government expense. A formal order to such effect was entered on Friday, September 4, 19 59. At this point it should be noted that the trial court's unsolicited offer to allow the employment of a handwriting expert at government expense was made on Wednesday morning, September 2, 19 59, that the trial had been set (early at the request of the appellant) on the following Tuesday, September 8th, which was the day after Labor Day.

Trial was commenced on the morning of September 8, 19 59. The local District Director of Internal Revenue identified the six tax returns in question and testified that a check had been issued to each of the persons named in the returns and mailed to the addresses there shown; that in each case check was returned to the Fargo , North Dakota office unclaimed. The government then introduced four writings identified as those of the appellant, Government's Exhibits 7 through 10, and called a handwriting expert, Clarence E. Bohn, who testified that in his opinion the four writings and the longhand portions of the six tax returns, Government's Exhibits 1 through 6, had all been written by the same person. After the cross examination of witness Bohn the government rested.

[Request to Subpoena Defense Witnesses]

Defense counsel waived his opening statement and called as his first witness the local District Director of Internal Revenue, who had previously testified for the government. He stated that the envelopes in which Government's Exhibits 1 through 6 (the tax returns) had been received were destroyed and they did not know from what area the envelopes had been mailed. Thereupon, the defense offered in evidence letters, Exhibits 13, 14, 15, 16, 17 and 18, from former employers of Bandy in the New York City area. The purpose was to show that he lived and worked there at the time of the filing of the false returns in North Dakota and that he was there continuously thereafter up to the time of his arrest on June 2, 19 59. Government's objections to the exhibits were sustained, whereupon Attorney Maxwell requested a recess so that an opportunity could be had to subpoena at government expense the six witnesses, all from the New York City area, to establish the whereabouts of Bandy during the times the returns were filed in North Dakota . The court thereupon stated:

"Well, I will tell you I honestly think at this state of the trial it is an unreasonable request for the defendant to make because he has long been aware that this case has been coming up, and if this request had been made earlier and certainly if I thought it were material, I would direct subpoenas to be issued and the people you speak of brought here at Government expense; but I am not at all satisfied as to what possible materiality it could make in the present state of the record.

"Of course, as Mr. Maxwell says, counsel is managing his own lawsuit, I understand that, but this is a request I think the defendant should have made earlier."

At this point Bandy himself asked permission to be heard and stated:

"These defendant--witnesses for the defense would have been called, it was my understanding, provided I got on the stand--through the District Attorney--I got on the stand, he would accept these. Well, the fact is, I said I didn't know whether I would get on the stand or not; and I have stipulated all along that I would request these people if necessary to come and testify in my defense, and it has been known in the court circles and the District Attorney let me know that he would accept them providing that I would appear as a witness against myself.

The Court: Mr. Bandy, do you recall, were you in court the last time the Court offered you the use of an expert of your own choosing at the expense of the Government?

Defendant Bandy: Yes, your Honor.

The Court: That wasn't given at your own request, was it?

Defendant Bandy: No, sir.

The Court: If you had wanted subpoenas issued at that time you know perfectly well you would have gotten them?

Defendant Bandy: Yes, sir.

The Court: Why didn't you make the request at that time?

Defendant Bandy: Because I was not informed of these facts where it would be denied to me later on.

The Court: What facts would be denied to you?

Defendant Bandy: Wanted to be a witness against myself, that these--

The Court: (Interrupting) Mr. Bandy, whether you decide to testify or not is entirely a matter of your personal choice. It isn't even a matter which the Government can be permitted to comment on, nor can the jury take it into consideration in any way, shape or form. You have the right to not take the stand if you choose not to take it.

Defendant Bandy: Your Honor, my understanding, you asked why we failed to produce these witnesses previously or ask the Court there to produce them at Government expense. I am explaining the reason why we have failed to, because it was through the understanding that the District Attorney made it available to me, that providing--or condition providing that--let me testify against myself, those would be accepted.

The Court: Well, of course, I don't know what understandings were made between defense counsel and attorneys for the Government or between you and the attorneys for the Govenment. Apparently you don't care to disclose that?

Mr. Vogel: [United States Attorney] I don't mind commenting on it, your Honor. What he says is substantially true. One condition I made was if Mr. Bandy got on the stand and testified he was in those places at those times, I would stipulate that the people named in those letters would so testify, if called; but I said I would not accept that and I would not stipulate to those things as a substitute for Mr. Bandy's testimony.

The Court: Is that correct, substantially?

Defendant Bandy: It is correct as I did not make it understood whether or not I would testify.

Mr. Vogel: I didn't ask you to. I merely stated my position.

The Court: What the United States Attorney says, if the Court understands, he would and he would yet agree that the contents of these exhibits that have been marked for identification as 13, 14, 15, 16, 17 and 18 would be admitted provided you would take the stand and testify if you know anything about it.

Mr. Maxwell: That's correct.

Mr. Vogel: That is a concession I need not have made at all, as a matter of fact.

Defendant Bandy: It was our understanding on that particular concession, that through conference with my attorney I informed him all along that the facts leading upon to and the developments during the trial up to the time that the prosecution rested their case, that would have a great bearing upon whether or not I would testify, and they were asking me to testify something, the facts I don't even know--don't even exist.

Mr. Vogel: Your Honor, I made no request to the defendant to testify. I merely stated what I would do if he testified and what I would do if he did not testify so far as these exhibits were concerned. I haven't asked and don't intend to ask him to testify or not to testify."

Bandy's motion for a recess and the subpoenating of the six witnesses from New York was denied because belatedly made and also because the testimony the witnesses would offer was irrelevant and immaterial. Bandy's presence in North Dakota at the time of the mailing of the false claims was held not to be essential. The postal addresses used could have been obtained, and the claims for refund could have been mailed, from New York City or anywhere else he happened to be.

At the trial the defendant did not call a handwriting expert of his own, and he did not testify in his own behalf.

The jury found the appellant guilty on all six counts.

After the trial and conviction and during the argument on Bandy's motion for a new trial, the following occurred:

"The Court: Mr. Maxwell, may I interrupt you just a moment? Would you care to indicate why you did not accept the Court's offer to provide an expert handwriting man at the expense of the Government?

Mr. Maxwell: We didn't have time to accept that offer, your Honor. There are no handwriting experts in this immediate area. The closest I know of is in Minneapolis .

The Court: Was any effort made to secure one?

Mr. Maxwell: The time element was such that it didn't appear that there would be any point in trying to. Now, the Court stated that the trial would go on according to schedule regardless of the fact that the Court agreed that we could have one and the Government would pay for it.

The Court: Pardon me, Mr. Maxwell. What I wanted to make clear was the Court offered this handwriting expert, the defendant did not ask for it.

Mr. Maxwell: Yes, your Honor, I understand that."

[Fair Trial]

We consider first the claim that Bandy was deprived of a fair trial and of due process of law by not being allowed sufficient time or opportunity to retain the services of his own handwriting expert. The Sixth Amendment provides:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * *; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence."

Implementation thereof is found in Rule 17(b) of the Federal Rules of Criminal Procedure, 18 U. S. C. A.:

"Indigent Defendants. The court or a judge thereof may order at any time that a subpoena be issued upon motion or request of an indigent defendant. The motion or request shall be supported by affidavit in which the defendant shall state the name and address of each witness and the testimony which he is expected by the defendant to give if subpoenaed, and shall show that the evidence of the witness is material to the defense, that the defendant cannot safely go to trial without the witness and that the defendant does not have sufficient means and is actually unable to pay the fees of the witness. If the court or judge orders the subpoena to be issued the costs incurred by the process and the fees of the witness so subpoenaed shall be paid in the same manner in which similar costs and fees are paid in case of a witness subpoenaed in behalf of the government."

Counsel for the appellant has cited to us cases which he believes are supportive of appellant's contention that he was deprived of his rights thereby granted. We have considered them all. We agree with United States v. Fox, D. C. S. D. N. Y., 1937, 19 F. Supp. 463, that handwriting experts are included under Rule 17(b), Federal Rules of Criminal Procedure, 18 U. S. C. A. Had Bandy employed a handwriting expert, his services would have been paid for in accordance with the order of the District Court.

[Cases Distinguished]

Bridwell v. Aderhold, D. C. N. D. Ga., 1935, 13 F. Supp. 253, affirmed Johnson v. Zerbst, 5 Cir., 1937, 92 F. 2d 748, certiorari granted, 303 U. S. 629, 58 S. Ct. 610, 82 L. Ed. 1089, reversed Johnson v. Zerbst, 1938, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, is entirely concerned with whether or not the petitioners competently and intelligently waived their right to counsel and whether or not habeas corpus was an available remedy under the circumstances. There are no parallels here.

Young Bark Yau v. United States, 9 Cir., 1929, 33 F. 2d 236, concerned a deportation proceeding, in which appellant's application for a dedimus protestatem to take the testimony of witnesses in China was denied. The application stated that absolutely unavoidable circumstances made it impossible for the appellant to establish his citizenship excepting by the testimony of witnesses who were then in China . The names and residences of the witnesses were set forth. That to which they would testify was alleged. The showing was in no wise controverted by the government. The government merely interposed a demurrer to the application, thus admitting the facts contained therein. In reversing, the court stated, at page 237:

"* * * An American citizen, threatened with deportation because of alienage, has at least as much right to take depositions to establish his status as has any other litigant in a court of justice where civil rights are involved, and we are constrained to hold that the court below abused its discretion, and that the refusal to grant the application was prejudicial error."

We find no parallels there with the instant case.

The only other case cited by appellant that warrants discussion is Paomi v. United States, 3 Cir., 1922, 281 F. 801. There the sole question was

"* * * whether the trial court abused its discretion in refusing the motion of the defendants' counsel for a continuance on the single ground of insufficient time within which to procure the attendance of witnesses by process of subpoena." 281 F. at 803.

There two defendants, with others, were indicted on June 6, 19 21, for violations of the Harrison Anti-Narcotic Act. There was testimony that on June 16th notice was mailed to counsel for defendants that the case would come up for trial on June 22nd. On the morning of that day the case was called. The defendants were present but their counsel was absent. The jury was drawn and sworn and the case continued until the afternoon to give defendants an opportunity to find their counsel and procure the attendance of witnesses. Counsel appeared in the afternoon and requested a continuance in order to procure witnesses, which motion was denied. The defendants were forthwith tried and convicted. A motion for a new trial was made, based, inter alia, on the grounds that defendants had not been afforded a fair trial inasmuch as neither they nor their counsel had been advised of the trial in time to prepare their defense or to obtain subpoenas to procure the attendance of witnesses. In reversing and ordering a new trial, the Circuit Court stated.

"Under the Sixth Amendment to the Constitution the defendants were entitled to have the assistance of counsel for their defense and also to have compulsory process for obtaining witnesses in their favor. To one accused of crime these are very substantial rights. Yet they are barren if given at a time when assistance by counsel in issuing subpoenas is impracticable and when service of subpoenas and the appearance of witnesses is impossible. Have these rights been withheld from the defendants in this case? That depends upon whether the trial court abused its discretion in denying their motion for a continuance. The law governing federal courts on applications of this kind is well settled. It is that such motions are addressed to the discretion of the trial court, and its action is not subject to review, unless it be clearly shown that the exercise of such discretion was abused. Isaacs v. United States , 159 U. S. 487, 489, 16 Sup. Ct. 51, 40 L. Ed. 229, Myers v. United States , 223 Fed. 919, 139 C. C. A. 399; Younge v. United States , 223 Fed. 941, 139 C. C. A. 421." 281 F. at 803, 804.

The principles enunciated are not in dispute. From the record in Paoni it would seem clear that the trial court had abused its discretion in failing to grant the continuance, and, accordingly, a new trial was entirely justified.

But Paoni is distinguishable from the case at bar. There the defendants had witnesses who would testify. Here there is a positive showing that the appellant had made no effort to secure the services of a handwriting expert. In Paoni, the issue was raised as to whether notice as to the date of trial had been actually given in time for the defendants to procure their witnesses. Here, there is no dispute that both the appellant and his counsel had been given due notice as to the date of trial, and, in fact, had made a motion for an early trial which the trial court granted. In Paoni a request for a continuance was made. Here, the record is bare of any such request. The only similarity in issues between the cases is in whether there was ample time to prepare a defense. In answer to that contention in Paoni the court stated:

"* * * Obviously there is nothing in this, for counsel had from April 11 to June 22 in which to prepare for trial and had actually prepared for trial by finding two witnesses, who, had they been summoned, would have appeared and testified." 281 F. at 803.

Here, too, there was ample time (from July 17th until September 8th) to prepare for trial. During that time some effort could have and should have been made to obtain the services of a handwriting expert had one been desired. No attempt was made to comply with Rule 17(b), Federal Rules of Criminal Procedure, 18 U. S. C. A., which provides, among other things, that a motion or request for a compulsory witness should be supported by an affidavit stating the name and address of the witness and the testimony which he is expected to give and the materiality of such testimony.

[ Opportunity to Secure Witnesses]

Nevertheless, appellant here contends that his failure to obtain the handwriting expert was because he was not informed until September 2nd that such would be available, and that the formal order granting him permission was not made until September 4th. He states that a request for continuance would have been to no avail because the court stated that the trial would commence as scheduled on September 8th, the day following the Labor Day weekend. In short, the contention is that Bandy had no opportunity to secure the witness he desired.

The record rebuts appellant's contention. Mr. Maxwell was appointed by the court on July 17, 19 59, almost two months before the date of trial. This court takes notice that Mr. Maxwell is an able, experienced and conscientious attorney. For a time he was United States Attorney for the District of North Dakota. For several years prior thereto he had been an Assistant United States Attorney. Subsequent to his service as United States prosecutor he has been engaged in the trial of both criminal and civil cases. To suggest that Mr. Maxwell did not know Bandy's rights is to ignore his training and his years of experience. To suggest that he purposely waived these rights to Bandy's detriment is to refute a well-earned reputation as a conscientious practitioner before this and other courts.

Bandy himself is no neophyte when it comes to criminal law. In 1956, in California , he entered pleas of guilty to charges of filing false claims for income tax refunds similar to the charges for which he was tried herein. On his plea of guilty he was sentenced to five years, subsequently reduced to three years. On April 28, 19 58, he was placed on parole and went to Decatur , Illinois . At the time of his arrest in New York he was wanted as a parole violator, having left Decatur without permission and having failed to contract his parole officer during a period of eleven months subsequent to his release.

With reference to this conviction on pleas of guilty in 1956, Bandy was questioned by the court at the time sentence was imposed herein.

"The Court: How did you conceive this scheme to file these false claims for tax refunds, Mr. Bandy?

Defendant Bandy: Through my work with the Navy, sir, disbursing clerk.

The Court: Do you have any idea, could you give me a rough idea how many false claims for tax refunds you have made?

Defendant Bandy: I have made exactly the 22 returns that I had made there on the prior conviction."

During the pendency of the original appeal in this court Bandy personally filed an affidavit of poverty and a motion setting forth some 44 claimed errors in the trial of his case. Eighteen of them had to do with his disagreement with his court-appointed counsel as to the manner in which his case should have been tried. Herein he also submitted a "Reply Brief of Appellant Pro Se". Seemingly Bandy is neither inexperienced nor lacking in intelligence or ability.

[ Opportunity to Secure Handwriting Expert]

As to opportunity to secure an expert, both Bandy and his counsel know from the very beginning that the government would have to rely upon the testimony of handwriting experts to establish that Bandy wrote the alleged claims for refund. On August 26, 19 59, Bandy, through his counsel, filed an elaborate and detailed motion for discovery and inspection supported by a detailed affidavit by Bandy asking access to specimens of Bandy's handwriting that were in the possession of the government. At that time they made no request for a handwriting expert of their own. There are no grounds for the assumption that this was because the thought had not occurred to Bandy or his counsel or because they did not think such a request would be granted and there was, of course, ample time to secure an expert had one been desired.

On September 2, 19 59, at the hearing on the discovery motion made August 26th, the trial judge, apparently wondering why the assistance of a handwriting expert had not been requested, made inquiry himself and informed Bandy and his counsel that he would authorize the employment of such expert at government expense. The trial had been set for September 8th at a special term of court called for the specific purpose of trying Bandy pursuant to Bandy's request for an early trial. After trial and Bandy's conviction and during a hearing on Bandy's motion for a new trial, the trial judge, apparently curious as to why a handwriting expert had not been called, made inquiry. He was told by counsel that:

"We didn't have time to accept that offer, your Honor. There are no handwriting experts in this immediate area. The closest I know of is in Minneapolis .

Minneapolis is approximately 250 miles from Fargo . Telephone and transportation facilities of every kind are readily available. No effort of any kind was made to obtain a handwriting expert, although when the trial judge had made the offer there remained six days before trial. Additionally, no request for delay was presented, although Bandy and his counsel had no hesitancy, in the middle of the jury trial which followed, in asking for a recess so that they could subpoena six witnesses who resided in New York , some 1200 to 1500 miles away. In light of all the circumstances, it becomes obvious that the trial judge's questions with regard to whether the appellant wanted a handwriting expert and later as to why such expert was not used could call only for non-damaging answers. To disclaim any intent or desire of using a handwriting expert in answer to either query would have amounted to admitting that such expert would be or would have been of no value to the defense. As the time of the trial court's last inquiry, Bandy was asking for a new trial. These circumstances plus the fact that in his motion for new trial this point was not mentioned or listed among the 12 assignments of error lead us to what we consider the only reasonable inference: That the error here charged was no more than an after-thought. It seems obvious that there was no desire for a handwriting expert and certainly no valid effort was ever made to obtain one, although sufficient time and opportunity were afforded.

[Denial of Request to Subpoena Witnesses]

Bandy's next claim of error is in the denial of his request for a recess and to subpoena witnesses in support of an alibidefense. The case was being tried in Fargo , North Dakota . The six witnesses whom the appellant wanted to subpoena resided in the State of New York . Bandy's request for continuance and the right to subpoena the witnesses at government expense was made after the government had rested and the defense had opened its case. It should be remembered that the nature of the charges herein and the manner in which the government would be forced to establish its case had been fully clear to Bandy and his counsel long before trial. Nothing came as a surprise.

After the close of the government's case, appellant called the District Director of Internal Revenue for the District of North Dakota and through him established that the envelopes which had contained the fraudulent claims for refund had been destroyed and, accordingly, there was no way of ascertaining the place from which the applications for refund had been mailed. Apparently this was done with the idea that thereby there was created a presumption that the fraudulent claims had been mailed in North Dakota . Counsel for Bandy then offered in evidence six letters from former employers of Bandy, from which he apparently hoped to establish that Bandy was in the vicinty of New York City in January 1959 when the fraudulent claims for refund were received in North Dakota . The letters had previously been discussed by Bandy and his counsel with the United States Attorney. The latter had agreed that if Bandy would take the stand and testify that he was in the placed indicated in the letters at such times, that he would stipulate that the people who wrote the letters would so testify if they had been called. Bandy did not testify in his own behalf and, accordingly, the United States Attorney objected to the introduction of the letters and refused to stipulate that the writers thereof would testify in accordance with the contents if they had been called. We think under the circumstances that sustaining the objection to the letters was entirely proper and the refusal to grant the motion for recess or continuance not an abuse of discretion. First, there was an utter failure of foundation for the introduction of the six letters. Secondly, under Rule 17(b), Federal Rules of Criminal Procedure, 18 U. S. C. A., certain requirements must be met before the court will order the subpoenaing of witnesses at the expense of the government. One such requirement is "that the evidence of the witness is material to the defense, that the defendant cannot safely go to trial without the witness * * *." By showing that the envelopes had been destroyed and that the government therefore was unable to show the place or places from which false claims had been mailed, Bandy had apparently hoped to create the presumption that the claims had been mailed in North Dakota . His plan was, to a degree, self-defeating. By showing that there was no way of proving where the claims had been mailed from, evidence by way of alibi that Bandy was in New York State became immaterial. What difference did it make whether Bandy was in New York State or elsewhere as long as it was impossible to establish where the claims had been mailed from? There is argument that Bandy or whoever mailed the false claims, for that matter, would have had greater access to telephone directories, etc., in order to obtain accurate addresses if present in North Dakota ; but that is not to say that directories and addresses therefrom could not have been obtained elsewhere. We accordingly believe that the so-called alibi defense whereby Bandy sought to establish that during the time of the filing of the claims he was in the vicinity of New York City became immaterial and that the trial judge was entirely correct in so holding.

Additionally, the motion for recess or continuance during the jury trial in order to subpoena witnesses from New York City to establish an immaterial matter came entirely too late. Reasonable diligence, even if the testimony of the so-called alibi witnesses could have been found to be material, was not satisfied.

Judge Gardner, speaking for this court in Gibson v. United States, 8 Cir., 1931, 53 F. 2d 721, 722, certiorari denied, 285 U. S. 557, 52 S. Ct. 458, 76 L. Ed. 946, said:

"It appears from the record that defendant had known for several months at least of the whereabouts of this witness. He also knew that his case was assigned for trial at the January, 1931, term, but he made no effort to present his application for a writ until the day the case was set for trial. This was not timely."

Again in dealing with a similar question, Judge Woodrough in Reistroffer v. United States, 8 Cir., 1958, 258 F. 2d 379, 396, certiorari denied, 358 U. S. 927, 79 S. Ct. 313, 3 L. Ed. 2d 301, rehearing denied, 361 U. S. 856, 80 S. Ct. 42, 4 L. Ed. 2d 96, stated:

"It is well settled that Rule 17(b), Federal Rules of Criminal Procedure, 18 U. S. C. A., under which the motion for subpoena was made, does not accord the indigent defendant an absolute right to subpoena witnesses at government expense. There is and must be wide discretion vested in the District Court to prevent the abuses often attempted by defendants. This Court will not disturb the exercise of the discretion unless exceptional circumstances compel it."

We find no error and no abuse of discretion on the part of the trial court in denying a recess under the circumstances existing here.

Reference has been made to Bandy's pro se motion setting forth some 44 claimed errors in the trial of his case. In addition to the two briefs filed by his appointed counsel in the instant hearing, Bandy has also filed a "Reply Brief of Appellant Pro Se". We have examined all of such claims and have considered the reply brief and find them to be without merit.

At this time we express to Mr. Charles Alan Seigel of St. Louis , Missouri , appreciation for his diligent efforts in behalf of the appellant and his assistance to this court in the presentation of this appeal.

Affirmed.

 

 

[68-1 USTC ¶9110] United States of America , Plaintiff-Appellee v. Harold Porter, Defendant-Appellant

(CA-6), U. S. Court of Appeals, 6th Circuit, No. 17264, 12/7/67, Rev'g an unreported District Court decision

[1954 Code Sec. 7206]

False returns: Refunds issued: Conviction: Judge's comments.--A conviction for receipt of two refund checks obtained through filing of spurious income tax returns was reversed on the ground that the trial judge went beyond permissible limits in his comments on the evidence.

Merle M. McCurdy, United States Attorney, Robert J. Rotatori, Assistant United States Attorney, Cleveland, Ohio, for plaintiff-appellee. Edward R. Brown, 2108 Payne Ave., Cleveland, Ohio, Robert G. Tunnell, Jr., 1144 Union Commerce Bldg., Cleveland, Ohio, for defendant-appellant.

Before O'SULLIVAN and PHILLIPS, Circuit Judges, and CECIL, Senior Circuit Judge.

[Conviction Appeal]

O'SULLIVAN, Circuit Judge:

Defendant-appellant, Harold Porter, appeals from conviction, upon jury trial, on both counts of a two-count indictment. The first count charged that:

"On or about the 3rd day of May, 1963, in the Eastern Division of the Northern District of Ohio, Harold Porter did receive, conceal and retain with intent to convert to his own use or gain a thing of value of the United States, to wit: U. S. Treasury Check No. 50,895,418 issued April 30, 19 63 at Kansas City, Missouri, in the amount of $628.26 payable to Charles Jackson, 2276 East 93rd Street, Cleveland, Ohio, knowing said check to be a thing of value of the United States, and knowing it to have been embezzled, stolen, purloined or converted, all in violation of Title 18, Section 641, United States Code."

Count II described a like offense occurring on May 8, 19 63, involving a check payable to James T. Erwin in the amount of $615.20.

[Evidence]

The evidence fairly established that for the year 1962, persons using the names of Jackson and Erwin filed short form 1040A income tax returns dated April 13, 19 63; the Jackson return claimed a refund due of $628.26 and that of Erwin, $615.20. Attached to each return was a W-2 form exhibiting the name of the claimed taxpayer's alleged employer. Checks for the respective amounts, stamp dated as issued on April 30, 19 63, were mailed to the given addresses of Jackson and Erwin. These checks and the 1040A returns were introduced in evidence, each check bore a purported endorsement by the payee and each was then endorsed by Harold Porter, who collected the proceeds therefrom by cashing one of them at a bank in which he maintained an account and depositing the other in such account.

The two checks here involved were among some 14 checks discovered by Internal Revenue Inspectors to have been issued on fraudulent returns. Investigation disclosed that there were no such persons as Jackson and Erwin living at the addresses given on the returns, but that friends of appellant did reside there; the social security numbers were spurious, and neither a Charles Jackson nor a James T. Erwin had been employed during the year 1962 by the concerns set out in the W-2 forms.

[Defense]

Porter's testimony in his own defense is characterized in his brief as follows:

"Porter testified that these two checks were presented to him by two different persons representing themselves as payees thereon, each in the company of a third party named William Huff. Defendant stated he cashed the checks in one instance in order to facilitate settlement of a $100 debt owed defendant by Huff and in the other instance in order to receive his payment of $135 due on a bill for repairs performed on the second payee's car at the defendant's auto body repair shop. In both cases the checks were for approximately $600. Defendant, Porter, asserted he handed the balance on each check over to the payees."

Porter ascribed the circumstance that friends of his resided at the addresses used in the spurious tax returns to coincidence. He said that Huff was a friend of his; that he had Jackson exhibit a driver's license as identification, but that Erwin provided no identification other than his introduction by Huff; that he had never seen the apparent imposters who brought the checks to him, either before the incident or since. Huff did not appear at trial. According to appellant's brief:

"The purported third party intermediary, Mr. William Huff, who presented the individual payees to the defendant for endorsements of their checks was not produced at trial, although defendant's former lawyer had interviewed him but had difficulty relocating him."

No claim is made that the evidence was insufficient to warrant conviction; rather, appellant seeks a new trial on the grounds, First, that he was prejudiced by remarks made by the Court within the hearing of one or more of the jury, in the course of sentencing in a related case, and, Second, that the District Judge's comments on the evidence, made during the instruction of the jury, were grossly prejudicial and exceeded permissible discretion.

1. Trial judge's remarks in related case

The government's evidence had disclosed that the two treasury checks involved in this case were among some 14 refund checks under investigation by the Internal Revenue Service. Other indictments had come out of this investigation. On the morning of the day in which the District Judge charged the jury in this case, he passed sentence on another man who had pleaded guilty to one of such indictments. In passing sentence on this man, Ira S. Pittman, the District Judge said:

"Mr. Pittman, you handled four of these checks that were issued out of the United States Internal Revenue Service Department by some lady who was very crooked and dishonest, and you got four of these checks, and I don't think anybody in that deal got any of these checks unless it was prearranged. Somebody on the inside passed money to somebody on the outside. They passed it out so they get back their cut; and out of these 14 checks you had 4.

"You are sentenced to two years in the custody of the Attorney General.

"* * * [other comment by defense attorney and judge omitted.] He had no business taking four of the $500 checks that come out of the Internal Revenue Service; so that is that. Let's have the next, please."

Upon resumption of the trial of the case at bar, appellant's counsel moved for a mistrial, asserting that one or more of the jurors in this case (juror 5 or juror 6) was present in the courtroom when the above quoted remarks were made, and that irremediable prejudice was the necessary result. No inquiry was made of the jurors who might have heard the remarks, nor was there any request for such inquiry. The motion was denied. Afterwards, in his charge to the jury, the District Judge gave this cautionary instruction:

"It has been mentioned to me that during our busy morning some of you jurors may have gotten into the courtroom. I do not know whether that is so or not, because it was so crowded I couldn't see. But I must respectfully suggest that if anyone did, do not let any impression anybody got in the courtroom affect your thinking in this lawsuit. We had this morning what we call the arraignments where we have to ask everybody how they plead, and then we had sentences involving cases in which we have reports on those who have in the past either pled guilty or been found guilty. If anything was said that leaves an impression in your minds, wipe it out, any impression of any kind, because you are to judge this case solely and only on the sworn evidence in this case, and, therefore, you should have nothing else on your mind."

It is contended that any juror who heard the quoted sentencing proceeding would have construed the Court's comments as indicating his belief that anyone involved with the fourteen checks was part of a "crooked and dishonest" transaction, a "prearranged deal." Such is not an unreasonable conclusion. Were we to review the occurrence in isolation, it would be necessary to consider the procedural adequacy of appellant's motion for mistrial and the substantiality of the error assigned. But since, for the reasons which follow, we reverse on other grounds, we need not pass on the question presented, the incident will not recur at another trial.

2. The judge's comments on the evidence

Appellant argues that during his charge the District Judge went beyond permissible limits in his comments on the evidence. He gave correct instructions on general matters such as the burden of proof, reasonable doubt, and credibility. Several times he emphasized the jury's prerogatives as the fact finders; he told them they should disregard his recitals of the evidence if his memory of it conflicted with their own recollections. Interspersed among sound statements of relevant law were the following comments and admonitions: ¹

"Why is it, as an observation on human nature, that every time there is a fund lying loose owned by the public, someone in a trusted position so often tries to figure out how to get that money out of that till and out of the company's register into the hands of somebody who has no right to it at all, either by embezzling it himself, or by some subterfuge which gets the money out of the building? Why is that?

"Here we have a situation where there is no question about the thievery that went on in some Federal office. No question."

* * *

"So here is somebody in some department of this Government, in the interior of the Federal system, Internal Revenue Service system notices that refund checks that are mailed out to the people that ought to get them are coming back, and they pile up and nobody claims them. Now, of course, if any of those people ever come in at a later time and says, 'I want my money,' the Government has to give it to them. The fact that these 14 checks went out wouldn't let the Government out of paying the right people, if they show up, if, as and when they show up, and they can show up any time they want to show up. Nobody can control that.

"So here it piles up and someone on the inside figures out, in the back of their head, how do we get this out of here? How can we get our hands on this money? How do we get it out? Here are the refunds, these people haven't taken it, we have mailed it to them a number of times, and they don't take it. How are we going to get it out?

* * *

"I have told you you shouldn't talk about the case during these days of trial, but I hope you have been thinking, we know you have been thinking and have been saying to yourselves, 'How did they get it out? What is the procedure for getting it out?' How do we get this money out of the United States till and out to someone on the street who will stick it in his pocket? Oh, no, not entirely, because the person, whether it is a man or a woman, and whoever it is has not been brought out to you, because that isn't part of your case, that person, whoever that person was who wants to embezzle this and get it out of his or her custody, that person has to be paid, too, haven't they? How are we going to get the money out of the building that the United States Government has put up to house its people and its money, and into the hands of someone on the street who will pay off the person who issued the checks? Isn't that the only game that the person would play who has figured out a way of getting that money out of our till? So how do we do that?"

* * *

"And when the check is issued, what is in the mind of the issuer? Why, in the mind of the issuer, they want whatever share they are going to get for inventing this plan and sending out the money that belongs to the Government and not to them, sending out the money that they expected to be reimbursed by.

"Isn't that human nature? Ask yourselves. I said you have to ask yourselves some questions, and you have to think and think. You almost have to put yourself in the place of the crook and figure out, now, how would a crook do this? And you have been thinking. What conclusions do you arrive at? How would it be done? How should it be done? What is the smartest way of doing it, because somebody has to take a chance?

"Well, we know that money comes in, which is unclaimed. Now, someone who has authority to issue checks then must proceed to issue the checks, and you have heard here from the mouth of one of these witnesses that 14 checks were issued."

* * *

"So how would the brains that conceived this plan figure out, 'How can I get this money out on the street so I can get it back into my wallet? How can I get it out of this building, in which I work, so that ultimately I will get my share?'

"So the Government money was on the inside, somebody wanted to get it on the outside, and they wanted to make a success of the theft, of course. And I ask you to ask yourselves, would that person do that for any other purpose than to get his or her share or cut or division out of the dishonest check that he or she issued here?

"So the next question is, well, how do we issue it? Somebody has to take a little chance, don't they? Someone has to get ahold of the piece of paper and take it to a bank and lay it down and pretend its his. Well, maybe the way that was figured out by the one who did this stealing was not perfect, but can you figure any better way, since they must make the thievery complete, and must get the money out of the Federal Building into the pocket of somebody who will then be willing to pay back its beneficiary, its donor, the person who issued the check in the first place? And you must ask yourselves, would that check issuer issue it to anyone it didn't know? Would it issue a check to anyone of whom it wasn't sure?"

* * *

"This is no child's play. This is as serious as things get. This is Government money to which you make your contribution, everybody does. Somebody figured a way to steal it. And the law we have just read says that should be stopped, and I told you what the law is, and you are to apply it however you come to your decision. Whichever way. So the first thing you have to ask yourselves is, and I have said you must think and think and think, what was the only manner in which the fabricator of this scheme to defraud the Government could get his or her cut out of this money? Would he or she get it from a fictitious person to whom the checks were payable? Hardly, because a fictitious person isn't a person, is it? It is a name on paper which to some degree might take the heat off somebody, but ultimately somebody has to walk in that bank and lay down that check. Would he get it in a fictitious person, or would he get it in the last person endorsing the check who actually got the money from the check? Ask yourselves that. Who first handled cash here? Oh, there were a lot of motions, a lot of going back and forth, lots of discussions. Who actually was the person to handle money? And nowhere else could the brains behind this scheme get a profit out of this scheme except through the handler of that cash. Don't you think so? You have got to think and think."

* * *

"The Government said two of these checks got into this Defendant's hands, and the Government has offered evidence of how each got to an address of people known to the Defendant in each instance, in each case with reference to each. Just happened to get to houses where he was acquainted with the people who lived in the house. That is their claim, and you have heard the evidence on that question."

* * *

"So we have this situation wherein you, coming down to the wire, must make a decision, your ultimate question always being the one which I have said. The Defendant here says he got these checks which were issued to these two fictitious people, Jackson and Erwin, through one Huff. Of course, nobody can find Erwin or Jackson, as I have said. You must ask yourselves, is it or is it not a strange coincidence that out of two million people in this county, this Defendant gets his hands on two checks out of these 14. You must ask yourselves what is the human nature behind this. Would it be human nature to issue the check and not be sure that one gets his cut at the end of the line when somebody cashes the check? Is it human nature just to cash people's checks for $600, really, knowing nothing as to who is handling it; knowing nothing as to whence they come and for what purpose?"

[Permissible Limits Exceeded]

Adequate objection was made to the charge. We have set out the judge's comments at the above length to portray their volume and repetitive emphasis. Aware that the federal view permits some comment on the evidence, Quercia v. United States, 289 U. S. 466, 469 (1933), we construe the above quoted excerpts as going beyond permissible limits. The judge's discussion of the government's evidence could easily be construed as an expression of his belief that the defendant was guilty. It can be said that here "the judge was exhibiting a prosecutor's zeal, inconsistent with that detachment and aloofness which courts have again and again demanded, particularly in criminal cases." United States v. Marzana, 149 F. 2d 923, 926 (2nd Cir. 1945). In Buchanan v. United States, 244 F. 2d 916, 920 (1957) we said:

"The court cannot direct a verdict of guilty in criminal cases, even if the facts are undisputed. Dillon v. United States , 2 Cir., 279 F. 639. It cannot do indirectly what it cannot do directly, and by its instructions in effect advocate such a verdict of guilty. Weare v. United States , 8 Cir., 1 F. 2d 617. Where the trial judge undertakes to sum up and comment on the evidence, and his comments are in the nature of an argument to the jury, he thus assumes the role of an advocate; and this is error, as established by repeated decisions. Minner v. United States , 10 Cir., 57 F. 2d 506."

A good statement of the limitations on the relevant rule is contained in Judge Prettyman's decision in Billeci v. United States, 184 F. 2d 394, 402, 403 (D. C. Cir. 1950):

"A federal trial judge in a criminal case is not an inert figure. He is not a mere moderator. Besides his own exclusive functions of conducting the trial and declaring the applicable law, he may guide and assist the jury in its consideration of the evidence. The purpose of his comment is to aid, through his experience, the inexperienced laymen in the box in finding the truth in the confusing conflicts of contradictory evidence. In exceptional cases he may even express his opinion upon the evidence, or phases of it. But there is a constitutional line across which he cannot go. The accused has a right to a trial by the jury. That means that his guilt or innocence must be decided by twelve laymen and not by the one judge. A judge cannot impinge upon that right any more than he can destroy it. He cannot press upon the jury the weight of his influence any more than he can eliminate the jury altogether. It is for this reason that courts have held time and again that a trial judge cannot be argumentative in his comments; he cannot be an advocate; he cannot urge his own view of the guilt or innocence of the accused."

We do not consider it an effectual remedy that the District Judge admonished the jury that they were the sole judges of the facts and were not to be controlled in that function by what the Court said. The volume of the judge's "argument" would, in this case, submerge such "boiler plate" observations. See Frantz v. United States , 62 F. 2d 737, 739-40 (6th Cir. 1933); Sandals v. United States , 213 Fed. 569, 576 (6th Cir. 1914).

It seems probable that a conviction of Porter would have been obtained unaided by the District Judge's advocacy. It is to be regretted, therefore, that law enforcement is pro tanto frustrated by our need to reverse.

Reversed and new trial ordered.

¹ The trial judge's remarks which we quote suggest that he was of the opinion that someone in the Internal Revenue Department was a party to the dishonest scheme, and that he or she had to depend on the party who finally cashed the checks for a share of the stolen money. From our reading of the testimony and examination of the exhibits, we consider that it could be inferred that the spurious income tax returns, which called for refunds, were accepted at face value by the Internal Revenue Service, and refund checks issued in the regular processing of the returns without any fraudulent participation by a government employee.

[90-1 USTC ¶50,081] United States of America , Plaintiff-Appellee v. James G. Blackwood, Defendant-Appellant

(CA-9), U.S. Court of Appeals, 9th Circuit, 88-5175, 7/5/89 , Affirming an unreported District Court decision

[Code Secs. 6402 , and 7206 ]

Fraud: Refund claim.--A conviction for submitting false tax returns claiming refunds in the names of four different people was affirmed. Since an expert testified that the handwriting on the false returns matched an exemplar of the defendant's handwriting, the government met its burden of showing a connection between the defendant and the false returns. Also, an IRS agent testified that forms with IRS-affixed locator numbers were in IRS custody and that IRS locator numbers were customarily affixed on filed returns. This testimony was sufficient to show that the returns were authentic and filed with the IRS.

Dwight B. Moore, Assistant United States Attorney, Santa Ana , Calif. , for plaintiff-appellee. H. Dean Steward, Federal Public Defender, Santa Ana , Calif. , for defendant-appellant.

Before NELSON and BOOCHEVER, Circuit Judges, and BROWNING, District Judge. ^**

OPINION

Per Curiam"

EC: James Blackwood (Blackwood) appeals his conviction on four counts of making false claims against the United States , in violation of 18 U.S.C. section 287. We have jurisdiction pursuant to 28 U.S.C. section 1294(1) , and we affirm.

Blackwood was charged with submitting false income tax returns in the names of four different people, in order to cash the refunds. Blackwood contends that he never filed these false returns, rather his housekeeper submitted them. Blackwood did not dispute that the returns were false. The only issue at trial was whether he prepared and submitted the false returns.

The government introduced evidence of Blackwood's prior conviction in 1986 for a similar offense to show plan and intent. The government also produced an expert who testified that the handwriting on the returns and the W-2 forms matched an exemplar of Blackwood's handwriting. IRS locator numbers had been placed at the top right-hand corner of each return indicating that each had been filed with the IRS according to normal procedures. Last, Blackwood's name and address were listed as the return address to receive the refunds.

On appeal, Blackwood contends that the district court erred by admitting these tax returns and W-2 forms because the government failed properly to authenticate the forms as required under FRE 901(a). We review a district court's decision regarding the sufficiency of authentication for an abuse of discretion. See e.g., United States v. Whitworth, 856 F.2d 1268, 1283 (9th Cir. 1988), cert. denied, 109 S. Ct. 1541 (1989). Blackwood argues that the government failed to: (1) show a sufficient connection between him and the returns; and (2) prove that the returns themselves were authentic and filed with the IRS. Both arguments are without merit.

The district court did not abuse its discretion. FRE 901(a) requires that the government make only a prima facie showing of authenticity in `so that a reasonable juror could find in favor of authenticity or identification.'" United States v. Black, 767 F.2d 1334, 1342 (9th Cir.), cert. denied, 474 U.S. 1022 (1985) (quoting 5 J. Weinstein & M. Berger, Weinstein's Evidence ¶901(a)[01], at 901-16 to-17 (1983)). Once the government meets this burden "the . . . probative force of the evidence offered is, ultimately, an issue for the jury." Id.

The government met its burden of showing a connection between Blackwood and the false returns. An expert testified that the handwriting on the forms matched an exemplar of Blackwood's handwriting. This is a method of authentication specifically mentioned in Rule 901(b)(3). This testimony in conjunction with the fact that Blackwood's name and address were listed as the place to send the refund checks, was sufficient to meet the government's burden of a prima facie showing. Since the government met its burden, it was for the jury to decide whether Blackwood prepared and filed the falsified returns. See, e.g., id.

Likewise, there was sufficient evidence that the returns were authentic. Tax returns are public records since "they are authorized by law to be . . . filed" with the IRS. See Rule 901(b)(7); see also Desimone v. United States, 227 F.2d 864, 867-68 (9th Cir. 1955) (employer's quarterly tax returns filed with federal government are "official records" of the federal government). An IRS agent testified that the forms were in the custody of the IRS. This testimony, in addition to testimony that it is the custom of the processing centers to affix locator numbers on the filed returns, was sufficient to meet the government's burden of making a prima facie showing that the proffered returns were authentic and filed with the IRS. See Wausau Sulphate Fibre Co. v. Commissioner, 61 F.2d 879, 880 (7th Cir. 1932) (special counsel's testimony that waivers allegedly signed by taxpayers were taken from IRS files was sufficient to authenticate the waivers).

Blackwood's reliance on this court's decision in United States v. Perlmuter, 693 F.2d 1290 (9th Cir. 1982), and Iran v. INS, 656 F.2d 469 (9th Cir. 1981), is misplaced. In Iran , the government introduced no extrinsic evidence of authentication in the mistaken belief that authentication was not required in a deportation proceeding. Id. at 472. In Perlmuter, an INS official attempted to authenticate a document from Interpol listing various foreign convictions in Israel . This court stated that this extrinsic evidence was insufficient to sustain a finding of authenticity under 901(a). Id. at 1293. In this case, however, the IRS agent had personal knowledge about the recording and filing procedures used by the IRS in processing returns. This was sufficient to establish the returns as authentic and filed with the IRS.

The judgment is AFFIRMED.

^** Honorable William D. Browning, United States District Judge for the District of Arizona, sitting by designation.