Offenses by Officers
& Employees of U.S. Page2

[81-1
USTC ¶9458]Fred Davis, Plaintiff, Appellant v.
United States of America
, et al., Defendants, Appellees
(CA-1),
U. S. Court of Appeals, 1st Circuit, No. 81-1024,
4/28/81
, Affirming decisions of the District Court, 80-2 USTC ¶9794 and 81-1
USTC ¶9349
[U. S. Constitution and Code Secs. 6103, 7214 and 7422]
Civil actions for refund: Sufficiency of complaint: Disclosure of
return information: Offenses by IRS officials: Constitutionality.--The
Court of Appeals adopted the opinions of the District Court and affirmed
the judgment of dismissal. The complaint filed in the taxpayer's suit
for refund did not set forth sufficient facts and thus failed to state a
claim upon which relief could be granted. The disclosure in 1975 to
state tax authorities of audit adjustments of the taxpayer's federal tax
liability was routinely provided and in accordance with normal practice
specifically provided for in the Code. Failure of the IRS to provide
information requested by the taxpayer over the telephone did not
demonstrate "willful oppression" on the part of revenue
agents. Finally, various claims with respect to alleged violations of
constitutional rights were dismissed.
Fred
Davis, 353 Bryant Street, Malden, Massachusetts, pro se. John F. Murray,
Assistant Attorney General, Michael L. Paup, Daniel F. Ross, R. Russell
Mather, Department of Justice, Washington, D. C. 20530, Philip I.
Brennan, Main Justice, Washington, D. C. 20530, for
defendants-appellees.
Before
CAMPBELL, BOWNES and BREYER, Circuit Judges.
Memorandum
and Order Entered
April 28, 1981
This
appeal raises various issues arising from Appellant's suit for refund of
taxes and for compensation for various wrongs purported to have been
committed by the individual defendants. To the extent that these issues
have been addressed in the District Court's thorough opinions of
September 26, 1980
and
December 15, 1980
, we are in agreement with the District Court and affirm the judgment of
dismissal. Other issues raised by appellant either were not resolved by
the District Court and are thus not properly before us or are without
merit.
The
judgment of the District Court is affirmed.
1st Cir. R. 12.
[63-1
USTC ¶9295]Paul A. Gorin, Defendant, Appellant v. United States of
America, Appellee Henry Grillo, Defendant, Appellant v. Same Saul
Glassman, Defendant, Appellant v. Same
(CA-1),
U. S. Court of Appeals, 1st Circuit, Nos. 5997, 5998, 5999, 313 F2d 641,
2/20/63, Vacating judgment of District Court (opinion unreported) and
remanding
[1954 Code Secs. 7213 and 7214(a)(4)]
Interference with administration of revenue laws: Bribery of IRS
officer: Entrap ment: Burden of proof.--A conviction of two
attorneys and an IRS officer of attempting to bribe the head of the
Enforcement Branch of the Regional Counsel's office if he would
recommend against prosecution of a fourth individual for tax evasion was
reversed on the ground that the trial judge's instruction on the defense
of entrapment did not go far enough. It merely informed the jury that
the defendants had the burden of proving entrapment, without explaining
that the burden of proof was met by a preponderance of the evidence.
Since the only burden of proof mentioned in the instruction was that the
Government had to prove its case beyond a reasonable doubt, the jury
could infer that this standard also applied to the defendants. Other
alleged errors as to selection of the jurors, pretrial publicity,
examination of prospective jurors, and denial of motions for severance
were found to be without merit.
Francis
J. DiMento, 75 State St., Boston 9, Mass. (DiMento & Sullivan, 75
State St., Boston 9, Mass., with him on brief), for Gorin; Manuel Katz,
209 Washington St., Boston, Mass. (Paul T. Smith, 209 Washington St.,
Boston, Mass., with him on brief), for Grillo; James D. St. Clair, 60
State St., Boston 9, Mass. (Blair L. Perry, Hale & Dorr, 60 State
St., Boston 9, Mass., with him on brief), for Glassman, appellants. John
J. Curtin, Jr., Assistant United States Attorney, Boston, Mass. (W.
Arthur Garrity, Jr., United States Attorney, William F. Looney, Jr.,
Paul A. M. Hunt, Assistant United States Attorneys, Boston, Mass., with
him on brief), for appellee.
Before
WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
Opinion
of the Court
WOODBURY,
Chief Judge:
These
three appellants and one Nathaniel Bergman of
Hartford
,
Connecticut
, were indicted by a grand jury in the court below on three counts.
Count 1 charges the three appellants and Bergman with conspiring (1) to
bribe one Charles J. McCaffrey, an employee of the Internal Revenue
Service of the United States Department of the Treasury, and (2) to
defraud the United States in its governmental functions by depriving it
of McCaffrey's conscientions, honest and faithful service in violation
of Title 18 U. S. C. §371. Count 2 charges Bergman and the appellants
Glassman and Gorin with giving McCaffrey $10,000 with intent to
influence his decision and action on a matter at the time pending before
him in his official capacity, in short with bribery, in violation of
Title 18 U. S. C. §201. Count 3 describes Grillo as a United States
officer acting in connection with the revenue laws of the United States
and charges him alone with conspiring with the other three, who were
named as co-conspirators but not as co-defendants, to defraud the United
States in its governmental functions in violation of Title 26 U. S. C.
§7214(a)(4).
Following
the denial of a number of preliminary motions to be discussed presently,
the four defendants were tried by jury on pleas of not guilty, were
found guilty as charged and were sentenced. All appealed, but Bergman
withdrew his appeal before hearing.
Before
the trial began each defendant moved to dismiss the indictment and to
strike the entire panel of petit jurors on the ground that both the
grand and petit jurors had been improperly selected. The motions were
denied after a hearing at which evidence was taken.
[Method
of Selecting Jurors]
The
evidence adduced shows that the jury commissioners of the United States
District Court for the District of Massachusetts selected persons for
service as jurors from the jury lists of the various cities and towns in
Massachusetts, that the City of Boston was within the part of the
district designated by the district court under Title 28 U. S. C. §1865(a)
as the source from which the jurors with whom we are here concerned were
drawn, and that the Boston Election Commission, the body charged by
local law with the annual preparation of jury lists for the City of
Boston, picked jurors at random from the lists of registered voters in
the various wards of the city and then, by reference to the list of
inhabitants prepared annually by the city police department, weeded out
those exempt by law because of their occupations, such as clergymen,
lawyers or doctors, and following this by personal interviews weeded out
those physically or mentally unfit for jury service and those with an
inadequate command of the English language. The contention is that the
jury commissioners' method of selection, resting as it does in part upon
the method of selection used in Boston by the Boston Election Commission
(it does not appear whether the same method of selection was used by
local authorities in the other cities and towns of the part of the
district involved), violates §1861 of Title 28 U. S. C. quoted in
material part in the margin 1 because it
automatically excludes citizens who are not registered to vote. The
argument is that eligible voters who have not registered constitute a
definite group or class in the community, that is to say, an apolitical
or politically dormant group, and that exclusion of that class or group
from jury service results in juries which do not represent "a
cross-section of the community" as required, so it is said, by Thiel
v. Southern Pacific Co., 328 U. S. 217, 220 (1946).
The
argument rests upon too literal a reading of the phrase quoted above,
for it has never been the law that a jury must represent a true
cross-section of the community. See Report of the Committee on the
Operation of the Jury System to the Judicial Conference of the
United States
, September 1962 at page 6. Certain groups, as by §§ 1862 and 1863 of
Title 28 U. S. C., are and time out of mind have been exempted from jury
duty, some for the general public interest, such as public officials or
members of the armed forces, and others, such as convicted felons,
minors and persons unable to understand the English language, for the
effective operation of the jury system. And the Court in the Thiel
case clearly recognized the established practice of exempting certain
persons from jury service by explaining that what it meant by the
sentence wherein it used the phrase "a cross-section of the
community" was only that prospective jurors must be selected by
court officials without systematic and intentional exclusion of any
economic, social, religious, racial, political or geographical group in
the community.
For
a variety of reasons we reject the argument that eligible persons who do
not register to vote constitute a "political" group in the
community. In the first place the group does not include only the
politically inert. It includes also the politically alert who may
perhaps have lived for a year or more in the district but not long
enough in their ward to be eligible to register to vote. In the second
place, the group has no distinct or definable outlines, for in addition
to persons who have just moved into a ward, it includes not only the
completely apathetic but also those who might register to vote only when
interested in a particular election. It includes persons of varying
shades of political interest. And in the third place we think the Court
in referring to a political group in the Thiel case meant the
members of some defined political party or group.
This
does not mean blanket endorsement of jury selection directly or
indirectly from voting lists. It means that voting lists may be used as
the basis for jury selection unless it appears that in the community
there is systematic and intentional exclusion from those lists of a
particular economic, social, religious, racial, geographical or
political group. When such a showing is made some other basis of
selection must be used. Here, however, the appellants have not shown
that in
Boston
any enumerated class is systematically and intentionally discriminated
against in registering to vote. Indeed the evidence is quite to the
contrary. The appellants' contention fails for lack of any evidence of
discrimination in the preparation of the lists of
Boston
voters. Compare
United States
v. Hoffa, 196 F. Supp. 25 (S. D. Fla., 1961), with
United States
v. Greenberg, 200 F. Supp. 382 (S. D. N. Y., 1961).
[Publicity]
Also
before trial the appellants severally moved to dismiss the indictment
because it had been returned by grand jurors calculatedly prejudiced
against them by government-inspired publicity. We think the court below
very properly denied the motions.
The
appellants characterize the publicity of which they complain as
"massive," and describe it as "blanketing" the
Commonwealth
of
Massachusetts
. It boils down, however, to news releases printed in local newspapers
and repeated in substance over radio and television on
August 26, 19
61, the day two of the appellants and Bergman were arrested, and for the
next two days, purporting to quote the Attorney General as extolling the
vigor, skill and integrity of the Internal Revenue Service and as saying
that the Charles J. McCaffrey mentioned in the indictment had reported
Glassman's offer to bribe him to his superiors and upon their
instructions had pretended to go along with the plan and "is a
courageous American and typifies the loyalty and integrity of the men of
the Internal Revenue Service."
The
appellants admit that their contention "presupposes" that
there is either a right under the Fifth Amendment of the Constitution of
the United States to be indicted by grand jurors free of calculated
government-instigated prejudice or else that proper standards for
enforcement of the criminal law in the federal courts sanction only
indictment by a grand jury uninfluenced by improper forces generated by
the prosecutor. They must also "presuppose" that they do not
need to show that in fact the grand jury which indicted them did not
perform its sworn duty to act with impartiality but instead was actuated
by government-inspired bias and prejudice. We are not prepared to grant
these "presuppositions." So far as we are aware, none has the
sanction of any decision of the Supreme Court of the
United States
and all have been rejected in one or another carefully considered
opinion of a lower federal court. See United States v. Nunan
[56-2 USTC ¶9876], 236 F. 2d 576, 592 et seq. (C. A. 2, 1956), cert.
den., 353 U. S. 912 (1957); Beck v. United States [62-1 USTC
¶9227], 298 F. 2d 622 (C. A. 9, 1962), cert. den., 370 U. S. 919
(1962); United States v. Dioguardi [58-2 USTC ¶9541], 20 F. R.
D. 33 (S. D. N. Y., 1956); United States v. Hoffa, 205 F. Supp.
710 (S. D. Fla., 1962). But even if we should accept the
"presuppositions," which we by no means imply, we would still
reject the appellants' contention.
We
do not approve of pretrial publicity, particularly when it emanates from
prosecuting officials. In the interest of fair trial it is better
avoided. But the publicity here complained of was minor. It was not
continuous but was pretty much a single-shot affair. And although it
related to serious crimes involving corruption of public officials, it
did not relate to a spectacular crime likely to arouse strong public
emotion, excitement or passion such as murder or rape. Nor did the
publicity vilify or heap opprobrium on the appellants. It only endorsed
the character, and thereby inferentially the credibility, of the
government's principal witness. We do not think the publicity complained
of was serious enough to warrant the drastic remedy of dismissing the
indictment, if, indeed, that remedy is available at all.
[Motions
for Severance]
Pretrial
motions for severance were also made and denied and similar motions were
repeated intermittently throughout the trial but in every instance
denied.
Clearly
joinder of the defendants in the indictment was proper under Criminal
Rule 8(b). To obtain severance it was, therefore, incumbent on the
appellants to make such a strong showing of prejudice as to invoke the
discretionary remedy provided in Criminal Rule 14 entitled "Relief
from Prejudicial Joinder." This the appellants have undertaken to
do for a variety of reasons.
Glassman
and Grillo argue for severance for the reason that the testimony of
codefendants is essential to their defense and, they say, it is not
available to them unless each defendant is tried separately so that they
can put co-defendants on the stand. The argument is unrealistic. There
is no reason to think that a co-defendant would be any more willing to
waive his constitutional privilege against self-incrimination when
called as a witness at a separate trial than he would be willing not to
insist upon his privilege as a defendant not to take the stand.
Moreover, in Olmstead v. United States, 19 F. 2d 842, 847-48 (C.
A. 9, 1927), affirmed as to other matters, 277 U. S. 438 (1928), it was
held that the inability of a defendant in a conspiracy case to use the
testimony of co-defendant in his defense is not enough to show abuse of
discretion in refusing a motion for severance.
Another
argument for severance was particularly emphasized by counsel for Grillo
in the court below. It deserves mention since it applied to some extent
to all appellants and was advanced for all in this court. Grillo's
argument below was that at the trial he would be confronted with so much
testimony of so many acts and statements of other defendants not in his
presence and without his authorization or knowledge that in spite of
limiting instructions 2 the jury
could not possibly overcome the prejudicial effect of the testimony or
consider his case on its own individual merits.
Grillo's
fear is not unfounded. See the late Mr. Justice Jackson's concurring
opinion in Krulewitch v. United States, 336 U. S. 440, 445,
particularly at 453 (1949). But no case has been cited to us and we are
not aware of any holding that it was an abuse of discretion not to grant
severance for the reason advanced. While the potentiality of prejudice
certainly exists, it is far greater when the number of conspirators
involved is large. The prejudice asserted in this case seems pale indeed
when compared with the prejudice involved when fifty-nine conspirators
were tried without severance in Capriola v. United States, 61 F.
2d 5, 11 (C. A. 7, 1932), cert. den. 287
U. S.
671 (1933), or seventy-five in Allen v. United States, 4 F. 2d
688, 698-99 (C. A. 7, 1925). It is well established that the granting of
a motion for severance lies in the discretion of the trial judge. Stilson
v.
United States
, 250
U. S.
583, 585-86 (1919). In the absence of a far stronger showing than is
made in this case we would not be warranted in finding that discretion
had been abused.
Our
function as an appellate court is to examine the record with care to
make sure that the trial court minimized possible prejudice. This we
have done, and from a reading of the record it seems obvious to us that
the trial judge went to no little pains to give appropriate limiting
instructions at the outset of the trial, throughout its course, and
finally and at length in his charge, which, counsel for Grillo admits in
his brief, was "literally correct on this point." We do not
believe that it was incumbent on the court below to interrupt the trial
with limiting instructions every time the name of an absent
co-conspirator was incriminatingly mentioned. In this four-defendant
conspiracy case we can repeat what Circuit Judge Hincks said in the
eighteen-defendant case of United States v. Stromberg, 268 F. 2d
256, 265 (C. A. 2, 1959), cert. den. 361 U. S. 863 (1959), that
is to say: ". . . we think it by no means a task of insuperable
difficulty for the jury to comply with the judge's instructions and
determine as to each defendant the issue of membership in a single
continuing conspiracy on the basis of the independent evidence--i.
e., the evidence as to his own acts and admissions."
We
come now to the trial itself.
[Examination
of Prospective Jurors]
At
its outset in accordance with the practice sanctioned by Criminal Rule
24(a) the voir dire examination for prospective jurors was
conducted not by counsel but by the court. The appellants do not
challenge the practice. And they concede that a trial judge undoubtedly
has a "broad discretion as to the questions to be asked" of
prospective jurors, subject only "to the essential demands of
fairness." Aldridge v.
United States
, 283
U. S.
308, 310 (1931). 3 Their
contention is that the "essential demands of fairness"
required the trial judge to ask prospective jurors a variety of specific
questions to determine possible bias or prejudice, such as whether they
had any prejudice against lawyers or against persons "with income
tax problems," whether they would think someone guilty because he
had been charged with crime and arrested, whether they would give more
credence to a government agent than to a lay witness and whether they
would have any prejudice against a client because his counsel objected
to the admission of evidence. We see no abuse of discretion in failing
to put these questions to prospective jurors. As to these matters the
court's general questions coupled with its charge afforded the
appellants ample protection.
Particularly,
however, the appellants object to the refusal of the court to ask
prospective jurors specifically whether they had read or heard of the
statement attributed to the Attorney General with respect to the
integrity and courage of Charles J. McCaffrey discussed hereinabove,
and, if they had, whether the statement would affect their judgment in
passing upon McCaffrey's credibility as a witness. The questions were
not impertinent. But the court below may well have felt that putting the
specific question would call the publicity to mind and perhaps do
appellants more harm than good. Under the circumstances of this case,
particularly the "one-shot" nature of the publicity, we think
the court gave the appellants adequate protection when it allowed jurors
to sit upon rceiving a "No" answer to the question: "Are
any of the jurors familiar with the facts of this case, either
personally or through the press, radio, or television or any other
means?"
[Statement
of Facts]
We
come now to consideration of the facts adduced at the trial.
Nathaniel
Bergman was an attorney-at-law practicing in
Hartford
,
Connecticut
. In 1959 a special agent attached to the Hartford District Office of
the Internal Revenue Service, IRS hereinafter, began an investigation of
Bergman's income tax returns for preceding years. Bergman retained local
counsel and in February, 1961 he also retained the appellant Paul Gorin,
who was a lawyer practicing in
Boston
in the field of federal taxation. On
May 1, 19
61, the Intelligence Division of the Boston Regional Office received the
special agent's report of his examination of Bergmen's tax returns
recommending criminal prosecution of Bergman and his wife for tax
evasion. Regional Intelligence agreed with this recommendation and
forwarded the case to the Enforcement Branch of the Boston Regional
Counsel's office, wherein lay the duty on review to recommend for or
against criminal prosecution in federal tax cases arising in the area.
The
head of the Enforcement Branch at this time was the Charles J. McCaffrey
to whom we have referred. He had come to
Boston
from similar duty in San Franciso in July 1959 and by April 1960 had met
the appellant Glassman, who was a lawyer in general practice in
Boston
specializing "more or less" in the law of real property. Both
were retired officers of the United States Marine Corps and they first
met at an organizational meeting of a Marine Corps Reserve voluntary
training unit (hereinafter VTU) consisting of reserve officers who were
lawyers. Glassman was the commanding officer of the unit; McCaffrey was
the training officer and next in command. Their relationship became
cordial.
At
this point the testimony diverges rather sharply. Glassman, who took the
stand in his own defense, testified that on several occasions prior to
the end of May 1961 when he and McCaffrey met socially, or at VTU
meetings, or to plan the training program for the unit, they discussed
the general nature of each other's work and McCaffrey urged him to take
some courses and develop a tax practice, saying that the field was
lucrative. Glassman said that he replied: "My practice just hasn't
tended toward that," to which McCaffrey answered: "Well, just
remember that if you ever do hit a case you've got a good friend up
there." Glassman also testified that when he and McCaffrey met at a
social function in March 1961 McCaffrey expressed envy when he learned
that Glassman was about to go to Europe, said that he wished he and his
wife could do the same and commented: "You can't save any money
when you're working for the government and have a big family." And
Glassman testified that on
May 26, 19
61, when he met with McCaffrey to discuss the quarterly training
schedule for the VTU McCaffrey again recommended a tax practice as
profitable and said: "You know Paul Gorin, don't you?"
Glassman said that he answered that he knew Gorin casually, to which he
said McCaffrey replied: "He is certainly doing all right for
himself. Saul, you should be doing some of that tax work. I am really in
a position to help you out. Why don't you see Gorin and tell him you
have got a good friend up at Enforcement. I think you can do yourself a
lot of good."
McCaffrey
agreed that prior to the end of May 1961 he and Glassman had discussed
each other's professional work, in the course of which he had learned
that Glassman was primarily a real estate lawyer. Furthermore, McCaffrey
admitted that he knew that Glassman did not have a Treasury card that
entitled him to represent clients before official bodies in the Treasury
Department on tax matters, and he also admitted that he had recommended
a tax practice to Glassman as profitable and had suggested that Glassman
take some tax courses and enter that field. McCaffrey, however,
categorically denied making the other remarks attributed to him by
Glassman.
We
turn now to the critical period of the alleged conspiracy, which began
during the last days of May 1961. Glassman testified that he had known
Paul Gorin for over ten years and that they were on a first name basis.
He said that he happened to meet Gorin casually on May 27 and asked him
if he had a tax fraud case that was going to prosecution. Glassman said
that Gorin answered: "Yes. What do you know about it?" to
which Glassman said he replied: "Nothing, but if you need any help
I've got a good friend up in Enforcement I could talk to."
Arrangements were then made to discuss the matter further the following
week and by appointment they met again on May 31. At that time,
according to Glassman, Gorin identified the case he had referred to as a
net worth case involving Nathaniel Bergman of
Hartford
,
Connecticut
, and asked Glassman if he thought he could "do anything."
Glassman said he replied that he did not know but that he had "a
good friend up in Enforcement" and that he would speak to his
"friend" and "see what he has to say." Gorin asked:
"When?" and Glassman replied: "I don't know. As soon as I
can. I will call you."
McCaffrey
and Glassman agree that Glassman did indeed telephone to McCaffrey on
May 31. However their versions of the telephone conversation differ.
Glassman said that he told McCaffrey that he wanted to talk about the
Bergman case and that McCaffrey replied that the case had been assigned
to one of the men in his office but he would look into it and call
Glassman. McCaffrey testified that in that telephone conversation
Glassman said he wanted to talk about a case but did not identify it,
and that the request made him "uneasy" because he knew that
Glassman had no power of attorney in any case in his office and
therefore had "no right to talk to me about any case."
McCaffrey also said that because of his "uneasiness" he did
not attend a VTU meeting that night and immediately reported the
telephone conversation to a senior attorney in Regional Counsel's office
whom he asked to make a memorandum of his disclosure "just in case
something happened."
On
the next day, June 1, Glassman telephoned McCaffrey again 4 and in that
conversation, according to McCaffrey, for the first time identified the
Bergman case as the one in which he was interested. Both agreed that
later in the day Glassman went to McCaffrey's office. Their version of
what there transpired differs. Glassman testified that McCaffrey greeted
him with the remark, "Well, Saul, I see that you've talked to
friend Gorin," and then proceeded to disclose facts and figures of
the Bergman case to show that it would be prosecuted on a net worth
basis and that it involved a very substantial sum in deficiencies.
Glassman said that he asked McCaffrey: "Look, Mac, is this a case I
should get involved in? Do you have to recommend prosecution or is this
a case that can go either way?" to which he said McCaffrey replied
that from what he knew of the Bergman case there had been other cases
coming from Connecticut "that looked much worse and we recommended
no prosecution." Glassman testified that he told McCaffrey that
from the figures disclosed "this looks like a case where I can get
a substantial fee if I can do Bergman some good," and that both
agreed that they would look into the case further to "see how it
shapes up." Glassman also testified that McCaffrey admitted that he
ought not to be talking about the case because Glassman had no power of
attorney and that when he asked if he should obtain one McCaffrey
replied: "If anything develops you can work through Gorin. I know I
can always talk to you as a friend."
McCaffrey
agreed that he discussed the Bergman case face to face with Glassman on
June 1. And he admitted that at the meeting he gave Glassman the amount
of civil deficiencies involved in the case and that in doing so he
violated the Regulations because Glassman had no power of attorney.
Furthermore, he admitted that he would not have discussed the case with
Glassman had he been a stranger. But he denied making the remarks
attributed to him by Glassman and he said that Glassman in the course of
the meeting dropped the remark that in view of the sums involved
"there should be enough of a fee in it for all of us."
McCaffrey said he replied noncommittally to this remark and that as they
parted Glassman said: "I will contact you before I set my fee in
this matter."
McCaffrey
testified that these remarks so aroused his suspicions that he
immediately reported them to his superior officer, the Regional Counsel,
saying that he thought Glassman might be intending to offer him a bribe,
and that the Regional Counsel because of the doubtful meaning of
Glassman's remarks agreed to let McCaffrey handle the matter in his own
way. Although McCaffrey's report to his superior should have been in
writing, his conduct was otherwise in accord with the Internal Revenue
Manual which requires an IRS employee when approached with an offer of a
bribe to make such reply as will hold the matter in abeyance and
immediately make a full report in writing to a superior.
Meetings
and telephone conversations followed between Glassman and Gorin, Gorin
and Bergman, Glassman, Gorin and Bergman and Glassman and McCaffrey
which do not need to be described in detail. It will suffice to say that
on the evidence it might well be found that in the course of them
Glassman convinced Gorin and Bergman that he indeed had a friend
"up in Enforcement" and that Bergman, Glassman and Gorin were
not averse to offering that "friend" a bribe to
"kill" the case against Bergman. And there is evidence of
remarks made during the first half of June by Glassman to McCaffrey not
too subtly hinting that a bribe might be forthcoming if McCaffrey would
recommend against prosecuting Bergman for tax evasion, to which,
according to Glassman, McCaffrey lent definite encouragement.
[Entrapment]
At
any rate on June 15 McCaffrey reported to his superior that he thought
Glassman had bribery in mind and also made the same report to the
Inspection Service, the internal police force of the IRS charged among
other matters with the duty of investigating bribery of IRS employees,
which at once sent an inspector to Boston from New York to handle the
case. The inspector told McCaffrey under no circumstances to initiate a
contact but to "go along" with the persons involved, to meet
them whenever they chose and to give them any document they wanted. And
he also installed an array of electronic equipment in McCaffrey's
office, in his car and at times on McCaffrey himself, whereby
conversations in McCaffrey's presence could be recorded. After June 20,
all McCaffrey's conversations with Glassman, Gorin and Bergman were
electronically recorded with the exception of two telephone calls from
McCaffrey to Glassman, one on July 7 and another on July 10, and a
conversation on July 27 between Gorin and McCaffrey on a golf course.
Other telephone conversations were recorded only on McCaffrey's side.
These recordings were introduced into evidence and portions of them were
played to the jury.
Further
meetings between two or more of the four, McCaffrey, Glassman, Gorin and
Bergman, followed, which there is no need to recount in detail. It will
suffice to say that the upshot of the meetings was that on June 27
Glassman gave McCaffrey $5,000 in bills in return for a rough draft of a
criminal action memorandum, known as a CAM, recommending against
prosecution of Bergman for tax evasion, and that on June 28 Glassman
gave McCaffrey a like amount in exchange for a finished draft of the
document. There is ample evidence that Glassman obtained the money from
Gorin who in turn had obtained it from Bergman, and that all well knew
the purpose for which the money was to be used. Glassman admitted on the
stand that the money was paid to McCaffrey as a bribe.
To
state the facts in greater detail would expand this opinion
inordinately. Although we might go into far greater detail, we think we
have stated enough to show that there was evidence from which the jury
could properly find that Glassman, Gorin and Bergman had engaged in the
conspiracy charged in the first count of the indictment and had given
McCaffrey a bribe as charged in the second count. We also think that we
have recounted enough to show a factual basis for the defense,
Glassman's sole defense, of entrapment. 5
[Evidence
Against IRS Officer]
We
turn now to the case against Grillo.
Grillo
was the Executive Assistant to the Assistant Regional Commissioner,
Intelligence, for the Boston Region. As such he was second in command of
the IRS unit to which McCaffrey as head of the Enforcement Branch of the
Regional Counsel's Office submitted his recommendations against
prosecutions for tax evasion. Although Grillo's duties were primarily
administrative he assumed the duties of his superior, the Assistant
Regional Commissioner, when the latter was not in his office, one of
whose duties was to pass upon recommendations against the criminal
prosecution of tax evaders.
There
is ample evidence of remarks made by Glassman and Gorin, but not in
Grillo's presence, to tie him into the conspiracy. For instance, there
is evidence that on the afternoon of June 27 when McCaffrey went to
Glassman's office to deliver the rough draft of his recommendation
against prosecuting Bergman criminally, Glassman asked where the
recommendation would be sent and when McCaffrey replied that it would go
to the Assistant Regional Commissioner, Intelligence, and mentioned
Grillo as a man in that office Glassman said: "That is the man. He
has been approached and he is ready for it." And there is evidence
that on a later occasion Glassman asked McCaffrey to let him know before
the recommendation against prosecution went out in final form "so
they can tell Grillo that it's on it's way over and he can grab
it." Furthermore, there is evidence that at a meeting in
McCaffrey's office on the afternoon of
August 14, 19
61, at which McCaffrey, Bergman and Gorin were present, McCaffrey,
Referring to Grillo, asked Gorin: "Have you given him
anything?" to which Gorin replied: "He has a balance with me
of $20,000," and "He has built himself a new house, and I have
got about $10,000 worth of furniture in there," and also: "On
this case I have given him $1,500, and I promised him $2,500 more if the
case is killed." On the same occasion Gorin is reported by
McCaffrey to have said that Grillo, or Henry, "gave me information
on this case long before it came in here, and before I talked to Bergman
about it."
All
of this evidence is, of course, quite inadmissible against Grillo unless
and until there is independent evidence, that is, evidence of Grillo's
own acts or admissions, connecting him with the conspiracy. We find
enough such evidence in McCaffrey's account of a meeting in his office
on
August 15, 19
61, with Gorin and Grillo. At that meeting, after McCaffrey and Grillo
had briefly discussed another case, Gorin is reported by McCaffrey to
have said that he wanted the others either to know or to remember, that
he could not recall which, "that we are here as friends,
f-r-i-e-n-d-s," spelling out the last word for emphasis. Following
this introduction McCaffrey testified that Grillo said that in his
superior's absence he could not act on McCaffrey's memorandum against
prosecuting Bergman without getting into "difficulty," perhaps
"serious difficulty," that he had not expected such a strong
protest to McCaffrey's memorandum from the IRS office in Hartford to
which it had been referred and that he was finding it difficult in view
of that protest to convince his superior and others in his office to
approve McCaffrey's recommendation. And McCaffrey testified that with
reference to the criminal prosecution of Bergman, Grillo said: "I
would like to see it go by the board more than anyone else."
Furthermore, McCaffrey testified, and the electronic recording of the
meeting corroborates, that at the meeting Grillo participated actively
in the discussion of arguments to advance in answer to the protest from
Hartford to McCaffrey's memorandum and at the close of the meeting Gorin
said: "Well, Henry, you've got the pitch now. The three of us are
working together," to which Grillo replied: "I wish to hell
I'd known it before."
Perhaps
by straining the jury might have put an innocent interpretation on these
remarks and acts of Grillo. But certainly the jury did not have to do
so. The above evidence is clearly enough to warrant the jury's finding
that Grillo was a participant in the conspiracy.
[Admissibility
of Recordings]
The
appellants objected below to the introduction in evidence of the tape
and wire recordings to which reference has been made. Since the
electronic devices used were installed in McCaffrey's office, in his car
and on his person, the recordings were not obtained through physical
intrusion as in Silverman v. United States, 365 U. S. 505 (1961).
Therefore, the appellants do not argue that the recordings were obtained
in violation of the Fourth Amendment. Apparently conceding the authority
of Goldman v. United States, 316
U. S.
129, 135 (1942), their contention is that the recordings are in so many
places inaufible as to be unintelligible and therefore untrustworthy as
evidence.
The
court below followed the procedure approved in Monroe v. United
States, 234 F. 2d 49, 55 (C. A. D. C., 1956), cert. den. 352
U. S. 873 (1956), of having the recordings played in the presence of
counsel but not in the presence of the jury in order to rule on possible
objections. After hearing the recordings their admissibility lay in the
trial court's sound discretion. Monroe v. United States, supra; Cape
v. United States, 283 F. 2d 430, 435 (C. A. 9, 1960); Todisco v.
United States [61-2 USTC ¶9749], 298 F. 2d 208, 211 (C. A. 9,
1961), cert. den. 368
U. S.
989 (1962). Although we have not listened to the recordings we have read
the transcription of them in the record. While it appears that parts of
them are inaudible, we cannot say that the parts which are not are
without evidentiary value, or that the inaudible parts are so
substantial at to make the rest more misleading than helpful. In short,
we cannot say that the trial court abused its discretion in admitting
the recordings in evidence.
[Burden
of Proving Entrapment]
Now
we turn to the charge, specifically to the charge on the issue of
entrapment.
The
court below told counsel at the close of their arguments that it was
going "to follow Learned Hand" and charge the jury that the
burden was on the defendants to prove inducement. In summing up its
general instructions on the issue it did so by saying: "Let me
repeat that now. The two questions: Did an agent of the government
induce the accused to commit the offense in the indictment? If so, was
the accused ready and willing, without persuasion, and awaiting a
propitious opportunity to commit the offense? On the first question the
accused has the burden of proof. On the second, the prosecution has the
burden of proving it beyond a reasonable doubt." 6
The
appellants concede that the court's formulation of the two questions and
its summary of them was correct. But they contend that it was error to
case the burden of proving the first question upon them. 7 They argue
that the defense of entrapment is analogous to the defense of insanity.
Wherefore they concede that the government need not offer evidence to
disprove entrapment as part of its case in chief. But they say that once
they have come forward with substantial evidence of entrapment the
burden is on the government to disprove the defense beyond a reasonable
doubt.
The
Supreme Court has not adverted to the question.
In
Sorrells v. United States, 287 U. S. 435 (1932), the Court for
the first time recognized entrapment as a defense to a criminal charge, 8 saying at
page 451:
"The
predisposition and criminal design of the defendant are relevant. But
the issues raised and the evidence, adduced must be pertinent to the
controlling question whether the defendant is a person otherwise
innocent whom the Government is seeking to punish for an alleged offense
which is the product of the creative activity of its own officials. If
that is the fact, common justice requires that the accused be permitted
to prove it. The Government in such a case is in no position to object
to evidence of the activities of its representatives in relation to the
accused, and if the defendant seeks acquittal by reason of entrapment he
cannot complain of an appropriate and searching inquiry into his own
conduct and predisposition as bearing upon that issue."
And
the Court held that when the evidence of the conduct of the government's
representatives was conflicting it was error to refuse to submit the
issue of entrapment to the jury.
These
basic principles were affirmed in Sherman v. United States, 356
U. S.
369 (1958). In that case involving illegal sales of narcotics, the Court
at page 371 said: "At the trial the factual issue was whether the
informer had convinced an otherwise unwilling person to commit a
criminal act or whether petitioner was already predisposed to commit the
act and exhibited only the natural hesitancy of one acquainted with the
narcotics trade." Then, on page 372, citing with approval and
quoting from the Sorrells case, the Court notes that it did not
constitute entrapment for government agents merely to afford
opportunities or facilities for the commission of an offense but that
entrapment occurred "only when the criminal conduct was 'the
product of the creative activity' of law-enforcement officials.
(Italics supplied.)" Wherefore, the Court said: "To determine
whether entrapment has been established, a line must be drawn between
the trap for the unwary innocent and the trap for the unwary
criminal."
In
drawing this line on the principles outlined in the Sorrells
case, the Court in
Sherman
at page 373 said:
"On
the one hand, at trial the accused may examine the conduct of the
government agent; and on the other hand, the accused will be subjected
to an 'appropriate and searching inquiry into his own conduct and
predisposition' as bearing on his claim of innocence."
In
short, if an accused asserts that he is a lamb who has been led astray
he must be prepared to face evidence that he is a wolf on the prowl.
The
above cases clearly sanction Judge Learned Hand's formulation of the two
questions of fact presented by the defense of entrapment which the court
below followed in its charge to the jury. For convenience they can be
called the primary issue of inducement and the rebuttal issue of
predisposition. And the cases also clearly indicate, as the appellants
herein concede, that to raise the defense of entrapment the burden is
upon them to come forward with evidence of inducement. We also assume
from the language used as well as by application of general legal
principles that the burden is on the government to come forward with
evidence of predisposition. The cases, however, do not even indirectly
mention the question of burden of persuasion on the issues. Nor do the
cases give us guidance to decide the question by indicating the basis
upon which the defense rests. 9
The
lower federal courts have variously allocated the burden of persuasion,
usually with little if any helpful analysis. Indeed, in many of the
cases it isuncertain whether when speaking of the burden of proof the
court is referring to the burden of coming forward with evidence or the
burden of persuasion. We shall undertake our own analysis.
The
defense of entrapment is certainly analogous to the defense of insanity
in that the burden of coming forward with evidence in order to raise the
defense rests upon the accused. But at this point we think the analogy
ceases.
The
defense of insanity asserts that the mental condition of the accused is
such that he is incapable of harboring criminal intent. The defense,
therefore, negatives an essential element of the crime. And it is
fundamental doctrine that the government must prove every essential
element of the crime alleged beyond a reasonable doubt. The defense of
entrapment, on the other hand, does not negative an element of the
crime, or assert that the accused has not engaged in a criminal
activity. By the defense the accused may admit his crime, as Glassman
did on cross-examination when he admitted that he gave McCaffrey $10,000
"as a bribe," or he may rely upon his right to require the
government to prove the case against him beyond a reasonable doubt, and
in either event ask to be relieved of its consequences because of the
unsavory tactics of representatives of the government. 10 Stated
another way, the defense of entrapment is not interjected to establish
the absence of an essential element of the crime but to present facts
collateral or incidental to the criminal act to justify acquittal on the
ground of an overriding public policy to deter instigation of crime by
enforcement officers in order to get a conviction. 11 Since by
the defense the accused is asking to be relieved of the consequences of
his guilt, if found or admitted, by objecting to the tactics of the
representatives of the government, we think that one who raises the
defense should be required not only to come forward with evidence but
should also be required to establish inducement by a preponderance of
the evidence.
We
think reason commends this conclusion. And it is in accord with §213
entitled Entrapment, Subsection (2), of the Proposed Official Draft of
the American Law Institute's Model Penal Code, dated
May 4, 19
62, which provides with an exception not here material that "a
person prosecuted for an offense shall be acquitted if he proves by a
preponderance of evidence that his conduct occurred in response to an
entrapment." See also the discussion of this provision in Tentative
Draft No. 9, of the Model Penal Code, supra, 1959, at the bottom
of page 20 and the top of page 21.
We
think the charge of the court below was correct as far as it went. It
did not, however, in our opinion, go far enough, for it did not tell the
jury anything about the quantum of the proof required. It merely
informed the jury that the accused had the burden of proof" without
explaining that the burden was met by proof by a preponderance of the
evidence.
Although
this omission was brought to the court's attention after the charge, it
did not see fit to elaborate. We think this was prejudicial error. The
only burden of proof mentioned anywhere in the charge was the burden on
the government to prove the essential elements of its case beyond a
reasonable doubt. But from this we cannot assume, as the government
argues, that the jury would apply this standard only to the government's
case and never to the defendants'. On the contrary we think that since
proof beyond a reasonable doubt was the only standard mentioned, the
jury would naturally infer in the absence of instruction otherwise that
when "burden of proof" was mentioned that was the standard
they were to apply, not only to the government but also to the
defendants. There must be a new trial as to all three appellants. 12
Many
other questions have been argued on these appeals. We pass them for
various reasons, some for insubstantiality, and others because they are
unlikely to arise at another trial or at least are unlikely to arise in
the same form or in the same context.
Judgments
will be entered vacating and setting aside the judgments of the District
Court and remanding the cases to that Court for a new trial.
1
"Any citizen of the United States who has attained the age of
twenty-one years and who has resided for a period of one year within the
judicial district, is competent to serve as a grand or petit juror. . .
."
2
That is to say, instruction that such testimony is not admissible as
against Grillo until the government has first established not only the
existence of a conspiracy but also Grillo's membership in it.
3
In this case there is no question of racial prejudice, as in Aldridge,
or as in Frasier v. United States, 267 F. 2d 62, 66 (C. A. 1,
1959).
4
This is McCaffrey's version. Glassman testified that McCaffrey called
him, said that he had the Bergman files on his desk and that Glassman
could come over "anytime."
5
We reject the government's contention that there was no adequate
evidence from which the jury could find that Gorin and Glassman had been
entrapped and we also reject the latter's contention that the evidence
shows entrapment as a matter of law.
6
Judge Learned Hand, writing for his court in United States v.
Sherman, 200 F. 2d 880, 882-83 (C. A. 2, 1952), said:
"Therefore in such cases two questions of fact arise: (1) did the
agent induce the accused to commit the offense charged in the
indictment; (2) if so, was the accused ready and willing without
persuasion and was he awaiting any propitious opportunity to commit the
offence. On the first question the accused has the burden; on the second
the prosecution has it."
7
They, of course, do not complain of the charge as to the burden of proof
on the second question.
8
It also held that the defense did not have to be pleaded in bar but
could be raised under the plea of not guilty.
9
See Mr. Justice Frankfurther's opinion concurring in the result in
Sherman
, in which Justices Douglas, Harlan and Brennan concurred, page
378.
10
It is inconsistent for an accused to take the stand and deny the
commission of the crime charged and then assert his right to a charge on
the defense of entrapment. See Sylvia v. United States, decided
by this court
January 22, 19
63. However, where there is evidence of governmental inducement, it is
not fatally inconsistent for an accused to keep silent in the hope that
the jury will not find that the government has proved its case beyond a
reasonable doubt, but ask that the jury be charged on the defense of
entrapment if it should find the commission of the allegedly criminal
acts. The law allows this much inconsistency. See
Henderson
v.
United States
, 237 F. 2d 169, 172-73 (C. A. 5, 1956).
11
See the separate opinion of Mr. Justice Roberts, Mr. Justice Brandeis
and Mr. Justice Stone concurring, in Sorrells v. United States
287
U. S.
435, 456 et seq.
12
We find no adequate support for the government's contention that Grillo
waived entrapment as a defense and is estopped from asserting it now.
[57-2
USTC ¶10,029]Matthew J. Connelly and T. Lamar Caudle, Appellants v.
United States of America
, Appellee
(CA-8),
U. S. Court of Appeals, 8th Circuit, No. 15,746, 249 F2d 576, 11/15/57,
Affirming an unreported decision of the District Court for the Eastern
District of Missouri
[1954 Code Sec. 7214--similar to 1939 Code Sec. 4047(e)]
Crimes: Corruption of public officials: Method of handling income tax
evasion cases: Death of judge after trial: Mistrial as to one defendant:
Evidence.--Defendants who were two public officials were convicted
under an indictment which charged defendants with a conspiracy, the
essence of which was to the effect that they aided in the evasion of
income taxes and protected another (third defendant) from criminal
prosecution for Internal Revenue law violations. During the course of
the trial a fourth defendant suffered a heart attack and a mistrial was
declared as to him, The two public officials thereupon also moved for a
mistrial. This motion was denied and the court directed the jury that
the testimony, admitted as to the fourth defendant alone, was withdrawn
from the jury's consideration. The jury returned a verdict of guilty
against the officials. At the end of the trial they interposed motions
for judgment of acquital, for a new trial, and for a mistrial. Twelve
days before the date set for hearing the motions, the judge who had
heard the case died. The successor judge who heard the motions after
reviewing the case denied the motions. On appeal the defendants
contended that the successor judge was not qualified to pass upon the
pending motions. The appellate court held, however, that the successor
judge was appointed in strict compliance with Rule 25, Federal Rules of
Criminal Procedure and, under these rules, he had authority to decide
whether or not to grant a new trial. On the question of mistrial because
of evidence introduced against one of the other defendants, it was held
that the jury was properly instructed not to consider such evidence. On
all the facts it was held that defendants had a fair trial and that
there were no prejudicial errors committed by the trial judge.
Conviction was affirmed.
John
H. Lashly, Jacob M. Lashly (Paul B. Rava, Lashly, Lashly & Miller,
Alan Y. Cole with them on brief), for Matthew J. Connelly. John J.
Hooker (Walter M. Haynes, C. Arthur Anderson with him on brief), for T.
Lamar Caudle. Warren Olney, III, Assistant Attorney General (Harry
Richards, United States Attorney, Carl H. Imlay, Department of Justice,
with him on brief), for appellee.
Before
GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges.
GARDNER,
Chief Judge:
Appellants
with one Harry I. Schwimmer were indicted under an indictment which
charged them with conspiring to defraud the
United States
government in violation of Section 371, Title 18, U. S. C. The single
count indictment alleged that the purpose of the conspiracy was to
defraud the
United States
of the proper administration of the Internal Revenue laws and
regulations, of the proper and faithful service of appellants Connelly
and Caudle and to commit the offenses of bribery, perjury and knowingly
making false statements and entries. The indictment named as
co-conspirators but not as defendants Irving Sachs, Ellis N. Slack,
Shu-Stiles, Inc., and divers other persons to the grand jury unknown. At
all times pertinent to the issues here involved appellant Matthew J.
Connelly was Appointment Secretary to President Truman; appellant T.
Lamar Caudle was an Assistant Attorney General in charge of the Tax
Division of the Department of Justice; Harry I. Schwimmer was a Kansas
City, Missouri, lawyer; Ellis N. Slack was an attorney in the Department
of Justice; Irving Sachs was a St. Louis, Missouri, shoe broker, and
Shu-Stiles, Inc. was a Missouri corporation of which Sachs was
president. The indictment further charged that the purpose of the
conspiracy was to protect Irving Sachs from criminal prosecution for
Internal Revenue law violations.
After
considerable testimony had been introduced by the government in support
of the indictment Harry I. Schwimmer, named as a defendant, suffered a
heart attack making it impossible for him to be present at the trial
and, thereupon, a five-day continuance was had. On proof that defendant
Schwimmer could not, because of his heart condition, continue to be
present at the trial or to participate therein the court declared a
mistrial as to him, whereupon appellants Connelly and Caudle moved for a
mistrial as to themselves, which motions the court denied. At the close
of the government's evidence in chief appellants moved for judgments of
acquittal which motions were denied. The appellants then offered
evidence in their defense and at the close of all the evidence they
renewed their motions for judgments of acquittal. The court announced
that it would reserve ruling on these motions. At the close of all the
evidence the court withdrew from the consideration of the jury the
allegations of the indictment regarding the substantive offenses of
bribery, perjury and knowingly making false statements and entries and
then submitted the case to the jury on instructions to which no
exceptions are here urged. The jury returned verdict of guilty as
charged in the indictment and thereafter appellants interposed motions
for judgment of acquittal notwithstanding the verdict, or, in the
alternative, for a new trial. They also renewed their motions for
mistrial which had been denied at the time a mistrial was declared as to
defendant Schwimmer. The court set these motions down for hearing thirty
days from the date of filing. Twelve days before the date set for
hearing Judge Hulen, who had heard the case, departed this life and
thereafter and in due course Judge Gunnar H. Nordbye, United States
District Judge for the District of Minnesota, was appointed as successor
judge under Rule 25, Federal Rules of Criminal Procedure. Subsequent to
the appointment of Judge Nordbye as successor judge appellants filed a
supplemental motion for new trial on the ground of newly intervening
facts, namely, the death of Judge Hulen, whereby appellants alleged they
were deprived of the determination of pending motions by the trial
judge, and on the ground of newly discovered evidence regarding the
failure of some jurors to answer material questions propounded by the
trial court upon voir dire examination. A hearing was had before Judge
Nordbye on all pending motions December 18, 1956, and thereafter on
February 11, 1957, all pending motions were overruled by him. Subsequent
to the denial of these pending motions and on or about March 4, 1957,
appellants filed a third supplemental motion for new trial on the ground
of alleged newly discovered evidence. This too was denied by Judge
Nordbye, following which the court pronounced sentence and entered
judgment pursuant to the jury's verdict.
It
is the contention of appellants that they were deprived of a fair trial
by virtue of Judge Hulen's death after verdict was rendered and by the
fact that a successor judge heard and denied their post-trial motions
for judgment of acquittal and for a new trial. It is urged that the
successor judge was not qualified to pass upon the pending motions,
particularly their motions for judgment of acquittal notwithstanding the
verdict or in the alternative for a new trial, because not having
presided at the trial of the case he did not have the "feel of the
case". Rule 25, Federal Rules of Criminal Procedure provides as
follows:
"If
by reason of absence from the district, death, sickness or other
disability the judge before whom the defendant has been tried is unable
to perform the duties to be performed by the court after a verdict or
finding of guilt, any other judge regularly sitting in or assigned to
the court may perform those duties; but if such other judge is satisfied
that he cannot perform those duties because he did not preside at the
trial or for any other reason, he may in his discretion grant a new
trial."
Judge
Nordbye was assigned as successor judge in this case in strict
compliance with this rule. Federal criminal law and procedure are
dependent upon Federal statutes. Under this rule it was the duty of the
successor judge, in the first instance at least in the exercise of a
sound judicial discretion, to determine whether he could satisfactorily
perform the duties of the judge who presided at the trial and whom he
succeeded. It is to be observed that in the instant case while Judge
Nordbye was assigned to perform the unfinished trial of this case on
June 16, 19
56, he did not hear the pending motions until some six months later and
it is quite apparent from this record that in that time he thoroughly
familiarized himself with the facts and satisfied himself that he could
perform the duties to be performed by the presiding judge. Referring to
this contention Judge Nordbye in the course of his opinion says:
"*
* * This Court is not unmindful that the observation made by the
defendants as to the assigned Judge's being unable to have the 'feel of
the case' is a matter that deserves careful consideration, and
undoubtedly there is substance to defendants' position in this regard.
On the other hand, this Court cannot escape the fact that this case has
taken a long time to try, the defendants were represented by experienced
and skillful counsel, and the Judge who presided at the trial was
recognized by all parties to have been not only an able and experienced
trial judge, but one who presided with impeccable fairness and
impartiality. Consequently, it would seem that, under these
circumstances and after consideration of the entire record, I should not
evade the responsibility which rests upon me by summarily granting a new
trial, but rather to the best of my ability attempt to render definitive
rulings on the various aspects of the motions presented."
There
might well be a criminal case in which the testimony would be of such a
character that a successor judge could not fairly pass upon the
questions here presented. If the evidence of the government were denied
and the question of the credibility of the government witnesses was a
serious issue the conflict in the evidence and the question of the
credibility of witnesses might be a matter of very serious
consideration. However, in the instant case the evidence of the
government was not of that character. As has been observed, the
defendants here were charged with attempting to thwart the criminal
prosecution of Irving Sachs for Internal Revenue law violations. The
Internal Revenue agents on investigation reported that Sachs, as
president of Shu-Stiles, Inc., had fraudulently evaded taxes due the
government by the company to the extent of $188,378.32. Criminal
prosecution had been recommended by the agents of the Bureau of Internal
Revenue and attorney Schwimmer was then employed to thwart this
threatened criminal prosecution. The government's testimony tended to
prove certain business transactions between Schwimmer and appellants by
which the appellants profited, the payment of large sums of money by
Sachs to Schwimmer, entries in books of Schwimmer indicating
disbursement of sums of money on behalf of appellants, evidence that
Schwimmer had purchased for appellant Connelly two suits of clothes, and
evidence of visits by Schwimmer to and consultations with the appellants
at various times. This general characterization of this testimony
indicates that it was in the nature of circumstantial evidence by the
government furnishing the basis for inferences by the jury and it was
not disputed by appellants but their testimony went to either their lack
of knowledge or other explanations of the transactions proven by the
government. In these circumstances there was not much to be gained by
hearing the testimony of the witnesses and observing their demeanor that
could not be gained by reading the testimony and we think Judge Nordbye
did not abuse his judicial discretion when he determined, as he
manifestly did, that he could perform the duties to be performed by the
presiding judge after verdict. The law governing the situation here
presented was strictly complied with and we think that law provided due
process within the requirements of the Fifth Amendment. Meldrum v.
United States
, 9 Cir., 151 Fed. 177; Chin Wah v.
United States
, 2 Cir., 13 Fed. (2d) 530; King v.
United States
, 6 Cir., 25 Fed. (2d) 242; Owens v. Hunter, 10 Cir., 169
Fed. (2d) 971; McIntyre v. Modern Woodmen of
America
, 6 Cir., 200 Fed. 1; Pessagno v. Euclid Inv. Co., D. C. D.
C., 35 Fed. Supp. 743;
United States
v. Green, S. D. Ill., 143 Fed. Supp. 442. In Meldrum v.
United States
, supra, the authority of a succeeding judge to pass upon a motion
for a new trial in a federal criminal case tried before another judge
who died while the motion was pending was expressly sustained. In the
course of the opinion in that case it is said:
"Did
the judge of the court below have authority to pass upon the motion for
a new trial and impose the sentence? The plaintiff in error contends
that he did not, that he had not participated in the trial, and that the
right of the plaintiff in error to have the judge who presided at his
trial take part with the jury at every step in the determination of his
guilt or innocence was a fundamental right which could not be taken away
by an act of Congress, * * *.
"*
* * Section 953 of the Revised Statutes as amended by Act
June 5, 19
00, c. 717, Sec. 1, 31 Stat. 270 (U. S. Comp. St. 1901, p. 696),
provides that in case of the death of the judge before whom a cause has
been tried the judge who succeeds him 'or any other judge of the court
in which the cause was tried, holding such court thereafter, if the
evidence in such case has been or is taken in stenographic notes * * *
shall pass upon said motion and sign such bill of exceptions'; and it
further provides that if said judge is satisfied that, owing to the fact
that he did not preside at the trial or for any other cause, he cannot
fairly pass upon said motion and allow and sign said bill of exceptions,
he may in his discretion grant a new trial. If the succeeding judge can,
as undoubtedly he may under this statute, deny a motion for a new trial,
there can be no question of his power to further proceed in the case and
render judgment upon the verdict."
We
conclude that the contention that Judge Nordbye was disqualified to
perform the duties to be performed by the presiding judge after verdict
is without merit.
Appellants
were subpoenaed as witnesses to testify before the grand jury and each
of them did so testify. After the return of the indictment they moved to
dismiss the indictment and suppress the testimony which they had given
before the grand jury on the ground that they had not been advised that
the prosecutor had decided at the time they testified to seek an
indictment against them. Appellant Caudle was a lawyer with wide
experience in criminal prosecutions on behalf of the government.
Appellant Connelly was a man experienced in the investigating of fraud
and criminal matters. He had been the chief investigator for a Senate
committee investigating many fraudulent and criminal situations. The
record definitely shows that each of the defendants was apprised of his
constitutional rights. There was some doubt as to when the prosecutor
had definitely decided to seek an indictment against them. After hearing
testimony on the motion Judge Hulen decided when the prosecutor had
decided to seek indictments against them and he suppressed all testimony
given by them before the grand jury after that date, but denied the
motion to suppress testimony given by them before that date and also
denied their motions to dismiss the indictment. The ruling of the court,
we think, was eminently fair to appellants. We shall not encumber this
opinion with a long recital of the warnings given and the circumstances
thereof. It abundantly appears that they were advised and were at all
times aware of their constitutional rights. We think the contention of
appellants in this regard wholly without merit.
The
trial of this case began
May 7, 19
56, and the jury returned a verdict
June 14, 19
56. After the case had been on trial for some sixteen days the defendant
Schwimmer suffered a heart attack and as hereinbefore noted a mistrial
was declared as to him. Thereupon appellants moved for a mistrial as to
themselves on the ground that certain evidence admitted as to Schwimmer
alone was of such a prejudicial nature that its effects could not be
eradicated from the jury's mind by the court's instructions. Their
motion was denied and the court instructed the jury that the testimony
which the court identified, admitted as to Schwimmer alone, was
withdrawn from the jury's consideration. In the course of its
instruction on this question the court said:
"Now,
as to the testimony given by these two witnesses as I have referred to
them as to these conversations with Schwimmer, I withdraw that testimony
from your consideration. I have not gone into it in detail, but you will
recall it. You are not to consider such testimony as evidence in this
case of any character. Just forget that that testimony relating to the
subject and at the times I have referred to was given in this case.
Strike it from your minds entirely. It now has no bearing on the issues
in this case and you will not consider it in any manner in arriving at
your decision as to the guilt or innocence of either of the defendants
in this case.
"Does
that cover the subject?"
The
instruction was not excepted to. The testimony in no way implicated
either of the other defendants on trial and we think the court's
instruction proper, and we cannot presume that the jury disregarded it. Blumenthal
v. United States, 332 U. S. 539; Lutwak v. United States, 344
U. S. 604; Opper v. United States, 348 U. S. 84; Delli Paoli
v. United States, 352 U. S. 232 [57-1 USTC ¶9356]. In Blumenthal
v. United States, supra, two of the defendants had made admissions
which the trial court admitted as to them only and in its instructions
specifically limited such evidence as to them and told the jury to
disregard such evidence in considering the guilt or innocence of the
other three defendants. In the course of the opinion it is among other
things said:
"But
the trial court's rulings, both upon admissibility and in the
instructions, leave no room for doubt that the admissions were
adequately excluded, insofar as this could be done in a joint trial,
from consideration on the question of their guilt. The rulings told the
jury plainly to disregard the admissions entirely, in every phase of the
case, in determining that question. The direction was a total exclusion,
not simply a partial one as the Government's argument seems to imply.
The court might have been more emphatic. But we cannot say its
unambiguous direction was inadequate. Nor can we assume that the jury
misunderstood or disobeyed it."
In
the very recent case of Delli Paoli v.
United States
, supra, the Supreme Court, reaffirming the doctrine of its prior
decisions, said:
"It
is a basic premise of our jury system that the court states the law to
the jury and that the jury applies that law to the facts as the jury
finds them. Unless we proceed on the basis that the jury will follow the
court's instructions where those instructions are clear and the
circumstances are such that the jury can reasonably be expected to
follow them, the jury system makes little sense. Based on faith that the
jury will endeavor to follow the court's instructions, our system of
jury trial has produced one of the most valuable and practical
mechanisms in human experience for dispensing substantial justice."
The
declaration of a mistrial as to the defendant Schwimmer removed him from
the case and it is to be noted that prior to the trial appellants sought
to remove him from the case by a motion for severance. This declaration
of a mistrial as to Schwimmer as effectively removed him from the case
as would the granting of appellants' motions for severance. But it seems
to be argued that appellants were prejudiced, both by having Schwimmer
tried jointly with them and by removing him by process of declaring a
mistrial as to him. It is suggested that when Schwimmer was removed as a
defendant they were deprived of his possible testimony on the assumption
that he would have taken the stand in his own defense. This he might or
might not have done and in this connection it is observed that he
invoked the Fifth Amendment when he was called before the grand jury.
Neither is there any assurance that had he taken the witness stand his
testimony would have any tendency to exonerate appellants. Appellants'
position after the severance of Schwimmer by the court's declaration of
a mistrial as to him was no different than it would have been had he
been named only as a co-conspirator. Even had Schwimmer been named as a
co-conspirator only, his acts and declarations during the time of and in
furtherance of the conspiracy would have been admissible against
appellants. We think the removal of Schwimmer from the case was not
prejudicial to appellants. Carrado v.
United States
, D. C., 210 Fed. (2d) 712; Poliafico v.
United States
, 6 Cir., 237 Fed. (2d) 97;
United States
v. Beck, 7 Cir., 118 Fed. (2d) 178;
United States
v. Karavias, 7 Cir., 170 Fed. (2d) 968. The motion for mistrial
as to the appellants because of the severance of Schwimmer by the
court's declaration of mistrial as to him was under the circumstances
here disclosed addressed to the sound judicial discretion of the trial
judge and we think this discretion was wisely exercised in denying
appellants' motions.
The
court on its own motion entered an order directing that in selecting
jurors for this case residents of the city and
county
of
St. Louis
be excluded from the list of prospective jurors, and the prospective
jurors were accordingly selected from other parts of the district. Prior
to the entry of this order the defendants had moved for a change of
venue on the ground, among others, that they could not have a fair and
impartial trial in the district because of the prejudicial publicity,
editorial and otherwise, largely contained in the daily newspapers
published in St. Louis and widely circulated and read, concerning
alleged corruption of public officials in the Bureau of Internal Revenue
and in the Department of Justice, and specifically relating to the
method of handling income tax evasion cases in the Eastern District of
Missouri, and the alleged corruption of public officials both in the
District of Columbia and the Eastern District of Missouri. These motions
were denied but the court then entered the above order, geographically
excluding residents of the city and
county
of
St. Louis
. Section 1865(a), Title 28, U. S. C. provides:
"Grand
and petit jurors shall from time to time be selected from such parts of
the district as the court directs so as to be most favorable to an
impartial trial, and not to incur unnecessary expense or unduly burden
the citizens of any part of the district with jury service. * * *"
The
order was in strict conformity with the statute and it did not eliminate
any particular class but the jury as drawn represented a cross section
of the geographic unit designated and was manifestly selected from that
part of the district which the judge thought to be most favorable to an
impartial trial. The contention that the order resulted in a
"rural" jury is without foundation in fact. As disclosed by
their examination on voir dire for instance, six of the panel had lived
in
St. Louis
or other large cities for some time. Many of the other jurors lived in
large towns. Neither were the prospective jurors exclusively engaged in
agricultural pursuits but included a wide range of professions, trades
and occupations. The action of the trial judge followed a practice
warranted by this statute. Myers v.
United States
, 8 Cir., 15 Fed. (2d) 977; Thiel v. Southern Pacific Co.,
328
U. S.
217; Frazier v.
United States
, 335
U. S.
497. In Myers v.
United States
, supra, it is said:
"Plaintiff
in error, defendant below, filed a motion to quash the jury panel
because of the exclusion, in the drawing, of jurors from Douglas county,
in which
Omaha
is situated; it being urged that the population of
Douglas
county formed a large percentage of that of the division of the district
in which the offense was committed and tried. The order excluding these
jurors was made pursuant to a long-standing practice of the court that,
in drawing jurors, the county in which the crime was committed should be
excluded.
*
* *
"The
motion to quash the panel was properly overruled. The law authorizes the
court to draw the jury as was done in this case, and it is not required
to assign a reason for so doing. The presumption is that it acted in the
exercise of a sound discretion. If requested to assign a reason for the
purpose of making a record for review, we think proper practice would
require this to be done; but, in the absence of such request, we do not
think the discretion can be challenged on that ground. The burden is
upon the party who seeks to challenge the alleged arbitrary action, and
in this case that burden has not been successfully carried. Spencer
v.
United States
(C. C. A. Eighth Circuit) 169 Fed. 562, 95 C. C. A. 60."
We
must presume that it was the purpose of the trial judge to have the jury
selected from such parts of the district as to be most favorable to an
impartial trial.
After
the trial had closed and the jury had returned a verdict finding
appellants guilty, and a successor judge had been assigned to finish the
trial of the case, appellants filed a motion for new trial on the ground
of newly discovered evidence. In this motion it was alleged that two of
the women jurors had concealed important facts relevant to their
personal qualifications thereby impairing appellants' rights to
intelligently exercise their challenges and depriving them of a fair and
impartial trial. These two jurors were women. On voir dire the judge
propounded among others the following questions:
"Have
any of you or the immediate members of your family, mother, father,
brother, sister or husband or wife, or children, other than the
gentleman who was sheriff, have you or any immediate members taken part
in behalf of either political parties in political affairs such as a
candidate for office or committee worker?
"Do
either of you or are any members of your family affiliated or hold
membership or office--we have covered county committees, but sometimes
there are Democratic or Republican organizations separate from the
committee, and sometimes Democratic clubs or Republican clubs. To your
knowledge, are you or any member of your family any members of such club
or organizations? If so, raise your hand."
Neither
of these women jurors answered either of these inquiries in the
affirmative. In referring to this incident Judge Nordbye in his opinion
says:
"The
evidence at the hearing on the motions for a new trial, which supplanted
the affidavits previously obtained, indicate that these two jurors, to
wit, Goldie Brown and Grace Hoffman, were members of the Montgomery
Township Republican Club in the years 1953, 1954 and 1955, but evidently
from the testimony it would appear that they were not in 1956. Robert
Hoffman, however, the son of Grace Hoffman, was treasurer of the
committee or club in 1956. There is no showing here that Mrs. Hoffman
knew that her son was treasurer of the local Republican Central
Committee in 1956, and moreover, there is no showing that either of
these jurors wilfully failed to answer truthfully the questions to which
reference has been made. Furthermore, there is no showing that the
defendants were prejudiced in any way by reason of any Republican
affiliation or activities of either of these two jurors. This Court has
no right to assume that in this trial jurors of Republican political
affiliation would be prejudicial to these defendants and that jurors of
Democratic affiliation would be prejudicial to the Government. And
finally, the record is bereft of any showing that there was fraudulent
conduct on the part of these jurors."
We
are in entire accord with this ruling.
It
is contended that the court erred in denying a change of venue or a
continuance. The motions were addressed to the discretion of the court, Finnegan
v. United States, 8 Cir., 204 Fed. (2d) 105; Stroud v. United
States, 251
U. S.
15, and on careful review of the record we are convinced that there was
no abuse of that discretion.
It
is next contended that appellants' motion for judgment of acquittal or a
new trial should have been granted because the evidence is as consistent
with innocence as with guilt. In considering the question of the
sufficiency of the evidence to go to the jury and to sustain the verdict
we must view the evidence in a light most favorable to the prevailing
party, in this case the government, and the prevailing party is entitled
to all such favorable inferences as may reasonably be drawn from the
facts and circumstances proven. If when so viewed, reasonable minds
might reach different conclusions then the issue is one of fact to be
submitted to the jury and not one of law to be determined by the court. Brennan
v.
United States
, 8 Cir., 240 Fed. (2d) 253; Peters v.
United States
, 8 Cir., 160 Fed. (2d) 319.
It
appears without dispute that Irving Sachs was guilty of a wilful and
flagrant tax fraud to which there was apparently no defense. As
heretofore noted the agents of the Bureau of Internal Revenue had
recommended prosecution. In this situation Harry I. Schwimmer, a lawyer
of
Kansas City
,
Missouri
, was employed for the express purpose of thwarting this threatened
criminal prosecution. His first ground for seeking relief was that Sachs
had made voluntary disclosure. When it was shown that the co-called
disclosure was not full and complete but was itself fraudulent Schwimmer
abandoned that theory and sought to protect his client from criminal
prosecution on the ground of ill health, claiming that his prosecution
would probably result in his death. While it was shown that Sachs was an
epileptic, the fact was not known to his own counsel, Shifrin, who had
represented him for some twenty years, and even during the time the
Department of Justice was considering the gravity of his malady he was
able to look after his business in substantially his usual and normal
manner. He was chief executive of Shu-Stiles, Inc., a substantial
concern. At the government's request he was examined by Dr. Robert M.
Bell, a consultant for the United States Public Health Service in
neuropsychiatry. Dr. Bell reported that in his opinion any fatal outcome
in the case of prosecution and trial of Sachs was "remote
indeed". Schwimmer employed a number of doctors, none of whom made
an examination of Sachs, but on the basis of reports and data submitted
to them gave as their opinion that criminal prosecution of Sachs would
constitute a clear and present danger to his health. Caudle disregarded
the report of Dr. Bell; he also disregarded the recommendation of the
Bureau of Internal Revenue and ordered that Sachs be not criminally
prosecuted but that the case be treated on the basis of civil liability.
His action in disregarding the recommendation of the Bureau of Internal
Revenue and in disregarding the report of a government doctor was
unprecedented and did violence to the accepted practice of the
Department. It appears from the evidence that Schwimmer made frequent
calls on Caudle and Connelly. There is evidence of their frequent
conversations and there is evidence of Caudle's and Connelly's continued
activity and interest on behalf of Schwimmer's client. Schwimmer
received in payment as compensation for his services in seeking to
thwart the criminal prosecution of Sachs some $46,000, from which
apparently he paid to each of the appellants or on their behalf
substantial sums of money. There is also undisputed evidence that
Schwimmer presented to Connelly two suits of clothes made to order.
As
has heretofore been noted, the appellants, through Schwimmer, had
certain business transactions in which they made substantial profits.
The jury may well have inferred that these so-called business
transactions were a mere cover-up for the fact that Schwimmer was
compensating them for assisting him in thwarting the prosecution of a
man confessedly guilty of defrauding the government. It is strenuously
urged that the evidence was insufficient to prove that Connelly
knowingly participated as a co-conspirator. It appears from the evidence
that Connelly first called Charles Oliphant, Chief Counsel of the Bureau
of Internal Revenue, in August of 1948, when Schwimmer had scheduled a
conference with Oliphant, saying that Schwimmer had asked that "we
call you and let you know we know him".
The
case was referred to the Department of Justice
August 12, 19
49, after pending about four years in the Bureau of Internal Revenue
where Schwimmer, with the assistance of Connelly, had secured its delay.
Subsequent to the transfer of the case to the Department of Justice
Schwimmer obtained a further delay of one month. In September of 1949
Connelly then called Caudle and requested further postponement for his
"friend" Harry I. Schwimmer. In response to this request
Caudle relayed a message through Connelly to Schwimmer that Schwimmer
could come in whenever he wanted but as soon as possible and that a
postponement would be all right because the statute of limitations was
not involved. A few days subsequent to this contact between Connelly and
Caudle, Sachs paid $2,500 from Shu-Stiles, Inc. money to Schwimmer and
on
October 12, 19
49, gave Schwimmer a check for $10,000, from which Schwimmer purchased
an oil royalty for Connelly. The jury was warranted in believing that
these expenditures by Schwimmer on behalf of Connelly were to reward him
for his services in assisting to thwart the criminal prosecution of his
client Sachs and there are other attending circumstances corroborating
this conclusion. As pointed out by Judge Nordbye:
"That
Connelly knew and understood that Schwimmer's business with Caudle was
an attempt to obtain a commitment from the Department of Justice that
there would be no criminal prosecution in the Sachs case, seems
evident from the conversation which Connelly had with Oliphant over the
telephone on
January 16, 19
51. At that time Schwimmer already had obtained a letter from Caudle
stating that there would be no criminal prosecution in the Sachs
case, but notwithstanding he was attempting to obtain a similar letter
of no-prosecution from the Bureau of Internal Revenue. In a conversation
with Connelly over the telephone, Oliphant stated, 'You know Schwimmer
on Sachs--does he just want to look good?' And Connelly replied, 'Wants
to make sure not going to reverse justice again.' Certainly, this
conversation would indicate that Connelly was aware of Schwimmer's plans
to have both Departments committed on the Sachs case so that he
need have no fear that the Bureau would render a ruling adverse to that
which he obtained from the Justice Department. Moreover, it must be
apparent that Connelly knew that Schwimmer had obtained a no-prosecution
letter from Caudle at that time. The friendly relations between Connelly
and Schwimmer and the six or seven or more telephone calls to government
officials made by Connelly with reference to the Sachs case fully
warranted the jury in determining that Connelly's relation with the case
that was pending in the Bureau of Internal Revenue and then in the
Department of Justice was something more than mere routine telephone
calls for the arranging of appointments."
The
inferences to be drawn from all the surrounding circumstances connecting
Connelly with the activity of Schwimmer warranted the jury in returning
its verdict of guilty as to both appellants.
There
was in evidence a document in Schwimmer's handwriting indicating that in
connection with Schwimmer's attempt to thwart the criminal prosecution
of his client, Schwimmer paid substantial sums to or on behalf of
appellants. These circumstances, we think, warranted the jury in
inferring that Schwimmer paid the appellants substantial sums of money
for their assistance in attempting to thwart the criminal prosecution of
his client. We conclude that the evidence, with the inferences that
might reasonably be drawn therefrom by the jury, was substantial and
that there was no error in denying appellants' motion for judgment of
acquittal or for a new trial.
It
is however contended that the court erred in admitting in evidence a
document referred to in the evidence as Exhibit 100(j) which we have
heretofore adverted to as a document in Schwimmer's own handwriting
taken by the government from one of his account books. There was ample
evidence to warrant the jury in finding, as it manifestly did, that the
defendants Schwimmer, Connelly and Caudle had entered into a conspiracy
as charged in the indictment. Any act or admission by either of the
participants in the conspiracy occurring during its existence and in
furtherance of its purposes was admissible as to all defendants. Lutwak
v. United States, 344 U. S. 604; Wiborg v. United States, 163
U. S. 632; Cwach v. United States, 8 Cir., 212 Fed. (2d) 520; Braatelien
v.
United States
, 8 Cir., 147 Fed. (2d) 888; Harper v.
United States
, 8 Cir., 143 Fed. (2d) 795. The exhibit contains the following:
"Oct--49
"Loan
$2,500
From
I.
Sachs
"Shu-Stiles .................. $10,000
"Pd out Oil Royalty M. C. .... 4,200
$ 5,800
"Held
in Escrow to be paid out depending on whether I. Sachs case is
dropped."
As
said by Judge Nordbye in considering the admissibility of this exhibit:
"Government's
Exhibit 100-j does not represent the entry of a mere narrative event,
but it consists of an act of a conspirator who was handling the fund by
and through which the conspiracy was to be accomplished. The entry
consists of a recording of the receipt of the first anticipated
disbursement thereof and the earmarking of the remaining funds for the
purpose of carrying out the conspiracy. To earmark or allocate the
remainder of a slush fund which has been created for the purpose of
consummating an unlawful conspiracy would be an act in furtherance of
such conspiracy."
We
are in accord with Judge Nordbye's views. There was independent evidence
that on
October 12, 19
49, co-conspirator Sachs, president of Shu-Stiles, Inc., gave Schwimmer
a $10,000 check in addition to a prior payment of $2,500 on
September 22, 19
49, both of which are reflected in this exhibit. This testimony shows
that these entries were made during the existence of the conspiracy. We
think the exhibit was properly admitted as against both appellants.
There
was admitted in evidence over the objection of appellants testimony of
certain telephone conversations between Schwimmer and Oliphant, Caudle
and Oliphant, and Connelly and Oliphant. These were based upon
transcripts made by Oliphant's secretaries in the so-called Oliphant log
which was a record kept in the regular course of Oliphant's official
duties by Oliphant's secretaries. The sole objection to the admission of
this evidence was that it violated the best evidence rule. The evidence
shows that when a call would come in to the office over the official, as
opposed to the private office telephone, of the Chief Counsel for his
personal attention, the secretaries would listen in with earphones and
transcribe the official content only as a routine matter in the regular
course of their duties. The records made recorded the calls in full
unless the call concerned only the making of an appointment, in which
case they just recorded that fact in its essence. Although the objection
was based solely on the ground that this evidence was violative of the
best evidence rule it is now argued that the entries were not kept in
the regular course of business, but were private entries. The practice
of keeping these records of official calls and visits was a well
established practice which had been followed not only by Mr. Oliphant
but by his predecessor in office. This testimony was admissible, we
think, under the Federal Business Records Act, Sec. 1733(a), Title 28,
U. S. C.; Finnegan v.
United States
, supra; Harper v.
United States
, supra;
Holland
v.
United States
, 10 Cir., 209 Fed. (2d) 516 [54-1 USTC ¶9177]; Stegemann v.
Miami Beach Boat Slips, 5 Cir., 213 Fed. (2d) 561. The evidence
conclusively showed that these records were made in the usual and
systematic course of the business to which they had reference and they
specifically referred to actions occurring at the time of their entry.
We need not here enumerate the reasons for the rule making such entries
admissible. They are too well established to require citation of
authorities. There was no error in admitting this evidence, which
incidentally directly showed Mr. Connelly's continued interest in the
success of Mr. Schwimmer's undertaking to prevent the criminal
prosecution of his client.
It
is finally urged that the court erred in receiving evidence on rebuttal
to the effect that appellant Connelly accepted gifts of clothing from
Schwimmer. The evidence so received showed that Connelly received two
suits worth $315.78 and a top coat worth $110 from Schwimmer. On
cross-examination Connelly was repeatedly asked whether he had received
any money, property, gifts or anything of value from Schwimmer during
the time of the transactions here in question. He was quite evasive but
finally answered that his wife might have received some flowers and he
might have received some neckties. On further inquiry the witness said
that he could not "recall" any others. He was then directly
asked whether he had not received two suits of clothes "of a value
over $300" which he then admitted receiving but that he could not
recall when he received these gifts or whether he had received anything
else of value from Schwimmer. On re-examination by his counsel the
witness was asked to give the dates of the presents given him. In answer
to this Connelly testified that in the past he had frequently received
gifts from friends at the Christmas season. It appears from the
cancelled checks produced that the gifts of two suits of clothes were
given in the month of July, 1952. The government also showed that
Connelly received a top coat in November or December of 1952. The
testimony was admitted as to Connelly alone. We think it was clearly
admissible on the question of the credibility of the witness and on the
question of intent. No exception was saved by appellants to the
instruction of the court so limiting this testimony. Acts done by a
conspirator even after the termination of the conspiracy are properly
admissible as having probative value as bearing on the intent and
purpose of the conspirator in doing acts during the existence of the
conspiracy. Thus in Lutwak v. United States, 344
U. S.
604, it is said inter alia:
"It
does not necessarily follow that acts and declarations made after the
conspiracy ended are not admissible. In this case, the essential fact of
the conspiracy was the existence of phony marriage ceremonies entered
into for the sole purpose of deceiving the immigration authorities and
perpetrating a fraud upon the
United States
. Acts which took place after the conspiracy ended which were
relevant to show the spuriousness of the marriages and the intent of the
parties in going through the marriage ceremonies were competent * *
*."
It
is now well established that evidence of acts or transactions not done
in furtherance of the conspiracy may nevertheless be admitted if they
tend to connect the conspirator with the conspiracy "by explaining
his state of mind." Glasser v.
United States
, 315
U. S.
60. Neither is there any merit to the contention that this evidence was
not admissible because it was offered in rebuttal. Walder v.
United States
, 347
U. S.
62. We conclude that there was no prejudicial error in admitting this
testimony. We have given consideration to all the other contentions
urged by appellants but think they are wholly without merit.
Appellants
were represented at the trial of this case by skilled counsel of wide
experience. The case has been well briefed on either side and ably
argued. On the whole record we are convinced that the appellants had a
fair trial and that there were no prejudicial errors committed by the
trial court. The judgment appealed from is therefore affirmed.
[60-1
USTC ¶9145]Matthew J. Connelly and T. Lamar Caudle, Appellants v.
United States of America
, Appellee
(CA-8),
U. S. Court of Appeals, 8th Circuit, No. 16,213, 271 F2d 333, 11/9/59,
Affirming an unreported District Court decision
[1954 Code Sec. 7214]
Crimes: Offenses by officers of the United States: Motion for new
trial: Newly discovered evidence.--The trial court did not abuse its
discretion when it denied appellants' motions for a new trial on the
ground of newly discovered evidence in the alleged available testimony
of their co-defendant, as to whom a mistrial had been granted. The
appellants, one the former Appointment Secretary to President Truman and
the other an Assistant Attorney General, were convicted of conspiring to
aid another in evading income taxes and to protect him from criminal
prosecution. The motions were denied on the ground that the evidence
would not probably result in an acquittal if a new trial were granted.
John
H. Lashly, Alan Y. Cole (Jacob M. Lashly, Paul B. Rava, Lashly, Lashly
& Miller with them on brief), for appellant Matthew J. Connelly. T.
L. Caudle, Jr. (Walter M. Haynes, C. Arthur Anderson, John J. Hooker
with him on brief), for appellant T. Lamar Caudle. Oliver Dibble,
Department of Justice, Washington, D. C. (Malcolm R. Wilkey, Assistant
Attorney General, Donald C. Bush, Department of Justice, Washington, D.
C.), for appellee.
Before
GARDNER, VOGEL, and VAN OOSTERHOUT, Circuit Judges.
GARDNER,
Circuit Judge:
Appellants,
with one Harry I. Schwimmer, were indicted for conspiracy to defraud the
United States
of the proper administration of Internal Revenue Laws and regulations
and of the proper and faithful service of appellants, in violation of
Section 371, Title 18, United States Code. We shall refer to appellants
as defendants.
In
the course of the trial Harry I. Schwimmer, who had been indicted with
defendants, suffered a heart attack, whereupon a mistrial was granted as
to him and the cause proceeded against the other defendants. The jury
returned a verdict of guilty, but the trial judge departed this life
before the entry of judgments. In due course, the Honorable Gunnar H.
Nordbye, United States District Judge for the District of Minnesota, was
designated as successor judge. Motions for judgments notwithstanding the
verdict were presented to and denied by Judge Nordbye and judgments and
sentences were thereupon entered. From the judgments and sentences thus
entered defendants appealed to this court and the judgments of
conviction were affirmed. 249 F. 2d 576 [57-2 USTC ¶10,029]. Defendants
then petitioned the Supreme Court for certiorari, which was denied. 356
U. S.
921. They then applied for rehearing of their petition, which was
likewise denied. 356
U. S.
964. Defendants then applied for probation under Section 3651, Title 18,
United States Code, which applications were denied. Each of the
defendants then moved for a new trial on the ground of newly discovered
evidence in the alleged available testimony of Harry I. Schwimmer, their
co-defendant, as to whom a mistrial had been granted. These motions were
denied on the ground, among others, that the evidence would not probably
result in an acquittal if a new trial were granted. This appeal
followed.
[Motion
for New Trial Based on Newly Discovered Evidence Denied]
By
way of preface, it may be stated that motions for new trial on the
ground of newly discovered evidence are looked upon with disfavor and it
is equally well settled that such motions are addressed to the judicial
discretion of the trial court and its decision will not be reversed on
appeal except for a clear abuse of that discretion. United States v.
Johnson, 327 U. S. 106 [46-1 USTC ¶9155]; Long v. United States,
10 Cir., 139 F. 2d 652; Casey v. United States, 9 Cir., 20 F. 2d
752; United States v. Hiss, D. C. N. Y., 107 F. Supp. 128, aff'd,
201 F. 2d 372; 23 Corpus Juris Secundum, Section 1453, p. 1224. In Long
v.
United States
, supra, the Court of Appeals for the Tenth Circuit, in affirming an
order denying a motion for new trial on the ground of newly discovered
evidence, states the applicable rule of procedure as follows:
"It
is well settled that the matter of granting a new trial on
after-discovered evidence rests in the sound judicial discretion of the
trial court, and an order refusing a new trial on that ground will not
be disturbed on appeal, in the absence of a plain abuse of discretion. Wulfsohn
v. Russo-Asiatic Bank, 9 Cir., 11 F. 2d 715; Streckfus Steamers,
Inc. v. Shuttleworth, 4 Cir., 86 F. 2d 327; Morton Butler Timber
Co. v.
United States
, 6 Cir., 91 F. 2d 884; Weiss v.
United States
, 5 Cir., 122 F. 2d 675. And it is equally well settled that an
application for a new trial based upon that ground is not regarded with
favor and will be granted with great caution. Bonness v.
United States
, 9 Cir., 20 F. 2d 754; Weiss v.
United States
, supra; * * *."
The
prevailing rule is thus stated in 23 Corpus Juris Secundum, Section
1453, supra:
"The
granting or the refusal of the motion rests very largely in the sound
discretion of the trial court, the prime consideration being whether or
not substantial justice has been done, and, in the absence of an abuse
of such discretion, its ruling will not be interfered with by appellate
tribunals. The courts, however, have always listened distrustfully to
the claim of newly discovered evidence, and as a ground for a new trial
it is not favored."
It
is urged in the briefs of defendants that the question of the
credibility of witnesses and the weight to be given to their testimony
is exclusively a function of the jury and cases are cited wherein the
court in its instructions to the jury invaded the province of the jury
as to this function. This rule, however, is applicable only where the
issue is tried to a jury. In issues tried to the court it is the
function of the court to determine the issues of fact and the
credibility of testimony. A motion for new trial on the ground of newly
discovered evidence is heard by the trial judge and it is his function
to determine the credibility of all evidence that may be produced. 23
Corpus Juris Secundum, Section 1461, p. 1253; United States v.
Peller, D. C. N. Y., 151 F. Supp. 242; Johnson v. United States,
8 Cir., 32 F. 2d 127. The rule is succinctly stated in 23 Corpus Juris
Secundum, Section 1461, supra, thus:
"The
trial court has the right to determine the credibility of newly
discovered evidence for which a new trial is asked, and if the court is
satisfied that, on a new trial, such testimony would not be worthy of
belief by the jury, the motion should be denied."
It
is further argued that the court did not get the "feel of the
case" because the witness, Schwimmer, did not appear on the witness
stand and his demeanor could not have been observed by the court. In
this case the testimony of the witness was secured by the answers to
direct and cross interrogatories. The short answer to this argument
would seem to be that the procedure in this case was not exceptional as
the general practice is to support motions for a new trial on the ground
of newly discovered evidence by affidavit. The court had before it and
was familiar with every syllable of the questions and answers of this
witness, and the court also had before it affidavits as to the witness's
mental and physical condition, and the court had had unusual occasion
and opportunity to be familiar with all testimony that had been
presented in the trial of this case. This court in Johnson v.
United States
, supra, announced a formula for testing the sufficiency of evidence
warranting the granting of a new trial on the ground of newly discovered
evidence. This may be summarized as follows: (a) the evidence must be in
fact newly discovered, i.e., discovered since the trial; (b) facts must
be alleged from which the court may infer diligence on the part of the
movant; (c) the evidence relied on must not be merely cumulative or
impeaching; (d) it must be material to the issues involved; and (e) it
must be such, and of such nature, as that, on a new trial, the newly
discovered evidence would probably produce an acquittal.
There
was evidence which would have warranted the court in finding the witness
incompetent to testify because of his physical and mental condition. The
court, however, resolved that conflict in favor of defendants but held
that the evidence was to a considerable extent simply corroborative of
the testimony given at the trial or was in contradiction to certain
testimony given at the trial, that the witness by his own testimony had
committed perjury in his testimony before the Grand Jury, that he was
under indictment for perjury and in effect that his testimony was not
worthy of belief. The findings of the court on this hearing should not
be disturbed unless clearly erroneous and we think they are sustained by
substantial evidence. In
United States
v. Johnson, supra, it is said:
"Since
we think it important for the orderly administration of criminal justice
that findings on conflicting evidence by trial courts on motions for new
trial based on newly discovered evidence remain undisturbed except for
most extraordinary circumstances, we granted certiorari."
In
deciding this motion the court, as was its function, determined that the
evidence offered, so far as material, was incredible. After reviewing
the evidence presented, the court's conclusions are reflected in the
closing paragraphs of its decision, which reads as follows:
"The
Court has not attempted to review herein all of Schwimmer's testimony,
but it seems evident that, notwithstanding his general denial of any
intentional wrongdoing on his part or on the part of Connelly and Caudle
as charged in the indictment, his conduct as disclosed by the record
speaks far more persuasively in that regard. From the outset it is
apparent that, in the Sachs case, he was, in common parlance, the
'fixer.' His approach to the Sachs case was to ingratiate himself
with high government officials by any means which would bring about a
favorable result for his client. He was not a tax lawyer and knew that
he had no defense in the Sachs tax fraud, although for a time he did
urge a wholly unsupported contention that there had been a voluntary
disclosure. He was the arch conspirator in the scheme and plan condemned
by the jury in its verdict against these defendants. He is an admitted
perjurer. His motives from the beginning were venal and corrupt. No
other explanation can be made for his purchase of the oil royalties for
the two top government officials with whom he was dealing. It is simply
incredible that the offering of the fragmentary deposition testimony of
this discredited witness in support of the defendants' alleged innocence
could possibly have the weight and effect of producing an acquittal for
these defendants, or either of them. In fact, they would have a far
better opportunity to obtain a favorable verdict from a jury without
attempting to utilize as a crutch the aid of one whose alignment with
them could have no other effect than to poison the minds of a jury
against them. I have a strong conviction that the motions for a new
trial on the ground of the newly discovered evidence of Schwimmer is
merely a vehicle utilized by the defendants to obtain another trial,
rather than to use his testimony in their behalf with the expectation
that, in light of the present record, it would have sufficient weight
with a jury to bring about an acquittal. It seems inconceivable that the
additional evidence of the one who spawned the plan and scheme to
corrupt government officials could have any weight in producing a
verdict other than that which was returned by the jury."
[Decision]
We
have not attempted to reproduce the testimony embodied in the deposition
of Schwimmer. We have, however, examined it with great care and we are
familiar with the record embodying the testimony produced on the trial
of this case, having twice reviewed it. From the knowledge thus gained
we are of the view that the trial court properly evaluated it and that
there was no abuse of its judicial discretion in denying the motion for
new trial on the ground of newly discovered evidence. The order appealed
from is therefore affirmed.
[66-1
USTC ¶9113]
United States of America
, Appellee v. Franz Byrd, Defendant-Appellant
(CA-2),
U. S. Court of Appeals, 2nd Circuit, Docket No. 29763, 352 F2d 570,
11/16/65, Rev'g and rem'g unreported District Court decision
[1954 Code Sec. 7214(a)(2)]
Crimes: Unlawful acts of revenue agent: Trial: Jury instructions.--A
defendant revenue Agent's conviction under a three-count indictment
charging bribe-taking under Code Sec. 7214(a)(2) was reversed and
remanded for a new trial where the trial judge failed to properly
instruct the jury on the relevance of criminal intent to the other
factors in the case and to describe it as one of the essential elements
of the offense, requiring, as such, proof beyond a reasonable doubt. One
dissent.
Robert
M. Morgenthau, United States Attorney, John E. Sprizzo, Bernard W.
Nussbaum, Assistant United States Attorneys, New York, N. Y., for
appellee. Mary M. Kaufman, Andrew R. Tyler, 30 Vessey,
New York
, N. Y., for defendant-appellant.
Before
LUMBARD, Chief Judge, and HAYS and
ANDERSON
, Circuit Judges.
ANDERSON,
Circuit Judge:
From
sometime prior to 1962 through
February 14, 19
64, when the appellant was suspended, he held a position in the Internal
Revenue Service as a tax technician, usually called an office auditor.
It was his duty to examine federal income tax returns to see whether or
not they accurately reflected the tax liability of the person filing the
return. On
December 7, 19
64, an indictment in three counts was returned against him. The first
count charged that on or about
July 12, 19
62, he and co-defendant Jeremiah Ryan, who was also an office auditor in
another group within the New York office of the Internal Revenue
Service, received a fee, not prescribed by law, from a co-defendant
Kaufman, a certified public accountant, for auditing the 1961 income tax
returns of Sidney and Carolyn Bell, clients of Kaufman. The second count
similarly charged the appellant and co-defendant Lawrence Montello, an
office auditor in another group within the
New York
office of the Internal Revenue Service, with receiving such a fee from
Kaufman on or about
May 7, 19
62 for auditing the 1961 income tax return of
Carlton
and Shirley Spark, clients of Kaufman. Count three charged the appellant
with receiving a sum of money from an accountant named Albert Goldstein
in connection with the auditing of the income tax return of Eugene and
Joan MacMillin, who were clients of Goldstein.
At
the trial the principal witnesses for the Government were Kaufman, Ryan,
Montello and Goldstein, each of whom testified to the transactions
referred to in the indictment in which they were involved with the
appellant.
Kaufman,
after testifying to the appellant's activities in connection with the
Bell return in the first count and the Spark return in the second count,
also, over objection, testified to an additional almost identical
transaction in which the appellant, for a payment to him by Kaufman of
$50 audited the 1962 tax return of Herman and Wanda Sandberg, clients of
Kaufman.
The
defendant Byrd took the stand and testified in his own behalf. He denied
ever having any conversation with Kaufman, Ryan, Montello or Goldstein
concerning the payment to him of money for the auditing of any of the
returns referred to in the indictment and he denied receiving or paying
any money from or to Kaufman, Ryan, Montello or Goldstein in connection
with the audit of any tax return. The jury returned verdicts of guilty
against Byrd on all of the three counts.
On
this appeal Byrd claims that the trial court committed plain error in
its charge to the jury in failing to include criminal intent as one of
the essential elements of the offense alleged in the three counts. There
was no exception taken to the court's instructions but the appellant
asserts that there were several other mistakes in the charge of
sufficient gravity to constitute plain error. We conclude that, in the
circumstances of this case, the omission of criminal intent as one of
the enumerated essential elements of the offense charged, constituted
plain error and that, therefore, the judgment must be reversed and the
case remanded for a new trial.
By
failing specifically to instruct the jury that criminal intent was an
essential element of the offense, the court left what it did say about
intent and the act being knowingly committed, unrelated to the other
elements of the crime and omitted any instruction that criminal intent
was an element which the Government, to convict, was required to prove
beyond a reasonable doubt. While it did not define criminal intent as
such, it did give one of the generally used definitions of
"knowingly" 1 which in the
circumstances of the case would have sufficed, because a finding that
one acts knowingly presupposes that he was apprised of all of the facts
which constitute the offense.
"Ordinarily
one is not guilty of a crime unless he is aware of the existence of all
those facts which make his conduct criminal. That awareness is all that
is meant by the means rea, the 'criminal intent,' necessary to guilt, .
. ."
United States
v. Crimmins, 123 F. 2d 271, 272 (2d Cir. 1941).
Examining
the charge as a whole, however, this definition stands entirely
unrelated to the other essential elements of the crime. What its
significance is in the case and how it should be treated by the jury is
left to conjecture. The definition of "knowingly" was
immediately followed by a substantially correct instruction on the use,
for the limited purpose of showing knowledge or intent, of the evidence
of the prior similar offense which concerned the Sandberg tax return. 2 These
portions of the charge were preceded by the instructions concerning
proof beyond a reasonable doubt, but nowhere was the jury told that the
Government was required to prove criminal intent beyond a reasonable
doubt. The general admonition that the Government must prove the
defendant guilty beyond a reasonable doubt, and the recitation that the
indictment alleged that the acts "performed by this defendant were
done unlawfully, knowingly and wilfully" are altogether too tenuous
and imprecise to pass as an adequate explanation that criminal intent is
an essential element of the offense which must be proven beyond a
reasonable doubt. Actually the phrasing of the directions concerning the
use of the evidence of the Sandberg incident tended to give to intent an
undefined status, separate from the other essential elements. Statements
such as "unless you first find that the other evidence in the case
standing alone establishes the defendant's guilt beyond a reasonable
doubt, then the fact that he committed this other act cannot fill in
that blank," "So that you consider the Sandberg return not as
proving any of these elements in this case," followed by "You
must be satisfied beyond a reasonable doubt that they exist," while
intended properly to caution the jury against using the evidence of the
Sandberg matter on any element other than criminal intent, really left
it to the jury to decide how much importance as a matter of law should
be given to the factor of criminal intent and what standard of proof was
required for it.
Even
so, the court's treatment of the issue might have survived the test of
plain error, Rule 52(b) F. R. Crim. P., except for its specific
delineation of the essential elements of the offense.
The
instructions which bore on intent came in the early part of the charge.
Thereafter the court gave fairly full explanations of types of evidence,
rulings on evidence, evaluation of testimony, an analysis of Government
and defense evidence, the definition of accompliance and the cautionary
remarks on dealing with accomplices' testimony, a reading of the
applicable statute and comments on the three counts of the indictment.
Then toward the end of the charge the court specified the essential
elements of each of the offenses charged as follows:
"1.
That the defendant was an employee of the
United States
.
2.
That he was acting in connection with the revenue laws of the
United States
.
3.
That he received a fee not prescribed by law.
4.
That he received a fee for the performance of a duty."
It
briefly mentioned how the jury should handle the separate counts and
then said,
"Now,
if you find, after such examination, that the government has proven all
the four elements which I have just described to you beyond a reasonable
doubt as to any of these counts, then he should be convicted on that
count."
Thus
in the very climax of the charge the court in short explicit terms gave
the jury what they would naturally regard as the nub of the law of the
case and which, coming at the end of the exposition of the law, gave
them what they were most likely to hold in their minds and apply to the
facts in their deliberations, and which, not only completely omitted
criminal intent as an essential element but, specifically told the jury
that, if they found the other four elements which were mentioned, they
had a duty to convict.
Byrd
made no special attack on the element of intent, for he denied accepting
any bribes. The jury disbelieved him. But to sustain a conviction the
Government had to prove and the jury had to find criminal intent. It was
an unavoidable issue in the case.
We
conclude that the court's failure to explain the relevance of criminal
intent to the other factors in the case and to describe it as one of the
essential elements of the offense, requiring, as such, proof beyond a
reasonable doubt, was tantamount to no instruction at all on the
subject. There was, therefore, plain error which requires reversal even
though no exception was taken below to the charge as given. Screws v.
United States, 325 U. S. 91, 107 (1945); United States v.
Gillilan, 288 F. 2d 796 (2d Cir.), cert. denied sub nom. Apex
Distributing Co., Inc. v. United States, 368 U. S. 821 (1961); United
States v. Noble, 155 F. 2d 315 (3rd Cir. 1946).
In
view of this disposition of the case we do not specifically rule upon
the remaining points raised in the appeal except to comment on two or
three of the issues raised, as a guide to the court at the second trial.
One
of these points concerns the admission by the trial court of evidence of
Byrd's activities in connection with the auditing of the Sandberg tax
return. The Government offered it as a part of its main case for the
purpose of showing criminal intent. A vigorous objection was made by the
defense but the court admitted it. The admissibility of this kind of
evidence is "a matter in which the trial judge should be allowed a
wide range of discretion."
United States
v. Feldman, 136 F. 2d 394, 399. The exercise of discretion must
be addressed to a balancing of the probative value of the proffered
evidence, on the one hand, against its prejudicial character, on the
other. The probative value is measured by the extent to which the
evidence of prior criminal activities, other than a conviction, closely
related in time and subject matter, tends to establish that the accused
committed the criminal act charged in the indictment knowingly or with
criminal intent or tends to negative the claim that the acts were
committed innocently or through mistake or misunderstanding.
It
is generally recognized that there can be no complete assurance that the
jury even under the best of instructions will strictly confine the use
of this kind of evidence to the issue of knowledge and intent and wholly
put out of their minds the implication that the accused, having
committed the prior similar criminal act, probably committed the one
with which he is actually charged. The court in its colloquy with
defense counsel conceded that prejudice of this sort would result to
Byrd in letting in the evidence.
From
the quality of proof standpoint for proving knowledge and intent, its
probative value was largely cumulative. The evidence came from the mouth
of the same witness, Kaufman, who testified to the occurrences in the
first two counts. If the jury believed his testimony as to those counts,
the relating of the Sandberg incident added little, if anything, to a
revelation of Byrd's state of mind. If they had disbelieved Kaufman's
testimony about the first two counts, it is not very likely they would
have believed his story about the Sandberg tax audit.
Another
factor to be considered is whether the Government was faced with a real
necessity which required it to offer the evidence in its main case. The
defense had not, either in its claims or the statement of facts which it
would seek to prove, "sharpened" the issue of intent by
asserting that the act charged was done innocently or by accident or
mistake. McCormick, Evidence, §157 at 331 (1954); Vol. 1 Wharton's
Criminal Evidence, §237 at 528 (12th ed. 1955). Nor did the Government
suffer from a lack of evidence of intent. Kafman's testimony relating to
the first two counts furnished ample evidence of knowledge and intent,
of the same kind and quality as that shown by his testimony concerning
the Sandberg tax return. There was therefore no pressing necessity that
evidence of that prior occasion be offered on the Government's main
case.
United States
v. Ross, 321 F. 2d 61, 67 (2d Cir. 1963). It is, of course,
conceivable that in some cases proof of the offenses charged would
contain little or nothing from which an inference of guilty intent could
be drawn. In such a case a trial judge would, in the exercise of his
discretion, be justified in admitting as part of the Government's case,
proof of a prior similar offense to show knowledge or intent. For the
present purpose of this discussion it is enough to point out that the
scope of discretion does not include every offer of a prior similar
offense which may contribute something to a showing of intent in the
Government's main case. Where the prejudice is substantial and the
probative value, through the nature of the evidence or the lack of any
real necessity for it, is slight, its admission at that stage may be
held to be an abuse of discretion. Under such circumstances the better
practice would be to sustain the objection to the offer on the
Government's main case without prejudice to its re-offer in rebuttal, if
then warranted.
Another
point raised concerning the court's charge is that, in the course of
instructing the jury on the meaning and application of reasonable doubt,
the court gave as one of the alternative definitions the following:
"It
is a doubt to a moral certainty."
"Doubt"
and "certainty" are antithetical and, in our opinion, the use
of them in this manner and for this purpose would tend to create more
confusion than light in the minds of the jury.
The
appellant also complains that in the charge the court defined an
accomplice as "one who unites with another person to commit a
crime" and then went on to charge the jury as a matter of law that
Ryan, Montello, Kaufman and Goldstein were accomplices. He asserts that
this was particularly damaging in connection with the third count
because the appellant was the only person alleged to have participated
in that offense other than Goldstein. He argues that the judge's
statements were therefore the equivalent of a directed verdict of guilty
against him. Although it is not very likely that any such conclusion was
reached by either the court or any of the members of the jury,
nevertheless, the instructions on accomplice witnesses could have been
so couched as to obviate this problem. A somewhat similar situation
arose in the case of United States v. Johnson, 343 F. 2d 5 (2d
Cir. 1965), and was the subject of a point raised on appeal, but the
court found that no error had been committed. It should be stated,
however, that the context of the accomplice instructions in Johnson
made the possible implication less damaging to the defendant; and the
record in Johnson indicates that there were others besides the
particular accused with whom the accomplice could have been associated.
The
only remaining point raised on appeal which we shall mention concerns
the court's instruction to the jury regarding Title 18 U. S. C. §2,
known as the "aider and abettor" statute. As the nature of the
Government's case against Byrd, in the charges contained in the first
and second counts, placed Byrd in the role of one who was either aiding
and abetting, or causing, office auditors Jeremiah Ryan and Lawrence
Montello to receive fees for the performances of their respective
duties, the court should have given the jury a fuller explanation on
aider and abettor and the applicability of the provisions of the statute
to the issues in the case. They needed something more than a mere
reading of the statute. There were no exceptions to the court's charge
and what has been said about reasonable doubt, the accomplice's
testimony and the application of the aider and abettor statute do not
constitute plain error. However, at retrial both the points discussed
and those not commented upon, if they again arise, warrant consideration
by the trial court.
The
judgment of the district court is reversed and the case is remanded for
a new trial.
1
"Now, the word 'knowingly,' as used in the indictment, means that
the act or acts which were committed by the defendant were done
voluntarily and purposely, not because of a mistake or inadvertence or
in good faith.
Now,
the knowledge may be proven by the defendant's conduct and by all the
facts and circumstances surrounding the case.
No
person can intentionally avoid knowledge by closing his eyes to facts
which prompt him to investigate.
In
order to find knowledge on his part, however, you must find an awareness
on his part that the act he is committing is in violation of the law,
and in this case, as I have indicated to you, it is this federal
law."
The
instruction that the jury must find that the defendant, in committing
the act was aware that he was breaking the law was incorrect and
over-generous to the defendant. American Surety Co. v. Sullivan,
7 F. 2d 605, 606 (2d Cir. 1925).
2
"Now, evidence that that act was done at one time is not proof that
a similar act was done at another time or occasion. That is to say,
evidence that the defendant committed another act of a like nature may
not be considered by you in determining whether the accused committed
any offense charged in the indictment, nor may any evidence of an
alleged other act of a like nature be considered by you for that
purpose. Unless you first find that the other evidence in the case
standing alone establishes the defendant's guilt beyond a reasonable
doubt, then the fact that he committed this other act cannot fill in
that blank. If you find that he did beyond a reasonable doubt, then, of
course, it will help you.
If
you find beyond a reasonable doubt from the other evidence in the case
that the accused did the act charged in the particular count under
deliberation, then you may consider the evidence of the alleged other
act of a like nature in determining the state of mind or intent with
which the accused did the act charged in the particular count, and where
proof of the alleged other act of a like nature--and I am talking about
the Sandberg return, which is not in the count--is established by
evidence which is clear and conclusive to you, you may draw therefrom
the inference that in doing the act charged in the particular count
under deliberation, the accused acted knowingly and with a specific
intent and not because of a mistake or inadvertence or other innocent
reason. So that you consider the Sandberg return not as proving any of
these elements in this case.
You
must be satisfied beyond a reasonable doubt that they exist, but if you
come to that conclusion, then you may consider the Sandberg incident to
indicate that he had the intention of violating the law, that he just
didn't make a mistake."
[Dissenting
Opinion]
LUMBARD,
Chief Judge (dissenting).
In
my opinion, the failure of the trial judge to include an instruction on
the necessity of finding criminal intent in the list of essential
elements which the jury was directed to find before it could convict
does not call for reversal because he had already given sufficient
general instructions on the question of intent and because the conduct
of the defense had effectively eliminated the issue of intent from the
case.
During
his charge Judge Cannella instructed the jury that the acts must have
been done purposely and not be mistake, inadvertence, or in good faith;
indeed he said that an awareness by the defendant that the act committed
was in violation of the law was necessary. The defense made no objection
whatever to the charge. Although it would have been desirable to have
included intent in the summation of the essential elements necessary for
conviction at the end of the charge, in view of the fact that the issue
of intent was never raised during the trial, it was not necessary to
stress it by repetition. From a reading of the whole charge, I think it
was apparent that intent was an element to be proven by the government.
More
importantly, Byrd cannot claim he was prejudiced by the absence of a
charge concerning intent when there was no issue of intent in the case.
Byrd's entire defense was that he did not receive the alleged bribes.
Byrd flatly denied that he had ever received or been given any money by
Kaufman or Goldstein. Thus there could never have been any question of
the intent if the jury believed the testimony of the prosecution
witnesses, or if they disbelieved them and believed Byrd. There was no
issue of intent for the jury to consider. In the absence of any
objection to the charge as it was given, I see no reason to invoke our
power under Rule 52(b) Federal Rules of Criminal Procedure when the
error concerned a matter which had not been in contention at any time
during the trial.
Nothing
in Screws v. United States, 325 U. S. 91 (1945) or United
States v. Gillian, 288 F. 2d 796 (2 Cir.), cert. denied sub nom. Apex
Distributing Co., Inc. v. United States, 368 U. S. 821 (1961)
suggests the contrary is required. In Screws the narrower
instructions were considered necessary in order to preserve the
constitutionality of the statute. There is no indication that the
instructions were not objected to in Gillilan, supra, and it is
apparent that any concerned issues which were contested during the
trial. United States v. Noble, 155 F. 2d 315 (3 Cir. 1946), cited
by the majority, is also inapposite since the trial judge there had
given no oral instructions whatever about the elements of the crime
charged.
It
seems to me highly undesirable for us to allow counsel to urge as error
on appeal matters about which no complaint was made at the time.
Moreover, I do not see how it can fairly be claimed that failure to
stress what was understood should now be considered by us to be
reversible error requiring a new trial.
I
agree with so much of the majority's opinion which holds that evidence
concerning defendant's commission of similar acts at other times should
not ordinarily be admitted unless the question of intent is in dispute.
In the circumstances of this case, therefore, the testimony concerning
Sandberg's tax return should not have been admitted on the government's
direct case. But because the evidence on that matter was largely
cumulative and offered by a witness who, if believed on that matter,
would doubtless also have been believed by the jury on the similar acts
under indictment, we should not hold the admission of the evidence to be
reversible error.
I
would affirm.
[66-1
USTC ¶9134]
United States of America
, Appellee v. Eugene Kenner, Appellant
(CA-2),
U. S. Court of Appeals, 2d Circuit, Docket No. 29760, 354 F2d 780,
12/15/65, Aff'g unreported District Court decision
[1954 Code Sec. 7214(a)(2)]
Crimes: Tax evasion: Bribery of revenue agents: Aiding and abetting
the taking of bribes.--Various assignments of error were overruled
by the Court of Appeals, and the conviction of a certified public
accountant on two counts of bribery and five counts of aiding and
abetting certain defendant revenue agents under Code Sec. 7214(a)(2) in
the taking of bribes was affirmed.
Robert
M. Morgenthau, United States Attorney, Hugh C. Humphreys, Pierre N.
Leval, Assistant United States Attorneys New York, N. Y., for appellee.
James A. Cuddihy, John A. Keeffe, Havens, Wandless, Stitt & Tighe,
60 E. 42nd St., New York, N. Y., Herbert J. Korbel, 120 Broadway, New
York, N. Y., for appellant.
Before
WATERMAN, HAYS and
ANDERSON
, Circuit Judges.
HAYS,
Circuit Judge:
Kenner
appeals from a judgment of conviction entered upon a jury verdict
finding him guilty of violating 18 U. S. C. §201(f) (two counts) and of
aiding and abetting (18 U. S. C. §2(a)) violations of 26 U. S. C. §7214(a)(2)
1 (five
counts).
Kenner
was sentenced to imprisonment of one year on each of the seven counts on
which he was convicted, the sentences to run concurrently.
The
offenses of which
Kenner
was convicted consisted essentially of bribery of employees of the
Internal Revenue Service.
Kenner
was a certified public accountant who prepared income tax returns for
his clients and represented these clients when their returns were
audited by the Service. His criminal activities, as pictured by the
government's evidence, all followed a single pattern with only slight
variations in individual cases.
Kenner
would suggest to an auditor in the office audit division of the Internal
Revenue Service in New York that he, the auditor, "pull" for
audit X's tax return, X being one of Kenner's clients. This procedure
was in itself irregular, since returns were ordinarily assigned to the
individual auditors by the group supervisor.
Kenner
would then propose to the auditor an amount of deduction for business
expenses, travel, entertainment, medical expenses or the like which
should be disallowed. The auditor, without examining the merits of the
proposed amount (or the substantiation for the amounts claimed) would
make up his report disallowing the amount which
Kenner
had suggested.
Kenner
would then by prearrangement meet the auditor at some place outside the
audit division's offices and, usually in a surreptitious manner, give
him fifty or seventy-five dollars.
Appellant
advances a number of claims of error in the proceedings of the district
court. Finding that there was no error sufficiently prejudicial to call
for reversal of the conviction, we affirm.
We
shall examine appellant's contentions seriatim.
1.
The Allen charge
After
deliberating for three hours and forty-five minutes the jury sent out a
message stating that it was "hopelessly deadlocked." The judge
thereupon, over defendant's objection, read to the jury a passage,
slightly modified, from the opinion in Allen v. United States,
164 U. S. 492, 501-02 (1896). 2
This
court has in the past approved the Allen charge in certain
circumstances. United States v. Tolub, 309 F. 2d 286 (2d Cir.
1962); United States v. Curcio [60-2 USTC ¶9514], 279 F. 2d 681
(2d Cir.), cert. denied, 364
U. S.
824 (1960); United States v. Kahaner, 317 F. 2d 459, 484 n. 18
(2d Cir.), cert. denied, 375
U. S.
835 (1963). However, in all of these cases, as well as in United
States v. Thomas, 282 F. 2d 191 (2d Cir. 1960), which is also cited
by the government, the effect of reading to the jury that part of the Allen
opinion which Judge Murphy read was mitigated by the assurance in some
form that a juror was not expected, in deference to the other jurors, to
abandon his conscientious convictions.
In
United States v. Tolub, which the government says quoted exactly
that portion of the Supreme Court's opinion quoted by Judge Murphy, the
Judge added immediately after the quotation:
"Remember
at all times that no juror is expected to yield a conscientious
conviction he or she may have as to the weight or effect of evidence,
but remember also that after full deliberation and consideration of all
the evidence, it is your duty to agree upon the verdict, if you can do
so, without violating your individual judgment and conscience."
In
United States
v. Kahaner, supra at 483-4, Judge Friendly said:
"[The
trial judge said in his charge] 'It is desirable if a verdict can be
reached that this be done both from the viewpoint of the defendants and
the Government', but that this was true only if the verdict 'reflects
the conscientious judgment of each juror and under no circumstance must
any juror yield his conscientious judgment.' . . .
`It
has been a long trial and a trial, as I say, where I am satisfied each
side prefers finality of judgment if it can be obtained on the basis of
a conscientious reflection of each juror's final vote.' Exceptions of
defense counsel were overruled and a motion for a mistrial denied;
however, the judge recalled the jury and again emphasized, in a variety
of ways, that 'if any individual juror still retains a conscientious
view that differs from that of other jurors, * * * you are not to yield
your judgment'; 'you are not to yield your judgment simply because you
may be outnumbered or outweighed,' etc. . . .
"This
recital of the facts suffices almost without more to dispose of the
characterization, made by one of the appellants, that 'The jury was
being coerced by being subjected, in these circumstances, on two
separate occasions to the "dynamite" Allen charge.' On
the contrary, if the charge is to be given at all, we do not see how
this could be done with less tendency to coercion or more emphasis on
the need for conscientious individual agreement than in the way Judge
Weinfeld did it."
In
United States v. Curcio, the trial court read to the jury that
part of the Allen opinion which states "that it was their
duty to decide the case if they could conscientiously do so."
In
United States v. Thomas, the judge said in his charge:
"Your
verdict, of course, must be the verdict of each individual juror and not
a mere acquiescence in the conclusion of his fellows. . . ."
"It
is your duty to decide the case, if you can do so conscientiously."
In
the present case the only thing the judge added to the part of the Allen
opinion which he read to the jury was the following:
"I
am going to suggest that you think about that and go back and try again.
You know, what we all try to achieve is unanimity in these cases. I hope
that you can do it. I don't mean by reading this charge to coerce some
juror who feels that he or she is of this opinion or that but certainly
the advice of the Supreme Court should be heeded.
It
may be that you can agree on some of the counts and not on others, but
whatever is the ultimate decision we will accept it.
I
am going to ask you to go back and try again, and if you can't agree,
that is it, we have to quit.
So
will you please go back and try again?"
We
have had grave doubt as to whether the charge thus given was not unduly
coercive. We have concluded that the case is saved from reversal by the
barest margin, the margin provided in these circumstances and in this
context by the judge's disclaimer of intention to "coerce" and
by his expression of willingness to accept "the ultimate
decision," whatever it might be. 3
2.
The Jencks Act material
When
summations were about to begin on the morning of the day after both
sides had rested, defense counsel asked permission to examine one of the
government's witnesses to ascertain whether there was material in
addition to that already provided, to which defendant would be entitled
under the Jencks Act (18 U. S. C. §3500). The court denied the
application. After verdict appellant renewed his application, and it was
again denied. 4 Whether or
not to permit the case to be reopened for further proceedings was within
the discretion of the court. The facts here show no abuse of discretion.
See United States v. Sheba Bracelets, 248 F. 2d 134 (2d Cir.),
cert. denied, 355
U. S.
904 (1957).
3.
Concurrent sentences
The
remaining contentions of defendant involve 18
U. S.
C. §201(f), which is relevant to two of the counts, and 26
U. S.
C. §7214(a)(2), which applies to the other five counts on which the
appellant was convicted. Since the appellant was sentenced to one year's
imprisonment on each of the seven counts, all sentences to run
concurrently, this court must affirm if it finds that conviction was
warranted on any one count. Lawn v. United States [58-1 USTC ¶9189],
355
U. S.
339, 359, 362 (1958); United States v. Houlihan, 332 F. 2d 8,
13-14 (2d Cir.), cert. denied, 379
U. S.
828 (1964).
4.
18 U. S. C. §201(f)
Appellant
claims that Section 201(f) is "unconstitutionally vague." The
section has recently been upheld by this Court against an attack on the
ground of vagueness. United States v. Irwin, -- F. 2d -- (2d Cir.
1965). It is sufficient to say here that the statute is entirely clear
as applied to the conduct with which appellant was charged, whatever its
ambit with respect to other matters not involved in the present case.
"[O]ne
to whom application of a statute is constitutional will not be heard to
attack the statute on the ground that impliedly it might also be taken
as applying to other persons or other situations in which its
application might be unconstitutional."
United States
v. Raines, 362
U. S.
17, 21 (1960).
Appellant's
contention that the evidence failed to establish that the money given to
the auditor by appellant was given "for or because of" an
official act borders on the frivolous. After arranging for the phony
audits, appellant told the auditor that he would contact him. When he
did so he surreptitiously delivered an amount which would equal fifty
dollars for each such audit. Far from being insufficient the evidence
leaves no room for any other conclusion than that the payments were made
for the pretended audits. See United States v. Lev, 258 F. 2d 9
(2d Cir.), aff'd by an equally divided Court, 360
U. S.
470, petition for rehearing denied, 361
U. S.
856 (1959).
Appellant
contends that it was error for the judge to fail to charge that in order
to convict under Section 201(f) corrupt intent to influence must be
found. Examination of Section 201 shows that, although proof of corrupt
intent is required for conviction under Subsections (b), (c), (d) and
(e), for violation of which the prescribed penalties are much more
severe, conviction under Subsection (f) requires only proof that the
payment was made "for or because of" the performance of an
official act. In any event the appellant is not in any position to raise
the point since in the trial court he failed to object to the charge on
this ground.
United States
v. Rinaldi, 301 F. 2d 576, 578 (2d Cir. 1962).
5.
26 U. S. C. §7214(a)(2)
Appellant
was found guilty under 18
U. S.
C. §2 by aiding and abetting certain other defendants in violating 26
U. S.
C. §7214(a)(2). He argues that this was error because the acts which he
was charged with aiding and abetting were not violations of §7214(a)(2).
Appellant's
argument is based, first, upon the language of §7214(a)(2) which
prohibits the receipt by an officer or employee of a "fee,
compensation, or reward, except as by law prescribed, for the
performance of any duty." The sums which appellant was charged with
paying were not, he says, a fee, compensation or reward, but a
"gratuity." We hold that the language of §7214(a)(2) is
sufficiently broad to include the payments made by appellant.
Appellant's
contention that §7214(a)(2) is "a historical vestige, reenacted
through apparent oversight" is negatived by the fact that when
Section 7214(a) was reenacted in 1954 its language "any officer or
agent appointed or acting under the authority of any revenue law of the
United States," was broadened to cover "any officer or
employee of the United States acting in connection with any revenue law
of the United States."
The
presence in §7214(a)(2) of penalty provisions which would be
inappropriate in their application to defendant (e.g. dismissal from
office) does not preclude the applicability to that Section of the
aiding and abetting statute. The legislative history of the 1951
amendment to 18 U. S. C. §2 shows that Congress intended that statute
to apply to situations in which the "principal" is, for
example, an officer or employee of the United States and therefore
subject to penalties, such as removal from office, which would be
irrelevant to the situation of the person charged with aiding and
abetting. See 1951
U. S.
Cong. and Adm. Serv. 2583.
Contrary
to appellant's contention, a payor of a bribe can be an aider and
abettor under 18
U. S.
C. §2. May v.
United States
, 175 F. 2d 994 (D. C. Cir.), cert. denied, 338
U. S.
830 (1949). See United States v. Johnson, 337 F. 2d 180, 196 (4th
Cir. 1964), cert. granted, 379
U. S.
988 (1965); United States v. Fromen, 265 F. 2d 702, 705 (2d
Cir.), cert. denied, 360
U. S.
909 (1959).
Appellant
claims that the charges contained in two of the counts on which he was
convicted were barred by the running of the statute of limitations.
Appellant first raised this defense after trial by a motion to correct
an illegal sentence. The defense of the statute of limitations must be
raised before or during the trial. "If this is not done and a
verdict of guilty is rendered, sentence may be lawfully imposed." Askins
v.
United States
, 251 F. 2d 909, 913 (D. C. Cir. 1958). See also United States v.
Taylor, 207 F. 2d 437 (2d Cir. 1953).
We
find no error which requires reversal of the conviction.
Affirmed.
1
These statutes provide in relevant part:
18
U. S. C. §201(f):
§201. Bribery of public officials and witnesses. Whoever, otherwise
than as provided by law for the proper discharge of official duty,
directly or indirectly gives, offers, or promises anything of value to
any public official, former public official, or person selected to be a
public official, for or because of any official act performed or to be
performed by such public official, former public official, or person
selected to be a public official.
shall be fined not more than $10,000 or imprisoned for not more than two
years, or both.
18 U. S. C. §2(a):
§2. Principals.
(a) Whoever commits an offense against the
United States
or aids, abets, counsels, commands, induces or procures its commission,
is punishable as a principal.
26 U. S. C. §7214(a):
§7214. Offenses by officers and employees of the
United States
.
(a) Unlawful acts of revenue officers or agents. Any officer or employee
of the United States acting in connection with any revenue law of the
United States--
* * *
(2)
who knowingly demands other or greater sums than are authorized by law,
or receives any fee, compensation, or reward, except as by law
prescribed, for the performance of any duty;
*
* *
shall be dismissed from office or discharged from employment and, upon
conviction thereof, shall be fined not more than $10,000, or imprisoned
not more than 5 years, or both. The court may in its discretion award
out of the fine so imposed an amount, not in excess of one-half thereof,
for the use of the informer, if any, who shall be ascertained by the
judgment of the court. The court also shall render judgment against the
said officer or employee for the amount of damages sustained in favor of
the party injured, to be collected by execution.
2
"While, undoubtedly, the verdict of the jury should represent the
opinion of each individual juror, it by no means follows that opinions
may not be changed by conference in the jury-room. The very object of
the jury system is to secure unanimity by a comparison of views, and by
arguments among the jurors themselves. It certainly cannot be the law
that each juror should not listen with deference to arguments and with a
distrust of his own view, his own judgment, if he finds a large majority
of the jury taking a different view of the case from what he does
himself. It cannot be that each juror should go to the jury-room with a
blind determination that the verdict shall represent his opinion of the
case at that moment; or, that he should close his ears to the arguments
of men who are equally honest and equally intelligent as himself."
3
We have not considered the affidavit of one of the jurors which was
submitted by the defendant to support his allegation of coercion. Stein
v.
New York
, 346
U. S.
156, 178 (1953), overruled in part by Jackson v. Denno, 378
U. S.
368, 391 (1964); United States v. Crosby, 294 F. 2d 928, 949-50
(2d Cir.), cert. denied, sub nom. Mittleman v. United States, 368
U. S.
984 (1962).
4
The government and the witness whose testimony was sought filed
affidavits denying that there was any additional material. In the
absence of any evidence to the contrary it was not error for the court
to refuse the requested voir dire.
[66-2
USTC ¶9759]
United States of America
, Appellee v. Sam Umans, Appellant
(CA-2),
U. S. Court of Appeals, 2nd Circuit, Docket No. 30168, 368 F2d 725,
10/27/66, Affirming an unreported District Court opinion
[1954 Code Sec. 7214(a)(2) and 18 U. S. C. 201]
Crimes: Bribery of Internal Revenue Service agents: Conviction.--The
taxpayer's conviction on 21 counts for aiding and abetting Internal
Revenue Service agents in receiving illegal compensation for the
performance of their duties and for offering bribes to such agents was
upheld. However, three counts were vacated because they covered lesser
offenses which were already included in other counts on which the
taxpayer had been convicted and for which concurrent sentences had been
imposed.
Robert
M. Morgenthau, United States Attorney, John S. Allee, Michael W.
Mitchell, Bernard W. Nussbaum, Assistant United States Attorneys, New
York, N. Y., for appellee. Edward Brodsky, 655 Madison Ave., New York,
N. Y., William Esbitt, 122 E. 42nd., New York, N. Y., for appellant.
Before
LUMBARD, Chief Judge, WATERMAN and ANDERSON, Circuit Judges.
[Taxpayer's
Conviction on 24 Counts]
WATERMAN,
Circuit Judge:
Certain
taxpayers took deductions on income tax returns for items of travel,
entertainment, and the like, in excess of sums that could be
substantiated. Appellant, a certified public accountant, then entered
into arrangements with auditing employees of the Internal Revenue
Service by which appellant made surreptitious cash payments to the
employees and, upon audit, the employees disallowed a lesser portion of
the deductions than should have been disallowed. Appellant was named a
defendant in 24 counts of a 27 count indictment. In nine of these counts
he was charged with aiding and abetting codefendants, Internal Revenue
Service agents, in receiving illegal fees, compensations and rewards for
the performance of their duties, in violation of 26 U. S. C. §7214(a)(2)
and 18 U. S. C. §2; in three with giving money to various codefendant
Internal Revenue Service agents during the year 1963, in violation of 18
U. S. C. §201(f); in nine other counts with giving money to the various
agents with intent to influence their official acts during the years
1961 and 1962, in violation of 18 U. S. C. §201; and in three other
counts, which set forth the same acts that allegedly violated 18 U. S.
C. §201(f), with corruptly giving money to various agents of the
Internal Revenue Service with intent to influence their official acts
during the year 1963, in violation of 18 U. S. C. §201(b). After a jury
trial in the United States District Court for the Southern District of
New York, Murphy, J., he was convicted on all 24 counts and
sentenced to two years' imprisonment on each count, the sentences to run
concurrently.
[Issues
on Appeal]
Eight
issues have been presented for appellate consideration.
First,
appellant maintains that the trial court committed prejudicial error
when it did not instruct the jury that in order to convict appellant on
the nine counts charging the aiding and abetting of violations of 26 U.
S. C. §7214(a)(2) one of the elements of the crimes necessary to be
proved was criminal intent. It is not entirely clear whether appellant
is maintaining that the charge was deficient as to appellant's intent to
aid and abet or that it was deficient relative to the Internal Revenue
Service agents' intent to commit the crime. But we note that no
objection as to either was made to the charge as given, and no request
for a further charge as to anyone's intent was made to the trial court
before the jury retired. Therefore, unless there was a charge so
deficient that we must consider it to be "plain error" no
objection to the charge will be here countenanced. See Fred. R. Crim. P.
30, 52(b).
With
reference to Umans's intent to aid and abet the commission of the nine
crimes, the charge given was proper. It followed the standard laid down
in Nye & Nissen v. United States, 336 U. S. 613, 619 (1949)
quoting L. Hand, J., in United States v. Peoni, 100 F. 2d
401, 402 (2 Cir. 1938) that the defendant "in some sort associate
himself with the venture, that he participate in it as something he
wishes to bring about, that he seek by his action to make it
succeed." Further, the jury convicted Umans on other counts that
involved the same incidents, and as to those counts the jury was
instructed that to find him guilty he must have made the payments with
"an intent on the part of the defendant to corruptly influence the
employee as to the audit then pending before him." Under these
circumstances, we find no inadequacy in the charge as to the need of
proof of Umans's intent to aid and abet.
[Omission
Not Prejudicial]
The
trial court's charge did not include any instructions that proof of the
criminal intent of Internal Revenue Service agents to commit the crimes
they committed in violation of 26 U. S. C. §7214(a)(2) was necessary in
order to convict Umans of having committed the crimes he was charged
with having committed in aid thereof. This was error, as one's criminal
intent is a necessary element of the proof required to convict under
that statute. In United States v. Byrd [66-1 USTC ¶9113], 352 F.
2d 570, 572 (2 Cir. 1965) such an omission in a charge was held by this
court to be plain error requiring reversal of a conviction despite the
absence of an objection at trial. It is also a necessary element of the
proof needed to convict one who aids and abets a violation. See
United States
v. Jones, 308 F. 2d 26, 32 (2 Cir. 1962).
We
do not consider the omission here, however, sufficiently prejudicial, in
the absence of an objection at trial, to require reversal of Umans's
convictions on these counts. The agents whose criminal acts Umans was
charged with aiding and abetting were prosecuted together with him in
the same indictment with him, prior to Umans's trial had pleaded guilty
to having committed the crimes, had testified for the Government at
Umans's trial, and had admitted their guilt on the stand in the jury's
presence. The jury knew the agents had the required criminal intent from
the agent's own testimony.
[Lesser
Offenses Involved]
Appellant
next claims that, as he had been convicted for committing the same
criminal acts under 18 U. S. C. §201(b) on the one hand, and, on the
other, under §201(f), and had also been convicted for the same criminal
acts on the one hand under 26 U. S. C. §7214(a)(2), and, on the other,
under 18 U. S. C. §201, he had been, in both instances, convicted of
having committed mutually inconsistent crimes.
It
appears that in both claimed inconsistent instances one of the two
statutes requires proof of an extra element to convict, a specific
intent to influence official action, while the other statute only
requires proof that payment was made to an agent in a situation where no
payment was necessary. 1 There are no
contradictory elements of required proof between the two statutes; only
additional elements of proof.
Moreover,
there is no merit to appellant's contention that counts under §201(f)
charge appellant with paying the agents "properly" to perform
their duties; the section makes it criminal to pay an official a sum
which he is not entitled to receive regardless of the intent of either
payor or payee with respect to the payment. United States v. Irwin,
354 F. 2d 192, 198 (2 Cir. 1965), cert. denied, 383
U. S.
967 (1966). Therefore, the correct relationship between §201(b) and §201(f)
is that §201(f) is a lesser included offense of §201(b). There is no
reason to believe that Congress intended that there should be concurrent
convictions and sentences under both sections, and we should not allow
multiple convictions based on the same transactions even where the
sentences are concurrent. The sentences on the lesser §201(f) counts
therefore are vacated. This will have no effect upon appellant's term of
imprisonment because the vacated sentences are concurrent with those
remaining in force.