United States v. Johnson, 7500

• Decision Date: 06 May 1944
• Docket Number: No. 7500,7501.,7500
• Citation: 142 F.2d 588
• Parties: UNITED STATES v. JOHNSON. SAME v. SOMMERS et al.
• Court: U.S. Court of Appeals — Seventh Circuit

142 F.2d 588 (1944)

UNITED STATES v. JOHNSON.

SAME v. SOMMERS et al.

Nos. 7500, 7501.

Circuit Court of Appeals, Seventh Circuit.

May 6, 1944.

William J. Dempsey, of Washington, D. C., and Harold R. Schradzke, of Chicago, Ill., for appellants.

J. Albert Woll, Earle C. Hurley, U. S. Atty., and Nathan M. Cohen, Asst. U. S. Atty., all of Chicago, Ill., for appellee.

Before SPARKS, MAJOR, and MINTON, Circuit Judges.

MINTON, Circuit Judge.

On October 12, 1940, in the District Court for the Northern District of Illinois, Eastern Division, a jury returned a verdict of guilty against William R. Johnson and others on an indictment which charged Johnson with the evasion of income taxes for the years 1936, 1937, 1938, and 1939, and the other defendants as aiders and abettors of Johnson, and a conspiracy by all to commit the substantive offense. Motions for a new trial and in arrest of judgment were overruled, and October 23, 1940, judgment was entered upon the verdict. On September 15, 1941, we reversed the judgment. 7 Cir., 123 F.2d 111. On certiorari to the Supreme Court, that court reversed this court. 319 U.S. 503, 63 S. Ct. 1233, 87 L.Ed. 1546. Before the mandate of the Supreme Court issued, the defendants filed in that court a motion for a stay of mandate until they could take such steps in this court pursuant to Rule 2(3) of the Criminal Appeals Rules, 18 U.S.C.A. following section 688,¹ as were necessary to have the case remanded to the District Court for the purpose of permitting the defendants to file a motion for a new trial upon the grounds of newly discovered evidence. Mr. Justice Frankfurter, to whom this motion was presented, refused to stay the mandate but stated at the time:

"This denial is without prejudice, however, to the consideration and disposition by the United States Circuit Court of Appeals for the Seventh Circuit of any motion filed under Rule 2(3) of the Criminal Appeals Rules and any motion collateral thereto."

The mandate of the Supreme Court issued on July 6, 1943, and on the same date, the defendants filed in this court a motion to stay judgment pending the hearing and determination of a motion for the remand of the case under Rule 2(3). The motion to stay judgment was granted. On October 15, 1943, we entered the following order:

"The court having heard argument of counsel, and being advised in the premises, does hereby order these causes remanded to said District Court to consider and dispose of any motion filed, or which may be filed, under Rule 2(3) of the Criminal Appeals Rules and any motion collateral thereto, and said District Court is hereby authorized to assume jurisdiction of said causes for such purposes."

When we sent this case to the District Court, we did so without passing upon the merits of the motion but submitted the entire matter for consideration and disposition by the District Court.

On October 19, 1943, the defendants were granted leave by the District Court to file their motion for a new trial on the ground of newly discovered evidence, together with supporting affidavits and papers; and the Government was given time to respond. The motion was set for hearing and was heard on November 15, 1943, by the Honorable John P. Barnes, who had presided at the trial of the defendants.

On the original trial, the Government sought to show Johnson's guilt by proving that he had made a statement as to his assets. The Government then produced the income tax returns of Johnson to show the income he had reported for the years in question. This cash on hand plus the income reported by him for the years in question were claimed by the Government to be the funds available from which he could make expenditures. The Government introduced evidence to show that he had made expenditures over the four years in excess of these funds and claimed that this excess was unreported income. The Government offered the evidence of witness William Goldstein to prove that Johnson had furnished the funds and had requested Goldstein to purchase certain pieces of real estate and to deposit in escrow certain other funds which Johnson furnished to him. Goldstein's testimony showed that the titles to the properties had been taken in the name of a third person, who afterwards conveyed the titles to Johnson, except for one piece, the title to which was still being held in trust for Johnson. Goldstein's testimony also showed that the escrow funds were Johnson's. At the trial, Johnson denied that he had requested Goldstein to purchase any of the properties or that he had given him any money to do so, but he did admit that he had received title to six of the properties, and a quit-claim deed to one half of a seventh piece, as Goldstein had testified.

The motion for a new trial proceeded upon the grounds that the material witness for the Government, Goldstein, had testified falsely concerning the purchases of the properties and the handling of the two deposits in escrow. The ownership of these properties was gone into at the trial, and numerous witnesses were examined by the Government as to Johnson's acts of ownership and dominion over the properties in question. The defendants themselves called sixteen witnesses to testify as to acts of ownership and dominion over the properties performed by persons other than Johnson.

The so-called newly discovered evidence was intended to show further acts of ownership and dominion over these properties by persons other than Johnson, and included statements purported to have been made by Goldstein not under oath, which were in conflict with his testimony at the trial. Goldstein made affidavits denying that he had made these contradictory statements, and there were affidavits supporting him as to some of the incidents.

The District Court, after considering the written motion of the defendants and all of the affidavits and other material filed by them in support of their motion, the answer of the Government and the affidavits filed in support thereof, the briefs of both parties, the records of the District Court, and the printed transcript and bill of exceptions filed in this Court on the former appeal, found and concluded:

"1. That none of these items of allegedly newly discovered evidence constitute `newly discovered evidence warranting a new trial';

"2. That all but a few items are merely cumulative * * *; and that the defendants had not been diligent * * *;

"3. That all items which are not merely cumulative are merely impeaching * * *;

"4. That Goldstein has not recanted, and did not perjure himself on the trial; that Goldstein's testimony concerning the source of the currency utilized in the purchases and proposed purchases of the properties mentioned by him is corroborated by facts and circumstances in evidence at the trial;

"5. That the allegedly newly discovered evidence is not such or of such a nature as on a new trial would probably produce an acquittal;

"* * *"

The motion for a new trial was overruled and from that order, the defendants gave notice of appeal.

Both the Government and the defendant concede that the order is a final order from which an appeal will lie. Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783; Fewox v. United States, 5 Cir., 77 F.2d 699, 700; 28 U.S. C.A. § 225(a). If this order were not appealable, it would be the final chapter in this case. There is no judgment pending in this court or elsewhere from which an appeal might be taken or on which the action on this motion for a new trial might be considered. While appeals are granted as a matter of grace and not of right (and there was a time when appeals in criminal cases were not granted at all, United States v. Sanges, 144 U.S. 310, 319, 12 S.Ct. 609, 36 L.Ed. 445) the modern tendency is to be more liberal in broadening the scope of appeals. It is just as important to the Government as it is to the defendants that orders of this kind be recognized as final and appealable.

The Government contends that although the order is appealable, it is not reviewable by us. Certainly we do not have the right to consider the record for the purpose of arriving at an independent finding and judgment of our own which we may substitute for that of the trial judge. We do not sit to try the case de novo. We are to review, as always, for errors of law, which review includes a review of the trial court's action for the purpose of determining whether or not it abused its discretion in reaching the conclusion it did. Pemberton v....