208 F.2d 583 (9th Cir. 1953), 13257, Kobey v. United States

• Citation: 208 F.2d 583
• Party Name: KOBEY et al. v. UNITED STATES.
• Case Date: November 30, 1953
• Court: United States Courts of Appeals, U.S. Court of Appeals — Ninth Circuit

Page 583

208 F.2d 583 (9th Cir. 1953)

KOBEY et al.

v.

UNITED STATES.

No. 13257.

United States Court of Appeals, Ninth Circuit.

November 30, 1953

Page 584

[Copyrighted Material Omitted]

Page 585

Cannon & Callister, David H. Cannon, Los Angeles, Cal., Minsky & Garber, Ernest R. Utley, J. B. Beckenstein, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U.S. Atty., Ray H. Kinnison, Asst. U.S. Atty., Chief, Criminal Division, Arline Martin, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before MATHEWS and ORR, Circuit Judges, and LEMMON, District Judge.

Page 586

LEMMON, District Judge.

'Hair-raising' and 'horrendous' are the adjectives used by two of the appellants to denounce the sentences that they are here seeking to overturn.

All four appellants are admitted lawbreakers. Yet now they are loudly invoking a 'concept of ethics, social natural justice and fair play'- a concept in which the record shows that they themselves have been conspicuously lacking.

The appellants were bookmakers. Each was convicted on one count of conspiracy to defraud the United States and on eighteen counts of violations of the income and excise tax laws.

All four appellants admit that, in carrying out their illegal practices, they 'nicknamed God's creatures', ¹ although, as we shall see, they do not agree upon their reasons for doing so.

Another protective device resorted to by the quartet was to counsel their 'agents'- i.e., employees- to destroy records and 'have no bookmaking paraphernalia around where it could be found'.

All in all, the tale told by this 1536-page record and the bales of exhibits is not a pretty one.

1. The Indictment

The indictment, filed on June 12, 1951, named 68 defendants, and consisted of 20 counts. The four appellants were the only defendants named in every count. The appellant Harry Kogus was indicted as Harry Rockwell.

Count One, laid under 18 U.S.C.A. §§ 88 (1946 Ed.) and 371, charges that all the defendants and 'other persons to the grand jury unknown' conspired to defraud the appellee by impairing, defeating, and obstructing the lawful functions of internal revenue officials in 'ascertaining, computing, levying, assessing, and collecting taxes' for the appellee. The conspiracy is alleged to have commenced on or about August 1, 1945, and to have continued until the date of the return of the indictment.

The Count recites that the object- not the overt acts- of the conspiracy was to be accomplished as follows:

By concealing the identities of persons dealing with the defendants in connection with horse race betting and other gambling conducted by the defendants and others; concealing the amounts of money paid by such persons to the defendants and vice versa; concealing the identities and the compensation of the defendants' employees in such activities; destroying records that would indicate such data; and by maintaining records of the said activities that were 'false, fictitious, and misleading as to the names used for the defendants and the persons dealing with them and the transactions recorded'.

Thirteen overt acts are set out in connection with Count One. Since no question has been raised regarding these items, they need not be set out here.

Similarly, since the 44 defendants charged therein were acquitted on Count Two, which alleged a conspiracy to commit offenses against the appellee by attempting to defeat and evade income and excise taxes and by willfully failing to collect and account for income taxes required to be withheld, that Count will not be summarized.

Counts Three to Ten, inclusive, were brought under 26 U.S.C.A. § 2707(c). Counts Three to Six, inclusive, allege that the four appellants attempted to defeat and evade income taxes required to be withheld from wages, by willfully failing to 'collect and truthfully account for, and pay over' to the appellee such taxes for the four quarters of 1948.

Counts Seven to Ten, inclusive, charge that the appellants attempted to defeat and evade 'a large part' of the excise taxes on employers and employees owed to the appellee for the same periods by filing 'false and fraudulent' Employer's Tax Returns.

Page 587

Counts Eleven to Twenty, inclusive, allege violation of 26 U.S.C.A.§ 145(b). The appellants and another defendant- a different one in each of these last ten counts- are charged with 'willfully and knowingly' attempting to 'defeat and evade a large part' of the income tax due by each said fifth named defendant for the calendar year 1948.

In each of the 18 substantive counts, the indictment specifies the amount of tax that should have been withheld, paid, or reported due, and the sum actually withheld, reported, or paid by the various named defendants. Since the appellants do not attack the mathematical accuracy of these counts but urge their legal insufficiency, the figures need not be set out here.

2. The Verdicts And The Sentences.

Each appellant was found guilty as charged on Count One and on Counts Three to Ten, inclusive, and was found guilty of the lesser offenses of willful failure to supply information for the computation, assessment, and collection of the tax, which lesser offenses are embraced in the offenses charged in Counts Eleven to Twenty, inclusive. The sentence pronounced upon each appellant was as follows:

Imprisonment for five years on Count One and on each of Counts Three to Ten, inclusive, the periods of imprisonment to run concurrently.

Fines of $10, 000 on Count One and on each of Counts Three to Ten, inclusive, or a total of $90, 000.

Suspension of the imposition of sentence for the lesser offenses included in Counts Eleven to Twenty, inclusive, with five years' probation commencing on the appellant's release from custody following execution of the concurrent sentences under Count One and Counts Three to Ten, inclusive. One of the conditions of probation is that the appellant, during the probationary period, shall pay a fine of $10, 000 under each of Counts Eleven to Twenty, inclusive, or a total of $100, 000. This latter figure and the $90, 000 on Count One and Counts Three to Ten inclusive, amount to a grand total of $190, 000 that must be paid by each appellant.

3. The Specifications of Errors

The Kobey brief contains a specification of eight numbered errors. 'Specification No. 6', however, contains four lettered subdivisions, each dealing with the Court's instructions. Of these four subdivisions, two deal with instructions, given or refused, or at least four separate subjects-presumption of innocence, general and specific intent, lack of notification to produce books, and willfulness and good faith. The entire specification of errors covers nine printed pages, and complains of at least fourteen separate and distinct errors.

The Kogus brief has a specification ten pages long, consisting of two numbered errors. Error No. 1, however, is broken into fifteen subdivisions, each dealing with a separate and distinct instruction, given or refused, usually relating to a separate and distinct subject. In many respects, the Kogus specification and the Kobey specification duplicate each other.

Neither specification conforms to Rule 18(2)(d) of this Court, which requires that an appellant's brief shall contain, in the order there stated-

'In all cases a specification of errors relied upon which shall be numbered and shall set out separately and particularly each error intended to be urged. * * * When the error alleged is to the charge of the court, the specification shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused, together with the grounds of the objections urged at the trial.' (Emphasis supplied)

If the use of lettered subdivisions of numbered specified errors was intended to blur the multiplicity of the objections, it has failed of its purpose. This Court has repeatedly declared itself not bound to consider such 'package' specifications. In Mutual Life Ins. Co. v. Wells Fargo Bank & Union Trust Co., 1936, 9 Cir., 86 F.2d 585, 587,

Page 588

we said of a far less objectionable assignment of error:

'Assignment 6 is that the trial court erred in failing and refusing to give the jury six instructions said to have been requested by appellant. This assignment is invalid, in that it attempts to cover six alleged errors, thereby violating our rule 11, which provides that an assignment of errors 'shall set out separately and particularly each error asserted and intended to be urged.' (Many cases cited.)' ²

Furthermore, it should be noted that Specification 6B of the Kobey brief complains that Defendants' Requested Instructions Nos. 33, 37, and 38 were not given, but no 'grounds of the objections urged at the trial' are set out in the specification, as required by Rule 18(2)(d), supra. Similarly Specification No. 1 d, e, f, g, h, i, j, k, l, m of the Kogus brief, relating to Defendants' Requested Instructions Nos. 26, 27, 28, 30, 31, 32, 35, 37, 38, and '- ', sets forth in each instance that 'objection was seasonably made', citing the transcript of record. Such a reference clearly does not meet the requirements of Rule 18(2)(d), that the grounds of the objections urged at the trial shall be 'set out' in the specification.

Finally, the record shows that after the Court had instructed the jury and counsel for the appellants had made certain objections and requests, the attorney for the defense added:

'* * * and I assign as error the failure to give the instructions we have requested on the grounds stated.'

The cryptic and sweeping phrase, 'on the grounds stated', may have referred to some 'suggestions' made by counsel for the appellants during a 'conference on instructions' or perhaps the 'discussion re include (sic) lesser offenses'. Both of these running debates commenced on the day preceding the giving of the instructions and continued up to a few minutes before counsel...