297 F.2d 760 (9th Cir. 1962), 17503, Cohen v. United States

Docket Nº:17503.
Citation:297 F.2d 760
Party Name:Meyer Harris COHEN, aka Michael 'Mickey' Cohen, Appellant, v. UNITED STATES of America, Appellee.
Case Date:January 12, 1962
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 760

297 F.2d 760 (9th Cir. 1962)

Meyer Harris COHEN, aka Michael 'Mickey' Cohen, Appellant,

v.

UNITED STATES of America, Appellee.

No. 17503.

United States Court of Appeals, Ninth Circuit.

January 12, 1962

Page 761

Belli, Ashe & Gerry, Gene Rosenberg, San Francisco, Cal., Jack A. Dahlstrum; A. L. Wirin, Los Angeles, Cal., for appellant.

Francis C. Whelan, U.S. Atty., Thomas R. Sheridan, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, HAMLEY and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge.

Cohen was convicted under eight counts of a thirteen count indictment, his motion for new trial was denied, and he appeals. The sentences under counts 2, 3 and 4 are each $10,000 fine and five years imprisonment, the fines cumulative and the prison terms consecutive. The sentences under courts 5 and 9 are each $5,000 fine and 2 1/2 years imprisonment, the fines cumulative and the prison terms consecutive, but these fines and terms are concurrent with those imposed under count 2. The sentences under counts 8 and 10 are each $5,000 fine and 2 1/2 years imprisonment, the fines cumulative and the prison terms consecutive, but these fines and terms are concurrent with those

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imposed under court 3. The sentence under count 13 is the same as, and concurrent with, that under count 4. Thus the total fines are $30,000 and the total prison terms are fifteen years.

We will therefore consider, first, those contentions that relate to all counts, and, second, those that relate to counts 2, 3 and 4. Only if we find that the conviction under one or more of those counts cannot stand will it be necessary to consider contentions that relate to one or more of the remaining counts. 1

Counts 2 and 3 charge violation of 26 U.S.C. § 7201, by wilful filing of false and fraudulent income tax returns for the respective years 1957 and 1958. Count 4 charges violation of 26 U.S.C. § 7201 in wilfully attempting to defeat and evade the payment of income taxes duly assessed for the years 1945 to 1950, inclusive, by various fraudulent means. Counts 5, 8, 9 and 10 charge violations of 26 U.S.C. § 7206(4), concealment of property on which levy is authorized, with intent to evade and defeat the collection of income taxes then due, for the years mentioned in count 4. Count 13 charges violation of 18 U.S.C. § 1001, a false statement to the Internal Revenue Service.

The trial was a long one. There were over 180 witnesses, and there are more than 8,000 pages of reporter's transcript. 947 government exhibits and 27 defense exhibits were produced. Under these circumstances, it would unduly prolong this opinion to set forth the evidence in detail. Basically, counts 2 and 3 involve unreported income. Much of it was received by appellant in the form of loans, but, according to the government's theory, it was actually the product of fraud or extortion-- 'ill-gotten gains'. A great many such transactions were proved, and they show, taken together, a fairly consistent pattern of behavior by appellant. Much of this evidence was also pertinent under count 4. It charged that appellant placed his assets in the name of others, deposited them with others, dealt in currency, caused his obligations to be paid through and in the name of others, caused moneys paid to him to be paid through and in the name of others, and paid other creditors but not the government, all for the purpose of defeating the payment of his income tax liabilities. Some was also pertinent under counts 5, 8, 9 and 10, which charged respectively, concealment of interests in two Cadillacs, a 12.69 carat diamond ring, and a collection of valuable jewelry. Some was also pertinent under count 13, which charged false representations that no person had any property or rights belonging to appellant, except his interest in his life story. Speaking broadly, we think that

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the government produced ample evidence to go to the jury on these questions. We will discuss relevant portions of the evidence in more detail in considering the questions raised by appellant.

1. There was no prejudicial error in calling appellant's counsel as a witness.

This contention relates to all counts. Appellant had but one attorney (Dahlstrum) throughout the trial. He had been called before the grand jury as a witness, and had given the government an affidavit as to certain facts. He was told by government counsel after the return of the indictment, but before he became sole trial counsel for appellant, that he would be called. When government counsel, outside the hearing of the jury, told the Court that he wished to call Dahlstrum, the latter made no objection; he only asked the Court to order him to testify, so that he might be still free to argue. The court did so, saying that the only restriction would be that Dahlstrum not argue his own credibility. After his testimony, that restriction was removed. He testified on a Friday. The following Monday, he moved for a mistrial, which was denied. The ground was that his credibility had been put in issue 'as it affects the whole position of me as counsel for the defendant in the matter with the jury.' The Court, in denying the motion, said, 'I think in my judgment there is not the remotest possibility of any difficulty arising on account of it.'

The Court was right. The actual testimony of Dahlstrum occupies only 14 pages in the transcript. No objections of any kind were made. No attack was made upon his credibility, either in the questions asked, or when the case was argued to the jury. His testimony established certain facts as to the manner of handling an advance by one Pomeranz to appellant, and a few other minor matters. It is significant, too, we think, that when Pomeranz testified, Dahlstrum told the Court that he would have to take the stand on appellant's behalf. This is a far cry from the situation in People v. Lathrom, 192 A.C.A. 239, 13 Cal.Rptr. 325, 1961, upon which appellant relies.

We do not commend the practice of calling defendant's trial counsel as a witness in a criminal case. We think it probably could have been avoided here. On the other hand, the lips of a material witness who is also a lawyer should not be sealed merely because a defendant employs him as his counsel.

2. The Court did not err in denying motions for mistrial based upon newspaper publicity.

This contention, too, affects all counts. The trial began May 2, 1961; the jury was instructed on June 28. The jury was permitted to separate at the end of each session, until the matter was submitted to them, at which time they were locked up, and no objection was made to this procedure. There were four motions for mistrial. One was on May 10, based upon large front page headlines in the Los Angeles Examiner, captioning two juxtaposed articles. One reads: '2300 Tax Sleuths Asked; $7 Billions Missed', and heads an A.P. Washington release stating that the Treasury had requested an appropriation for 2300 more agents 'to run down tax cheaters.' The other reads: 'Huge 'Long Green' Bank Deposits for Mickey Cohen Greenhouse Bared' and 'Cohen Given $46,000 Loans, Court Told', this article relating to the trial. The second motion was on June 5, and was based upon articles, in two papers, about the shooting of one Max Tannenbaum, described in headlines as 'Cohen Pal' or 'Friend'. There were brief references in the articles to this case, and to the fact that Tannenbaum might have been a witness. The third motion was on June 19, based upon an article in the Los Angeles Mirror headed 'Cohen Will Take Stand At Trial.' The fourth motion was on June 29, based upon an article in the Los Angeles Times headed 'Near $1 Million Cost Involved in Cohen Cases.'

On the first day of the trial, and repeatedly thereafter,-- the government says 69 times-- the Court instructed the jury as to its duty not to read, see or look at anything-- including specifically newspapers-- relating to the trial. It did so

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forcefully on May 10, without referring to any particular article, and specifically asked the jury if they were following the admonition. It gave a similar admonition on June 5 and an emphatic one on June 16, when a recess was taken to June 20, and it gave its customary one on that day. As to the June 29 item, the record indicates that the case had been submitted to the jury when it appeared, and the Court questioned the bailiff in charge to make sure that they had had no chance to see the article in question. It also questioned the jury after the verdict was received.

There is no showing that any juror read or even saw any of the offending articles; it is merely urged that they must have seen them. To so hold, we would have to presume that the jurors disregarded repeated and emphatic instructions by the Court. The presumption is the other way. As Mr. Justice Holmes said in Holt v. United States, 218 U.S. 245, at p. 251, 31 S.Ct. 2, at p. 6, 54 L.Ed. 1021: 'If the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present day.'

The matter was within the sound discretion of the trial judge; we cannot say that his judgment about it was wrong. (See Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 3 L.Ed.2d 1250; Itow v. United States, 9 Cir., 1915, 223 F. 25; Madden v. United States, 9 Cir., 1927,20 F.2d 289; Cohen v. United States, 9 Cir., 1953, 201 F.2d 386; Yates v. United States, 9 Cir., 1955, 225 F.2d 146, rev'd on other grounds, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356).

3. The admission of testimony as to appellant's religious activities was not prejudicially erroneous.

This contention likewise affects the convictions under all counts. The evidence shows that...

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