United States v. Beno

• Decision Date: 12 November 1963
• Docket Number: Docket 28226.,No. 44,44
• Citation: 324 F.2d 582
• Parties: UNITED STATES of America, Appellee, v. Samuel G. BENO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

324 F.2d 582 (1963)

UNITED STATES of America, Appellee, v. Samuel G. BENO, Defendant-Appellant.

No. 44, Docket 28226.

United States Court of Appeals Second Circuit.

Argued October 8, 1963.

Decided November 12, 1963.

Robert C. Zampano, U. S. Atty., District of Connecticut, New Haven, Conn., for appellee.

W. Paul Flynn, of Kopkind & Flynn, New Haven, Conn., for defendant-appellant.

Before CLARK, MOORE and KAUFMAN, Circuit Judges.

KAUFMAN, Circuit Judge.

Samuel G. Beno, an Internal Revenue Agent, was convicted by a jury of soliciting and receiving a set of the Encyclopaedia Britannica and a dictionary from a taxpayer, intending that they influence his official decisions in violation of federal law, 18 U.S.C. § 202. On appeal, Beno contends that the prosecution was improperly permitted to educe on cross-examination highly prejudicial evidence concerning specific acts of the defendant which were wholly unrelated to the offense charged, and was further allowed to introduce extensive independent damaging testimony with reference to these collateral acts through three government "character" witnesses.

The government's case against Beno may be briefly summarized. The evidence revealed that at the time of the alleged offense, Beno was attached to the Stamford, Connecticut office of the Internal Revenue Service, and that in September of 1961, he was assigned the income tax return of the Walden Book Company for examination. It further appeared that in examining the return, Beno noticed the name of Charles Guinta listed as Walden's Treasurer. Since he had previously known an accountant by the name of Richard Guinta, Beno telephoned Richard, told him that he was in the process of examining Walden's return, and asked him whether he was related to Charles. When he was informed that the two were brothers, Beno allegedly told Richard that he was interested in acquiring a set of the Encyclopaedia Britannica, and, according to the government, gave Richard "the definite impression that if he received the books, Beno would render services beneficial to the company in the event of an audit." Richard subsequently informed Charles about his conversation with Beno, and Charles promptly forwarded this information to the Inspection Division of the Internal Revenue Service in Boston. Within a short period, Beno called Charles directly to ask about the books, allegedly assuring him that he would "survey" Walden's return, an esoteric Internal Revenue term defined at trial to mean returning it to the home office without any examination of the taxpayer's books and records. During this conversation, moreover, arrangements were made for Beno to pick up the volumes of the encyclopedia on October 2nd, in Charles' office.

With the cooperation of Charles and without the knowledge of Beno, the Inspection Division had arranged to mechanically record this October 2nd meeting upon a tape which was ultimately played for the jury. During the course of this recorded interview, Beno did mention that he intended to "survey" Walden's return, but, despite some prodding from Charles, he did not furnish the prosecution with plainly incriminating admissions of any real value. In any event, after his discussion with Charles, Beno collected the encyclopedia and a dictionary and departed, but before he could reach his automobile, he was intercepted by government agents and arrested. This, in brief, was the prosecution's case.

Faced with the tape and arrested while in possession of the books, Beno, by way of defense, did not seriously dispute the fact that he had called Richard Guinta, that he had spoken to Charles, or that he had received the encyclopedia and the dictionary, and, instead, maintained that he had always intended to pay for the books. In support of this contention, he introduced several witnesses who testified that he had requested a loan about the time of the events in question for the express purpose of purchasing a set of encyclopedia. Insisting that his conduct and motives were pure, Beno further suggested that he had been interested in obtaining the encyclopedia so that he might donate it to a community library, upon whose behalf the defendant's sister-in-law was apparently an active fundraiser.

Thus we are met by the opposing positions of the government and the defendant: the government painting Beno as a man of easy scruples, more alert to the prospect of a profitable hand-out than the call of his official obligations, and Beno, picturing himself as the innocent victim of some overzealous police work. Beno now complains, however, that the portrait of an unscrupulous official was painted by the prosecution with such broad brush-strokes and in such vivid detail that serious prejudice was inevitable. In essence, he argues that the prosecution was not content to portray the actions which have already been recounted and which immediately preceded his arrest, but instead insisted upon describing specific occurrences which possessed no relevance to the charge of bribery other than to indicate that Beno was, indeed, an obnoxious individual.

To deal adequately with Beno's objections, we are compelled to outline the course of the trial in some detail. We note, at the outset, that the presentation by the government of the improper, distracting and extraneous side-issues of which Beno now complains was in some degree invited by the defense.

After the government concluded its case in chief, the propriety of which is not challenged on appeal, the defense opened by calling witnesses Candee, McCracken and Nagle to testify in Beno's behalf. It soon appeared that there was some uncertainty as to the role which these witnesses were to play. While the defense insisted that their testimony would be relevant on the issue of Beno's "intent," or "predisposition" to commit the offense charged, the Court instead admitted their evidence, over strenuous government objections, as going to the question of the defendant's "character."¹ Each witness thereupon told of specific meetings with the defendant in the course of Beno's official duties, in connection with the audits of other income tax returns in which the various witnesses had been interested. All, while noting Beno's courteous and trustworthy appearance, admitted that they knew him only through these professional encounters, and that their meetings had been brief and sporadic.² On cross-examination, it became clear that none of the three was competent to testify as to Beno's community reputation for honesty, veracity, trustworthiness or any other trait commonly classified as relevant to character.

In a colloquy with counsel held out of the jury's presence and immediately after Candee, McCracken and Nagle had been excused, the trial judge confessed that he had been somewhat surprised by the general gist of their testimony. Citing Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), the Court correctly observed that character witnesses may only testify as to general community reputation, and may not describe specific acts of the defendant, or divulge their personal observations or opinions; under such a test, the judge pointed out, the testimony of Candee, McCracken and Nagle was clearly improper.

Immediately after this discussion, the defense voluntarily excused two additional witnesses who had planned to testify along the same lines as had Candee, McCracken and Nagle. The court, however, did not strike the testimony of the three already called because of the position taken by the prosecution. For having failed in his earlier attempt to prevent the defense from introducing evidence of specific collateral acts, the prosecuting attorney now indicated that he was willing to wage the contest on the defendant's own terms. Thus, in response to a question of the Court, the prosecutor explained that he would "make no motion to strike at this point." Now "that the door was open," he added, "I would rather go through it * * * myself than have it closed." And the prosecution was to do precisely that.

After three witnesses had testified in support of the defendant's contention that he intended to pay for the encyclopedia, Beno himself took the stand. In response to questioning on his direct examination, he briefly outlined his educational background, his military history and his employment record, placing particular emphasis upon the importance of his duties with the Internal Revenue Service. Once again asserting his innocence, Beno concluded his direct testimony by concisely denying that he had ever considered the encyclopedia or dictionary as a gratuity which was intended to influence the performance of his official duties.

On cross-examination, the prosecution laid the groundwork for much that was to follow. First, in a long series of questions, Beno was asked whether he had ever accepted compensation for preparing the income tax returns of a Leo Chagnon during the period in which he Beno was employed by the Internal Revenue Service, in violation of the Rules of the Service. Although admitting that he had prepared Chagnon's returns, Beno resolutely denied the receipt of compensation. After the Chagnon returns were marked for identification as exhibits, Beno was asked whether he had perjuriously signed the names of various of his acquaintances as "preparers" of Chagnon's returns, and whether one of these acquaintances had warned him not to "fool around" preparing private returns. Beno reluctantly confessed to the false signatures, but denied the admonition.

The prosecution then moved to a speeding conviction which the defendant had incurred in Connecticut. Through Beno's answers, the jury learned both that he was somewhat careless behind the wheel, and that he had submitted travel vouchers to the government and was reimbursed for automobile expenses for the period during which his driver's license had been suspended as a result of this conviction. When, in response to the next...