Carter v. United States

• Decision Date: 16 February 1967
• Docket Number: No. 20605.,20605.
• Citation: 373 F.2d 911
• Parties: Memphry M. CARTER, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

373 F.2d 911 (1967)

Memphry M. CARTER, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 20605.

United States Court of Appeals Ninth Circuit.

February 16, 1967.

Mitchell W. Egers, Hanson & Egers, Los Angeles, Cal., for appellant.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Jo Brin Schulman, Asst. U. S. Attys., Asst. Chief Crim. Div., Robert L. Brosio, Asst. U. S. Atty., for appellee.

Before DUNIWAY and ELY, Circuit Judges, and POWELL, District Judge.

ELY, Circuit Judge.

In an indictment consisting of three counts, appellant was charged with presenting false claims to the Internal Revenue Service (18 U.S.C. § 287), forging a United States Treasury check (18 U.S.C. § 495), and uttering and publishing the same Treasury check with the forged endorsement (18 U.S.C. § 495).

Following appellant's plea of not guilty, there was a trial by jury. The appellant was found guilty of the offenses alleged in Counts Two and Three of the indictment, the forging of the Treasury check and the uttering and publishing of the instrument. The jurors were unable to reach agreement and return a verdict as to Count One, alleging the presentation of false claims, and when appellant was sentenced for the two offenses of which he had been found guilty, Count One, on motion of the Government, was dismissed.

It is not here claimed that the evidence was insufficient to support conviction; nevertheless a brief review is appropriate. The case for the prosecution was based, essentially, upon the following:

Appellant and one Nathan Keynerd had been friends for a number of years. In April, 1962, Keynerd visited appellant's office, requested appellant to prepare his, Keynerd's, federal income tax return for the calendar year 1961, and paid appellant $10, in advance, for the anticipated services. Keynerd testified that he did not see the completed return before it was filed. He expected to receive a refund of excess income taxes which had been collected by his employer's withholding of portions of his wages. He made inquiry of appellant concerning his failure to receive the anticipated refund and, receiving answers which were not satisfactory to him, he contacted the Internal Revenue Service.

He then advised appellant that he had been told by the service that a refund check in the amount of $620.95 had been issued. According to Keynerd, he was told by appellant that he had received the check and that his, appellant's, son had cashed it.

The check is made payable to "N. & K. Keynerd." The endorsements consist of three handwritten names, Nathan Keynerd, Katherine Keynerd, and the name of appellant written over his business stamp. Evidence was produced to the effect that appellant thereafter made several conflicting statements as to the endorsements. It was established that the check had been deposited in appellant's bank account. Keynerd testified that he had not endorsed it. A Special Agent of the Intelligence Division of the Revenue Service testified that appellant had admitted to him that the endorsement of his own name had been written by him and also admitted that the other endorsements, the names of the two payees, appeared to be in his handwriting. A Special Agent of the Secret Service testified that appellant had admitted to him that he had written all of the endorsements, insisting to this Agent that Keynerd had given him the authority to do so. A handwriting expert produced by the prosecution expressed the opinion that all the endorsements had been written by appellant.

The principal defense was that Keynerd was indebted to appellant for cash loans made in the course of card games which the two had played between the time of the filing of the return and the time when appellant received the refund check. Appellant insisted that Keynerd had authorized him to cash the check. He testified that when he offered Keynerd the balance in excess of the amount of the claimed indebtedness Keynerd refused to accept it.

To us, appellant presents three contentions. We are convinced that none of them has merit.

It is first urged that the district judge displayed unbecoming hostility to the attorney who represented appellant during the trial and that for such reason the trial was prejudicially unfair. This contention is forcefully presented in a commendable manner by appellant's present counsel, attorneys who were not involved in the court below. There the appellant was represented by attorney William B. Osborne. The record reveals, undeniably, that after the trial commenced there developed an atmosphere of hostility. During the trial, there were a number of disputes between Osborne and the district judge. Osborne's conduct led to the judge's determination, following the trial, that Osborne had been contemptuous. Osborne appealed, and a panel of our court determined that the judgment of contempt was justified. In re Osborne, 344 F.2d 611 (9th Cir. 1965). In reaching that decision our court wrote, concerning the conduct of the district judge, "Here no such, nor any, lack of judicial restraint is shown. Quite the opposite appears from so much of the record as is before us." 344 F.2d at 615. We agree.

A judge must strive, as did the trial judge in this case, to maintain his composure, even when badgered by contemptuous counsel. See United States v. Dennis, 183 F.2d 201 (2d Cir. 1950), aff'd, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951), rehearing denied, 342 U.S. 842, 72 S.Ct. 20, 96 L.Ed. 636 (1951). He is not required, however, to abdicate his power or duty to control the proceedings over which he presides. United States v. Ross, 321 F.2d 61 (2d Cir. 1963), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123 (1963); Butler v. United States, 191 F.2d 433 (4th Cir. 1951). We need not repeat the extensive verbal exchanges which occurred between appellant's counsel and the district judge. They already appear in the report of In re Osborne, supra. They reveal an attitude on the part of the judge which, in the light of the provocation, was entirely consonant with traditional concepts of proper judicial bearing and demeanor. In his instructions to the jury, the judge made it clear that any comments which he had made were not to be interpreted as an expression of his opinion as to the guilt or innocence of the accused. The appellant's selection of counsel may have been unfortunate, but he is in no position to take present advantage of unsuccessful tactics which could have been...