U.S. v. Abbas, 73-3234

• Decision Date: 04 October 1974
• Docket Number: No. 73-3234,73-3234
• Citation: 504 F.2d 123
• Parties: 74-2 USTC P 9755 UNITED STATES of America, Appellee, v. Mike ABBAS, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 123

504 F.2d 123

74-2 USTC P 9755

UNITED STATES of America, Appellee, v. Mike ABBAS, Appellant.

No. 73-3234.

United States Court of Appeals, Ninth Circuit.

Oct. 4, 1974.

Robert H. Wyshak (argued), of Wyshak & Wyshak, Los Angeles, Cal., for appellant.

Arthur W. Vance, Asst. U.S. Atty. (argued), Los Angeles, Cal., for appellee.

OPINION

Before BARNES and HUFSTEDLER, Circuit Judges, and ENRIGHT, ^* District Judge.

ENRIGHT, District Judge:

On March 19, 1973, a twelve count indictment was returned against the defendant by the federal grand jury for the Central District of California.

The indictment charged the defendant in each count with violations of 26 U.S.C. 7206(2), in that he had willfully assisted in the preparation of false federal income tax returns.

On September 4, 1973, a jury found the defendant guilty as to counts six, eleven, and twelve involving the tax returns of Lucy Vinluan and Leigh and Kimbo Emerson. The defendant was found not guilty as to counts four and five, and the jury could not agree as to the remaining counts which were subsequently dismissed.

The basic issue in this case concerns the government's preparation and use, as evidence, of a number of allegedly demonstrative charts, summarizing the testimony of the witnesses as to the variation between the sums of money which the witnesses reported to the tax preparer and the amount actually listed on the returns by the preparer. The defense asserts that it was improper to have permitted the jury to receive into evidence what it contends were argumentative and conclusional materials.

The government relies in part upon United States v. Bartone, 400 F.2d 459 (6th Cir. 1968), cert. denied, 393 U.S. 1027, 89 S.Ct. 631, 21 L.Ed.2d 571 (1969) for the proposition that use of such charts has been approved. But even in circumstances where the use of charts is not improper, Bartone held that 'it is necessary that the trial judge carefully examine this type of evidence and supporting exhibits, out of hearing of the jury, in order to determine that everything contained in the summary is supported by the proof.' Id. at 461. This was not done and would appear to be the better practice, although the defendant was given ample opportunity over a weekend to examine the charts and thereafter to pursue his specific objections to the court.

But this is not to say that the use of charts is always permitted. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954)-- albeit a case involving a complicated net worth, tax evasion situation ¹ -- admonished trial courts to be wary of situations in which figures, computations, and charts acquire 'an existence of their own, independent of the evidence which gave rise to them.' Id. at 128, 75 S.Ct. at 131.

Lloyd v. United States, 226 F.2d 9 (5th Cir. 1955) amplifies upon Holland. A lengthy citation would not be without some benefit:

The use of this type evidence, however, has inherent dangers to an accused, for a jury is often unfairly and unduly impressed by the apparent authenticity of a government witness' chart computations, as such, rather than by the truth and accuracy of the underlying facts and figures supporting them. A trial court is charged with grave responsibilities in such instance to insure that an accused is not unjustly convicted in a 'trial by charts,' however impressive the array produced. Ordinarily, it would be the better practice, not so carefully observed in this instance, to require that the source of the facts and figures upon which such a chart is based be fully disclosed before its admission into evidence. Whenever possible, such charts should be confined in their preparation to strictly mathematical computations, subject to detailed explanation upon the trial by the testimony of expert government witnesses, and they should not be encumbered by such impressive, conclusionary captions as 'Overstatement of Merchandise Purchases', 'Overstatement of Delivery Expenses', 'Unreported Cash Receipts of Lloyd's Bakery', 'Unreported and Undeposited Cash Receipts Invested in United States Savings Bonds', 'Unreported Net Income of Mr. E. C. Lloyd', 'Income Tax Unreported and Unpaid by Mr. Lloyd', such as were used on the Government charts here in dispute. While a prosecution witness may testify as to such conclusions from his mathematical computations, we think the danger in permitting the unrestricted use of such phrases upon charts results from a jury's natural tendency to accept such unsworn, conclusionary verbiage as authentic, primary proof, instead of purely in summarization and explanation of sworn testimony or authenticated documentary evidence. Id. at 17.

In general principle, we agree with this reasoning. We would conclude that it would have been better practice for the trial court to have allowed the charts to be marked for identification and used by the foundation witness as a testimonial aid, or, since they purported to represent summarized testimony, to be utilized by counsel in argument as a visual summary of complex facts. In either event, the charts should not have gone to the jury for use during their deliberations. The dangers are apparent. A signed or handwritten statement of a defendant presents an apt analogy. It would be considered physical evidence and admitted as an exhibit; an unsigned typewritten statement of such defendant in itself is hearsay. It may be read to the jury under certain circumstances; the conversation it represents may be repeated by percipient witnesses; but the unsigned typewritten statement itself would not be received as evidence. The danger inherent in such evidence is that it would act as a speaking, continuous witness throughout the jury's deliberation of certain specific, isolated-- albeit significant--...