U.S. v. Williams, 77-5297

• Decision Date: 19 May 1978
• Docket Number: No. 77-5297,77-5297
• Parties: 3 Fed. R. Evid. Serv. 234 UNITED STATES of America, Plaintiff-Appellee, v. Wallace L. WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 284

573 F.2d 284

3 Fed. R. Evid. Serv. 234

UNITED STATES of America, Plaintiff-Appellee, v. Wallace L. WILLIAMS, Defendant-Appellant.

No. 77-5297.

United States Court of Appeals, Fifth Circuit.

May 19, 1978.

Rehearing Denied June 9, 1978.

Dick DeGuerin, Houston, Tex., for defendant-appellant.

James A. Canales, U. S. Atty., James R. Gough, George A. Kelt, Jr., James L. Powers, Mary L. Sinderson, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before THORNBERRY, AINSWORTH and MORGAN, Circuit Judges.

AINSWORTH, Circuit Judge:

Defendant Wallace L. Williams was indicted on September 26, 1976 on three counts of tax fraud for filing false income tax returns in that he understated miscellaneous income on his 1970 tax return and underreported gross receipts on his 1971 and 1972 tax returns, all in violation of 26 U.S.C. § 7206(1). Following a fourteen-day trial during which more than eighty witnesses were called, the jury found Williams guilty on all three counts. Williams was sentenced to consecutive three-year prison terms on Counts II and III followed by five years' probation conditioned on the payment of a $5,000 fine on Count I. On this appeal defendant raised objections to the conduct of the voir dire proceedings, to the admissibility in evidence of certain testimony and affidavits, to the prosecutor's closing argument, to the denial of a motion for acquittal and to certain jury instructions. We have carefully considered appellant's assignments of error but find them to be without merit, and affirm the conviction.

During the years in question Williams, Captain and Inspector (later Deputy Chief) of the Houston Police Department, operated a service which provided security guards. Several institutions, especially Southwestern Bell Telephone Company, desired extra security protection. At the same time, some policemen wanted additional employment to supplement their salaries. Williams, doing business as The Security Company, satisfied both these needs by arranging for police officers to work as security guards at the various establishments. Operating this company from his office in the police station, Williams, assisted by other officers, contracted to provide security, sought new business, assigned officers to work as guards, and supervised and paid the officers.

The record, considered in the light most favorable to the Government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), shows by abundant proof that Williams wilfully underreported his gross income from the security service business on his tax returns. The returns did not include income from checks from clients payable either to Williams or to The Security Company. The amounts of these checks constituted gross income to Williams ¹ and should have been reported on his tax returns even if he subsequently paid police officers who worked as guards with proceeds from these checks. There is also adequate evidence that Williams received substantial income from checks of security clients made payable to individual officers. Williams had another officer, George Bush, cash all the paychecks without the endorsement of the individual officers, pay the officers currently on duty, and return the remainder to Williams in one-hundred-dollar bills. Since Williams had complete control over these funds, the cashed checks represent gross income to him and the amounts thereof should also have been reported on his returns. Additionally, Williams had income from checks payable to other officers which were used in payment of Williams' bills. The gross income generated by these transactions exceeded the income reported for 1970 through 1972 by approximately $350,000. ²

Williams was dissatisfied by a number of aspects of the trial which followed his indictment. He objected to the manner in which the trial judge conducted the voir dire examination of prospective jurors. Numerous witnesses were heard during the trial and many exhibits, including some affidavits, were admitted, occasionally over objections of the defense. At the close of the Government's case, Williams unsuccessfully moved for a judgment of acquittal. Williams contended that the prosecutor's closing arguments were improper in suggesting that a large portion of Williams' unreported income was to be found in defendant's bank account. Finally, the trial judge refused to give several jury instructions as requested by the defense. We consider these objections in greater detail.

Williams first asserts that the voir dire examination of potential jurors conducted by the trial judge failed to provide sufficient information for intelligent exercise of challenges, either peremptory or for cause. However, we find that the trial judge's action was well within his "wide discretion as to the scope and conduct of voir dire examination." United States v. Ledee, 5 Cir., 1977, 549 F.2d 990, 992, cert. denied, 434 U.S. 902, 98 S.Ct. 297, 54 L.Ed.2d 188 (1977). Federal Rules of Criminal Procedure, Rule 24(a) explicitly authorizes the trial court to conduct the voir dire examination and to submit to the potential jurors "such additional questions (proposed) by the parties or their attorneys as it deems proper." The trial judge's failure to ask the requested questions is not an abuse of discretion if his overall examination, coupled with his charge to the jury, affords a party the protection sought. See United States v. Goodwin, 5 Cir., 1972, 470 F.2d 893, 898, cert. denied, 411 U.S. 969, 93 S.Ct. 2160, 36 L.Ed.2d 691 (1973). The transcript of the voir dire examination reveals that the court provided the defendant with adequate protection by inquiring into such areas as possible bias against policemen and attitudes toward tax offenses. The trial court could rightly refuse to permit inquiries concerning potential jurors' understanding of legal matters such as the comments of the prosecutor not being evidence or mistake of fact being a defense in tax cases. See United States v. Ledee, supra, at 992; Stone v. United States, 5 Cir., 1963, 324 F.2d 804, 807, cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). These topics were properly covered in the final jury instructions of the court.

There were also objections by defendant to the admission in evidence of the affidavits of witnesses George Bush and Charles Munro. Bush, a Houston police officer who worked for Williams' security service, was questioned by IRS agents concerning the business. At the conclusion of the IRS's examination, Bush signed a lengthy affidavit summarizing his responses concerning The Security Company's operations. At trial, despite a grant of immunity, Bush testified differently in several respects from the facts set forth in his prior affidavit. As a result of this change in testimony, the Government offered Bush's affidavit into evidence. The trial court admitted the affidavit as substantive evidence over the defense's objection.

Under the circumstances of this case, the trial judge correctly admitted Bush's affidavit into evidence for substantive purposes as well as for the impeachment of Bush's testimony. In particular, this affidavit was within the exception to the hearsay rule for

statement(s) not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Federal Rules of Evidence, Rule 803(24). In applying Rule 803(24) to this case we must note that the "rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined." Federal Rules of Evidence, Rule 102.

Rule 803(24) has been accepted as the basis for introducing extrajudicial statements. See United States v. Iaconetti, 406 F.Supp. 554, 558-60 (E.D.N.Y.1976) (Weinstein, J.), aff'd 2 Cir., 1976, 540 F.2d 574. In this case Bush's affidavit has circumstances of reliability at least equal to those found sufficient for admitting prior statements in United States v. Leslie, 5 Cir., 1976, 542 F.2d 285. During his testimony Bush admitted making the prior affidavit. The affidavit was made closer in time to the actual events than was the trial testimony; hence, the possibility of lost recollection was reduced. The agents present during the questioning testified concerning Bush's willingness to give the statement. The affidavit contains many handwritten alterations by Bush indicating that he carefully examined the final text of the affidavit to ensure its correctness. Finally, although the jury was not present to observe Bush's demeanor when he gave the affidavit, Bush testified at trial and was vigorously cross-examined concerning the affidavit. Thus, in deciding whether the prior affidavit or the testimony at trial was more accurate, the jury could rely on their opportunity to observe Bush's demeanor during his testimony. See DiCarlo v. United States, 2 Cir., 1925, 6 F.2d 364, 367-68 (Learned Hand, J.), cert. denied, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168 (1925).

Bush's affidavit also complied with the other conditions set forth in Rule 803(24). Bush's role in the check cashing operation is obviously material to determining Williams' gross income for the tax years in question since Bush stated that, on Williams' instructions, he cashed checks payable to other officers and returned the proceeds to Williams after paying some of...