Baker v. United States, No. 21154.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: PER CURIAM
• Citation: 401 F.2d 958
• Parties: Robert G. BAKER, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 21154.
• Decision Date: 09 August 1968

401 F.2d 958 (1968)

Robert G. BAKER, Appellant,
v.
UNITED STATES of America, Appellee.

No. 21154.

United States Court of Appeals District of Columbia Circuit.

Argued February 6, 1968.

Decided August 9, 1968.

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Mr. Edward Bennett Williams, Washington, D. C., with whom Messrs. Peter R. Taft and Michael E. Tigar, Washington, D. C., were on the brief, for appellant

Miss Beatrice Rosenberg, Atty., Department of Justice, with whom Fred M. Vinson, Jr., Asst. Atty. Gen., and Mr. Sidney M. Glazer, Atty., Department of Justice, were on the brief, for appellee.

Before WRIGHT, McGOWAN and ROBINSON, Circuit Judges.

PER CURIAM:

Appellant was convicted on seven counts of a nine-count indictment and sentenced to concurrent terms of one to three years on each count. The convictions were for wilfully attempting to evade payment of federal income taxes¹ (Counts 1, 2); larceny² and interstate transportation of fraudulently-obtained funds³ (Counts 3, 5, 7);⁴ and assisting another to falsify his federal income tax return⁵ and conspiring to defraud the Government and defeat collection of taxes⁶ (Counts 8, 9).

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Count 1 charged that appellant had filed a false and fraudulent return for the year 1961, understating his taxable income by approximately $5,000. The Government's case was comprised principally of evidence that, though reporting accurately his salary as Secretary to the Senate Majority, appellant concealed other business income received by him during 1961 by sharing legal fees with his associate, Ernest Tucker, which Tucker declared as his own income. A major part of the Government's proof related to a transaction in which a $5,000 fee due appellant for services rendered by him was paid to Tucker, deposited in Tucker's account and transferred to appellant by Tucker's personal check.

The Government also attempted to show that appellant had failed to report $1,325 in income from a Florida real estate investment and that he had taken two impermissible deductions, totalling $2,113. Appellant countered with evidence that he had failed to take a number of allowable deductions, thereby over-reporting his 1961 taxable income by $2,719. In rebuttal, the Government attempted to prove that a $14,000 profit on the sale of certain stock, reported by appellant as a long-term capital gain, was in fact a short-term gain since the stock had been held less than six months. As to this item, the Government conceded that the erroneous reporting had not been wilful.

Count 2 related to appellant's 1962 income tax return, in which, in addition to his Senate salary, appellant reported business income of $56,412. The Government again reconstructed appellant's outside business income in an attempt to show that he had understated his taxable income by more than $48,000. The Government premised its charge of evasion primarily on evidence that appellant had received $99,600 in cash campaign contributions from executives of various California savings and loan institutions, and that he had stolen the money and failed to report it as income on his 1962 return.⁷ Appellant admitted receiving the money, but testified that he had turned all of it over to the late Senator Kerr, who in turn lent $50,000 of it to appellant.⁸ A representative of the Internal Revenue Service testified that, accepting as true appellant's version of the facts, his 1962 return slightly overstated his taxable income.

Counts 3 and 5 charged larceny of $67,000, which was part of the $100,000, receipt of which the Government had made the basis of the income tax evasion charge of Count 2. Count 7 charged that the remaining $33,000 had been fraudulently obtained by appellant and thereafter transported by him in interstate commerce.⁹

Count 9 charged a conspiracy among appellant, Wayne Bromley and Clifford Jones to falsify Bromley's and appellant's 1963 and 1964 tax returns, and to defraud the Government in its collecting of appellant's and Bromley's taxes for those years. The Government's evidence showed that during 1962 through 1964 fees for services performed by appellant for a number of clients were paid by checks payable to Bromley on appellant's instructions. In most instances the checks were cashed by Bromley and the proceeds given by him to appellant; on a few occasions, the proceeds of checks cashed by Bromley were retained by him as loans. Several checks payable to Bromley were endorsed and cashed by appellant's secretary.

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Though, with one exception, he had performed no services for any of these clients, and had given most of the fees to appellant, Bromley expressly agreed, at least as to the fees from two of the clients, that he would report the money on his tax return, with appellant to reimburse him for any added tax liability incurred as a result.

During 1963 a total of $11,000 from three different clients was received by Bromley and given by him to appellant. In addition, Bromley and appellant split a $5,000 fee for services in connection with the securing of a national bank charter, which had been paid by a check made out to Bromley.

In his testimony at trial, appellant admitted these facts, except that he denied there was ever any agreement for Bromley to report the fees as his income and then to be reimbursed by appellant for the added taxes. He testified that his reasons for using Bromley as an intermediary in 1963 and 1964, just as his earlier arrangement with Tucker, were that he was not a member of the District of Columbia Bar and that he had been instructed by his employer, the Majority Leader of the Senate, not to engage in the private practice of law.¹⁰ Appellant reported on his 1963 return all the fees received through Bromley, that is, the $11,000 plus his share of the $5,000 bank charter fee.¹¹

In December 1964, two months after he had filed his own 1963 return, appellant visited Bromley and assisted him in preparing his income tax return for 1963. Appellant advised Bromley to list the $11,000 in fees which had been given to appellant on the lines for "gross receipts" and "gross profit" on Schedule C of the return, and then to deduct that sum as "legal and professional fees."¹² Bromley drew up his return in accordance with these instructions, and filed it on December 30, 1964.

The assistance rendered by appellant in the preparation of Bromley's 1963 tax return gave rise to Count 8 of the indictment, which charged that he had wilfully counseled and assisted in the preparation of a materially false and fraudulent return. The defense sought, through cross-examination of Government witnesses and through the testimony of appellant and certain expert witnesses, to show that the reporting method employed was lawful and proper, and that appellant in recommending it to Bromley had relied on the advice of tax counsel and an accountant. The Government on cross-examination attempted to demonstrate that appellant had not disclosed all relevant facts to his counsel.¹³

Appellant filed a number of pretrial motions, including a motion for severance, a motion for discovery and inspection of grand jury minutes and a motion to suppress evidence illegally obtained through electronic surveillance, all of which were denied on December 20, 1966, United States v. Baker, 262 F.Supp. 657 (D.D.C.1966). A motion to strike the jury panel was filed and denied on January

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9, 1967, the day on which the trial commenced. During the trial, renewed severance and suppression motions were denied. The District Court also denied appellant's motion for a new trial. United States v. Baker, 266 F.Supp. 461 (D.D.C.1967)

On this appeal, appellant raises three points applicable to all seven counts upon which judgments of conviction were entered, relating to (1) alleged irregularities in the jury selection procedure; (2) the court's refusal to grant separate trials on various counts of the indictment; and (3) the court's handling of the electronic eavesdropping questions raised in appellant's suppression motions. In addition, appellant contends that the court erred in failing to direct a judgment of acquittal on Count 1, and in permitting the Government to introduce rebuttal evidence outside the scope of the indictment and the Government's bill of particulars; that the court improperly restricted the scope of cross-examination of Government witnesses who gave testimony on Counts 2, 3, 5 and 7; that the court usurped the jury's function in entering judgments of conviction on Counts 3, 5 and 7 not in accordance with the jury's verdicts; that the conviction on Count 8 should be reversed since it stated no offense as a matter of law, and because the evidence on that count was insufficient and the court's instructions inadequate; and lastly, that the court's instructions on Count 9 were inadequate and misleading.

I. THE JURY ISSUE

Appellant contends his conviction should be set aside because he was convicted by an illegally impaneled jury. This contention is based upon the following assertions: (1) a partial voir dire was conducted out of the presence of appellant and his counsel, (2) the array was illegally summoned, (3) the jury was stacked with Government employees, and (4) the Jury Commission drew the panel by use of an improper questionnaire and acted under an unconstitutional statutory provision, 11 D.C.Code § 2301(b) (1967). We find no merit in these allegations, only the first three of which require detailed comment.¹⁴

As to the first of these contentions, appellant claims that criminal defendants have the right to be present and represented during voir dire¹⁵ and that a partial

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voir dire was conducted in his absence on January 4, 1967,¹⁶ when 335 prospective jurors allegedly drawn specially for the Baker case were questioned as to their qualifications to serve as jurors. Appellant contends that the examination descended from general...