Ginsberg v. United States, 16544.

• Decision Date: 30 June 1958
• Docket Number: No. 16544.,16544.
• Citation: 257 F.2d 950
• Parties: Sydney GINSBERG, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

257 F.2d 950 (1958)

Sydney GINSBERG, Appellant, v. UNITED STATES of America, Appellee.

No. 16544.

United States Court of Appeals Fifth Circuit.

June 30, 1958.

Arthur B. Cunningham, Philip T. Weinstein, Daniel L. Ginsberg, Miami, Fla., for appellant.

O. B. Cline, Jr., Asst. U. S. Atty., James L. Guilmartin, U. S. Atty., Miami, Fla., Charles K. Rice, Asst. Atty. Gen., Joseph M. Howard, Atty., Washington, D. C., for appellee.

Before CAMERON, JONES and BROWN, Circuit Judges.

CAMERON, Circuit Judge.

The appellant, Sydney Ginsberg, was convicted and sentenced on two indictments, consolidated for trial by the court, charging income tax evasions under § 145(b) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 145(b), for the years 1946, 1947 and 1948. The tax evasions charged and established by the Government's evidence were based upon specific omissions of income received.

The appellant was engaged in the wholesale purchase and sale of used automobiles in Miami, Florida, conducting some operations individually, others in partnership with his brother and others as an official of Nash Miami Motors, Inc. The proof of the Government, as presented by its attorney's final argument, showed that appellant had participated in the sale of 392 used cars during the years involved, and that he caused the books of the businesses in which he was engaged to reveal that a total of $224,958.56 had been received therefor, whereas the books of the purchasers of the cars showed that the amount received was $331,915.06, resulting in a tax evasion aggregating $106,976.50.

The Government placed upon the stand several witnesses who testified that their concerns had paid appellant the amount shown on his books as having been received, but had made additional payments "under the table" to appellant which did not appear on the books.

Appellant took the stand and denied categorically each and all of the statements of these witnesses, but the jury resolved these issues against him, convicting him on both counts of one indictment and one count of the other. He appeals from the judgments based thereon and raises, upon this appeal, six questions which are properly covered by specifications of error.¹ We find no merit in the issues discussed under questions 1, 4 and 6 as set forth in Footnote 1. Appellant's argument in his answers to questions numbered 2, 3 and 5, however, convinces us that the convictions should be reversed and the cases tried again.

Under his question No. 2, appellant presents the issue whether the admission of evidence concerning deposits made in a joint bank account of the appellant and his deceased brother, was prejudicial error. Appellant and this brother had been engaged in other businesses besides the used car business, including dealing in real estate in various cities. While appellant was on the witness stand, the attorney for the Government questioned him at length concerning a number of individual deposits appearing in the joint bank account, some of them of large amounts of money. The Government had made a detailed examination of appellant's books and apparently had full information concerning those items. But appellant was clearly taken by surprise and was wholly unable to explain the source of some of the amounts shown on the account after the lapse of some eight years between the deposits and the time of trial. One item covered a deposit of $40,000.00 in the year 1947, and the Government's attorney asked if the deposit was not made in currency and the form of his questions assumed that such was the case. But appellant was never able to answer the questions concerning the source of this money.²

Another item was a deposit of $10,000.00, which the Government attorney also indicated had been made in currency. Appellant was later able to trace this $10,000.00 to his brother. After utilizing a recess of several days in the trial for investigation, appellant testified to the probability that the $40,000.00 had been deposited by the brother based upon his discovery that a short time thereafter, the brother withdrew from the account $52,000.00 for the purchase of a home.

The Government attorney made full use of appellant's inability to explain adequately these large deposits, as is illustrated by the excerpt from his argument copied in the margin.³ Appellant sought to soften the impact of this testimony by requesting an instruction,⁴ which the trial judge marked "Refused" over his signature.

We think that the admission of this evidence, compounded by the prominence given it in the argument, and the refusal of the requested instruction constituted prejudicial error under our recent decision in Blumberg v. United States, 1955, 222 F.2d 496. That was a case involving also specifically accounted for income which had not been reported, and we held that it was improper to admit proof that Blumberg's wife had spent money lavishly on a wedding of a member of the family in New York and that she had taken $30,000.00 in cash in a hand satchel and deposited part of it in a bank in New York and made a large loan to a named person. Here is a part of the language of that decision (at page 500):

"Under the theory upon which the case was tried, that specifically accounted for income had not been reported, * * * no legitimate purpose could have been served by the proof that the defendant\'s wife took to New York in a hand satchel $30,000 in cash * * * and that they had a tremendous wedding in one of the big hotels in the town at the cost of many thousand dollars. With that evidence before the jury, and no corrective charge given in respect of it, there was no possibility of defendant\'s securing an unprejudiced consideration by the jury of his claim that the omissions were due to oversight rather than intention. In addition, with no instruction given them in the matter, the jury is bound to have thought that this money was additional income which had been concealed and not reported."

We think what was there said is quite persuasive here.⁵ And cf. Spies v. United States, 1943, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418; Ford v. United States, 5 Cir., 1954, 210 F.2d 313; Jones v. United States, 5 Cir., 1947, 164 F.2d 398; and Hartman v. United States, 8 Cir., 1954, 215 F.2d 386.

We skip, for the time being, appellant's argument under his question 3 and take up that presented under question No. 5 dealing with the alleged improper argument of Government counsel. The appellant had taken the witness stand in his own behalf and had introduced four witnesses who had testified to his good character, and the Government had offered none contra. Near the end of his closing argument, the Government's attorney made this statement:

"Now, with respect to the character witnesses. Mr. Fowler has stated that Mr. Worton who was making the argument didn\'t produce anybody who would say that he is a bad man. Now, I don\'t go for that. I could probably have fifty people in here who would show that he isn\'t a good character. I am not trying Mr. Ginsberg\'s character. I am not trying his character or his reputation. I am trying him for income tax evasion. * * *"

In condemning this argument, we could not do better than to quote what was said by this Court in the recent case of Handford v. United States, 1957, 249 F.2d 295, 296:

"A United States district attorney carries a double burden. He owes an obligation to the government, just as any attorney owes an obligation to his client, to conduct his case zealously. But he must remember also that he is the representative of a government dedicated to fairness and equal justice to all and, in this respect, he owes a heavy obligation to the accused. Such representation imposes an overriding obligation of fairness so important that Anglo-American criminal law rests on the foundation: better the guilty escape than the innocent suffer. In this case zeal outran fairness. The argument of the United States attorney in the district court was improper, prejudicial, and constituted reversible error."⁶

We recently reversed the conviction of a defendant upon a narcotics charge for a much less offensive statement than the one involved here, Nalls v. United States, 5 Cir., 1957, 240 F.2d 707, and authority is not wanting for enforcement of the fundamental rules of fairness even where no exception is taken to the argument.⁷

We hold that this statement of the prosecuting attorney constituted "plain errors * * * affecting substantial rights" under Rule 52(b), 18 U.S.C.A., governing criminal procedure. It was such an error, also, as would have been magnified in its influence on the jury by an objection and motion for mistrial. It made it so unlikely that the appellant could be given a fair trial, as the term is understood in our jurisprudence, that we hold it to be reversible error. This makes it unnecessary to decide whether the other errors discussed would, standing alone, justify a reversal of the case.

Under his third question appellant argues that the court below committed error which, he showed on his motion for new trial, resulted in manifest prejudice, in failing to require full responses to his two motions for bills of particulars, his motions for discovery under Rule 16, and in quashing his motion for subpoena duces tecum. The indictments against appellant were in general terms charging that his reported net income was a certain amount when in fact it was a larger specified amount. Without the aid of bills of particulars appellant was completely in the dark as to the details of the charges against him. The court ordered a bill of particulars in each case and one was filed, and appellant sought, by a ...