Greenberg v. United States of America, 5636.

Decision Date12 July 1960
Docket NumberNo. 5636.,5636.
Citation280 F.2d 472
PartiesMax GREENBERG, Defendant, Appellant, v. UNITED STATES OF AMERICA, Appellee.
CourtU.S. Court of Appeals — First Circuit

James R. McGowan, Providence, R. I., with whom Lester H. Salter and Salter & McGowan, Providence, R. I., were on brief, for appellant.

Joseph Mainelli, U. S. Atty., Providence, R. I., with whom Arnold Williamson, Jr., and Samuel S. Tanzi, Asst. U. S. Attys., Providence, R. I., were on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

ALDRICH, Circuit Judge.

The defendant was found guilty by a jury of filing false and fraudulent income tax returns on behalf of the Star Pharmacy, Inc., of which he was president and sole stockholder, for the years 1952 to 1954 (3 counts), and guilty of wilfully attempting to evade and defeat the payment of his individual tax for the years 1952 and 1953 (2 counts). Following jail sentences on each count to be served concurrently, and the imposition of separate fines, he appealed. There must be a new trial. Without considering whether there were other errors, we shall deal only with those which seem most likely to reoccur.1 These consist of prejudicial conduct by the United States attorney, and proof of the government's case through hearsay evidence.

The defendant did not file a personal return for the year 1952 or 1953. Over his repeated objections the court permitted the government to show that he had paid a personal income tax in 1943 of $17.81, had filed a return showing no tax due in 1946, and had filed no personal return in any other pre-indictment year.2 In his closing argument to the jury, the United States attorney stated: "Now going back to this year of 1943, as my brother has admonished you — and I join in his admonition — when you go into the jury room don't leave your common sense behind, don't leave your common knowledge behind. Take it with you. In 1943, as you know, we were engaged in one of the most crucial periods of our history, the greatest war in the history of the world. We became embroiled in it, and the whole future of this country was at stake. And the ultimate result of that war would have determined whether our way of life was to continue or whether it was to perish from this earth. And in pursuance and in prosecuting that war there were hundreds of thousands of lives of the flower of American youth lost on the battlefields or on the oceans or in the airways of this world. And the taxpayers in this country, for prosecuting that war, paid and committed themselves to pay hundreds of billions of dollars. And Mr. Greenberg, along with his family, and all of us, are the beneficiaries of the sacrifices that were made during the war years. And Mr. Greenberg shows his gratitude by paying the magnanimous and munificent amount of money of $17.81 by way of income taxes, as his contribution." At this point defendant objected, and the court replied, "I suppose counsel must indulge in a certain amount of oratory."

We do not know what the court had in mind. Oratory on the issues in the case is one thing. The defendant was indicted for the years 1952 and 1953. Even if there were a showing that he had deliberately falsified his return on one occasion ten years earlier, we would doubt its relevancy. But here there was not even this, as there was no evidence that $17.81, paltry as it may have seemed, was a penny less than the amount owed. The government's tawdry charge of unpatriotism was not only unwarranted, it was inexcusable. It called for immediate correction and rebuke even if counsel had not risen to object.

The United States attorney commenced his final argument by informing the jury that he was "a sort of thirteenth juror who applies his training in the evaluation of evidence, in analyzing evidence, and tries to convey to the jury just what part the evidence plays in the presentation of a case" (a description we find quite inappropriate, since counsel, unlike a juror, is not required to be impartial). Near the end of his argument the United States attorney sought to put this self-appointment to use. In vigorous language he expressed his personal opinion of the trustworthiness of the government's evidence and the consequent guilt of the accused. Upon objection interposed, the court ruled in the presence of the jury that the prosecutor had a right to argue "his belief in the evidence." Counsel continued, and the court overruled a second objection, but expressed a caution. The argument was then repeated.

Rule 15 of the Canons of Professional Ethics of the American Bar Association reads,

"It is improper for a lawyer to assert in argument his personal belief in his client\'s innocence or in the justice of his cause."

Government counsel stated in oral argument before us that this was "inapposite" because he is an "advocate." We are not clear whether he disapproves of the principle, or whether he considers himself outside of it. In either event we disagree. To permit counsel to express his personal belief in the testimony (even if not phrased so as to suggest knowledge of additional evidence not known to the jury), would afford him a privilege not even accorded to witnesses under oath and subject to cross-examination. Worse, it creates the false issue of the reliability and credibility of counsel. This is peculiarly unfortunate if one of them has the advantage of official backing.3 The resolution of questions of credibility of testimony is for impartial jurors and judges. The fact that government counsel is, as he says, an advocate is the very reason why he should not impinge upon this quasi-judicial function. We believe the canon to be elemental and fundamental. See also 1 Bishop, New Criminal Procedure § 293 (2d ed. 1913); 6 Wigmore, Evidence § 1806 (3d ed. 1940).

It is true that special circumstances, such as a personal attack upon counsel, may occasionally justify a reply. See, e. g., United States v. Socony-Vacuum Oil Co., Inc., 1940, 310 U.S. 150, 240-242, 60 S.Ct. 811, 84 L.Ed. 1129; Gridley v. United States, 6 Cir., 1930, 44 F.2d 716, 739; United States v. Battiato, 7 Cir., 1953, 204 F.2d 717, 719. Too much has sometimes been read into these cases due in part, perhaps, to language in some of the opinions.4 To the extent that cases may be found that permit counsel to state their personal belief as a matter of course, we do not follow them. We agree with the statement that "No one who is at all conversant with jury trials can fail to see the possible prejudice * * *." State v. Gunderson, 1913, 26 N.D. 294, 297, 144 N.W. 659, 660.

Before turning to the evidence, there is one further incident that merits attention. During the trial, while testimony was being introduced following a recess, the court remarked that the defendant was not in the room. The United States attorney replied by inquiring whether it could be "stipulated that the defendant had waived his presence in the courtroom?" The court acceded. It may be assumed that defendant's counsel also acceded. It does not appear, however, that the defendant had authorized such a stipulation, or that he even knew that the trial had resumed. Nor does it appear when he eventually returned. A trial may continue in the defendant's absence only if such absence was "voluntary." Fed.R.Crim.P. 43, 18 U.S.C. The government has made no such showing. Cf. Echert v. United States, 8 Cir., 1951, 188 F.2d 336, 26 A.L.R.2d 752. But cf. Parker v. United States, 4 Cir., 1950, 184 F.2d 488.

In describing the government's case in his opening government counsel informed the jury that the defendant drew "checks on the corporation which he used for his own personal purposes." What this meant was that the payment of defendant's personal bills by the corporation was income to him. Whose bills it was that were paid, that is to say the purpose of the checks, was an important element on the corporate counts, and was essentially the whole of the government's case on the personal counts. The government proceeded to prove this purpose through conclusory statements of one Gray, a special agent of the Internal Revenue Service, who stated the totals of the checks that represented income and non-income in his opinion, and which were personal and which for corporate purposes. The hearsay nature of this opinion testimony was abundantly revealed. Gray's analysis and compilations were, by his admission, made from "* * * monthly statements provided by the bank, and from independent corroboration from witnesses." "This determination was based on inquiries made of the payees of the checks, the taxpayer, Mr. Greenberg, or his representative * * *." Or, according to the government's brief, "the purpose for which each of the checks was used was determined by him through his investigation." Spelling this out, Gray testified that, for...

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