Hanson v. United States

• Decision Date: 30 October 1959
• Docket Number: No. 16403.,16403.
• Citation: 271 F.2d 791
• Parties: John Russell HANSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

271 F.2d 791 (1959)

John Russell HANSON, Appellant, v. UNITED STATES of America, Appellee.

No. 16403.

United States Court of Appeals Ninth Circuit.

October 30, 1959.

McKenna & Fitting, Paul Fitting, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Leila F. Bulgrin, Robert John Jensen, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before CHAMBERS, ORR and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

The appellant, John Russell Hanson, was indicted in twenty-two separate counts for violations of sections 287¹ and 495,² Title 18 United States Code.

His violations of section 287 were charged to consist in his presenting to the Internal Revenue Service of the United States Treasury Department claims for refunds of income taxes upon Form 1040A, which stated that certain fictitious persons were wage earners, having earned stated amounts and having had specified sums of income taxes withheld. The indictment charged that defendant well knew the claims to be both fraudulent and fictitious, there being no such wage earners in existence, no such amounts earned, no such sums withheld and no such named dependents as were specified in the claims.

Appellant's violation of section 495, as charged in the several counts of the indictment, consisted in his knowingly and wilfully forging on United States Treasury checks for specified amounts the endorsements and signatures of the payees (fictitious persons) for the purpose of receiving the specified sums from the United States and in uttering and publishing as true, with intent to defraud the United States, the foregoing Treasury checks bearing the purported endorsements of the payees: all the checks being forged, as appellant well knew.

There was an irregularity in the verdict of the jury in that, apparently inadvertently, the word "guilty" proceeding the words "as charged in Count One of the indictment" was stricken by the drawing of a line through it. In sentencing the defendant, the United States District Judge cured the irregularity by imposing no punishment on that count. The language of the verdict made it clear that appellant was convicted on all the other twenty-one counts in the indictment. The jury's verdict plainly stated: "Guilty as charged in Count Two of the indictment; Guilty as charged in Count Three of the indictment * * *," through Count Twenty-Two.

Appellant was sentenced to total imprisonment of twenty-eight years.

The fraudulent method employed by Hanson to swindle the government was unusual. He would rent Post Office boxes under fictitious names and then file false returns and claims for refund of income taxes under these names, giving a Post Office box number as the address of the supposed taxpayer. Checks for refunds were received by appellant at these Post Office boxes. After opening bank accounts in small nearby towns, by the deposit of petty cash in the names of the fictitious persons for whom the income-tax refunds had been asked, appellant would take to the bank the government check which had been sent to cover each of the refunds. Almost simultaneously, he would withdraw most of the money in each of the bank accounts.

The United States presents the question of whether or not this court has jurisdiction to take cognizance of the appeal. The judgment and commitment was filed on December 5, 1958, the twenty-eight-year sentence having been pronounced on that date. On December 12, 1958, an order was entered by the United States District Judge directing that the judgment be entered on December 15, 1958; and, as shown by the record, on December 12th the Judge had stated to counsel for appellant (successor to defendant's trial attorney) that he had instructed the Clerk of the United States District Court not to enter the judgment immediately, in order that the succeeding attorney would not be crowded for time. The Clerk stated that the judgment had not been entered at the time and that the ten days for appeal had not begun to run. In these circumstances, we think the appeal was timely. All the cases cited in appellee's brief are differentiable from the exact situation confronted here.

Appellant contends that he was denied the full use of his peremptory challenges. The situation developed was that, in the selection of the jury, separate lists of peremptory challenges were made by the United States Attorney and the defendant, respectively. The defendant's attorney wrote twelve names on his list. He was told correctly by the presiding judge that he was entitled by law to only ten challenges; whereupon, he eliminated two names from his list, one of which was the name of the juror who became foreman of the jury. The United States had peremptorily challenged two of the same jurors who appeared on the list of appellant. From this circumstance, appellant insists that he was entitled to two additional challenges.

The authority of Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 416, 38 L.Ed. 208, directly rejects the argument of appellant. The Supreme Court there made it plain that the United States District Court is not bound to the particular method of selecting a jury that is required by local law; and that, where the subject is not controlled by statute, the order in which peremptory challenges shall be exercised is in the discretion of the court. It was stated that the right of peremptory challenge "is not of itself a right to select, but a right to reject, jurors." The opinion of the Supreme Court concluded: "The objection that the government should have tendered to him the 12 jurors whom it wished to try the case, or that he was entitled to know, before making his challenges, the names of the jurors by whom it was proposed to try him, must mean that the government should have been required to exhaust all of its peremptory challenges before he peremptorily challenged any juror. This objection is unsupported by the authorities, and cannot be sustained upon any sound principle." See also United States v. Macke, 2 Cir., 159 F.2d 673; United States v. Keegan, 2 Cir., 141 F.2d 248; Kloss v. United States, 8 Cir., 77 F.2d 462, 463; Philbrook v. United States, 8 Cir., 117 F. 2d 632, 635, 636.

The appellant charges that the district court committed prejudicial error in failing to exclude certain witnesses from the courtroom during the testimony given by other witnesses. He stresses heavily the authority of Wigmore on Evidence, Vol. 6, (3d Ed.1940) pages 347, 354, 357-358. We are in accord with the expressions of the great teacher as to the value, in the administration of justice, of the sequestration of witnesses during a jury trial. But, in the circumstances of the instant case, we think no reversible error was committed by the trial judge in declining to put certain witnesses "under the rule" when requested to do so on the second day of the trial. From consideration of the...