Himmelfarb v. United States

Decision Date01 August 1949
Docket NumberNo. 11662,11666.,11662
Citation175 F.2d 924
CourtU.S. Court of Appeals — Ninth Circuit





William Katz, Los Angeles, Cal., for appellant Himmelfarb.

Daly B. Robnett and Benjamin F. Kosdon, Los Angeles, Cal., for appellant Ormont.

James M. Carter, U. S. Atty., Ernest A. Tolin, Asst. U. S. Atty., William Strong, Sp. Asst. U. S. Atty., Los Angeles, Cal., for the United States.

Before MATHEWS and STEPHENS, Circuit Judges, and DRIVER, District Judge.

STEPHENS, Circuit Judge.

Sam Ormont and Phillip Himmelfarb were, on January 22, 1947, jointly charged by a federal grand jury with four counts under Section 145(b) of the Internal Revenue Code, 26 U.S.C.A. § 145(b). Count one charged that Ormont and Himmelfarb attempted to defeat and evade federal income tax owed by Ormont for the calendar year 1944 by filing a false tax return understating Ormont's net income and income tax for that year. Count two contained similar charges against both in connection with Himmelfarb's return for income and income tax for 1944. Counts three and four contained similar charges against Ormont as to his returns for the years 1942 and 1943. Individual returns were filed by Himmelfarb and Ormont at the proper times as to income received in the conduct of the Acme Meat Co. An information return was subsequently filed by them for "Miscellaneous Enterprises", asserted by them to be a joint venture, for the fiscal year beginning May 1, 1944, and ending April 30, 1945, in the sum of $71,388.84 with no deductions or other information stated and disclosing an equal division between them of income.

There is much in this opinion which applies to the cases of both defendants-appellants. There is considerable in the opinion which applies solely to either one or the other of the defendants-appellants. Generally speaking, it will be obvious what portions appertain to either or both. Where it has seemed useful we have plainly stated the defendant-appellant concerned.

Motion for dismissal of the indictment was denied and a motion for a bill of particulars was denied in part and granted in part. Pleas of not guilty to each of the counts were entered. The court dismissed counts two, three and four as to Ormont and count one as to Himmelfarb. A jury trial was had, and Ormont was found guilty upon count one and Himmelfarb guilty on count two. Motions for acquittal and for a new trial were denied and each has separately appealed.

The evidence discloses that Sam Ormont owned and operated a wholesale meat business under the fictitious name of Acme Meat Co. in Vernon, California, and employed Phillip Himmelfarb who, prior to May 1, 1944, had been a government licensed meat wholesaler and packer. After this latter date the two operated the business in partnership until (at least) April 30, 1945. The books of the Acme Meat Co. were kept on a calendar year basis. Shortly before the filing of the joint return, heretofore mentioned, investigations were made concerning the income tax returns of both appellants for the years 1942 to 1944 inclusive. According to the evidence, income from sales of meat, made within ceiling prices under OPA, were reported on invoices and recorded in the company books and appellants' returns for 1944 were based on these figures. It is indicated that "bonus" or "overceiling" payments of additional cash sums paid by customers of Acme Meat Co. were received but not reported on the books nor were they reported for income tax purposes for the year 1944; as to all of which both appellants were well aware.

Further, there is testimony that income from certain sales was shown on invoices which were not transmitted to the appellants' bookkeeper and therefore were never entered nor included in the books from which the income returns were made. These unreported invoices or lists were kept in a desk drawer at the plant. There is also indication of some falsity in keeping of records which goes to the general intent of appellants to misrepresent their income.

Evidence is in the record of a partnership return declaring additional income of some $71,000.00, claimed to have come from the so-called "Miscellaneous Enterprises", bank records and bank documents pertaining to each appellant, records of business dealings, invoices, canceled checks, transcripts of portions of the records of the Acme Meat Co. and bond records.

There is testimony that Ormont made admissions to Internal Revenue Agents which were adverse to his interest and which were recorded at the time made in an affidavit signed by Ormont, and that Ormont later retrieved the affidavit by subterfuge and destroyed it. There is also testimony to the effect that the appellants operated a partnership and divided profits therefrom equally; that the $71,000.00 claimed to have come from "Miscellaneous Enterprises" came from so-called "bonuses" received in the Acme Meat Co. business and not recorded in the company's books. However, there is evidence that a private record thereof was kept by Ormont in a small memorandum book claimed to have been seen by government witness Bircher, Special Agent for the Bureau of Internal Revenue. He stated that he saw a page in the back of the book on which an amount a little in excess of $35,000.00 was itemized, something in excess of $11,000.00 being recorded as having been earned from secret and unrecorded charges or bonuses from May 1, 1944, to January 5, 1945, and the balance or some $23,000.00 being recorded as earned from such sources from January 5, 1945 to April 30, 1945.

Himmelfarb was represented at the trial by Attorney Katz, and Ormont was represented at the trial by Attorney Robnett. At the outset it was agreed that motions, objections and stipulations made on behalf of either defendant would be considered as made on behalf of the other defendant as well. The district attorney in the presence of the panel of prospective jurors referred to another criminal case pending against defendants. The court ordered the reference stricken and instructed the prospective jurors to disregard it entirely, and the jury was sworn to try the case. Thereafter Katz made a motion to declare a mistrial and to discharge the jury. The following colloquy occurred:

District Attorney: "Your Honor, I would have no objection to the calling of another panel. I don't want to injure the defendants by a statement which I didn't realize was improper when I made it. I will agree, if your Honor sees fit, to call another panel of jurors."

The Court: "I will grant the motion to withdraw the jury and declare a mistrial * * *".

The Court: "May it be stipulated that the jury may be excused without being brought back to court?"

Both counsel entered into such stipulation.

Thereafter, Robnett on behalf of Ormont made a motion that the case be dismissed and that a plea of once in jeopardy be entered. Katz specifically disclaimed the motion. The court denied it. Another jury found the verdict upon which the judgment here appealed from was based.

It is argued on appeal that the latter ruling was error and that the dismissal, after the first selected jury was sworn, constituted "once in jeopardy."

It seems clear to us that the stipulation, whereby it was agreed that the stipulations, motions and objections of each attorney on behalf of one defendant should also be considered as made on behalf of the other defendant, was applicable to the ordinary procedure of the trial, and not to constitutional rights of defendants. And it is plain that no stipulation of counsel waiving his client's constitutional right could be effective without the client's specific assent. In absence of express authority, an attorney has no power to surrender substantial legal rights of his client. 7 Corpus Juris Secundum, Attorney and Client, § 100c, p. 922.1 Since there was no such assent given, the stipulation was ineffective as a waiver of Ormont's plea, through his counsel. To hold that Ormont, or indeed, Himmelfarb, acquiesced in the discharge of the jury is "to condone a dangerous laxity on the part of the trial court in the discharge of its duty to preserve the fundamental rights of an accused." Glasser v. United States, 315 U.S. 60, 72, 62 S.Ct. 457, 465, 86 L.Ed. 680. Furthermore, "whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record." Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 146 A.L.R. 357. "The fact that the court and the district attorney regarded the defendants as consenting to the course that was taken, ought not, in the absence from the minutes of the court of any statement that they consented, to conclude them." United States v. Watson, Fed.Cas.No.16,651, 3 Ben. 1. In Barrett v. Bigger, 57 App. D.C. 81, 17 F.2d 669, 670, certiorari denied, 274 U.S. 752, 47 S.Ct. 765, 75 L.Ed. 1332, the court found accused's consent in the following entry: "Cont'd to Nov. Sess. 1921, on request of Dft.; consented to by Dist. Atty., Prosecutor, and Private Counsel."

The real issue presented is whether or not there was a legal necessity supporting the discharge of the first jury. It is said in Thompson v. United States, 155 U.S. 271, 274, 15 S.Ct. 73, 74, 39 L.Ed. 146, citing United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165; Simmons v. United States, 142 U.S. 148, and Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429: "Those cases clearly establish the law of this court that courts of justice are invested with the authority to discharge a jury from giving any verdict whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be...

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