In re Tinkoff, 6702.

• Decision Date: 21 February 1939
• Docket Number: No. 6702.,6702.
• Parties: In re TINKOFF.
• Court: U.S. Court of Appeals — Seventh Circuit

101 F.2d 341 (1938)

In re TINKOFF.

No. 6702.

Circuit Court of Appeals, Seventh Circuit.

November 10, 1938.

Rehearing Denied February 21, 1939.

Paysoff Tinkoff, pro se.

James W. Morris, Asst. Atty. Gen., and Michael L. Igoe, U. S. Atty., Raymond P. Drymalski, Asst. U. S. Atty., and Carl R. Perkins, Sp. Asst. U. S. Atty., all of Chicago, Ill., for appellee.

Before EVANS, MAJOR, and TREANOR, Circuit Judges.

TREANOR, Circuit Judge.

This is an appeal from an order of the United States District Court, Northern District of Illinois, Eastern Division, striking the name of appellant, Paysoff Tinkoff, from the roll of attorneys of said court and forever disbarring him from further and future practice as an attorney, counselor, advocate, and proctor of the Court.

The proceeding for disbarment was initiated by a petition which recited as grounds for the proposed disbarment that Paysoff Tinkoff had been convicted in the District Court for the Northern District of Illinois of the felony of willfully attempting to defeat and evade the payment of taxes lawfully due to the United States of America from another person and two companies for whom he was acting as counselor. The petition further recited that the judgment of conviction of the District Court was affirmed by the Circuit Court of Appeals¹ and that Tinkoff's application to the Supreme Court of the United States for writ of certiorari was denied.² The petition also recited that Paysoff Tinkoff had served the sentence imposed upon him, less allowance of time off for good behavior. It also appears from the petition that on the 1st day of June, 1937, the name of the respondent was by order of the Supreme Court of Illinois stricken from its roll of attorneys, and that by such order he was forever disbarred from the practice of law in any of the courts of the State of Illinois.

Respondent's answer, or response, consisted of allegations of fact, which if true, established that his conviction in the criminal case had been obtained as a result of perjury committed with the knowledge and consent of the prosecuting officials, the contention of respondent being that the fraud thus practiced upon the trial court made the judgment of conviction a nullity. Upon motion of petitioner the District Court struck the respondent's answer for the reason, as stated by respondent in his appeal brief, that the judgment of conviction in the criminal case was final and conclusive in the present disbarment proceeding and that a hearing on the issues attempted to be raised by the response would amount to a retrying of the criminal cause.

Respondent's cause on appeal presents the single question of whether he was entitled to present evidence in the disbarment proceeding for the purpose of "showing that the said conviction is of no legal force and effect and is absolutely null and void"; the ultimate purpose being to destroy the effect of the judgment in the criminal case in so far as it adjudicates a fact which necessarily constitutes cause for disbarment.

In an original proceeding in this Court entitled In re Tinkoff³ the present respondent was ordered to show cause why his name should not be stricken from the roll of attorneys who had been admitted to practice before this Court. The proceeding in this Court to disbar Mr. Tinkoff was predicated upon the conviction which is the basis of the instant proceeding. In the former proceeding, as in the present one, Mr. Tinkoff filed an answer setting forth in detail the merits of his defense in the criminal prosecution alleging the introduction of false testimony which was prejudicial to him, and the improper reception of hearsay evidence.

The opinion of this Court in the original proceeding called attention to a court rule⁴ which authorizes us to strike the name of an attorney upon a showing that the attorney has been convicted of a felony. It was further held that irrespective of any formal rule of court it would be the duty of a federal court to strike from its list of attorneys the name of one who had been convicted of a serious criminal offense. Furthermore, this court held that it could not retry the case and should not entertain in the disbarment proceeding a collateral attack on a judgment of conviction which had been duly entered by a court of competent jurisdiction.

What this Court said in respect to its duty applies with equal force to the District Court in the instant proceeding. The District Court properly refused to retry the original criminal case for the purpose of showing that the judgment of that case was wrong. In the original criminal cause it was adjudicated that the respondent was guilty of the commission of the charged felony. The judgment of the trial court was affirmed by this Court and certiorari was denied by the Supreme Court. That judgment was an adjudication of the fact that the respondent had committed the acts which in law constituted the charged felony, and such...