Levin v. United States

• Decision Date: 11 May 1925
• Docket Number: No. 4310.,4310.
• Citation: 5 F.2d 598
• Parties: LEVIN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

5 F.2d 598 (1925)

LEVIN et al. v. UNITED STATES.

No. 4310.

Circuit Court of Appeals, Ninth Circuit.

May 11, 1925.

Edgar C. Levey and Harry A. Encell, both of San Francisco, Cal. (John L. McNab and Bert Schlesinger, both of San Francisco, Cal., of counsel), for plaintiffs in error.

Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above).

The imposition of sentences on the second counts of the indictments is assigned as error for the reason that the defendants had already been convicted on the first counts, and in those counts the transactions embraced the identical transactions set out in the second counts. There was no demurrer to the joinder of the two counts in either of the indictments, and no demand was made that the government elect that on which it would prosecute. No objection was made to the instructions by which both counts were submitted to the jury. The question now presented was first raised on motion in arrest of judgment, where the point was made that a trial and conviction on the second counts of each indictment put the defendants in jeopardy for a second time for the same offense. Section 253 of the Revenue Act (40 Stat. 1085) declares that any one who willfully attempts in any manner to defeat or evade the tax imposed by this title shall be guilty of a misdemeanor. Perjury, as defined in the Criminal Code, is made a felony, and its elements are the taking of a false oath in any case in which a law of the United States authorizes an oath to be administered that the affiant will testify the truth, or that any written declaration or certificate by him subscribed is true, and the affiant "willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true."

There can be no question but that perjury so defined is an offense which may be committed in making out a false return to an income tax statement. The question here is whether both offenses were committed by the defendants, as charged in the indictment. In Morgan v. Devine, 237 U. S. 632, 35 S. Ct. 712, 59 L. Ed. 1153, the court, while holding that two offenses, the one of breaking into a post office, and the other of stealing property belonging to the Post Office Department, may be committed, and separately charged and punished, said: "This court has settled that the test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offense, where two are defined by the statutes." In Gavieres v. United States, 220 U. S. 338, 31 S. Ct. 421, 55 L. Ed. 489, the court quoted from the opinion of Judge Gray in Morey v. Commonwealth, 108 Mass. 433: "A single act may be an offense against two statutes; and, if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other."

In Burton v. United States, 202 U. S. 344, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 392, it was said: "It must appear that the offense charged, using the words of Chief Justice Shaw, `was the same in law and in fact. The plea will be vicious, if the offenses charged in the two indictments be perfectly distinct in point of law, however nearly they may be connected in fact.'" In Carter v. McClaughry, 183 U. S. 365, 395, 22 S. Ct. 181, 193, 46 L. Ed. 236, the court said: "The offense of conduct unbecoming an officer and a gentleman is not the same offense as conspiracy to defraud, or the causing of false and fraudulent claims to be made, although to be guilty of the latter involves being guilty of the former." And it seems clear in principle that there can be no objection to making one act or one transaction the violation of two statutes, if each offense embraces an element not embraced in the other. This is not a case where two offenses are defined in a single statute. The offenses here charged are distinct in law. The first is an attempt to defeat or evade the tax imposed by the Revenue Act. The second is a crime against justice. In order to convict the defendants of an attempt to defeat or evade the Income Tax Law, it would not have been essential to show that they had in fact made oath to an income tax return; nor, to sustain the charge of perjury, would it have been essential to prove that there was an attempt to defeat or evade the Income Tax Law.

Perjury may be committed by falsely swearing to a written statement made as required by law, even if the statement is never in fact filed or used. Noah v. United States, 128 F. 270, 62 C. C. A. 618. And it has been held that, in order to convict a defendant of an attempt to defeat or evade the Income Tax Law, it is not necessary to show that he did in fact verify the false income tax return. Emmich v. United States (C. C. A.) 298 F. 5. In that case the defendant was charged with an attempt to defeat the Income Tax Law and with perjury in making out his return. The charges were, as in the present case, consolidated for trial. There was an acquittal on the perjury count, but a conviction on the charge of attempting to defeat the Income Tax Law.

But the contention that the defendants were twice placed in jeopardy for the same offense is answerable on other grounds. The constitutional inhibition is not against double punishment for one offense, but against double jeopardy for the same offense. It is uniformly held that the constitutional immunity from second jeopardy is a personal privilege, which may be waived, that the waiver may be either express or implied, that it is always implied when there is failure to raise the objection at the first opportunity, and that it comes too late when raised for the first time on motion in arrest of judgment. 16 C. J. 285; People v. Stoll, 143 Cal. 689, 77 P. 818; State v. Houghton, 45 Or. 110, 75 P. 887; State v. White, 71 Kan. 356, 80 P. 589, 6 Ann. Cas. 132; Blocher v. State, 177 Ind. 356, 98 N. E. 118; People v. McGinnis, 234 Ill. 68, 84 N. E. 687, 123 Am. St. Rep. 73; Ex parte Hall, 94 N. J. Eq. 108, 118 A. 347; White v. State (Okl. Cr. App.) 214 P. 202.

The plaintiffs in error cite Morgan v. United States (C. C. A.) 294 F. 84, Reynolds v. United States (C. C. A.) 280 F. 3, Grafton v. United States, 206 U. S. 333, 350, 27 S. Ct. 749, 151 L. Ed. 1084, 11 Ann. Cas. 640, and United States v. Torres (D. C.) 291 F. 138. It does not appear in those cases whether or not there was waiver of the constitutional privilege, except that in Reynolds v. United States it was held, without the citation of authority, that the objection might be raised on motion in arrest of judgment. That ruling is not in harmony with generally accepted doctrine, and we think it is unsustainable in principle. If two counts of an indictment charge a defendant with but a single offense, one alleged as a misdemeanor, the other as a felony, the defendant ought not to be permitted to refrain from asserting his constitutional privilege until after a verdict of the jury, and then by motion in arrest of judgment raise the objection of double jeopardy and escape the severer penalty which might be imposed upon the second count.

Error is assigned to the rulings of the trial court in admitting in evidence certain entries in the books of the defendants. A former bookkeeper of the defendants was called by the prosecution to give oral secondary evidence as to the entries. An objection was sustained to the testimony on the ground that the books were the best evidence. Thereupon the witness was called upon to testify from the books, the books being present in court. Objection was made on the ground that the books had been obtained by force from the defendants under the provisions of a search warrant, and that their use in evidence would be violative of the provisions of the Fourth and Fifth Amendments. The search warrant under which the books had been taken from the defendants' possession was issued upon an affidavit of an internal revenue agent, in which he deposed that the books were being used as the means of committing fraud against the revenues of the United States in a manner specifically set forth in the affidavit, and had been used in preparing false returns of income. The affidavit further stated that on the day on which the affidavit was made two of the defendants offered and gave the affiant a bribe of $5,000, with the understanding that he should make a report to his superior officers that no additional tax over the amount paid on their original return was due from the defendants.

No objection was made to the sufficiency of the affidavit, and counsel for the defendants offered the warrant in evidence. No objection was made to the evidence on the ground that the books would tend to criminate the defendants nor was a motion made at any time that the evidence therein be excluded or that the books be returned to the defendants. The books were taken on the search warrant without objection by the defendants, and they remained in the possession of the officers of the revenue department until they were offered in evidence on the trial of the case in hand. The trial court overruled the objections on the grounds, first, that the constitutional amendment with regard to the income tax, and the statutes enacted in pursuance thereof, rendered the books books of account between the defendants and the United States, and hence they were not within the protection of the Fourth and Fifth Amendments; second, that objection having been made by the defendants to oral testimony offered by the prosecution that the books were the best evidence, they could not subsequently object to the introduction of that which they had demanded by their objection; and, third, that having consented to the...