Marcus v. United States

• Decision Date: 03 February 1970
• Docket Number: No. 26281.,26281.
• Parties: Charles MARCUS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

422 F.2d 752 (1970)

Charles MARCUS, Appellant, v. UNITED STATES of America, Appellee.

No. 26281.

United States Court of Appeals, Fifth Circuit.

February 3, 1970.

W. B. West, III, Clark, West, Keller, Clark & Ginsberg, Dallas, Tex., for appellant.

Eldon B. Mahon, U. S. Atty., Merrill L. Hartman, Asst. U. S. Atty., Dallas, Tex., Richard B. Buhrman, Mitchell Rogovin, Joseph M. Howard, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before THORNBERRY, GODBOLD and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

This is an appeal from a conviction for failure to file individual tax returns for the years 1959, 1960 and 1961, as required by Section 6012(a) (1) of the Internal Revenue Code of 1954, 26 U.S.C. § 6012(a) (1),¹ in violation of Section 7203 of the Code, 26 U.S.C. § 7203.² We hold that the cumulative effect of the District Court's errors, which are discussed in detail below, when taken together, require that this case be reversed and remanded to the District Court for a new trial, even though no single error, when viewed in isolation, would necessarily require this disposition. See Getchell v. United States, 5 Cir., 1960, 282 F.2d 681, 691.

Joseph Brandstetter, the Special Agent of the Internal Revenue Service who headed the investigation against Marcus and who was the Government's principal witness, used a set of notes in testifying which he had specially prepared for the purported purpose of refreshing his memory at the trial from the memoranda he had made shortly after each interview with Marcus. At the beginning of his cross-examination of Brandstetter, defense counsel asked to see the notes to which Brandstetter had been referring during the direct examination. The Government objected to this request on the ground that defense counsel had already been supplied with all the interview memoranda upon which the notes were based. The District Court, after examining the notes, sustained the objection. In response to a question posed to Brandstetter on cross-examination, the Govenment's counsel admitted that he had been in possession of a copy of the notes while examining Brandstetter. Defense counsel then asked Brandstetter if the Government's counsel "has been asking you the questions from those same notes and your answers are on the paper that you have in your pocket there". To this Brandstetter replied:

Well, the answers are not verbatim. They are answers — they are the items that we intended to get into the answers in my testimony. (Transcript 354).

Marcus contends that the District Court erred in refusing to permit defense counsel to examine the notes relied upon by witness Brandstetter. The Government counters by arguing that copies of all the interview memoranda had been turned over to the defense prior to trial and, since the notes were based on these memoranda, the defense had everything needed to test the accuracy of Brandstetter's testimony on cross-examination, so that, even if the denial was error, it did not affect the substantial rights of the parties and was harmless. See Rule 52, Federal Rules of Criminal Procedure, 18 U.S.C.A.

It is well settled that if a witness uses any paper or memoranda while he is on the stand to refresh his memory in giving his testimony, the opposing side, upon proper demand, has the right to see and examine that paper or memoranda and to use it in cross-examining the witness. Montgomery v. United States, 5 Cir., 1953, 203 F.2d 887, 894. Accord, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 232, 60 S.Ct. 811, 84 L.Ed. 1129, 1173 (1940). It is also true, as the Government points out, that the Court in Montgomery stated that a conviction will not be reversed for denial of the right to examine such notes and memoranda if the error does not affect the substantial rights of the parties. However, it is important to note that the Court in Montgomery held that the denial of the right to examine notes with which it was confronted was reversible error because the witness had apparently relied on the notes to a great extent and his testimony was material and highly damaging.

There is no doubt that the District Court committed error in denying defense counsel's request to see Brandstetter's notes; the question is whether the error is sufficiently grievous to constitute reversible error. As in Montgomery, the witness apparently relied on the notes extensively and his testimony was material and highly damaging, but in this case the defense had copies of the memoranda upon which the notes were based and, supposedly, was thus in a position to test effectively the accuracy of Brandstetter's direct testimony on cross-examination. It is possible, however, that being unable to see the notes and examine Brandstetter with them, the defense was unable to effectively inquire into whether Brandstetter was testifying from present recollection or whether the notes were being used erroneously as past recollection recorded, see United States v. Riccardi, 3 Cir., 1949, 174 F.2d 883, or whether the notes, being used by both the examining counsel and the witness, constituted a sort of script, see N. L. R. B. v. Federal Dairy Company, 5 Cir., 1962, 297 F.2d 487, 489, and Jewett v. United States, 9 Cir., 1926, 15 F.2d 955. These possibilities tend to lead to the conclusion that the error here affected the substantial rights of Marcus and demands reversal, but when taken cumulatively with the other errors in this case, this conclusion need not be reached. Upon the retrial of this case, the District Court should exercise great caution to see that these trial notes are not misused.

The Government introduced evidence of specific expenditures made by Marcus during the prosecution years, including a trip to Europe, the purchase of carpeting, the hiring of an interior decorator, bills from an exclusive department store, the purchase of an expensive wrist watch band, house payments, utility payments, household expenses and the purchase of a home. The purpose of this evidence was limited by the Government to show expenditures of sufficient size by Marcus so that he must have known he had over $600.00 a year in gross income during the years involved. The defense objected to the admission of this evidence on the ground that no foundation had been laid by the Government to show that such expenditures were not made from prior accumulations, loans, gifts or the separate estate of Mrs. Marcus by establishing an opening net worth as of January 1, 1959, and, consequently, the evidence was not relevant on the issue of wilfulness.

It was apparently the Government's hope that the jury would infer from the fact that Marcus spent in excess of $600.00 in each of the prosecution years that he had to be aware that he had a gross income in excess of $600.00. But this inference cannot logically follow unless, from the fact that these expenditures were made, it is shown that they were made out of taxable income, and not from prior accumulations, gifts, etc. The Government failed to lay any foundation to indicate that the expenditures came out of current income, and, for this reason, the jury could not infer that Marcus had a gross income in excess of $600.00 out of which the expenditures had been made, and further, that, by making the expenditures, he had to know he had a gross income in excess of $600.00. As was said in Dupree v. United States, 5 Cir., 1955, 218 F.2d 781, 784: "If there is no established figure showing the source from which expenditures during the year can be made, or the complete lack of such source, then there is no relevance to proof of expenditures during the year, no matter how large they may be". See Blumberg v. United States, 5 Cir., 1955, 222 F.2d 496, 499-500; Bryan v. United States, 5 Cir., 1949, 175 F.2d 223.

The Government cites several cases which support the proposition that...