Miller v. United States, No. 17975.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: VOGEL, , and BLACKMUN and GIBSON, Circuit
• Citation: 354 F.2d 801
• Parties: Sophia C. MILLER, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 17975.
• Decision Date: 05 January 1966

354 F.2d 801 (1966)

Sophia C. MILLER, Appellant,
v.
UNITED STATES of America, Appellee.

No. 17975.

United States Court of Appeals Eighth Circuit.

January 5, 1966.

354 F.2d 802

Henry G. Morris, St. Louis, Mo., made argument for appellant and filed printed brief.

Robert J. Koster, Asst. U. S. Atty., St. Louis, Mo., made argument for appellee and filed brief with Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo.

Before VOGEL, Chief Judge, and BLACKMUN and GIBSON, Circuit Judges.

VOGEL, Chief Judge.

Sophia C. Miller, appellant, was charged in a two-count indictment with having violated 26 U.S.C.A. § 7201¹ in that she

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allegedly attempted to evade a part of her and her husband's income tax for the years 1961 and 1962 by willfully and knowingly filing or causing to be filed false and fraudulent joint income tax returns

Specifically, the indictment charged that, as to Count 1, appellant in her return stated taxable income of $6,833.47 for 1961 with a tax due of $1,421.65, whereas taxable income was in fact $25,232.75 with a tax due thereon of $7,328.37. Count 2 charged that appellant stated in her joint tax return for 1962 a taxable income of $8,721.99 on which there was a tax due of $1,864.71, whereas taxable income was in fact $25,841.99 upon which was owed a tax to the government of $7,589.05.

Upon a jury's verdict of guilty as to both counts of the indictment, the appellant was sentenced to confinement for 30 months on each count, the sentences to run concurrently, and fined a total of $12,000. She appeals from the judgment of conviction.

The appellant had originally been arrested for abortion, a state offense. The arrest took place at her home at High Ridge, Missouri, at about 10 p. m. on January 12, 1963. Lieutenant V. E. Maxey, of the Missouri Highway Patrol, and Brunson Hollingsworth, Prosecuting Attorney for Jefferson County, Missouri, had interviewed a certain patient in St. Louis County Hospital on January 11, 1963, who told them that she had been aborted on January 10, 1963, at a home in High Ridge, Missouri, by a woman represented to her as Sophia Miller. Upon being shown pictures of known abortionists in the St. Louis area, she identified a picture of one Vera Daniels as "resembling" the woman who aborted her. She gave Lieutenant Maxey and Mr. Hollingsworth a description of the alleged abortionist's premises and told them the phone number of the place. She advised them that the telephone was listed under the name of "Miller" and that the doormat had the name of "Miller" imprinted thereon.

Hollingsworth caused a state complaint to be prepared, alleging that the appellant, "Sophie Miller, alias Vera Daniels", had performed a criminal abortion on the above informant. The complaint was signed by Hollingsworth on January 12, 1963. Hollingsworth testified that since January 12, 1963, was a Saturday, he telephoned the Clerk of the Magistrate Court, one Douglas C. Fraser, at his home in Jefferson County to obtain an arrest warrant. According to Hollingsworth's testimony, Fraser came to his office to prepare the requested warrant on the evening of January 12th. Fraser had no independent recollection of the events of January 12th. Upon the filing of the complaint, Fraser, according to Hollingsworth, issued an order of arrest for appellant, alias Vera Daniels, at about 6 or 6:30 p. m. on January 12, 1963. Later that evening Hollingsworth met Jefferson County Sheriff A. R. McKee, Lieutenant Maxey, Captain Vasel of the St. Louis County Police, Mary Jane McMullen, who was Vasel's secretary, and a number of troopers. Hollingsworth had the arrest warrant in his possession at the time and gave it to either McKee or Lieutenant Maxey. The officers then went to appellant's home, where they were admitted by Frank Miller, appellant's husband, who was advised that they had a warrant for the arrest of the appellant. Sheriff McKee testified that he then read the warrant to the appellant in the dining room of her home, where she was standing at the time. After the warrant had been read the entire premises were searched. Among other things the officers found two diaries, Government's Exhibits 4 and 5, under a chair cushion in the dining room where appellant had been placed under arrest. The diaries contained the names and addresses of a large number of men and women listed under specific dates for the years in question, 1961 and 1962. Next to the names of many of these individuals a notation appeared of 200, 250, 300, etc., or 2, 2½, 3 or 3½, etc.

Following her arrest, the appellant was taken to the courthouse in Hillsboro, Missouri, and was questioned by Lieutenant Maxey. She admitted to him that the entries in the two diaries were names

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and addresses of persons for or on whom she had performed abortions during the years 1961 and 1962. Appellant further admitted to Lieutenant Maxey that the figures next to the persons' names represented the amounts she had charged such individuals, 200 meaning $200, 2½ meaning $250, 3 meaning $300, etc. She also admitted that during 1961 and 1962 she had performed approximately 200 abortions, from which she realized income of between $40,000 and $50,000. In the diary for 1962 there were additional entries in the rear of the book in the nature of monthly totals entered along with the name of the person who had made payment and the date and month on which payment had been received

An Internal Revenue Agent, John C. Caton, testified at trial that in the early part of 1963 he prepared a schedule, Government Exhibit 8, which, using the information contained in the diaries, reflected the appellant's actual income for 1961 and 1962 as compared to her reported income. In addition to relying on the diaries for the construction of the appellant's income for the two years in question, the government called some 37 witnesses, whose names were obtained from the diaries, and who testified they had paid appellant in amounts ranging from $200 to $400, always in cash, and that these payments were for "abortions" or "medical services" performed by the appellant during 1961 and 1962. The testimony of the witnesses supported the accuracy of the two diaries referred to.

After indictment by a federal grand jury and prior to trial, appellant filed a motion to suppress and exclude from evidence objects and papers, including the diaries, seized from appellant's home at the time of her state arrest. An initial hearing was held on such motion on December 4, 1964. Prior to the time any ruling was made thereon, appellant filed a supplemental motion to suppress requesting an additional hearing in support thereof. The second hearing was held on January 15, 1965, at which time additional evidence, primarily in the form of testimony by Fraser, Clerk of the Jefferson County Magistrate Court, was presented in behalf of the appellant. The motions to suppress were overruled.

On appeal to this court, it is contended:

I.

The trial court committed prejudicial error by denying appellant a fair and orderly hearing on her two motions to suppress and exclude as evidence certain records seized by police officers in a raid on appellant\'s home.

II.

The court committed prejudicial error in overruling appellant\'s pretrial motions to suppress and exclude as evidence the two diary memoranda books — Government Trial Exhibits 4 and 5; and the admission in evidence at the trial of said exhibits, together with the testimony of a number of witnesses whose names and leads relating to them were obtained through the use of said Exhibits 4 and 5.

III.

The court erred in permitting various witnesses to testify they paid sums of money to appellant which the government relied upon to prove additional income not reported in her tax returns; and to permit Agent Caton to testify as to appellant\'s adjusted income, and the admission in evidence of Government\'s Exhibit 8, his computation schedule.

IV.

The court erred in overruling appellant\'s objections to witness Maxey testifying at the trial as to admissions made by appellant to him after she was taken to the court-house at Hillsboro.

We will deal with these contentions individually below.

I.

Appellant first directs attention to the fact that the trial judge, on occasion during the two hearings on the motions to suppress, cross-examined several of the

354 F.2d 805

witnesses, interrupted witnesses during their testimony, and warned certain of the witnesses about perjury statutes. We have carefully reviewed the transcripts taken at the times of the two hearings and find no prejudicial error occurred

We note, first, that in hearings such as were had herein, that is, on motions to suppress, the trial judge alone is responsible for fact determinations and conclusions to be drawn therefrom. He therefore has a special interest in bringing out all of the truth, in thoroughly understanding the testimony of the witnesses and in seeing that no witness perjure himself or, through misunderstanding, give the appearance of having done so. The oft-quoted remark of Judge Learned Hand in United States v. Marzano, 2 Cir., 1945, 149 F.2d 923, 925, fits admirably into this situation:

"* * * A judge is more than a moderator; he is charged to see that the law is properly administered, and it is a duty which he cannot discharge by remaining inert. Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321; Montrose Contracting Co. v. Westchester County, 2 Cir., 94 F.2d 580, 583."

Since, in the instant case, no jury was present and since the remarks of the trial judge and his questions were solely for his own benefit in determining the truth of a disputed pre-trial matter, we do not see where, in the absence of a showing that the trial judge was so prejudiced as to have a pre-conceived opinion on the outcome of the hearing, there could possibly have been any prejudice to the appellant through the statements and questions of the trial judge. The fact...