Paschen v. United States

Decision Date22 May 1934
Docket NumberNo. 4869.,4869.
Citation70 F.2d 491
PartiesPASCHEN v. UNITED STATES.
CourtU.S. Court of Appeals — Seventh Circuit

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Franklin J. Stransky, Frank Niedner, and Thomas B. Hart, all of Chicago, Ill., for appellant.

Dwight H. Green, U. S. Atty., and Samuel G. Clawson, Sp. Asst. U. S. Atty., both of Chicago, Ill., for appellee.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

ALSCHULER, Circuit Judge.

Appellant was found guilty on counts 1 and 2, and not guilty on counts 3 and 4, of an indictment of four counts, each charging that he did willfully and knowingly attempt to defeat and evade taxes due the United States, imposed as to counts 1 and 2 by the Revenue Act of 1926, and as to counts 3 and 4 by the Revenue Act of 1928. Counts 1 and 2 charged the offense with reference to taxes for the year 1927, and counts 3 and 4 as to the year 1928. He was sentenced to two years' imprisonment and $10,000 fine on each of counts 1 and 2, the sentences to run concurrently, and one payment of $10,000 to satisfy both fines.

Error is assigned upon denial of appellant's motion for a bill of particulars, and much argument is devoted to this proposition. The allowance of bills of particulars is within the discretion of the court Wong Tai v. United States, 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545; Dunlop v. United States, 165 U. S. 486, 17 S. Ct. 375, 41 L. Ed. 799; Rosen v. United States, 161 U. S. 29, 16 S. Ct. 434, 40 L. Ed. 606; Norcott v. United States, 65 F.(2d) 913 (C. C. A. 7); Zito v. United States, 64 F.(2d) 772 (C. C. A. 7), although, as in other matters of discretion, abuse of the discretion may constitute reversible error.

The indictment descended into particulars considerably further than the indictment in the recent case of Capone v. United States (C. C. A. 7) 56 F.(2d) 927, 934. While we there stated that had a bill of particulars been requested the court would not likely have refused it, yet even there it was not indicated that its refusal, if asked, would have constituted reversible error.

The court in its sound discretion always has power, and it is its duty, to protect a defendant against surprises in the development of the Government's case, and against a defendant being placed in position where he is at an unreasonable and unfair disadvantage. If further time is necessary to enable the defendant to meet unexpected developments, reasonable postponement may and should in a proper case be granted; and, indeed, where it is plainly apparent that a defendant is surprised by certain evidence, and is thereby placed at an unfair disadvantage through being thus unprepared to meet it, in a proper case the evidence may, on objection, be refused admission, or, if admitted, may on timely application be ruled out. As was said in the Capone Case, supra (and the situation here is quite similar in this regard):

"It does not appear that during the proceedings in the trial appellant made any contention that he had been either surprised or prejudiced by the evidence introduced under the alleged too-general allegations of the indictment, or that his rights relating thereto were being injured in any manner."

We are satisfied that there was here no abuse of the court's discretion. But we are further satisfied that no serious harm or prejudice accrued to appellant through the denial of the motion. In Peck v. United States (C. C. A. 7) 65 F.(2d) 59, there was an indictment far less specific than that here; and notwithstanding we there held there was an abuse of the court's discretion in denying a motion for bill of particulars, we further held that the record disclosed no prejudice therefrom to the defendant, and judgment was affirmed.

Complaint is made of the court's denial of appellant's motion, made just before the jury was impaneled, to continue the case, by reason of certain alleged inflammatory newspaper publications respecting appellant and his impending trial. The articles complained of, appearing in newspapers of May 2, 1932, were attached to the motion. One appeared in the "Home" edition, and the other in the "Final" edition of that day's Chicago Tribune. Each of these is introduced by a headline in very large heavy type spread across the top of the entire front page, the first being "MILLIONS TRACED TO PASCHEN," and the other "U. S. TRACES PASCHEN RICHES." The article itself (same in each edition) then follows on the front page, headed by smaller headlines with the words, "Discloses Vast Amount Spent On Farm Estate. Tax Evasion Trial Opens Tomorrow." It rehearses some of the charges of the indictment, but ends with the statement:

"Paschen's trial, like that of former Assessor Gene G. Oliver, who was convicted and sent to the penitentiary for eighteen months on income tax fraud charges, will be marked by revelations of official corruption, the government agents declare. The evidence showed that Oliver accepted bribes to fix taxes. Charges that bribes were solicited and paid in Paschen's office were made in a civil suit by Jules K. Massee, a draftsman, a year ago."

There was also an article in the Chicago News of the same day to the effect that Paschen, while building commissioner under Mayor Thompson, obtained $50,000 worth of contracts from the city contrary to law, and a further statement that "Reports that the Government will show evidence of corruption and graft in the conduct of Paschen's office were denied today in the Federal Building. There may be a hint of it, said one Government man, but there will be no direct evidence to that charge." Upon denial of that motion appellant made another motion, similarly grounded, to discharge the panel, which was likewise denied.

Discussion would be superfluous to point out the gross impropriety of these publications. The Government joins in their condemnation, saying in its brief, "The press accounts were reprehensible"; and, in apparent comfortable despair of the evil ever being minimized, saying further, "a continuance offered no hope of curing the situation. * * * There was an equal likelihood that similar articles would appear in the newspapers at any time thereafter that the case should be set for trial." The brief contends, however, that continuance was a matter within the discretion of the court, and in this contention appellant seems to agree, saying in its brief, "We understand that the granting of a continuance in a case of this kind is a matter within the sound discretion of the trial court," and further expressing inclination to concede that failure of the court to grant the continuance was not of itself sufficient ground for reversal, but maintaining it tended to show the alleged unfairness of appellant's trial.

Impassioned defense against real or imaginary attacks upon "freedom of the press" comes with ill grace from newspaper publishers who are frequent and flagrant trespassers upon that freedom. The reprehensibility of the publications, as stated by the Government, extends not only to the publications themselves, but as well to the disclosures and information stated in the article to have been made by "Government men" and "Government agents" as the authority for the publications. Government men and agents have no more right in advance of trials to reveal such information than have newspapers to publish it. It is unfair to persons about to go on trial for their liberty, and to the Government, whose plans of procedure are thus made public. In times of actual warfare such revelations of the Government's plans would be deemed treasonable conduct; and why not equally so, at least morally, in the Government's continuous war upon crime?

What is said herein is prompted not alone by what here occurred, but as well by the great frequency of similar infractions of individual and public rights and interests. We said this in effect in Allen et al. v. United States, 4 F.(2d) 698, but (strangely enough!) it seems the reprehensible practices go merrily on.

We agree that the disposition of the motions was within the discretion of the court. The record here does not disclose whether any of the jurors had read or heard of these particular articles, and we cannot say that the court's discretion was abused in its denial of the motions.

Error is charged in the action of the court in declining to permit appellant's counsel to question jurors on the voir dire. The questioning was by the court. It appears that when appellant's counsel asked the opportunity to examine the jurors individually, the court stated: "I will ask any question that is proper to be propounded that you suggest, but I will refuse your request that you be permitted to interrogate the jurors." Appellant relies on the Sixth Amendment to the Constitution, which guarantees to accused persons the right to the assistance of counsel in their defense, and cites in support of his contention the case of Donovan v. People, 139 Ill. 412, 28 N. E. 964. This case involved the direct question whether counsel may be required to ask such questions through the court, and it was decided that they may not. The case of Stephens v. People, 38 Mich. 739, is also cited, but it does not involve the precise point here in issue.

It has been authoritatively decided that in the impaneling of juries federal courts are not bound by state practice.1 Upon the question here involved the decisions of the federal courts have been numerous and uniform to the effect that it is within the discretion of the trial judge to permit or deny to counsel for the defense the privilege of personally examining veniremen on the voir dire.2 We find no Supreme Court case on the subject beyond the denial of certiorari in several of the cases cited.

It is earnestly contended for appellant that the evidence does not show there was any substantial, nor indeed any, income tax due the Government for the year 1927. Most of the very voluminous record and much of the briefs is devoted to this...

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