Richard v. United States, 6061.

• Decision Date: 29 March 1963
• Docket Number: No. 6061.,6061.
• Citation: 315 F.2d 331
• Parties: Paul J. RICHARD, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

315 F.2d 331 (1963)

Paul J. RICHARD, Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 6061.

United States Court of Appeals First Circuit.

March 29, 1963.

Frederick Bernays Wiener, Washington, D. C., with whom Archie Smith and Edward M. Botelle, Westerly, R. I., were on brief, for appellant.

Norman Sepenuk, Attorney, Department of Justice, with whom Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Joseph M. Howard, Attorneys, Department of Justice, and Raymond J. Pettine, U. S. Atty., were on brief, for appellee.

Before HARTIGAN and ALDRICH, Circuit Judges, and GIGNOUX, District Judge.

ALDRICH, Circuit Judge.

The defendant was convicted by a jury of falsifying his income tax returns. Apart from one matter not pressed at the argument his complaints on this appeal are to the admission of a stenographic transcript of what might be loosely termed a deposition, voluntarily given by him to the Internal Revenue Service, described by counsel as bobtailed, and to the denial of motions for a mistrial and for a new trial because of the publication, during trial, of certain newspaper articles.

The case was tried upon the net worth theory. The defendant makes no claim that the evidence did not warrant a conviction if his deposition was properly admitted.¹ The transcript was duly authenticated, and there is no suggestion of duress or overreaching so far as the merits are concerned. In fact the defendant was represented by counsel throughout the taking. The sole objection pressed is that in a number of places there are notations indicating that something was said off the record, and in some instances there is a purported short summary, authorship not shown, of the subject matter of the off-the-record discussion, which had apparently included statements by the defendant. The government initially offered to black these matters out, but the defendant replied that this would not "help the situation. * * * The document on its face * * * is not admissible." He explained his objection to be that the deposition was undeniably incomplete. The court having overruled that objection, nothing more was said by the defendant about the government's offer to black out "all off-the-record comments" and the document was introduced unmarred.

It is, of course, normally true that, upon objection, a party must offer the entire material portions of a statement. It would be a misconstruction to apply that principle here. There was no showing that any material part of the deposition had not been transcribed. The implication "on its face" is just the opposite. The natural assumption is that the parties went off the record for something considered to be immaterial. And, indeed, when, at the end of the deposition, defendant was asked if he had anything he wanted to add for the record, he replied he had not. If this is a "bob-tailed" transcript, the defendant is seeking to use a properly severed tail to wag the dog.

It may further be noted that at the outset of his deposition the defendant acknowledged that he understood that the answers "may be used * * * against you should the investigation result in a trial." He made no objection to the off-the-record procedure at the time. We find it surprising that under these circumstances he should think he could do so now.

The interpolations or interpretations of the off-the-record discussions present a different situation. If, however, the defendant had a separate objection to these insertions, he should have accepted the government's offer of excision. Again, the defendant is patently too late.

The facts with relation to the requested mistrial are these. The trial lasted six days, the government producing, as part of its case, some twenty-nine witnesses. One of these, a Mr. Wynhoff, having identified himself as a resident of Florida, testified that the defendant had paid him $3,000 for a certain horse. This figure entered into the government's net worth calculations. Wynhoff's direct testimony was not protracted. There was no cross. That evening a local newspaper published an item to the effect that bringing Wynhoff from Florida had cost the government $315.52 for thirteen words, or "$24.27 per word."² Although the article placed no special emphasis on it, it stated that the government was "compelled to summon Mr. Wynhoff when the defense refused to stipulate the $3,000 figure." The following morning the defendant moved for a mistrial. In denying the motion the court stated it assumed that the jurors had seen the article. The court did not suggest examining the jurors, individually or collectively, as to whether, if they had seen it, they had been influenced. Nor did the defendant at any time request such an examination.

Thereafter, in its charge, the court instructed the jury that the case should be decided "solely on the evidence that has been presented here in this courtroom," and that if any jurors had read any newspaper articles they should "disregard them completely."³ In addition, the court gave the customary charge that the burden was on the government to prove its case beyond a reasonable doubt, and that no inferences should be drawn against the defendant for failure to take the stand.

Following the verdict the defendant moved for a new trial. Accompanying the motion was an affidavit to the effect that two jurors, although they had not seen the article in question, had seen another of like tenor the following morning, and that one recalled (nine days...