Samuels v. United States

• Decision Date: 02 October 1968
• Docket Number: No. 24482.,24482.
• Citation: 398 F.2d 964
• Parties: George Leslie SAMUELS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

398 F.2d 964 (1968)

George Leslie SAMUELS, Appellant, v. UNITED STATES of America, Appellee.

No. 24482.

United States Court of Appeals Fifth Circuit.

August 5, 1968.

Rehearing Denied October 2, 1968.

Gordon G. Hawn, Willis T. Taylor, San Antonio, Tex., by Ben F. Foster, for appellant; Foster, Lewis, Langley, Gardner & Hawn, San Antonio, Tex., of counsel.

Andrew L. Jefferson, Jr., Asst. U. S. Atty., Ernest Morgan, U. S. Atty., Western District of Texas, Ralph H. Harris, III, Asst. U. S. Atty., San Antonio, Tex., for appellee.

Before RIVES, GEWIN and THORNBERRY, Circuit Judges.

GEWIN, Circuit Judge:

George Leslie Samuels (appellant) was indicted, tried and convicted of various violations of the Internal Revenue Code. The ten count indictment, returned on March 8, 1965, by a federal grand jury in the San Antonio division of the United States District Court for the Western District of Texas, specifically charged him under five counts with violations of 26 U.S.C. § 7201 for wilfully attempting to evade a large portion of income tax due by him and his wife, one count for each of the years 1958, 1959, 1960, 1961 and 1962. The other five counts of the indictment charged Samuels with violation of 26 U.S.C. § 7206(1) for wilfully subscribing a return containing a written declaration that it is made under the penalties of perjury, not believing the return to be true. A separate violation was charged for each of the five years 1958 through 1962 inclusive. Samuels entered a plea of not guilty and was tried before a jury. The trial lasted seven days. A verdict of guilty on all ten counts was returned and judgment of conviction was entered on December 20, 1966. Samuels received a sentence of eighteen months on each count, to run concurrently. A motion for a new trial was overruled and notice of appeal was timely filed on December 30, 1966. After a full and careful consideration of each of appellant's contentions, we affirm.

Appellant alleges that numerous errors were committed in the trial of the case which require us to reverse. Specifically, he contends that the prosecutor illegally commented on his failure to testify; the prosecutor's final argument was improper and prejudicial; the trial court erred in illegally limiting cross-examination, failing to properly charge on circumstantial evidence, admitting evidence, and overruling appellant's motion in arrest of judgment; and that a series of errors were committed in the course of the trial, the cumulative effect of which denied him a fair trial.

Although no attack is made upon the sufficiency of the evidence to support the judgment of conviction, it is nonetheless necessary briefly to set forth the facts giving rise to this prosecution and the government's contentions with respect to such facts, in order to place appellant's objections in their proper factual context. G. L. Samuels was the president of Samuels Glass Company, a corporation, throughout the period in question. The company offices were located in San Antonio, Texas, and its business consisted of selling glass and aluminum in the San Antonio area as well as selling scrap metal to various iron and metal dealers. Annual sales approached $2,000,000.00. While the evidence was contradictory on certain points, it was such that the jury could have found, as contended by the prosecution, that the violations primarily resulted from certain special purchasing arrangements made between appellant and two of the company's customers — Francis Kuemmel and Luther Warrick. When these two customers purchased items such as automobile windshields from the Samuels Glass Company, they dealt with G. L. Samuels personally, making their payments directly to him in cash. Such payments were not recorded in the books and records of the Samuels Glass Company and were not reported as income by either appellant or the corporation during the period 1958 through 1962. A similar pattern of operation was also shown involving lesser amounts in other transactions conducted by Samuels.

The most serious of appellant's contentions concerns the charge that the Assistant United States Attorney who conducted the prosecution for the government made a direct comment upon his failure to testify thereby violating his right to a fair and impartial trial. During the course of the trial Samuels did not take the stand to testify in his own behalf, but rather elected to exercise his rights under the Fifth Amendment to the United States Constitution and 18 U.S.C. § 3481. During the early portion of the closing argument of the prosecutor, the statement was made that "G. L. Samuels does not want to talk about the facts." At the conclusion of the argument, defendant's counsel called the attention of the trial court to the remark in his motion for a mistrial, which motion was denied. Again in his motion for a new trial, defendant's counsel raised the issue. The motion for new trial was overruled. Appellant contends that both the plain meaning of the statement as well as the context in which it was made constituted a substantial and prejudicial violation of his right to a fair trial.

Under both the Fifth Amendment to the United States Constitution and 18 U.S.C. § 3481 it is clear that no comment is permissible on a defendant's failure to testify. Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed. 2d 84 (1961); Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650 (1893); DeLuna v. United States, 308 F.2d 140, 1 A.L.R.3d 969 (5 Cir. 1962). Such a comment is equally forbidden even though it is indirect. Benham v. United States, 215 F.2d 472 (5 Cir. 1954); DeMayo v. United States, 32 F. 2d 472 (8 Cir. 1929).

The government's threshold defense of the comment under attack here is that there was a failure by the defense to make a timely objection. In support of this argument the government relies heavily on the case of Fogarty v. United States, 263 F.2d 201 (5 Cir. 1959). That case also involved a contention that the attorney for the government had adverted to the defendant's failure to testify while making his closing argument to the jury. The court stated:

"* * * no objection was made to the argument when made. It is not sufficient to move for a mistrial after all the arguments are in. The purpose of requiring objection to be made while the argument is in process is to give counsel making the argument a chance to withdraw or explain it and the court a chance to exclude it from the jury\'s consideration. The Rules requiring prompt objection and the assignment of reasons therefor are rules of reason and their observance should not be lightly disregarded." (Citations omitted). 263 F.2d 201 at 204.

Another case which strongly supports the government's position is Langford v. United States, 178 F.2d 48 (9 Cir.1949). There the defendant was charged with a Mann Act violation, did not testify on his own behalf, and during the closing argument the attorney for the government stated: "Once again I want to direct your attention to the fact that the defendant was not on the stand. It seems to me that the least he could do would be to get on the stand and testify as to his occupation at this time or at the time when these acts were charged last spring." 178 F.2d at 53. No objection was made. The court stated that whether a defendant should be held to have waived the right to subsequently raise the objection (or whether such remark constituted "plain error") was dependent upon the "gravity of the error in the particular case — upon how flagrantly the rights of the accused have been disregarded." In the circumstances there present the court held that it would not treat the comment as plain error. In addition, the court added that had the trial court admonished the jury to disregard the remarks of counsel or given general instructions that no weight was to be given to defendant's refusal to testify, then any possible error would have been cured.

Despite the strenuous argument by appellant's counsel, we do not believe that the case of O'Connor v. State of Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed. 2d 189 (1966) forecloses all reliance on the many cases requiring prompt objection to comment on an accused's failure to testify. The O'Connor case involved a state prosecution for larceny. Subsequent to O'Connor's conviction, the Supreme Court decided Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) which applied the Fifth Amendment prohibition relative to comment on the accused's failure to testify to the states through the Fourteenth Amendment. The Supreme Court therefore remanded O'Connor's case to the Ohio Supreme Court in light of the Griffin decision, 382 U.S. 286, 86 S.Ct. 445, 15 L.Ed.2d 337. Upon remand, the Ohio Supreme Court again affirmed the conviction. Their sole ground was that O'Connor had failed to make a timely objection to the illegal comment. 6 Ohio St.2d 169, 217 N.E.2d 685 (1966). O'Connor again appealed to the Supreme Court which held that failure to object in the circumstances there present was no bar to a consideration of the constitutional claim since petitioner had already exhausted his state remedies at the time of the Griffin decision and therefore could not be held to have anticipated the application of the Fifth Amendment to the states so as to be required to object. The Supreme Court carefully refrained from any all-inclusive language which would obviate the necessity to object in all cases. Rather the court said:

"We hold that in these circumstances the failure to object in the state courts cannot bar the petitioner from asserting this federal right. * * * Defendants can no more be charged with anticipating the Griffin decision than can the States * * * his failure to object to a practice which Ohio had long allowed cannot strip him of his right to attack the practice following its invalidation by this Court." (Emphasis supplied) 385 U.S. at 93, 87 S.Ct. at 254.

We construe the O'Connor d...