Sang Soon Sur v. United States

• Citation: 167 F.2d 431
• Decision Date: 31 March 1948
• Docket Number: No. 11339.,11339.
• Parties: SANG SOON SUR v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

167 F.2d 431 (1948)

SANG SOON SUR v. UNITED STATES.

No. 11339.

Circuit Court of Appeals, Ninth Circuit.

March 31, 1948.

Hyman M. Greenstein, of Honolulu, T. H., for appellant.

Ray J. O'Brien, U. S. Atty., Edward A. Towse, Asst. U. S. Atty., both of Honolulu, T. H., Frank J. Hennessy, U. S. Atty., and Robert B. McMillan, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.

Before MATHEWS, HEALY and ORR, Circuit Judges.

ORR, Circuit Judge.

Appellant is a Korean and a resident of the Territory of Hawaii. He is unable to readily understand or speak the English language. He was suspected of having evaded income tax payments and as a result a Special Agent of the Bureau of Internal Revenue made an investigation of appellant's business and financial affairs. During the course of the investigation the Revenue Agent obtained from appellant a so-called confession, or admission. The appellant talked to the agent through an interpreter, appellant's son acting in that capacity. The Revenue Agent, at the outset of the examination, advised appellant of his right to refuse to answer any questions which might tend to incriminate him and that any information he might give could be used against him at a trial. The agent then asked a few questions as to appellant's name, residence and family status. The following questions were then asked by the agent and the following answers made by appellant:

"Q. Have you ever been arrested? A. Yes.

"Q. When were you arrested and where? A. July 1943. I got license for rooming house late and had to pay $10.00 fine. Arrested once or twice for fighting.

"Q. Where? A. Honolulu.

"Q. When? A. Over five or six years ago.

"Q. How many? A. Two or three years before 1938. 1936 charged with holding some opium. 1934 had some opium, Federal caught me and I got $100.00 fine and five years suspended sentence. * * *

"Q. Did you plead guilty? A. Pleaded guilty.

"Q. Any other arrests? A. No.

"Q. Were you arrested before 1934? A. Possessed opium and arrested two — three times for fighting by City Police in Honolulu. 1 case I fought and case dropped in court.

"Q. Ever spend any time in jail? A. No."

Then followed questions and answers relative to income tax matters.

The statement made by appellant was reduced to writing and signed and sworn to by him. Subsequently, appellant was charged with a violation of 26 U.S.C.A. Int.Rev.Code, § 145(b), tried and convicted.

The statement made by appellant to the Revenue Agent was introduced into evidence at the trial, without objection, and filed as an exhibit by the Clerk, but was not read to the jury nor were they permitted to inspect it at that time. On the following day the Assistant United States Attorney asked and received permission of the Court to read the statement to the jury. The reading of the statement was interrupted by counsel for appellant immediately after the following portion thereof had been read to the jury:

"A. Two or three years before 1938. 1936 charged with holding some opium. 1934 had some opium, Federal caught me and I got $100.00 fine and five years suspended sentence."

After such interruption the following colloquy occurred between the Court and counsel for appellant:

"Mr. Greenstein: If the Court please, may I interrupt at this time? I don't know what is in those statements, but I would like to move that such questions and answers as may relate to prior offenses be stricken as being unduly prejudicial.

"The Court: What is that?

"Mr. Greenstein: I'd like to move that such items as may appear in the statements or confessions that are being read that have no relation to taxable liability for the years 1942 or '43 be stricken —

"The Court: Overruled.

"Mr. Greenstein: — as highly prejudicial.

"The Court: Overruled."

The admission of the evidence of independent crimes was error. Its admission cannot be justified under any of the exceptions to the general rule. We fail to perceive any relevancy between an evasion of the payment of income taxes and a conviction for the possession of opium. Such an error must have resulted in prejudice to appellant, more so perhaps, because of his nationality and alien status.

Appellant entered the trial with a presumption of good reputation. He did not put his reputation in issue. Crawford v. United States, 59 App.D.C. 356, 41 F.2d 979. The introduction of evidence of the commission of independent crimes through the medium of the statement or confession cannot be justified on the ground that the relevant portions thereof could not be segregated from the irrelevant. Such a segregation could easily have been made without impairing the force and value of the statement...