Schino v. United States

• Decision Date: 05 April 1954
• Docket Number: No. 13375.,13375.
• Citation: 209 F.2d 67
• Parties: SCHINO et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

209 F.2d 67 (1953)

SCHINO et al. v. UNITED STATES.

No. 13375.

United States Court of Appeals, Ninth Circuit.

December 2, 1953.

Rehearing Denied January 4, 1954.

Writ of Certiorari Denied April 5, 1954.

A. J. Zirpoli, C. Harold Underwood, San Francisco, Cal., for appellant Schino.

Morgan V. Spicer and H. R. Whiting, San Francisco, Cal., for appellant Hartmann.

M. Mitchell Bourquin, Spec. Asst. to U. S. Atty., Thomas W. Martin, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges.

Writ of Certiorari Denied April 5, 1954. See 74 S.Ct. 627.

DENMAN, Chief Judge.

This is an appeal by two of three defendants from a judgment convicting them of conspiring to defraud the government by impairing its process of collecting and assessing federal taxes.

The parties have assigned many errors of the trial court for this appeal. These may be summarized as follows: (1) Sufficiency of the indictment; (2) denial of request for a bill of particulars; (3) refusal of a continuance because of the approaching pendency of hearings before the King sub-committee which might have bearing on many matters involved in the trial; (4) improper remarks of prosecuting attorney in argument to jury; (5) sufficiency of the evidence to support the verdict; (6) admissibility of evidence as to similar transactions; and (7) instructions to the jury.

The essence of the scheme, as developed by the government's evidence, is as follows: Gertrude Jenkins, a convicted abortionist, was in tax difficulties. She contacted appellant Hartmann who told her that he could get it "fixed" for $5,000 so that she would not be criminally or civilly prosecuted. Hartmann contacted defendant Mooney (not an appellant), Chief Field Deputy of the Collector of Internal Revenue for the State of Nevada, and asked him if he could "fix" appellant Schino, Chief Field Deputy of the Collector of Internal Revenue for the First District of California. The answer was affirmative. Mooney later took Hartmann to meet Schino. Schino was, as he had done in other cases, to compel his subordinates in the San Francisco office to tamper with and suppress the assessment and penalty against Mrs. Jenkins. In exchange, Mrs. Jenkins was to pay $5,000, and did pay it, for worthless shares of stock in the Mountain City Consolidated Copper Co., a corporation controlled by Mooney. Schino and Hartmann were to share in this $5,000. The failure of the scheme was not the fault of the conspirators, but rather resulted because of a contemporaneous investigation of the Internal Revenue Bureau then under way.

(A) The Indictment:

The indictment charges appellants and one Patrick Mooney —

"* * * did * * * conspire together, and with Gertrude Jenkins, also known as Ann Scott, and others to said Grand Jury unknown, with the intent and purpose to defraud the United States in the exercise of its governmental powers by impairing, obstructing and interfering with the lawful function of a Department of the United States, to-wit, the Bureau of Internal Revenue of the Treasury Department, by attempting corruptly to influence and prevent said Bureau of Internal Revenue from proceeding civilly against said Gertrude Jenkins and prosecuting her criminally for income taxes due, owing and unpaid by her to the United States in the sum of $45,000.00, approximately, for the calendar tax years of 1944 and 1945; * * *."

Appellants admit there was an overt act but attack the indictment in that it does not state the essential facts constituting the offense charged, but merely the legal conclusions of the pleader. The indictment is not defective in that regard. It charges that the appellants "conspired" (i. e., "agreed") to defraud the government (unlawful object) by attempting corruptly to influence and prevent the Bureau of Internal Revenue from proceeding against Gertrude Jenkins (the means). This indictment gives the gist of the offense of conspiracy, the agreement to commit an unlawful act and the means by which that agreement was to be achieved. United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 85 L.Ed. 128. "The particularity of time, place, circumstances, causes, etc., in stating the manner and means of effecting the object of the conspiracy for which appellants contend, is not essential to an indictment." Glasser v. United States, 315 U.S. 60, 66, 62 S.Ct. 457, 463, 86 L. Ed. 680.

Appellant Hartmann argues that the prosecuting of either civil or criminal actions against taxpayers is not a function of the Bureau of Internal Revenue but rather is a function of the Department of Justice. 28 U.S.C. § 507. It is argued that since the indictment charged interference with a function not attributable to the department indicated, no crime has been charged. The short answer to this contention is that no suit regarding taxes can be commenced unless the Commissioner of Internal Revenue, the head of the Bureau, authorizes it. 26 U.S.C. § 3740. Thus, if influence is successfully brought to bear upon the Commissioner through his underlings, a suit will be prevented.

Hartmann then argues that even if prosecution of suits be a function of the Bureau, there is no allegation that the Bureau intended so to prosecute or that the parties knew of such intention if it existed, so that the indictment is defective. This contention is also without merit. The indictment is sufficient if it alleges that an unlawful object was sought, whether or not such unlawful object was attained. United States v. Manton, 2 Cir., 107 F.2d 834, certiorari denied, 309 U.S. 664, 60 S.Ct. 590, 84 L.Ed. 1012.

(B) Denial of the Bill of Particulars:

Appellants moved for bills of particulars which were denied. In testing the validity of this denial, it must be borne in mind that the trial court's action on a bill of particulars is discretionary and should not be disturbed, in the absence of an abuse of that discretion. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545; Himmelfarb v. United States, 9 Cir., 175 F. 2d 924, 935.

Appellant Schino's attorney, in making an objection to the admission of evidence, stated that he did so "partly on my understanding of what the facts will be"; and further stated "the indictment in this case specifically outlines the nature of the conspiracy." As stated by the district court in its opinion below: "* * * in a trial lasting three weeks, the defendants had ample opportunity, in the event that they were taken by surprise, to ask for a continuance, so that they might prepare to meet the unexpected evidence. No such continuance, however, was requested. As a matter of fact, the defendants at no stage of the proceedings were taken by surprise, nor do they now make such a claim." Where the record thus shows that the defendants were not taken by surprise in the progress of the trial or that their substantial rights have not been prejudiced in any way by the denial of the bill of particulars, there has been no abuse of discretion. Wong Tai v. United States, supra.

(C) Refusal of Continuance of the Date for Trial.

A motion was made on January 24, 1952, to postpone the trial in this cause which was scheduled to commence on February 11, 1952. The ground of the motion was that the Subcommittee on the Administration of the Internal Revenue Laws of the Ways and Means Committee of the House of Representatives of the United States, popularly known as the King Subcommittee, was scheduled to commence hearings on February 4, 1952, on the operations of the San Francisco offices of the Internal Revenue Bureau. Because two of the defendants were officers of the Bureau and because the King Subcommittee intended to investigate, according to newspaper reports, the Mountain City Consolidated Copper Company of Nevada, a concern which allegedly was controlled by Bureau officials who sold its worthless stock at high prices to persons for whom they had done favors, appellant Schino sought the continuance, in which motion appellant Hartmann joined. This continuance was denied.

Appellants assert that the denial of the continuance was highly prejudicial error. They refer not only to the facts above asserted, but also seek to have the court take judicial notice of widespread newspaper and radio coverage relating to the local Bureau "scandals," not contained in the record. Principal reliance is placed upon the case of Delaney v. United States, 1 Cir., 199 F.2d 107. In that case, it was held prejudicial error for the court to proceed to trial where prior thereto the King Subcommittee had heard evidence relating to Delaney's affairs which ranged far beyond the scope of the indictment and was highly damaging. These hearings resulted in widespread national publicity adverse to Delaney which extended up to and beyond the time of trial. The court found in detail the mass of newspaper comment and held that by the release prior to trial of such adverse publicity by a branch of the United States (albeit not the prosecuting branch), the United States, as the party plaintiff, "must accept the consequence that the judicial department, charged with the duty of assuring the defendant a fair trial before an impartial jury, may find it necessary to postpone the trial until by lapse of time the danger of the prejudice may reasonably be thought to have been substantially removed." 199 F.2d at page 114.

In their argument here, attempting to show prejudice or the lack thereof, all parties have alleged facts concerning alleged newspaper comment outside the record. Both appellants cited the denial of the continuance of the date of trial as a ground for a new trial, but the argument on the motion was not reported and the district judge did not refer to this contention in his ruling on the motion. Appellants contend that the state of the record is such that the affidavit of Schino's counsel, joined in by Hartmann, being untraversed, must be accepted as true. The only report of a...