Steele v. United States, 16234.

• Citation: 243 F.2d 712
• Decision Date: 11 June 1957
• Docket Number: No. 16234.,16234.
• Parties: Joe R. STEELE, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

243 F.2d 712 (1957)

Joe R. STEELE, Appellant, v. UNITED STATES of America, Appellee.

No. 16234.

United States Court of Appeals Fifth Circuit.

April 26, 1957.

Rehearing Denied June 11, 1957.

Ralph G. Langley, Ben F. Foster, and Foster, Lewis, Langley & Goode, San Antonio, Tex., for appellant.

Frederick B. Ugast, Atty., Dept. of Justice, Washington, D. C., Charles K. Rice, Asst. Atty. Gen., John E. Banks, Asst. U. S. Atty., San Antonio, Tex., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.

HUTCHESON, Chief Judge.

Tried on an indictment charging income tax evasion, in Count One for the year 1947 and in Count Three for the year 1948, defendant was acquitted on Count Three and convicted and sentenced on Count One to two years imprisonment and a fine of $7500.

As on the previous trial, the conviction in which was reversed, Steele v. United States, 5 Cir., 222 F.2d 628, while no specific item of unreported income was shown by direct evidence, the government undertook to show understatements of income by the net worth and expenditures method.

Appealing from the verdict and judgment, appellant attacks the trial as unfair and affected with procedural error in two respects. One of these is permitting the government, on cross examination of the defendant after he had taken the stand in his own behalf and over defendant's objection, to elicit the answer "Yes" to the question:

"Mr. Steele, will you just give me a yes or no answer. The question will be asked in such a manner that it can be answered yes or no. Isn\'t it a fact that you did not take the stand in your behalf at a previous trial of this case?"

The other is permitting the government, over defendant's objection that the offense was too remote in time and that it was unrelated to the offenses for which he was on trial, income tax evasion, to interrogate the defendant on cross examination regarding a prior felony conviction for gaming.

In addition to these attacks upon the trial procedure, appellant makes the fundamental attack upon the verdict and judgment, that the evidence was insufficient to sustain it and that a verdict of acquittal should have been and should now be directed on his motion for acquittal.

Confidently urging these claims upon us, singly and together, in a well written and argued brief, appellant insists that they are all well taken and should be sustained, while the United States, resisting the claims with equal confidence and vigor, insists that no reversible error attended the trial and that the judgment must be affirmed. For the reasons hereafter stated, we agree that this is so.

Upon its first point, appellant, insisting that on principle the answer sought and elicited was without testimonial relevancy and its admission was error, urges upon us that it was highly prejudicial error both because the very nature and frame of the question cast an aspersion upon him for not having taken the stand, thereby violating his constitutional right to refrain from testifying on the former trial, and because the defendant had taken the stand in reliance upon the prior ruling of the court that the former trial should not be referred to. Arguing that the Supreme Court in the Johnson case, Johnson v. U. S., 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704, has foreshadowed its departure from the Raffel case, Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054, and that the recent grant of certiorari in the case of United States v. Grunewald, 2 Cir., 233 F.2d 556 has confirmed this departure, the appellant asks us to hold that there was error in asking the question, or, if we will not do so, to withhold our decision until the Supreme Court has acted in the Grunewald case.

We are of the clear opinion that neither of these requests should be granted. This is so both because it is clear that, under the decisions as they now stand, there was no error in admitting the evidence and because the facts and issues in the Grunewald case are different from those here, and no sufficient showing is made that a reversal of the decision in Grunewald would require a reversal here. Indeed, when the point now under discussion is considered in the light of the whole record,¹ it seems clear that, if it was error to admit the evidence, the error was the technical one of asking a question, the answer to which was immaterial and irrelevant, Cf. Raffel v. United States, 271 U.S. 494, at page 497, 46 S.Ct. 566, 568 which, under Rule 52(a) was "harmless error".²

While the government in its brief does argue that the question was relevant because, as stated in the Raffel case, if the cross examination had revealed "the real reason for the defendant's failure to contradict the government's testimony on the first trial was a lack of faith in the truth or probability of his own story, his answer would have a bearing on his credibility and on the truth of his own testimony in chief", here the question was strictly limited to an answer "Yes" or "No". No effort was made to follow the answer up, and the district judge by his instruction excluded the whole matter of the former trial from the jury's consideration.

Appellant's argument that the matter is made more serious by what he calls the ground rule laid down by the judge at the beginning of the trial, that no reference should be made to the former trial, will not, we think, stand up because as the court stated, and it was in effect admitted, at that time it was not supposed that the defendant would take the stand.

Finally, the verdict of the jury, convicting the defendant of the smaller amount of evasion charged in the 1947 tax year and acquitting him of the larger amount in the 1948 tax year, shows plainly that the defendant took no prejudice from the ruling but, on the contrary, obtained a benefit from the defendant's answer, that he was convicted and sentenced to four years, and the judgment was reversed.

On its second point, appellant stands no better. Indeed, not as well. Admitting that it is the general rule that when a defendant takes the witness stand he may be impeached as any other witness, and that there are many cases holding that the admission of evidence of convictions of a felony or of a misdemeanor involving moral turpitude is not error, he yet urges upon us that, in admitting this evidence under the facts and circumstances, the district court abused its discretion and the admission was prejudicial error.

We cannot at all agree. We think that but for the matter of remoteness in time there could be no basis for the claim and that, in admitting the evidence under the circumstances of this case, the court was well within its discretion. If, however, we should be mistaken in this, it is quite plain that no prejudicial error occurred. Defendant was allowed to and did show that he received a pardon. Besides, since the major part of the evidence in the case dealt with gambling and the profits derived therefrom, the proof...