Steele v. United States, 15187.

• Decision Date: 12 July 1955
• Docket Number: No. 15187.,15187.
• Citation: 222 F.2d 628
• Parties: Joe R. STEELE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

222 F.2d 628 (1955)

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

No. 15187.

United States Court of Appeals Fifth Circuit.

May 13, 1955.

Rehearing Denied July 12, 1955.

Ben F. Foster, San Antonio, Tex., Henry H. Brooks, Austin, Tex., Ralph G. Langley, San Antonio, Tex., Charles William Tessmer, Dallas, Tex., for appellant.

Lonny F. Zwiener, Asst. U. S. Atty., Charles F. Herring, U. S. Atty., Austin, Tex., Russell B. Wine, U. S. Atty., San Antonio, Tex., for appellee.

Before HUTCHESON, Chief Judge, HOLMES, Circuit Judge, and DAWKINS, District Judge.

HUTCHESON, Chief Judge.

Found guilty on three counts of an indictment charging income tax evasion, count one dealing with his separate return for 1947, count two with the separate return of his wife for that year, and count three with the joint return of himself and his wife for 1948, defendant was sentenced on each count to four years imprisonment and to pay a fine of $5,000, the prison sentences to run concurrently.

Appealing from his conviction, defendant is here with seven specifications of error,¹ urging upon us that the judgment was so affected with prejudicial error that it may not stand.

While we cannot agree with appellant that all of his specifications present reversible errors, — indeed we think it clear that the third, fourth and fifth do not, we can and do agree with him that, for the reasons hereafter briefly stated, enough of them do to require a reversal.

Of these, in our opinion, the most egregious and prejudicial are those under the first specification of error, dealing with the two government exhibits. Government Exhibit 58 purports to be a computation of the Steeles' income on a net worth basis, and Government Exhibit 59 purports to be a computation of such income on the expenditures-available funds basis. These exhibits were the work of Travis Howard, a special agent of the Bureau of Internal Revenue. He was permitted to stay in the courtroom during the entire proceeding, heard all of the testimony of all of the Government witnesses, and was the last witness for the Government. He testified that he had not only heard all of the testimony of the Government witnesses but that he had examined all of the exhibits introduced by the Government and that Exhibits 58 and 59 were computations based upon all of the Government's case.

Since the computations contained in these exhibits purport to be a computation of all of the evidence of the government's witnesses, one of appellant's contentions against them is that there are omissions, interpretations and discrepancies between the record and these exhibits and a considerable portion of the testimony of the witnesses Jimmie Lim, Frank Garrett, Lawrence M. Curry, W. L. Bridges, Jr., and Mary Elizabeth Swanson. The exhibits were admitted in evidence over the objections² of the defendant, and after the jury had retired for deliberation, the United States Attorney requested that Exhibits 58 and 59 be sent to the jury room. Defendant's counsel objected on the ground: that the exhibits were offered and accepted in evidence in a restricted manner; that they were essentially argumentative; and counsel's thought was that to send them to the jury would be to send there the argument and the interpretation of how Agent Howard felt each witness had testified; that, therefore, the exhibits were not really evidence which had gone before the jury but special pleas of the government and its witness. The objections were overruled and defendant excepted.

Recognizing that the Supreme Court, in United States v. Johnson, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546, has held that in a prosecution for income tax evasion, an expert witness such as Howard purported to be may give testimony of his computation based upon substantially the entire evidence in the record as to the defendant's income, the defendant contends that the admission of these exhibits, their offer and reception in evidence, and their sending in to the jury room, were something entirely different from what was authorized in the Johnson case; that agent Howard did not merely attempt to summarize the testimony; that, on the contrary, he undertook to evaluate it, endeavoring to pass upon the reliability and credibility of certain witnesses and to determine what weight should be given their testimony, so that, by his testimony as to the exhibits and their sending to the jury, the Government, through its witness Howard, was enabled to invade, indeed to take over the province of, the jury.

In support of his position, the defendant cites United States v. Ward, 3 Cir., 169 F.2d 460, as a case in which the court excluded testimony similar to that of Howard in this case.

As to the second portion of the first specification, the sending of such exhibits to the jury at the request of the district attorney after the jury had retired and while it was in the jury room considering its verdict, we agree with appellant that the jury could scarcely consider this act of the court other than as investing these exhibits with an air of credibility as demonstrative evidence over and above, and independent of, the evidence which they purported to summarize and embody, with the undoubted effect of completely erasing from the minds of the jury, as to the so-called exhibits, any therapeutic effect the charge to the jury that the exhibits were not original evidence and were not binding upon the jury, was intended or calculated to have.

Wholly apart from the fact that they were not under any circumstances entitled to be taken to the jury as exhibits and that, by the very fact that they were sent to the jury after their deliberations had begun, the Government's side was given a great and unfair advantage over that of the defendant, since the defendant had no corresponding summaries of its view of the evidence, the purpose for which they were sent to the jury, as evidenced by the statement of the United States Attorney, "I don't think they can have anything to work out without the exhibits", and the manner in which they were sent there made the sending even more greatly prejudicial.

Directly in point we think is this quotation from the case of Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 131:

"There is great danger that the jury may assume that once the Government has established the figures in its net worth computations, the crime of tax evasion automatically follows. The possibility of this increases where

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