United States v. Accardo

• Decision Date: 19 February 1962
• Docket Number: No. 13257.,13257.
• Citation: 298 F.2d 133
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Joseph ACCARDO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

298 F.2d 133 (1962)

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Joseph ACCARDO, Defendant-Appellant.

No. 13257.

United States Court of Appeals Seventh Circuit.

January 5, 1962.

Rehearing Denied February 19, 1962.

Maurice J. Walsh, Stanford Clinton, Chicago, Ill., for appellant.

T. George Gilinsky, Criminal Division, Department of Justice, Washington, D. C., James P. O'Brien, U. S. Atty., Chicago, Ill., Herbert J. Miller, Jr., Asst. Atty. Gen., Robert S. Erdahl, Beatrice Rosenberg, Attorneys, Department of Justice, Washington, D. C., for appellee.

Before DUFFY, SCHNACKENBERG, and KILEY, Circuit Judges.

Rehearing Denied En Banc February 19, 1962.

KILEY, Circuit Judge.

This is an appeal by defendant from a judgment, upon a verdict, convicting him, after a trial of nearly nine weeks, on three counts charging violations of § 7206(1)¹ of the Internal Revenue Code of 1954. He was sentenced to a total of six years in prison and fined $15,000.00.

Defendant, before 1956, reported income from gambling and undisclosed sources. In February, 1954, the District Director of Internal Revenue wrote him ordering him to maintain detailed records "from that time forward." On October 5, 1955, the Director wrote asking him to submit records to support income and deductions reported in his 1954 return. His attorney told the Director there were no records.

In 1956 defendant reported income of $42,862.25 from Premium Beer Sales, Inc. In an "addenda" he scheduled "expenses incurred in promoting beer sales and automobile expenses" to support a deduction of $515.51. In 1957 he reported income from Premium of $67,540.85 and claimed deductions of $1,726.76 for automobile expense as "agent" for Premium. In 1958 he reported income from Premium of $68,871.70 and claimed automobile expense deduction of $1,753.66 as "agent" for Premium. April 25, 1960, the January Special Grand Jury indicted him.

The indictment is in three counts,² each charging substantially the same violations in 1956, 1957, and 1958. In essence, it is charged that defendant stated in his income tax returns that he was employed by Premium and falsely stated that 80% of his automobile expenses were incurred by him in promoting beer sales in 1956, and 90% of that expense as "agent" for Premium in 1957 and 1958.

Defendant's motion to dismiss the indictment was denied. We see no merit in his claim that this was error. The several counts are substantially in the words of § 7206(1) and are sufficient, United States v. Foster, 7 Cir., 253 F.2d 457, 459 (1958), to tell defendant what the charges against him were, and are not duplicitous. The charges of falsehood are sufficiently broad to include charges that he did not use the automobile at all in "promoting beer sales" or as "agent" for Premium. Finally, the Special Assistants and the Special Grand Jury do not, in themselves, indicate a "crash" enforcement program criticized in United States v. Bufalino, 2 Cir., 285 F.2d 408, 419 (1960) (concurring opinion).

The next question is whether there was substantial evidence to support the verdict. The Government's theory of proof was that though defendant stated he was employed as a promoter of beer sales or as agent for premium, he did nothing to warrant the statements and that consequently he could not have used his automobile in the way he swore that he had in the return.

The Government introduced the following evidence: Although defendant had an employment contract with Premium, the latter was reimbursed by Fox Head Brewery for the contract payments to defendant. Defendant was unknown and unseen at Premium's office at any time by Premium's office supervisor of salesmen; by Fox Head salesman whose desk was at Premium and whose "contacts" were with the latter's salesmen; by Premium's bookkeeper who saw the salesmen each day; by six Premium salesmen who attended salesmen's meetings; and by two salesmen-drivers and eight Premium sub-distributors. No president of Fox Head after November 1956 nor those in charge of its production, sales or fiscal affairs had ever seen defendant. Its Illinois division manager had never seen him. There were no reports in Premium's records of sales promotion or sales by defendant. He was paid more than either the owner or president of Premium.

Viewed in the aspect most favorable to the Government, this evidence and reasonable inferences drawable from it give substantial support to the verdict. Neubauer v. United States, 8 Cir., 250 F.2d 838, 839 (1958). Testimony that defendant rendered no service, "did nothing" and had never "done anything" was inadmissible as invading the province of the jury.

Defendant contends the court erred in denying various motions, for mistrial and to poll the jury, based upon prejudicial newspaper publicity.

The selection of the jury began September 12, 1960. The court directed and ordered the jurors, at the end of the first day of voir dire, not to read the daily press or listen to television or radio accounts in connection with the case. That afternoon and evening, and the next morning, newspapers reported that defendant had been arrested fourteen times with "no major conviction"; that he had been found guilty of disorderly conduct; that in 1930 he was indicted for carrying concealed weapons; that in 1948 he was charged with conspiracy to defraud the Government as a result of a trip under an assumed name to visit "syndicate hoodlums" at Leavenworth. "He beat both charges * * *."

The morning of September 14 there was a newspaper headline: "THERE'S A CAPONE ECHO AT ACCARDO TRIAL." The article compared defendant's trial with that of "Al Capone" twenty-nine years before, and said "In the villain's part this time was Chicago's jet-age Capone — stony-faced * * * Accardo, the master of muscling legitimate business." The article said the evidence that convicted Capone was "practically negligible."

On September 27 Joseph Bronge, Jr., a Government witness, testified that Accardo worked for his father as a distributor of Fox Head beer, that he knew Accardo, had visited his home; that his father was now dead; and that he had heard defendant was engaged in the sale of beer.

The next morning there were front page headlines: "MURDER VICTIM'S SON TAKES STAND AGAINST ACCARDO" and "GANGSTER UPSET BY TESTIMONY OF BRONGE." On page 14 appeared the headline: "ACCARDO JURY HEARS SON OF GANG VICTIM." The stories related that the father of the witness appeared before the grand jury which indicted Accardo, had been indicted for perjury, and was murdered "in a West Side beer war last year"; that "the shooting was blamed on fear by hoodlums that he would tell how they forced him and other beer distributors to put them on the payroll."

The jury separated each night and was exposed to the prejudicial publicity. In view of that fact and of defendant's publicity value, it was essential that the judge frequently, prior to separation, call the attention of the jurors specifically to the possibility of newspaper accounts carrying statements of facts about the case. Coppedge v. United States, D.C.Cir., 272 F.2d 504, 507 (1959).

The judge's general admonitions at the beginning of the jury selection, his assumption of their effectiveness, and his instructions, were inadequate protection. His general inquiry during the voir dire examination³ did not supply the deficiency. There is no certainty that all jurors would volunteer information about violating the admonitions or admit that they were influenced by the publicity. Coppedge v. United States, D.C.Cir., 272 F. 2d 504, 508 (1959). He should have, by the careful examination of each juror, out of the presence of the others, determined the effect of the articles on those who had read them and whether they had discussed the articles with others. Coppedge v. United States, D.C. Cir., 272 F. 2d 504, 508 (1959). These individual interviews would have tended to overcome reluctance to speak out.

The published material would have been inadmissible in evidence because it would prejudice defendant. Its effect would be at least as great if it reached the jury through news accounts. Marshall v. United States, 360 U.S. 310, 312-313, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959).

Each case must rest on its "special facts." Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); United States v. Shaffer, 7 Cir., 291 F.2d 689 (1961), cert. denied, 82 S.Ct. 192 (Nov. 14, 1961). In the instant case there was no careful examination of the individual jurors nor offer to defendant of unlimited peremptory challenges, as there were in the Shaffer case. And the instant case cannot be distinguished from Marshall v. United States, as Shaffer was distinguished from Marshall by this court, on the ground that in Marshall the prejudicial articles were read during the trial with no opportunity to secure other jurors. The Bronge incident was during the trial, as in Marshall.

The motions for mistrial during voir dire and later, and the motion to poll the jury after the Bronge incident, were addressed to the court's discretion. Marshall v. United States, 360 U.S. 310, 79 S. Ct. 1171, 3 L.Ed.2d 1250 (1959); United States v. Shaffer, 7 Cir., 291 F.2d 689 (1961), cert. denied, 82 S.Ct. 192 (Nov. 14, 1961). Under the "special facts" of this case, however, we conclude that the rulings failed to provide adequate precautionary measures in aid of defendant's right to a fair trial.

There was prejudicial error also in the trial court's admission, over objection, of evidence of defendant's income tax returns for the years 1940 through 1955. The court admitted the evidence to show "motive, intent or willful conduct."

No case has been cited, or found, which would support the instant ruling. Government relies upon United States v. Iacullo, 7 Cir., 226 F.2d 788 (1955), cert. denied 350 U.S. 966, 76 S.Ct. 435, 100 L. Ed. 839 (1956). That case is not applicable because there evidence of a prior similar violation...