United States v. Andolschek

• Decision Date: 24 April 1944
• Docket Number: No. 27.,27.
• Parties: UNITED STATES v. ANDOLSCHEK et al.
• Court: U.S. Court of Appeals — Second Circuit

142 F.2d 503 (1944)

UNITED STATES v. ANDOLSCHEK et al.

No. 27.

Circuit Court of Appeals, Second Circuit.

April 24, 1944.

Thomas A. McDonald, of New York City, for Andolschek.

Harold St. L. O'Dougherty, of Brooklyn, N. Y., for Ward.

Warren J. Heeg, of Forest Hills, N. Y., for Nagle.

J. Bertram Wegman, of New York City, for Herskowitz.

Vine H. Smith and Harold M. Kennedy, U. S. Atty., both of Brooklyn, N. Y. (James G. Scileppi, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for appellee.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

These appeals are from a judgment of conviction for conspiracy to violate § 4047(e) of 26 U.S.C.A. Int.Rev.Code. The accused were inspectors of the "Alcohol Tax Unit," and were indicted along with eighteen other inspectors or investigators. Four pleaded guilty; as to three the indictment was severed; nine, including the four appellants were found guilty; six were acquitted. Five of the nine found guilty did not appeal. The four who did, and whose appeals are now before us, all complain that the evidence was not so convincing that it should have satisfied the jury of their guilt beyond a reasonable doubt. This objection we may dispose of in limine, for, as we said in United States v. Feinberg, 2 Cir., 140 F.2d 592, 594: "The standard of evidence necessary to send a case to the jury is the same in both civil and criminal cases; and * * * given evidence from which a reasonable person might conclude that the charge in an indictment was proved, the court will look no further, the jury must decide, and the accused must be content with the instruction that before finding him guilty they must exclude all reasonable doubt." We will not "distinguish between the evidence which should satisfy reasonable men, and the evidence which should satisfy reasonable men beyond a reasonable doubt." The accused at bar do not argue that the evidence was not strong enough to support a verdict in a civil case, and it certainly was; that being true, our review ends.

Upon Andolschek's appeal the only point we need consider is his immunity under § 3119 of 26 U.S.C.A. Int.Rev.Code, which he claimed by a plea in bar, filed and overruled before trial. This plea alleged that he had been subpoenaed to appear before the grand jury; that in obedience to this subpoena he did appear; and that he "testified freely with reference to the subject matter of inquiry by said Grand Jury as shown by the indictment herein." By its reply the prosecution admitted all the allegations of the plea, except that it took the position that Andolschek had "waived" his privilege by testifying without claiming it. Ward, Nagle and Herskowitz raise several points in common. First, they complain of the exclusion of certain official reports made by them to their superiors which narrated their conduct as inspectors in dealing with "permittees." The contents of these reports is not in the record, but both sides assumed at the trial, and have assumed upon this appeal, that they would bear upon how the accused had in general performed their duties, although it does not definitely appear whether they contained anything about those specific transactions as to which the prosecution's witnesses testified. The judge excluded them, not because they were irrelevant, but because he thought their disclosure forbidden under Article 80 of Regulations 12 of the Treasury Department, which we quote in the margin.^* Second, Ward, Nagle and Herskowitz complain that separate verdicts as to different defendants were received at different times: that convicting Andolschek and one other, being received at eleven P. M.; that convicting Ward, Nagle and two others and acquitting two, being received at one A. M.; and that convicting Herskowitz and two others and acquitting four, being received at two-fifteen A. M. Third, they complain of the general conduct of the trial: i. e., that the judge constantly hectored counsel, unduly intervened in the examination of witnesses, favored the prosecution while the testimony was going in and in his charge, improperly cut short cross examination, and held the jury to unreasonable hours. Herskowitz separately complains that he was not shown to have been party to the conspiracy laid in the indictment, which was to bribe inspectors and investigators in the "Permissive Section" of the "Alcohol Tax Unit," to which he was not assigned. All the accused also complain that the indictment was duplicitous; but, as that point is frivolous, we shall not discuss it.

Coming first to Andolschek, we think that when he appeared before the grand jury under subpoena and testified, he secured the immunity granted by § 3119 of 26 U.S.C.A. Int.Rev.Code. The judge assumed that a witness who, when subpoenaed, does not claim his privilege against self-crimination, surrenders it, and cannot thereafter invoke an immunity granted him by statute. That ruling was in accord with the law as we then understood it; but since the trial the Supreme Court has decided (United States v. Monia, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376) that a witness under subpoena need not claim his privilege, in order to invoke a statutory immunity, couched in substantially the same language as § 3119. The prosecution answers, first, that in the case at bar the crime with which Andolschek was charged was not that for which § 3119 gave him immunity; and second, that, even if it had been, it does not appear that his testimony related to the crime laid in the indictment. In both respects this argument is wrong. The indictment was, it is true, for a conspiracy to violate § 4047(e) of 26 U.S.C.A. Int.Rev.Code, and not any of those sections (§§ 3100-3124), for which § 3119 grants immunity. Nevertheless, the events laid in the indictment as the substance of the conspiracy, were a crime under § 3115(a), as well as under § 4047(e), for § 3115(a) provides, among other things, that "Whoever withdraws * * * tax free any alcohol subject to tax, or whoever otherwise violates any provisions of this part" (§§ 3100-3124) "* * * shall be liable * * * to * * * imprisonment." No doubt, as the prosecution says, this is directed against "permittees"; but when Andolschek allowed "permittees" to withdraw "alcohol subject to tax," which they could not have done without his connivance, he abetted them in violating § 3115(a), and by so doing made himself a principal in their crime. 18 U.S.C.A. § 550. While there may, of course, be conduct which violates § 4047(e) and does not violate § 3115(a), in this instance if the conduct charged violated § 4047(e), it necessarily violated § 3115(a) as well. Andolschek could not be forced to testify to that conduct unless he was immune not only from prosecution under § 3115(a), but under every other statute, § 4047(e) included. Moreover, the plea and reply are a complete answer to the second objection: i. e., that his testimony before the grand jury does not appear to have been connected with the crime charged. The plea alleged and the reply admitted, that he had "testified freely with reference to the subject * * * of inquiry * * * as shown by the indictment," which can only mean that he testified to the conspiracy alleged in the indictment: i. e., to an agreement to accept bribes in consideration of allowing alcohol to be withdrawn tax free. While the judge's ruling was right under those decisions which he was then bound to follow, these having now been shown to have been erroneous, the plea must be sustained and the indictment dismissed.

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