United States v. Brodson

• Decision Date: 30 November 1955
• Docket Number: Crim. U. No. 187.
• Citation: 136 F. Supp. 158
• Parties: UNITED STATES of America, Plaintiff, v. Sidney A. BRODSON, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

136 F. Supp. 158

UNITED STATES of America, Plaintiff, v. Sidney A. BRODSON, Defendant.

Crim. U. No. 187.

United States District Court E. D. Wisconsin.

November 30, 1955.

Edward G. Minor, U. S. Atty., by Howard W. Hilgendorf, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff.

John L. Palmer, Whyte, Hirschboeck & Minahan, David E. Beckwith, Jr., Fairchild, Foley & Sammond, Milwaukee, Wis., for defendant.

GRUBB, District Judge.

This matter is before the Court on motions to dismiss the indictment on various grounds. The indictment contains three counts for alleged violations of Section 145(b) of the Internal Revenue Code, Title 26, United States Code of Laws, by filing false and fraudulent income tax returns for the calendar years 1948 (Count No. 1), 1949 (Count No. 2) and 1950 (Count No. 3). Conviction on all of these counts would subject the defendant to possible sentences totaling fifteen years imprisonment and fines totaling $30,000. The indictment was returned April 1, 1953.

There are three principal grounds urged for the dismissal of the indictment. The first is based upon a claim that the defendant cannot have a fair trial because of publicity in connection with Federal tax liens and other publicity. The second is that the defendant has been denied his constitutional right of a speedy trial. The third ground is that the defendant will be deprived of due process of law and a fair trial because all of his assets are impounded by the Federal Government and subject to tax liens. This is a net worth income tax case. Defendant claims he cannot properly defend himself without the services of an accountant, and that by depriving the defendant of all his assets he is deprived of the services of an accountant and unable to properly prepare for trial. Present counsel for the defendant are court appointed upon a claim and showing that defendant had no assets with which to procure counsel.

The Court is not impressed with the first claim. While there has been considerable publicity concerning the defendant and defendant's tax problems in the Milwaukee press, most of the publicity complained about and attached to the affidavit and motion of Mr. Lipton, defendant's prior counsel, was had at some considerable time in the past, articles being carried in 1951 and 1952. Most of any "prejudicial" effect has no doubt been effaced with the passage of time. Much of the publicity resulted from television appearances of the defendant before the Kefauver Committee some years back. There was nothing connected with such publicity that the Attorney General or District Attorney could have done anything about. Defendant was not indicted for gambling. The Court is confident that any jury here would, under proper instruction, consider only the question of guilt or innocence of the offense charged. No motion was made by the defendant for a change of venue under Rule 21(a) of the Federal Rules of Criminal Procedure, 18 U.S.C. or under the Criminal Code. Defendant and his previous counsel, whose affidavit shows that he is very experienced in this type of litigation, did not see fit to make a motion for change of venue under the rule. In the event of trial, defendant's rights would be carefully guarded in view of the past publicity.

With reference to the second ground, failure to afford a speedy trial, the record shows that defendant's motions for a speedy trial were all in connection with the civil case before the Tax Court. Those motions were resisted by the Government. There is absolutely nothing in the record in this case to show that the defendant at any time prior to the fall of 1955 either made any attempt to get a speedy trial of this case or made any objection to its being delayed. As late as March 29, 1954, the record shows the following in a transcript of proceedings before the Hon. Robert E. Tehan, Chief Judge of this Court:

Mr. Hilgendorf (Assistant U. S. Attorney): "* * * I take it from counsel's statement that there will be no serious objection in this case up to this point that the defendant was not afforded a speedy trial to which he is entitled."

Mr. Lipton (Defendant's then counsel): "I would have to agree with that statement. I certainly wouldn't on the basis of the record to the present date make any contention that the defendant wasn't afforded a speedy trial, and I have never made any requests of the United States Attorney or the District Court for an early trial, and I don't see—of course I couldn't preclude any further counsel, if any should appear in the case, from making any sort of objection, but I personally would not recommend or countenance any such motion."

The defendant wanted the civil case tried first probably to get a preview of the Government's case and the Government's witnesses. The Government did not want to try the civil case until after the criminal case had been tried, probably because it did not want to give the defendant the advantage of such preview. Defendant, by failing to take any action to try and get the criminal case on for trial, has, in the opinion of the Court, waived any such objection. To quote from two decisions on that subject from the Court of Appeals for the Seventh Circuit:

Worthington v. United States, 7 Cir., 1 F.2d 154:

"The principal assignment of error is the ruling of the court in refusing to dismiss the defendants upon their plea, and sustaining plaintiff's demurrer thereto. The record fails to show a single effort made by defendant, or any other defendant, to avail himself of a speedy trial. No facts were pleaded bringing the case within the rule requiring a speedy trial; i. e., that the defendant was incarcerated, or, being enlarged, had appeared in open court demanding trial, or otherwise. Defendant's sole reliance was upon the bare fact that the case had not been prosecuted. If the defendant desired a speedy trial, it was his duty to ask for it, and we must assume that it would have been granted, had he made any effort to procure it. His long and uninterrupted acquiescence in the delay bars his right to complain. Phillips v. United States, 8 Cir., 201 F. 259 262, 120 C.C.A. 149."

O'Brien v. United States, 7 Cir., 25 F.2d 90, 92:

"It has been held that, where no demand for trial appears, one may not complain of delay in the trial, but will be held to have acquiesced in it."

The motion to dismiss because the defendant "was not afforded a speedy trial" is denied.

The basis of the third ground, namely, that the defendant cannot get a fair trial, is that the Government, through jeopardy assessments and tax liens, has deprived the defendant of all assets since October, 1951. See 1939 Code, 26 U.S.C. §§ 273, 3670-3672. These jeopardy assessments and liens, under the statutes, attach to all property and assets which the defendant might otherwise have available to finance his defense.

This is a net worth tax case covering a three-year period. The District Attorney has at his command in preparation the records of the Tax Department and the service and advice of its expert employees and accountants. There is no dispute in the record but what the services of skilled accountants are necessary in order to adequately prepare the defense in this case. See affidavit of John L. Palmer of October 21, 1955. The arguments of defendant's present counsel, both written and oral, setting forth the fact that extensive accounting services are indispensable to the proper preparation of the defense of the case were at no time questioned by the Government, either by affidavits, by briefs, or that the Court can recall in any oral argument.

At the time of the oral argument the Court indicated that if defendant were, within one week, to file an extremely broad affidavit showing that he had no assets of any kind and none were procurable by him (an affidavit broad enough so that if it turned out to be false it could form the basis of a perjury conviction), and if the Government did not then see fit to put a reasonable amount of the seized assets in escrow with the Clerk of Court subject to order of the Court for use in reasonably necessary preparation for trial, this Court would be inclined to the view that defendant was being deprived of his constitutional rights to a fair trial and due process of law. The Court pointed out at that time that it had no power to direct defendant to file such an affidavit or to order the Government to make a reasonable amount of the defendant's former assets available for his defense, but expressed the tentative view that the failure of the Government under such circumstances to place in such escrow a reasonable amount would deprive defendant of his constitutional rights in this type of case. Defendant filed affidavits. The Government did not see fit to place any such funds in escrow with the Clerk as suggested.

Mr. Hilgendorf, Assistant United States Attorney, filed an affidavit on November 10, 1955, in which he sets forth that the receipts admitted in the defendant's affidavit exceeded the disbursements accounted for by some $51,000. The overwhelming amount of the receipts set forth were received prior to the indictment. On page 3 of that affidavit Mr. Hilgendorf lists receipts between December 31, 1950, and October 29, 1951, some two and a half years prior to the indictment. He concludes that over and above the assets seized under the jeopardy assessments the defendant had available to him over $128,000. None of these assets are shown to have been available to the defendant since the indictment. The amount of assets which the defendant may have had in 1950 and 1951 are not material to the question as to whether he can get a fair trial now. The indictment was not returned until April, 1953.

The affidavit of Mr. Reisimer, District Director of Internal Revenue, indicates that the Government has collected and applied to the tax accounts the sum in excess of $78,000 and lists further property which his office still has in its possession which were assets...