United States v. Cantor, 53

• Decision Date: 01 December 1954
• Docket Number: Docket 23128.,No. 53,53
• Citation: 217 F.2d 536
• Parties: UNITED STATES of America, Appellee, v. Irving CANTOR, alias Irving B. Cantor, alias Irving Kantor, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

217 F.2d 536 (1954)

UNITED STATES of America, Appellee, v. Irving CANTOR, alias Irving B. Cantor, alias Irving Kantor, Defendant-Appellant.

No. 53, Docket 23128.

United States Court of Appeals Second Circuit.

Argued November 5, 1954.

Decided December 1, 1954.

Joseph Steiner, New York City, for defendant-appellant.

Theodore F. Bowes, U. S. Atty., Syracuse, N. Y. (Charles J. Miller, Asst. U. S. Atty., Syracuse, N. Y., on the brief), for appellee.

Before CHASE, MEDINA and HINCKS, Circuit Judges.

PER CURIAM.

The appellant was tried by jury on an indictment in one count charging him with having violated Section 145(b) of Title 26 U.S.C. by attempting to defeat and evade the payment of income taxes he owed the United States for the calendar year 1945. He was convicted and sentenced to imprisonment for two years and to pay a fine of $5,000. This appeal is from that judgment.

The evidence was clearly sufficient to support the verdict and we shall pass at once to the two claimed trial errors on which the appellant relies.

The first was in permitting Koppel, an Internal Revenue Agent qualified to compute income taxes, to testify that he had made a computation based upon the figures in evidence which tended to show that under the law applicable to 1945 the taxes which the appellant owed the government for that taxable year were $184,979.31 more than the amount of them when computed on the income as reported by him in the return he filed for that year. This evidence was pertinent and admissible as an aid to the jury in determining for itself whether the appellant had willfully understated his gross receipts in an attempt to evade his taxes as charged. And, since decision as to that was left to the jury on all the evidence, there was no error. Cave v. United States, 8 Cir., 159 F.2d 464, certiorari denied 331 U.S. 847, 67 S.Ct. 1732, 91 L.Ed. 1856; Myres v. United States, 8 Cir., 174 F.2d 329, certiorari denied 338 U.S. 849, 70 S.Ct. 91, 94 L.Ed. 520.

It appears that the appellant had no attorney when the case was called for trial and the court requested Mr. Goldbass, an experienced and competent attorney, to accept an assignment to represent him. The attorney came to court to do that but the appellant made known his desire to try the case himself and before the jury was drawn there was a conference in the chambers of the judge at which the court, the appellant, Mr. Goldbass, and Mr. Leamy, the prosecuting attorney were present. Nevertheless the court did not revoke the assignment of counsel and Mr. Goldbass undertook to give the appellant such assistance as the appellant permitted him to give.

While it is the duty of the court in accordance with Rule 44 Fed. Rules Cr.Proc., 18 U.S.C., to advise a defendant in a criminal case who appears in court without counsel of his right to have an attorney assigned to represent him, if he is unable to obtain counsel, the right of an accused to conduct his own defense without counsel is clear. 28 U.S.C. § 1654. As was said in Adams v. U. S. ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 242, 87 L.Ed. 268, "Essential fairness is lacking if an accused cannot put his case effectively in Court. But the Constitution does not force a lawyer upon a defendant. He may waive his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open." See also, Johnson v. Zerbst, 304 U.S. 458, 468-469, 58 S.Ct. 1019, 82 L.Ed. 1461, and Carter v. Illinois, 329...