United States v. Carabbia

• Decision Date: 31 July 1967
• Docket Number: No. 17011.,17011.
• Citation: 381 F.2d 133
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald CARABBIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

381 F.2d 133 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. Ronald CARABBIA, Defendant-Appellant.

No. 17011.

United States Court of Appeals Sixth Circuit.

July 31, 1967.

Frank V. Moran, Jr., and John J. Kane, Jr., Cleveland, Ohio, for appellant.

Philip R. Michael, Atty., Dept. of Justice, Washington, D. C. (Fred M. Vinson, Jr., Asst. Atty. Gen., William S. Lynch, Brian P. Gettings, Richard A. Buckley, Attys., Dept. of Justice, Washington, D. C., on the brief), for appellee.

Before PHILLIPS and PECK, Circuit Judges, and CECIL, Senior Circuit Judge.

CECIL, Senior Circuit Judge.

Ronald Carabbia, defendant-appellant, was convicted in the United States District Court for the Northern District of Ohio, Eastern Division, on a charge of filing a false United States Treasury Department form. The indictment upon which he was convicted reads as follows:

"The Grand Jury charges:

"That on or about the 30th day of June, 1962, at Youngstown, Ohio, in the Northern District of Ohio, Eastern Division, RONALD CARABBIA, unlawfully, willfully and knowingly made and subscribed a United States Treasury Department Form 11-C Special Tax Return and Application for Registry-Wagering, for the period July 1, 1962 to June 30, 1963 which was verified by a written declaration that it was made under the penalties of perjury, which said Form 11-C Special Tax Return and Application for Registry-Wagering he did not believe to be true and correct as to every material matter in that the said Form 11-C Special Tax Return and Application for Registry-Wagering stated that the defendant, RONALD CARABBIA, had two employees and/or agents receiving wagers in his behalf, whereas, as he then and there well knew and believed he had a greater number of employees and/or agents receiving wagers in his behalf.

"In violation of Title 26, Section 7206(1), United States Code."

The defendant-appellant was tried before a jury, found guilty and sentenced to three years' imprisonment and to pay a fine of $5000. The defendant-appellant, hereinafter referred to as defendant, then appealed.

Pending this appeal counsel for the defendant filed a motion.

"* * * for an order requiring the United States Department of Justice to examine its files in connection with the investigation and prosecution of the above case to determine whether the defendant-appellant has been subject to electronic surveillance or wire tapping by either representatives of the United States Department of Justice or the Intelligence Division of the Internal Revenue Service or any other agency of the United States Government, and report to the Court, under oath, whether there has been any such invasion of privacy in violation of the Constitution of the United States."

Counsel for the government admitted

"* * * that a microphone had been placed in business premises apparently under the control of defendant and his brother. The microphone was in operation from January 22, 1962, until March 22, 1962. The conversations overheard were monitored by agents of the Federal Bureau of Investigation. Logs were kept in which appear summaries of the conversations overheard."

We remanded the case to the District Court with instructions to conduct a prompt and full hearing upon all aspects of the government's use of electronic equipment and to make findings of fact and report to this Court. (See copy of order hereto attached as Appendix A.) The district judge conducted a hearing and reported to this Court its findings of facts and conclusions of law. The district judge concluded that electronic surveillance of the defendant was not used in any way in the trial of this case. We have examined a transcript of the testimony at the hearing before the district judge and confirm his findings of facts and conclusions of law. (Copy of the findings of facts and conclusions of law is attached hereto as Appendix B.) The case having been submitted to the Court on briefs and oral arguments of counsel, we proceed to decide the appeal on its merits.

We consider first the claim that the indictment does not state an offense. The indictment of the Grand Jury is based on Section 7206(1),¹ Title 26, U.S. C. Section 4412(a) (1), (2), Title 26, U.S.C. provides for registration in connection with the imposition of a tax on wagers under Sections 4401 and 4411, Title 26, U.S.C., and reads as follows:

"(a) Each person required to pay a special tax under this subchapter shall register with the official in charge of the internal revenue district —

"(1) his name and place of residence;

"(2) if he is liable for tax under subchapter A, each place of business where the activity which makes him so liable is carried on, and the name and place of residence of each person who is engaged in receiving wagers for him or on his behalf."

Treasury regulations Sections 44.6071.1 and 44.4412-1 were promulgated by the Commissioner to implement the statute on registration. Regulation 44.6071.1(b) provides that initially when one desires to enter into the business of accepting wagers he must file a Form 11-C beginning with the first day of the calendar month in which he expects to engage in such business and ending with the following June 30th.

"Thereafter, each return required to be made on Form 11-C shall be filed on or before July 1 to cover a 1-year period (beginning July 1 and ending June 30 of the following calendar year) during which taxable activity continues."

Regulation 44.4412-1(b) (2) provides:

"Each person engaged in the business of accepting wagers on his own account shall report on Form 11-C the name and address of each place where such business will be conducted and the name, address, and number appearing on the special (occupational) stamp of each agent or employee who may receive wagers on his behalf. Thereafter, a return shall be filed on Form 11-C, marked `Supplemental,\' each time an additional employee or agent is engaged to receive wagers. Such supplemental return shall be filed not later than 10 days after the date such additional employee or agent is engaged to receive wagers and shall show the name, address, and number appearing on the special (occupational) stamp of each such agent or employee. As to a change of address, see Section 44.4905-2."

Questions 5(b) and (c) of Form 11-C require the applicant to state the number of persons engaged in receiving wagers on his behalf and the name, address and tax stamp number for each such person.

Section 6065, Title 26, U.S.C. provides that any return or declaration required to be made under any provision of the revenue laws "shall contain or be verified by a written declaration that it is made under the penalties of perjury." Section 7206(1) under which this offense is prosecuted makes it an offense to make a false declaration.

The basis of the defendant's claim that the indictment does not state an offense is that he is charged with falsifying as to future events. This is a misinterpretation of the statute, the regulations and the allegations of the indictment. The indictment charges the defendant with a violation in the language of the statute alleged to be violated. See Hoover v. United States, 358 F.2d 87 (C.A. 5), cert. den. 385 U.S. 822, 87 S.Ct. 50, 17 L.Ed.2d 6; United States v. Chunn, 347 F.2d 717 (C.A. 4). Form 11-C, which is the subject of the offense charged, is a renewal application to enable the defendant to continue in business for the ensuing governmental fiscal year. The indictment charges that the defendant committed an offense on June 30, 1962, in that he declared in Form 11-C that at that time he had only two employees or agents receiving wagers in his behalf, when he well knew and believed that at that time he had more than two employees receiving wagers on his behalf. Future employees would be reported by filing a supplemental Form 11-C. The government's case would fail unless it proved beyond a reasonable doubt that the defendant had more than two employees receiving wagers on his behalf on June 30, 1962.

We find no merit to the defendant's argument that the meaning of Section 7206 (1) and the Regulations is vague. We conclude that the indictment states an offense.

Counsel for the defendant claim that the trial judge erred in not inquiring of the jurors on voir dire examination, upon request, if they had any prejudice by reason of the defendant being engaged in the gambling business.

The conduct of the voir dire examination is discretionary with the trial judge. In Aldridge v. United States, 283 U.S. 308, at p. 310, 51 S.Ct. 470, at p. 471, 75 L.Ed. 1054, the Court said:

"In accordance with the existing practice, the questions to the prospective jurors were put by the court, and the court had a broad discretion as to the questions to be asked. The exercise of this discretion, and the restriction upon inquiries at the request of counsel, were subject to the essential demands of fairness."

See also United States v. Dennis, 339 U.S. 162, 168, 70 S.Ct. 519, 94 L.Ed. 734, rehearing den. 339 U.S. 950, 70 S.Ct. 799, 94 L.Ed. 1364; Johnson v. United States, 270 F.2d 721 (C.A. 9), cert. den. 362 U.S. 937, 80 S.Ct. 759, 4 L.Ed.2d 751; Stone v. United States, 324 F.2d 804 (C.A. 5), cert. den. 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659; United States v. Barra, 149 F.2d 489 (C.A. 2).

The question before us is whether the trial judge abused his discretion. The judge began his voir dire examination by reading the indictment to the jury. This was sufficient to inform the jurors that the defendant was engaged in the business of receiving wagers. Thereafter he conducted an extensive examination in which he cautioned the jurors against being prejudiced or predisposed to judgment. After explaining fully what was meant by prejudice, the jurors responded to a question that they had no prejudice. The jurors were asked whether they "or any members of their immediate family ever applied for or held a Federal wagering tax stamp." Upon reading the transcript of the...