United States v. Commerford

• Decision Date: 03 April 1933
• Docket Number: No. 376.,376.
• Citation: 64 F.2d 28
• Parties: UNITED STATES v. COMMERFORD.
• Court: U.S. Court of Appeals — Second Circuit

64 F.2d 28 (1933)

UNITED STATES v. COMMERFORD.

No. 376.

Circuit Court of Appeals, Second Circuit.

April 3, 1933.

Frank Aranow, of New York City (Charles H. Tuttle, Harris Berlack, and Stanley H. Fuld, all of New York City, of counsel), for appellant.

George Z. Medalie, U. S. Atty., of New York City (Thomas E. Dewey, Murray I. Gurfein, and David Paley, Asst. U. S. Attys., all of New York City, of counsel), for the United States.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

MANTON, Circuit Judge.

The indictment upon which the appellant was convicted contained two counts. The first charged willfully attempting to defeat and evade income tax for the calendar year 1929, and the second charged willful failure to file an income tax return for the same year.

The appellee's evidence was sufficient for the jury to find that the appellant filed no income tax return for the calendar year 1929. The appellant was the business agent for a local union of the International Union of Hoisting and Operating Engineers, and continued as such from 1920 to 1928, when he became the supervisor of the local union. It was then merged with another local, but he remained supervisor of both. His duty was to supervise the affairs of the local. He appointed officers, suspended elections, and had supreme control over all officers, delegates, and about 2,800 members of the union. He was an officer of the International Union, the vice-president of the Building Trades Council of New York, a member of its executive committee, and vice-president of the State Federation of Labor. He had charge of negotiations relating to contracts dealing with wages and working conditions. His compensation for the year 1929 was $7,800 as supervisor of the local union, $3,900 from the United Hoisting Company for services in connection with labor troubles, $377 from the Building Trades Council for services as a member of the executive committee, $1,500 for seven months' service to the Carlson Company in connection with labor troubles, $1,000 from Pugliese for services in connection with the admission of two local unions into membership of the Building Trades Council, and $2,500 from a holding corporation for services in connection with a strike.

By his testimony, the appellant attempted to deny the receipt of these sums as income, and advanced the claim that some were gifts to him for which he gave no return in service. Those who paid gave testimony that they paid these sums as compensation for services and not as gifts. This issue was decided adversely to the appellant by the jury.

The appellant knew or should have known of the requirement to file his return and pay a tax, but he argues that the fact that no assessment was made against him precludes prosecution or at least tended to establish that he did not willfully fail to file a return or pay a tax. Questions of intent of this character are for the jury, and willful intent in failing to file a return may be supported by the circumstances surrounding this case. Hyney v. United States, 44 F.(2d) 134 (C. C. A. 6); Wuichet v. United States, 8 F.(2d) 561 (C. C. A. 6); Baer v. United States, 54 App. D. C. 24, 293 F. 843, 845. Direct proof of willfulness is not necessary to establish guilt in income tax prosecutions. United States v. Miro, 60 F.(2d) 58 (C. C. A. 2); Capone v. United States, 51 F.(2d) 609, 76 A. L. R. 1534 (C. C. A. 7); O'Brien v. United States, 51 F.(2d) 193 (C. C. A. 7). This was not a deficiency tax, and there was no requirement to establish that an assessment and demand were previously made. Guzik v. United States, 54 F.(2d) 618 (C. C. A. 7); Capone v. United States, 51 F.(2d) 609, 76 A. L. R. 1534 (C. C. A. 7). It is the duty of the taxpayer under the command of the statute to file his return and pay his tax without such promptings or notice.

In establishing moneys received as income by the appellant, the appellee proved that the appellant obtained money from contractors under the promise of settling strikes. It was proper for the appellee to show that he received bribes from unions seeking admission to the association of which he was vice-president. Without his power he could not have been of service to applicants for admission to the union or to contractors who wished their labor troubles settled. It was therefore necessary to show his position and power as descriptive of the manner in which he conducted his business and received his income. The claim of error urging that this was prejudicial is therefore without merit.

The deputy collector of internal revenue, while a witness, was interrogated by appellant's counsel respecting the ordinary course of departmental practice as to notice of assessment of income tax. On cross-examination he was asked hypothetical questions respecting it, but such questions called for answers merely descriptive of the departmental practice, a subject inquired into by the appellant. Indeed, on cross-examination the appellant admitted that he had been examined by a special agent prior to his indictment; that he had denied the receipt of the income referred to.

Two witnesses, labor delegates who were desirous of having their union obtain membership in the Building Trades Council, testified about their application and about communications with delegate Pugliese, who had previously obtained admission to appellant's local. There was testimony that Pugliese was told by the appellant that, if he paid a bribe, it could be done. This was relayed to the delegates, who each paid Pugliese the required sum for the purpose of getting into the Building Trades Council. Pugliese testified that he gave the moneys personally to the appellant and the applicants were admitted. In this way the testimony of the two delegates was connected and admissible against the appellant as evidence showing the income received by him.

After the jury retired and had been in deliberation seven hours, the trial judge recalled them and stated:

"I have called you in, gentlemen, to tell you that I think you ought to make every possible effort to come to an agreement at least upon some of the charges, one or more, and to make all the progress you can towards that end. In the event that you can not, it will be necessary that you be taken up to the hotel for the evening, and resume your deliberations in the morning.

"I do not want to in any way exercise the slightest bit of compulsion on you, I do not do that, but I do urge you to try to come to an agreement among yourselves.

"As I said, it may be possible to agree upon some parts of the case, although not on all; that is done and it is not infrequent.

"With that further statement to you, I will excuse you and you may resume your deliberations."

Complaint is made of this charge as coercive and bringing about the verdict of guilt. We think this instruction to the jury was eminently fair and considerate. It was the duty of the judge, as has been commonly done, to send for the jury and make inquiries of this character. All that was said and done was intended to be of assistance to the jury and to provide for their rest during the night if they failed to agree and for their further deliberation in the morning. No suggestion was made as to the verdict that the jury should return. The court's advice as to the advisability of the attempt to reach an agreement was proper. Indeed, it was the duty of the judge. Allen v. United States, 164 U. S. 492, 17 S. Ct. 154, 41 L. Ed. 528; United States v. Rosso, 58 F.(2d) 197 (C. C. A. 2); Vachuda v. United States, 21 F.(2d) 409 (C. C. A. 2). In Burton v. United States, 196 U. S. 283, 25 S. Ct. 243, 49 L. Ed. 482, Berger v. United States, 62 F.(2d) 438 (C. C. A. 10), Stewart v. United States, 300 F. 769 (C. C. A. S) and Peterson v. United States, 213 F. 920 (C. C. A. 9), the reversals of convictions were based upon improper inquiries addressed to the foreman concerning the division of the jurors. They are not relevant here. In Wissel v. United States, 22 F.(2d) 468 (C. C. A. 2), the language employed in expressing the judge's direction to the jury was tantamount to advice of conviction.

Error is assigned because of exceptions taken to the cross-examination of character witnesses offered by the appellant. The appellant called two witnesses as to his good repute and character. On cross-examination the appellant charges they were examined by hypothetical questions bearing insinuations, improper and harmful. They were asked about a decision and a judgment entered thereon in the state Supreme Court. They stated they knew of such a decision. One witness was asked: "Did you ever hear that it had been said judicially in connection with Commerford's activities in his own union that he has expended and directed the expenditure of large sums of money and has rendered no account to the members of the local union?" To which the witness replied he had not.

The following questions were asked:

"Q. Did you ever hear it stated judicially of the defendant that $26,140 was paid out for legal expenses, of which $8,200 in checks were drawn to the order of counsel for the defendant herein and the balance regarding which no explanation was made was drawn by checks cashed by officers, agents or employees at the bank and delivered to the supervisor, $21,100 in checks similarly cashed and delivered were marked `good of local' but otherwise unexplained?

"Q. And I ask...