United States v. Kafes

Decision Date13 July 1954
Docket NumberNo. 11137.,11137.
Citation214 F.2d 887
PartiesUNITED STATES v. KAFES.
CourtU.S. Court of Appeals — Third Circuit

J. Richard Kafes, Trenton, N. J. (Kahn & Schildkraut, Trenton, N. J., on the brief), for appellant.

George J. Rossi, Asst. U. S. Atty., Newark, N. J. (William F. Tompkins, U. S. Atty., Newark, N. J., on the brief), for appellee.

Before BIGGS, Chief Judge, and GOODRICH and McLAUGHLIN, Circuit Judges.

GOODRICH, Circuit Judge.

This is an appeal from a conviction for violation of sections 145(a) and 145 (b) of the Internal Revenue Code, 26 U.S.C.A. The alleged 145(a) violations cover the years 1949 and 1950, while the alleged 145(b) violations cover the calendar years 1946 to 1950, inclusive. The indictment was in seven counts, and the jury returned a verdict of guilty in all. The trial judge sentenced the defendant to imprisonment for one and one-half years on each of counts one to five and for one year on counts six and seven, respectively, but provided that the sentences on all seven counts were to run concurrently.

The defendant has raised numerous points as reasons for reversal of the judgment against him. They will all be noticed but not in the order in which they were presented.

I. Fair Trial.

The first and what seems to us the most serious argument for reversal is that the defendant did not get a fair trial. If this allegation were borne out by the record we should, of course, order a new trial as we have in numerous other cases. Obviously the way to investigate this matter is not on the basis of the quotations here and there from colloquies between judge and counsel over an eight-day trial, but to read the report of the proceedings as the trial went on. When this is done the allegations that the defendant did not get fair treatment are not supported. The defendant, who is a member of the bar, conducted most of his own defense. As would be expected under the circumstances, he endeavored to take advantage of all points which he conceived to be in his favor. There were numerous exchanges of remarks between the court and the defendant whose position on some legal points was quite different from that of the judge. Occasionally the judge reproved defendant, but he also assisted him at times in phrasing a question to bring out a point. He allowed very great freedom in cross-examination of the government's witnesses. The impression from the reading of a long record is that the trial was conducted with fairness and with as few clashes as this type of litigation would be expected to produce. See United States v. Stoehr, 3 Cir., 196 F.2d 276, 33 A.L.R.2d 836, certiorari denied 1952, 344 U.S. 826, 73 S.Ct. 28, 97 L.Ed. 643.

II. The Charge.

Complaint is made also that the judge's instruction to the jury was not a fair one. This complaint is not supported by a reading of the charge. It was full, it was fair. The court endeavored to refresh the memory of the jurors by recounting the testimony of witnesses. The defendant complains that the court emphasized matters unfavorable to him and left out those which were favorable to him. As a matter of fact, the court could have gone much further than it did in commenting on the testimony. It is to be noted that in the course of his instructions the judge told the jury:

"If, during the trial of the case, it was necessary for the court, in a legal fashion, to rap the knuckles of either one of these gentlemen counsel, that has absolutely nothing to do with the case in the slightest respect because they were advancing their own particular theory of the case as they, as lawyers, must do. So that has nothing to do with it. By and large, I guess, the best yard-stick that I could possibly give you is the oath of office that you took when you started to hear the case that `you and each of you do solemnly swear that you will well and truly try this issue, and a true verdict render, according to the evidence, so help you God.\'"

We are completely satisfied that there is no ground for reversal either in the general conduct of the trial or in the instructions to the jury.

III. Illness of a Juror.

The defendant urges that there should be a reversal because one of the jurors became ill during the jury's deliberations and therefore he had a verdict by eleven instead of twelve jurors. What happened was this. After the jury had been out for some time and had received additional instructions on one point, a request came that some Alka Seltzer be secured for one of the jurors. This was agreed to by counsel and the article was sent to the jury room. Subsequent to the trial the defendant offered statements from two of the jurors to the effect that the forewoman was affected by indigestion during the time the jury was out and that she did not take part in the deliberations for a portion of the time. On the other hand, we have a memorandum from the trial judge that he interviewed the juror in question, who declared that she was not incapacitated.

We think a jury system cannot be made to work if, after trials, verdicts may be attacked by such affidavits from jurors. Suppose it is to be shown that one juror took a nap, or that another refused to participate in the general discussion of the case at hand, or that another used bad language and thus intimidated more timid members of the jury. There is no limit to the number of attacks on a verdict which could be made if this kind of thing were permitted. Jurors are selected with care; they take an oath to perform their duty; and their verdict is not to be impeached by affidavits of this type. Parsons v. United States, 5 Cir., 1951, 188 F.2d 878; United States v. Furlong, 7 Cir., 194 F.2d 1, certiorari denied 1952, 343 U.S. 950, 72 S.Ct. 1042, 96 L.Ed. 1352. See also United States ex rel. Daverse v. Hohn, 3 Cir., 1952, 198 F.2d 934, certiorari denied 1953, 344 U.S. 913, 73 S.Ct. 336, 97 L.Ed. 704; United States ex rel. Darcy v. Handy, 3 Cir., 203 F.2d 407, certiorari denied 1953, 346 U.S. 865, 74 S.Ct. 103.

IV. Bill of Particulars.

Prior to the trial the defendant asked for a bill of particulars. This motion was heard by Chief Judge Forman, who denied it except as to one request, which was:

"4. Set forth with particularity what records it is contended the defendant avoided making that he should have made in the usual course of transactions in which he participated."

This the government answered as follows:

"4. The Government contends that, under Bureau of Internal Revenue Regulations 29.54-1, 26 CFR, Part 29.54-1 adopted pursuant to Title 26, United States Code, 54(a), the defendant was under a duty, for the purpose of enabling the Commissioner of Internal Revenue to determine the correct amount of his income subject to income tax, to keep such permanent books of account or records as would be sufficient to establish the amount of his gross income and the deductions, credits, and other matters to be shown in his return; to keep such books and records at all times available for inspection by Internal Revenue officers, and to retain them so long as the contents thereof might become material in the administration of the Internal Revenue law.
"Other than the foregoing, no particular forms of records are specified in the statutes or regulations.
"The Government contends that the defendant avoided making and keeping records of his income which would meet the foregoing requirements."

The granting of a bill of particulars is a matter for the trial court's discretion. See United States v. Caserta, 3 Cir., 1952, 199 F.2d 905, 910. We think that discretion was not abused here. It is significant, we think, that the defendant did not during the trial claim surprise and ask a continuance. Nor does he now show us how he was hurt by the lack of a bill of particulars.

V. Postponement of the Trial.

The same rule about exercise of discretion applies to the complaint that defendant was not given a postponement of his trial. He had had one continuance. He asked for another. This was denied. We do not think there was any abuse of discretion in this respect either.

VI. The Statute of Limitations.

Complaint is made of the trial court's refusal to dismiss count one because it was barred by the statute of limitations. Count one has to do with the attempt to "defeat and evade" for the year 1946. The indictment was returned February 24, 1953. The period of limitation is six years. 26 U.S.C.A. § 3748(a) (2). The government answers, however, that the alleged offense concerning the 1946 tax did not become complete until March 15, 1947. This was the day when payment became due, it says, and, therefore, the statute did not start to run with regard to the year 1946 until the March 15th following. We agree. We think that this is a complete answer.

VII. Election between the Evasion Counts and Wrongful Failure to File Counts.

The defendant endeavored to compel the prosecution to elect...

To continue reading

Request your trial
23 cases
  • United States v. Caplan, 13609.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 13, 1954
    ...457, at page 470, 86 L.Ed. 680. See Johnson v. United States, 1943, 318 U.S. 189, at page 202, 63 S.Ct. 549, 87 L.Ed. 704; United States v. Kafes, 3 Cir., 214 F.2d 887; United States v. Stoehr, supra, 100 F.Supp. at page 154. "A defendant is entitled to a fair trial but not a perfect one." ......
  • Government of Virgin Islands v. Gereau, s. 74-2019
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 3, 1975
    ...like those raised here. McMann, supra at 817-18. In our view, we cannot allow impeachment by incidents of this type. United States v. Kafes, 214 F.2d 887, 889 (3d Cir. 1954). Conversations between jurors and jury attendants, however, stand on a different footing than do the rumors just disc......
  • United States v. Jaskiewicz
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • January 17, 1968
    ...to the sound discretion of the Court. Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927); United States v. Kafes, 214 F.2d 887 (3rd Cir. 1954). In exercising its discretion, it is the function of the Court to insure that the Government has presented its allegations wi......
  • United States v. Gilboy, Crim. No. 12880.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • February 6, 1958
    ...court's discretion. Wong Tai v. United States, supra, 273 U.S. at page 82, 47 S.Ct. at page 302, 71 L.Ed. 545; United States v. Kafes, 3 Cir., 1954, 214 F.2d 887, at page 890. "`The purpose * * * is to enable the accused to avoid surprise, and to * * * prepare for trial.'" United States v. ......
  • Request a trial to view additional results
1 books & journal articles
  • Interest, Penalties, Tax Crimes & Offshore Accounts
    • United States
    • James Publishing Practical Law Books Divorce Taxation Content
    • April 30, 2022
    ...a criminal claim for failing to keep records are: (a) a duty to keep books and records; and (b) failure to do so. United States v. Kafes , 214 F.2d 887, 890 (3d Cir.), cert. denied, 348 U.S. 887 (1954). §21.3.4.3 Failing to Supply Information The essential elements of a criminal claim for f......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT