United States v. Kravitz, 13180-13183.

• Decision Date: 12 August 1960
• Docket Number: No. 13180-13183.,13180-13183.
• Citation: 281 F.2d 581
• Parties: UNITED STATES of America v. Samuel KRAVITZ, Appellant in Nos. 13180, 13182 and 13183, and Herman Kravitz, Appellant in Nos. 13181, 13182 and 13183.
• Court: U.S. Court of Appeals — Third Circuit

281 F.2d 581 (1960)

UNITED STATES of America v. Samuel KRAVITZ, Appellant in Nos. 13180, 13182 and 13183, and Herman Kravitz, Appellant in Nos. 13181, 13182 and 13183.

Nos. 13180-13183.

United States Court of Appeals Third Circuit.

Argued July 11, 1960.

Decided August 12, 1960.

September 30, 1960.

Jacob Kossman, Philadelphia, Pa., for appellants.

Frederic C. Ritger, Jr., Asst. U. S. Atty., Newark, N. J. (Chester A. Weidenburner, U. S. Atty., Newark, N. J., on on the brief), for appellee.

Before GOODRICH, KALODNER and FORMAN, Circuit Judges.

Rehearings Denied in Nos. 13181, 13182 and 13183.

GOODRICH, Circuit Judge.

This is an appeal from convictions of two defendants, father and son, for income tax evasion and conspiracy. There are four indictments and each defendant was found guilty on the three applicable to him.¹ Defendants appeal, not on the basis of the insufficiency of the evidence as to Herman Kravitz (the son) but for alleged errors in the conduct of the trial and in the jury charge. With regard to Samuel Kravitz (the father), the point is made that the evidence is insufficient to convict him. This latter point will be discussed separately.

Just enough facts will be stated to indicate the nature of the case before the trial court. The two Kravitzes were the owners of all the shares in a corporation called Kravin Park Clothes. Fifty-five percent of the stock was owned by Samuel and forty-five percent by Herman Kravitz. This company had contracts with the United States for the furnishing of uniforms at the time of the Korean War. It was charged and proved by the evidence that earnings were drained off from Kravin Park to other corporations. Some of these corporations were controlled by the conspirators and used for the purpose; in other instances, bank accounts were set up in the names of existing corporations but in banks not used by those corporations and without the officers of those corporations knowing what was being done. In this way, obviously, the amount of profit on which Kravin Park was compelled to pay income tax was greatly reduced since, on its books and tax return, these payments were recorded as having gone out to the corporations named for subcontractor work supposed to have been done by them. So far as the evidence showed, the actual operations of this plan were carried on by Joseph Abrams² and Herman Kravitz. Abrams was a key witness for the prosecution and most of the summation by defense counsel consisted of an attempt to discredit his testimony. The money thus siphoned from the treasury of Kravin Park was in turn drawn out of the banks in which it was deposited. It is not necessary to go into detail concerning just how this was done nor in what the withdrawn funds were invested. Nor is it necessary to follow through the difference of opinion which developed between Abrams and Herman Kravitz as to who got what.³

On this appeal defendants' counsel presents a great many alleged errors as a basis for reversal. It seems to us that his greatest emphasis is directed to the charge of the trial judge and to the prosecuting attorney's summation. We shall deal with these first, then take up the alleged errors occurring in the course of the trial and finally deal separately with the case against Samuel Kravitz, the father.

The Charge.

Appellants' counsel makes a scattering shotgun attack at the charge of the trial judge saying that it is an argument for the prosecution rather than an objective description of the case to the jury and a presentation of issues for that body to decide. This general attack is not well founded. The trial judge gave a thorough and, quite evidently, carefully prepared charge to the jury. He told it what the offenses were with which the defendants were charged. He read Section 145(b) of the Internal Revenue Code of 1939 and Section 371 of 18 U.S.C.A. He explained at length the difficult-to-explain crime of conspiracy and he recounted the witnesses one by one for the jury's consideration. It is not to be expected that counsel for the defense would see the charge in the same light as that of a reviewing court. There is no doubt that, on the whole, the trial judge made a fair presentation to the jury.

Now we turn to particular points complained of by counsel with regard to the charge. The judge mentioned to the jury the testimony of Abrams. The judge said he did not believe all of Abrams' testimony but thought that on the whole it was acceptable. He pointed out one instance where it was shown that Abrams had lied in his testimony. He also commented upon the evidence produced from a transcript of Grand Jury hearings in New York where Herman Kravitz had testified upon the same subject matter. The judge said he did not believe all of Herman Kravitz's testimony either and he pointed out why.⁴

None of this goes beyond the power of a federal judge to comment upon testimony when he sees fit. There was nothing venomous about the judge's characterization of the testimony of these two men. That a federal judge in a criminal case may comment on the evidence to the jury and give his personal opinion thereon is too well established to require elaborate citation of authority.⁵ The point is that he must not prejudice the case and he must leave ultimate determination of the facts to the jury.⁶ In his charge the trial judge said at least five times that the determination of the facts was for the jury. He not only said it in passing but he emphasized it so no juror who was listening could have any doubt about what his responsibility was.⁷ Defendants' point is not well taken.

Another complaint made by the appellants is that the judge misled the jury in quoting an excerpt from the Supreme Court opinion in Spies v. United States, 1943, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418.

This objection is so thin as to be almost frivolous. The trial judge was explaining to the jury the meaning of the term "willful attempt to evade" as used in the statute. Then he quoted this excerpt from Spies.

"By way of illustration, and not by way of limitation, we would think affirmative willful attempt may be inferred from conduct such as keeping a double set of books, making false entries or alterations, or false invoices or documents, destruction of books or records, concealment of assets or covering up sources of income, handling of one\'s affairs to avoid making the records usual in transactions of the kind, and any conduct, the likely effect of which would be to mislead or to conceal. If the tax-evasion motive plays any part in such conduct the offense may be made out even though the conduct may also serve other purposes such as concealment of other crime." 317 U.S. at page 499, 63 S.Ct. at page 368.

Nobody had claimed in this case that anybody had kept a double set of books. But the reading of the line of illustrations used by the Supreme Court to show the application of the terms in the statute was proper help to give the jury and the very language used in the Supreme Court opinion showed that the various points stated were "by way of illustration."

The defense also complains that the judge quoted testimony of a witness named Laura Barko but that he did not read Mrs. Barko's cross-examination. The testimony had to do with the establishment of an account in one of the banks which was a recipient of the siphoning process. The particular question involved signature cards. Cross-examination showed that the witness had made a statement several years earlier to a federal investigating officer in which she had not mentioned Herman Kravitz. But in the court room she did mention Herman Kravitz. The jury had all this before it. The witness did not recant her original testimony upon cross-examination. The whole episode was but a drop in the bucket which by the time the drop was put in was nearly overflowing.

The Summation.

The defense complains of the language used in the next to the last paragraph of the government's summation. The prosecutor said: "This crime that we are dealing with here is, in a real sense, treason. These defendants, by their action, have torn away the very foundation of our Government. Unless the Government maintains a strong, even economic keel, it will be destroyed." It should be noted that prior to this burst of oratory the government's summation had been strictly factual. The prosecutor had described the way in which the conspiracy was alleged to have operated and recalled to the jury various bits of evidence which, according to his argument, made the case against the defendants a convincing whole. Then for three sentences the departure from the record took place. We think little of the words used by the prosecutor. We think they were unnecessary in an otherwise logical and convincing summation. But we quite realize as we have said before that some latitude must be given to lawyers' language in a hard fought case.⁸ To say that this remark would have a prejudicial effect on a jury which had listened throughout a long trial to the unfolding of the testimony is to attribute a stupidity and absence of common sense which is incredible in a federal jury.⁹ Even counsel for the defendants, in arguing the point orally, said that everybody knows what treason is. We, too, think that everybody does, although perhaps not with full knowledge of the words used in the Constitution.

We do not, however, pass this point lightly. A United States attorney in a criminal case has an even greater responsibility than counsel for an individual client. For the purpose of the individual case he represents the great authority of the United States and he must exercise that responsibility with the circumspection and dignity the occasion calls for. His case must rest on evidence, not epithet. If his case is a sound one his evidence is enough; if it is not sound, he should not resort to epithet to give it a false appearance of strength. The language just quoted is deplorable.

Furthermore, on this...