United States v. Marzec

• Decision Date: 13 December 1957
• Docket Number: No. 11979.,11979.
• Citation: United States v. Marzec, 249 F.2d 941 (7th Cir. 1957)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph T. MARZEC, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

249 F.2d 941 (1957)

UNITED STATES of America, Plaintiff-Appellee, v. Joseph T. MARZEC, Defendant-Appellant.

No. 11979.

United States Court of Appeals Seventh Circuit.

December 13, 1957.

Joseph A. Struett, Gerald M. Chapman, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., Albert F. Manion, Asst. U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., of counsel, for the United States.

Before DUFFY, Chief Judge, and SCHNACKENBERG and PARKINSON, Circuit Judges.

PARKINSON, Circuit Judge.

This is an appeal from a judgment entered on a jury verdict finding the defendant Joseph T. Marzec guilty of income tax evasion.

In his summation to the jury, counsel for the defendant, Mr. Joseph A. Struett, said:

"There isn\'t any question in this case and never has been that Mr. Marzec is guilty in the sense that he failed to report his income in the years in question in the amounts he should have at the time he should have.

"I couldn\'t argue conscientiously to you people otherwise. He has told the Government that and he has admitted it to me and I am not going to deceive you.",

and in his brief he informs this court that:

"Marzec certainly is not without culpability herein and in a sense is guilty in that he did not report his true taxable income for these years nor pay taxes thereon."

However, defendant contends that he was subjected to abuse and misuse of the administrative and judicial processes in the bringing about of his conviction and sentence.

On December 15, 1955, an indictment in eight counts was returned against Frank A. Brandt, Stanley T. Kusper, Bruno J. Sobieraj and the defendant charging them with a violation of Title 26 U.S.C.A. § 145(b) in failing to report their respective shares of the proceeds of a joint venture for the years 1949 and 1950. Counts 1 and 2 so charged Brandt, Counts 3 and 4 Kusper, Counts 5 and 6 Sobieraj and Counts 7 and 8 Marzec.

The defendant contends that he had an equitable right to immunity and it was reversible error for the trial judge to have refused to recognize and protect that right by not continuing his trial date pending executive clemency or dismissal.

There are many reasons why this contention is entirely without merit. First and foremost is the fact that even if there did exist the doctrine of common law approvement in our federal court system as the result of the Supreme Court's decision in the In re Whiskey Cases, 1879, 99 U.S. 594, 25 L.Ed. 399, the enactment of the Federal Probation Act has, for all practical purposes, abolished the doctrine. King v. United States, 8 Cir., 1953, 203 F.2d 525. Secondly, there was no evidence of any promise of immunity to Marzec. To the contrary the testimony of Robert Klenha, a Special Agent in the Intelligence Division of the Internal Revenue Service, was as follows:

"This is the instrument that I was particularly concerned about. The form it was in and the implications of the tender caused me to tell Mr. Struett and Mr. Marzec that I could not accept any of these things on behalf of the Revenue Service with any conditions or any strings attached to it; that I couldn\'t accept this as absolving Mr. Marzec of any responsibility or liability that he was open to.

"I also offered to accept these for what they were worth, but again with that condition that we would not be bound in any manner by way of a grant of immunity or extending a hope of reward to Mr. Marzec.

"I believe I did not put it in quite that language, I repeated myself a number of times that I could not accept these with any strings attached; and Mr. Struett kept tendering these to me, and I kept handing them back to him. I believe that it was a cause for some particular comment later on, the way we handed these instruments back and forth between Mr. Struett and myself."

Thirdly, the indictment was returned on December 15, 1955. The cause was assigned for trial on January 9, 1957, over a year after the return of the indictment, and on December 5, 1956 the cause was continued to and reassigned for trial on February 4, 1957 by agreement of counsel for the parties. If Marzec was sincere in his claim to an equitable right of immunity he had many months prior to trial to move in that direction and yet he did absolutely nothing. It is, therefore, crystal clear that under no circumstances can Marzec contend that he had an equitable right to immunity.

This court has repeatedly held that the trial court's action on an application for a continuance is purely a matter of discretion and not subject to review unless it is clearly shown that the discretion has been abused. United States v. Yager, 7 Cir., 1955, 220 F.2d 795. This record shows no abuse of discretion whatsoever in fact the showing is entirely to the contrary. This is dispositive of the second contention of the defendant that "the trial judge committed reversible error when he denied Marzec's motion to continue his trial to permit the filing of preliminary motions, a determination thereof, and, if necessary, preparation for trial, but rather forced Marzec to trial with full knowledge that his counsel was unprepared and denied Marzec his constitutional rights." It is difficult for us to understand how such a theory can be advanced in face of the record in this case showing that it was pending for more than a year between the return of the indictment and the trial and also showing the assignment for trial by agreement of counsel for the parties two months prior to the trial date.

The defendant urges upon us the...