United States v. Vario, 1059

• Decision Date: 12 September 1973
• Docket Number: Docket 73-1592.,No. 1059,1059
• Citation: 484 F.2d 1052
• Parties: UNITED STATES of America, Appellee, v. Paul VARIO, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

484 F.2d 1052 (1973)

UNITED STATES of America, Appellee, v. Paul VARIO, Appellant.

No. 1059, Docket 73-1592.

United States Court of Appeals, Second Circuit.

Argued July 18, 1973.

Decided September 12, 1973.

Certiorari Denied January 7, 1974.

Jerome Lewis, New York City (H. Elliot Wales, New York City, on the brief), for appellant.

Robert E. Lindsay, Atty., Tax Div., Dept. of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and John P. Burke, Attys., Tax Div., Liam Coonan, Sp. Atty., Dept. of Justice, Washington, D. C., Robert Morse, U. S. Atty. for the Eastern District of New York, Brooklyn, N. Y., of counsel), for appellee.

Before MOORE and OAKES, Circuit Judges, and GURFEIN,^* District Judge.

Certiorari Denied January 7, 1974. See 94 S.Ct. 867.

MOORE, Circuit Judge:

This is an appeal from a judgment of conviction entered after a trial by jury, Jacob Mishler, Chief Judge, presiding. The jury found appellant Paul Vario guilty on all three counts of an indictment charging him with conspiracy¹ to obstruct the Treasury Department's collection of income taxes in violation of 18 U.S.C. § 371² (Count I) and with wilfully and knowingly submitting income tax returns for 1965 and 1966, which he did not believe to be true, in violation of Section 7206(1) of the Internal Revenue Code of 1954 (Counts II and III).³ Vario was sentenced to consecutive three-year terms on Counts II and III; a five-year sentence was imposed on Count I to be served concurrently with the sentences imposed on Counts II and III. Vario was also fined a total of $20,000.

On this appeal appellant raises four points which he urges require that this Court reverse his conviction. For the reasons discussed below, we affirm the conviction.

At trial the government attempted to prove that Vario had wilfully and knowingly submitted false income tax returns in 1965 and 1966 in that he had failed to disclose the fact that he was engaged in a gambling or "policy" operation which produced gross income for him. This was not a "net worth" case, and the government did not attempt to show that Vario had received specific sums of money, that he had made large bank deposits, or that he lived above his reported income. Rather, through the testimony of government undercover agents and of others who were involved in a policy business, the government sought to establish that Vario was active in such an operation and that it produced income for him which he had failed to report.⁴

The undercover agents and former policy writers testified to extensive contacts with Vario's co-conspirators in connection with a policy business. Their testimony also revealed that they had had some contacts with Vario in connection with their policy business. While the contacts between these witnesses and Vario were not as extensive as those between the witnesses and Vario's co-conspirators, the evidence as a whole was entirely sufficient to support the jury's verdict and is not here challenged.

Vario's first claim of error stems from an attempt by the government to establish an admission by Vario that he had been involved in a policy business during 1965 and 1966 by introducing evidence that Vario had pleaded guilty to a gambling charge for activities which occurred during 1965 and 1966. While the proper way to introduce evidence of a prior conviction is to produce the judgment of conviction signed by the sentencing judge or a transcript of the relevant proceedings before the court (See Rule 803(22), Proposed Rules of Evidence for United States Courts and Magistrates, 56 F.R. D. 183, 303, 318-319; United States ex rel. Lasky v. LaVallee, 472 F.2d 960, 964 (2d Cir. 1973)), the government offered only a copy of the clerk's docket entries. The docket entries were received in evidence with the court stating that the government should also produce a "certified or exemplified copy of the judgment of conviction * * *." (Transcript at 402). No such copy of the judgment of conviction was produced by the government.

The docket entries indicated that in 1966 Vario had pleaded guilty in state court to three counts of contempt of court (for failing to testify before a grand jury) and one count of conspiracy to violate the New York bookmaking law. Vario argues that once the court indicated that it would admit the docket entries as an admission that he had been involved in gambling during 1965 and 1966, he had no choice but to waive his Fifth Amendment right to silence and to testify that he had entered a plea of guilty pursuant to an agreement between his attorney and the district attorney's office whereby he would serve only seven months in jail on all four matters. Vario also testified that it was one of the conditions of his agreement to plead guilty to all four charges against him. Vario said that while he was guilty of the contempt of court charges, he was innocent of the bookmaking charge and had pleaded guilty to it only because that was part of the agreement his attorney had arranged.

In addition to being forced to waive his Fifth Amendment privilege, Vario argues that in explaining his plea of guilty to the bookmaking charge, he had to inform the jury that he was guilty of contempt of court for refusing to testify before a grand jury. This admission, says Vario, did not add to his credibility in the eyes of the jury.

The government's position is that by actually taking the stand and admitting the accuracy of the docket entries, Vario waived any objection to the admission of that exhibit. Furthermore, the government asserts that Vario's attorney indicated on two occasions that Vario would testify on his behalf and that on neither occasion was there a hint that this testimony was "forced" by the introduction of the docket entries regarding the state court guilty pleas. During a discussion of whether the government was going to produce a certified copy of the judgment of conviction, Vario's attorney interjected: "I think it is going to be moot because the defendant is going to take the stand * * *." (Transcript at 435). During a discussion of the jury charge concerning the right of a defendant not to testify, Vario's attorney stated: "If a man does not fight for himself, he is very rarely acquitted." (Transcript at 620).

While this Court certainly does not approve the government's attempt to establish a guilty plea by docket entries without any explanation as to why a certified copy of the judgment of conviction or of the transcript of the proceedings was not produced, we agree that in this case by testifying in his own defense and admitting the accuracy of the docket entries, Vario waived his objection to them.

As his next assignment of error Vario claims that the district court improperly commented upon his attorney's closing argument. In that argument defense counsel had reverted to the "Golden Rule" standard for jury determination—a standard long since rejected by this Court. Specifically, counsel in effect asked the jurors whether if any of them, their friends, or members of their families ran afoul of the law, they would not wish the jury to apply the Golden Rule. Counsel actually told the jury that "the juror's creed is an exemplification of what we call the Golden Rule." (Transcript at 663). Since this is not an applicable standard, the trial judge quite properly advised the jury that "You must be impartial and objective. No one is to judge themselves, that is not the system of justice." (Transcript at 811). See United States v. Birnbaum, 373 F.2d 250, 258 (2d Cir.), cert. denied, 389 U.S. 837, 88 S.Ct. 53, 19 L. Ed.2d 99 (1967).

Appellant next argues that the district court erred in refusing to strike the testimony of rebuttal witness Detective Robert Donohue. As part of the government's case-in-chief, Detective Frank Fortuna testified that in August, 1965, he had investigated a burglary at Vario's home. While there Fortuna stated that Vario had shown him a small metal box containing three stacks of money which Vario stated amounted to $15,000. During his testimony Vario denied that he had ever had $15,000 in his house, that he had ever kept money in a metal box, or that he had told Fortuna that there was $15,000 in the box. Vario also denied showing any other police officer a metal box containing currency at the time of that burglary. On...