United States v. Williams

• Decision Date: 25 March 1958
• Docket Number: No. 12314.,12314.
• Citation: 254 F.2d 253
• Parties: UNITED STATES of America, v. Joseph N. WILLIAMS, Appellant,
• Court: U.S. Court of Appeals — Third Circuit

254 F.2d 253 (1958)

UNITED STATES of America, v. Joseph N. WILLIAMS, Appellant,

No. 12314.

United States Court of Appeals Third Circuit.

Argued December 19, 1957.

Decided March 25, 1958.

Leslie P. Hill, Philadelphia, Pa., for appellant.

Henry J. Morgan, Philadelphia, Pa. (Harold K. Wood, U. S. Atty., Philadelphia, Pa., on the brief), for appellee.

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

GOODRICH, Circuit Judge.

The defendant was prosecuted on two counts which charged him with knowingly and willfully failing to make and file income tax returns for 1953 and 1954. See Internal Revenue Code of 1939, § 145(a); Internal Revenue Code of 1954, § 7203, 26 U.S.C.A. § 7203. He was convicted on both counts and now appeals.

The only ground alleged in the appeal is the refusal of the trial judge to grant a continuance when the case was called for trial. It appears that information was filed on March 12, 1957. The defendant was arraigned on May 24, 1957 and came without counsel. He entered a plea of not guilty and was notified that his case would come up for trial on June 17, 1957. It was only on Saturday, June 15, 1957, that he called a lawyer by telephone and made arrangements to meet him at the court house on Monday, June 17th.

The lawyer thus secured, who has been retained as counsel in this appeal, moved for continuance on the ground that he had only been called into the case on Saturday and had had no time to prepare. The judge refused the continuance. There was no reversible error in this.

It is well established that the granting of a continuance is within the discretion of the trial judge and his decision will not be disturbed except for abuse of that discretion. Avery v. State of Alabama, 1940, 308 U.S. 444, 60 S. Ct. 321, 84 L.Ed. 377; Boyer v. United States, 5 Cir., 1937, 92 F.2d 857.

There was no abuse here. This defendant had had definite notice of the time of trial from May 17th on. The evidence shows that he had also known for some time that his income tax matters were under investigation and had failed to appear at a conference called by an Internal Revenue official sometime earlier. Nor was he a person of such little experience that he did not know what was happening to him. He stated that he was an owner, buyer and seller of parcels of real estate and that on a number of occasions he had furnished bail for persons accused of crime. The district judge was clearly entitled to conclude that the failure to retain counsel promptly was an endeavor to postpone the day of trial.

Although not mentioned as a ground for appeal, there are other phases of the case which we believe should be commented upon to make sure that this defendant has been treated fairly with regard to his conviction.

After the verdict was returned his counsel moved for a new trial and asked for some time to get the transcript of the case to review the sufficiency of the evidence. The trial judge told him that the case had just been completed and the testimony was fresh in everybody's mind. He thereupon denied the request to postpone the filing of specific reasons for a new trial and overruled the motion. This refusal was clearly within his discretion. Fed.R.Crim.P. 33, 18 U. S.C.A.

The court then passed sentence without receiving a presentence report. In this he did not commit error. While the judge may ask for a presentence report he is not compelled to do so however commendable the practice. Fed.R.Crim.P. 32(c) (1), United States v. Schwenke, 2 Cir., 1955, 221 F.2d 356, United States v. Karavias, 7 Cir., 1948, 170 F.2d 968.

The petitioner appears to suggest that the immediacy of the sentencing deprived him of the opportunity to accumulate and present evidence in mitigation. However, under federal rule 32 (a) sentence is to be imposed without unreasonable delay and we have not been shown how the defendant was prejudiced in any way by the timing of the proceedings. See United States v. Tannuzzo, 2 Cir., 174 F.2d 177, certiorari denied 1949, 338 U.S. 815, 70 S.Ct. 38, 94 L.Ed. 493; Bankey v. Sanford, D.C.N. D.Ga., 74 F.Supp. 756, affirmed 5 Cir., 1947, 165 F.2d 788, certiorari denied 1948, 333 U.S. 847, 68 S.Ct. 649, 92 L. Ed. 1130.

The sentence imposed by the court was a severe one. The defendant was sentenced to a year's imprisonment and $10,000 fine on the first count and a year's imprisonment and $10,000 fine on the second count to run consecutively. However, the execution of imprisonment on the second count was suspended and the defendant placed on probation for five years, with special conditions among which was that fines be paid in full not later than the end of the first year of probation. So long as the sentence imposed by the trial court is within the terms of the relevant statute the exercise of the judgment of the trial judge is not subject to review by a Court of Appeals. United States v. Rosenberg, 2 Cir., 1952, 195 F.2d 583, 604, and cases there cited. While the sentence was severe in this case the court was quite evidently convinced that the violation was flagrant and should be dealt with accordingly. That is a matter solely for the trial judge to determine.

The judgment of the district court will be affirmed.

BIGGS, Chief Judge (concurring).

Though I agree with all that Judge GOODRICH has said, the circumstances of this case and the nature of the grounds asserted by the defendant-appellant as his basis for a new trial suggest that additional background should perhaps be added for the benefit of the reviewing Court.

The defendant-appellant, Williams, takes the position that he was dealt with too hardily by the court below and that the sanctions of the criminal statute imposed on him were excessive in the light of all the circumstances. I think this is not so. It is becoming an unfortunate practice among defendants in criminal proceedings, especially those with prior records, to engage defense counsel to defend them very close to the time of trial, indeed, as here, almost on the last day. This results in delays and sometimes confusion when veniremen have been summonsed and the court has a heavy criminal list. The tactic employed by such defendants is based on the hope that if delays are sufficient their cases somehow will be lost track of or at least cannot be presented effectively. The defendant-appellant here had the benefit, or the detriment, of rather extensive courtroom experience over an extended period of years.¹ In compelling him to go to trial at the time set, a day nearly two months following his arraignment and more than three months after the information was returned against him, I am of the opinion that it cannot be asserted successfully that a trial judge of a very busy and overburdened court, with an extensive list of criminal jury trials, as here, abused his discretion.

At the trial the proof of the defendant-appellant's guilt, largely documentary, was overwhelming. His wilfulness was clearly demonstrated. That the defendant-appellant's gross income exceeded the statutory minimum requiring the filing of returns was all but conceded and it seemed to be the fact he had not filed any federal tax returns for some years, including the critical years 1953 and 1954. The inference, I think is irresistible that had he been allowed unlimited time to prepare his defense his counsel could scarcely have defended him better than he did for the defendant-appellant was largely without books and records. The trial court indicated with good reason that he had repeatedly committed perjury while on the stand in his own defense. His story as to the sources of his income and the amounts thereof was unbelievable and the jury obviously took that view.

Emphasis, however, is laid on the fact that the defendant-appellant's motion for a new trial was denied as soon as it was made and that he was sentenced within a few hours following the return by the jury of verdicts of guilty and that there was no pretrial investigation. Though this practice cannot be deemed to be entirely desirable, for ordinarily at least, presentence investigation should be had, I cannot conceive that in this case it worked substantial detriment to the defendant-appellant.

The trial judge afforded the defendant-appellant and his counsel opportunity to make statements prior to the imposition of sentence and statements were made. The defendant-appellant's evasiveness continued at this critical time. Prior to sentence the trial judge referred to the defendant-appellant's somewhat extended criminal record in the Courts of Pennsylvania and of Philadelphia County, making clear that in passing sentence he would have in mind only the defendant-appellant's convictions. The trial judge cogently noted that he had failed to cooperate with the Internal Revenue Bureau in respect to his civil liabilities for failure to make returns and pay taxes. The trial court then passed a sentence imposing imprisonment upon one count and putting the defendant-appellant on probation on the second count with a substantial fine, and indicated to him that he would have to cooperate with the taxing authorities. As Judge GOODRICH has pointed out there can be no doubt that the trial judge acted within the purview of the law but quite aside from any technical legal view I think that the contention that the defendant-appellant was dealt with too hardily cannot be maintained. Certainly the circumstances are such that this court is not justified in setting aside the judgment of sentence, even if there were a legal basis for doing so.

HASTIE, Circuit Judge (concurring in part and dissenting in part).

I join in so much of the judgment as affirms the conviction of the defendant. However, I would vacate the sentence and remand the case for resentencing after opportunity for full presentation and deliberate consideration of the issue whether there are mitigating circumstances which warrant the imposition of less than the maximum fine and maximum...