United States v. Wortman
Decision Date | 14 January 1964 |
Docket Number | No. 13941,13942.,13941 |
Citation | 326 F.2d 717 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Frank Leonard WORTMAN and Gregory Moore, Defendants-Appellants. |
Court | U.S. Court of Appeals — Seventh Circuit |
Murry L. Randall, Morris A. Shenker, Norman S. London, St. Louis, Mo., for appellants.
Louis F. Oberdorfer, Asst. Atty. Gen., Norman Sepenuk, Atty., Tax Division, U. S. Dept. of Justice, Washington, D. C., Carl W. Feickert, U. S. Atty., East St. Louis, Ill., Meyer Rothwacks, Joseph M. Howard, Attys., Dept. of Justice, Washington, D. C., Richard B. Buhrman, Atty., Internal Revenue Service, Washington, D. C., for appellee.
Before DUFFY, CASTLE and MAJOR, Circuit Judges.
Defendants Frank Leonard Wortman and Gregory Moore separately appeal from judgments entered July 17, 1962, following a jury verdict finding them guilty of conspiracy. The indictment, returned January 11, 1960, originally contained nine counts, all of which were disposed of prior to trial except 1, 2, 3 and 4. Counts 1, 2 and 3 charged Frank Leonard Wortman (afterwards referred to as defendant Wortman to distinguish him from his brother, Edward Wortman) with attempted evasion of his personal income tax for the years 1953, 1954 and 1955. Count 4 charged that defendant Wortman, Elmer Sylvester Dowling, Edward Wortman, Gregory Moore, Sam Magin and George Frank conspired in the manner and for the purposes and objectives subsequently shown. Because of a physical condition, Frank was not tried. The jury was unable to agree as to Edward Wortman on the conspiracy count and as to defendant Wortman on the substantive counts (1, 2 and 3). Defendant Wortman, Moore and Dowling were convicted on the conspiracy count. Magin was acquitted. Dowling died subsequent to the trial.
After a trial which lasted more than six weeks, the case was submitted to the jury on the afternoon of Thursday, February 22, 1962. The jury deliberated the remainder of that day, all of Friday, Saturday and Sunday (9 a. m. to 9 p. m. each day), and returned the verdict above noted at about 4 p. m. on Monday, February 26.
Defendants argue that numerous prejudicial errors were committed which require a reversal of the judgments. Leaving for further consideration, if necessary, many of the issues thus advanced, we shall first consider the contention that a large amount of immaterial, incompetent and prejudicial evidence was admitted over defendants' objections and that the proof of a conspiracy, if any, was not that charged.
We think in the beginning, for reasons which we hope will subsequently become apparent, that the material averments of the conspiracy should be set forth. It alleges in customary language that defendants Wortman and Moore, together with the other persons heretofore named, from July 1, 1944, and continuously thereafter to and including the date of the filing of the indictment (January 11, 1960), conspired and agreed together:
Then follows the enumeration of twenty-five overt acts (five of which were eliminated at the trial) alleged to have been performed in furtherance and in execution of the conspiracy.
It is significant to note from the allegations of the indictment that the alleged conspiracy was pursued by all the named defendants for a period of almost sixteen years for the benefit of and as an aid to defendant Wortman in his income tax matters in one way or another. None of the other alleged conspirators (including Moore) were to have received any benefit from or been aided by their sixteen years of concerted action.
The Government's proof in the main relates to five different business enterprises operated over a period of sixteen years: the Hyde Park Club, the National Amusement Company, the Plaza Amusement Company, the Paddock Restaurant and the Premier Club (also referred to as the Peerless Club and the Paramount Club). The testimony concerning the first three named businesses was admitted solely with reference to the conspiracy charge. That concerning the other businesses was admitted primarily on the substantive charges against defendant Wortman upon which the jury failed to agree. It appears, however, that the Government also relies upon this testimony in support of its theory of a continuing conspiracy.
THE HYDE PARK CLUB.
This Club, organized February 5, 1943 as a partnership, was engaged in the operation of a gambling casino. The partnership consisted of seventeen partners, all named and their respective interests set forth. Moore, with a 7½% interest, was named as a partner. Defendant Wortman was not named. This partnership after some four years of operation terminated its business.
In 1950, Wm. C. Long, a Revenue agent and the first Government witness, commenced an examination of Moore's income tax return for 1947, during the course of which he wrote Moore, Moore responded, "I am enclosing the only copy of this agreement that has been duly signed and witnessed * * *." The agreement (hereinafter called the Moore-Wortman agreement), purportedly signed by Moore and defendant Wortman, bore the names of Moore's wife and his attorney, John W. Joynt, as witnesses, and recited:
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