Sidney L. Gross v. United States

liquidation earnings view, constitutionally distributed elude disable Con- corporation”.3 gress, “whenever earned matter of fundamental fair- ness, taxing the distribution in the opin The Tax Court of the hands the distributee.4 ion that a con this amendment reflected Affirmed. Congress purpose part to scious overrule the three of Tax earlier Board literally

Appeals This is not decisions. legislative from the rec demonstrable

ord, language but the used is so clear ques

that we believe there is no serious Congress

tion as to how intended

taxing provision operate. aAs matter therefore, statutory construction,

do not ing in hold think the Tax Court erred Sidney GROSS, Appellant,

that the statute reached distributions- L. earnings prior to 1939. accumulated UNITED America, STATES of obliged to fall Petitioner is thus Appellee. namely, position, back second to his No. 20953. applied is statute so construed and Appeals States Court of at odds Due Process Clause with the District of Columbia Circuit. argu This Fifth Amendment. jaun solely ment is in terms of the Argued May 10, cast dice with which the are said courts Decided Feb. legislatures attempts tax view the past more than transactions. But it is note, respondent

mere semantics urges do, event that the taxable us here, receipt of a dividend issue

distribution, long occurred after both taxing

initial enactment of statute clarifying The fact

and its amendment. the dividend dollars paid business were derived from not, prior in our activities to 1939 does (m) (1967) 1551c holding that, 47 D.C.Code although § legislatures cases any means dis- The word “dividend” imposing have some latitude for taxes on corporation (do- past transactions, they tribution made should be reason- foreign) try or to its stockholders go mestic e.g., able and far, back too earnings, prof- members, Comptroller or out of Treasury its v. Glenn L. paid-in its, surplus (other Co., or than sur- Martin 216 Md. 140 A.2d 288 corpora- plus), Tty (1958), (2) whenever earned Supreme some Court de- tion whether made in cash or early days cisions in the of the federal property (other following other than stock upon income tax the amend- corporation if same class 1913, e.g., ment of the Constitution cipient Lynch nei- Turrish, stock dividend has such option nor exercised an (1918). ther received 62 L.Ed. 1087 The former dividend in cash or retroactivity to receive such involve a true vis-a-vis the property subject than stock instead of which, other above, of the tax as noted prior stock) present and whether distributed is not here. The latter charac- liquidation to, during, upon, teristically or after limited constructions corporation: Congressional intent, or dissolution prompted by * * added.) (Emphasis *. obvious desire not to raise constitutional problems by projecting the 16th Amend- by petitioner past cited any way. 4. The case authorities ment into the No such (1) groups: generally into two state fall shadow falls across the us. case before 1298

PER CURIAM. appeal This is from convictions housebreaking (22 1801) and D.C.Code § grand larceny (D.C.Code 2201). The § charged offenses were 19,1966. Appellant committed on March Judge, Fahy, dissent- Circuit Senior day was arrested and has been part. ed in confinement since. indictment ever April 25,1966. was returned the first At later, trial two months was un- agree. trial, able to The second us, sult of which is now on before March, 14, December 13 and 1966. 1967, appellant was sentenced concur- imprisonment rent terms of years. six of two to pauperis appeal This in forma by the on was authorized District Court day April 6,1967, on the court also transcript ordered Notwithstanding nu- the record. by appointed efforts counsel merous earlier, transcript obtain the it was complete for use on furnished in form 7, appeal February this until convictions thus remained unreviewable ap- had until confinement proximated period his the minimum sentences.1 grounds Appellant now submits two aside set for relief. He asks that we dismissal direct convictions for of an asserted speedy the indictment denial appeal. right to a constitutional key His other claim is witness’s Washington, Kingdon Gould, Jr., Mr. person of him the court court), (appointed D. C. admitted the offenses was who committed Washing- Blankstein, Mr. Mitchell whom in evidence violation appel- C., brief, ton, D. recently concepts the Su- announced lant. Denno, preme Court. Stovall v. Givelber, Asst. U. S. Mr. Daniel J. 1199 L.Ed.2d 18 G. Atty., Messrs. David with whom States, (1967) ; Simmons Nebeker, Q. Atty., Bress, Frank S. IT. 19 L.Ed.2d U.S. S.Ct. brief, for Atty., on Asst. U. S. (1968) conten- this latter . We consider appellee. tion first. Mr. Judge, prosecution called At Circuit Before Senior Fahy, He said witness. Keith Circuit and McGowan Leventhal, morning early hours of March Judges. cases, includ such of all other decision ing for decision was submitted ease 1. The one, pending May banc result. the en panel of this court See Clemons v. United 133 U.S. long de entire court Not thereafter en, App.D.C. typical Dec. F.2d cases banc three to hear cided problems presenting Wade-Stovall of those testimony, and to of identification daylight, burglar Q. heard the standing person And was this go alarm off at a fur store near where or seated? story lived. He to his went second win He A. Well, was seated. will parked dow and observed a 50 to redefine that. believe he was stand- away. appellant step feet He said he saw ing up. store, ping off in front of the the curb Q. you person, When saw this what carrying fur a white The car was stole. you say? did light night near a street and was Nothing. A. got good ap clear. He he look said at Q. person You saw and did car, pellant and the license number of the nothing? gave police. which he to He de Negro appellant supposed scribed in his late A. I wasn’t to talk. I twenties, “fairly size,” approxi merely good, was to look at asked him. mately inches, wearing a six feet two Q. you hap- And can tell me what *** light or “white rain coat colored pened after that? necessarily white,” perfectly a dark A. After that ? hat, broad brimmed and dark slacks. Q. Yes. police through The li traced the car IA. went back home. cense number and stole discov anybody? Q. you ered in its back The Did to seat. car was talk appellant’s Anybody police station, and had driven at to scene of the crime James Short. that? during thought day Well,

Later he me I went A. asked if police appellant to the person I the room was the saw in where appellant person was detained. He I identified that had same seen following crime, my in the and answer circumstances: scene yes. Q. Now, Krause, talking Mr. about Q. say it room come down to the You didn’t No. Pre- you there, you? Saturday, cinct at were in did twelve o’clock March when 19; you to when came Precinct you A. What do mean? you did the officer there take Q. Well, you I assume went lineup people look at number of ? there to this man. No, A. person. was one right up Well, I A. didn’t walk Q. But were there a number of man, when to the came but we people? person me if was the same asked No, police A. there one officer I had seen at scene nonpolice crime, and one yes. officer at the time. and I told him Short, n would Krause, but not morning also testified at meet him around appellant’s Kennedy first His trial. nine o’clock and at Seventh evening the record before us is give and him the $200.00. Streets 18, 1966, approached of March returning home, he was his no- After Short by appellant his work lights coming whom he had never ticed from where he across police seen parked and, assuming before and who him $200.00 offered evening. They approaching, the use his ear that were he ran to his cousin’s appellant met away. at the car and drove Short a block half fa- house and a His requested, to several locations as at one the two to the ther came and went appellant of which returned with another where he above Seventh Precinct told the got this, man story. and both police the car. After With went appellant’s direction, Kennedy Short drove to the Seventh and Street rendezvous appear. location of the fur appellant store where the break- but did not Later ing-in morning police appel- theft He occurred. testified with Short saw appel- place. further working that he drove off left lant in front of Short’s police lant and the appellant. other man 15th and Flor- then arrested Avenue, appellant leaving ida prosecuted. was not Short advising fur Short he

Q. you ultimately did mention this to? Who conviction is prosecutor and the versed elects seek A. To officer. despite degree a new trial the- Q. you Do remember which already has served the invali- officer it was ? dated sentence. This was the course fol- Well, directly A. outside en banc lowed this court when it had room. problem a similar in Hines v. United Q. say you ? What 408 F.2d (decided 1968). A. December told the officer that that was person (Tr. saw with fur. pro- case remanded for further 31-32) ceedings contemplated opinion. in this A detective testified as the Krause It is so ordered. identification at station as follows: FAHY, Judge (dissent- Senior Circuit look, Mr. Krause came down to and ing part concurring part): in and Sidney sitting there, Gross was and up I told him to stand and Mr. Gross required I do not think a remand is

stood up, and said the he that was process for a determination of the due getting car, man he saw the into and question involved Krause’s confron- (Tr. he identified him as the man. appellant station, tation of 125-126) is, inquire that further whether impermis- confrontation “was so was, course, The trial of held sibly suggestive give as to to a prior rise Stovall, and the circumstances very irreparable of substantial likelihood lineup developed were not misidentification.” Simmons v. United emerges reference to that case. What States, 384, 967, 377, 390 U.S. 88 S.Ct. testimony apparent from this is an in 19 L.Ed. It is there stated also Supreme of stance what re Court this standard accords with the practice ferred to in Stovall as “[t]he previous Court’s of a resolution similar showing suspects singly persons of Denno, 293, issue in Stovall v. 388 U.S. purpose identification, for the of and 18 L.Ed.2d 1199. In part lineup,” which, as of a and proc- Simmons the Court decided due added, widely Court “has been condemn record, issue on ess the trial as this ed.” a Whether violation in court, banc, respect en also did with should, think, fact occurred here we the cell block confrontations in subject Clemons specific inquiry by -, U.S.App.D.C. States, 133 remand, culminating v. 408 F.2d District on United Court think do should findings of fact and of conclusions the same case. As court’s law.3 opinion demonstrates a full we have toAs contention that statement of the facts about the we should direct dismissal of the indict confrontation, station corroborative with ment because of testimony from a who detective transcript, problem we think this eye witness to what occurred there. is better left for the District Court party to Neither case intimates consider in terms Amend Sixth right speedy light. ment availability any to a event testimony 3. The District will also it- Court address If 408 F.2d 1230. question prove fatally self on remand to the of wheth- tainted —and should to be er, assuming pretrial suggesting we are not to be taken as confrontar process, appear tion was defective under due formula- is —it would that no testimony could, Krause’s properly identification tion of a harmless error standard dispense record, admitted an inde- with the neces- pendent sity source. See Clemons v. United of a new trial. U.S.App.D.C. States, supra, 133 1 note opportunity arable. Mr. Krause’s referred to in the court’s The facts pre-trial the scene of the crime to confron- show that Wright against safeguards Compare a thief limited. v. tation lacked States, U.S.App.D.C. accompany United identification mistaken lineup.1 Appellant Hemphill properly F.2d conducted a presented 402 F.2d to Mr. Krause as alone single police suspect. daylight This is like occurred before a away. Looking Supreme Court character- from some distance instance practice he as follows: “The above saw man a broad-brimmed ized Stovall hat, showing suspects singly persons only briefly. testifying When identification, purpose about he for fthe widely part lineup, has not as refer to the man’s charac- 388 U.S. S.Ct. teristics had said he had no- condemned.” which he Moreover, (footnote omitted).2 ticed at the scene of at 1972 crime. respect qualified has one the Krause a whole least that earlier gave thought identification, “Well, per- rise to the same feature which exclusionary younger actually “per son se rule” Gilbert looked than California, 263, 272-273, 87 turned to be.” L.Ed.2d S.Ct. curious James a statement cluded trial,4 Short at first in whose prior to the he had identified found, the fur stole was trial.3 persuade jury guilt,5 the of way with There is no to demonstrate importance indicative of Mr. of the certainty police absolute the station Krause’s at the second trial unnecessarily sug- confrontation so “was and, therefore, of care the with which gestive irreparable and conducive to mis- its trustworthiness should considered [appellant] taken identification that was process under due standards of Sto- Stovall, process of due law.” denied appli- vall and A Simmons. reasonable supra at 87 S.Ct. requires cation of these standards I think certain, however, the confronta- us to hold that fell confrontation suggestive, tion unneces- and was meeting short of no There is them. sarily explanation so. No occurs for passage reason to after believe that arranged. Being in manner which was years any of two reliable additional suggestive it was to mistaken conducive there formation is available as to what totality identification, transpired. Sera-Leyva Compare v. Unit- its I conducive character circumstances ed reasonably rep- think cannot be deemed F.2d 160. suggestibility pre-trial corollary 1. As to the of iden- rence is hut a main thrust arrayed Gilbert, see tifications the authorities Wade and Stovall cases. Wade, process sanction, States 388 U.S. .Gilbert due even in retrospective operation n. 87 S.Ct. 18 L.Ed.2d 1149. its as determined Clemons, seeks to make effective the single 2. Stovall of a guarantee fundamental constitutional suspect proc- was held not to violate due Gilbert, supra a fair trial. totality of law ess because of cir- dissenting opin- S.Ct. 1951. See also cumstance there the im- Court said an Douglas Biggers ion of Mr. Justice hospital by mediate confrontation Tennessee, 404, 409, critically injured imperative. victim was by 19 L.Ed.2d affirmed In Clemons this court noted equally divided Court. footnote See “makes little sense to reverse a convic- infra. per exclusionary basis se tion testify 4. Mr. Krause did not the first expressly operate rule intended to trial. omitted.) (Footnote deterrent.” How- ever, prospective opinion. this function of deter- 5. See footnote of the court’s Clemons,6 however, Under notwith- witness he had identified standing police police station confrontation station. event the might remand, I be found combination the two taint would now, process, Here, under find defective conviction. Clemons, in contrast with if it can had an identifying be shown have inde- was no there testi- pendent illegality mony except the taint of Krause,7 though source its that of sufficiently support is removed admissibility po- the fact of his identification at the by identification which lice station was testified to a detec- record, however, it, I increasing by resulted. Om tive who witnessed thus do not it can prejudice see how be said this verification the its independent an only source. The effective admission. single possible other source was the my The end result of conclusion that seeing incident of man across station confrontation de- the street stole in the white fective under due is that Perhaps I set circumstances have forth. conviction should be held to be free by he could. the man that inci- prejudicial error. understand dent. His effect would opinion footnote 3 of court’s be admissible and believed course if position would be if the court’s by a conviction. mand should result in a like conclusion suggestive But the confrontation at the as to the station confrontation my cannot in view free finding that the in-court identifi- resulting identification there of ef- cation tainted it. also should suggestiveness. fect of that In Clemons think, though this cannot be a basis affecting the factual the issue situation decision, expenditure that the over-all independent source of cell judicial effort no the end would be distinguishable. block identifications is greater clear-cut course available, possible Several sources were adopted now, rather than the pointed court its probability in all course which will re- in that case. remand, accompanied too sult ’ accordingly to me we should seems by itas will be errone- shadow an during hold that it was error admit ous conviction if it does not direct the Government a new trial. evidence station identi- In the event the remand results in fication, by tainted the confrontation setting aside the conviction think there which was defective under disposition by this court of process. require This would contention that should direct dis- at which that evidence excluded. missal indictment because of The in-court identification itself would transcript not cure the because in the minds error appropriately jurors necessarily left the District Court would be up shored of the same in the first instance. Judge par- seating equally As a Senior Circuit did not from affirmance ticipate accompanying Gilbert, supra Court, in the Clemons and divided at 272 en banc cases. n. 87 S.Ct. 1951. Douglas

7. See of Mr. Justice Biggers Tennessee, supra, dis- note 3

Case Details

Case Name: Sidney L. Gross v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 19, 1969

Citation: 408 F.2d 1297

Docket Number: 20953_1

Court Abbreviation: D.C. Cir.