*1 inquiry rеspondent that he made and found that The contention of the posi protected he was previously who had been that Dulin same individual lost his him one of tion ing mentioned to under follow his conduct Act participants meeting incident Char- be sustained- cannot meeting, attempt after lotte the union that No was made to contradict Dul the-, temper” following episode he did not a man “short want in’s version driving meeting. company’s accept respond trucks. of his We cannot ent’s ing, that his conduct seek Dulin’s Examiner credited by him, speak to' as described version, when but also believed Wilson was, business, a union officialabout union discharge he testified ordered the that he outrageous so or offensive as to disen because Dulin was of his belief that protection him to title of the Act. tempered. short Trial Examiner enforcing A will entered decree Younger explained statements order of the Board. speculation Hilsheimer as about mere underlying discharge. reason for the Enforced. He, nevertheless, concluded the evi 8(a) (1) showed a violation dence § prac which condemns as an unfair labor employer’s
tice an with an interference rights employee in the exercise of the guaranteed him He recom the Act. Board order reinstate mended that the pay means ment Dulin with back appropriate as a to eliminate the effect 8(a) (1). violation of § Sydney GINSBERG,Appellant, Board reached the same basic con- finding clusion, upon a of a violation UNITED America, STATES of 8(a) (3) forbids discrimina- § Appellee. regard tenure to en- tion courage hire or No. 16544. discourage membership in organization. predicated labor It United States Appeals Court of finding conclusion Fifth Circuit. Younger and Hilsheimer had been told June dischаrge the reason for Wilson Taking they reported Dulin. it to case, the Board this view of found pass specifically unnecessary 8(a) (1), except the violation § finding follows from a viola- 8(a) (3). § Accordingly, it issued a cease and de- substantially the same form order sist language proposed as that Examiner ordered rein- Trial pay as and back the Trial Ex- statement had recommended. aminer Enough testimony has been out- show that the Board above lined legal upon a sufficient basis acted findings making fact and in its Cameron, Judge, conclusion. Circuit dissented. *2 Cunningham, Philip B. T. Arthur Miami, Weinstein, Ginsberg, Daniel L. Fla., appellant. Cline, Jr., Atty., O. B. Asst. U. S. Atty., Miami, Guilmartin, James L. U. S. Fla., Atty. Gen., Rice, Charles K. Asst. Joseph Howard, Atty., Washington, M. C., appellee. D. CAMERON, Before JONES Judges.
BROWN, Circuit
Judge. CAMERON, Circuit appellant, Sydney Ginsberg,
convicted and sentenced on two indict-
ments,
consolidated for trial
charging income tax evasions under §
145(b) of the Internal Revenue Code of
145(b),
years
26 U.S.C.A. §
for the
1946, 1947 and 1948. The tax evasions
charged
and established
the Govern-
upon specific
ment’s evidence were based
omissions
income received.
engaged
purchase
wholesale
and sale of used auto-
Miami,
conducting
Florida,
mobiles in
operations individually,
others in
partnership with his brother and others
Motors,
an official Nash
Miami
Inc.
Government,
present-
attorney’s
final
ed
show-
participated
ed that
in years
392 used cars
sale of
involved, and
the books
that he caused
us
convinees
the convictions
engag-
again.
of the businesses which he was
be reversed and
cases
tried
ed to reveal
total
*3
question
appel
Under his
No.
therefor,
had been received
whereas the
presents
the issue whether the ad
purchasers
books of
the cars show-
the
of
concerning deposits
mission of evidence
$331,-
ed that the
received
amount
joint
ap
made in a
bank аccount
aggre-
915.06, resulting in a tax evasion
pellant
brother,
and his deceased
gating $106,976.50.
prejudicial
Appellant
error.
and this
upon
placed
stand
the
Government
engaged
brother had been
in other busi
several
that their
witnesses
who
business,
nesses besides the
in
used car
paid appellant
amount
concerns had
cluding dealing in real estate in various
having
re-
shown on his books as
been
appellant
cities. While
was on the wit
pay-
ceived,
had made additional
stand,
ness
Govern
appellant
ments “under the table” to
questioned
length
ment
ing
him at
concern
appear
whiсh did
on the
books.
deposits ap
a number
individual
of
pearing
denied
joint
and
account,
took
stand
in the
bank
categorically
large
each and
of the state
of
money.
all
them of
of
amounts
jury
witnesses,
ments of these
but the
Government had made a detailed exam
against him,
appellant’s
con
resolved these
appar
issues
ination of
ently
and
books
victing
of one indict
concerning
him on both counts
had full
information
ap
appellant
and one count of the other. He
clearly
ment
those items. But
judgments
peals
by surprise
thereon
from
based
wholly
taken
and was
unable
ques
raises, upon
appeal,
explain
six
and
this
the source of
some of
spec
by
properly
tions which are
covered
amounts shown on the account
after
merit
lapse
eight
of error.1 We find no
years
ifications
of some
between the
questions
deposits
in the
discussed under
issues
and the time of trial. One item
Ap
1.
deposit
4 and
set forth in Footnote
$40,000.00
6 as
covered a
argument
pellant’s
year
in his answers
and the Government’s attor
however,
questions
ney
3 and
deposit
numbered
asked
was not made
questions:
by
deny-
(1)
1. His brief thus states these
udieial and reversible error
ing apрellant’s
in re-
discovery
1. “Did not the trial court err
motions for
and
(1)
fusing
grant
inspection,
quashing
subpoena
trial
where the
a new
and
tecum,
(2)
made
denying
court on different occasions
trial
duces
and
a motion
conflicting
newly-discovered
as to whether or
statements
for new trial on
evi-
during
jury’s
jurors,
not two of the
dence which evidence would have been
appellant
had
to his chambers
deliberations
come
available to
at the time of trial
(2)
granted
and
sub-
appellant’s
to consult about the
the trial court
sequent
showed,
deliberations,
inspection?
on at least two
motions for
occasions
certain
4. “Did the trial court err
refus-
jurors separated
others,
ing specifically
pellant’s principal
ap-
to instruct the
separation
unexplained,
of which was
defense?”
presumption
prejudice arising
and the
5.
plain
“Did the trial court commit
govern-
by permitting
was unrebutted
error
therefrom
the United States at-
torney apparently
argue
ment?”
as if he were
testifying
in a tax evasion
special
2. “Where
case the
as to facts within his
theory
government
knowledge
ney:
relied
as such United States attor-
specific
of income
omissions
from sales
automobiles,
plain
“(a)
was it not
‘fifty’
he could have had
people
prejudicial
appellant
error for
trial court to
to show the
is not of
good
Attorney,
permit
character,
the United
over
objections,
“(b)
why
government
con-
As to
sought
cash,
deposit
joint
prosecute
cerning
made
Nash rather
than R. S.
bank
his de-
Evans ?”
account
brother, and to
an
make
inflamma-
ceased
“Did
plain
the trial court commit
argument
prejudicial
tory
prejudicial
por-
in that one
charge
inadmissible evidence?”
tion of
on such
his
had the effect of di-
prej-
recting
“Did the trial court commit
аppellant?”
a verdict
questions
quately
deposits,
currency
illus-
form of his
ap-
excerpt
case. But
trated
copied
from his
such was
assumed
sought
margin.3 Appellant
pellant
to answer
was never able
concerning
impact
this
to soften the
questions
this
the source
requesting
instruction,4
which the
money.2
judge
marked “Refused” over
$10,-
deposit
item was
Another
signature.
000.00,
which the
currency.
made in
indicated
also
Appellant
the admission
this
We think
to trace
was later able
prominence
evidence, compounded
utiliz-
After
to his brother.
refusal
*4
days
ing
recess of several
a
requestеd
of
instruction constituted
investigation,
to
appellant testified
for
prejudicial
deci-
our recent
error under
$40,000.00 had
probability
that
Blumberg
sion in
v. United
deposited
brother based
been
a
involv-
957 placed objection of the dence be- of these transactions Rule under sufficient although jury, fore the books of four the Criminal Procedure. Rules of of the nine were en offered evidence very reprehensible made Agent Weir, masse. the who had done by for the Government con- greater part Evans of work on the cerning ability fifty produce his char- books, trial, died before the and his work objected was not witnesses acter to at sheets and summaries made there- аll. from were received evidence of of bill's The matter of prove dead man their had been there to particulars like must left and the correctness. United trial court. the discretion 1940, important agents Co., Socony More per- Oil were v. Vacuum 1129; mitted to use 84 L.Ed. these take-off sheets S.Ct. papers agents States, 1942, the work 316 U.S. Goldman v. United —second- ary 1322; charts In- at best—to construct 86 L.Ed. up composite States, Cir., 1957, diviglio made of these work covering purchases sheets seq. the various Aside from 554 et F.2d figures this, pre- with stenographic report contrasted taken agents appellаnt, from parties books of shows that the conferences partnership corporation books, of which which consti- discussed the Evans he was largest an officer. proportion tuted items upon relied Government. agents, One more authors of foregoing permitted charts, re serious opinion, far the most listening and, accepted procedure, main in the courtroom com- from deviation witnesses, testimony place in the trial mitted concepts what the the use made those charts their with had to do testified, add to charts introduced witnesses or more dozen opinions assembly their own whole connection ought reached agents. to what conclusions to be made The “take-offs” revenue processes compari from the various son, agents the nine books subtraction, addition, purchased cars from deduct concerns appellant evi- ion.2 actual constituted por- assign may party that was to in Exhibit 43. The “No they paid $115,- charge Evans show that records or omission therefrom 310.50, objects difference the mathematical thereto before unless he verdict, stating between the tins two dis- to consider retires *8 particular objects instаnce, tinctly in Ex- testified to as to which he the matter 8, by Stern, objection.” grounds hibit Mr. Zuckerman. Julius [Em- of his the and cars, $4,800, ten Exhibit 43 Mr. was testified to in phasis added.] by Zuckerman, and the agents would the answers of the 2. Some Stern, by cost Mr. as testified to in Ex- following pages. The several run into excerpt paid, $7,465. hibit 19 that he is He also of them will the from one show paid $2,575. testified he in cash by the Gov- resorted method Motors, $5,765, Gem fourteen cars for as ernment: by testified to Mr. Zuckerman in Exhibit * * year during 43, appears testimony the No. as 21, is taxable “This in during paid $11,196 was in existence the which there Exhibit Gem Motors corporation, partnership аnd that these cars. And also in Exhibit 21 separate they paid $5,431. why in again, have throe net cash is There is place any [As if net worth a mathematical worths. diiference between the upon specific (indicating). Regil prosecution Motors, based two the show, by testimony will there are Nash Mr. omissions.] You see records the corporation figures per 43, will be which Zuckerman in Exhibit two as However, one, by into later. Nash as united records testified to Mr. Zuck- 43, $875, all we are concerned with now. erman on is Exhibit total During shows as and * * * period Evans, per Regil R. S. Motors records on Exhibit testimony, $1,475. by records the Nash it shows category, And in $64,765; ‘others,’ according sold Evans records, shows to the it Nash damaging jurors my opinion, this discus- should risk the ill will analysis essentially upon interposing frequent objections, sion, based all, good testimony opinion, but at seem- cultivate their will was not ing simple. cooperate develop- summation, pure and fullest agents to ment But an elec- if the the truth. this is It is doubtful testimony any tion be called which could which made. fact must be represented by so, was an infinitesimal eminent astute —if it was throughout is counsel elect- the trial he If the Government the whole. making objections ed to permitted methods withhold tо resort such should, jury. cases, developing the court take his with the Con- its chances my opinion, cerning one, the witness resembling tell a situation give facts, any essaying testi- is not recently, we said in De Fonce Construc- sense, mony sum- true but is in Co., City Inc., Miami, Cir., making ming up case, is 256 F.2d 428: closing essentially partisan argument of United States “All that the record shows is corresponding reduction —with a exercising parties, both a self-im- argument. time for latter’s posed restraint as remarkable as it point did is that making objections unusual in ex- proof. object method of Various to this ceptions, speculating doubt each nо n objections interposed as to the were verdict, on a have committed agents the statements minutiae of the trial of the case to the district making, ask did not judge objection substantial without any action which to take court interposition. Hav- or other form of protect prejudicial meth- him from such course, chosen is too thus their it argued ods,3 and no based losing parties, late for after them. badly speculation has turned out every lawyer faced, Every at n stage seeking them, depart case, problem whether with the of a records, according Nash as testi- $6,097.62, no and there is Nash received fied in Exhibit No. to Mr. Zuckerman that, and as there on inasmuch $16,900; at for 20 cars and as there, no result no difference there is is in the of testified to in Exhibit the cost to A. a total difference here. There is Sales, according A. Motor Muir’s tes- $82,392.62, as the total of the five $22,275, timony, testi- indicating during above, sales Nash fied, again $5,375 in cash. This is the rep- period. A total this resenting (indicating).” difference mathematical cars, paid total for these instances, in four there is as testified finally 3. The intervened with this relating change to the ‘others.’ That no relating segment statement to one small during partnеrship. the time of the is It of ought case: “I do not think that there incorporated February to be charts exhibited testimony is so that time .and feeling jury, in view of the that I have cars, Nash sold to R. S. Evans 120 purports split about *9 to Mr. in Ex- Zuckerman fifty-fifty argue diverted income. You can $66,030. And testi- No. hibit mony jury, they got it to the have records, in Exhibit Evans finding to make a on that themselves. paid $95,525 that Evans for these shows They got to infer that from evi- n cars, in Exhibit case, dence of the and I do not think n 9. $29,495 it also shows that And any expert infer it for can them.” However, again paid in cash. This, my opinion, was a correct and Regil mathematical diffеrence. Mo- ais law, clear statement of the after but it came tors, Nash records testified to Mr. many presented charts had been 'Zuckerman, Exhibit No. 27 cars for before bold letters and after $10,272. No. 15 Exhibit shows damage to the had been cars, $17,870 paid and there is done. the court Doubtless would have questioa $7,145 mathematical difference. ruled earlier if it had period, called to do the same so. Auto Sales A. A. re- put for the tions made to it as the basis quested here time first the re- action.” invalidate in error and making long sults of Where, here,' re- it must —and unsupported of in- claims contеnd called that does by them, claims sustained con- insufficient to that the evidence was preserved made and were not fairly “record shrieks vict him—the below.” guilt appellant, Lutwak v. United of the” 604, 619-620, “Sitting States, as an opinion, as we do 481, 490, court, justified I not think we find- 97 L.Ed. do appellate are we 52(b) apply notice the Rule of the trial court the actions Therefore, respect- presented respect I errors mentioned.5 fully matters conten- dissent. and limited to that pages supra, Indiviglio considered the authorities at v. United
4. page dis- 560-563. In that F.2d at question fully and cited cussed whole listed in Cf. the cases Footnote supra. Miami, Fonce De