*2 Sеasons, Inc., interest, Briggs, Atty., 40% John U. S. Jackson- L. appellant, transferred to who ville, Fla., Tison, Jr., H. Claude Asst. U. same date executed a non-interest bear Atty., Tampa, Fla., plaintiff-ap- S. ing demand note to Rizzo in the amount pellee. $50,000.00.2 ap On March *3 THORNBERRY, and Before BELL pellant’s cancelled, stock certificate was Judges, GROOMS, Circuit and District Rizzo, ostensibly and reissued to for use Judge. by 6, Rizzo as On November collateral. appel the shares were reissued to Judge: GROOMS,District lant, during who claimed that the inter appellant The was convicted on Count im the stock inwas effect held in trust indictment, III, of of a three count a vi- by for him Rizzo. 7206(1).1 olation of 26 U.S.C.A. § January 12, 1968, appellant On trans- appellant’s Count III related to 1968 ferred his stock to Rizzo considera- charged return on and that June $50,000.00 tion of the cancellation of the knowingly appellant made a false Januаry 3, 1967, of note as- declaration in his claim to have sold 20 sumption appellant’s of to indebtedness Seasons, shares of Two Inc. stock for County National Bank of North Mi- $230,022.20 purchased that he had $68,364.08, ami Beach in the of amount $50,000.00, and that income of Tampa to Central Bank of $180,022.20 properly treated $51,108.12, amount of and to Two Sea- gain. long capital term sons, $60,550.00, Inc. the amount of a $230,022.20. total of early appellаnt In late 1964 and 1965 obtaining assisted S. Rizzo in a A. Beginning period and over 1965 a $5,000,000.00 loan from the Pension years approximately of three Two Sea- Fund of the Teamster’s Union. paid expenses sons fees and and made buy develop loan was to be used to or on loans behalf of of just Miami-, land acres of north of $252,332.09. However, no amount was ap- Florida. The land which had an paid principal $50,000.00. on the of sum praisal $9,500,000.00 pur- оf value charge $3,500,000.00. Seasons, chased for The Government’s basic stems organized by pur- Inc. was from Rizzo for the its claim that the real considera- pose holding twenty acquiring, develop- of tion for the issuance of the ing property purchased, of the land. The shares Two Seasons stock was not a together $50,000.00 with the debt evidenced the note balance of the loan proceeds, by appellant procur- to but was transferred Rizzo fees earned ing corporation. from Fund. the loan the Pension “Any person taken another Much evidence was as to who— (1) July 16, by appel- penalties Declaration under of executed note $50,000.00. perjury. Willfully Rizzo in the amount of makes and subscribes lant — any return, statement, that note evidenced or other claims docu- ment, purchase price which of the 20 shares of contаins or verified stock, written declaration that it made that he was unable to borrow penalties money pay perjury, note and that Rizzo and which he off the stock; does not that he was believe to be true and correct issue the every matter; lost; material the note had informed note; that he that Rizzo a new wished guilty felony and, upon agreed give shall be note if the stock a new January ; thereof, him and that conviction shall be was issued to fined not more $5,000, imprisoned 3, 1967, than and the stock or not more than note was executed understanding. years, both, together pursuant or with the issued costs prosecution.” done, got- I never would review of the evi said A careful $50,000 covering without hun ten the stock more than eleven
dence
transcript,
pages
us
note.”
leads
dred
the suffi
conclusion
definite
up appel-
appears
sum
This answеr
appellant’s
ciency
evidence as
construction of the consideration
lant’s
guiding
guilt
jury under the
was for the
qualifica-
for the stock as well as
frequently
principles
so
announced.
prior
tions
statements.
States,
Glasser
Likewise,
the issue of wilfulness
680;
80,3
457, 469, 86 L.Ed.
appel-
intent
have not overlooked
we
Gordon v. United
the whole
that he laid
evidence
lant’s
4 (5th Cir.).
867
agents preceding
before the
transaction
filing
return and that
his 1968
reaching
In
this conclusion we
supplying
cooperated
what-
them
with
appellant’s testimony
could not overlook
pos-
in his
ever information
*4
hearing
at a
the
June
before
appellant bared
The fact that
session.
legisla
of the Florida
Shevin Committee
agents
investigating
to the
his breast
investigation
its
ture
course of
cooperation would not
his
and extended
organized crime,
into
in which he testi
proseсution
exempt
and the
from
him
a
fied that
was
the
Seasons stock
he, nevertheless,
law,
penalties
if
of the
part
his
of attor
of
fee—“a combination
proscribed.
proceeded
the
to do what
law
ney’s
hope
finder’s
fees and I am in
of
I
the indict
Counts
and II of
deposition
appellant’s
of
fees.” Nor
Oc
grounded upon appellant’s
ment were
al
7, 1968,
tober
taken in connection with a
leged
report
receipt
against
the
the
Time,
failure to
of
libel suit
that he filed
of
income for
value
the stock as
deposed
Inc.,
he had
wherein
that
making
ownership
“par
and in
a false statement as
stock,
achieved
of the
same, respectively.
jury
ap
found
tially
legal
partially
for
services and
pellant
guilty
He
deposi
not
on these counts.
a
Nor
second
finder’s fee.”
his
repugnancy
is such
26, 1968,
contends that
thеre
tion on
in the same
December
inconsistency
guilty
again
between the
deposed
to sub
case wherein
II
the
stantially
statement;
verdicts on Counts I
nor
the same
n
III,
guilty
that Count
testimony
verdict
Count
in this
as follows:
ease
Throughout
the trial
III cannot stand.
the ultimate result was that I
“[B]ut
position
appellant
that
stock
took
stock,
gave
$50,000
him
note for the
acquisi
date of its
had no value on the
how
was
to ac-
that’s
I
able
1967;
January
its enhance
tion in
quire
regardless
stock,
of how I
for which it
from
to the sum
ment
zero
it.
labeled
the devel
from
1968 resulted
was sold
Q. Regardless
you
how
labeled
of
during
peri
opment
property
of the
it, sir?
theory
jury
could
od. Under
right.
no
you
value
found that
there was
If
well have
A. That’s
recall.
least,
report
or, at
could
Dempsey,
time and
for
Mr.
I said this
ample
again,
doubt
held that
there was
it
is
of
time
a combination
assumptions
legаl
the value. Other
fees.
I left that
about
finder’s fee and
indulged
be,
up
be,
my
up
but will
I left it
could
accountant.
I
Agent.
you
jury’s
on Counts
verdict
come
of the
But when
basis
the IRS
deny-
not err
it,
II. The court did
after
down
whether
all
sufficiency
considering
weigh
“[I]n
is not
the evidence
“It
for us
credibility
not determine whether
wit
do
or
to determine
evidence we
beyond
guilt
reasonable
must be
establishes
The verdict of
nesses.
only
doubt,
evidence,
the evidence
whether
if there
substantial
sustained
permit
find
taking
of fact
triers
most
favorable
to the
view
beyond
guilty
Government,
support
a reasonable
it. United States
the defendants
Manton,
Cir.,
839.”
doubt.”
ing appellant’s
judgment
stand,
motion
When Greenwald took the
coun-
ground
acquittal
inconsistency
appellant
on the
reminded the court that
sel
United, States,
objected
of verdicts. Dunn v.
284 he had
the conversation
520;
76 L.Ed.
as to what
October
сonference
Panzavecchia,
United States v.
446 F.2d Rizzo had testified to when the account-
(5th Cir.).
replied by
ant was called.
The court
structing
as to the considera-
that there
insists
given
conversation,
tion to be
to reverse in the action of the court in
Rizzo,
response
and the
admitting
testimony
of Revenue
appellant,6 following which Greenwald
Agent
alleged
Greenwald
an
admis-
testified that:
by appellant
testimony
sion
as to Rizzo’s
Beverage
before
Florida State
Com-
Ragano
I
I
“A.
told Mr.
that was
appellant
mission to the effect that
had
aware of
Rizzo had
fee,
earned the stock
a finder’s
“as
given
Beverage Depart-
to the State
attorney’s fee.” The issue was first
ment, wherein Mr. Rizzo had testified
presented
prosecu-
in the course of the
Ragano
the stock
received
opening
repre-
tion’s
statement and was
I
Mr.
for services rendered.
Ragano
asked
being
sented to the court as
an admis-
true,
whether that was
wheth-
testimony.
sion
of Rizzo’s
legal
Ragano
they
er
Mr.
were
fees.
objection
ap-
Over
the court ruled that
no,
replied
not for services ren-
pellant having responded to the state-
bought
dered in that he had
the stock
ment,
agent
became
*5
$50,000
for
note. He said the books
gestae
“res
of admission.”
bear
оut.
Seasons would
this
again
question
presented
was
in
“Q. Did
indicate if he
aware
he
was
the course of
examination of
the direct
testimony
Rizzo’s
?
Mr.
appellant’s accountant, Andretta. The
“A. He said he
of it.”
was aware
anything
appellant
court
that
stated
that
respect
with
Greenwald also testified
to
said
the course
the interview with
May 1969,
a further conference in
agent
would constitute “an admis-
Adair,
agent
deсeased,
Mr.
an
now
was
exception
hearsay rule,”
sion
and
present:
necessary
that it was
in order to deter-
mine the
of the
to
extent
admission
have
pointed
“A. Mr. Adair
out Mr.
to
only
appellant
what
but what
said
Ragano that
of Rizzo
the statements
appellant.
was said to
The court fur-
given
that the stock had been
to Ra-
ther
that he
stated
would instruct
gano
legal fee,
and that there was
jury that it could not consider the com-
no other consideration.
prove
Rizzo
ments made
to
the truth
Rizzo,
Ragano
of the assertions of
but that the
he
said that
did not know
why
in the
could consider the comments
way,
Rizzo had testified this
but
appellant’s response.5
context of
it was not true.”
appellant
words, during
that
Counsel
for
stated
lie
other
his conversation with
object
reply
came,
may
defendant,
occasionally say,
when the time
it
to which the court ruled that
was not
‘Mr.
A. Rizzo said
and
S.
such
such
necessary
object.
you
say
do
me. and what
about
that,’
that
or words to
effect.
6. “THE COURT: Ladies and Gentlemen
“Now, you may not consider what he
you
Jury,
telling
of the
what
tran-
having
relates,
the witness relates as
been
spired
himself,
Greenwald,
Mr.
between
said
S. A. Rizzo out of the defendant’s
and the defendant
the form of con-
presence.
may
that
You
not consider
as
versation,
anticiрated
that Mr.
going
the matter of the
truth of
going
Greenwald
to relate the conversa-
you
said,
A.
S.
Rizzo
tion,
relating
the conversation ho
may
response
say
things
consider
defendant’s
will
some
that Mr.
A. Rizzo
S.
him in
told
the defendant’s
In
absence.
those statements.”
jury was not the result of a
Whyte
fore the
witness
Defendant’s
persistent
passing
telephone
incident but of a
conver-
as to a
cross-examined
instruc-
effort. The court’s
sustainеd
him
Greenwald
between
sation
inculpatory response
anticipated
tion
aware-
witness’s
related
which
materialize,
by appellant that did not
testified before
Rizzo
ness that
had
consequently
misdirected.
Beverage
the stock
Commission
given
ren-
for services
case of
States v.
In the recent
dered.
(1971),
Johnson,
Cir.,
and fundamental
be-
is this coun-
cause ‘Mitchell
kind of fair trial which
was bound hand
goal.”
by
array
try’s
foot
the most awesome
of ev-
constitutional
imaginable,
apart
quite
idence
from
States,
v.
336
In Krulewitch
cannot,
the confession of Barton.’ We
790,
440,
716,
L.Ed.
in
69
hearsay
93
U.S.
S.Ct.
however, substitute
for the
ourselves
by
volving
a co-con
jury,
pass upon
duty
whose
towas
spirator
complaining
to the
witness some
guilt
Mitchell’s
or innocence.”
transportation in viola
six
after
weeks
Douglas
also,
Alabama,
Act,
v.
380 U.S.
See
tion
the court stated:
of Mann
415, 85
L.Ed.2d 934.
S.Ct.
13
that the statement
“It is contended
Appellant’s
respect
alleged co-conspira-
“admissions” with
attributed to the
evidence,
to the
for the stock were
merely
consideration
tor
cumulative
qualified.
unequivocal
not
The
the case
that without
permitted
to consider
against
strong
should have
petitioner
sowas
wеight
their
hearsay.
unburdened
inadmissible
un-
we should hold
error harmless
conclude there was error
We
(1946 ed.)
In
28
der
U.S.C.
§
guilt
this
and that
evidence of
States,
Kotteakos United
v.
overwhelming
to ren
case was
so
1557],
L.Ed.
we
750
S.Ct.
90
[66
harmless,
found
der the error
as was
held
said that error should
be
Supreme
v. Flori
Court
Schneble
harmless under
the harmless
da,
S.Ct.
L.
upon
statute if
consideration of the
court in Hoover
Ed.2d
this
grave
the court is left in
doubt
record
Beto, Cir.,
as tо whether the error had substan-
of those
bringing
facts
cases.
a ver-
tial influence
about
say
dict.
.
.
.
cannot
We
challenges
the action
erroneous
admission
overruling
court in
motion to strike
hearsay
may not have been
declaration
why
answer
witness Brock as
weight
tipped
the scales
reported
re-
should
against petitioner.”
ceipt of
return.
the stock
his 1967
answered: “Because
witness
Barton v. United
new trial. No. 72-1212. Reversed and remanded. Appeals, States Court Third Circuit. Judge THORNBERRY, (spe- Circuit 9, Argued Jan. 1973. cially concurring): 5, April Decided agree I the conviction should be reversed and the ease remanded
new trial the admission into because evi Agent report dence of Greenwald’s statement contravened
hearsay rule Confrontation
Clause the Sixth Amendment. Rizzo question-
made the statement —that Ragano had received stock as “a fee, attorney’s
finder’s fee” —under Beverage
oath before the Florida Com applying
mission in the course for a
liquor Ragano license. Since denied the prior-hearing
truth of Rizzo’s it, confronted with
was not an admission should have hearsay excluded under rule. McCormick, Evidence, 269, (2d C. §§ ed.1972). Rizzo Because sub
ject by Ragano to cross-examination
when he made statement and did not
testify trial, at his statement was like
wise inadmissible Confronta Green, 1970,
tion Clause. California v. 149, 1930,
399 U.S. 90 S.Ct. 26 L.Ed.2d Further, agree despite I judge’s limiting district instruction the constitutional error cannot beyond
be said to have been harmless
reasonable doubt context States, 1968, case. Bruton v. United 1620, 20 L. S.Ct. 476; Chapman California, Ed.2d 17 L.
Ed.2d 705. ruling hearsay-con-
Since our dispose
frontation issue is sufficient appeal,
of this I would not reach the
other asserted errors.