This is а consolidated appeal from a. judgment of conviction entered upon a. jury verdiсt of guilty and from an order of the trial judge denying a motion for a new trial based on newly discoverеd evidence. The appellant, a Connecticut. dentist, was indicted in a three-count, indictmеnt, charging him with attempting to evade and defeat a large part of federal income tax due and owing by-filing false and fraudulent income tax returns for the calendar years 1953, 1954 and 1955, in violation оf Title 26, Section 145(b), United States Code (Sec. 145- *605 (b), Int.Rev.Code of 1939) and Title 26, Section 7201, United States Code (Sec. 7201, Int.Rev.Code of 1954). The indictment alleged that the reported and the correct taxablе income and tax liability-were as follows:
Income Tax
Reported Correct Reported Correct
1953 $ 5,156.79 $22,629.22 $ 612.00 $ 6,008.28
1954 6,018.98 29,439.64 1,243.74 9,196.63
1955 11,655.43 37,084.29 2,630.41 12,974.67
The accuracy of these figures is conceded. The defense was that the appellant did not willfully understate his income and his tax liability; that he reliеd in good faith on the calculations of his accountant, a Mr. Van Doren. The jury returned a verdiсt of guilty on each of the three counts.
There was abundant evidence from which the jury could find thаt the appellant was aware of his financial status, his true reportable income, and that he signed and filed his tax returns knowing them to be false. On the critical question of fact as to whether оr not the appellant willfully filed false returns or relied in good faith on the calculations of Mr. Vаn Doren, the charge of the trial judge was thorough, clear and eminently fair.
The appellant contends that the Government should have called Mr. Van Doren as one of its witnesses or that the court should have called him; that the appellant was prejudiced because Mr. Van Dоren was not so called. Van Doren had testified on the first trial which resulted in a disagreement. He was within the jurisdiction of the court at the time of the second trial and could have been called by either side. The appellant chose not to call him and claims in the argument on this appeal that had he called Van Doren he would have been bound by Van Doren’s testimony. The appellant was represented by the same trial counsel at both trials. His counsel should have knоwn that, in this Circuit, “We do not limit our repudiation of the pernicious rule against impeachment of one’s witness to instances in which the witness is an ‘adverse party’ or ‘hostile.’ The search for truth is not to bе confined' by any such limitation.” United States v. Freeman,
About one month before the jury-returned its verdict, the trial judge made some remarks, outside the presenсe of' the jury, which were publicized in two-Hartford newspapers the following day. Contrary to the statements made by appellant’s counsel upon the argument of' this appeal, these аrticles did not appear-as front page news items; they did not headline any statement made by the trial', judge. The headlines were factually correct — “Fancher Tax Trial Hangs Still on Accountant Role” and “Defense Calls-Van Doren ‘Crux’ in Fancher Trial.” The Hartford News article did quote the trial judge as having said: “[A] massive shield or cloak is being thrown up between the government and Dr. Fancher in thе form of this man Van Doren,” and “I’ll say quite frankly that it is hard for-me to swallow.” Throughout the lengthy trial the jurors were warned repeatedly by the trial judge not to read newspapers. Before the trial judge ruled on the motion for a mistrial, a poll of each juror-revealed that no juror had read the newspaper articles. There is no reason to be *606 lieve that the jurors’ responses to the poll were not truthful. Although an abundance of caution would suggest that the opinions of a triаl judge remain unexpressed during a trial to a jury, the appellant was not prejudiced in this case.
There is no merit to the appellant’s contention that the trial judge abused his discretion in denying thе motion for a new trial on the ground of newly discovered evidence. The alleged newly discоvered evidence was a post trial deposition of Van Doren. The granting or denial of such a motion is within the discretion of the trial court and will not be reversed on appeal in the absence of a showing of an abuse of that discretion. No such abuse occurred in this casе.
The court notes with disapproval the interval of delay between the date of sentence, July 26, 1961, the date when the appellant’s brief was filed, October 1, 1962 and the date when the Government’s brief was filed, March 4, 1963.
The judgment of conviction is affirmed.