*1 inquiry respondent 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 discharge 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 account 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 which 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 appellant’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 appellant?” 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 requested 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- 222 F.2d 496. That was case there- a short time that his ing specifically for income accounted after, from withdrew the brother reported, held been and we which had not a purchase $52,000.00 of for the account improper proof that that was admit home. Blumberg’s spent money lavish- wife had ly wedding fam- full a of a member of the made on ily explain inability ade- in York that had taken New and she appellant’s of use along money $40,000 objected in that be traced. can to one 2. money. cash is a considerable amount of “If the Court in words: line this money. entirely I have never that of immateri- seen kind please, is I think that expect nothing I ever At that don’t know I to. in is There al. least, do, only cash, if I it will never be in cash. the statement in made it was ” * * quite objec- $40,000. Attorney.” a District bundle — of and the trial overruled 4. in “Now in- reference to second or pressing kept indictment, dividual defendant currency amount of where such as to charged willfully knowing- there with from. came ly attempting to defeat evade income owing by taxes questions due and himself to the to Mr. Gins- of last “One by filing $40,000 respect of berg America a false was with and fraudulent income tax deposit known return. There bank account cash account, are three in counts In- in tlie individual here bank O & S dictment. $40,000 A cash National Bank. First deposit. Now, Friday at 1 that of the in- first individual “The count ship you alleges seen a Have ever failed o’clock. that the defendant dictment you report seen Have ever of flounder at sea? the income his share all surprise? immediately somebody taken the sale used cars a received from you partner. partnership demeanor on his am sure noticed which he was a I in hopelessly looked. stand and how he the accused on this You cannot convict piece government answered it was a He that unless the establishes count said, right, part- property beyond that sold. I ‘All he a doubt that reasonable your nership tax return us income had from show income the sale you piece prop- period sold a 1947 where cars the taxable used erty.’ looked, 1, 1945, May 31, 1946, find and he did not it. He November knowingly, willfully remembered that And he stated that he that the defendant fraudulently report 1948 he filed an amended return failed to in his piece piece property, partnership that that share of all such income up property in Detroit number tax return for his income In or- lots, amounting $46,000. government I think der establish that partnership govern- what be answered. that substance had income piece property beyond no He showed sold ment must establish a reason- return, doubt, part- on his income tax he couldn’t one able that * * * money, find it. certain ners received but also “ * * * money him But I asked where received for the ben- $40,000 partnership came from and ho said didn’t he efit of not for the you partner.” know. I submit there is a sole benefit of the individual you circumstance which would indicate to and The a hand satchel taken the witness in cash in deposited part in New stand in his in a own behalf and had introduc- of it bank ed four his named witnesses who had testified to made a loan York and person. good language character, Here is the Government 500): (at page offered none contra. Near end of that decision closing argument, the Government’s theory upon which the “Under the attorney made this statement: tried, specifically ac- case was “Now, respect not been the charac- counted for income had * * * legitimate reported, ter Mr. no witnesses. Fowler has stat- purpose ed Mr. was mak- [who have served Worton could argument] produce wife defendant’s didn’t anybody say New York in a hand satchel who is a took to * * * go Now, $30,000 and that bad man. I don’t for that. cash wedding probably fifty people I tremendous could had a big here who would in the town at show that he isn’t hotels good many trying dollars. I am the cost of thousand character. Ginsberg’s jury, Mr. character. I am not that evidence before the With *5 charge trying given reputa- his character or his and no corrective respect it, possibility trying was no tion. I am there him for income ” * * * securing unpreju- tax evasion. an of defendant’s diced consideration condemning In this could we his claim that the omissions quote not do better than to was what oversight rather inten- due to than said this Court in the case recent addition, In no instruc- tion. States, 1957, Handford v. United 249 given matter, tion jury them in the 295, 296: F.2d thought that to have bound “A United States district money income this was additional carries double obligation a burden. He an owes which had been concealed and not government, just to the reported.” any attorney obligation an owes quite We think what was there said client, to conduct his case zeal- persuasive Spies here.5 And cf. v. Unit- ously. But he must remember also- States, 1943, 317 63 ed 364, representative that he is the aof 418; States, L.Ed. Ford v. 87 United government dedicated fairness to and, 313; Cir., 1954, 5 210 F.2d Jones v. equal justice and respect, all in this States, 398; Cir., 1947,164 5 F.2d United heavy obligation he owes a States, Cir., and Hartman v. United representation to the accused. Such 1954, 215 F.2d 386 imposes overriding obligation an skip, being, ap Anglo- for important We the time fairness so argument pellant’s under his American criminal law rests on the up presented ques under guilty 3 and take foundation: better es- dealing alleged cape No. 5 with the im than the innocent suffer. argument proper counsel. of Government this zeal case outran fairness. The prove money 5. The Government contends the case was not offered to possessed spent by repre- case is differentiated before us this the wife Blumberg case in from the the evi- sented the concealment or evasion of in- tax, a dence was there offered as of the come but that the evidence was ad- case, whereas here the Government’s on the missible issue of willful intent. questions argument were asked on cross-ex- is the same made here. appellant rejected categorically Blumberg, of the with the amination We it argu- showing his intent. The do think view it is sufficient convincing happened not without demonstrate that ment what here did Blumberg, specifical- But, in it was force. not constitute harmful error. ly the record that stated in larger specified at- it a amount. fact was of the particulars im- Without aid of was bills torney district court appellant completely dark as proper, prejudicial, and constituted charges him. details error.” reversible particulars a ordered a bill recently conviction reversed We charge filed, appel- case one each upon a narcotics defendant motion, sought, addi- than second statement less much offensive information, was denied. tional here, Nalls v. United involved sought authority thereupon He de- to obtain the Cir., F.2d sired information means wanting other enforcement is not mentioned. even where fairness rules of fundamental argument.7 exception is taken no all knew the time going prosecute appellant that it was hold this statement We “plain understating his income from constituted prosecuting * ** affecting sale of certain of used substantial number cars errors U.S.C.A., purchasers 52(b), certain rights” for certain amounts. Rule under sought chiefly by appel- procedure. It information governing criminal also, been lant’s names error, efforts at was the as would an such purchasers, magnified number cars influence in its involved, deficiency objection mistrial. claimed and motion tax unlikely on each transaction. To have furnished that trial, It made so the term information fair could *6 jurisprudence, have weakened the to our Government’s case is understood This extent. it reversible error. hold to be unnecessary whether it to decide makes testimony introduced the Gov- would, stand- discussed other errors the ing purchasers ernment related to nine alone, justify case. reversal of the ninety-two three hundred In some cars. instances, purchasers books of appel Under his third evidence, but, by were introduced argues com the court below large, upon the Government relied which, on his he showed error mitted testimony agents of its toas these what trial, in mani for new resulted motion books as to showed these transactions failing require prejudice, full to fest relationship appellant’s to what books responses for two motions bills to his disclosed. particulars, his motions 16, quashing his mo and in took the books which were under Rule evidence, subpoena duces introduced in duction, tecum. after such intro- placed against appellant them in were the hands indictments charging reported analysis. general accountants terms But this completed was not a certain when before the amount income was net may prosecute He case was cited the with To that text earnestness 1935, vigor indeed, States, Berger But, 295 v. United U.S. do so. — may 629, 633, 314, 78, 88, blows, L.Ed. while he 79 strike hard 55 S.Ct. he is quoted liberty language not at to it: strike foul ones. It is duty Attorney improp- is much his to “The United States refrain from ordinary party representative produce er not of an methods calculated controversy, sovereignty wrongful every but conviction of a it use legitimate govern obligation impartially bring just means whoso about a gov- obligation compelling as its one.” interest, all; and whose there- at ern prosecution g., See, fore, in a is not criminal e. criminal case of Read v. justice States, 1930, Cir., but 8 win a shall United 636, shall 42 it F.2d such, peculiar 645, Supreme As in a and the civil done. case from be very law, States, sense servant Court of United definite New York guilt Johnson, aim of which is that Railroad twofold Central Co. v. escape or the innocent 49 not suffer. shall 73 L.Ed. 706. Thereupon appel- exceptions returned its verdicts. It is doubtful if to some rulings taken, properly lant filed motions and amended motions were reading trial, attaching reports of careful for new record this whole containing jurors leaves information cal- us in the auditors doubt whether the prejudiced by considerably evi- were not so culated to discount the unwarrant- upon appellant by ed em- assault dence which Govern- had been rulings ployees ment and purchasing concerns. the court these discussed, they we have stated, As turned heretofore the case able to reach their alone verdicts based swearing em- into a match between these properly on the evidence before them. ployees purchasers on side— therefore, hold, We are constrained to testimony bolstered of the Govern- that under herein the circumstances dis- agents ment the other. on —and judgments per- cussed the should not be auditors, appellant’s stand; Tomley mitted to cf. United v. trial, set for new out motions States, Cir., 1957, 551; 250 F.2d appel- great would been benefit Dillingham States, Cir., v. United for introduc- lant if available 36; Boyett F.2d purposes of cross- tion in Cir., 1931, They 48 F.2d 482. are there- examination the trial. fore reversed and the cases are remanded for a new trial. relating discovery, to Matters rulings the details of and to Reversed and remanded. essentially motions for are com new trial mitted discretion of the sound CAMERON, Judge (dissent- Circuit rulings ought to be ing). disturbed rare cases. We agree I upon with brethren predicate upon rul a reversal premises upon factual majority which the ings of the trial here under discus rests, decision but not conclu sion, alone. stood damaging sions. The most out, appel- however, As matters turned *7 which predicated the reversal is subjected pro- relating was the series to of to the breadth of cross-examina were, cedures here discussed with- which prejudicial. tion attorney to which the Government highly question, out weight permitted go exploring appel in greatly testimony was knowledge of his dis- lant’s deposits joint of counted, destroyed, by if not effective the bank account he had with his brother. by prosecution use made in- the of his unexplained I think receipt large the of ability explain money, source sev- the of the sums of under the facts of this large deposits joint ease, eral the bank ac- probably in proper matter for count with his deceased brother. had cross-examination if held reason within legitimate His effort to bolster his stand- able judge bounds. Doubtless the below jury by before the character witness- would have scope narrowed the of this largely by es was nullified the bald examination if he had been unjustifiable completely the statement of only objection chance. But the made fifty prosecuting attorney witnesses the extended cross-examination were available to the four who contradict that set forth supra. in 2 Footnote And, finally, appellant. objection had testified for solely was addressed to the con defending cramped in tention that was immaterial whether against $40,000.00 the number of automobile or the deposit not was made by argument disclosed the Government’s sales cash. The of the Govern cross-examining the witnesses and against ment’s set forth in Footnote 3 being him, by objected denied sort was all, to at and the in showing copied advance the of the 4, of struction in Footnote even if it items which of the were Government was calculated to benefit in the prosecution him. be used manner claimed was by covered

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- all. 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 appellant, 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 instance, 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 and 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 to 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 no 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 partnership. 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 difference. 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 contend 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