Petition for Writ of Certiorari — Himmelfarb v. United States
Supreme Court brief1949
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SUBJECT INDEX.
PAGE
Petition for certiorari to the United States Court of Appeals
for the Ninth Circuit........................... ee a ee 1
A. Opinion below : c 1
Be, amma, nnn nnnnseecerensespeewsnssassesevcsnecsnensonanpnnntneonecsane 2
C. Questions presented 2
D. Summary statement of matter involved................................ 6
es eI UII, MUIR cccrsteneneusnistinhignstalenastncinisipipinssiians 6
2. Double jeopardy 7
3. Immunity from prosecution...............................-. 8
4. Privileged communications 9
5. Violation of Fifth Amendment to Constitution............ 10
6. Res judicata, evidence pertaining to Counts 3 and 4
submitted to jury 10
7. Prejudicial misconduct of government attorney........ 11
8. Erroneous, confusing and conflicting instructions...... 18
E. Reasons relied on for the ai:wance of the writ................ 21
Brief in support of petition for writ of certiorari-....................... 27
I.
The opinion of the court below.......................ccccsccccccnsescsecsnees 27
II.
EL oes ee " ahaa 27
III.
Statement of the case sihaitininhinbasbahanicesiigsiabisinaiidia 28
IV.
Specification of errors 28
ii.
PAGE
V.
Argument -. 31
1. Double jeopardy th Astin toliatitn-sanaoancoemeninceeginiannds 31
2. Yetitioner was immune from prosecution... 39
3. Privileged communications - 42
4. Compelling the defendant to be a witness against him-
self in violation of the Fifth Amendment of the Con-
stitution 46
5. The trial court committed error in denying defend-
ant’s motion to strike all the evidence pertaining to
Counts 3 and 4 upon which the court had previously
acquitted said defendant 49
Res judicata 49
6. Misconduct of counsel... 56
, 7. Erroneous, confusing, conflicting instructions and fail-
ure to instruct : 59
Closing 64
—
TABLE OF AUTHORITIES CITED.
iii.
CASES. PAGE
Allis v. United States, 155 U. S. 117, 15 S. Ct. 36, 39 L. Ed. 91.. 51
Awtio v. Miller, 92 Mont. tC e:6 e 5. oe 47
Barnes v. State, 61 Tex. Cr. ei eS SS a 62
Barrett v. Bigger, 17 F. 2d 699; cert. den., 274 U. S. 752.......... 32
Beach v. State, 138 Ga. Se Se) 62
Berger v. United States, 295 U. S. 78, 55 S. Ct. 629..............----- 57
Black v. State, 9 Tex. App. 328 a 36
Bleirer v. Wolf, 23 Wash. 2d 368, 161 P. 2) Se 47
Bonnifield v. Thorp, 71 Fed. 924; dism., 83 Fed. 1002..............-- 31
Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed.
746 .... 39
Butler v. Gill, 34 Okla. 814, 127 Pac. 439.......... a
Calvert v. City of Seattle, 23 Wash. 2d 817, 162 P. 2d 441........ 47
Carruthers v. Reed, 102 F. 2d 933; cert. den. 307 U. S. 643,
83 L. Ed. 1523. . 29
Chattock v. United States, 77 F. 2d 961; cert. den., 296 U.
ee 51
Cliett v. State, 167 Ga. 835, 147 S. E. 35, 39 Ga. App. 510,
147 S. E. 724 om 32
Collier v. Los Angeles Ry. Co., 60 Cal. App. 2d 169, 140 P.
2d 206 47
Commissioner v. Molten, 230 Px. 399, 79 Atl. SSR enes 62
Commonwealth v. Gray, 249 Ky. 36, 60 S. W. 2d 133...............- 32
Cornero v. United States, 48 F. 2d 69.........-..-..---:-e-esesee 33, 36, 38
Counselman v. Hitchcock, 142 U. S. 547......---...---scsssseeeeeseeesnsees 39
Craig v. United States, 81 F. 2d 816, 83 F. 2d 850. 22, 36
Crow v. State, 89 Tex. Cr. 149, 230 S. W. 148............... . 36
Davidson v. Gifford, 100 N. C. 18, 6 S. E. 718............... «ae
Emmich v. United States, 298 Fed .5; cert. den., 266 U. S. 608.. 51
Farkas v. United States, 2 F. 2d 644..........------------cscseeeeseeeeseeesenes 51
Fina v. United States, 46 F. 2d 643 siclindianbagtelsanil 24, 47
Fish v. United States, 215 Fed. 545, 132 C. C. A. 56, L. R. A.
1915a 809 a
iv.
Gart v. United States, 294 Fed. 66......... ;
Gillespie v. State, 5 Okla. Crim. 546, 115 Pac. 620 (Ann. Cas.
SOD i Ba intern htnchecnemtentrinnenteinceentinns w. 46
Glasser v. United States, 315 U. S. 60 PK, 3 Meat 23
Glover v. Bradley, 233 Fed. 721 acon
Glover v. United States, 147 Fed. 426, 77 C. C. A. 450.0... 62
Hartzell v. United States, 72 F. 2d 569; cert. den., 293 U. S.
621, 55 S. Ct. 216. 22, 36
Hawes v. State, 88 Ala. 37, 7 So. 302 wa. 43
Hightower v. State, 39 Ga. App. 674, 148 S. E. 300... 2. 63
Hipple v. State, 191 S. W. 1150, I. R. A. 1917(d) 1141............ 32
Hoge v. People, 117 Ill. 35, 6 N. E. 796. ... 62
Holt v. State, 160 Tenn. 366, 24 S. W. 2d 886.2000... 31
Horton v. Atchison, Topeka & Sania Fe Ry., 161 Kan. 403, 168
a eee ht EG, Skene a thn RR 47
Jackson v. Superior Court, 10 Cal. 2d 350, 74 P. 2d 243............ 36
Jacobs v. State, 85 Tex. Crim. 505, 213 S. W. 628....00 32
Jemma Wi eT, TG, naa nnn 23
Kinard v. United States, 68 App. D. C. 250, 96 F. 2d 522...
sakes tiielceinbichadakeheticdante ch teosipalidicattiasdasentestimeainccaeeptccakamntinamnnsiinant 24, 59, 60
Beemer v. aed State, 11 FF. Be Fee... 24
Kutler v. United States, 79 F. 2d 440.0000. 63
LaLance & Grosjean Mfg. Co. v. Haberman Mfg. Co., 87 Fed.
363... .24, 42, 44, 45
Lane v. State, 44 Fla. 105, 32 So. 896............. 62
Latham v. United States, 226 Fed. 420 ....0.0.....ccccccccccccceeeececceeeees 56
Lain Cee rer; Tie BF. Fancast cin 27
Lonergan: v. United States, 88 F. 2d 591; cert. granted, 58 S.
Ct. 18, 302 U. S. 663, 82 L. Ed. 512; rev., 58 S. Ct. 430, 303
U. S. 33.. & 23, 47
Malone v. United States, 94 F. 2d 282.00... cccccccecccccceceeceeseeeeeee 51
SG. DUI, EOD Bs GD OI ctietentnscinennnnnnteonniisicnsnnaniniapioanl 24
McKenzie v. State, 11 S. W. 2d 578, 111 Tex. Crim. 299............ 35
a
v.
PAGE
McKnight v. United States, 115 Fed. 972, 54 C. C. A. 358......
ss csaecenssnnnssneeeeessennnunussennnnnansseconamapussonsanauussenssnssnsneneneseerenns200te 24, 46, 48
Mills v. United States, 164 U. S. 644, 17 S. Ct. 210, 41 L.
Ed. 584 .n----o--0-=-- 23, 62
Monday v. State, 160 Tenn. 258, 23 S. W. 2d 656.......-..-.-------- 35
Montague v. Com., 10) Gait. PGT eacecsinrescsenenseeneccenacsenovere=szonce 36
Naftzger v. United States, 200 Fed. 494.........--------------sseesessreenseeee 63
New York Central R. R. Co. v. Johnson, 279 U. S. 310, 49
S. Ct. 300, 73 Le. Ed. 706...-cocorsn-seeeceeecnmnnnseensennnnnnsssenennnnnnnnnssssees 57
Nicola v. United States, 72 ye | Eaaeam 24, 60
O'Brian v. Com., 9 Bush. 333, 15 Am. R. 715. 35
O’Brien v. Schellberg, 59 Cal. App. 2d 764, 140 P. 2d 159........ 47
People v. Albertson, , a. @') a 52
People v. Best, 13 Cal. App. 2d 606, 57 P. ip Ae 59
People v. Deysher, 2 Cal. 2d 141, 40 P. 2d 259 63
People v. Grahm, 176 App. Div. 38, 162 N. Y. Supp. 334........ 62
People v. Handley, 100 Cal. 370, 34 Pac. 853 63
People v. Lapique, 10 Cal. App. 669, 103 Pac. 164...........-......-- 63
People v. Maughs, 149 Cal. 253 62
People v. Putnam, 20 Cal. 2d 885, 129 P. 2d 367........-.-.------ 59, 60
People v. Strassman, 112 Cal. 683, 45 Pac. 3.........-----.ccsc-sseesseeee 63
People v. Young, 100 Cal. App. 18
Pharr v. United States, 48 F. 2d 767.. 57
Pierce v. United States, 86 F. 2d 949.. 57, 58
Price v. McComish, 22 Cal. App. 2d 92 - 31
Redsted v. Weiss, 71 Cal. App. 2d 63 32
Rose v. United States, 128 F. 2d 622...........-----------seeesseeeeeesseesenss 51
Spies v. United States, 317 U. S. 492 23
State v. Crain, 22 Mo. 54, 100 S. W. 422 vse OB
State v. Dedge, 101 N. J. L. 131, 127 Ey I sinicesasaancuannonennics 35
State v. Helton, 234 Mo. 559, 137 S. W. TI 1d ies ceaddonbabeontin 62
State v. Merkley, 74 Iowa 695, 39 N. W. 111 : 46
State v. Slorah, 106 Atl. 768, 4 A. L. R. 1256.........-------------e-seeeee 36
State v. Stiff, 117 Kan. 243, 234 Pac. 704. : . 32
State v. Willie, 130 La. 454, 58 So. 147... .. 36
United States v. Armour & Co., 64 F. Supp. 855.0000... 39
United States v. Howard, 26 Fed. Case No. 15403, 3 Summ.
United States v. Monia, 317 U. S. 424, 87 L. Ed. 376....23, 39, 40
United States v. Newman, 25 F. 2d 357; rev., 28 F. 2d 1684... 31
United States v. Oppenheimer, 242 U. S. 85, 61 L. Ed. 161, 37,
SA Oc PRIN SUI ceemiotnabeoncerdhtciinnercceeusonnannarienininpatbinemaakapecniony 23, 55, 56
United States v. Perez, 9 Wheat. (22 U. S.) 579, 6 L. Ed.
ICSE ce et a ae ios rc econnssesscesnnseeenseeen 22, 23, 33
United States v. Perlstein, 120 F. 2d 276..0000......cccccccccccccceeceeeee 57
United States v. Smith, 27 Fed. Cas. No. 16,341, 1 Sawy. 277.. 35
United States v. Watson, 28 Fed. Cas. No. 16651.........0...... 31, 32
Van Blaricum v. People, 16 Ill. 364, 63 Am. D. 316............0....... 36
Volkmor v. United States, 13 F. 2d 594.200... cele tceeeceee 57
van pees Cee, Ge Ww. Oe PO as 23
Ee I I iret ora sectpntensnnnnennenceoccnseeanenrastonton 23, 33
rae @, Sete. 455 A. Sh, So oO. OPO... ee 35
Walshon v. Stainton, 71 Reprint 357, 2 Hem & M. 1................ 43
Weathers v. United States, 117 F. 2d 585............ 57
i Ae Ug Gl Oe eens 51
Welsing v. United States, 218 Fed. 369, 134 C. C. A. 177.......... 35
Westberg v. Wilde, 14 Cal. 2d 360, 94 P. 2d 590.000.000.000... 48
STATUTES
Federal Rules of Criminal Procedure, Rule 26............02.....220...:.00 42
Food Conservation Act, In re, 254 Fed. 893................... 24, 55
Internal Revenue Code, Sec. 41 5, 20
Internal Revenue Code, Sec. 48 ........ 5
Rules of the Supreme Court, Rule 38 27
Statute of July 7, 1844, Sec. 2, par. E (5 U. S. C., Sec. 261)... 43
PAGE
United States Code, Sec. 145A. -......-.--s--ccecesneeseeeessesennseseeees 6, 30, 60
United States Code, Title 26, Sec. 3616, DOE, Pissceiccasl 6, 30, 59
United States Constitution, Fifth Amendment............. 2, 21, 23, B
United States Code Annotated, Title 18, Sec. ___ SRC ara 42
United States Code Annotated, Title 26, Sec. 3115(a) .............. 41
United States Code Annotated, Title 26, Sec. 3200, p. 06......... 43
TEgxTBOOKS
Bacon’s Abridgment on Juries, p. 365.......----.-----------ccescccssceeeseene 35
Bishop, New Crim., Sec. 1014...-...---o----c-seeceesseee 36
Bishop, New Crim., Sec. RII fini cancceciunaienigasbensinlaniinviaioteansinisne 36
3 California Jurisprudence, p. 667..............-.. 4 32
Cooley’s Constitutional Limitations (6th Ed.), p. 399.................- 36
16 Corpus Juris, p. 255 33
16 Corpus Juris, p 1054 ..........-.-c--se-csecsccecenesesseneeesensenneensensennennsencs 61
31 Corpus Juris, Sec. 445, p. 837 63
34 Corpus Juris, Sec. 1154, pp. 742, 743.......---.------c-sseescceseeeneeneeees 54
35 Corpus Juris, Sec. 404%, p. 346 34
70 Corpus Juris, Sec. 538, p. 501 43
7 Corpus Juris Secundum, pp. 897, 922, note 50O...........-..--------- 31
16 Corpus Juris Secundum, Sec. 2451, p. 1023.........-.---.---------0 60
22 Corpus Juris Secundum, p. 400, note 67.. 32
50 Corpus Juris Secundum, p. 927, mote 5............----s--sesssseeee 22, 36
50 Corpus Juris Secundum, Sec. 251, p. 1009 «: 3S
14 Encyclopedia of Evidence, pp. 646, 647 46
Internal Revenue Bulletin, Vol. XV-2, p. 341 43
2 Ruling Case Law, p. 995 32
Thompson & Merriam on Juries, Sec. 273 36
1 Thornton on Attorneys-at-Law, p. 386... 32
Wharton’s Criminal Law (12th Ed.), Sec. 395 33
8 Wigmore on Evidence (3rd Ed.), Sec. 2301, p. 584.............- 43
'
,
NR RYE to —EE ——E
IN THE
Supreme Court of the United States
October Term, 1949.
i cnitilinbachi
Sam ORMONT,
Petitioner,
US.
Unitep STATES OF AMERICA,
Respondent.
Petition for Certiorari to the United States Court of
Appeals for the Ninth Circuit.
To the Honorable, the Supreme Court of the United
States:
Comes now Sam Ormont, hereinafter styled petitioner,
and, applying for a writ of certiorari to the United States
Court of Appeals for the Ninth Circuit, respectfully
shows:
A.
OPINION BELOW.
The opinion of the Court of Appeals appears in the
record [R. Vol. V, pp. 1646-1707]. The judgment and
sentence of the District Court also appears in the record
[R. Vol. I, pp. 139-140].
ro a
B.
JURISDICTION.
Judgment of the Court of Appeals sought to be reviewed
was entered on June 3, 1949, and petitioner’s petition for
a rehearing before said Court was timely filed and was
denied on August 1, 1949 [R. Vol. V, p. 1710]. The jur-
isdiction of this Court is invoked under Title 28 U. S. C,
Section 1254, Subdivision 1.
C.
QUESTIONS PRESENTED.
1.
Was the petitioner's constitutional rights against being
twice placed in jeopardy violated?
2.
Where a jury was duly impaneled, accepted, and sworn,
and defendant thereby placed in jeopardy, did the Court
have the right thereafter, and without defendant’s consent,
to discharge that jury merely because, while the jury was
being impaneled, and before it was so passed, accepted, and
sworn, the U. S. attorney had merely made reference to an
O. P. A. case, but no challenge to the panel or to any of
the jurors was interposed by any of the parties on the
ground of such reference, but all the parties with full
knowledge of said statement accepted the jury, thereby con-
clusively waiving all grounds of challenge?
3.
Under such circumstances above delineated, has the
Court the right to again place the defendant in jeopardy
before another jury where proper objection to so doing
has been previously made without violating the Fifth
Amendment to the Constitution of the United States?
el
| _—
4.
Was the petitioner’s constitutional right against being
compelled to be a witness or furnish evidence against him-
self violated?
S.
Where petitioner was subpoenaed and pursuant thereto
was interrogated by the Grand Jury respecting profits and
illegal payments he had made for slaughtering livestock
for the year 1944 was he thereby immune from prosecu-
tion respecting his income and income tax?
6.
Where certified public accountant is employed by the
attorney for a defendant to help such attorney and as his
agent, in preparing income tax returns and documents and
giving advice pertaining thereto for the client, are com-
munications by the client to such attorney and accountant
privileged ?
7.
Was the defendant’s constitutional right against being
compelled to be a witness against himself, violated where
the Court intimated to the U. S. attorney, before the jury,
that he might resort to the processes of the Court to com-
pel the defendant to produce his books and pursuant there-
to, the U. S. attorney caused the Marshal to serve a
subpoena duces tecum on the defendant in open Court, in
plain view and presence of the jury, and where no ad-
monition to the jury to disregard such error and conduct
was given?
TT NT
=
8.
Was it error for the Court to refuse to grant a motion
to strike the testimony of witnesses pertaining only to
counts of the indictment on which the Court had preyj-
ously acquitted the defendant?
9.
Did the acquittal by the Court of the defendant for
Counts 3 and 4 for prior years, 1942 and 1943, constitute
res judicata so as to prevent the prosecution from using
said evidence for the purpose of determining wilfulness
in the year 1944?
10.
Did the argument of the U. S. attorney constitute preju-
dicial misconduct?
11.
Was the Court of Appeals justified in holding that the
activities of the U. S. attorney were merely subject to
criticism and not prejudicial misconduct?
12.
Where conflicting, confusing, and erroneous instructions
were given to the jury, can the Court say that no preju-
dice was suffered, and that the jury followed one instruc-
tion and not the other in arriving at a verdict?
a. Where indictment specifically alleged the manner
and means employed by defendant to commit the alleged
attempt to evade which consisted of only two, namely:
(1) filing an alleged false income and victory tax return,
and (2) by concealing from the Collector and officers of
the United States the correct gross and net income, was
it not prejudicial error for the Court to instruct the jury
ee ae teeehediinesmemmanatal
| ie
in effect that if they found defendant had attempted “in
any manner” to evade his tax they could find him guilty?
b. Was it not error for the Court to instruct the jury
that a taxpayer is required to report all sums “earned”
for the calendar year in which the same were “earned”
when such taxpayer was on a cash basis?
c. Was it not prejudicial error for the Court to in-
struct the jury in effect that they were to determine
whether or not a substantial part of $71,000.00 was in
fact received by each of the defendants as part of his in-
come from the Acme Meat Company operations, without
further instructing the jury that even if they so found
that, it would be further necessary for the jury to find
that such money was so received in the calendar year
1944, and was it not error in the same instruction to tell
the jury that they must determine whether or not “books
and records” were kept as required by the statute.
d. Was it not error to quote Section 41 of the Internal
Revenue Code which said in part:
“But if no such method of accounting has been so
employed, or if the method employed does not clearly
reflect the income, the computation shall be made in
accordance with such methods as in the opinion of the
commissioner clearly reflect his income.” (Italics
supplied. )
without any evidence in the record showing that the com-
missioner had determined any method or if so what such
method was, and which section further stated:
“If the taxpayers annual accounting period is other
than a fiscal year as defined in Section 48 * * *”
without also instructing the jury as to the contents of
said Section 48.
—
e. Did not the Court, by said instruction, submit to the
jury the decisions of questions of law or matters to be
determined by the Commissioner of Internal Revenue?
13.
Did not the Court err in failing to instruct the jury
on his own motion that they might find the defendant un.
der the indictment guilty of a misdemeanor under Subdi-
vision A of Section 3616 of Title 26, U. S. C., and also
Section 145 A of the same book.
D
SUMMARY STATEMENT OF MATTER
INVOLVED.
1.
Indictment and Plea.
Petitioner was charged by indictment of the Grand Jury
in this case, jointly with one Phillip Himmelfarb in Counts
1 and 2, and singly in Counts 3 and 4. The first count
charged petitioner and Phillip Himmelfarb with attempt-
ing to defeat and evade a large part of the income tax due
and owing by Sam Ormont to the United States of Amer-
ica for the calendar year 1944
“by preparing and causing to be prepared and filing
and causing to be filed with the Collector of Internal
Revenue for the Sixth Internal Revenue Collection
District of California a false and fraudulent income
and victory tax return * * *” (Italics supplied.)
[R. Vol. I, pp. 2-3.]
Count 2 charged the defendants jointly with an attempt to
defeat and evade a large part of the income due and owing
from Phillip Himmelfarb for the calendar year 1944.
scilliiee
Count 3 charged the petitioner, Sam Ormont, with attempt-
ing to evade and defeat part of his income tax for the
calendar year 1943. Count 4, a similar charge against
‘tioner, Sam Ormont, for income tax for the calendar
year 1942 [R. Vol. I, pp. 2-6]. To all of which Counts
petitioner entered a plea of not guilty.
2.
Double Jeopardy.
A jury was duly impaneled and sworn to try the de-
fendants on May 22, 1947 [R. Vol. I, p. 242]. There-
upon, William Katz, Esq., attorney for Phillip Himmel-
farb only, in behalf of his client, made a motion to declare
a mistrial and discharge the jury for the reason that the
prosecuting attorney, William Strong, during the selection
of the jury (before it was accepted and sworn) “made a
reference to a pending O. P. A. case” [R. Vol. I, p. 257],
which motion with consent of the Government Counsel was
granted by the trial judge, and said jury was discharged
without the consent of petitioner, Sam Ormont [R. Vol. I,
p. 260]. Thereupon, petitioner, Sam Ormont, through his
attorney, Daly B. Robnett, Esq., made a motion to dismiss
the case, and to enter a plea of once in jeopardy on the
ground that said jury after being duly impaneled and
sworn had been so discharged without the consent of the
petitioner [R. Vol. I, pp. 302-303], which motion was de-
nied by the Court in the following language:
“The Court: I was under the impression that the
motion was made on behalf of both defendants. Even
so, in considering the matter on the merits, I do not
think the motion for a once in jeopardy plea is well
taken. While the jury was sworn, there was not even
a witness sworn, no opening statement to the jury,
iin
and there was nothing that the jury could decide it on,
There was no evidence, no presentation of any kind,
and I think there has to be more than the mere swear-
ing of a jury to place a defendant once in jeopardy,
The motion will be denied.” [R. Vol. I, p. 304.]
Thereupon, a second jury was impaneled by the same
Court and trial judge, and the defendants were jointly tried
before such jury.
3.
Immunity From Prosecution.
The petitioner was subpoenaed before the Grand Jury
of the Southern District, Central Division of California,
and was questioned and testified concerning his income for
1944 as follows:
“Q. During your entire operations there, from the
time you went in to the time you went out, you never
knew whether you were solvent or insolvent? A. |
never did go out of business.
A Grand Juror: Did you make money while at
the Southern California Meat Company?
The Witness: Yes, we showed a nice profit.” [R.
Vol. I, p. 233.]
On page 235 of the same record we quote:
“A Grand Juror: How many times did you lose?
The Witness: I don’t think I had an instance of
once where I lost.
A Grand Juror: In other words, you came out
with a profit?
The Witness: In my particular instance, I did the
livestock purchasing myself; I had no outside buyers.”
——
and during the same examination he was asked in great
detail as to over-payments he had made for slaughtering
cattle—payments which were in violation of the O. P. A.
[see R. Vol. I, pp. 214-236], and not properly deductible
from income.
4.
Privileged Communications.
During the trial the government produced a Certified
Public Accountant by the name of William S. Malin as a
witness, which accountant testified that he was employed
by a Mr. Mirman who at the time was attorney for peti-
tioner, Sam Ormont and defendant, Phillip Himmelfarb,
to help said attorney in connection with the income taxes
of petitioner, Ormont, and defendant, Phillip Himmelfarb
[R. Vol. Ill, pp. 1094 and 1101]. The witness was al-
lowed, over objection, that all communications to the wit-
ness by either defendant were privileged to testify that
he sent Exhibits 51 A, B, C, and D to Mr. Bircher (who
was an agent of the Internal Revenue Department) [R.
Vol. III, pp. 1108-1115, 1123], and over a like objec-
tion, and further objection, there was no foundation laid
(there was no evidence of Malin’s authority from Ormont
or his attorney to deliver said exhibits to Mr. Bircher),
said exhibits were admitted in evidence [R. Vol. ILI, pp.
1114 to 1119], and over a similar objection the witness
was allowed to testify that he got the information con-
tained in these exhibits, particularly Exhibit 51A from
the taxpayer’s records [R. Vol. III, pp. 1119-1120].
willis
5.
Violation of Fifth Amendment of Constitution,
During the course of the trial in the presence of the
jury, the Court intimated to the prosecution that it might
use the processes of the United States Government and
of that Court to compel the production of defendant’s
books and records [R. Vol. II, pp. 599-600]. Thereafter,
the prosecution caused a subpoena duces tecum to be is-
sued by the Clerk of said Court directed to petitioner,
commanding him to produce his books, and caused a
Deputy United States Marshal to serve said subpoena on
said defendant in open court and in plain view of the
jury, and without instructing the jury to disregard the
activity of the prosecutor the Court and Marshall which
was thereafter assigned as prejudicial error [R. Vol. III,
p. 889].
6
Res Judicata, Evidence Pertaining to Counts 3 and 4
Submitted to Jury.
The trial consumed approximately four weeks, during
which time two witnesses, Eustice and Link, were the chief
witnesses for the prosecution, and the former was the gov-
ernment’s expert, and he testified for days on Counts 3
and 4, being for the years 1942 and 1943. At the close
of the prosecutions case, defendant Ormont’s counsel
moved the Court for a dismissal and acquittal of said de-
fendant on each separate count of the indictment, and the
Court granted such motion, and acquitted the defendant
(petitioner) on Counts 2, 3, and 4. Immediately there-
after, the counsel for petitioner made motions to strike the
testimony and evidence of witnesses, Eustice and Link,
pertaining to the years 1942 and 1943, on the ground that
_——
. —l1—
defendant had been acquitted for those two years, and it
would be prejudicial error to leave such evidence before the
jury. Said motions were denied [R. Vol. IV, p. 1374].
The prosecuting attorney used this evidence to obtain a
verdict on Count 1.
7.
Prejudicial Misconduct of Government Attorney.
The prosecuting attorney was guilty of prejudicial mis-
conduct and attempted to, and did excite the prejudices
of the jury, and its resentment to defendant and defend-
ant’s case in his argument to the jury by falsely accusing
defendant’s counsel of “dragging” in extraneous matters
which had nothing to do with the case and of wasting the
time of the Court and jury in nothing but attempts to
confuse [R. Vol. IV, pp. 1459-61], from which we quote
as follows:
“I ask you to consider whether those aren’t the
extra pieces that have nothing to do with this case.
Very confusing, no doubt about it, and if you don’t
separate them you will never get to building the jig-
saw puzzle as it should be built. You will never get
the final picture. You will have so many pieces that
have nothing to do with it that you may give up. [R.
Vol. IV, p. 1459.]
* + * * * * * *
Yes, there is an attempt to confuse, there is an at-
tempt to drag something else in, * * *” [R. Vol.
IV, p. 1460.] (Italics swpplied. )
And further he said:
“T submit to you, ladies and gentlemen, that in Mr.
Eustice’s testimony with reference to the computa-
tions of the amounts shown on the books and records
=
of the Acme Meat Company and the amounts shown
upon the bank records that are undenied and undis.
puted as of this amount, and that every single one
of those other items dragged in have absolutely noth.
ing to do with this because Mr. Eustice did not take
them in as part of the unreported income.
Now I am not going to take your time to point
out and show you all these if questions and assuming
questions—you remember them—this thing went on
for so long that after a while it was perfectly clear
as to what was going on and I think it is perfectly
clear as to why it was going on. And that is another
thing to consider, as I told you, because this case deals
with concealment of money, failure to report money
and an attempt to defeat and evade a tax.” [R. Vol,
IV, p. 1461.] (Italics supplied.)
And thereafter he said:
“And if you just disregard all the irrelevancies, all
of these red herrings—you know what a red herring
is, it is something you draw in here to distract atten-
tion—just forget all about these things that were
dragged in and that have nothing to do with this case,
and what does this case consist of?” [R. Vol. IV, p.
1481.]
The evidence and cross-examination above referred to by
the prosecuting attorney was very pertinent and demon-
strated to the trial court that defendant was innocent of
the charge of Counts 2, 3, and 4, and that the govern-
ment’s expert was merely building up an arbitrary case
based on hypothesis as was stated by the Court:
“But, on Counts 2 and 3, the whole case is built
upon by an arbitrary accounting method used by the
Government agent.” [R. Vol. IV, p. 1370.]
—13—
And again on page 1372 the Court said:
“T think it is not good law, on a criminal charge
against a person, to let an agent, however credible
he is, or sincere he might be, upon a hypothesis to
build up a crime.” [R. Vol. IV, p. 1372. ]
And again he falsely stated to the jury that the books
were in evidence as follows:
“The books speak for themselves. That is why
they were admitted in evidence. If they weren't in
evidence they wouldn’t be in this case.” [R. Vol. IV,
p. 1559.] (Italics supplied. )
The books were not in evidence.
Once more he falsely stated as follows:
“But I ask you, what are those payments? Do you
think they were payments in the business, which Mr.
Ormont earned, as he reported, some $12,000, in the
year 1944; he had such a fine clientele that they gave
him gifts, approximately eight-twelfths of the sum
he reported in 1945; about $220,000.00. Do you be-
lieve he got $220,000.00 in free and voluntary gifts?”
[R. Vol. IV, p. 1470.]
There is absolutely no evidence to this effect anywhere
in the record.
Again the U. S. Attorney misstated the facts as follows:
“And supposing he had the cash? Let’s assume
he had the cash. What did he do with it? Well, in
1943 (italics supplied) (defendant Ormont was ac-
quitted by the Court prior to the argument for the
year 1943) out of the $12,000 he bought about $8000
worth of bonds. You remember that testimony, $8000
worth of bonds. That I assume is intended to show,
or at least you are supposed to draw the inference
iii
[R. Vol. IV, p. 1476] from that, that the unreported
income which Mr. Eustice claims this man accumy.
lated during that year because he bought $8000 worth
of bonds.
Take the $8000 and then look at this Schedule No,
42 which shows how many bonds were actually bought
during that year and see if you don’t find over $50.
000 worth of bonds bought that year—$50,000 worth
of bonds—some such sum. Just look at them. They
are enumerated on the Schedule and it is in evidence.
What is $8000 off of that? It is $42,000. Well,
let’s assume he had $8000 in cash. Does that change
the story or the picture that was presented here by
Mr. Eustice from these records? I submit to you that
it doesn’t change it a single iota, not a single iota.
Any explanation as to the other money that was used
to buy the bonds? No, except some checks were
shown here. Which of the bonds were bought with
those checks? I can’t say. I don’t know.” [R. Vol.
IV, pp. 1476, 1477.] (Italics supplied.)
The foregoing statement was absolutely false and known
by the prosecuting attorney to be false as he had already
established by the government’s expert, Mr. Eustice, from
whom he was entirely relying as to those bonds for the
year 1943 the following:
“A. He purchased United States Government
bonds during 1943 of $51,475.
The Court: How much?
The Witness: $51,475.
Of these bonds he purchased by checks drawn on
his personal bank accounts $32,390.24, and by checks
drawn on his business bank account, that is, Acme
Meat Company, $5000.
| —15—
It was the total of those two items, that is, from
known sources, $37,390.24. The difference between
that and the actual bonds purchased was $14,084.76,
which could not be traced to any known sources and
was not explained by the taxpayer where the source
of the funds came from.” [R. Vol. IT, pp. 539, 540.]
The checks referred to by counsel and the $8000 fully
covered the $14,000 bond item above.
The prosecuting attorney falsely accused petitioner of
falsifying records, although the Court had previously ad-
monished him that such was not the fact. Yet he said to
the jury as follows:
“Mr. Link testified. * * * But the important
thing is that he testified to, and the important thing
that counts in this case because it deals with this at-
tempt to defeat and evade, it deals with the state of
mind of the defendant, it shows you his wilfulness,
his deliberateness, his intent and his purpose, is the
fact that Mr. Ormont told Mr. Link to change certain
figures on those books, raise the figures. That is falsi-
fying his records.” [R. Vol. IV, pp. 14601, 1462. |
(Italics supplied. )
The testimony of Link regarding these changes on the
books was that Mr. Ormont had given personal checks
for additional amounts on purchase price of cattle and
wanted them entered and at the time the evidence was in-
troduced the following remark was made by Mr. Strong
and the following admonition was made by the Court:
“Mr. Strong: It proves that the records are false.
The Court: Government counsel’s statement to the
jury will be disregarded by the jury.” [R. Vol. II,
p. 504.)
—— oe
and on cross-examination with regard to the entering on
the books of these additional items the witness testifieg
that Mr. Ormont had paid the same. We quote as fol.
lows:
“The Court: He actually paid the additional
money ?
The Witness: He paid the additional money with
a check which was drawn.
The Court: He paid the additional $3000?
The Witness: Yes.
The Court: So that the books were accurate when
it said that he spent $3000 more?” [R. Vol. II, p,
492.] (Italics supplied.)
The government counsel also was guilty of misconduct
in the following particulars in that he repeatedly argued
to the jury that the cross-examination of the witness,
Eustice, was based entirely upon hypothetical questions;
that there was nothing in the record to show that the facts
based therein were true, but that all such things were
purely supposition or assumptions and further stating that
the witness, Eustice, did not use a single one of the checks
in evidence in determining the unreported income which
the government claimed in the indictment [R. Vol. IV,
pp. 1457-1458], and further misled the jury in referring
to all the checks and all the evidence in the cross-examina-
tion was brought in merely to confuse the jury and had
absolutely nothing to do with the case. To demonstrate
the falsity of the argument, witness, Eusuce, identified
a check of $186.00, and said he did take it into account
as unexplained income |R. Vol. II, p. 678], and he also
identified a great list of checks that he took into account
as unexplained income [R. Vol. II, pp. 690-691], and an-
at
other check that was taken into unreported income [R.
Vol. Il, p. 693]. Testifying concerning Exhibits S and
T, S being a check for $1,332.27 to reimburse Mr. Or-
mont for the checks embraced in Exhibit T, the witness
said that he did not give credit for said sum as applying
on the purchase of bonds, but instead charged that amount,
and more as unreported income [R. Vol. II, pp. 779-
780]. Eustice admitted that if Exhibit S was used to
purchase bonds, that would change his calculations as to
the amount of unexplained income [R. Vol. II, p. 785).
Although the District Attorney said there was no proof
as to any of these items, the defendant testified positively
that this $1,332.27 was used by him to purchase bonds
[R. Vol. IV, p. 1303]. As to Exhibit Y, Eustice admit-
ted that he did take it into account in determining the un-
reported income [R. Vol. II, pp. 822-823]. Yet the Dis-
trict Attorney told the jury that Eustice didn’t take any
of these checks—not a single one of them—into account
and that there was no evidence that any of them were
used to purchase bonds. Yet the undisputed testimony of
appellant that these checks in Exhibit Y were used to pur-
chase bonds [R. Vol. IV, p. 1300]. As to Exhibit Z,
Eustice admitted that he gave no credit for that check on
the purchase of bonds, but charged the entire amount of
the bonds to unexplained income and did use it in the cal-
culation [R. Vol. II, pp. 793-794]. Mr. Ormont testified
positively that this check was used to buy bonds [R. Vol.
IV, pp. 1300-1321]. U. S. Counsel told the jury that all
the government had to prove was a substantial amount
of money as unreported income.
“If we prove a substantial amount of money, it is
just as good as proving the whole figure.” [R. Vol.
IV, p. 1480.]
—18—
8.
Erroneous, Confusing and Conflicting Instructions
The Court erred in the following charge to the jury:
“In the event that you find that either defendant as
to the particular count failed to report his true in.
come in the amount substantially as claimed by the
Government for the calendar year 1944, then as mat.
ter of law the tax for the calendar year 1944 would
have been substantially more than paid by such de
fendant for the calendar year 1944.” [R. Vol. IV,
p. 1578.] (Italics ours.)
Government counsel argued to the jury that all that was
necessary for the government to prove was a substantial
amount of money.
“Tt is just as good as proving the whole figure.”
[R. Vol. IV, p. 1480.]
He also argued that $11,000 was enough [R. Vol. IV,
pp. 1551-1552]. The indictment charged $24,000 which
is the amount which must be proved. The United States
Court of Appeals admitted [R. Vol. V, p. 1684] that the
instruction was erroneous, and should have used the word
“alleged” rather than “claimed.” The Court also errone-
ously charged “books and records” are required to be kept
under the Internal Revenue regulations, whereas the regu-
lation says “books or records,” and then went on and er-
roneously said:
“If ‘no books or records’ of the type required dy
law are kept, a fiscal year return cannot be filed, but
the sums ‘earned’ must be reported upon the calen-
dar year return for the year in which they were
‘earned’.” [R. Vol. IV, p. 1583.] (Italics supplied.)
Defendant assumed that government’s counsel had cor-
rectly quoted the regulation, hence no exception was taken.
adiiiien
The Court also instructed :
“A taxpayer who is on a cash basis need not re-
port any income on his return that may be due him
until he actually receives the said cash income.” (Ital-
ics supplied.) [R. Vol. IV, p. 1584.]
The Court erred in giving the following instruction :
“The law under which these defendants were in-
dicted in substance provides as is applicable to this
case, that any person who wilfully attempts im any
manner to evade or defeat any tax shall be guilty
of acrime. The pertinent portion of the statute pro-
vides as follows:
“‘Any person required under this chapter to
account for, and pay over any tax imposed by
this chapter, who wilfully fails to truthfully
account for any and pay over such tax, and any
person who wilfully attempts in any manner to
evade or defeat any tax imposed by this chap-
ter or the payment thereof, shall in addition to
other penalties provided by law, be guilty of a
felony and, upon conviction thereof,’ shall be
punished in the manner provided by law.” [R.
Vol. IV, pp. 1574-1575.] (Italics supplied. )
The Court erred in giving the following instruction:
“There has been placed in evidence the income tax
return for the fiscal year May 1944 to April 1945,
which was filed by the defendant on May 24, 1945,
In this connection, it is part of your functions to de-
cide whether the defendants actually had some in-
come-producing enterprise, or enterprises, from which
they derived the sum of roughly $71,000, which they
reported on the fiscal year basis in that return. In
this connection, you must determine what enterprise,
if any, the defendants engaged in besides the opera-
tion known as the Acme Meat Company, if you de-
—20—
cide they were engaged together in the Acme Meat
Company, and whether the money was received as in-
come with reference to some other transaction not
part of the Acme Meat Company sales and operations,
“Ultimately you are to decide in this connection,
among other things, whether the $71,000 odd dollars
reported on the fiscal year return was or was not part
of the income derived from the sales made as part
of the operations of the Acme Meat Company, and
whether that money, or a substantial part of that
money, was in fact received by each of of the defend-
ants as part of his income from the Acme Meat Com-
pany operations; and if not, then whether or not
books and records were kept of such other eréerprise
as required by the statute.
“The statute in that connection, Section 41 of the
Internal Revenue Code, reads as follows:
“<The net income shall be computed upon the
basis of the taxpayer’s annual accounting period
(fiscal year or calendar year, as the case may
be) in accordance with the method of accounting
regularly employed in keeping the books of such
taxpayer; but if no such method of accounting
has been so employed, or if the method employed
does not clearly reflect the income, the computa
tion shall be made in accordance with such
method as in the opinion of the Commissioner
does clearly reflect the income. If the taxpay-
er’s annual accounting period is other than a
fiscal year as defined in section 48 or if the tax-
payer has no annual accounting period or does
not keep books, the net income shall be computed
on the basis of the calendar year.’” [R. Vol.
IV, pp. 1581-1583.] (Italics supplied.)
Objections were duly made and exceptions taken to each
of the foregoing instructions.
= =
E.
REASONS RELIED ON FOR THE ALLOWANCE
OF THE WRIT.
1.
The Court of Appeals has decided important questions
of federal law which has not been, but which should be
settled by this Court as follows:
a. The Court of Appeals decided that where, during
the impanelment of a jury the government attorney made
some reference to an O. P. A. case, but no party challenged
the jury or any member thereof on that ground, but con-
clusively waived all objections and challenges to the jury,
and allowed it to be duly sworn to try the defendants,
and after it was sO sworn, the Court, without the consent
of the defendant (petitioner ) discharged the jury on
motion of a co-defendant, which motion was based en-
tirely upon the said reference by the United States at-
torney, that such discharge of said jury and the impanel-
ment of another jury over the objection of the petitioner
did not constitute placing the petitioner twice in jeopardy
within the meaning of the Fifth Amendment to the
Constitution of the United States;
b. The Court of Appeals incorrectly decided that the
circumstances above set forth constituted ‘manifest neces-
sity” or “legal necessity” for the discharge of the said -
jury;
c. The Court incorrectly decided that the circumstances
above set forth constituted “urgent circumstances or an
emergency which by diligence and care could not have been
averted and which would thwart the administration of
justice,” and that the Court was vested with discretion
—22—
to discharge the jury without petitioner’s consent, without
abridgment of the constitutional guarantee.
The opinion of the United States Court of Appeals,
Ninth Circuit, lays down a rule of law with respect to
determination of double jeopardy that puts it entirely in
the hands of the trial judge as to whether or not a de.
fendant has been once in jeopardy to the end that the
yard stick laid down in the well known case of United
States v. Perez, 9 Wheat. (22 U. S.) 579, 6 L. Ed. 165,
and followed for more than 60 years, is meaningless
and a defendant is placed at the whim of the trial court
in never knowing whether he will be arbitrarily deprived
of the jury sworn and accepted by the parties to a crimi-
nal action, and in which he thereby has a vested right,
and the right of a defendant under the Fifth Amendment
to immunity against being twice placed in jeopardy is nul-
lified. (Hartzell v. U. S., 72 F. 2d 569, cert. den., 293
U. S. 621, 55 S. Ct. 216-217; Craig v. U. S., 81 F. 2d
8.6 (C. C. A. Cal.), 83 F. 2d 850; 50 Corpus Juris
Secundum, 927, note 5, and authorities cited.) Under the
guise of “urgent necessity” the opinion of the United
States Court of Appeals has held that even a ground of
challenge to a juror known by a defendant before the jury
is sworn, but never asserted, and, therefore, conclusively
waived may thereafter be used as an “urgent necessity”
for discharging the whole jury, even though no showing
of prejudice by reason of such cause of challenge is shown.
These matters of fundamental constitutional law deserve
pronouncement by this Court.
—23—
2.
That the Court of Appeals has decided questions involv-
ing the constitutional rights, privileges and immunities of
petitioner under the Constitution of the United States in
a way probably in conflict with applicable decisions of this
Court; it has, by its opinion, announced rules of law which
tend to abrogate and nullify the rights, privileges and im-
munities of this petitioner under the Fifth Amendment to
the Constitution. It has so far departed from the accepted
and usual course of judicial proceedings and so far sanc-
tioned such a departure by a lower Court, as to call for
an exercise of this Court’s power of supervision. (U. S.
v. Perez, 9 Wheat. 579, 6 L. Ed. 165; Wade v. Hunter,
336 U. S. 684; U. S. v. Oppenheimer, 242 U. S. 85, 61
L. Ed. 161, 37 Sup. Ct. Rep. 68; U. S. v. Monia, 317
U. S. 424, 87 L. Ed. 376; Lonergan v. U. S., 88 F. 2d
591, cert. granted, 58 S. Ct. 18, 302 U. S. 663, 82 L. Ed.
512, reversed 58 S. Ct. 430, 303 U. S. 33; Johnston v.
Zerbst, 304 U. S. 458; Glasser v. U. S., 315 U. S. 60;
Von Moltke v. Gillies, 332 U. S. 708; Mills v. U. S., 164
U. S. 644, 17 S. Ct. 210, 41 L. Ed. 584; Spies v. LS he
317 U. S. 492.)
: oe
The decision and opinion of the Court of Appeals in
this case has decided important questions of federal con-
stitutional law in a manner in conflict with decisions of
other Courts of Appeals on the same matter, which con-
stitutional questions have not been, but because of their
fi
extreme importance to all citizens, taxpayers, attorneys
and accountants of these United States, and to the goy-
ernment should be settled by decision of this Court. The
decision is in conflict with LaLance & Grosjean Mfg. Co,
v. Haberman Mfg. Co. (C. C. N. Y.), 87 Fed. 563; Me-
Knight v. U. S. (6th), 115 Fed. 972, 54 C. C. A. 358; In
re Food Conservation Act, 254 Fed. 893; Nicola v. U. §.
(3d), 72 F. 2d 780; Fina v. U. S., C. C. A. Colo., 46 F
2d 643; U. S. v. Andolschek (2d), 142 F. 2d 503; McCrea
v. Jackson (6th), 148 F. 2d 193; Kinard v. United States,
68 App. D. C. 250, 96 F. 2d 522, 523; Kreiner v. U. S.
(2d Cir.), 11 F. 2d 722, 731.)
If the opinion of the Court of Appeals is allowed to
stand:
a. All clients must communicate with their attorney, at
their peril, where an agent of the attorney is present;
b. A new precedent will be established depriving the
client of his constitutional and common law right to have
privileged communications between himself and his attor-
ney, merely because the attorney needed and employed and
expert (C. P. A.) to assist him in giving advice and per-
forming services for the client;
c. It will mean that every C. P. A. performing tax
services for a citizen where employed by an attorney, im-
mediately becomes an involuntary “‘stool pigeon” for the
government.
S—7~7—V~X“~7~_~ meee
) —25—
Wherefore, your petitioner respectfully prays that a writ
of certiorari be issue out of and under the seal of this
Honorable Court directed to the United States Court of
Appeals for the Ninth Circuit commanding that court to
certify and send to this court for its review and determina-
tion on a day certain to be therein named, the full pro-
ceedings in this case, Numbered 11666, Sam Ormont, Ap-
pellant, v. United States of America, Appellee, and that
said judgment of the United States Court of Appeals,
Ninth Circuit, may be reversed by this Honorable Court
and that your petitioner may have such other and further
relief in the premises as to this Honorable Court may seem
meet and proper, and your petitioner will ever pray.
WILLIAM JENNINGS BRYAN, JR.,
SAM ORMONT,
Petitioner,
By Day B. Rosnetr and
BENJAMIN Kospon,
Attorneys for Petitioner.
IN THE
Supreme Court of the United States
October Term, 1949.
BE nsctescticien
SaM ORMONT,
Petitioner,
VS.
Unitep STATES OF AMERICA,
Respondent.
BRIEF IN SUPPORT OF PETITION FOR WRIT
OF CERTIORARI.
I.
The Opinion of the Court Below.
The opinion of the Court of Appeals for the Ninth Cir-
cuit has not yet been officially reported.
II.
Jurisdiction.
1. The writ of certiorari is applied for under Rule 38
of this court and jurisdiction is invoked under 28 U. S. C.,
Section 1254, Subdivision 1, and is the proper remedy.
Ex parte Lau Ow Bew, 141 U. S. 583.
2. The opinion and judgment of the Court of Appeals
for the Ninth Circuit was filed on June 3, 1949 [R. Vol.
V, pp. 1707-1708]. Petition for rehearing was timely
filed and denied on August 1, 1949 [R. Vol. V, p. 1710].
—28—
III.
Statement of the Case.
A full statement of the case has been given under “A”
in the petition for writ of certiorari, supra, and in the in-
terest of brevity, is not here repeated.
IV.
Specification of Errors.
The Court of Appeals Erred:
(a)
First. In holding that the petitioner’s constitutional
rights against twice being placed in jeopardy were not vio-
lated.
Second. In holding that the trial court had the right
to discharge the first jury without the defendant’s con-
sent after the jury was duly impaneled, accepted and
sworn, merely because while the jury was being impaneled
and before it was so passed, accepted and sworn, the U. S.
attorney had merely made reference to an O. P. A. case,
but no challenge to the panel or to any of the jurors was
interposed by any of the parties, including the judge, on
the ground of such reference, but all the parties with full
knowledge of said statement accepted the jury, thereby
conclusively waiving all grounds of challenge.
Third. In holding that the trial court under the cir-
cumstances above delineated had the right to again place
the defendant in jeopardy before another jury, where
proper objection to so doing had been previously made,
without violating the Fifth Amendment to the Constitu-
tion of the United States.
7 —29—
(b)
First. In holding that the petitioner’s constitutional
right against being compelled to be a witness or furnish
evidence against himself was not violated.
Second. In holding that where petitioner was sub-
poenaed and pursuant thereto was interrogated by the
Grand Jury respecting his profits for the year 1944 and
illegal payments made for slaughtering livestock he was
not immune from prosecution respecting his income and
income tax under any immunity statutes, even though the
government got its “pound of flesh” or its quid pro quod.
Third. In holding that communications to a Cr a
who was employed by and as the agent of the attorney
for the defendant to assist said attorney in preparing de-
fendant’s income tax reports, were not privileged.
Fourth. In holding that the cefendant’s constitutional
right against being compelled to be a witness against him-
self was not violated where the trial court intimated to
the U. S. attorney in the presence of the jury that the
U. S. attorney might resort to the processes of the Court
to compel the defendant to produce his books and pursuant
thereto the U. S. attorney caused the Marshal to serve a
subpoena duces tecum on the defendant in open court in
plain view and presence of the jury and where no ad-
monition to the jury to disregard such error and conduct
was given.
(c)
First. In holding that the trial court properly refused
to grant a motion to strike the testimony of witnesses
pertaining to counts of the indictment on which the court
had previously acquitted the defendant.
—30—
Second. In holding that the acquittal by the court of
the defendant for Counts 3 and 4 for prior years, 1942
and 1943 did not constitute res judicata so as to prevent
the prosecution from using said evidence for determining
wilfulness in the year 1944.
(d)
First. In holding that the activities of the U. S. at.
torney were merely subject to criticism and not preju-
dicial misconduct.
(e)
First. In holding that although instructions were con-
flicting, confusing, and erroneous that no prejudice was
suffered.
Second. In holding that the giving of an erroneous in-
struction was cured by giving a conflicting correct instruc-
tion.
Third. In holding that the trial court did not err in
failing to instruct the jury on his own motion that they
might find the defendant under the indictment guilty of
a misdemeanor under subdivision A of Section 3616 of
Title 26, U. S. C., and also Section 145A of the same
book.
Fourth. In holding that the trial court did not err
in giving to the jury an instruction which referred to a
statute merely by number and not instructing the jury as
to the substance of such statute.
Fifth. In holding that the trial court did not err in
instructing the jury that they might find the defendant
guilty if they found that he had attempted to evade his in-
come tax “in any manner” and not confining said instruc-
tion to the manner alleged in the indictment.
ee
V.
ARGUMENT.
1.
Double Jeopardy.
The petitioner was placed in double jeopardy in violation
of his constitutional rights when the trial court, without
the consent of the petitioner, and after all objections to
the panel and to the individual jurors had been conclusively
waived by all parties and the jury accepted and sworn,
thereafter made an order dismissing and discharging such
jury merely because, during the course of impanelment of
the jury the prosecuting attorney had made reference to
an O. P. A. case.
The Court of Appeals in its own decision correctly held
that neither petitioner, nor his counsel, consented to the dis-
charge of the jury and had not waived the constitutional
rights of the defendant to plead prior jeopardy.
See:
7 Corpus Juris Secundum 897, 922, Note 50;
Glover v. Bradley, 233 Fed. 721;
United States v. Newman, 25 F. 2d 357 (reversed
on other grounds, 28 F. 2d 1684) ;
Bounifield v. Thorp, 71 Fed. 924 (appeal dismissed,
83 Fed. 1002) ;
U. S. v. Watson, 28 Fed. Cas. No. 16651;
Price v. McComish, 22 Cal. App. 2d 92 at 97-99
(even though the stipulation was in open court
in the presence of his client) ;
Davidson v. Gifford, 100 N. C. 18, 6 S. E. 718;
Holt v. Statc, 160 Tenn. 366, 24 S. W. 2d 886;
wfifine
Jacobs v. State, 85 Tex. Crim. 505, 213 S. W. 628;
Redsted v. Weiss, 71 Cal. App. 2d 63;
State v. Crain, 22 Mo. 54, 100 S. W. 422;
Vol. 1, Thornton on Attorneys-at-Law, page 386,
Even consent of accused’s counsel to the discharge of
the jury after it has been impaneled and sworn is not
binding on the accused and does not prevent his reliance
on the plea of further jeopardy.
Cliett v. State, 167 Ga. 835, 147 S. E. 35 ( 39 Ga.
App. 510, 147 S. E. 724);
Hipple v. State, Tex. Crim. 191 S. W. 1150, I. R.
A. 1917(d) 1141, 22 C. J. S. 400 (Note 67).
As was said on page 386 of Volume I, Thornton on Attor-
neys-at-law :
“An attorney certainly cannot bind his client by
unauthorized acts which amount to a surrender in
whole or in part of any substantial right.”
To the same effect, see:
2 Ruling Case Law, p. 995;
3 Cal. Jur. 667 and authorities there cited.
Silence of the accused or his attorney does not constitute
consent to the discharge of a jury or a waiver of consti-
tutional inhibition against a second jeopardy for the same
offense.
Barrett v. Bigger, 17 F. 2d 699, cert. den. 274 U.
S. 752;
United States v. Watson, 28 Fed. Case No. 16651;
State v. Stiff, 117 Kan. 243, 234 Pac. 704;
Commonwealth v. Gray, 249 Ky. 36, 60 S. W. 2d
133.
i
EE
~
16 Corpus Juris 255, in which it is said:
“But the mere silence of a defendant, or his fail-
ure to object or to protest against an illegal discharge
of the jury before verdict, does not constitute a con-
sent to such discharge or a waiver of the constitu-
tional inhibition against a second jeopardy for the
same offense.”
The Court of Appeals said:
“The real issue presented is whether or not there
was a legal necessity supporting the discharge of the
first jury.” (Italics supplied.) [R. Vol. V, p. 1653. ]
The law established by this Honorable Court by an earlier
case, namely, United States v. Perez, 9 Wheat. 579, 6
L. Ed. 165 and which has been followed throughout the
course of the years is that the only time a trial court has
authority to discharge a jury before verdict is where:
“There is a manifest necessity for the act, or the
ends of public justice would otherwise be defeated.”
(Italics supplied.)
and further that:
“The power ought to be used with the greatest
caution, under urgent circumstances, and for very
plain and obvious causes.”
Wade v. Hunter, 336 U. S. 684;
Cornero v. U. S. (9th), 48 F. 2d 69.
Wharton’s Criminal Law (12th Ed.), Section 395, lays
down the rule as follows:
“The only causes for which a jury duly impaneled
and sworn to try an accused on a criminal charge can
be discharged by the court without a verdict are (1)
consent of the prisoner, (2) illness of (a) one of
—
the jurors, (b) the prisoner, (c) the court, (3) ab.
sence of a juryman, (4) impossibility of the jurors
agreeing on a verdict, (5) some untoward accident
which renders a verdict impossible, and (6) extreme
and overwhelming physical or legal necessity.”
In the case at bar there was no “manifest necessity” for
discharging the jury, there was no probability that the
ends of public justice would otherwise be defeated, there
was no probability that it would be impossible for the first
jury to agree upon a verdict, there was no untoward ac-
cident which rendered a verdict impossible, there was no
extreme or physical or legal necessity for discharging the
jury, and in addition thereto, there was no consent of the
defendant, Ormont, no illness of a juror or of the defend-
ant or of the court, no absence of any juryman. On the
contrary, the court discharged a jury, which had been ac-
cepted by all parties and sworn long after the claimed
reason had occurred. The only time the court would have
been authorized to discharge the jury or for any of the
parties to have objected to or challenged any juror, or
the whole panel, would have been before it was accepted
and sworn. No such objection or challenge was interposed
or intimated by any party, but on the contrary, all parties
accepted the jury as constituted after full knowledge of
the fact and ground which was the basis for the belated
motion of Mr. Katz. By so passing and swearing the
jury all parties and the court thereby conclusively waived
any and all objections and challenges to the jury, either
as a whole or individually. (Italics supplied.)
See 35 Corpus Juris 346, Section 404%, where it is
stated:
“It is well settled that a failure to challenge or
object operates as a conclusive waiver if the ground
———
: 5
of objection is known to the party at the time the
jury is impaneled, * * *” (Italics supplied. )
Citing:
U.S. v. Smith, 27 Fed. Cas. No. 16,341, 1 Sawy. 277,
and cases from Ala., Ark., Cal., Conn., Ga., Ill. Ind.,
Iowa, Kan., Ky., La., Me., Md., Mass., Mich., Minn.,
Miss., Mo., Nebr., Nev., N. H., N. J., N. M., N. Y., Ohio,
Okla., Pa., S. C., S. D., Tenn., Tex., Utah, Va., W. Va.,
Wis., England, and in Bac. Abr. “Juries” 365 it is said:
“No juror can be challenged without consent after
ne hath been sworn either in criminal or civil cases,
unless it be for some cause which happened since he
was sworn.”
See also 50 Corpus Juris Secundum 1009, Section 251 and
many authorities there cited.
Carruthers v. Reed (C. C. A. Ark.), 102 F. 2d 933.
cert. den. 307 U. S. 643, 83 L. Ed. 1523;
Welsing v. U. S., 218 Fed. 369 (134 GC. &. 177);
State v. Wilson, 204 La. 24, 145 2d 873;
State v. Dedge, 101 N. J. L. 131, 127 A. 139;
Monday v. State, 160 Tenn. 258, 23 S. W. 2d 656;
McKensie v. State (Tex. Crim.), 11 S. W. 2d 578,
111 Tex. Crim. 299.
It is reversible error for a court to exclude a juror or
discharge a jury after it has been sworn for a cause which
merely affords a ground of challenge which the parties
have waived.
O’Brian v. Com., 9 Bush. (Ky.) 333, 15 Am. R.
715;
Underwood v. State, 179 Ala. 9, 60 S. 842;
Walker v. State, 153 Ala. 31, 45 S. 640;
ett a I
—
Van Blaricum v. People, 16 Ill. 364, 63 Am. D.
316;
Crow v. State, 89 Tex. Cr. 149, 230 S. W. 148:
Black v. State, 9 Tex. App. 328;
Montague v. Com., 10 Gratt. (51 Va.) 767;
Cornero v. U. S. (9th), 48 F. 2d 69, 74;
Jackson v. Superior Court, 10 Cal. 2d 350, 74 P.
2d 243;
State v. Willie, 130 La. 454, 58 So. 147;
Cooley’s Constitutional Limitations, 6th Ed., 399,
Thompson & Merriam on Juries, Sec. 273;
Bishop, New Crim. Section 1014, 1015;
State v. Slorah (Me.), 106 Atl. 768, 4 A. L. R. 1256,
1260, where it is said as follows:
“Practically all authorities, with but few excep-
tions, agree that jeopardy begins when a respondent
is put upon trial before a court of competent juris-
diction, upon an indictment sufficient in form and
substance to sustain a conviction, and the jury has
been charged with his deliverance. The jury is said
to be charged with his deliverance when they have
been impaneled and sworn.” (Italics supplied.)
A jury once duly impaneled and sworn becomes a part
of the tribunal in which the defendant has a vested right
to that specific jury of which right he cannot be divested
without his consent.
People v. Young, 100 Cal. App. 18;
Hartzell v. United States, 72 F. 2d 569, cert. den.
a5 S. Ce. 216;
Craig v. United States, 81 F. 2d 816 (C. C.A.
Cal.), 83 F. 2d 850;
50 Corpus Juris Secundum 927, Note 5, and au-
thorities cited.
aaa
The decision of the Court of Appeals was based upon
its assertion that the dismissal of the jury was a matter
of “discretion” on the part of the trial court. The first
error in that premise is that the trial court did not pretend
to exercise “discretion,” but based its ruling on the er-
roneous premise that jeopardy had not attached, as the
judge in ruling on petitioner’s motion for dismissal and
plea of former jeopardy said:
“The Court: I was under the impression that the
motion was made on behalf of both defendants. Even
so, in considering the matter on the merits, ' do not
think the motion for a once in jeopardy plea is well
taken. While the jury was sworn, there was not even
a witness sworn, no opening statement to the jury,
and there was nothing that the jury could decide it
on. There was no evidence, no presentation of any
kind, and J think there has to be more than the mere
swearing of a jury to place a defendant once in
jeopardy. The motion will be denied.” [R. Vol. I,
p. 304.] (Italics supplied. )
_—
The court was not called upon to exercise any discretion.
Petitioner never at any time so much as intimated that
the jury, in which he then had a vested right, should be
discharged or that the court should pass upon the propriety
of discharging same. The mere fact that Mr. Katz, as
attorney for Mr. Himmelfarb only, long after he had
waived all objections to the jury made a motion in behalf
of his client to discharge the jury could not form the basis
for the court to discharge the jury so far as Mr. Ormont
was concerned. There was nothing to prevent the court
from proceeding to trial before that jury so far as Mr.
Ormont was concerned, and, in fact, as finally developed,
there should never have been a joint trial as Mr. Ormont
was acquitted on Count 2 and Mr. Himmelfarb was ac-
a
quitted on Count 1, and those were the only Counts jp
which both were charged and the final result was that Mr,
Ormont alone was tried on Count 1.
Lastly, the Court of Appeals was in error in holding
that under the circumstances of this case, the trial court
was vested with any discretion. The decision of the Court
of Appeals, if allowed to stand, extends the exception to
the constitutional provision against being twice placed in
jeopardy and adds an exception that never heretofore has
been applied, and one which, if affirmed, will in the future
constitute an authority which practically nullifies the con-
stitutional inhibition, and leaves the matter of double
jeopardy purely a matter of discretion rather than a con-
stitutional right.
The decision of the Court of Appeals in this case is
not in consonance with its decision of Cornero v. U. S.,
49 F. 2d 69, wherein it held that the general rule is that
where a jury had been impaneled in a criminal case, jeop-
ardy had attached, and in such case the plea of former
jeopardy should be sustained. And that the only excep-
tion to such a plea is where “urgent necessity” exists or
“in order that the ends of public justice may not be
defeated” the Court may discharge a jury without the
consent of the defendant, but then the Court went on to
state:
“It is true that there is language used by the
courts in the foregoing cases which, divorced from
its context and applied as authority for the general
proposition, would sustain the rule advocated by
the government in the case at bar. We are here
dealing, however, with a fundamental right of a
person accused of crime, guaranteed to him by the
Constitution, and such right cannot be frittered away
or abridged by general rules concerning the wm-
portance of advancing public justice,”
| —39—
2.
Petitioner Was Immune From Prosecution.
Petitioner having been subpoenaed before the Grand
Jury and pursuant thereto having been interrogated with
respect to having made profits during 1944 which of
course would be directly related to his income and income
tax and having also been interrogated with respect to
having made over-payments for slaughtering in violation
of the O. P. A. and which under the law would not have
been properly deductible from his income it follows that
he was made immune thereby from being prosecuted for
any crime under any statute, including the charge em-
braced in the indictment in this case, and this whether
or not his testimony before the Grand Jury brought forth
any incriminating answers since it was possible that the
questions might have brought forth incriminating an-
swers and the jury could have asked him questions that
would have been incriminating. This was so held in
United States v. Adolschek (2d), 142 F. 2d 503, 506;
United States v. Monia, 317 U. S. 424, 87 L. Ed. 376;
United States v. Armour & Co., 64 F. Supp. 855 and
authorities cited.
The opinion of the U. S. Court of Appeals is in
conflict with the following authorities that hold that
where a witness is so compelled to testify before a
Grand Jury he is immune from prosecution under the
particular provision of law being investigated but under
every other statute and law.
United States v. Andolschek (2d), 142 F. 2d 503 ;
Counselman v. Hitchcock, 142 U.S. 34;
Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524,
29 L. Ed. 746.
—40—
In the case of United States v. Mona, supra, this Hon-
orable Court granted defendant immunity even though
he did not claim the privilege against incrimination al-
though in the case at bar the prosecuting attorney stated
that the petitioner and the other witnesses didn’t sign
waivers of immunity (R. Vol. I, p. 276).
The United States Court of Appeals reached its con-
clusion by the simple process of omitting the facts in
the opinion (Vol. V, pp. 1662-1663) as to the discus-
sion had before the Grand Jury with respect to the
profits made by the defendant. It is immaterial whether
the testimony given by Ormont before the Grand Jury
was remote as it covered the subject matter upon which
the government could have interrogated the defendant,
and even using the yard stick laid down in the dissenting
opinion in the Monia case, supra, which is by far a more
stringent norm than that set by the majority, the de-
fendant still ought to be entitled to immunity for the
reason that the government got its quid pro quod from
the Ormont testimony for the reason as appears from
the top of page 1663, R. Vol. V, of the U. S. Court
of Appeal’s opinion, that King and the Southern Cali-
fornia Meat Company entered pleas of guilty to their
indictment. We quote from the case of United States
v. Monia, 317 U. S. 424, 87 L. Ed. 376 as follows:
“The legislation involved in the instant case is
plain in its terms, and on its face, means to the
layman that if he is subpoenaed, and testifies, he
is to have immunity. Instead of being a trap for
wail
the government, as was the original act, the statutes
in question, if interpreted as the government now
desires, may well be a trap for the witness. Con-
gress evidently intended to afford government of-
ficials the choice of subpoenaing a witness and putting
him under oath with the knowledge that he would
have complete immunity from prosecution respecting
any matter substantially connected with the trans-
actions in respect of which he testified, or retaining
the right to prosecute by foregoing the oppor-
tunity to examine him.”
As was said in the Andolschek case, supra, where the
defendant was subpoenaed and testified regarding the
withdrawal by permittees from his warehouse of alcohol,
the Court quotes from Section 3115 (a), Volume 26,
U.S.C.A., Internal Revenue Code then said:
“No doubt, as the prosecution says, this is directed
against “permittees”; but when Andolschek allowed
“permittees” to withdraw “alcohol subject to tax,”
which they could not have done without his con-
nivance, he abetted them in violating section 3115
(a), and by so doing made himself a principal in
their crime. * * * Andolschek could not be forced
to testify to that conduct unless he was immune not
only from prosecution under Section 3115 (a), but
under every other statute, Section 4047 (e) included.”
(Italics supplied. )
—42—
3.
Privileged Communications.
The U. S. Court of Appeals completely ignored the
rights of the defendant to be entitled to the privilege
existing between attorney and client. Its decision js
not only in contravention of the common law, but is
likewise in conflict with the case of Lalance & Grosjean
Mfg. Co. v. Haberman Mfg. Co., 87 Fed. 563 (C. C.
N. Y.), where the Court held as follows:
“
. . » questions of science and art are frequently
so mingled with questions of patent law, in con-
troversies arising upon some patent, that a party
substantially retains an expert to conduct the case
almost as associate counsel with the solicitor. In
such case it would seem fair to apply the same rule
to the expert as to the counsel.”
Then the Court said:
“It does, however, appear that he was retained by
plaintiffs as an expert to assist them in the presenta-
tion of their case. As such witness did seem to
come within the privilege suggested in the former
memorandum—as similar to that of counsel.” (Ital-
ics supplied. )
Rule 26 of the Federal Rules of Criminal Procedure,
18 U. S. C. A. (following Sec. 687) provides:
“The admissibility of evidence and the competency
and privileges of witnesses shall be governed, except
when an act of Congress or these rules otherwise
provide, by the principles of the common law as
they may be interpreted by the courts of the United
States in the light o1 reason and experience.”
—3—
The Common Law is laid down in Walshon v. Stainton,
71 Reprint 357, 2 Hem & M. 1, where the Court held:
“The principle is established that where a person
has occasion to employ a solicitor, and the solicitor,
in order to enable himself to advise on the matter,
calls in some other person to assist him and to give
his opinion, such communications are as much priv-
ileged as if they came from the solicitor himself.
In such a case the person called in (here it was an
accountant) is pro hac vice the solicitor’s clerk.”
(Italics supplied. )
To the same effect:
& Wigmore on Evidence, (3rd Ed.) Section 2301,
p. 584;
Also see
70 C. J. 501, Section 538.
Hawes v. State, 88 Ala. 37, 7 So. 302.
As a matter of fact, the witness, Malin, being a C. P. A.
(R. Vol. 3, p. 1091), the Tax Court and the Treasury
Department endowed the C. P. A. with the same priv-
ileges as a lawyer under their rules (see Rule 2 “b”
United States Code Annotated, Title 26 I. R. C., Sec.
3200 to end, p. 603). The Tax Court recognizes that
an accountant who practices before them has the same
privileges as a lawyer, including privileged communica-
tions (see Internal Revenue Bulletin, Volume XV-2,
July-December, 1936, p. 341). Also, see regulations
for the recognition of agents and attorneys, made by
the Secretary of the Treasury, under authority of Statute
1844, July 7, U. S. Code, Title 5, Section 261, Section
2, paragraph e:
“An agent enrolled * * * shall have the same
rights, powers, and privileges and be subject to the
same duties as an enrolled attorney, —
oe
It is to be noted that Mr. Malin, the C. P. A., was
retained by Mr. Mirman, the then attorney for the de
fendant, who specifically hired Mr. Malin for the purpose
of securing help from Mr. Malin in order to work out
some income tax matters for Mr. Ormont (see R. Vol,
III, p. 1094). (Italics ours.)
It is common knowledge, of which the Court can take
judicial note, that by reason of the maze of complications
in which the Income Tax Law is enshrouded—that most
of the taxpayers require the assistance of an “expert”
in figuring out and reporting their tax—and further that
Certified Public Accountants enter the field of such ex-
perts far more than attorneys—and usually an attorney
has to call upon such accounting expert to assist him in
solving the income tax accounting problems of his clients,
That was the exact situation in this case. Petitioner’s
attorney, Mr. Mirman, was not skilled in said tax law
and “required the assistance of an expert” and accordingly
said attorney—not Mr. Ormont—employed Mr. Malin
to assist him. Therefore, the reasons and logic employed
in patent case (Lalance, etc., v. Haberman, 87 Fed. 563)
apply in all respects to this case.
No additional cases are required to be cited for the
rule that the privilege communications prevails between
the client and the enrolled agent, or the agent of the
attorney, which in this instance happens to be a C. P. A.
To hold as the Court of Appeals held that the privilege
was waived merely because:
“Malin’s presence was not indispensable in the
sense that the presence of the attorneys secretary
may be. It was a convenience which, unfortunately
for the accused, served to remove the privilege char-
acter of whatever communications were made.” (R.
Vol. V, p. 1672.)
—_—
- =
is to disregard the common law, the law as set forth by
all the text book writers like Wigmore and Wharton,
and to disregard the decisions laid down by the several
states of the United States, and to disregard the opinion
as laid down in the Lalance case, supra, and to create
and establish a rule of law that is not in consonance
with the reason for the rule—violates the purpose for
which the rule was created—and which rule the U. S.
Court of Appeals concedes to be the law of privilege,
namely: “secure the client's subjective freedom of con-
sultation” (p. 18 of the opinion of the Court of Appeals)
and to “condone a dangerous laxity on the part” of the
Courts. There is absolutely no basis, in fact or in law,
warranting a conclusion reached by the Court of Appeals,
and is demonstrative of the fact that the Court of Appeals
was more interested in affirming the judgment than it
was in protecting the rights of the defendant or estab-
lishing sound precedents of law for the reason that a
-sading of the opinion clearly indicates that while numer-
ous cases are cited in favor of the defendant in each
instance the Court of Appeals extended previous exist-
ing law just one step farther by throwing the burden on
the defendant in each and every instance to show that
the defendant was not prejudiced by the error complained
or to create law that does not exist.
If indispensability is the basis for the test of privilege,
then is it not true that whether privilege exists can
never be determined in advance and until the trial cour.
exercises its discretion? We then become a government
of men and not of laws, and a client or a lawyer can
never be certain as to when the privilege exists or is
waived.
elifiion
4.
Compelling the Defendant to Be a Witness Against
Himself in Violation of the Fifth Amendment of
the Constitution.
It is error to request a defendant in a criminal case
in the presence of a jury to testify or produce documents
against his will, although he makes no objection.
McKnight v. United States, 6th, 115 Fed. 972,
927;
14 Encyclopedia of Evidence 646, 647;
State v. Merkley, 74 Iowa 695, 39 N. W. 111;
Gillespie v. State, 5 Okla. Crim. 546, 115 Pac. 620
(Ann. Cas. 1912, p. 259).
In the Gillespie case, supra, the Court said:
“When such a demand is made, a defendant must
accept the alternative of either producing the letters,
and thereby incriminating himself, or of having the
jury place the strongest possible construction against
him upon his failure to do so. If this can be done,
the very life, body, and soul of the Constitution
would be violated and trampled upon.”
On page 1686-1687, R. Vol. V, the Court of Appeals
said:
“It was clearly improper for the marshal to serve
the defendant in the court room in the presence of
the jury; however, there is support for the court's
conclusion that the defendant did not suffer preju-
dice thereby, the court stating that there is no
—
oe
showing that the jurors knew of the service and,
too, that most likely they didn’t; the court imme-
diately quashed the subpoena. In light of these
facts, we do not find that there was reversible error.”
The Court of Appeals in reaching that conclusion
violates and disregards the established law of numerous
cases for the reason that the law is that a denial or
deprivation of accused’s constitutional rights has been
held to be presumptively prejudicial, Fina v. U. S., C. C.
A. Colo., 46 F. 2d 643; Lonergan v. U. S., 88 F. 2d 591;
Cert. granted 58 S. Ct. 18, 302 U. S. 663, 82 L. Ed. 512,
revised 58 S. 430, 303 U. S. 33.
A presumption of law exists that one who looks sees,
or a person is presumed to see that which he could see
by looking. The presumption is itself evidence.
Awtio v. Miller, 92 Mont. 150, 11 P. 2d 1039;
Horton v. Atcheson, Topeka, Santa Fe Ry., 161
Kan. 403, 168 P. 2d 928;
Bleirer v. Wolf, 23 Wash. 2d 368, 161 P. 2d 145;
Calvert v. City of Seattle, 23 Wash. 2d 817, 162
P. 2d 441;
O’Brien v. Schellberg, 59 Cal. App. 2d 764, 140
P. 2d 159, 162;
Collier v. Los Angeles Ry. Co., 60 Cal. App. 2d
169, 140 P. 2d 206.
-— =
Westberg v. Wilde, 14 Cal. 2d 360, 94 P. 2d 590, the
Court held this presumption is itself a species of evidence
and it shall prevail and control unless it is overcome by
satisfactory evidence.
The Court attempted to distinguish the McKnight case
from the Ormont case on the facts, but a reading of the
incident involved will demonstrate that the Court disre.
garded the McKnight case. As a matter of fact at no
time was the jury ever instructed to disregard the error
and as to the quashing of the subpoena, the same occurred
during the absence of the jury and to make matters
worse in the case at bar and as additional reason for
reversing the case, the U. S. Attorney argued to the
jury that the books were in evidence, even though the
books were never in evidence. The error complained of
was caused by the Judge indicating to the U. S. Attorney
that the processes of the Court might be available to
compel the defendant to produce his books, and thereafter,
the Marshal in uniform with the United States Marshal
badge in plain view came right in front view of the
jurors and handed the petitioner, Ormont, the subpoena.
The Court remarked that she was a lady, and it is very
obvious that if the Court noticed the lady, the jurors
would likewise in conformance with the law above laid
down. Throwing the burden upon the defendant to
prove prejudice is indicative of the Court’s desire to
affirm the decision in violation of the general principles
of law as above laid down.
——
| Ai
5.
The Trial Court Committed Error in Denying Defend-
ant’s Motion to Strike All the Evidence Pertain-
ing to Counts 3 and 4 Upon Which the Court Had
Previously Acquitted Said Defendant.
Res JUDICATA
Immediately after the defendant, Ormont, was acquitted
on Counts 3 and 4, the defendant moved the trial Court
to strike all of the testimony and evidence given by the
government witnesses, Eustice and Line, (R. Vol. IV,
pp. 1374, 1629, 1640) for the years 1942 and 1943 upon
the grounds that the evidence was incompetent, irrelevant,
;mmaterial, and prejudicial, if it was allowed to remain
before the jury. Error in such ruling is apparent from
the fact that Mr. Eustices’ testimony accounted for over
five hundred pages of the record (Eustices’ testimony
will be found starting on p. 507 and ending on p. 1014),
three fourths of which was confined to counts 3 and 4,
and by such ruling the prosecuting attorney was not only
able to and did argue the evidence for the years 1942
and 1943, but was permitted, as a result thereof, to
falsify the evidence and draw false conclusions therefrom.
The holding of the Court of Appeals that such ruling
was not error is contrary to the case of Gart v. United
States, 294 Fed. 66, and cases therein cited wherein it
is said:
“The scope and purpose of testimony concerning
similar offenses is limited as has been laid down in
the Supreme Court of the United States in the case
of Boyd v. U. S., 142 U. S. 454, 12 S. Ct. 292,
35 L. Ed. 1077, and Hall v. U. S., 150 U. S. 76,
14 S. Ct. 22, 37 L. Ed. 1003. Only in exceptional
cases is the proof of such transactions admissible.
Where a case falls within the exception, the proof
—_§0—
must be clear and convincing. It will be unn
to discuss the point in this case as to whether or not
this line of testimony fell within the exception to the
general rule governing the proof of similar offenses,
for the reason that in the case at bar we have no
proof of an offense, but merely proof of a suspicious
circumstance.
“The rule which should apply to this case, has
been clearly stated by Judge Sanborn, of our own
circuit, in the case of Paris v. U. S., 260 Fed. 529,
at page 531, 171 C. C. A. 313, 315, in the following
language:
“*The general rule is that evidence of the admis-
sion by a defendant of an offense similar to that for
the alleged commission of which he is on trial is
not admissible to prove his commission of the latter
offense. Boyd v. United States, 142 U. S. 454, 456,
457, 458, 12 Sup. Ct. 292, 35 L. Ed. 1077; Hall v.
U. S., 150 U. S. 76, 81, 82, 14 Sup. Ct. 22, 37 L. Ed.
1003; 16 C. J. 186, Section 1132. To this general
rule there are exceptions. One of them is that,
where the criminal intent of the defendant is indis-
pensable to the proof of the offense, proof of his
commission of other like offenses at about the same
time that he is charged with the commission of the
offense for which he is on trial may be received to
prove that his act or acts were not innocent or
mistaken, but constitute an intentional violation of
the law. In cases falling under such an exception to
the rule, however, it is essential to the admissibility
of evidence of another distinct offense that the proof
of the latter offense be plain, clear and conclusive.
Evidence of a vague and uncertain character regard-
ing such an alleged offense is never admissible.
Baxter v. State, 91 Ohio St. 167, 110 N. E. 456;
State v. Hyde, 234 Mo. 200, 136 S. W. 316, Ann.
—51—
Cas. 1912D 191; 16 C. J. 592; People v. Sharp, 107
N. Y. 427, 469, 14 N. E. 319, 1 Am. St. Rep. 851;
State v. La Page, 57 N. H. 245, 259, 24 Am. Rep.
69; Fish v. U. S., 215 Fed. 545, 549, 132 C. C. A.
56, L. R. A. 1915A 809. Such evidence tends to
draw the attention of the jury away from a consid-
eration of the real issues on trial, to fasten it upon
other questions, and to lead them unconsciously to
render their verdicts in accordance with their views
on false issues rather than on the true issues on
trial. Speaking of evidence of other similar offenses,
the Circuit Court of Appeals of the First Circuit,
in the case last cited, well said: ‘Evidence of this
character necessitates the trial of matters collateral
to the main issue, 1s exceedingly prejudicial, is subject
to being misused, and should be received, if at all,
only in a plain case.” (Italics supplied.)
See also:
Farkas v. U. S., 2 F. 2d 644;
Weil v. U. S., 2 F. 2d 145.
The Court of Appeals cites a number of cases wherein
similar offenses were admitted (see Vol. V, pp. 1677 to
1679). A perusal of the cases cited by the Court of
Appeals will immediately reveal that in none of the cases
cited was a defendant acquitted on any Count.’
Mn Allis v. U. S., 155 U. S. 117, 15 S. Ct. 36, 39 L. Ed. 91,
evidence was admitted for the purpose of showing an intent in the
plan followed; the defendant there went on trial on all counts.
(Italics supplied.) Likewise Tinkoff v. U. S. (7th), 86 F. 2d 866,
879. In the case of Chattock v. U. S., 77 F. 2d 961, cert. den. 296
U. S. 609, there was no acquittal on any of the counts for the
defendant. In the case of Emmich v. U. S. (6th), 298 Fed. 5,
cert. den. 266 U. S. 608, the defendant there admitted an adjust-
ment or liability for the previous year and the defendant was not
rea or tried for any prior years. In the case of Rose v. U. S.
(10th), 128 F. 2d 622, 625, the defendant there was found guilty
> i at likewise in the case of Malone v. U. S. (7th), 94
—
To leave this voluminous evidence before the jury could
do nothing but confuse and warp their judgment as was
said in the case of People v. Albertson, 23 Cal. 2d at
580, 581:
“Here, the fact that the circumstantial evidence
of the prior merely suspicious occurrences was ad-
duced in great quantity so that it comprises a large
part of the voluminous record, cannot serve as a
substitute for ‘substantiality’ where none exists,
This erroneously admitted proof shows, if anything,
that it must by very reason of its voluminousness
have tended to confuse the jurors and warp their
judgment, Circumstantial proof of a crime charged
cannot be intermingled with circumstantial proof of
suspicious prior occurrences in such manner that
it reacts as a psychological factor with the result
that the proof of the crime charged is used to bolster
up the theory or foster suspicion in the mind that
the defendant must have committed the prior act,
and the conclusion that he must have committed the
prior act is then used in turn to strengthen the
theory and induce the conclusion that he must also
have committed the crime charged. This is but a
vicious circle.” (Italics supplied.)
As to Mr. Link’s testimony, more was addressed to
those two years than to 1944 and the Court, as to this
witness, said:
‘‘* * * T may be pardoned for saying this, but if
I had to weigh Mr. Link’s testimony I wouldn’t give
it much credence, * * *” (R. Vol. II, p. 1260).
With this vast amount of testimony and exhibits left in
before the jury, which at best was only confusing and
which certainly had no place therein, after the acquittal
on those two counts, and Government’s counsel’s argument
—
| _
referring to the great mass of evidence was sufficient in
itself to prejudice the jury against the defendant, not-
withstanding the acquittal by the Court on those counts
and on that evidence, but by leaving the evidence before
the jury and then instructing them as he did that they
might consider it on the matter of intent, there can be no
question bu what that fact alone influenced the jury and
caused a miscarriage of justice herein. The holding of
the above cited California case is in ccnsonance with the
rule laid down in the case of Fish v. U. S., 215 Fed. 545,
549, 132 C. C. A. 56, L. R. A. 1915a 809. The holding
of the United States Court of Appeals in extending the
rule just one step farther overlooks the general rule of
the inadmissibility of the similar offenses in cases of like
crimes is admissible in crimes involving intent of the
defendant, only as indispensable to the proof of the of-
fense for the purpose of showing that the act or acts were
not innocent or mistaken, but constitute an intentional
violation of the law; and in accordance with the authori-
ties above cited in cases falling under such exceptions to
the rule it is essential to the admissibility of evidence of
such other offenses that the proof of the latter offense be
plain, clear, and conclusive. Evidence of a vague and
uncertain character regarding such an alleged offense is
never admissible. The United States Court of Appeals
overlooks entirely the reason for the rule and fails to
realize that the issue as to whether or not the defendant
was guilty of the offenses and acts complained of in 1942
and 1943 were based upon and became res judicata by the
court’s acquittal of the defendant, Ormont. There is no
argument with the cases cited by the Court, except that
they are inapplicable to the situation at bar for in all the
EN
cases cited the defendant went to trial on all the counts,
We, therefore, have a situation of the United States
Court of Appeals stating in effect that the trial court
has the discretion of admitting into evidence any facts
that might fall far short of a completed offense, even
though the trial court stated that he thought he was help-
ing the defendant by leaving the mass of evidence in, for
the Court said:
“T thought that it benefited the defendants, leay-
ing it in, as much as it did the government, by virtue
of your cross-examination of the defendant Eustice.”
[R. Vol. IV, p. 1610.]
The defendant at all times questioned the benefit and still
does. The U. S. Court of Appeals in attempting to dis-
tinguish the admissibility of the similar offenses on the
grounds that they were merely admitted “to show his in-
tent to act wilfully, his intention, and his state of mind.”
[R. Vol. V, p. 1678.]
The rule laid down is in violation of all the holdings
pertaining to the general principle of res judicata. Corpus
Juris, Volume 34, Section 1154, pages 742 and 743, lays
down the rule and the ground of the doctrine after citing
numerous authorities for its holdings.
The doctrine of res judicata, first definitely formulated
in the Duchess of Kingston’s case, embodies two main
rules which may be stated as follows: (1) The judgment
or decree of a court of competent jurisdiction upon the
merits concludes the parties and privies to the litigation
and constitutes a bar to a new action or suit involving
the same cause of action either before the same or any
other tribunal. (2) Any right, fact, or matter in issue,
—7—
—55-—
and directly adjudicated upon, or necessarily involved in,
the determination of an action before a competent court
in which a judgment or decree is rendered upon the merits
is conclusively settled by the judgment therein and cannot
again be litigated between the parties and privies whether
the claim or demand, purpose, or subject matter of the
two suits is the same or not. The rules afford a logical
and convenient method of dividing the numerous cases
falling within the principle of res judicata. (In re Food
Conservation Act, 254 Fed. 893.)
The potency and cogency of the rule above laid down
is all the more apparent when it is realized that the court
itself adjudicated the very facts in favor of the defendant.
The doctrine of res judicata is applicable in criminal
cases, U. S. v. Oppenheimer, 242 U. S. 85, 61 L. Ed. 161,
37 Sup. Ct. Rep. 68, where Justice Holmes said as fol-
lows:
“In this respect the criminal law is in unison with
that which prevails in civil proceedings.”
This Court in closing stated:
“The safeguard provided by the Constitution
against the gravest abuses has tended to give the
impression that when it did not apply in terms, there
was no other principle that could. But the 5th
Amendment was not intended to do away with what
in the civil law is a fundamental principle of justice
(Jeter v. Hewitt, 22 How. 352, 364, 16 L. ed. 345,
348), in order, when a man once has been acquitted
on the merits, to enable the government to prosecute
him a second time.”
The Court having acquitted the defendant on Counts
3 and 4 of necessity adjudicated the fact that the of-
otiities
fenses complained of in the years 1942 and 1943 were
not committed and that the acts therein complained of
were not “offenses.” To, therefore, hold that the evidence
falling far short of the necessary elements required to
convict the defendant can be used to secure the conviction
for 1944 is, indeed, a violation of the defendant’s consti-
tutional rights of being twice placed in jeopardy and in
the language of the Oppenheimer case:
“is to do away with what in the civil law is a funda-
mental principle of justice.”
6.
Misconduct of Counsel.
We have set forth in our petition quotations from the
government counsel’s argument, and have shown therein
the falsity of such statements as were made, and we re-
spectfully submit that a reading of those quotations is suf-
ficient to show that the conduct of the prosecuting attor-
ney was deliberate and intended to prejudice the jury
against the defendant, and must have had that exact effect
and deprived defendant of a fair and impartial trial to
which he was entitled under the constitution. Keeping in
mind the fact as the Court of Appeals stated on Record
volume V, page 1680:
“We agree that the fact that the prosecutor holds
a position of importance lends weight to his utterances
and gives serious influence on the jury.”
See also:
Latham v. United Statics, 226 Fed. 420.
wall
It has been held that a single misstep on the part of
the prosecutor may be so destructive of the right of a de-
fendant to a fair trial that reversal must follow.
Pharr v. United States, 48 F. 2d 767 (C. C. A. 6);
Pierce v. United States, 86 F. 2d 949.
It has also been held that it is the duty of the Court
of its own motion to see to it that the defendant has a
fair trial and that the prosecutor does not misstate the
facts.
Pierce v. United States, 86 F. 2d 949;
Berger v. United States, 295 U. S. 78, 89, 55 S.
Ct. 629, 632.
See also:
United States v. Perlstein, 120 F. 2d 276;
Weathers v. United States, 117 F. 2d 585;
New York Central R. R. Co. v. Johnson, 279 U. S.
310, 49 S. Ct. 300, 73 L. Ed. 706.
It was also held that even though some transgressions
may be slight so that if they had been promptly corrected,
no prejudice would be suffered, but where they have not
been corrected, such a course of improper conduct com-
pes reversal.
Pierce v. United States, 86 F. 2d 949;
Volkmor v. United States, 13 F. 2d 594 (C. C.
A. 6);
Frants v. United States, 62 F. 2d 737 (C. C. A. 6).
And see also:
Berger v. United States, 295 U. S. 78, 89, 55 S.
Ct. 629, 632, 79 L. Ed. 1314.
_
In the case at bar as was stated in the Pierce case, %
F. 2d 949, as follows:
“was neither slight nor confined to a single instance,
but so pronounced and persistent that the cumulative
effect upon the jury cannot be disregarded as incon-
sequential.”
The prosecuting attorney in his argument to the jury
falsely accused the defendant of “falsifying his books,”
although he had been rebuked by the Court during the trial
for making a similar statement {R. Vol. II, p. 504] and
as we have heretofore shown, the books were made cor-
rect instead of falsified. Such an argument in effect
charged the defendant with a crime of falsifying his
books and this argument taken in connection with the
erroneous instruction given by the Court to the effect
that if they found that the defendant had “in any man-
ner to evade” [R. Vol. IV, p. 1575] could have brought
about the verdict in this case. This misconduct alone was
sufficient to deprive defendant of his fair trial, but in ad-
dition it was the further misstatements by the government
attorney to the effect that the books were in evidence—that
$50,000 worth of bonds had been purchased, and no ex-
planation of where the purchase money came from except
$8,000 cash (these bonds were all bought in 1943, and
this is the evidence we moved to strike out after the ac-
quittal of the defendant on the count based on 1943)—
that the false statement that none of the checks intro-
duced by defendant were taken into account by the gov-
ernment expert as unreported income. Certainly, the
accumulative effect of such a course of improper conduct
deprived the defendant of a fair and impartial trial on the
merits and should compel a reversal.
—_
—59—
7.
Erroneous, Confusing, Conflicting Instructions and
Failure to Instruct.
It was the duty of the Court on its own motion to fully
and fairly instruct the jury on all the law relating to the
facts of the case.
Kinard v. U. S., 68 App. D. C. 250, 96 F. 2d 522,
523;
People v. Putman, 20 Cal. 2d 885 at 890, 891, 129
P. 2d 367;
People v. Best, 13 Cal. App. 2d 606, 57 P. 2d 168.
The defendant has a right to rely upon the correctness
of instructions presented by prosecuting attorney. People
y. Best, supra. In this case, defendant had a right to as-
sume that the U. 5. attorney had correctly quoted the In-
ternal Revenue Regulations concerning books or records.
The Court should have instructed the jury on its own
motion of the lesser offenses contained within the indict-
ment which would be the offense denounced by Title 26,
U. S. C., Section 3616, Subdivision A, a misdemeanor
and which section reads as follows:
“Whenever any person * * *
(a) False returns. Delivers or discloses to the
collector or deputy and false or fraudulent list, re-
turn, account, or statement with intent to defeat or
evade the valuation, enumeration, or assessment in-
tended to be made; or,” (Italics supplied. )
—6Q0—
And likewise should have instructed the jury under Syh
division A of Section 145, under Title 26 U. S. C.
Nicola v. U. S. (3rd), 72 F. 2d 780;
Kinard v. U. S., supra;
People v. Putman, supra, and
16 Corpus Juris Secundum Section 2451, p. 1023,
It was an incorrect statement of the law and a preju-
dicial instruction that the Court gave wherein it stated that
income “earned”’ in a given calendar year must be reported
for that calendar year. This was highly prejudicial in
face of the fact that the prosecuting attorney argued to
the jury as follows:
“He was selling meat. He marked on the invoices
the price for the meat. In addition to that he gets
side money, extra payments, additional money. He
would like to call them gifts. He would like to call
them anything else.
“But I ask you, what are those payments? Do you
think they were payments in the business, which Mr.
Ormont earned, as he reported, some $12,000, in the
year 1944; he had such a fine clientele that they gave
him gifts, approximately eight-twelfths of the sum
he reported in 1945; about $220,000.00. Do you be-
lieve he got $220,000.00 in free and voluntary gifts?”
[R. Vol. IV, p. 1470.]
Throughout his argument he was contending to the jury
that the joint venture return which extended from the Ist
day of May, 1944 to the 30th day of April, 1945, thereby
having eight months in 1944 that the jury could take into
account in their calculation that Mr. Ormont had “earned”
eight-twelfths of such amount without any evidence that
ae
EE
=—
he had “received” any such sum and further the foregoing
statement of $220,000.00 finds absolutely no support in
the record.
Therefore, the foregoing erroneous instruction that they
could consider the amount Mr. Ormont had “earned” and
find him guilty because he had not reported such earning
in the year in which it was earned, regardless of when it
was received was in conflict with the law and with the
subsequent instruction given by the Court to the effect
that a taxpayer on a cash basis need report income only
for the year in which he “received” the income.
y
The Court of Appeals on page 1685 on Record volume
V regarding this instruction on earned income said:
“This latter statement is corrected by subsequently
saying in the instruction that he need not report any
income if filing on a cash basis until cash is actually
received.”
This was so stated in a subsequent disconnected instruc-
tion, but in any event the Court cites no authorities in sup-
port of its statement, and this for the obvious reason that
the authorities are to the contrary as held by the authori-
ties in general and as set forth in 16 Corpus Juris 1054,
where it is stated:
“Where an erroneous instruction consists of a pal-
pable misstatement of the law, it is not cured by a
conflicting or contradictory one which correctly states
the law on the point involved, unless the erroneous
instruction is expressly withdrawn, for the jury, as-
suming, as is their duty, that the instructions are all
=
correct, may as readily follow the incorrect as the
correct.” (Italics supplied.)
Mills v. United States, 164 U. S. 644, 17 S.
210, 41 L. Ed. 584;
Glover v. U. S., 147 Fed. 426, 77 C. C. A. 450;
People v. Grahm, 176 App. Div. 38, 162 N. Y.
S. 334;
People v. Maughs, 149 Cal. 253;
Funderburk v. State, 145 Ala. 661, 39 So. 672;
Lane v. State, 44 Fla. 105, 32 So. 896;
Beach v. State, 138 Ga. 265, 75 S. E. 139;
Barnes v. State, 61 Tex. Cr. 37, 133 S. W. 887;
Com. v. Molten, 230 Pa. 399, 79 Atl. 638;
State v. Helton, 234 Mo. 559, 137 S. W. 987;
Hoge v. People, 117 Ill. 35, 48, 6 N. E. 796.
In the case of Hoge v. People, 117 Ill. 35, 48, 6 N. E.
796, the Court said:
“Where one instruction says that the law is one
thing with regard to a particular matter or state of
circumstances, and another instruction says that the
law is another and materially different thing with re-
gard to precisely the same matter or state of circum-
stances, the instructions are repugnant, and no repeti-
tion of the correct instruction can cure the error of
those that are incorrect.”
The instruction of the Court which we have heretofore
quoted in the petition and found on page 1575, Vol. IV of
the Record to the effect that:
“any person who wilfully attempts in any manner to
evade or defeat * * *”
_—_
= ae
And then reads the full section of the Code using the same
language was highly prejudicial in this case for the rea-
son that the indictment charged the defendant with the
specific manner that it was claimed that he had attempted
to evade, namely, by filing a false and fraudulent income
and victory tax return, and withholding knowledge from
the Internal Revenue Department, and having so charged
the defendant, the allegations became a material part of
the indictment and the burden was upon the prosecution
to prove one or both of such means and manner and in
order to warrant a verdict.
See:
Kutler v. United States, 79 F. 2d 440;
United States v. Howard, 26 Fed. Case No. 15403,
3 Sumn. 12, 15;
People v. Deysher, 2 Cal. 2d 141, 40 P. 2d 259;
People v. Handley, 100 Cal. 370, 34 Pac. 853;
People v. Lapique, 10 Cal. App. 669, 103 Pac. 164;
People v. Strassman, 112 Cal. 683, 45 Pac. 3;
Hightower v. State, 39 Ga. Appeals 674, 148 S. E.
300;
Naftager v. United States, 200 Fed. 494.
See:
31 Corpus Juris 837, Section 445.
Also the giving of an instruction which referred to an-
other section of the code [R. Vol. IV, p. 1583] without in-
structing the jury as to the contents of said section was
highly prejudicial.
See:
Butler v. Gill, 34 Okla. 814, 127 Pac. 439, 440.
a
8.
Closing.
We believe that it is fitting that the writ be here granted
because this case presents to the Court many issues of
general and national importance. It deals with the most
fundamental constitutional rights, privileges, and immuni-
ties, the preservation of which it has repeatedly been held,
is the highest function of the jundiciary. It is important
and its implications reach far beyond the confines of this
case. There are certain questions that must be answered
here.
Shall a defendant be deprived of a specific jury that has
been duly sworn and accepted in which it is admitted
that a defendant has a property right? Shall a defendant
be deprived of a common law right of consultation with
his attorney because the attorney requires expert assistance
in order for him to give sound legal advice to his client?
Shall a defendant be deprived of his right of immunity
after the government extracts its “pound of flesh” or quid
pro quod? Shall we no longer protect the defendant from
his right not to be a witness against himself? Shall we
say that any number of errors are slight and not preju-
dicial no matter how erroneous, merely because the judi-
ciary is attempting to confirm a conviction, irrespective of
the defendant’s right to a fair trial? Shall we condone
a practice of a trial court and a Court of Appeals although
admittedly saying the prosecuting attorney committed
error?
The conduct, if approved by the opinion of the Court
of Appeals if followed gives rise to establishment of a
new concept of legal jurisprudence, namely, that the bur-
den of proof is upon the defendant, and it is necessary
—
for the defendant to prove himself innocent rather than
for the state to prove him guilty. It is a reincarnation
and legalization of those practices which originally gave
rise to the demand for these constitutional safeguards. We
have fought a war to safeguard the principal of democracy
_to make certain that our way of life shall continue—
and that the basic rights of individuals shall be main-
tained. Now under the guise of protecting the revenue of
the country we are seeing the steady and deadly denial
of rights of individuals. We have witnessed in the opin-
‘on of the United States Court of Appeals, the frittering
away of constitutional rights of a defendant.
We respectfully submit that this Honorable Court should
issue the writ prayed for.
WILLIAM JENNINGS BRYAN, JR.,
Day B. RosBNettT and
BENJAMIN KospDOoN,
Counsel for Petitioner.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.