Appeal from the District Court of the United States for the District of New Jersey; Albert Branson Maris, Judge.
Before BIGGS, JONES, and GOODRICH, Circuit Judges.
The appellant was indicted upon an indictment consisting of three counts. Each count charged an offense against Section 145(b) of the Revenue Act of 1936, Act of June 22, 1936, c. 690, 49 Stat. 1648, 26 U.S.C.A. Int.Rev.Code, § 145(b), which provides in part that " * * * any person who willfully attempts in any manner to evade or defeat any tax imposed by this title [chapter] or the payment thereof, shall, * * * be guilty of a felony * * * ".The appellant was charged respectively in the three counts with wilfully evading payment of income tax for the years 1935, 1936 and 1937. He was acquitted under the first count, was found guilty and was sentenced on each of the two remaining counts.
The second count alleges that Johnson filed an income tax return for the year 1936 reporting a gross income of $29,958.19, but omitted the sum of $62,400 received from backers of numbers games. The count charges that the defendant attempted thereby to evade taxes in the amount of $19,957.30. The third count alleges that the appellant reported a gross income of $33,740.28 for the year 1937 but omitted the sum of $62,400 received by him from numbers backers. The count charges that he attempted thereby to evade taxes amounting to $18,759.10.
The facts are as follows. The appellant was a political leader in Atlantic County, New Jersey, residing in Atlantic City. He testified that he had occupied the position of county treasurer for many years but had devoted his time to politics. The evidence showed that in the latter part of 193i or at the beginning of 1933 there were seven numbers banks or games operating in Atlantic City. Six of these banks operated in the daytime; one operated at night. These banks paid protection money to the appellant at the rate of $825 a week for approximately the first six months of 1935. About April 1935, Ralph Weloff and James Towhey, numbers backers, fell into a dispute. One Martin Michael, sometimes known as Jack Southern, ousted Weloff as Towhey's partner and took over the latter's numbers bank himself.Towhey tried to get the business back by giving higher odds on numbers, by cutting fewer numbers and by paying higher commissions to salesmen and runners. This precipitated a numbers war in Atlantic City. All the backers lost money, the struggle between them became "noisy" and attracted public attention. Arrests increased and business was lost. As a result all the numbers backers held a meeting and formed a single large partnership or syndicate into which they pooled their business. The syndicate was set up and began to function about July 1935. Its operations were highly successful.
This syndicate paid Johnson $1,200 a week. The payments began in July 1935, continued throughout the balance of that year, throughout 1936, and through at least the first ten months of 1937. The sums upon which the United States alleged the appellant had not paid income taxes for the years 1935, 1936 and 1937, are made up by the yearly totals of these weekly amounts.
Johnson stated the sums paid to him were not paid for the protection of the numbers bankers from police interference but in order to enable him to maintain his personal political machine; that he kept for himself the balance of the sums paid to him weekly after deducting therefrom certain political expenses; that the amounts of these deductions were set forth on slips which he sent to his office. He testified that when he made his tax returns for the taxable years with which we are concerned he reported as taxable the difference between the amounts received and the amounts paid out, designating the sums retained by him as "commissions" or as "other commissions". Johnson also stated that he considered the sums deducted as properly deducted and that he had no intention of evading taxation.
Throughout Johnson's examination-in-chief his counsel carefully restricted his questions and Johnson restricted his answers so that neither questions nor answers embraced the months of November and December, 1937. Ralph Weloff, the paymaster for the numbers syndicate, was asked how long he continued "to take $1200 a week to Johnson?" In reply he stated his recollection "after talking it over with some of the backers and another man Jack Sothern who had established a different time, established a time in November, 1937 * * * that November 1937 was the right time."; viz., the time when he, Weloff, had ceased to take money to Johnson. Weloff's duties as paymaster for the numbers syndicate were assumed at about this time by Martin Michael, known also as Jack Southern. This person, whom neither side was willing to bring to the stand as a witness, was called by the presiding judge. His testimony was that he had paid no money to Johnson at any time.
Upon cross-examination and over objection the defendant was questioned as to how long he had kept up the practice which he had described in regard to the slips which he sent to his office. To this he replied, "During this period * * * '35, '36 and '37." Thereupon he was asked, again over objection, as to whether he continued to send slips to his office in the year 1938. He replied that he did do so throughout that year. An objection to a question as to what he did in this regard in 1939 was sustained as too remote. There followed a series of questions directed to the receipt of money and the keeping of records by Johnson in the years 1934 and 1936. Then occurred the following illuminating colloquy. Johnson was asked by government counsel, "How about 1937. Did you record $1200 weekly each week in 1937?" His counsel interjected: "Until November 1st." The counsel for the United States then said, "Now, that is the part I object to." The court's comment to Johnson's attorney was, "You are out of order on that. The objection is overruled. You are not answering for the witness. He is answering for himself." The defendant's counsel stated, "I am sorry, your Honor." The court said, "You might take your seat and permit the examination to continue." The cross-examination continued, Johnson admitting that he had received money from Weloff "Up until the time Mr. Weloff stopped receiving the money." Then Johnson was asked, "Didn't you get that $1200 every week right up until the end of the year?" He replied, "No, sir." The next question was, "Didn't Jack Southern bring that money to you after Weloff stopped?" Johnson again replied, "No, sir." The next day Johnson was asked, "Did you receive any money from numbers in 1938?"*fn1 The defendant's counsel objected but the objection was overruled. Johnson replied, "Yes, sir." He was then asked, "Who gave it to you?" His counsel then stated, "I object to that, if your Honor please. I think perhaps we should have argument upon this question because I can see what it is opening up if it is allowed to proceed. I think it is highly objectionable to inquire into a situation which, according to public newspaper articles is going to be the subject of another indictment against this defendant, quoting Mr. Burns. I think the defendant is entitled to be protected." The trial judge said that he desired argument upon the point raised and counsel for the defendant suggested that the jury be excused during the argument. The court thereupon excused the jury which withdrew from the courtroom. The prosecuting attorney then said, " * * * as long as the jury has left the room and is not present I am going to ask that the defendant also be excused from the courtroom during the argument and that when he resumes the stand he should do so without having any opportunity to hear what the argument is about and I suggest that he remain in the outer office of the chambers of Judge Avis during the argument." The court then said, "I think that is a fair request. You may retire, Mr. Johnson." While what Johnson did then is not described in detail in the record, the record does state that "the defendant withdrew". It is entirely clear from the ensuing colloquy of court and counsel that the defendant did not return to the courtroom until the jury was called back. This is also implicit in the briefs.During the course of the argument before the defendant returned to the courtroom, his counsel stated, " * * * I want to say that regardless of whether I am right in any of my other contentions * * * it [the question asked of the appellant, viz., "Who gave it to you?"] is an attempt on the part of the government to force from the witness who is not immune from testifying as to things which are on trial here before the court, but who has the same immunity as any one else from testifying from any other thing than that which is on trial before the court, [sic] that this is an improper cross examination for the reason that it is directed to a future prosecution." After further argument the trial judge stated, "You may advise him of his rights, of course, but it is for him to determine whether or not he wishes to take advantage of them * * * ". Further argument took place and the trial judge finally said to counsel for the defendant, "I will allow you an exception. I will permit you, after the question is asked, to advise him about his rights." The right to which the trial court and the appellant's counsel referred was the appellant's right under the Fifth Amendment not to be compelled to give testimony against himself.
When the jury was called back the defendant resumed the witness stand. The question, "Who gave it to you?" was repeated to him. The defendant was informed of his constitutional rights by his counsel and immediately he claimed a right not to answer the question. He was also asked, "What fund did you use during November and December of 1937 to pay these expenses that you had been paying out of this fund?" The witness answered, "Money that had been accumulated." He was then asked, "What money did you use in 1938 for that purpose?" The witness declined to answer the question, again purportedly taking advantage of his constitutional rights.The prosecuting attorney then showed Johnson an exhibit which was his income tax return for the year 1938 and the defendant was asked to identify the document. Again his counsel objected, but the objection was overruled. The defendant replied, "My income tax return for 1938". He was then asked " * * * did you have an item of 'other commissions' for the year 1938 as part of your income?" The defendant again claimed privilege. Then came a question: "What money did that represent?" Johnson replied, "I refuse to answer on the grounds that I do not have my records here, and on my rights under the Constitution." The court then said to him, "You may decline to answer upon the ground that it might tend to incriminate you, not upon the ground that you do not have your records here. You might say that you do not know if that is a fact." Johnson replied, "All right; I refuse to answer as it tends to incriminate me." This was the end of this line of cross examination.
Did the Court Commit Reversible Error by Excluding Johnson from the Courtroom?
The Fifth Amendment to the Constitution of the United States provides that no person shall be deprived of liberty without due process of law and the Sixth Amendment guarantees a speedy and public trial with the right of confrontation*fn2 to every defendant in the courts of the United States. The leading criminal case on what constitutes due process under the Fourteenth Amendment is Snyder v. Massachusetts, 291 U.S. 97, 54 S. Ct. 330, 78 L. Ed. 674, 90 A.L.R. 575. We think that this decision must guide us to our conclusion in the case at bar since the Supreme Court held in Hurtado v. People of California, 110 U.S. 516, 535, 4 S. Ct. 292, 28 L. Ed. 232, that the phrase "due process of law" used in the Fourteenth Amendment to restrain action by the states means substantially the same as that phrase of the Fifth Amendment, restraining action by the federal government. See, also, Twining v. New Jersey, 211 U.S. 78, 101, 29 S. Ct. 14, 53 L. Ed. 97; Powell v. Alabama, 287 U.S. 45, 66, 53 S. Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527; Chambers v. Florida, 309 U.S. 227, 235, 236, 60 S. Ct. 472, 84 L. Ed. 716, and compare Grosjean v. american Press Co., 297 U.S. 233, 245, 56 S. Ct. 444, 80 L. Ed. 660. In view of the exhaustive citation of authorities in both the majority opinion of the Supreme Court by Mr. Justice Cardozo and in the dissenting opinion of Mr. Justice Roberts in the Snyder case, there is no point in this court embarking upon a lengthy reiteration of the authorities.
In Snyder v. Massachusetts, Snyder, who had been found guilty of a murder growing out of an attempted robbery, contended that he had been deprived of due process of law under the Fourteenth Amendment because when the jury had viewed the scene of the crime pursuant to the provisions of Section 35 of Chapter 234 of the General Laws of Massachusetts he had not been present. The Supreme Judicial Court of Massachusetts affirmed the conviction, 282 Mass. 401, 185 N.E. 376, and the Supreme Court of the United States refused to reverse the judgment of the Supreme Judicial Court of Massachusetts.
After referring to Twining v. New Jersey, supra, 211 U.S. at pages 106, 111, 112, 29 S. Ct. 14, 53 L. Ed. 97, in which the privilege against self-incrimination was withdrawn, and Hurtado v. People of California, supra, where a defendant was tried for a capital offense upon an information rather than an indictment, Mr. Justice Cardozo stated the essence of due process of law as follows, 291 U.S. at page 105, 54 S. Ct. at page 332, 78 L. Ed. 674, 90 A.L.R. 575, "What may not be taken away is notice of the charge and an adequate opportunity to be heard in defense of it." Mr. Justice Cardozo then went on to say that a defendant's privilege to confront his accusers and cross-examine them face to face is guaranteed to him by the Sixth Amendment in prosecutions in the federal courts, citing Gaines v. Washington, 277 U.S. 81, 85, 48 S. Ct. 468, 72 L. Ed. 793, and that his defense may be made easier if he is permitted to be present while jurors are being examined or counsel are summing up to the jury. His presence will enable him to advise his counsel or if he wishes, to supersede his counsel and to conduct the trial himself. Mr. Justice Cardozo then went on to say, "In all the cases thus assumed the presence of the defendant satisfies the test that was put forward a moment ago as basic and decisive.It bears, or may fairly be assumed to bear, a relation, reasonably substantial, to his opportunity to defend." The test thus laid down by the Supreme Court is a very plain one. In the opinion in the Snyder case Mr. Justice Cardozo also stated, 291 U.S. at pages 107, 108, 54 S. Ct. at page 333, 78 L. Ed. 674, 90 A.L.R. 575, "So far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." The Supreme Court points out that motions before trial are heard in the defendant's absence, as are many motions made after trial or in the prosecution of appeals.
The question which we have before us in the instant case is one which is extremely difficult to answer. Obviously it is not necessary for a defendant to be present at every stage of the proceedings against him. Due process does not require him to be in court when a true bill is returned against him by a grand jury or when his appeal is argued in the appellate court. See Dowdell v. United States, 221 U.S. 325, 331, 31 S. Ct. 590, 55 L. Ed. 753. The defendant must be in court when jurors are challenged. Hopt v. People of Utah, 110 U.S. 574, 579, 4 S. Ct. 202, 28 L. Ed. 262. Certainly the defendant must be present when the jury is in the box and the trial is in progress. The defendant must be deemed to have the absolute right to hear everything which the jury hears if he is to protect himself. Under such circumstances his presence bears a relation "reasonably substantial, to his opportunity to defend".To exclude him from the court room upon such occasions would be to hazard his constitutional rights upon the theory an appellate tribunal might save him from jeopardy. He must be present when the jury is present and is receiving evidence. If he is, then the trial meets the substance of the stringent test laid down by Mr. Justice Roberts in his dissenting opinion in the Snyder case, 291 U.S. at page 129, 54 S. Ct. at page 341, 78 L. Ed. 674, 90 A.L.R. 575. Mr. Justice Roberts stated that the prisoner's constitutional right of presence " * * * comprehend[s] the inquiry by the ordained trier of fact from beginning to end", citing Hopt v. Utah, supra; Lewis v. United States, 146 U.S. 370, 13 S. Ct. 136, 36 L. Ed. 1011, and Diaz v. United States, 223 U.S. 442, 32 S. Ct. 250, 56 L. Ed. 500, Ann.Cas. 1913C, 1138. In the instant case it appears that the defendant was present at all times that the jury was present and his absolute constitutional right of presence was not infringed.
Johnson's exclusion took place when the jury was absent and a point of law raised by his counsel was argued. We can find no federal decision precisely in point. The case which supplies the nearest parallel to the case at bar is that of Adams v. State of Florida, 28 Fla. 511, 10 So. 106, 117, where the jury had been sent from the courtroom during argument and Adams was returned to jail. In that case it was flatly held that the defendant had, " * * * the right to be present and to hear questions of law as well as questions of fact discussed, and in fact no steps can be taken in the case in his absence." A somewhat similar decision was reached in Tiller v. State, 96 Ga. 430, 23 S.E. 825, 826. In this case Mr. Justice Lumpkin stated, "It cannot be doubted that the argument of counsel is a stage of the proceedings, for the trial is not concluded until after the verdict has been received ...