United States v. Carabbia, 381 F.2d 133 (6th Cir. 1967)

CECIL, Senior Circuit Judge.

Ronald Carabbia, defendant-appellant, was convicted in the United States District Court for the Northern District of Ohio, Eastern Division, on a charge of filing a false United States Treasury Department form. The indictment upon which he was convicted reads as follows:

The defendant-appellant was tried before' a jury, found guilty and sentenced to three years’ imprisonment and to pay a

fine of $5000. The defendant-appellant, hereinafter referred to as defendant, then appealed.

Pending this appeal counsel for the defendant filed a motion.

Counsel for the government admitted

We remanded the case to the District Court with instructions to conduct a prompt and full hearing upon all aspects of the government’s use of electronic equipment and to make findings of fact and report to this Court. (See copy of order hereto attached as Appendix A.) The district judge conducted a hearing and reported to this Court its findings of facts and conclusions of law. The district judge concluded that electronic surveillance of the defendant was not used in any way in the trial of this case. We have examined a transcript of the testimony at the hearing before the district judge and confirm his findings of facts and conclusions of law. (Copy of the findings of facts and conclusions of law is attached hereto as Appendix B.) The case having been submitted to the Court on briefs and oral arguments of counsel, we proceed to decide the appeal on its merits.

We consider first the claim that the indictment does not state an offense. The indictment of the Grand Jury -is based on Section 7206(1),1 Title 26, U.S. C. Section 4412(a) (1), (2), Title 26, U.S.C. provides for registration in connection with the imposition of a tax on wagers under Sections 4401 and 4411, Title 26, U.S.C., and reads as follows:

Treasury regulations Sections 44.6071.1 and 44.4412-1 were promulgated by the Commissioner to implement the statute on registration. Regulation 44.6071.1(b) provides that initially when one desires to enter into the business of accepting wagers he must file a Form 11-C beginning with the first day of the calendar month in which he expects to engage in such business and ending with the following June 30th.

year period (beginning July 1 and ending June 30 of the following calendar year) during which taxable activity continues.”

Regulation 44.4412-1 (b) (2) provides:

Questions 5(b) and (c) of Form 11-C require the applicant to state the number of persons engaged in receiving wagers on his behalf and the name, address and tax stamp number for each such person.

Section 6065, Title 26, U.S.C. provides that any return or declaration required to be made under any provision of the revenue laws “shall contain or be verified by a written declaration that it is made under the penalties of perjury.” Section 7206(1) under which this offense is prosecuted makes it an offense to make a false declaration.

The basis of the defendant’s claim that the indictment does not state an offense is that he is charged with falsifying as to future events. This is a misinterpretation of the statute, the regulations and the allegations of the indictment. The indictment charges the defendant with a violation in the language of the statute alleged to be violated. See Hoover v. United States, 358 F.2d 87 (C.A. 5), cert. den. 385 U.S. 822,, 87 S.Ct. 50, 17 L.Ed.2d 6; United States v. Chunn, 347 F.2d 717 (C.A. 4). Form 11-C, which is the subject of the offense charged, is a renewal application to enable the defendant to continue in business for the ensuing governmental fiscal year. The indictment charges that the defendant committed an offense on June 30, 1962, in that he declared in Form 11-C that at that time he had only two employees or agents receiving wagers in his behalf, when he well knew and believed that at that time he had more than two employees receiving wagers on his behalf. Future employees would be reported by filing a supplemental Form 11-C. The government’s case would fail unless it proved beyond a reasonable doubt that the defendant had more than two employees receiving wagers on his behalf on June 30,1962.

We find no merit to the defendant’s argument that the meaning of Section 7206 (1) and the Regulations is vague. We conclude that the indictment states an offense.

Counsel for the defendant claim that the trial judge erred in not inquiring of the jurors on voir dire examination, upon request, if they had any prejudice by reason of the defendant being engaged in the gambling business.

The conduct of the voir dire examination is discretionary with the trial judge. In Aldridge v. United States, 283 U.S. 308, at p. 310, 51 S.Ct. 470, at p. 471, 75 L.Ed. 1054, the Court said:

See also United States v. Dennis, 339 U.S. 162, 168, 70 S.Ct. 519, 94 L.Ed. 734, rehearing den. 339 U.S. 950, 70 S.Ct. 799, 94 L.Ed. 1364; Johnson v. United States, 270 F.2d 721 (C.A. 9), cert. den. 362 U.S. 937, 80 S.Ct. 759, 4 L.Ed.2d 751; Stone

v. United States, 324 F.2d 804 (C.A. 5), cert. den. 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659; United States v. Barra, 149 F.2d 489 (C.A. 2).

The question before us is whether the trial judge abused his discretion. The judge began his voir dire examination by reading the indictment to the jury. This was sufficient to inform the jurors that the defendant was engaged in the business of receiving wagers. Thereafter he conducted an extensive examination in which he cautioned the jurors against being prejudiced or predisposed to judgment. After explaining fully what was meant by prejudice, the jurors responded to a question that they had no prejudice. The jurors were asked whether they “or any members of their immediate family ever applied for or held a Federal wagering tax stamp.” Upon reading the transcript of the voir dire examination, we conclude that the jurors were fully informed as to the nature of the case, that they were fairly examined as to prejudices and predisposition to judgment and that the trial judge did not abuse his discretion in refusing to ask a specific question suggested by counsel.

Another claim made on behalf of the defendant is that the trial judge erred in denying motions for acquittal where the prosecution did not prove perjury by the testimony of two witnesses or the testimony of one witness and corroborating evidence. This question was not specifically raised before the trial court by the motions of counsel for the defendant at the close of the government’s evidence and at the close of all of the evidence at the trial. However, we proceed to discuss the question.

The defendant is not charged with perjury as defined by Section 1621, Title 18, U.S.C. The substance of the offense created by this statute is the swearing falsely under oath taken either orally or subscribed to in writing before a person or tribunal competent to administer an oath in a matter in which a law of the United States authorizes an oath to be administered. Admittedly the two-witness rule is applicable to charges of perjury prosecuted under this statute. Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495; May v. United States, 280 F.2d 555 (C.A. 6)

No oath is involved in the statute under which the defendant is prosecuted. The gist of the crime with which the defendant is charged is willfully making a declaration in a document under the pains and penalties of perjury which the declarant does not believe to be true as to every material matter. This section of the Code is more nearly analogous to Section 1001, Title-18, U.S.C., than it is to Section 1621. Section 1001 cases do not require the testimony of two witnesses or the testimony of one witness and corroborating evidence. United States v. Killian, 246 F.2d 77 (C.A. 7); Fisher v. United States, 231 F.2d 99 (C.A. 9). It is only essential that guilt be established beyond a reasonable doubt.

We are of the opinion, however, that the two-witness rule is met even though not required. In considering motions for acquittal or for a directed verdict, the court must view the evidence in the most favorable light to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, rehearing den. 315 U.S. 827, 62 S.Ct. 629, 86 L.Ed. 1222; United States v. Conti, 339 F.2d 10 (C.A. 6). The testimony of William Gaul is to the effect that he and theKosco brothers, Andy and George, were writing numbers for the defendant on June 30, 1962, the critical time in issue. It is claimed that Gaul’s testimony is not supported by any other witness or by other independent corroborating evidence. We have examined the trial transcript and conclude that there is sufficient evidence, when viewed in the most favorable light to the government, from which the jury could infer that Gaul and the Kosco brothers were writing numbers-for the defendant at the time he made the application for a wagering stamp in question.

In addition there is the testimony of the defendant himself in which he admits that Gaul turned in wagers to him throughout the period in question.

When the defendant offered evidence in his own behalf, after the government closed its case, which supplied any evidentiary defect in the government’s case, he waived his contention of a failure of proof on the part of the government. United States v. Goldstein, 168 F.2d 666 (C.A. 2). The defendant seems to reason that he would have some immunity if Gual had his own stamp and turned in to him only such numbers as Gaul did not want. We find no support for this theory. Everyone writing numbers whether principal or agent is required to have a stamp. Gaul’s stamp listed the defendant as principal. The defendant claimed that he had not authorized this and did not know it. This was a fact for the jury to determine from all of the circumstances in the case.

Another assignment of error is the refusal of the trial judge to give the defendant’s requested instruction No. 6 relative to the element of willfulness in a felony case.

The requested instruction reads as follows:

The trial judge, in his instructions, defined willfully, as follows:

A trial judge is not required to give a requested instruction if the subject matter of the instruction is substantially covered in the judge’s general charge. United States v. Donovan, 339 F.2d 404 (C.A. 7), cert. den. 380 U.S. 975, 85 S.Ct. 1338, 14 L.Ed.2d 271; Davis v. United States, 226 F.2d 331 (C. A. 6), cert. den. 350 U.S. 965, 76 S.Ct. 432, 100 L.Ed. 838, rehearing den. 351 U.S. 915, 76 S.Ct. 693, 100 L.Ed. 1449. We consider that a “purpose of violating the law and not * in good faith” is substantially the same as “evil mind and bad purpose.” A purpose to violate a criminal statute is a bad purpose and one who contemplates doing so intentionally has an evil mind. The trial judge might well have given the instruction as requested but we find that he gave the substance of it in his general charge and that he was not in error in refusing it.

It is assigned as error that the trial judge, by his cross-examination of witnesses, and comments to defendant’s counsel in the presence of the jury improperly conveyed to the jury the impression that the judge was interested in a conviction of the defendant.

Counsel for the defendant refer to three separate and isolated instances where the trial judge made some comment to counsel in passing on objections. We do not consider that these comments reflected the judge’s interest in the case or that they were prejudicial to the defendant.

The district judge questioned prosecution witnesses as follows: Andrew Kosco to the extent of ten pages of the transcript, William Gaul, four pages, Leo Ferranti, two pages, and John Relic on rebuttal, one question. In each instance he gave counsel an opportunity to ask additional questions. We said in Knapp v. Kinsey, 232 F.2d 458, 466, cert. den. 352 U.S. 892, 77 S.Ct. 131, 1 L.Ed.2d 86;

See also Glasser v. United States, supra; United States v. Brandt, 196 F.2d 653, 655 (C.A. 2).

We do not look with favor on extensive examination of witnesses by the trial judge in a jury trial. We do not find in this case, however, that the judge abused his discretion in this respect or that his questioning of witnesses constitutes prejudicial and reversible error. See United States v. Lewis, 338 F.2d 137, cert. den. 380 U.S. 978, 85 S.Ct. 1342, 14 L.Ed.2d 272.

Finally, it is claimed that the defendant acted on the advice of a special agent of the Internal Revenue Service and that the evidence necessary to sustain a conviction was assembled by making use of the fruits of the agent’s misdirection. It is contended that the jury should have been instructed that if they find this to be a fact they should return a verdict of not guilty. We find no evidence to support this claim and conclude that it is without merit.

The judgment of the District Court is affirmed.

APPENDIX A

ORDER

Before: PHILLIPS and PECK, Circuit Judges, and CECIL, Senior Circuit Judge.

This cause is before the Court on motion of defendant-appellant, Ronald Carabbia,

on Memorandum of the Assistant Attorney General stating facts as follows:

and on memorandums of the parties with respect to the dismissal of defendant-appellant’s motion and the disposition of the disclosure of electronic eavesdropping by the government.

Upon consideration of the motion of the defendant-appellant, the memorandum of disclosure by the government and the memorandums of the parties with respect thereto,

It is hereby ordered that the case be remanded to the District Court with

instructions to conduct a prompt and full hearing upon all aspects of the government’s use of electronic equipment in the premises of the defendant-appellant and determine its effect upon the trial and conviction of the defendant-appellant and whether or not a new trial should be granted or the indictment dismissed.

It is further ordered that the district judge make a finding of fact and report to this Court which will retain jurisdiction of the Appeal.

APPENDIX B

FINDINGS OF FACT AND CONCLUSIONS OF LAW (Filed May 29, 1967.)

Pursuant to an order entered by the Sixth Circuit Court of Appeals on February 23, 1967, this Court ordered that a hearing be commenced on April 5, 1967, to investigate all aspects of the Government’s use of electronic listening equipment in the premises of the defendant-appellant. Prior to the commencement of this hearing, namely on March 24, 1967, the Government presented to the Court the original and one copy of certain logs which it represented to be the complete and only original records of what was overheard by the electronic surveillance which was disclosed by the Government to the Sixth Circuit Court of Appeals.1 On the instruction of the Court, an Assistant United States Attorney delivered a copy of these logs to defense counsel on March 29, 1967, under a protective order which permitted the disclosure of the contents thereof by defense counsel only to the extent that they in good faith believed it c necessary in order to prepare for the April 5, 1967, hearing. Defense counsel, evidently believing the protective order to be too restrictive, refused to accept the logs at that time.2 On April 5, 1967, the Court, in order to expedite the hearing, revoked the protective order and, once again, had a copy of the logs delivered to defense counsel.

On the basis of the evidence introduced at the hearing conducted from April 5, 1967, to April 10, 1967, the Court makes the following findings of fact.

1. The listening device involved in the electronic surveillance of the defendant was a battery powered microphone installed on January 22, 1962, at the Modern News Center, 620 Youngstown-Poland Road, Struthers, Ohio, and connected by means of commercial telephone lines to the Youngstown, Ohio office of the Federal Bureau of Investigation (hereafter FBI). Several days after its installation, when the connection with the commercial telephone lines had been completed, the device was monitored on a spot check basis. Commencing January 31, 1962, logs were kept of the monitoring of the conversations overheard by means of the device. Logs were kept until March 19, 1962, and the device was discontinued on March 22, 1962.

2. The procedure employed by the FBI in monitoring the aforesaid device was substantially as follows: Agents of the FBI were assigned to the FBI’s Youngstown Office to listen through earphones to the sounds which were emanating from the Struthers, Ohio address. They were directed to make entries in their logs of the discernible and intelligible conversations overheard during the monitoring period. The device was monitored at random times when personnel were available. The log entries would consist, as far as possible, of a verbatim transcription of that which was overheard. These logs were and are the only records of the conversations which were listened to by the agents. No tapes or sound recordings were made.

3. The Government has produced all of the logs which were made pursuant to the above-described monitoring procedure.

4. The Government provided and made available all of the individuals who participated in the monitoring of the above-described device or had anything to do with the listening process during the pertinent period. On the basis of the testimony of these individuals, the Court finds that all the information obtained by means of the monitoring device between January 31 and March 19, 1962, is reflected in the logs presented to the Court. No records were made in connection with the spot check monitoring which occurred prior to January 31, 1962.

5. Defendant Ronald Carabbia did not participate in any of the conversations which were overheard or listened to by the FBI.

6. The only information which was •obtained by the Internal Revenue Service as a result of the FBI’s monitoring of the premises of the defendant is set out in Court’s Exhibits 4, 4a and 4b. The Internal Revenue special agent who investigated the charges which led to this prosecution received no investigative leads to this prosecution from the electronic device installed at the Modern News Center, 620 Youngstown-Poland Road, Struthers, Ohio, and he did not discuss this case or information obtained from the monitoring with any agent of the FBI.

7. The information contained in the logs is totally irrelevant to any of the issues raised during the trial.

8. None of the conversations overheard during the spot check monitoring which occurred prior to January 31, 1962, were relevant to any of the issues raised during the trial.

9. Nothing overheard or disseminated from the listening device did or could have lead, either directly or indirectly, to any evidence introduced in the course of the prosecution of this case.

10. The Government disclosed the electronic surveillance of the defendant’s premises in accordance with the policy set forth in the Government’s supplemental memorandum to the Supreme Court in Schipani v. United States, 385 U.S. 934, 87 S.Ct. 293, 17 L.Ed.2d 214; 385 U.S. 965, 87 S.Ct. 501, 17 L.Ed.2d 431. Implicit in the Government’s disclosure of such surveillance is a representation on the part of the Government that there was no other electronic surveillance of the defendant. At the hearing, the Internal Revenue special agent who had charge of the investigation which lead to this prosecution testified that there was no other electronic surveillance of Mr. Carabbia. The Court finds that the only electronic surveillance of the defendant was that discussed in findings of fact Nos. 1 through 9.3

CONCLUSIONS OF LAW

The Court concludes, upon an inquiry into all aspects of the Government’s use of electronic equipment in the premises of the defendant that:

1. Since none of the information overheard by the monitoring of the microphone at the Modern News Center, Struthers, Ohio was used as evidence or as leads to evidence admitted at the trial, there would be no basis for suppressing any of the evidence which was used in the prosecution of this case.

2. The Court concludes, therefore, that there is no basis for ordering a new trial in this case and that the judgment of conviction should stand.

/s/ FRANK J. BATTISTI

United States District Judge