United States v. John L. Remco, 388 F.2d 783, 3rd Cir. (1968)
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Scribd Government DocsUnited States v. John L. Remco, 388 F.2d 783, 3rd Cir. (1968)
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Scribd Government Docs388 F.
2d 783
68-1 USTC P 9203
UNITED STATES of America
v.
John L. REMCO, Appellant.
No. 16610.
United States Court of Appeals Third Circuit.
Argued Nov. 3, 1967.
Decided Feb. 2, 1968.
Martin Vinikoor, Philadelphia, Pa., for appellant.
Bernard J. Brown, U.S. Atty., Scranton, Pa., for appellee.
Before McLAUGHLIN, GANEY and SEITZ, Circuit Judges.
OPINION OF THE COURT
GANEY, Circuit Judge.
Defendant-appellant was found guilty on December 28, 1965, of having
willfully filed an income tax return for the calendar year 1959 knowing that it
failed to disclose his receipt of $24,400 in income for that year in violation of
26 U.S.C.A. 7206(1). At the trial in September of 1965, which was to a court
without a jury, the prosecution showed that defendant had received $24,400 in
1959 from Central Slipper Company, Inc., to act as a consultant for the
development of a disposable paper shower slipper. His posttrial motions were
denied on February 7, 1967, and he was sentenced to prison.
His appeal is based on two grounds: The omission of the trial court to indicate
in finding him guilty that it had disregarded certain assertedly inadmissible
testimony; and the insufficiency of the evidence to establish that he willfully
made false return in violation of 26 U.S.C.A. 7206(1).
Over defendant's objection that it is improper to allow a witness to testify as to
admissions made by a defendant prior to his taking the stand, the trial judge
permitted a special agent of the Internal Revenue Service to relate some of the
statements made by the defendant during an interview. The interview was
conducted by the Service at the Veterans Administration Building in WilkesBarre, Pennsylvania, on February 26, 1963, and defendant was accompanied by
his attorney, the same one who defended him at the trial. Also present were
three agents of the Service. The special agent testified that the defendant said,
after he was apprised that he was being investigated for his failure to report the
$24,400 received by him from Central Slipper Company as income during
1959, that he had used that money to pay off certain stockholders, and creditors
of a corporation, and that he admitted that the signature appearing in the lower
lefthand corner of a letter agreement confirming the employment arrangement
between him and Central Slipper Company for one year at a salary of $25,000
was his. He also made a number of self-serving declarations which, upon later
investigation by the Service, proved to be without foundation in fact. The
agents did not warn him of his right to remain silent and that anything he might
say could be used against him in a court of law.
4
Before us defendant argues that the guidelines (i.e., the warning one of his
rights to remain silent and that anything he says can be used against him in a
court of law) set forth in Miranda v. State of Arizona, 384 U.S. 436, 479, 86
S.Ct. 1602, 16 L.Ed.2d 694 (June 13, 1966) should have been followed at the
interview before his utterances to the Internal Revenue agents could have
validly been admitted into evidence against him at the trial. Whether the
additional guidelines of the Miranda case need be followed in an income tax
investigation before his statement may become admissible in court we need not
decide here. The new standards of Miranda apply only to trials begun after June
13, 1966, the date that decision was announced. Here defendant's trial began on
September 20, 1965, and the verdict of guilty was rendered on December 28,
1965. Defendant makes no claim that his statements during the interview were
involuntary, and there is not a shred of evidence in the record which could
support a finding that his statements were induced by trickery or deceit on
behalf of the agents. His statements were properly admitted into evidence and
they could be considered by the court, along with all the other evidence, in
arriving at its verdict.
Defendant testified in his own behalf but did not place his general reputation in
issue. On cross-examination the prosecution was permitted, for the expressed
purpose of attacking defendant's credibility as a witness, to ask defendant, over
his objection, if it was not a fact that he was charged in the State of New York
with having committed a crime of attempted grand larceny in the second
degree1 in connection with dealings of a realty development company with
which he was connected, and that he plead guilty to that charge on April 27,
1961, in a New York State Court.
6
For the purpose of impeaching the credibility of a defendant who takes the
stand in a criminal case as a witness in his own defense, it is competent to show
his convictions for misdemeanors amounting to crimen falsi or felonies.2
United States v. Montgomery, 126 F.2d 151, 155 (3 Cir. 1942), cert. denied 316
U.S. 681, 62 S.Ct. 1268, 86 L.Ed. 1754. Also see United States v. Klass, 166
F.2d 373 (C.A.3, 1948); United States v. Howell, 240 F.2d 149 (C.A.3, 1956);
Smith v. United States, 358 F.2d 683 (C.A.3, 1966); 98 C.J.S. Witnesses 507.
Moreover, moral turpitude has found judicial employment as a criterion in
impeaching witnesses. See Jordan v. De George, 341 U.S. 223, 227, 71 S.Ct.
703, 95 LEd. 886 (1951). It has been held that the crime of larceny or
embezzlement involves moral turpitude. Christianson v. United States, 226
F.2d 646, 655 (C.A.8, 1955), cert. denied 350 U.S. 994, 76 S.Ct. 543, 100
L.Ed. 859. Consequently, the trial court committed no error in permitting the
cross-examination.
However, generalizing, by the admission into evidence of former convictions
of all felonies comes under some criticism in Gordon v. United States,
D.C.Cir., 383 F.2d 936. Here, it is suggested we reexamine the legitimate
purposes of impeachment which are to show background facts which have a
direct impact on whether jurors should believe a defendant rather than other
conflicting evidence. To this end it states, at page 940: 'In common human
experience acts of deceit, fraud, cheating, or stealing, for example, are
universally regarded as conduct which reflects adversely on a man's honesty
and integrity. Acts of violence on the other hand, which may result from a short
temper, a combative nature, extreme provocation, or other causes, generally
have little or no direct bearing on honesty and veracity. A 'rule of thumb' thus
should be that convictions which rest on dishonest conduct relate to credibility
whereas those of violent or assaultive crimes generally do not; traffic violations,
however serious, are in the same category.' However, while this analysis has
much to be said for it, and this former conviction may well come within its
orbit, the rule as stated in United States v. Montgomery, supra, and Smith v.
United States, supra, is still the law of this circuit and the admission into
evidence of this former conviction was not error.
There was sufficient evidence to support the trial court's finding the defendant
guilty of the charge under the indictment.
The judgment of the district court will be affirmed.
The crime of grand larceny in the second degree (New York State Penal Law,
1909, 1296) was punishable by imprisonment for a term not exceeding five
years. Id. 1297. Punishment for an attempt to commit a crime was by
imprisonment for not more than half the longest term upon conviction for the
commission of the offense attempted. Id. 261. By definition an attempt to
commit the crime of grand larceny in the second degree was a felony. Id. 2. The
old 1909 Penal Law has since been revised. See Penal Law, L.1965, c. 1030,
effective September 1, 1967, 39 McKinney's Consolidated Laws of N.Y.,
Annotated, c. 40 (1967 Ed.) 1.00 et seq
See Commonwealth v. Gold, 155 Pa. Super. 364, 370-371, 38 A.2d 486 (1944),
where prior convictions on charges of larceny were held properly admitted to
impeach defendant's credibility as a witness. In that case appellant also
contended that the rule should be interpreted so that it reads not only
misdemeanors in the nature of a crimen falsi but felonies in thenature of crimen
falsi. The Court was unable to find any basis for such distinction
