Before DUFFY and SCHNACKENBERG, Circuit Judges, and GRUBB, District Judge.
SCHNACKENBERG, Circuit Judge.
Harold E. Sullivan, Byron A. Cain and The Shotwell Manufacturing Company, a corporation, defendants, have appealed from judgments of the district court entered May 22, 1959, based on a jury verdict entered in 1953, adjudging each of them guilty of attempting to defeat and evade the payment of taxes owing by Shotwell in violation of 26 U.S.C. § 145(b), Int. Rev. Code of 1939.*fn1
These judgments were entered by the district court following a hearing held pursuant to an order of the United States Supreme Court. United States v. Shotwell Mfg. Co., 355 U.S. 233, 246, 78 S. Ct. 245, 2 L. Ed. 2d 234. By the same order the Supreme Court vacated our judgment reversing prior judgments of the district court based on said verdict, United States v. Shotwell Mfg. Co., 7 Cir., 225 F.2d 394, 406.
We held on the prior appeals that it had been shown, at a pretrial hearing on a motion of defendants to suppress certain evidence, that a valid, timely, voluntary disclosure by defendants had been made. After the government petitioned the Supreme Court for certiorari to review our decision, it filed a motion to remand on the ground of newly discovered evidence, and in support of its motion filed the affidavits of defendant Frank J. Huebner*fn2 and H. Stanley Graflund, which the Court found contradicted the testimony on behalf of defendants on the suppression hearing. At page 240 of 355 U.S., at page 250 of 78 S. Ct. the Supreme Court stated that the new evidence cast the darkest shadow upon the truthfulness of the disclosure testimony given by or on behalf of the defendants and entailed an attempt to perpetrate a fraud upon the courts. At page 241 of 355 U.S. at page 250 of 78 S. Ct., the need of a remand to the district court for a full exploration was indicated. At page 245 of 355 U.S., at page 253 of 78 S. Ct., the Court directed that, in the further proceedings in the district court, the additional evidence to be presented be confined to the suppression issue and that on that issue the district court make such new findings of fact as may be appropriate, including findings on the question of the timeliness of the alleged disclosure.*fn3
At the hearing upon remand, the district court heard the testimony of government witnesses Huebner, Graflund, Ernest C. Wright and Joseph M. Lima and the testimony of defendant Cain and several other defense witnesses. Sullivan and Leon J. Busby did not testify, although Busby did testify at the original suppression hearing.*fn4 The court entered an order which included a comprehensive finding of facts. The trial judge analyzed the testimony of the various witnesses and found specifically, inter alia:
"* * * the evidence is overwhelmingly clear that not only were substantial sums of black-market money paid to Shotwell as premium payments by Lubben*fn5 during 1944, 1945 and 1946 totaling between three and four hundred thousand dollars, but also that the greater part of this so-called black-market money was appropriated by Cain, Huebner and Sullivan for their own personal use.
"* * * Busby, Shotwell's accountant, stated that he went to Sauber*fn6 in January, 1948, and disclosed to him that Shotwell had failed to include as income the blackmarket payments received from Lubben when it made its tax returns for the years 1945 and 1946. Busby stated at the first suppression hearing that he was prompted to make the disclosure to Sauber at this time because he first learned of the Lubben-Shotwell over-ceiling transactions from Graflund when the two were together on a train coming from New York to Chicago. Graflund on several occasions prior to the supplemental suppression hearing supported Busby's statement in this regard, but on the supplemental suppression hearing he testified that, in stating that he imparted this information to Busby in January, 1948, he was in error and that upon further consideration and reflection, he is now convinced that he did not tell Busby about the LubbenShotwell transactions until after Agent Krane had made a visit to the Shotwell plant on June 21, 1948.
"It was not until some time in July, 1948, however, that any concerted effort was made by these defendants to make up a so-called voluntary disclosure. It is undoubtedly true that Cain, by reason of the lack of any records in Shotwell's possession, felt required to accept Lubben's figures of black-market transactions although he believed they were exaggerated. On the other hand, the alleged offsetting blackmarket payments made by Shotwell to wash out, so to speak, black-market receipts were, as represented to the Supreme Court by the affidavits of Huebner and Graflund, concocted 'out of thin air.' These figures were made up at a meeting in Busby's office in July, 1948, and at the Belden Stratford Hotel during that month, where Shotwell's representatives, including Cain, Huebner and Graflund, remained for some days in attempting to devise the amount of the black-market receipts to be offset by fictitious black-market disbursements in substantially the same amount.
"* * * Suffice it to say that the evidence clearly establishes that only a relatively small percentage of the black-market payments made by Lubben to Shotwell were utilized for the purchase of raw corn, * * *. When these defendants presented the so-called voluntary disclosure by way of written computations of blackmarket income and black-market outgo, the amounts allegedly paid for raw materials were fictitious figures selected by Cain with full knowledge that they were without verity and merely inserted in the record in order to wash out, so to speak, the black-market receipts except for some $6,000. I find, therefore, that any so-called voluntary disclosure to Sauber by Busby and Cain prior to June 21, 1948, if it be such within the purview of the voluntary disclosure doctrine, did not precipitate the investigation of the Lubben-Shotwell transactions by Krane and that it was not until after Krane's visit to Shotwell's plant that figures were presented to the Government allegedly showing the blackmarket receipts of Shotwell and Shotwell's alleged premium payments for raw materials.*fn7 * * *"
Accordingly the court found "* * * that fraud permeated the showing made by these defendants before me at the original suppression hearing, as well as at the trial and the supplemental hearing, and I find that no honest, bona fide voluntary disclosure to any government official ever was made by Shotwell or these defendants with respect to Shotwell's 1945 and 1946 taxes as contemplated by the voluntary disclosure policy in existence at the time. A dishonest and false disclosure cannot be held to by a timely voluntary disclosure."
1. In United States v. Johnson, 327 U.S. 106, 66 S. Ct. 464, 90 L. Ed. 562, where defendant made a motion for a new trial based on newly discovered evidence, said to prove that one Goldstein, a government witness, had perjured himself, the trial judge found that none of the affidavits offered in support of the motion showed perjury on the part of Goldstein and concluded that a new trial was not warranted. A reversal by our court of his action was set aside by the Supreme Court, which held, at page 111, of 327 U.S., at page 466 of 66 S. Ct., that, while we might intervene when findings of fact are wholly unsupported by evidence, we should never do so where it does not clearly appear that the findings are not supported by any evidence.
Of course, the Supreme Court has not passed upon the correctness of the result we reached on the record before us on the former appeals, 225 F.2d 394. We are now required to again pass upon defendant's motion to suppress, based, however, upon a record since supplemented by the proceedings upon remand. Therefore, giving proper recognition to the additional findings of fact of the district court, we proceed to a disposition of all contentions now awaiting resolution.
In accordance with the findings of the district court, we are required to, and do hereby, hold that the defendants' motion to suppress evidence was properly denied.
2. This conclusion is not impaired by defendants' contention that the government failed to show that the decision of this court was based upon a perjurious record attributable to fraud of the defendants, nor their assertion that the "story" advanced by Huebner and Graflund "was so startling and dramatic that the Court noted a doubt as to whether the affidavits might be 'products of fraud'." The district court on remand clearly considered relevant testimony of the defendants untrue and in effect absolved the affidavits of Huebner and Graflund of the charge of fraud.
We hold that the district court on remand proceeded responsibely to the Supreme Court's direction and that its use, at page 235 of 355 U.S., at page 247 of 78 S. Ct., of the words "perjurious record" obviously refers to the "shadow upon the truthfulness of the disclosure testimony" given by or on behalf of defendants, as referred to, at page 240 of 355 U.S., at page 250 of 78 S. Ct. This disclosure testimony was fully discussed by the district court in its findings on remand.
3. Defendants insist that the district judge erred in not having recused himself from the 1958 proceedings.Subsequent to the trial the judge made certain statements as to the credibility of witnesses, the nature of disclosures and inferences which he drew from the evidence. Defendants charge that it appears that he had fixed views on the subject of disclosure. However, it is not contended that he entertained personal - as distinguished from judicial - bias or prejudice against defendants. Therefore, we hold that his statements were insufficient as a matter of law to require an order of recusation. Tucker v. Kerner, 7 Cir., 186 F.2d 79, 84, 23 A.L.R. 2d 1027.
4. It is maintained that the district court acted arbitrarily in denying defendant Cain's motion for severance, during the proceedings on remandment. His motion was supported by the affidavits of two physicians and had to do with the state of his health. The record shows that, after hearing argument on the motion, the court ordered Cain to submit to physical examination at the Public Health Service facility in Chicago. Thereafter the chief of the medical service, Dr. I. N. Zigler, submitted to the court a report of his examination and recommended a postponement of the hearing for six months "for maximum possible improvement and stabilization of Mr. Cain's cardiac status." Such postponement was had. Several months later Dr. Zigler reported to the court that Cain's appearance for four or five hours a day would not unreasonably exceed his level of tolerance. Cain renewed his motion and submitted affidavits of two physicians. In view of a conflict in the medical testimony, by agreement of counsel, the court appointed two physicians to examine Cain and advise the court as to his ability to attend the further hearing. That was done and their reports are in the record. The court denied a motion for further postponement. The reports justified this action.
We cannot say that the court's action was arbitrary or the result of an abuse of discretion.*fn8
5. In July 1957, almost four years after the verdict, appellants, alleging newly discovered evidence, filed amended motions to dismiss the indictment and in arrest of judgment, for the purpose of challenging the arrays of the grand and petit juries on the ground that the panels were illegally constituted.
Defendants contend that the arrays of the grand jury and the petit jury were improperly selected because "volunteers are not competent as jurors in Illinois and therefore were not competent federal jurors in 1952 and 1953," and ...