Appeal from the United States District Court for the Northern District of Indiana, South Bend Division No. 73-S-CR-39 ROBERT A. GRANT, Judge.
Clark, Associate Justice,*fn* Fairchild, Chief Judge, and Pell, Circuit Judge. Fairchild, Chief Judge, concurring.
The defendant, Nick Senak, a lawyer, was charged with violation of 18 U.S.C. § 242 in a five count indictment. The indictment in substance charged Senak with having used his office as pauper attorney of the Lake County, Indiana, Criminal Court to exact sums of money from a person he had been appointed to represent (Count I) and from relatives and friends of persons he had been appointed to represent (Counts II-V) by stating to such persons that he would not adequately represent the persons he had been appointed to represent unless he were paid amounts in addition to his salary; that this conduct deprived those persons of property without due process. On motion of the defendant the indictment was dismissed. The judgment of dismissal was reversed by this court and the case was remanded for further proceedings. United States v. Senak, 477 F.2d 304 (7th Cir. 1973), cert. denied, 414 U.S. 856, 38 L. Ed. 2d 105, 94 S. Ct. 157. At the trial which followed, Count V was dismissed on motion of the Government on the morning of trial. At the conclusion of the Government's evidence, the district court sustained the defendant's motion for acquittal as to Count I. The jury returned a verdict of guilty on Counts II and IV (concerning James Cadle and Honore Gilarski) and not guilty on Count III (concerning Willie Drake). The defendant was sentenced to a term of imprisonment for 60 days on each of Counts II and IV to run concurrently and was fined in the total amount of $2000.00.
On this appeal, the defendant's contentions are directed to evidentiary matters (admission of a witness's statement as past recollection recorded; admissions of testimony of past similar acts; cross-examination of three defense witnesses; and a remark by Government counsel in closing argument), jury instructions, and denial of motions for judgment of acquittal.
The evidence viewed as it must be in the light most favorable to the Government's position with regard to the two Counts on which there were convictions is in substance as follows.
Cadle who lived in Detroit learned from a telephone call from his mother that his father, whom he knew to be "broke" was charged with a crime in Lake County and that he was represented by Senak. The defendant was appointed on September 20, 1966, as pauper attorney to represent the father who according to the court entry was "in Court without funds to employ counsel." Cadle borrowed $100 from a friend and went to Gary. Upon arrival there he had a telephone conversation with Senak who "said that he wasn't representing anyone until he has his fee, and it was $500." The following day Cadle went to Senak's office and saw a sign on the desk which said "Pauper's Attorney." The office was in the court house at the county seat. Cadle gave Senak the $100 and told him he would have to borrow the balance. Cadle told Senak that he thought his father was an alcoholic and should be in a hospital rather than in a prison. Senak agreed and said that if Cadle could come up with additional money that "we can see that he don't go" to prison and "we'll get him in a hospital." Cadle did not pay the additional amount. The father was sentenced to imprisonment on a guilty plea. At the time the plea was entered on October 10, 1966, Senak withdrew as pauper attorney but appeared as counsel for the father. The son was unaware of this.
Cross-examination developed some conflicts in Cadle's testimony. However, we are not the trier of facts and the conflicts were not sufficient to cause us to disregard the above summary as having been established to the satisfaction of the jury.
Steve LaPosi was charged by affidavit filed on August 12, 1967, with statutory rape (No. 39254, hereinafter No. 54) and by affidavit filed on August 14, 1967, with assault and battery with intent to gratify sexual desires (No. 39256, hereinafter No. 56). On September 13, 1967, the court's entry in No. 54 showed that the defendant was without funds and that the court appointed Pauper Attorney Senak to represent him. No similar appointment appears in the docket sheet of No. 56; however, on September 22, slightly more than a week after the defendant had been judicially found to be without funds, the defendant by "Atty Nick Senak, files verified petition to establish" the defendant as being a criminal sexual psychopathic person. The status of Senak at the outset in No. 56 is not clear from the record. Senak testified in response to a leading question from his own counsel that he appeared as private counsel in No. 56 on September 22.*fn1 At one point, Senak testified, "pursuant to the one sheet, it shows my appointment. Why the other sheet wasn't brought in at the same time to show my appointment, I can't tell you." This would appear to suggest that he had been appointed in the second case but that the appropriate entry had not been made. The next question concerned Senak being contacted by one [Honore] Gilarski. The following then appears in Senak's testimony:
"Q And would that have been before or about on September 22, 1967, when you appeared as private counsel in Cause No. 39256?
A That would be, as I remember, and at the same time -- the other sheet I interviewed him and at the time I entered my appearance in the sheet you're talking about, I brought in the other sheet. And I told the Court to -- because Mr. LaPosi wanted to retain me. And he said that a girl-friend -- I believe he said that he was going to marry -- was going to pay his attorney's fees. I brought in both sheets at the same time as the sheet that shows that I was appearing as private counsel."
Senak then returned to the subject of Gilarski, testifying that he told her what LaPosi was charged with, that the cases would have to be consolidated, that LaPosi had told her he wanted Senak as his attorney and she had said she was willing to pay the attorney's fees, that he was permitted to enter an appearance for LaPosi and would do the best he could under the circumstances and the type of case involved, that she would retain any lawyer she wanted but she wanted Senak because he was familiar with the case and that she gave him some money at that time and some more later.
Gilarski, the girl friend of LaPosi, who was the Government witness on Count IV, testified that she first came to know Steve LaPosi in March or April of 1968, which was at least one half a year after the first contact Senak's testimony would seem to say he, Senak, had had with her about LaPosi's criminal prosecution. The docket entry in No. 56 shows that on March 22, 1968, LaPosi was A.W.O.L. from the Dr. Norman M. Beatty Memorial Hospital at which he had been earlier accepted in accordance with the trial court's commitment of him to the Division of Mental Health. Gilarski testified that she first became acquainted with LaPosi about a week after he had run away from the hospital.
Gilarski also testified that he said if she gave him any money in regard to "this case" that he would have "to withdraw as a Court-represented attorney," and appear as a private attorney. Senak did not withdraw as pauper attorney in No. 54 until July 9, 1969, the date of the one day trial in that case upon which LaPosi was found not guilty. The two cases were never consolidated and the record reflects no effort to achieve that end. Gilarski did not know that there was an assault and battery case, No. 56, until after the trial in No. 54. At that time Senak asked for about $700.00 additional "and that the total of $1200.00 that he (Nick Senak) had requested was to be split between a couple of other people. [She] could only pay about $350 sometime in the late Summer." On September 24, 1968, the State dismissed, being unable to produce any of its witnesses.
According to Gilarski, her first contact with Senak was by telephone. The conversation was initiated by Senak and he asked her to pay about $500.00 to defend Steve. She asked what the charges against LaPosi were and Senak told her it was rape.
"A. Well, I asked him what he was doing to assist Steve, and he said at that time he hadn't had a chance to talk to Steve since he had been brought from the Beatty Hospital back to the County Jail. He wasn't even sure, he told me at that time, if he was still assigned to the case."
Gilarski also testified that during the telephone conversation Senak said "that Steve didn't have much of a chance, but that if I came up with some money, he would have a better chance."
The telephone conversation took place in the Spring of 1968. She met Senak at the court house and made the first payment of $300.00 to him on May 29, 1968, for which he gave her a receipt. She met him again at the court house the day of the trial on No. 54 and paid him the balance. Gilarski was uncertain just when she learned Senak was the pauper attorney. He did say to her that "Steve would not have much help without me giving him the money."
The first contention of Senak is that the district court erred in denying his objection to improper argument by the Government in its final summation. The defense brought in a number of witnesses who testified that Senak's reputation in the community for honesty, integrity, truth, and veracity was excellent. Senak then took the stand. On cross-examination, he was asked with regard to several payment transactions which were in evidence, including the Cadle payment, whether he had included the amounts involved in his federal income tax returns for the year. It was indicated that he had not. It also appears that the amounts in question did not appear in Senak's own records which he had turned over to the I.R.S. According to the defendant on this appeal, to offset the unfavorable inference from this line of questioning, on redirect examination he testified that he had voluntarily turned over all of his books and records to the Internal Revenue Service, had answered all questions put to him by the agents and had cooperated with the agents of the Internal Revenue Service. He further testified that as a lawyer he knew that he was entitled not to turn over any of his documents. The following then appears in the transcript:
"Q. Did you turn over all of your records to the Internal Revenue Service voluntarily?
Q. Did they ever have to subpoena any of your records?
He also testified on redirect examination that the first examination by the I.R.S. agents took two days, that there was no criminal charge filed against him in connection with the examination and that he had agreed to a deficiency because it would be prohibitively expensive to contest the matter in view of the small amount involved.
Upon recross-examination, the Government brought out that the investigation by the I.R.S. was a criminal investigation and that the deficiencies pertained to both the civil and criminal cases. The deficiencies in the criminal investigation for 1965 of $3,225 and for 1966 of $4,500 were identified by Senak as being possibly correct amounts. Upon redirect, Senak testified that he was an attorney and knew the law and would not have volunteered any records to the I.R.S. if he had committed a wilful fraud, knowing in such case that he would be subject to criminal prosecution.
In the opening summation argument of the Government, counsel after adverting generally to the evidence of guilt, referred to the parade of character witnesses. "Those witnesses," he stated, "did not look at Nick Senak's tax returns, or did not talk to his clients." Defense counsel responded:
"And this man has been under investigation. The I.R.S. couldn't get him. So they came at him with this. Is this the conduct of a man who feels that he has committed a criminal offense? If he felt that he was cheating, defrauding the Government, not paying his taxes, a man who is a criminal defense lawyer says to the I.R.S.: 'Here. Take all my records. Look at them. I'll talk to you about everything. I'll make statements to you,' which he did.
"Is this the mark of guilt? No, this is the mark of a free and honest conscience. If you have something to hide and you know the I.R.S. is breathing down your neck, a criminal tax investigation, particularly a criminal defense lawyer, he is not going to say to them, 'Here are my books and records. Here, use my adding-machine, too. I'll help you convict me.'"
In the Government's closing argument, counsel referred to the income not reported and argued that if a person has a lawful right to that money, if he is an ethical person, he should report that as his fees. "Maybe he was cooperative with the Internal Revenue Service, but if he knows full well that if you don't hand the man the documents, then he's going to hand you a subpoena. It's as clear-cut as that." Defense counsel objected to the statement on the ground that a taxpayer in a criminal investigation does not have to volunteer anything. The trial court denied the objection, observing that he thought the defense comment was erroneous. After further colloquy, Government counsel concluded the particular subject by observing that it showed guilty knowledge.
The defendant's claim of reversible error appears to be primarily based upon the Fifth Amendment ground that an accused cannot be compelled to give evidence against himself in a criminal proceeding and is thereby protected from the compulsory production of books and papers that would tend to incriminate him, citing U.S. v. White, 322 U.S. 694, 88 L. Ed. 1542, 64 S. Ct. 1248 (1944); Curcio v. U.S., 354 U.S. 118, 1 L. Ed. 2d 1225, 77 S. Ct. 1145 (1957); U.S. v. Cohen, 388 F.2d 464 (9th Cir. 1967); 58 Am.Jur. Witnesses, Sec. 69, p. 62, et seq. (1948). The gist of the argument is that the jury was misled into believing that the defendant's cooperation with the tax authorities was a sham and subterfuge since the Government could obtain the same information by subpoena.
As an initial matter, it is not as clear as the defendant would have us believe that an I.R.S. summons could not have forced the production of the records. In Donaldson v. United States, 400 U.S. 517, 27 L. Ed. 2d 580, 91 S. Ct. 534 (1971), it was held that the use of the I.R.S. summons is authorized in investigating what may turn out to be criminal conduct so long as it is issued in good faith and prior to a recommendation for criminal prosecution. A discussion of guidelines for enforcement of such a summons and of the manner in which the summoned individual can claim constitutional privilege is set forth in United States v. Awerkamp, 497 F.2d 832 (7th Cir. 1974). The record does not help us here. It is apparent that the investigation had criminal aspects but there is no showing as to whether prosecution had been authorized. It is clear that it never occurred. We cannot say that the district court was incorrect in characterizing as erroneous the defense comment that a taxpayer in a criminal investigation does not have to volunteer anything.
We do not, however, deem it necessary to resolve this question. The first reference to the use of a subpoena to secure records did not come from the Government but occurred during the redirect examination of Senak when his own attorney, during the course of putting a gloss on his client's openness, hiding-nothing attitude, asked Senak if they ever had to subpoena any of his records. All that the prosecutor said was that if one doesn't hand over the records he will be handed a subpoena. We do not agree with the defendant that this necessarily implies more than it says, i.e., that he would have had to comply with a subpoena or summons. Under any circumstances, upon the issuance of a summons Senak would have found himself in the undesirable position for a lawyer of denying compliance because to do so might incriminate him.
Colloquies of the sort which developed here mostly out of the fact that a substantial part of the defense was the good character of the defendant tend to resemble a snowball being pushed back and forth across an open field. The size and scope increase with each directional roll. In viewing this give-and-take which occurs in vigorously contested litigation, our principal inquiry is whether the prosecutorial remarks deprived the defendant of a fair trial. See United States v. Cook, 432 F.2d 1093, 1106-08 (7th Cir. 1970), cert. denied, 401 U.S. 996, 28 L. Ed. 2d 535, 91 S. Ct. 1224 (1971). Viewing the argument as a whole, see United States v. Greene, 497 F.2d 1068, 1084 (7th Cir. 1974), and bearing in mind that the comment anent the subpoena was the culmination of the opening defense gambit that Senak did not require a subpoena to produce his records, we are not persuaded that the argument of the Government counsel brought about an unfair trial.
Senak next contends that the district court erred in permitting the statement provided by Honore Gilarski to the FBI to be admitted as substantive evidence under the hearsay rule exception of past recollection recorded. The statement in question had been taken by two FBI agents on February 11, 1971. When Gilarski stated that she could not remember any further conversation with Senak, she was handed the two page statement for the purpose of refreshing her recollection. Upon the completion of her examination of the document, she stated that her recollection was not refreshed as to conversations she had with Senak in 1968. The Government then moved to admit the statement into evidence as past recollection recorded. After a spirited colloquy, the court indicated that it would admit the statement if the witness testified that she had read it entirely and it was true and correct. The statement was then produced and the witness testified that that part which read, "I Honore L. Gilarski, have read this and one other handwritten page, and understand it, and it is true," was in her own handwriting. She was then asked and responded:
"Q. Mrs. Gilarski, was this a true statement at the time you were interviewed by the FBI Agents in 1961?
The statement was then admitted. Numerous deficiencies in the procedure are urged, not all of which were presented to the district court. We do not conceive that any of these were deliberately waived in the trial court as a tactical matter, or for other reasons and will consider each of the asserted deficiencies. Nevertheless, in the overall evaluation of the egregiousness of the claimed error we cannot be unmindful that a litigant is not in as secure a position of complaining about a trial court ruling for the first time on appeal as he would if he had specifically brought the matter to the attention of the trial court thereby affording that body the full opportunity of appreciating all incorrect aspects of the action taken or to be taken. Defense counsel objected and objected ...