John W. Harris v. United States, 367 F.2d 633, 1st Cir. (1966)

367 F.
2d 633
John W. HARRIS, Appellant, Defendant,

v.
UNITED STATES of America, Appellee.
No. 6706.
United States Court of Appeals, First Circuit.

Heard Sept. 14, 1966.
Decided Oct. 28, 1966.
Lawrence F. O'Donnell, Boston, Mass., with whom John B. Greene,

Boston, Mass., was on Brief, for appellant.
Albert E. Cullen, Jr., Asst. U.S. Atty., with whom Paul F. Markham, U.S.
Atty., was on brief, for appellee.
Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit
Judges.
OPINION OF THE COURT.
McENTEE, Circuit Judge.
This is an appeal by the defendant Harris from a judgment of conviction

entered on a jury verdict finding him guilty of conspiring to defraud the United
States in violation of 26 U.S.C. 7214(a)(4)1 and of conspiring to demand and
receive a bribe in violation of 18 U.S.C. 371.2
Harris was a revenue officer in the Collection Division of the Boston Office of
the Internal Revenue Service. Codefendant Chandler3 was his immediate
supervisor. In the course of his employment Harris was assigned to collect
delinquent taxes from a corporation known as Anita Chue, Inc. and also from
Mrs. Anita Chue individually. Both taxpayers were represented by a Boston
attorney named Dwork.
Following a conference with Harris in early December 1964, Dwork sent a

check to Internal Revenue for $4,000 in settlement of his clients' tax liabilities.4
Some two weeks later (December 29) Harris visited Dwork at his law office
and told him he could recommend that his clients' tax liabilities be written off
as uncollectible if the information to be submitted by Dwork was in line with a
resume Harris showed him.5 Harris then suggested that he would return the
$4,000 check, that Dwork take $1,000 in cash as a fee and submit the balance
of $3,000 as an offer in compromise. Dwork immediately reported this unusual
conversation to the United States Attorney's office in Boston.
4
In the investigation that followed Dwork allowed Internal Revenue to install

electronic equipment in his office and in his automobile for the purpose of
listening to and recording his conversations with Harris.6
On December 31 Dwork called Harris at home at the latter's request and some
of the matters connected with Harris' proposal were discussed. A meeting was
held at Dwork's office on January 4, 1965.7 Two days later Dwork met Harris
in a parking lot in the Boston area and gave him an envelope containing $3,000
in bills.8 The next morning (January 7) Harris and Chandler were observed
driving up to the Internal Revenue building in Harris' car and talking together as
they entered the building. Later that day Chandler purchased some clothing
with one of the marked bills and when arrested that same afternoon $1,400 of
the marked money was found in his wallet. Harris was arrested that evening but
none of the marked money was found in his possession.
One of the many contentions raised by the defendant on appeal is that the trial
court erred in not excluding the tape recordings and all other evidence obtained
from eavesdropping. The tapes objected to were recordings (1) of personal
conversations between Harris and Dwork in the latter's office and in his
automobile, and (2) of recordings of telephone conversations between them.
Defendant's chief objection to the admission of these tapes9 is that this
evidence violates his Fourth Amendment right of privacy.
This is not a case in which the listening and recording devices were planted
secretly in defendant's home by some unlawful physical invasion. Silverman v.
United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). Here, all the
recorded personal conversations took place in Dwork's office or in his
automobile. The recording devices were installed and the recordings made with
Dwork's express consent. Also, the admission in evidence of recordings of the
various telephone conversations between Harris and Dwork which were made
in the latter's office was entirely proper. Dwork, who was a party to them,
certainly was entitled to disclose the contents of these conversations. The fact
that the disclosures were made through the medium of an electronic recording
device does not render them inadmissible. Glacy v. United States, 361 F.2d 31,
35 (1st Cir. 1966), cert. denied, Oct. 10, 1966, 87 S.Ct. 69. Therefore, the
admission of all the recordings complained of by defendant was proper.10
8
Defendant's principal contention on appeal is that he was denied a fair trial

because of the partisan manner in which the trial was conducted. In support of
this contention he endeavors to persuade us that the trial court (1) refused to
give defendant's counsel a full opportunity to cross examine government's
witnesses; (2) addressed disparaging remarks to defendant's counsel in the
presence of the jury and (3) made partisan comments in the course of its charge
to the jury.
From our examination of the voluminous record in this case we are satisfied
that this contention is without merit. The extent to which cross examination
shall be allowed rests within the sound discretion of the trial court. In order to
establish an abuse of discretion in this case, the defendant must show that the
restrictions imposed upon his cross examination were clearly prejudicial.
McManaman v. United States, 327 F.2d 21, 24 (10th Cir.), cert. denied, Jenkins
v. United States, 377 U.S. 945, 84 S.Ct. 1351, 12 L.Ed.2d 307 (1964). There is
no such showing here.11
10
The record indicates that the alleged disparaging remarks complained of were
made during bench conferences with counsel and there is no showing that they
were heard by the jury.12 Consequently, we cannot say that these remarks
prejudiced the defendant's case or amounted to a denial of a fair trial as he
claims.
11
Defendant quotes two unconnected portions of the court's charge, 13 taken out of
context, in an attempt to show that the court's comments during the charge were
of a partisan character, and denied defendant a fair trial.14 As we said in
Charles A. Wright, Inc. v. F. D. Rich Co., Inc.,354 F.2d 710, 713-714 (1st Cir.),
cert. Denied 384 U.S. 960, 86 S.Ct. 1586, 16 L.Ed.2d 673 (1966), 'The fairness
of a charge cannot be determined by considering only a portion of it out of
context. On appeal, the charge must be examined as a whole and portions of it
will not be scrutinized apart from their content as isolated verbal phenomena.'
Also, it should be noted here that in giving his charge, a trial judge is
necessarily vested with wide discretion. Dranow v. United States, 307 F.2d 545
(8th Cir. 1962).
12
We have examined the charge as a whole and in our opinion the trial court was
well within the limits of this discretion in making the remarks complained of.
Taken in context these remarks15 do not constitute prejudicial error or deprive
defendant of a fair trial.

13
All other points raised have been considered and have been found to be without
merit.
14
Affirmed.
7214. Offenses by officers and employees of the United States

'(a) Unlawful acts of revenue officers or agents.-- Any officer or employee of
the United States acting in connection with any revenue law of the United
States-(4) who conspires or colludes with any other person to defraud the United
States; or
Shall be dismissed from office or discharged from employment and, upon
conviction thereof, shall be fined not more than $10,000, or imprisoned not
more than 5 years, or both. * * *'
371. Conspiracy to commit offense or to defraud United States

'If two or more persons conspire either to commit any offense against the
United States, or to defraud the United States, or any agency thereof in any
manner or for any purpose, and one or more of such persons do any act to effect
the object of the conspiracy, each shall be fined not more than $10,000 or
imprisoned not more than five years, or both.'
Chandler, who was brought to trial with Harris, changed his plea to guilty
during the trial
At that time the Anita Chue Corporation owed the government some $17,000
or $18,000 in taxes for which Mrs. Chue could also be held responsible. The
corporation had been recently sold and an escrow account set up in connection
with the sale. Harris suggested to Dwork that he take his fee out of this account
and submit the balance as an offer in compromise. The $4,000 check
represented the balance in the escrow account
If a revenue officer arrives at the conclusion that the account is uncollectible,

he prepares a revenue officer's report of uncollectible taxes. This form contains
financial and personal information about the taxpayer and must be submitted
for approval to his group supervisor. Before submission the usual procedure is
to consult with his group supervisor to see if he agrees that this is an

uncollectible tax case
6
All conversations between Dwork and Harris which took place after December
29, 1964, were recorded and the audible ones were offered in evidence at the
trial. Telephone conversations between them were also listened to and recorded
through the use of electronic devices
At this meeting Harris read his 'write-off' report to Dwork and returned the
$4,000 check. Dwork then agreed to give him $3,000 which Harris insisted be
in cash
The money was passed to Harris on the evening of January 6 in Dwork's car in
the parking lot. Harris cautioned him to keep quiet about the deal and made
other incriminating remarks. The $3,000 in bills had been marked and the serial
numbers recorded by an Internal Revenue Inspector prior to delivery of these
bills to Dwork
In our opinion the other objections raised to the admission of the tapes do not
warrant discussion
10
It should be noted that a proper foundation for the admission of these

recordings was laid through the testimony of one of the Internal Revenue
inspectors who helped to make them
11
In fact, it appears that the trial court allowed defendant's counsel considerable
latitude in his cross examination of government witnesses
12
Only two bench conferences are involved and one of them took place after 4
p.m. presumably after the jury had left the courtroom for the day
13
(1) The court admonished the jury to keep in mind that it was Harris, not the
Internal Revenue Service or the delinquent taxpayer or its attorney, who was on
trial and then stated briefly the offenses set forth in the indictment. (2) The
Court stated Count 3 in its own language and explained that this is a substantive
charge as distinguished from the conspiracy counts
14
Defendant did not object to either of these portions of the charge
15
Certainly the court had the right to tell the jurors who was and who was not on
trial before them and also the nature of the charges. The record does not
indicate that this was done in an unfair manner. Obviously the other portion of
the charge which related to Count 3 of the indictment did not result in any
prejudice. The jury found Harris not guilty of the crime charged in this count

John W. Harris v. United States, 367 F.2d 633, 1st Cir. (1966)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

John W. Harris v. United States, 367 F.2d 633, 1st Cir. (1966)

Uploaded by

Copyright:

Available Formats

367 F.

John W. HARRIS, Appellant, Defendant,

United States Court of Appeals, First Circuit.

Lawrence F. O'Donnell, Boston, Mass., with whom John B. Greene,

This is an appeal by the defendant Harris from a judgment of conviction

Following a conference with Harris in early December 1964, Dwork sent a

In the investigation that followed Dwork allowed Internal Revenue to install

Defendant's principal contention on appeal is that he was denied a fair trial

defendant of a fair trial.

7214. Offenses by officers and employees of the United States

371. Conspiracy to commit offense or to defraud United States

If a revenue officer arrives at the conclusion that the account is uncollectible,

to consult with his group supervisor to see if he agrees that this is an

It should be noted that a proper foundation for the admission of these

Defendant did not object to either of these portions of the charge

You might also like