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United States v. Kenner

decided: December 15, 1965.

UNITED STATES OF AMERICA, APPELLEE,
v.
EUGENE KENNER, APPELLANT



Waterman, Hays and Anderson, Circuit Judges.

Author: Hays

HAYS, Circuit Judge:

Kenner appeals from a judgment of conviction entered upon a jury verdict finding him guilty of violating 18 U.S.C. § 201(f) (two counts) and of aiding and abetting (18 U.S.C. § 2(a)) violations of 26 U.S.C. § 7214(a)(2)*fn1 (five counts). Kenner was sentenced to imprisonment of one year on each of the seven counts on which he was convicted, the sentences to run concurrently.

The offenses of which Kenner was convicted consisted essentially of bribery of employees of the Internal Revenue Service. Kenner was a certified public accountant who prepared income tax returns for his clients and represented these clients when their returns were audited by the Service. His criminal activities, as pictured by the government's evidence, all followed a single pattern with only slight variations in individual cases.

Kenner would suggest to an auditor in the office audit division of the Internal Revenue Service in New York that he, the auditor, "pull" for audit X's tax return, X being one of Kenner's clients. This procedure was in itself irregular, since returns were ordinarily assigned to the individual auditors by the group supervisor. Kenner would then propose to the auditor an amount of deduction for business expenses, travel, entertainment, medical expenses or the like which should be disallowed. The auditor, without examining the merits of the proposed amount (or the substantiation for the amounts claimed) would make up his report disallowing the amount which Kenner had suggested. Kenner would then by prearrangement meet the auditor at some place outside the audit division's offices and, usually in a surreptitious manner, give him fifty or seventy-five dollars.

Appellant advances a number of claims of error in the proceedings of the district court. Finding that there was no error sufficiently prejudicial to call for reversal of the conviction, we affirm.

We shall examine appellant's contentions seriatim.

1. The Allen charge.

After deliberating for three hours and forty-five minutes the jury sent out a message stating that it was "hopelessly deadlocked." The judge thereupon, over defendant's objection, read to the jury a passage, slightly modified, from the opinion in Allen v. United States, 164 U.S. 492, 501-502, 17 S. Ct. 154, 157, 41 L. Ed. 528 (1896).*fn2

This court has in the past approved the Allen charge in certain circumstances. United States v. Tolub, 309 F.2d 286 (2d Cir. 1962); United States v. Curcio, 279 F.2d 681 (2d Cir.), cert. denied, 364 U.S. 824, 81 S. Ct. 59, 5 L. Ed. 2d 52 (1960); United States v. Kahaner, 317 F.2d 459, 484 n. 18 (2d Cir.), cert. denied, Corallo v. United States, 375 U.S. 835 84 S. Ct. 62, 11 L. Ed. 2d 65 (1963). However, in all of these cases, as well as in United States v. Thomas, 282 F.2d 191 (2d Cir. 1960), which is also cited by the government, the effect of reading to the jury that part of the Allen opinion which Judge Murphy read, was mitigated by the assurance in some form that a juror was not expected, in deference to the other jurors, to abandon his conscientious convictions.

In United States v. Tolub, which the government says quoted exactly that portion of the Supreme Court's opinion quoted by Judge Murphy, the Judge added immediately after the quotation:

"Remember at all times that no juror is expected to yield a conscientious conviction he or she may have as to the weight or effect of evidence, but remember also that after full deliberation and consideration of all the evidence, it is your duty to agree upon the verdict, if you can do so, without violating your individual judgment and conscience."

In United States v. Kahaner, supra, 317 F.2d at 483-484, Judge Friendly said:

"[The trial judge said in his charge] 'It is desirable if a verdict can be reached that this be done both from the viewpoint of the defendants and the Government', but that this was true only if the verdict 'reflects the conscientious judgment of each juror and under no ...


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