Full opinion text
STEPHENS, Circuit Judge. Sam Ormont and Phillip Himmelfarb were, on January 22, 1947, jointly charged by a federal grand jury with four counts under Section 145(b) of the Internal Revenue Code, 26 U.S.C.A. § 145(b). Count one charged that Ormont and Himmelfarb attempted to defeat and evade federal income tax owed by Ormont for the calendar year 1944 by filing a false tax return understating Ormont’s net income and income tax for that year. Count two contained similar. charges against both in connection with Himmelfarb’s return for income and income tax for 1944. Counts three and four contained similar charges against Ormont as to his returns for >the years 1942 and 1943. Individual returns were filed by Him-melfarb and Ormont at the proper times as to income received in the conduct of the Acme Meat Co. An information return was subsequently filed by them for “Miscellaneous Enterprises”, asserted by them to be a joint venture, for the fiscal year beginning May 1, 1944, and ending April 30, 1945, in the sum of $71,388.84 with no deductions or other information stated and disclosing an equal division between them of income. There is much in this opinion which applies to the cases of both defendants-appellants. There is considerable in the opinion which applies solely to either one or the other of the defendants-appellants. Generally speaking, it will be obvious what portions appertain to either or both. Where it has seemed useful we have plainly stated the defendant-appellant concerned. Motion for dismissal of the indictment was denied and a motion for a bill of particulars was denied in part and granted in part. Pleas of not guilty to each of the counts were entered. The court dismissed counts two, three and four as to Ormont and count one as to Himmelfarb. A jury trial was had, and Ormont was found guilty upon count one and Himmelfarb guilty on count two. Motions for acquittal and for a new trial were denied and each has separately appealed. The evidence discloses that Sam Ormont owned and operated a wholesale meat business under the fictitious ' name of Acme Meat Co. in Vernon, California, and employed Phillip Himmelfarb who, prior to May 1, 1944, had been a government licensed meat wholesaler and packer. After this latter date the two operated the business in partnership until (at least) April 30, 1945. The books of the Acme Meat Co. were kept on a calendar year basis. Shortly before the filing of the joint return, heretofore mentioned, investigations were made concerning the income tax returns of both appellants for the years 1942 to 1944 inclusive. According to the evidence, income from sales of meat, made within ceiling prices under OPA, were reported on invoices and recorded in the company books and appellants’ returns for 1944 were based on these figures. It is indicated that “bonus” or “overceiling” payments of additional cash sums paid by customers of Acme Meat Co. were received but not reported on the books nor were they reported for income tax purposes for the year 1944; as to all of which both appellants were well aware. Further, there is testimony that income from certain sales was shown on invoices which were not transmitted to the appellants' bookkeeper and therefore were never entered nor included in the books from which the income returns were made. These unreported invoices or lists were kept in a desk drawer at the plant. There is also indication of some falsity in keeping of records which goes to the general intent of appellants to misrepresent their income. Evidence is in the record of a partnership return declaring additional income of some $71,000.00, claimed to have come from the so-called “Miscellaneous Enterprises”, bank records and bank documents pertaining to each appellant, records of business dealings, invoices, canceled checks, transcripts of portions of the records of the Acme Meat Co. and bond records. There is testimony that Ormont made admissions to Internal Revenue Agents which were adverse to his interest and which were recorded at the time made in an affidavit signed by Ormont, and that Or-mont later retrieved the affidavit by subterfuge and destroyed it. There is also testimony to the effect that the appellants operated a partnership and divided profits therefrom equally; that the $71,000.00 claimed to have come from “Miscellaneous Enterprises” came from so-called “bonuses” received in the Acme Meat Co. business and not recorded in the company’s books. However, there is evidence that a private record thereof was kept by Ormont in a small memorandum book claimed to have been seen by government witness Bircher, Special Agent for the Bureau of Internal Revenue. He stated that he saw a page in the back of the book on which an amount a little in excess of $35,000.00 was itemized, something in excess of $11,000.00 being recorded as having been earned from secret and unrecorded charges or bonuses from May 1, 1944, to January 5, 1945, and the balance or some $23,000.00 being recorded as earned from such sources from January 5,1945 to April 30,1945. Himmelfarb was represented at the trial by Attorney Katz, and Ormont was represented at the trial by Attorney Robnett. At the outset it was agreed that motions, objections and stipulations made on behalf of either defendant would be considered as made on behalf of the other defendant as well. The district attorney in the presence of the panel of prospective jurors referred to another criminal case pending against defendants. The court ordered the reference stricken and instructed the prospective jurors to disregard it entirely, and the jury was sworn to try the case. Thereafter Katz made a motion to declare a mistrial and to discharge the jury. The following colloquy occurred: District Attorney: “Your Honor, I would have no objection to the calling of another panel. I don’t want to injure the defendants by a statement which I didn’t realize was improper when 1 made it. I will agree, if your Honor sees fit, to call another panel of jurors.” The Court: “I will grant the motion to withdraw the jury and declare a mistrial íjí The Court: “May it be stipulated that the jury may be excused without being brought back to court ?” Both counsel entered into such stipulation. Thereafter, Robnett on behalf of Ormont made a motion that the case be dismissed and that a plea of once in jeopardy be entered. Katz specifically disclaimed the motion. The court denied it. Another jury found the verdict upon which the judgment here appealed from was based. It is argued on appeal that the latter ruling was error and that the dismissal, after the first selected jury was sworn, constituted “once in jeopardy.” It seems clear to us that the stipulation, whereby it was agreed that the stipulations, motions and objections of each attorney on behalf of one defendant should also be considered as made on behalf of the other defendant, was applicable to the ordinary procedure of the trial, and not to constitutional rights of defendants. And it is plain that no stipulation of counsel waiving his client’s constitutional right could be effective without the client’s specific assent. In absence of express authority, an attorney has no power to surrender substantial legal rights of his client. 7 Corpus Juris Secundum, Attorney and Client, § 100c, p. 922. Since there was no such assent given, the stipulation was ineffective as a waiver of Ormont’s plea, through his counsel. To hold that Ormont, or indeed, Himmelfarb, acquiesced in the discharge of the jury is “to condone a dangerous laxity on the part of the trial court in the discharge of its duty to preserve the fundamental rights of an accused.” Glasser v. United States, 315 U.S. 60, 72, 62 S.Ct. 457, 465, 86 L.Ed. 680. Furthermore, “whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that deterrnination to appear upon the record.” Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 146 A.L.R. 357. “The fact that the court and the district attorney regarded the defendants as consenting to’ the course that was taken, ought not, in the absence from the minutes of the court of any statement that they consented, to conclude them." United States v. Watson, Fed.Cas.No.16,651, 3 Ben. 1. In Barrett v. Bigger, 57 App. D.C. 81, 17 F.2d 669, 670, certiorari denied, 274 U.S. 752, 47 S.Ct. 765, 75 L.Ed. 1332, the court found accused’s consent in the following entry: “Cont’d to Nov. Sess. 1921, on request of Dft.; consented to by Dist. Atty., Prosecutor, and Private Counsel.” The real issue presented is whether or not there was a legal necessity supporting the discharge of the first jury. It is said in Thompson v. United States, 155 U.S. 271, 274, 15 S.Ct. 73, 74, 39 L.Ed. 146, citing United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165; Simmons v. United States, 142 U.S. 148, and Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429: “Those cases clearly establish the law of this court that courts of justice are invested with the authority to discharge a jury from giving any verdict whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated, and to order a trial by another ■jury; and that the defendant is not thereby twice put in jeopardy, within the meaning of the - Fifth Amendment. * * *.” The proposition was clearly stated by Judge Story: "The question is simply this: A party‘is on trial before a jury, and a circumstance occurs, which will occasion a total failure of justice if the trial proceed; have the court, in such an emergency, power to withdraw a juror? * * * It is now held, that the discretion exists in all cases, but is to be exercised only in very extraordinary and striking circumstances. Were it otherwise, the most unreasonable consequences would follow.” United States v. Coolidge, 25 Fed.Cas. pages 622, 623, No.14,858, 2 Gall. 364. Thus, a court has the power to discharge a duly empaneled and sworn jury, before verdict, without abridgement of the constitutional guaranty, if there exist urgent circumstances or an emergency which by diligence and care could not have been averted and which would thwart the administration of justice. “ * * * when it appears that a free and fair trial cannot be had it ought to be stopped, even over objection of the accused, and the Constitution will not prevent another and better trial.” Sanford v. Robbins, 5 Cir., 115 F.2d 435, 439, certiorari denied 312 U.S. 697, 61 S.Ct. 737, 85 L.Ed. 1132. It has been held that the discharge of the jury, after jeopardy had attached and before verdict, would not sustain a plea of once in jeopardy where the jury could not agree, United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165, supra; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; Dreyer v. People of State of Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79; Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734, where a juror was found to have sworn falsely on voir dire examination as to acquaintance with accused, Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968, where several jurors had read newspaper reports, Simmons v. United States, supra, where a juror was discovered to have served on the grand jury which found the indictment, Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146, supra, or on the jury of a former trial of the same cause, Martin v. State, 163 Ark. 103, 259 S.W. 6, 33 A.L.R. 133, where a juror, the court, or the accused became ill, incapacitated, or unavailable, United States v. Potash, 2 Cir., 118 F.2d 54, certiorari denied, 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540; United States v. Haskell, Fed.Cas.No.15,-321, 4 Wash.C.C. 402; United States v. Fernandez, 1 Porto Rico Fed. Rep. 453; Wharton’s Criminal Law, 12th ed., Vol. 1, § 395, where a member of a juror’s family became seriously ill or died, Hawes v. State, 88 Ala. 37, 7 So. 302; Woodward v. State, 42 Tex.Cr.R. 188, 58 S.W. 135, where it was discovered after the jury was sworn and evidence adduced that a juror was prejudiced, United States v. Morris. Fed.Cas.No.15,815, 1 Curt. 23, or related to the accused, United States v. McCunn, D.C., 36 F.2d 52, where a prisoner tampered with some of the jury, United States v. Haskell, supra, where a prejudicial exclamation was uttered by the accused during jury view of the crime scene, State v. Slorah, 118 Me. 203, 106 A. 768, 4 A.L.R. 1256, and where an essential witness for the prosecution refused to be sworn, having conscientious scruples against taking an oath. United States v. Coolidge, 25 Fed.Cas. page 622, No.14,858, 2 Gall. 364, supra. On the other hand, it has been held that the discharge of the jury on account of the inability of the prosecution to proceed with the trial because of the absence of witnesses for the Government operated as an acquittal. United States v. Watson, 28 Fed.Cas. pages 499, 501, No.16,651, 3 Ben. 1, supra; Cornero v. United States, 9 Cir., 48 F.2d 69, 74 A.L.R. 797. Compare United States v. Coolidge, supra, and Hunter v. Wade, 10 Cir., 169 F.2d 973, affirmed sub nom. Wade v. Hunter, 1949, 336 U.S. 684, 69 S.Ct. 834, “ * * * in the federal courts the recognized rule is that discharging a jury before verdict is a matter within the sound discretion of the trial 'court. * * * A defendant who pleads double jeopardy has the burden of proving” abuse of such discretion. United States v. Potash, 2 Cir., 118 F.2d 54, 56, certiorari denied, 313 U.S. 584, 61 S.Ct. 1103, 85 L.Ed. 1540. “The appraisal of the fortuitous incidents of a trial in relation to an accused’s rights is a matter primarily for the judgment of the trial judge in the immediate situation, and, unless there has been such an unwise exercise of ’his discretion as to amount to an abuse, his action will not be disturbed on appeal.” Emery v. United States, 8 Cir., 127 F.2d 561, 562. See also Kastel v. United States, 2 Cir., 23 F.2d 156, certiorari denied 277 U.S. 604, 48 S.Ct. 600, 72 L.Ed. 1010. We think the court did not abuse its discretion. Specifications of error covering a motion to dismiss the indictment, motion for a bill of particulars, and the motion for a continuance until a bill of particulars was furnished, are argued together in the briefs. Error is claimed because ' the court declined to dismiss the indictment “on the ground c)f multifariousness and uncertainty in that it did not state a public offense, did not show that any tax was due or unpaid or how the filing of a victory return could defeat or evade the tax for 1944, what portion was alleged victory tax, what portion normal tax, and what portion surtax, and that a felony and misdemeanor were improperly joined and not separately stated.” We are of the opinion -that the indictment sufficiently charges a violation within the law in question and we do not find any reversible error therein. The reference to a victory tax was surplusage as there was no such tax for 1944. Under the motion for a bill of particulars, “the items, sums, figures and facts showing the basis of the alleged income and income tax and the sums from which the Government derived such facts, items, and figures from which it made its calculations” were demanded. The trial court granted -a bill of particulars in certain respects and sufficient details were provided as to those •items which the government had to establish. The granting of a bill of particulars is within the discretion of the trial court and the court did not abuse its discretion. See Maxfield v. United States, 9 Cir., 152 F.2d 593. The motion for continuance was “based upon the ground of surprise, inability to prepare for defense, the cause of insufficiency of the indictment and lack of proper hill of particulars.” We do not see that the appellants were caught by surprise and were thus unprepared to meet the charges. It is not necessary to put all the evidence into the pleading. In Maxfield v. United States, 9 Cir., 152 F.2d 593, at page 596, supra, the court states: “It is claimed that the court was in error in denying appellants’ motion for a bill of particulars; and Singer v. United States, 3 Cir., 58 F.2d 74, is relied on as authority. In the Singer case the indictment failed to distinguish net from gross income; and the accused were surprised by the government’s evidence to the extent that long recesses had to be granted on several occasions. There, also, the books of the accused were in the hands of the government and were withheld from the use of the defense. No comparable situation existed ■here. The indictments clearly informed appellants of the annual amount of income on account of which taxes were allegedly evaded; and the figures given were .intelligibly broken down. Appellants had their records in their own possession and were in position to analyze the general allegations of the bill. There was no showing or appearance pf surprise, nor was any continuance requested while the trial was in progress. The granting or denial of a bill of particulars is in the sound discretion of the trial court, and if no abuse or prejudice appears its action in denying the application will not be disturbed on appeal. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545; Robinson v. United States, 9 Cir., 33 F.2d 238, 240. The rule has been applied in income tax evasion cases. Cf. Paschen v. United States, 7 Cir., 70 F.2d 491; United States v. Skidmore, 7 Cir., 123 F.2d 604.” Two specifications of error are combined in argument in which it is contended that the court erred in denying Ormont’s motion for immunity and for dismissal on the ground that he was subpoenaed and required to testify before the Grand Jury without being advised of his constitutional rights on matters which are involved in charges set forth in the indictment .in this case. It was urged upon the trial court that all evidence should be suppressed and immunity granted. Ormont had been subpoenaed and questioned before the Grand Jury in regard to an investigation, then pending, of alleged violations of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 901 ct seq., in the purchase and sale of meat, tie was asked questions concerning the prices he paid for having cattle slaughtered and what the “extra services” were which were charged to him, and what profits were and could have been made. The questions covered several years including 1944. There were also questions concerning various other amounts paid for special services. Appellant Ormont contends that a witness subpoenaed and compelled to testify is entitled to immunity from future prosecution, whether he claimed it or not at the time he gave the testimony or whether or not he refused to answer on the ground of incrimination. We think it unnecessary to consider this point for even if appellant is right, and we do not so hold, we do not ■agree that the principle rules this case. We have very carefully reviewed the evidence given by Ormont before the Grand Jury. It has no relation to income tax matters and was elicited in an attempt by the Grand Jury to find whether or not Ormont had been charged illegal sums for slaughtering animals. Plow or in what manner this inquiry was related to the charge in the instant case is not divulged in the record or in appellants’ briefs except as follows which we quote from the brief: “The evidence given by Mr. Ormont before the Grand Jury not only affected the matter of sales of meat, but the testimony with regard to payment of extra charges for slaughtering which would, of necessity, affect his income and his testimony as to the invokes or such matters and recording of; such charges on- his boobs, if such charges were in violation of the OPA regulations, and, presumably, they were, else King and Southern California Meat Company would not have entered pleas of guilty to the indictment, such extra charges might not be a proper reduction of his income.” The evidence referred to is that Ormont paid $1.00 per head for slaughtering a beef and sometimes exfrq services amounted to, as high as $3.00. This evidence is a far cry from revealing anything as to Or-mont’s income tax. Appellant seeks to suppress not only the evidence adduced before the Grand Jury, which was hot a basis herein of proof, but all evidence in the case. The testimony in this case is so remote from the testimony given by Ormont before the Grand Jury that no question of suppression of evidence or immunity can be premised upon it. Appellant Ormont, under Specification of Error No. 7, claims error in admission of the government’s exhibits Nos. 1 to 4. No. 1 consisted of an individual income tax return for 1942 and No. 2 consisted of •a return for 1943. Charges which these exhibits referred to were dismissed. Ex-, hibit 3 referred to the individual .income tax for the year 1944 which is the basis for count one, the count upon which this appellant was declared guilty. It is objected that the exhibit is not within the charge in that count because the return was for ordinary taxes and not for a victory tax, whereas the indictment charges the filing of a false and fraudulent income and victory tax. No argument is made concerning exhibit No. 4. Objections and argument are limited to No. 3 for variance from the indictment. Proof was entered as to the difference between an individual income tax return and an income and victory tax return. It is argued that “Count 1 of the indictment specifically charges the manner, in which and the means by which the Government alleged and claimed defendant and appellant committed the alleged crime. The first such “manner and means” is set forth as follows: “‘(1). 13y preparing and causing to be prepared, and filing and causing to be filed with the Collector of Internal Revenue for the Sixth Internal Revenue Collection District of California a false and fraudulent income and “victory tax” return * * * ’ wherein it is claimed that he falsely stated the amount of his income and victory tax. Then they set forth amount of income he reported and the amount of tax he reported and then set forth what they claimed ■the income tax was, which is a figure some $23,000.00 greater, and the tax was, which is some $14,000.00 greater.” Several cases are cited for the rule that proof must correspond to the allegations and that if there is a discrepancy in the indictment, it is a variance; further, that allegations which are descriptive of the way in which a crime is committed cannot be rejected as surplusage, but must be proved as alleged. The fact that the indictment charged that a false and fraudulent income and victory tax return was filed, is not fatal error. The word “victory” was surplusage and unnecessary to the charge. The real offense alleged was a wilful attempt to evade and defeat a legal income tax. The word “victory” is not “descriptive” of that which is necessary to the charge, as stated in People v. Deysher, 2 Cal.2d 141, 40 P.2d 259. The charge was that Ormont “did wilfully, knowingly, unlawfully and feloniously attempt to defeat and evade a large part of the income tax due and owing by Sam Ormont to the United States of America for the calendar year 1944 (1) by preparing and causing to be prepared and filing * * * a false and fraudulent income and victory tax return wherein they stated that his net income for said calendar year was the sum of $12,174.57 for income tax purposes, and that the amount of tax due and owing thereon was 'the sum of $3626.58, whereas, as they then and there well knew, his net income for the said calendar year was' the sum of $36,982.52 for income tax purposes, upon which said net income he owed to the United States of America an income tax of $18,143..12; and (2) by concealing and attempting to conceal from the said Collector and any and all proper officers of the United States the true and correct gross and net incomes received by him during the said calendar year and the sources thereof.” [Emphasis ours] It can be clearly seen that the word “victory” was surplusage, as the charge is a wilful evasion of income tax and no other conclusion could have been drawn by appellant. The California cases cited by appellant may be convincing but are not authority in a federal court. However, the cited cases do not support his claim when applied to the instant facts. Under Specification of Error No. 8 it is argued that the admission of government exhibits 38 and 39 and the introduction of any testimony in connection therewith by witness Ernest Link, was error. This evidence was objected to as incompetent, irrelevant and immaterial, and that it should not be shown to the witness or any testimony admitted thereon. The exhibits are 1942 invoices of the Acme Meat Co. It is claimed that “there was no sufficient foundation and hence they were incompetent because it was not shown these exhibits were not entered on the books and properly taken into account in 1942.” There is evidence that the exhibits were not entered by the bookkeeper, and it can be reasonably concluded that they were therefore never entered. We do not agree that the exhibits were incompetent and hence inadmissible. Ernest Link, the bookkeeper, stated that they were not entered because they did not bear his entry or check mark; that he was the party who kept the books and that he always made a check mark on the invoices when he entered the amounts of the invoices in the books. It is clear that these invoices affected the income tax due. The books were not available and Link’s testimony was in relation to accounts in the books and also as to accounts never allowed to be placed in the books. Under Specification of Error No. 24, Ormont claims error in the overruling of his objection to testimony of Samuel J. Phoebus, a deputy internal revenue collector, as to a conversation on May 18, 1945, between Ormont and Phoebus, relating to Ormont’s 1944 income. Counsel for Ormont obj ected to the question on grounds that it called for incompetent, irrelevant and immaterial testimony, that a proper foundation had not been laid, that Ormont had not been warned that his statement might be used against him, and that a corpus delicti had not been established. There were three conversations between Ormont and internal revenue officers. The first, on the 18th of May, as to which evidence was admitted but later was stricken. The second, on the 23rd of May, which was excluded from evidence. The third on May 24th, which conversation was admitted into evidence. As to the third conversation it is conceded that a warning was given but its sufficiency is attacked by Specification of Error No. 25.- Although the court had expressed doubt as to whether a corpus delicti had been laid as to Himmelfarb, the doubt had not been extended to Ormont’s case and it is perfectly clear that it had been laid prior to the admission of testimony regarding the third conversation. However, we are expressing no opinion as to the necessity of its having been so laid. It is apparent that no error can be premised upon Specification of Error No. 24. Specification of Error No. 25 concerns the testimony offered and admitted as to the third, or May 2-1th, conversation at which in addition to Ormont and Phoebus, Donald Bircher; a special internal revenue agent, was present. By way of foundation, Phoebus testified that Bircher cautioned Ormont as to the latter’s rights. It is contended that Bircher’s warning, con-cededly given,. did not satisfy the law. Phoebus testified as to the warning given Ormont: “He was also told that he didn’t have to answer any of the questions that he didn’t want to, that he was not required to answer them, and in connection with another matter he was told that anything which he said might come out later in open court In some subsequent Government proceedings.” Much is made of the questionable 'meaning of “another matter.” Phoebus further testified that Bircher told Ormont: “All right, then, we will go on and ask you questions and if you don’t want to answer any of them just don’t answer it, just say so and we will go on to the next question.” According to Phoebus, Bircher also asked Ormont if he desired to have an attorney present and that Ormont replied as follows: “ * * * he didn’t think he needed an attorney to tell the truth, that the thing had been bothering him, worrying him, and he wanted to get it off his mind so that he could go around and look people in the face again. And he repeated that he didn’t think he needed an attorney to tell the truth.” The court held the warning sufficient and we think no reversible error can be premised upon such ruling. If a warning was necessary, which we question, we think the trial court’s holding was correct. Ormont became aware on May 18, 1945, that the Bureau was running an investigation of his 1944 return and had additional knowledge of that fact by the occurrences of May 23, 1945. Therefore, when, after being told that he need not answer questions put to him by the internal revenue officers and having disclaimed any desire to have an attorney present, he proceeded to make statements, such statements can only be regarded as admissions voluntarily given. Voluntary admissions, or indeed, voluntary confessions, may be received in evidence against the giver without proof of warnings. The above serves also to dispose of Specification of Error No. 41, which concerns the testimony of Donald Bircher as to the same conversation. Part of Specification of Error No. 25 concerns Ormont’s contention that the government breached an express promise to keep in confidence whatever he said at the May 24th conversation. Bircher testified that Ormont “asked specifically whether any statements he made to us might become knowledge available to certain other Government agencies. And I told him that normally any information given the Internal Revenue Department would be held in confidence by that department, but that if a criminal trial should follow, such information might be disclosed at any such trial.” The inference drawn from this testimony by Appellant Ormont is unjustified. Whatever the consequences might have been if the facts were that Ormont was assured his revelations would not be divulged to other government agencies, it is obvious that no such assurance was given. Objections are entered to any and all testimony offered by the government witness, William S. Malin, an accountant employed by appellants’ attorney, Mr. Mir-man, who acted for Mr. Ormont and Mr. Himmelfarb jointly. It is claimed that such testimony is within the rule of privilege and inadmissible. Testimony concerned a list of bonds and other exhibits and the mailing thereof. It is argued that communications between a client and his attorney and the latter’s agents include all persons acting as such, and are privileged, citing Wig-more on Evidence, Vol. 8, 3rd Ed., p. 584. The record is not clear as to the source of the information recorded by Malin in the various exhibits offered through him by the Government. He testified that Mir-man contacted him by telephone on May 21, 1945, requesting an appointment to discuss income tax matters of Mirman’s clients, Ormont and Himmelfarb, that he first met Ormont on May 21, 1945, at his office in the company of Mirman, that there was another meeting on May 22, 1945, at Mirman’s house, at which both Ormont and Himmel-farb were present. Certainly, not all of the data was supplied Malin at those meetings. We consider it unnecessary to determine whether the factual basis for the preparation of the written exhibits had its source in information, books, or documents, given or showed to Malin by either or both of the accused, or disclosed at the above meetings, or given by Ormont or Himmel-farb to Mirman who, out of the presence of either or both of the accused, informed or showed them to Malin. Privileged communications are not recognized as between a client and his accountant. Of course, communications from a client to his attorney are generally privileged. Assuming that Malin was Mirman’s agent (it appears that Mirman engaged Malin) and that disclosures were made at the meetings to Mir-man and overheard by Malin, were such communications privileged? Where the presence of a third person is indispensable in order for the communication to be made to the attorney, the policy of the privilege will protect the client, that is, his presence is required in order to “secure the client’s subjective freedom of consultation.” 8 Wigmore on Evidence (3rd Ed.), § 2311, p. 602. Malin’s presence was not indispensable in the sense that the presence of an attorney’s secretary may be. It was a convenience which, unfortunately for the accused, served to remove the privileged character of whatever communications were made. Of course, communications made by the client to such a third party in the presence of the attorney are not within the privilege. On the other hand, if the data was obtained through voluntary and indirect disclosures by the attorney of matters received in confidence from his clients, admission in evidence of what was disclosed would violate the privilege as much as would the attorney’s voluntary disclosures on the stand. However, granting that such voluntary extrajudicial disclosures by the attorney are generally inadmissible, we feel that special circumstances may show that the client impliedly authorized the attorney to make disclosures to the third person. See 8 Wigmore on Evidence (3rd Ed.), § 2325, p. 628. If such authority is found, the problem is no different than where the communication is made to the attorney in the presence of a third person who is not indispensably necessary to the communication. Here, Ormont and Himmelfarb were aware of Malin’s employment and even participated in one or more meetings with Malin and Mirman relative to their income taxes. Some of the exhibits offered indeed were signed by the accused at Malin’s request. It is reasonable to conclude that whatever disclosures were made by Mirman to Malin were authorized by the accused. Under Specification of Error No. 43, error is claimed In denying appellant’s motion to strike all of the testimony of witness Bircher occurring after May 24 on the ground that appellant had been threatened with prosecution for destroying government property and thereafter acted under fear and submitted his books and records to the Internal Revenue Department with the understanding that all matters would be confidential and that they would permit him to adjust any deficiency. It is claimed that a confidence was breached without warning and without advising him of his deficiency or giving him an opportunity to make the adjustment. This motion referred to' an affidavit made by Ormont in which he gave information to government agents and which he later forcibly recovered from them' and destroyed. Appellant contends his entire conduct thereafter was: prompted and governed by fear, and that the testimony of Bircher to conversations and transactions after May 24 should be stricken. Ormont asserts that the taking of the affidavit was merely an attempt to straighten out the situation for he had acted under-fear in having given the testimony, particularly concerning his possession and purchase.of bonds. Mr. Ormont had been interviewed .by Mr, Bircher and the .latter wrote up an affidavit which Ormont discussed and fully agreed to. Ormont later asked to see the. affidavit which he had signed in the office of the Intelligence Unit and Bircher handed it to him. Ormont took the affidavit and started to put it into his pocket. A physical tussle followed and Or-mont disappeared with the affidavit, all of ' which occurred at the meat plant. Mr. Bircher told Ormont- to think carefully as ■he was trying to destroy government property — that such a thing was serious. However, he continued to keep the affidavit and ran away with it. We are of the opinion that the court properly admitted testimony on the following days as there is no proof from this incident that Ormont acted under fear from threats. of government agents. He was not threatened with prosecution, as contended, for destroying government property, but only that doing what he did was a serious thing and to think twice before he did it. It was properly concluded that what Ormont did thereafter was voluntary and any fear which he had was ■caused by his own action. There is no proof that a promise of confidence was made nor proof of any promise permitting adjustment of discrepancies. It is argued under Specifications of Errors No. 48 and - 49 that the court ■erred in denying appellant’s motion for an acquittal on all counts of the indictment made at the close of plaintiff’s evidence on the ground of insufficiency of the evidence. The motion was granted on counts 3 and 4 •as to Ormont and codnt 1 as to Himmelfarb and the case went to the jury against Ormont on count 1 only and against Himmelfarb on count 2 only. The argument is made that arbitrary accounting methods were used, which the court accepted as to ■some counts but not as to count 1. The adjustment of the evidence as to the income from a fiscal year to the calendar year of 1944 was the only reasonable method open to the accountant. There was no way of ascertaining directly what portion of the income came, from the joint venture, which was improperly accounted for on a fiscal year basis rather than on a calendar year basis. The $35,000.00 received from the joint venture ran from May 1, 1944 to April 30, 1945. Unless extraordinary circumstances indicated otherwise, and there are none shown, the larger part thereof accrued during the calendar year of 1944. It is argued that there is no evidence to support a ca.se showing appellant had as income in 1944 substantially the amount alleged in the indictment, and therefore he should be acquitted. The evidence in this case is sufficient to support the verdict and as stated in Maxfield v. United States, 9 Cir., 152 F.2d 593, 597, supra, “Naturally, the prosecution was not required to prove the exact amounts of unreported income as alleged in the bill,” We are satisfied from a consideration of the whole record, that the evidence sustains the charge. Further, we are satisfied that the evidence of wilfulness was sufficient to go to the jury, and, this being a question of fact, i.t was properly submitted. See Maxfield v. United States, supra. The jury, in effect, concluded that the evidence of a greater income was present for the year 1944, and that the attempt at a joint venture filing on a fiscal year basis did not truthfully represent Ormont’s business relations and that the part earned in 1944 should be included in his 1944 calendar year income. There is considerable evidence of income received by him over and above that reported — and, though there be some conflict in testimony, it is for the jury to draw the inferences and determine the facts. Residence of Each Defendant-Appellant It is also contended that there is no evidence that defendant resided in the judicial district, Southern District of California, Central Division, or that he was obligated to file any tax return in that district or to pay taxes there or that any taxes were due in that district. The indictment states in part “That on or about the 15th of March, 1945, in the Southern District of California and within the jurisdiction of this Court, etc. * * * ”. There is no showing by appellant that any challenge to jurisdiction in which the return should be made was ever suggested. Price v. United States, 5 Cir., 68 F.2d 133, is cited, in which the court stated that where accused claims that he was under no duty of making a return in the district in which the action was brought, the government has the burden to prove the jurisdiction. We have no such problem here. In Tinkoff v. United States, 7 Cir., 86 F.2d 868, 876, it is said that “ * * * when he is charged with willful effort to defeat the tax by presenting a false return, no allegation of duty upon the part of appellant is necessary.” Thus, appellant’s contention is of no avail. Under Specifications of Errors No. 50 and 51 it is charged that the court erred in denying appellant’s motion made to strike all of the testimony given by witnesses Eus-tice and Link as to the years 191-2 and 1943, because incompetent, irrelevant and immaterial, and prejudicial. The government urges that the evidence is relevant to show wilfulness in failing to report 1944 income. Appellant argues that he was acquitted on counts 3 and 4 for income tax evasion for the years 1942 and 1943; that before evidence of commission of other crimes can be admitted there must be evidence which substantially established the other crimes with clear and convincing proof; that the acquittal in effect declared that these offenses were never committed and the defendant was not guilty of them. However, this evidence was not admitted to show that he committed another crime but merely to show his intent to act wilfully, his intention, and his state of mind. There is no reference in the briefs as to what evidence was or what was not prejudicial, and we do not take it to be our duty to seek through the record and speculate as to what portions thereof it is sought to have declared prejudicial. In Tinkoff v. United States, 7 Cir., 86 F.2d 868, 879, supra, the following statement is made: “Appellant insists the court wrongfully admitted certain documentary evidence relating to a transaction of the same character in 1927. This evidence included checks, contracts, and other documents bearing upon withdrawal of income by Newman for the year 1927 by appellant and Newman, one as principal and the other as his tax specialist. They were admissible for their bearing upon the question of motive and intent in the plan followed in 1928 as well as in prior years. Allis v. United States, 155 U.S. 117, 15 S.Ct. 36, 39 L.Ed. 91; Chadick v. United States, supra [5 Cir., 77 F.2d 961, certiorari denied 296 U.S. 609, 56 S.Ct. 126, 80 L.Ed. 432]; Emmich v. United States, supra [6 Cir., 298 F. 5, certiorari denied, 266 U.S. 608, 45 S.Ct. 93, 69 L.Ed. 465]; Wood v. United States, 16 Pet. 342, 10 L.Ed. 987. Furthermore, they were admissible because of their relationship to the occurrences with reference to 1928.” In Rose v. United States, 10 Cir., 128 F.2d 622, 625, income tax returns for years not involved in income tax evasion prosecution were admitted, the court saying, “The only objection interposed to their admission was that they were incompetent, irrelevant, and immaterial. In overruling the objection, the court stated that they were admitted on the theory that they might be material as showing the continuance of the income and conduct. No further reference was made to such returns throughout the entire trial.” In Malone v. United States, 7 Cir., 94 F.2d 281, evidence of other years was admitted to show like conduct at or near the time of the instant violation, but not for showing evasion of income tax in those years. This was held to be proper where intent or motive was an element of the crime charged. The court in the instant case properly instructed the jury on this issue. Appellant, under Specifications of Errors No. 14, 15 and 53, urges prejudicial misconduct of the district attorney in presenting the case against both defendants-appellants. It is contended that the misconduct consisted of repeated argument and statement to the jury which contained misstatements of the evidence, and that the cross-examination of witness Eustice was based entirely upon hypothetical questions and that there was nothing in the records to show the facts based thereon were true Several other objections to the United States attorney’s conduct are made claiming that he misled the jury on the evidence and misstated testimony to create prejudice against the defendant. The court ordered the-jury to disregard certain of these statements and it is argued that even so, the damage had been accomplished by leaving an impression on the minds of the jury. It is also asserted that counsel’s statement that all that has to be shown is a substantial amount of income not reported on the return, was prejudicial error because ■it has to be shown that the amount was substantially that which was alleged in the indictment and not merely a substantial amount of money. We agree that the fact that the prosecutor holds a position of importance lends weight to his utterances and gives serious influence on the jury. The defense relies strongly on Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314, which held that certain proscribed activities of the United States Attorney constituted prejudicial misconduct and called for a reversal of judgment. We have considered the actions of the United States Attorney herein and though in some instances they are subject to criticism, we do not find that they are such as to require reversal of the judgment. As to what amount has to be proved by the prosecution, we have already stated that the government does not have to prove the exact amounts alleged in the bill, and this is what the prosecutor had reference to when he said “But even if it is $11,000; let us take $11,000, which he admitted he earned in 1944. That’s enough. We don’t have to prove the precise figure. -We just have to show a substantial amount.” The real charge herein is an intent to evade and defeat the income tax law by filing a false return. The court fully protected appellant in its instruction to the jury. It is contended under Specification of Error No. 65 that the court erred in refusing to give the following instruction, requested by appellant, to the jury: “It is a recognized principle of our system of law that in order to convict a defendant, the facts proven must not only be consistent with the theory of guilt, but inconsist-, ent with any reasonable theory of innocence, and this I charge is the law.” It -is argued that in a case where cir-. cumstantial evidence is relied upon, it is. error to refuse an instruction qf to fail to, give an instruction which gives a proper-statement of the principle to justify a con, viction; the facts or circumstances must not only be consistent with each other and with the conclusions sought to be established, but all the facts and circumstances must be inconsistent with any reasonable theory of innocence of -the defendant, and there must be moral certainty that defends ant committed the offense charged. Ap, pellant cites California authority in his argument, but, again, we are in a federal court and a federal statute is alleged to have been violated. In a recent opinion by this court, McCoy v. United States, 9 Cir., 169 F.2d 776, certiorari denied 335 U.S. 898, 69 S.Ct. 298, a specific- instruction on circumstantial evidence was held to be unnecessary, and where the court adequately instructs the jury defining the rights of the accused, he is fully protected. The instructions in appellant’s case protected appellant in the same manner and degree as the instructions protected the appellant in the McCoy case. The next specification o.f error set forth is No. 71, in which appellant complains that the court erred in stating to the jury as follows: “The law under which these defendants were indicted in substance provides, as is applicable in this case, that any person who wilfully attempts in any manner to evade or defeat any tax shall be guilty of a crime. The pertinent portion of the statute provides as follows: “ ‘Any person required under this chapter to account for, and pay over any tax imposed by this chapter, who wilfully fails to truthfully account for any and pay over such tax, and any person who wilfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof,’ shall be punished in the manner provided by law.” Error is claimed because there was no evidence that Ormont was a resident or required to report or pay any income tax within the jurisdiction of said court or that he was one of the class required to file a return or pay tax. Our comment hereinbe-fore made on the necessity of alleging residence covers the situation here presented. It is also contended that the court erred in telling the jury that any person who wilfully attempts “in any manner” to evade or defeat any tax etc., because the indictment alleged the manner in which he violated the statute, and in so doing, limited the case to the manner alleged, namely, (1) the filing of a false income and victory tax return, and (2) concealing from the Collector and other officers of the United States a true and correct gross and net income and the sources thereof. It is argued that the instruction, in effect, permitted the jury to go outside the indictment and find the defendant guilty on charges which were not set forth in the indictment but entirely different grounds. The appellant is not presenting the whole situation in his argument. The court first set forth the pertinent portion of the statute, under which appellant was indicted, which states “in any manner” but follows it with count one of the indictment as the charge against Ormont, and it is stated that the facts therein must be proved beyond a reasonable doubt, etc. There is no error in this instruction. It is contended under Specification No. 74 that the court erred in instructing the jury as follows: “In the event that you find that either defendant as to the particular count failed to report his true income in the amount substantially as claimed by the Government for the calendar year 1944, then as matter of law the tax for the calendar year 1944 would have been substantially more than paid by such defendant for the calendar year 1944.” [Emphasis ours.] It is argued that these instructions were misleading and erroneous for the following reasons: The court told the jury it need only find that the defendant failed to report his true income in the amount substantially as claimed by the government. The government counsel in his argument to the jury stated that all that was necessary for the government to prove was a substantial amount, and that said $11,000,001 was enough. However, in the indictment the government charged $24,000, which is the amount which must be proved. The instruction, therefore, was erroneous and should have used the word “alleged” rather than “claimed”. The court fully charged the jury as a whole and stated that the allegations of the indictment must be proven and that “It is sufficient if the Government proves that in addition to the income which the defendant himself reported on his income tax return, the defendant Ormont received as income substantially the sum alleged as taxable income during that year.” The jury was sufficiently instructed and could not have been misled by the instruction complained of. Under Specification of Error No. 76, error is claimed because the court charged that “books and records” are required to be kept under tile Internal Revenue Regulations, whereas the regulation says “books or records” must be kept for filing a return on a fiscal year basis. No exception was taken. It is further complained that the court erred in saying that if none were kept, the income, filed on a fiscal year return, must be reported in the year earned, because if a taxpayer is on a cash basis he is not required to report any income until received, even though earned in a given year. This latter statement is corrected fry subsequently saying in the instruction that he need not report any' income if filing on a cash basis until cash is actually received. We do not agree that this instruction'constitutes reversible error or that the jury was misled in light of 'the facts of this case and all the instructions given.' Under Specification .of Error No. 78, the appellant claims that the court erred in failing to instruct the jury on its own action that the jury might find appellant guilty of a lesser offense embraced within the charge in the indictment, namely, a misdemeanor under Section 145(a), Internal Revenue Code. Again, the entire source of authorities is California state court decisions and we do not find that the evidence warranted the giving of such other instructions where none were' requested. The court was justified in not giving an instruction on the lesser offense from the facts herein. Prejudicial error is asserted under Specification .No. 42 because a subpoena duces tecum was served on appellant in the court room iri the presence of the jury requiring him to produce his books. We agree with the contention that it is error to request a' defendant in a criminal case in the presence of a jury to testify or produce documents against his will, although he makes no objection thereto. However, we do not think there was prejudicial error in this case because of other circumstances. The real objection to such a proceeding is the prejudice created in the minds of the jurors in case there be a failure to produce the papers. The jury was present when discussion concerning lack of the books, that 'certain- processes were available for obtaining them, and when a request for adjournment was made to permit time for securing the books and records. It was clea.rly improper for the marshal to serve the defendant in the court room in the presence of the jury; however, there is support for the court’s conclusion that the defendant did not suffer prejudice thereby, the court stating that there is no showing that the jurors knew of the service and, too, that most likely they didn’t; the court immediately quashed the subpoena. In light of these facts, we do not find that there was reversible error. Appellant assigns other errors which are not argued, but claims reliance thereon as errors, particularly relying on motions for acquittal notwithstanding the verdict, and motion for a new trial which was refused. We have considered all further specifications of error not argued, but do not find grounds for reversal of the verdict and judgment. Specifically as to Himmelfarb It will be remembered that Himmelfarb appealed from the judgment entered after the jury had returned a verdict of guilty against him as to Count II of the indictment. Appellant Himmelfarb on March 14, 1945, filed with the Collector of Internal Revenue at Los Angeles, California, an income tax return for the calendar year 1944 showing his net taxable income for that year, computed on the community property basis, to be $4,111.74, and the tax due to be $656.00, which was paid. The joint venture return for “Miscellaneous Enterprises”, heretofore referred to, was filed on May 24, 1945, for the fiscal year beginning May 1 and ending April 30, 1945, and disclosed ap-I>ellant’s interest to be $35,694.42 out of the $71,388.84, labeled “Mise. Income.” Nothing else appeared on the return. Himmelfarb was an employee of the Acme Meat Co. during the year 1944 up to May 1, after which and until at least April 30, 1945, he was a partner of Ormont in that enterprise. Ernest Link, bookkeeper for the company, testified that he saw appellant perform work at the Acme Meat Co. during 1944 and 1945, and saw him make out invoices to customers and compute the amount due from the customers. According to the witness, Himmelfarb would compute the weight of the meat sold and multiply it by three and enter the sum thus obtained on a list in a drawer at the plant. That he had seen these lists containing names of customers and amounts opposite the names, some of which were in appellant’s handwriting and some in Ormont’s handwriting; some were marked “paid” and crossed out, but he never actually saw money transferred. That he, as bookkeeper, was never given information of these transactions and therefore did not record on the company books any of the amounts appearing on such lists. That he audited the payroll checks and there were payroll checks made out to Himmelfarb; and that the profits received from the Acme Meat Co. for the year 1944 were credited to Or-mont’s accounts on the books and records of the company. Mr. Eustice and Mr. Phoebus, agents for the Bureau of Internal Revenue, began investigations in November, 1945, to determine Himmelfarb’s status with the Acme Meat Co., and whether he had paid the proper tax for the year 1944. On the basis of these investigations, Eustice determined that Himmelfarb had received additional unreported income for that year. He had possession of a photo-static copy of appellant’s income tax return and with that he examined the books and records of the Acme Meat Co. at the plant and later made a transcript of certain accounts therefrom. The books were not available at the trial. Phoebus first met and spoke to appellant on May 18, 1945, in connection with the investigation. He testified that he told Himmel-farb on May 23, 1945, that they were contemplating an investigation of his income tax returns. The joint venture return was. 'filed the following day, May 24, 1945. Eus-tice, in determining that appellant had additional income for the year 1944, used information secured from his individual income return for that year, the 1945 partnership. return, investigation of the books and records of the Acme Meat Co., and information from the statements of other government agents. Testimony of David Gorgerty, a government witness and an insurance broker, was admitted to show that Himmelfarb had a fire insurance policy which had first been issued on April 3, 1944, to Himmelfarb, doing business as Phillip’s Meat Co., and which he subsequently on May 20, 1944, had transferred to the Acme Meat Co., by in-dorsement. At approximately the same time, Himmelfarb told Gorgerty that he and Ormont were partners doing business as the Acme Meat Co. Exhibit 45 was admitted and consists of five monthly reports of values for the period May to October 1944, made out by Gorgerty, on which the beneficiary reports each month the amount of merchandise and stock on hand for the purpose of computing the premium for Exhibit 44, which is a copy of the original fire insurance policy. Some reports were signed in blank, and information therefor was received by telephone or obtained at the plant by Gorgerty from appellant. Some were signed only by Gorgerty; however, there is indication that he was so authorized. The .copy of the policy had certain penciled notations, which were not on the original policy, as follows: “Sam Ormont” was added, and a line was drawn through “doing busness as Phillip’s Meat Co.,” and “doing business as Acme Meat Co.” written in by the underwriter to reflect the change. William Malin, witness for the government and an accountant, was hired for appellants by Mr. Mirman, appellants’ attorney, and he made out the return of Ormont .and Himmelfarb, filed May 24, 1945. Information for the “Miscellaneous Enterprises” and “Miscellaneous Income” on the return was obtained from Mr. Mirman. Information for the method of division thereof on a fifty-fifty basis came from Himmel-farb as did also the information that the business was a joint venture. On July 31, 1945, Malin mailed certain letters and financial statements to Mr. Bircher, special agent for the Bureau of Internal Revenue and .also enclosed certain factual data, obtained from Himmelfarb, disclosed by bank balances, books, records, and other sources of information furnished him. Bircher had been assigned to investigate the income of Ormont and Himmelfarb in May 1945 for the years 1942, 1943 and 1944, and testified that he first spoke to Himmelfarb on May 24, 1945, and told him what he was doing and produced his credentials. Agents for the government, among other things, investig