decided as amended april 10 1968.: February 23, 1968.
Staley, Chief Judge, Hastie, Circuit Judge, and Sheridan, District Judge.
SHERIDAN, District Judge.
Defendant, Milton H. L. Schwartz, has appealed from a judgment of sentence following a guilty verdict in a jury trial on a one court indictment charging a violation of Section 7206(4)*fn1 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 7206(4). This section makes removal or concealment of property upon which a levy is authorized by Section 6331*fn2 of the Code a felony.
The indictment charged as follows:
"That on or about October 30, 1954, at Philadelphia, in the Eastern District of Pennsylvania, Rudolph R. Bregman and Milton H. L. Schwartz, with intent to evade and defeat the collection of taxes assessed against Rudolph Motor Service, Inc., did knowingly and unlawfully remove and conceal eighteen (18) Strick Trailers, property of Rudolph Motor Service, Inc., upon which a levy was authorized by Section 6331 of the Internal Revenue Code of 1954.
"In violation of 26 U.S.C. Section 7206(4)."
This trial in January 1966 was the second. In the first trial in June 1961, the jury disagreed as to defendant, but found Bregman guilty. The conviction was sustained on appeal. United States v. Bregman, 3 Cir. 1962, 306 F.2d 653.
The jury having returned a guilty verdict, the evidence must be viewed in the light most favorable to the Government. United States v. Boyance, 3 Cir. 1964, 329 F.2d 372. The evidence warranted the jury in finding the following facts. In 1951, defendant, an attorney experienced in taxation and corporate finance, became counsel for Rudolph Motor Service, Inc., an interstate trucking company in arrears in its tax liabilities to the United States. All the stock of Rudolph Motor was owned by its president, Rudolph Bregman. For several years defendant negotiated with the Internal Revenue Service in an attempt to prevent a seizure of the corporate property, particularly 18 trailers purchased from the Strick Company under a conditional sales contract and without which Rudolph Motor could not continue in business. Defendant, heavily in debt himself, received a large part of his income from Rudolph Motor and, consequently, it was in his interest as well as that of his client to protect the investment in the trailers. Beginning in January 1953, defendant and Bregman represented that planned expansion would produce revenues with which they promised to amortize the tax liabilities and urged Internal Revenue Service not to seize the corporate property. In October 1954, with payments to Strick in default and repossession threatened, defendant and Bregman negotiated an agreement with Strick under which the trailers were transferred to the books and records of Rising Sun Truck Rental Co., a corporation in which defendant and Bregman were shareholders, directors and officers. Rising Sun agreed to bring the account up to date and make all future payments to Strick. Rudolph Motor was to continue to use the trailers and pay Rising Sun a rental equal to the installments due Strick. On October 30, 1954, the bookkeeper made a false entry in the books and records of Rudolph Motor that the trailers had been repossessed by Strick.*fn3 The Government contended that this entry supported a finding of removal or concealment to avoid seizure, and that the defendant caused or directed the entry to be made or participated in its preparation and, therefore, was guilty as an aider or abettor under Section 2 of Title 18 U.S.C.
The principal question on this appeal concerns testimony by Bregman. When asked by the Assistant United States Attorney on direct examination whether he had directed the bookkeeper to record the 18 trailers in the books and records of Rudolph Motor as having been re possessed by Strick, he replied, "I could have. Anybody of the three officers of our corporation, because we --." At this point the Government pleaded surprise and was permitted to cross-examine on exhibit G-62, a written statement signed by Bregman on September 11, 1961, in which he stated:
"* * * As far as the alleged transfer of the 18 trailers to Rudolph Freight Lines from the Rudolph Motor Service, I am further sure that these entries were not made by me inasmuch as Milton H. L. Schwartz was representing me and taking a very active part in the operations of the business at that time; that the entries were directed to be made by him."*fn4
G-62 was prepared by counsel, signed by Bregman and mailed to Judge Van Dusen the day before Bregman was to be sentenced. Bregman did not remember signing it, although he admitted it was his signature, and he did not have any recollection of its accuracy. The court admitted the above part of G-62*fn5 as substantive evidence under the authority of United States v. De Sisto, 2 Cir. 1964, 329 F.2d 929. We think this was error.
In De Sisto evidence of prior identification by a witness which was inconsistent with his testimony at a second trial was admitted as substantive evidence. The witness was allowed to testify that on the day of the crime he had given a description of De Sisto to the F.B.I.; that four days later he had picked De Sisto out of a lineup; that 13 days later he had identified a photograph of De Sisto before the grand jury; that he identified De Sisto at the first trial held within three months; and that he had again identified a photograph of De Sisto shortly before the second trial. The court noted that the orthodox rule that prior inconsistent statements can be used only for impeachment and not as substantive evidence has been severely criticized.*fn6 It weighed this against allowing "men to be convicted on unsworn testimony of witnesses -- a practice which runs counter to the notions of fairness on which our legal system is founded." Bridges v. Wixon, 1945, 326 U.S. 135, 153-154, 65 S. Ct. 1443, 89 L. Ed. 2103 (footnotes omitted). The court emphasized that the prior statements were made or adopted under oath in a setting calculated to impress the witness with the gravity of the responsibilities assumed, with the important safeguards of the fear of prosecution for perjury, and that the testimony at the former trial had already been subjected to cross-examination. In United States v. Nuccio, 2 Cir. 1967, 373 F.2d 168, 172, a narcotics case, the court, referring to De Sisto, again emphasized the importance of these safeguards in upholding the district court which had refused to admit as substantive evidence the inconsistent testimony of a witness given at a trial of other defendants for a narcotics offense:
"* * * We thought that when the prior statements took the form of testimony to a grand jury or at a former trial on the very matter sub judice, the likelihood of a jury's short-cutting this process was so overwhelming that it was best to conform the instruction to the realities rather than confuse the jury by telling it to perform an impossible task, the opponent being adequately safeguarded by the ...