United States v. Tehan

• Decision Date: 19 August 1966
• Docket Number: No. 16420.,16420.
• Citation: 365 F.2d 199
• Parties: UNITED STATES of America ex rel. Leslie D. STICKLER, Petitioner-Appellant, v. Dan TEHAN, Sheriff of Hamilton County, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

365 F.2d 199 (1966)

UNITED STATES of America ex rel. Leslie D. STICKLER, Petitioner-Appellant, v. Dan TEHAN, Sheriff of Hamilton County, Respondent-Appellee.

No. 16420.

United States Court of Appeals Sixth Circuit.

August 19, 1966.

F. Lee Bailey, Boston, Mass., Bernard A. Kansky, Boston, Mass., of counsel, for appellant.

Fred J. Cartolano, Cincinnati, Ohio, Melvin G. Rueger, Pros. Atty., Fred J. Cartolano, Asst. Pros. Atty., Cincinnati, Ohio, on brief, for appellee.

Before WEICK, Chief Judge, and PHILLIPS and CELEBREZZE, Circuit Judges.

CELEBREZZE, Circuit Judge.

Appellant, Leslie D. Stickler, appeals from an order of the District Court denying his petition for a writ of habeas corpus. Appellant, an attorney, was indicted and convicted in the Common Pleas Court of Hamilton County, Ohio, of selling securities without having been licensed as a security dealer, and selling unlicensed securities.¹ The conviction was affirmed by the Court of Appeals, First Appellate District of Ohio, and the Supreme Court of Ohio declined review, State v. Stickler, 174 Ohio St. 382, 189 N.E.2d 433. The Supreme Court of the United States denied certiorari, 375 U.S. 438, 84 S.Ct. 506, 11 L.Ed.2d 471. Appellant instituted this action by filing a petition for a writ of habeas corpus in the United States District Court for the Southern District of Ohio, Western Division.

Appellant contends that the Ohio Securities Act is invalid under the due process clause of the Fourteenth Amendment because the procedural provisions create an evidentiary presumption that Appellant made an unlawful public offering of promissory notes and shifted to the Appellant the burden of proving his innocence.

In a companion case, United States ex rel. Shott v. Tehan, 6 Cir., 365 F.2d 191,² which arose on similar facts and an identical indictment, this Court held constitutional Ohio Revised Code Section 1707.45 which places on a defendant the burden of proving the exempt status of a promissory note. That decision is adopted here.

However, there are several additional issues presented in this case which were not present in United States ex rel. Shott v. Tehan, supra. Appellant first argues that his constitutional right to an impartial jury was violated by the failure of the trial court to protect the jury against extrinsic and prejudicial influence.

While Appellant's jury was being impanelled, one John Ruf, also indicted for similar offenses and slated to go to trial immediately after Appellant, disappeared. On the night of his disappearance, Ruf's attorney appeared on television and made the following statement:

"Well, Mr. Ruf has been extremely upset and depressed ever since Leslie D. Stickler\'s financial dealings became public. Mr. Ruf lost his life savings through loans made to Stickler. He felt responsible for the losses of his friends and relatives who also invested with Stickler. He has been unable to find a job and he has been very nervous. Mr. Ruf was in the office Tuesday morning to discuss his trial which was scheduled for next Monday. He was here for about two hours, he left at noon and has not been seen or heard from since.

"I only hope that he will be located in time to go to trial on Monday so that his complete innocence of any criminal wrong-doing can be established."

Appellant's attorney was granted permission by the Court to determine if any of the prospective jurors had heard this television broadcast. Three had. One stated he believed that anybody who had heard the broadcast would have formed an opinion prejudicial to the defendant. That juror was removed for cause. The second juror was removed by a preemptory challenge. The third juror was not challenged, although at the time of his disclosure that he had heard the broadcast, the defendant had not exhausted his preemptory challenges.

After the trial began, the Cincinnati newspapers reported that Ruf had been found dead with a bullet in his head. One of the news articles, entitled, "Stickler Case Figure Is Dead", reported, in part, the following:

"The body of John J. Ruf, 57, indicted in a multi-million dollar investment fraud, was drawn from the Ohio River. * * * There was a bullet wound in his head. * * * The Homicide Squad was investigating to determine whether Ruf, missing for a week, had shot himself or was a victim of foul play.

"Ruf, a bookkeeper was involved in the Leslie D. Stickler case now on trial in Common Pleas Court. Ruf\'s family said late Wednesday they feared for his life because he had been `despondent and confused\' since he, Stickler and two others were indicted a month earlier.

"After Ruf\'s body was found, Eugene Smith, Attorney for Stickler demanded police protection for his client. `Ruf was ready to spill the beans and Stickler is ready to do the same,\' Smith declared.

"The charges arose from Ruf\'s involvement with Stickler, 38, Amberley Village attorney accused of illegal financial dealings in a complicated investment of $2.5 to $3 million by a number of persons. Stickler\'s trial started Thursday.

"Ruf, friends said, felt he had been `a fool and a dupe\', but denied that he had done anything illegal."

Appellant's request to interrogate the jurors was denied by the trial court. Appellant claims the article was presumptively prejudicial to him and that it should be presumed the jurors had read the article.

The trial court on several occasions throughout the trial instructed the jurors to refrain "as far as humanly possible from either listening to the radio or television broadcasts or reading the newspaper, any article that concerns this case". During the voir dire the Court instructed the jurors as follows:

"But this Court will caution you, as long as you are a prospective juror, if you become a juror, refrain, as far as it is possible, humanly possible, from either listening to the radio or television broadcasts or reading the newspaper, any article that concerns this case. This case and your verdict, if you serve as a juror, must be based absolutely upon the evidence that you hear in this courtroom and the law which the court gives you to apply to the facts as you find them. All right, I think that is sufficient. I did have a little restraint on what I said to you, because it is utterly impossible for this Court to control your thoughts of what you see when you are away from the court house, or even while you are sitting here. All I can give you is the rule, and it is very, very important."

In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), a habeas corpus proceeding, the Supreme Court held that the failure of the State to accord a fair hearing to one accused of a crime violates the due process clause of the Fourteenth Amendment; and a jury trial is not fair unless the jury is impartial.

The challenger has the burden of persuasion whether the jurors are impartial in the constitutional sense. Geagan v. Gavin, 292 F.2d 244, 246 (C.A. 1, 1961), cert. denied, 370 U.S. 903, 82 S.Ct. 1247, 8 L.Ed.2d 399 (1962). This burden is one which must be carried "`not as a matter of speculation but as a demonstrable reality.'" United States ex rel. Darcy v. Handy, 351 U.S. 454, 462, 76 S.Ct. 965, 970, 100 L.Ed. 1331, 1338 (1956); Stroble v. State of California, 343 U.S. 181, 198, 72 S.Ct. 599, 607, 96 L.Ed. 872, 885 (1952). See also Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L. Ed. 268, 276 (1942). In determining whether a juror is impartial or not, the Supreme Court said in Irvin v. Dowd, supra:

"It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any

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