365 F.2d 199 (6th Cir. 1966), 16420, United States ex rel. Stickler v. Tehan

Docket Nº:16420.
Citation:365 F.2d 199
Party Name:UNITED STATES of America ex rel. Leslie D. STICKLER, Petitioner-Appellant, v. Dan TEHAN, Sheriff of Hamilton County, Respondent-Appellee.
Case Date:August 19, 1966
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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365 F.2d 199 (6th Cir. 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.

Aug. 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

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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-dong can be established.'

Appellant's attorney was granted permission by the Court to determine if any of the prospective jurors had heard this television...

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