405 F.2d 405 (8th Cir. 1968), 19103, Dosek v. United States

Docket Nº:19103.
Citation:405 F.2d 405
Party Name:Edward A. DOSEK, Appellant, v. UNITED STATES of America, Appellee.
Case Date:December 30, 1968
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 405

405 F.2d 405 (8th Cir. 1968)

Edward A. DOSEK, Appellant,

v.

UNITED STATES of America, Appellee.

No. 19103.

United States Court of Appeals, Eighth Circuit.

December 30, 1968

Page 406

Clayton H. Shrout, Omaha, Neb., for appellant and filed brief.

Theodore L. Richling, U.S. Atty., Omaha, Neb., for appellee and filed brief; Arthur F. Mathews and Larry B. Grimes, United States Securities and Exchange Commission, Washington, D.C., were on the brief with Theodore L. Richling, Omaha, Neb.

Before VAN OOSTERHOUT, Chief Judge, and GIBSON and BRIGHT, Circuit judges.

VAN OOSTERHOUT, Chief Judge.

This is a timely appeal by defendant Edward A. Dosek from his conviction by a jury on each of nine counts of an indictment and the resulting sentence. Counts I to VI, inclusive, charged that defendant did by use of the mails in the offer and sale of securities to named individuals unlawfully, willfully and knowingly employ a scheme to defraud and obtain money and property, in violation of 15 U.S.C.A. §§ 77q(a) and 77x. Counts VII to IX charge separate uses of the mail in pursuance of a fraudulent scheme to sell securities in violation of 18 U.S.C.A. § 1341. Defendant was given concurrent sentences of three years on Counts I, II, III, IV, V, VII and VIII. He was placed on probation on Counts VI and IX for a period of five years commencing with the expiration of the sentence on the remaining counts.

Defendant asserts he is entitled to a reversal based upon erroneous rulings of the trial court in the following respects:

I. Denial of his motion for acquittal made at the close of all the evidence because, (a) all evidence predicated upon the investigation of the Securities and Exchange Commission's inquires of August 4, September 8, and September 29, 1965, should have been excluded; (b) Government claims of fraudulent misrepresentation were not proven.

Ii. Denial of Motion for change of venue.

III. Admission in evidence of Exhibits 73 and 74 and testimony relating thereto.

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IV. Refusal to exclude Government's testimony predicated on bank records obtained without court order.

V. Denial of motion for new trial based on recantation of testimony of Government's witness Rerucha.

A careful examination of the record satisfies us that no prejudicial error was committed at defendant's trial and that the conviction should be affirmed. We shall discuss defendant's contentions in the order in which they are above stated.

I.

Defendant's contention that the court erred in denying his motion for acquittal is predicated upon defendant's insistence that the Government's case is largely based upon testimony given and papers produced by him at SEC investigation hearings held at Denver on August 4, September 8, and September 29, 1965, and that such information was obtained in violation of defendant's constitutional rights established in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. In essence, Dosek claims: (1) that he was involuntarily 'in custody' when he was questioned by the SEC, and that consequently the failure of the SEC officers to apprise him of a 'right to silence' in haec verba as set out in Miranda v. Arizona, supra, transformed an otherwise valid administrative inquiry into an illegal and unconstitutional interrogation; (2) that he had a right to be informed in haec verba that he could 'refuse to surrender the documents and records' subpoenaed, and that the failure to so apprise him constituted a grant of immunity to him; (3) that he had a right to be advised that counsel would be appointed for him if he so desired; (4) that the warning given to him was unduly vague and indefinite and consequently ineffective; and in any event (5) he was incapable of intelligently and effectively waiving his constitutional rights because he was 'psychotic', a 'manic-depressive, manic type', and was undergoing psychiatric treatment for such mental ailments during the time period involved.

We find all of such contentions lack...

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