United States v. Rubino
| Citation | 431 F.2d 284 |
| Decision Date | 30 July 1970 |
| Docket Number | No. 19621.,19621. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Matthew RUBINO, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Carl Ziemba, Detroit, Mich., for defendant-appellant; Joseph W. Louisell, Detroit, Mich., on brief.
Richard B. Buhrman, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellee; Johnnie M. Walters, Asst. Atty. Gen., Joseph M. Howard, Atty., Dept. of Justice, Washington, D. C., on brief; James H. Brickley, U. S. Atty., Detroit, Mich., of counsel.
Before PHILLIPS, Chief Judge, and PECK and BROOKS, Circuit Judges.
Defendant-appellant (usually hereinafter "Rubino") was found guilty by jury verdict of each count of a four-count indictment charging willful attempt to evade and defeat his individual income taxes for the years 1958 through 1961. The trial extended over a period of nine weeks and Rubino was sentenced to two and one-half years imprisonment on each count, the sentences to run consecutively, and was fined $10,000 on each. His motion for a new trial on the basis that the court erred in not having granted a judgment of acquittal and in not declaring a mistrial was overruled, and this appeal followed.
The government's case was presented on a net worth-expenditures basis, and his income was established by that method. Rubino produced no personal books or records and advised Treasury agents at the beginning of their investigation that he would answer no questions. He maintained no bank account and conducted all of his business in currency, cashier's checks or money orders, and five or six months work by agents produced about twelve hundred cashier's checks which he had bought during the prosecution years. Rubino did not at any time during the investigation supply information that would account for any of the unreported income disclosed by the investigation.
Rubino's taxable income and income tax, in each instance both as reported and corrected, and their relationship to the counts of the indictment appear in the following table:
Taxable Income Income Tax
Count Year Reported Corrected Reported Corrected
I 1958 $ 31,637.79 $ 61,166.71 $10,371.51 $ 27,305.11
II 1959 1,536.73 56,832.46 487.35 23,953.39
III 1960 26,114.57 70,081.93 7,925.26 32,526.12
IV 1961 42,134.72 56,801.10 15,538.75 24,161.11
___________ ___________ __________ ___________
$101,423.81 $244,882.20 $34,322.87 $107,945.73
In the course of the lengthy trial objections were made to the introduction by the government of both testimony and documentary exhibits and to other rulings of the trial judge, all of which have been preserved for review and constitute alleged prejudicial error. Passing those items for the moment, we first consider the contention of Rubino that publicity in Detroit newspapers, which occurred during the closing days of the trial, requires a reversal of the conviction.
The trial of this case began in the District Court November 18, 1968, with Attorney Joseph W. Louisell of the Detroit, Michigan, bar as Rubino's counsel. It continued through January 29, 1969, on which day the guilty verdict was returned. However, on January 21, 1969, in an entirely unrelated matter the Honorable Victor J. Baum, Circuit Judge for Wayne County, Michigan, announced his decision denying a motion for a new trial for one Vito Giacalone in a case resulting in the latter's conviction on a felony charge, and the announcement was in the form of a 90-page opinion. Giacalone had been represented by Mr. Louisell, and on January 21 the Detroit News, an afternoon newspaper, ran a story on the subject as did The Detroit Free Press, a morning newspaper, the following day. The Detroit News story featured pictures of Mr. Louisell and Judge Baum, and appeared under a headline proclaiming, "Louisell Accused of `Cat and Mouse' Game — Baum Rebukes Vito's Lawyer." It quoted Judge Baum as accusing Mr. Louisell of making "a sham claim of hospitalization" to delay the trial for months and stated that Louisell was guilty of "a ruse and a pretext." The Free Press article made no mention of Rubino. The Detroit News stated, in four lines which were the eleventh paragraph in the latter story, that:
The Free Press story appeared under the headline "Judge Accuses Louisell of Plot." It opened with this sentence:
"A judge accused Joseph Louisell, one of Detroit\'s most expensive and sought after defense attorneys, of using a subterfuge in an attempt to delay the trial of one of his clients, Mafia leader Vito Giacalone."
It then went on to quote Judge Baum as having said in his opinion, This story was also accompanied by photographs of Judge Baum and Mr. Louisell.
Immediately following the publication of these newspaper stories, a motion was made on behalf of Rubino to see which, if any, members of the jury had read them. Under a plan agreed to by counsel, each of the fourteen member jury panel (including the two alternates) was individually called from the jury room into the courtroom and there questioned by the trial judge. Following such interrogation, each juror was then escorted into the Court's chambers to prevent discussion with the remaining jurors prior to their questioning.
Four of the jurors testified that they had not seen either news story and five of the others said they had read only a headline. Eleven of the jurors were asked whether there had been any discussion of the articles in the jury room. This question was not directed to the first three jurors since it was not suggested until after they had been questioned. All eleven agreed that there had been no discussion, although three jurors stated that one of the articles was mentioned in the jury room. Apparently one of these three jurors had mentioned the article or the photograph of Mr. Louisell to the other two. Five of the jurors had read one of the articles or a part of one of them. All jurors stated that the articles would have no influence on their verdict.
It is re-emphasized that the article in The Detroit Free Press related entirely to the trial of another defendant in the Wayne County Circuit Court. It made no reference to Rubino, the appellant herein. The story in The Detroit News also was directed to the same State court trial. In the four-line eleventh paragraph of the latter story, however, there was a recitation that Mr. Louisell was serving as counsel for Rubino in a trial which then was in its second month in the United States District Court. This paragraph described Rubino as a "reputed Mafia leader." This news story was published in at least two editions of The Detroit News. In the earliest edition the entire article appeared on the front page. In the succeeding edition or editions the article began on the front page but part of it was continued to an inside page. The paragraph relating to Rubino appeared on the inside page and not on the front page of the later edition or editions.
Of the five jurors who had read any part of either of the two articles, two had read The Free Press story which contained no mention of Rubino. One juror had read "a little bit" of one of the stories, but did not specify which newspaper. One juror had read the entire article in The News. The fifth had read only a portion of this article, and testified that she had read none of that part on the inside page, indicating that the edition she saw was a later edition in which the paragraph concerning Rubino appeared on the inside page, rather than the earliest edition in which the entire article was printed on the front page. The record demonstrates to our satisfaction that the import of the testimony of this fifth juror was to the effect that she did not read the paragraph relating to Rubino.
Thus the record establishes affirmatively that only one juror read the paragraph in which Rubino was mentioned as to which prejudice is claimed. Defense counsel did not request the District Judge to remove from the panel this juror who had read the entire article in The Detroit News, including the paragraph relating to Rubino. The two alternate jurors had not read the news stories in either of the papers and under the proof were unaware of any newspaper reference to Rubino as a reputed member of the Mafia. These two alternate jurors were available to have replaced any disqualified juror. No request was made for the replacement of any juror by an alternate.
Two copies of The Detroit Free Press of January 22, 1969, were recovered from the jury room by the bailiff. These papers made no mention of Rubino, and the evidence was that they had not been read by the jurors except to the extent narrated in this opinion.
The District Judge, basing his determination on his personal interrogation of the jurors who read the article or saw the headline referring to Mr. Louisell, made an affirmative finding of fact to the effect that the members of the jury were not influenced by this newspaper publicity and were competent to render a fair and impartial verdict in the case.
In his charge to the jury the District Court gave the affirmative instruction that "You are to consider only the evidence in this case." With respect to the newspaper stories, he told the jury as follows:
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