Dranow v. United States

• Decision Date: 05 October 1962
• Docket Number: 17010.,No. 16894,16894
• Parties: Benjamin DRANOW, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

307 F.2d 545 (1962)

Benjamin DRANOW, Appellant, v. UNITED STATES of America, Appellee.

Nos. 16894, 17010.

United States Court of Appeals Eighth Circuit.

September 10, 1962.

Rehearing Denied October 5, 1962.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Bert B. Rand of Trammell, Rand & Nathan, Washington, D. C., for appellant; Hans A. Nathan and Warren E. Magee, Washington, D. C., Frank J. Collins, Minneapolis, Minn., on the brief.

William W. Essling, Sp. Asst. to Atty. Gen., St. Paul, Minn., for appellee; James F. Neal, Sp. Asst. to Atty. Gen., Washington, D. C., Thomas Malone, Sp. Asst. to Atty. Gen., St. Paul, Minn., and Miles W. Lord, U. S. Atty., Minneapolis, Minn., on the brief.

Before SANBORN, BLACKMUN and RIDGE, Circuit Judges.

Rehearing Denied in No. 16,894 October 5, 1962.

RIDGE, Circuit Judge.

After a six week trial the defendant, Benjamin Dranow, was convicted by jury verdict on eighteen (18) counts of a twenty-one (21) count indictment severally charging mail fraud in violation of 18 U.S.C.A. § 1341; fraud by wire in violation of 18 U.S.C.A. § 1343; and bankruptcy offenses in violation of 18 U.S. C.A. § 152. The jury found Dranow not guilty on counts Ten, Seventeen and Nineteen of the indictment, charging separate bankruptcy offenses. On the guilty verdicts Dranow was sentenced as follows: On counts One through Nine of the indictment (mail and wire fraud) a general sentence of five years' imprisonment and a committed fine of $5,000.00 was imposed. On counts Eleven through Sixteen and count Eighteen of the indictment (transfers made in contemplation of bankruptcy) a general sentence of five years' imprisonment and a committed fine of $5,000.00 was assessed, the penal portion thereof to be served concurrently and not consecutively to the general penal sentence imposed on counts One through Nine.¹ A general sentence of two years' imprisonment and a committed fine of $2,000.00 was imposed on counts Twenty and Twenty-One (false entries made in documents affecting and relating to the property and affairs of the bankrupt) to be served consecutively to the two five-year concurrent general sentences.² At the imposition of sentences the District Court also adjudged that the "defendant * * * shall pay the costs of the prosecution," the amount thereof to be determined by the District Court. In Case No. 16,894, Dranow prosecutes his appeal from the above judgments of conviction and general sentences.

In Case No. 17,010, Dranow prosecutes an appeal from an order of his trial court denying a motion, filed under Rule 33, F.R.Cr.P., 18 U.S.C.A., for a new trial of the charges on which he was convicted as above, premised on the ground of newly-discovered evidence. A footnote to defendant's brief in Case No. 16,894 is as follows:

"On February 9, 1962, appellant filed a Motion for a New Trial, predicated upon newly discovered evidence. On February 14, 1962, the Trial Court indicated its unwillingness to indicate to this Court that the Motion be granted as a basis for a Motion to Remand. (Rule 33, F.R. Cr.P.) A timely Notice of Appeal was filed on February 19, 1962, and the Clerk of this Court has notified appellant that this related appeal (No. 17,010) will be heard by the Court at the same time as this appeal from the judgment of conviction."

All that has been lodged with this Court in Case No. 17,010 is the original records of the District Court containing pleadings, exhibits and briefs filed before the District Court. Notwithstanding the docketing of the appeal in No. 17,010 and setting thereof for argument, neither party has filed briefs in this Court in regard to that appeal as provided in our Rule 11, 28 U.S.C.A. No request has been made for leave to perfect that appeal out of time. Because it is apparent appellant in Case No. 17,010 is in default for failure to perfect that appeal as provided in Rule 11, supra, that appeal is dismissed.³

At the outset of our consideration of the appeal in Case No. 16,894, we are faced with a most disagreeable task — that of being reproachful of the manner in which this appeal is presented to us. "It is not pleasant to be compelled to remind counsel that language used in briefs, as well as that employed in oral argument, must be respectful," (Kneeland v. American Loan and Trust Company et al., 138 U.S. 509, 513, 11 S.Ct. 426, 428, 34 L.Ed. 1052, 1054) and that scandalous matter must be avoided at all times in this Court. However, "it is our duty to keep our records clean and free from scandal." Green v. Elbert, 137 U.S. 615, 624, 11 S.Ct. 188, 191, 34 L.Ed. 792, 796. And, as Judge Walter H. Sanborn of this Court said many years ago, in Kelley v. Boettcher, 10 Cir., 85 F. 55, 57 (1898): "The authority and the duty of a federal court to keep its records free from stain and scandal are by no means dependent on the ability or disposition of counsel * * * its power is plenary, and its duty imperative * * *." In the light of the too numerous decisions of this and other Courts of Appeals, it should not be necessary for us to repeat, "A brief should not contain language disrespectful to the court nor to opposing counsel and ordinarily a brief containing such scurrilous and scandalous matter should be stricken from the files." Anderson v. Federal Cartridge Corp., 156 F.2d 681, 686 (8 Cir. 1946).

In the case at bar we regret to find in the very first paragraph of appellant's "Statement of the Case" and at numerous places thereafter in both his principal and reply briefs, aspersions cast not only on the conduct of the eminent, seasoned District Judge who presided at the trial of the case at bar but also on opposing counsel which are wholly uncalled-for, unwarranted and not justified by the record before us. The printed statement and argument in appellant's briefs abound in unwarranted criticism, vituperation, calumny, and derogatory, impertinent and scandalous expression directed at both the Trial Judge and opposing counsel.⁴ We shall not give herald to any such matter by quoting the same. It is sufficient for us to say that we cannot, having the regard and respect we have for all members of the judiciary, and that which we entertain for all members of the bar, permit such scandal to pass unrebuked.

If this were not an appeal from a criminal conviction we would not hesitate to order the briefs filed by appellant stricken from the files of this Court in their entirety and order new briefs to be filed. But we are not disposed to further delay the disposition of this appeal since it has previously been twice continued in this Court at the request of appellant. Mindful as we are of our duty in a criminal appeal, where life and liberty of an appellant is involved, that we must satisfy ourselves that his trial and conviction have not been jaundiced by illegality or prejudice in any form and that his conviction has not resulted in a miscarriage of justice, we shall proceed to consider this appeal on its merits. However, it is to be understood that all calumnious, defamatory, disrespectful, derogatory, impertinent and scandalous matter contained in appellant's briefs directed toward or denunciatory of the Trial Judge or Counsel for the Government is hereby ordered stricken therefrom and no such matter, directly or indirectly, shall hereafter be considered a part of the records of this Court.

In our consideration of this appeal we find it difficult to make a chronological, detailed statement of facts that will demonstrate all the issues which we are called upon to decide. The difficulty arises not because of the matter stricken from appellant's brief as above but for the reason the record herein contains close to six thousand pages and appellant's principal brief has been prepared in disregard of Rule 11 of this Court.⁵ Appellant's brief does not contain a "concise statement of the case"; — it is argumentative, editorialized, redundant, and interlaced with overlapping factual matter. Some factual matter stated is not supported by reference to the pages of the record where the same may be found, and some such are manifest distortion of facts and excursions outside the record. Then, too, the printed argument does not follow the "Points and Authorities" (sixteen in number)⁶ in form, manner or style as stated, and some points are totally abandoned in the written argument.⁷ As a consequence, we find ourselves relegated to the titles and subtitle headings which appellant has given to his written argument to get some conception of what he intends to present to us by this appeal. Having in mind the provisions of Rule 52(b), F.R.Cr.P., 18 U.S. C.A., which permits appellate courts to recognize plain errors, we accept the titles given to appellant's argument as the Assignments of Error proffered to us in this appeal. In so doing we shall first make a terse statement of the charges contained in the indictment, and thereafter the general facts established applicable to all counts thereof, considered in the light most favorable to the verdicts of the jury as returned. Thereafter, additional facts which will expose the issues raised and the law applicable to each such proposition will be stated in the course of our consideration thereof.

In our review of the case at bar we are mindful of the rule stated in Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); Masinia v. United States, 296 F.2d 871, 880 (8 Cir. 1961); and many other cases, that where a defendant is convicted on several counts of an indictment and general penal sentences are ordered to run concurrently it is not necessary on review to consider the validity of the sentences on all counts, if the sentence on one is sustainable. Although we recognize that principle of judicial review is not entirely applicable here, since the District Court imposed a single committed fine on counts One through Nine; and a like committed fine on counts Eleven through Sixteen and in Eighteen, both of which fines are...