Leser v. United States
| Decision Date | 20 April 1966 |
| Docket Number | No. 19093.,19093. |
| Citation | 358 F.2d 313 |
| Parties | Adai LESER and Czali Leser, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Morris Lavine, Los Angeles, Cal., for appellant.
Manuel L. Real, U. S. Atty., John K. Van De Kamp, Asst. U. S. Atty., Chief, Crim.Div., Los Angeles, Cal., for appellee.
Before JERTBERG and MERRILL, Circuit Judges, and TAVARES, District Judge.
Following seven weeks of trial to a jury, productive of a reporter's transcript of more than 4,000 pages, together with many documentary exhibits, the appellants were convicted on thirty-one counts of a thirty-five count indictment.
Conviction was on Counts One to Three, Five, Six, Eight to Twenty-seven, inclusive, and Thirty to Thirty-five, inclusive. Count One charged a violation of 18 U.S.C. § 1341 Mail Fraud. Counts Two, Three, Five, Six, and Eight to Twelve, inclusive, each charged separate violations of 18 U.S.C. § 1341, and specified individual mailings in pursuance of the scheme and artifice set forth in Count One of the indictment. Counts Thirteen to Twenty-three, inclusive, charged violations of 18 U.S.C. § 1343 Fraud by wire, each count specifying and setting forth particular telegrams submitted for the purpose of executing the scheme and artifice alleged in Count One.
Counts Twenty-four to Twenty-seven, inclusive, charged the transmission by means of Western Union Bank wire of various sums of money for the purpose of executing the scheme and artifice set out in Count One, in violation of 18 U.S.C. § 1343.
Counts Thirty to Thirty-five, inclusive, charged the defendants with interstate transportation of various sums of money, knowing the same to have been obtained and taken by fraud, in violation of 18 U.S.C. § 2314 Transportation in interstate and foreign commerce of money or securities, etc., of a value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud.
Appellants specify many errors as having occurred during the long and protracted trial. We have reviewed all of them in the light of the record and have reached the conclusion all of them are without substance except the three which we will discuss in this opinion. These three are:
1. That the District Court erred in discharging one of the original twelve jurors after the jury had retired to deliberate but prior to the return of the verdict, and replacing such juror with an alternate juror.
2. That the action of the District Court referred to in 1. above, placed the appellants in double jeopardy.
3. That in connection with the action of the District Court, stated in 1. above, the District Court unlawfully communicated with the jury thereby depriving the appellants of a fair trial.
Appellants contend that the actions of the District Court, as above set forth, violated the constitutional right of appellants to be tried by a common law jury of twelve as required by the Sixth Amendment, violated Rules 23(b) and 24(c) of the Federal Rules of Criminal Procedure, placed appellants twice in jeopardy in violation of the Fifth Amendment, and deprived appellants of a fair trial.
In order to bring appellants' contention into focus it is necessary to review at some length the events which occurred in the District Court.
On October 31, 1963, the day before the case was submitted to the jury for consideration, the Court noted for the first time as follows:
Later in the day the Court again raised the subject of the juror's imminent medical appointment:
On Friday, November 1, 1963, the case was submitted to the jury at approximately 10:45 A.M. Immediately prior to the submission to the jury, the Court commented:
Whereupon, the members of the jury retired to a jury room for deliberations and the three alternate jurors retired to another jury room.
At approximately 3:55 P.M., on November 1, 1963, the jury returned to the courtroom to submit an inquiry to the Court. After answering the inquiry, the Court stated:
Later on in the same proceeding, after a conference with Mr. Swan, Foreman Liggett stated:
After 5:40 P.M., on November 1, in open court outside the presence of the jury and in the presence of the defendants and their counsel, the court advised those present:
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