Mares v. United States
| Decision Date | 01 September 1967 |
| Docket Number | No. 9347.,9347. |
| Citation | 383 F.2d 811 |
| Parties | Albert MARES, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Eugene Deikman, Denver, Colo., for appellant.
Richard T. Spriggs, Asst. U. S. Atty., (Lawrence M. Henry, U. S. Atty. for the District of Colorado, on the brief), for appellee.
Before LEWIS, BREITENSTEIN, and HILL, Circuit Judges.
This appeal is a companion to that of Arthur Mares in No. 9346, 383 F.2d 805. On his separate trial Albert was found guilty by a jury of the armed robbery of a federally insured savings and loan association.
Albert objects to the overruling of his challenge for cause directed against juror Nusbaum. The situation is this. The trial of Arthur was concluded on September 26 with a verdict of guilty. The trial of Albert began on September 29. At the start of Albert's trial, his counsel directed the attention of the court to the newspaper article mentioned in our opinion in Arthur's case and also a September 27 article in the Denver Post reporting the outcome of Arthur's trial. The trial court examined the prospective jurors with great care. Two jurors who had seen the articles were excused for cause. A third juror, Mrs. Nusbaum, said that she had seen the article in the Denver Post but had only skimmed it and remembered only the name of the trial judge. Her lucid replies to the searching questions of the trial court convinced it that she would be a fair juror and it overruled the objection for cause. We recently reviewed a more pervasive claim of juror prejudice in Welch v. United States, 10 Cir., 371 F.2d 287, 292, cert. denied 385 U.S. 957, 87 S.Ct. 395, 17 L. Ed.2d 303, and said that "the record reveals a voir dire completely satisfying the standards set by the Supreme Court." The same statement applies here. See Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751, and Beck v. Washington, 369 U.S. 541, 557-558, 82 S.Ct. 955, 8 L.Ed.2d 98. At the most, we have a showing of a possibility of prejudice and that is not enough.1 In our opinion the trial court did not abuse its discretion in denying the challenge against Mrs. Nusbaum.2 In any event the defense used its third peremptory challenge to excuse Mrs. Nusbaum. No showing is made that the jury which actually tried the case was anything but fair and impartial.
The evidence against Albert was substantially the same as that against Arthur. We have held in Arthur's case that it was sufficient to sustain the conviction. The same is true in this case against Albert.
Objections are made to the receipt of evidence of acts and statements of Arthur after the robbery. These all occurred shortly after the robbery and before the arrest of either the defendant or Arthur. The statements were spontaneous rather than narrative. In Arthur's case we held that acts and statements of Albert were admissible. For the same reasons the acts and statements of Arthur were admissible in Albert's trial.
Albert claims error in the admission of evidence that he and Arthur were present when another man a few days before the robbery purchased from a Denver pawnbroker a nickel-plated revolver of the type used in the robbery. We believe the evidence was relevant and properly received.
Objection is made to the evidence relating to defendant's income tax refund. Arthur's statement about the source of the cash which he used to pay the repair bill on Albert's car and which he displayed at the garage was admissible against Albert because it was a statement of a co-conspirator made before the end of the conspiracy. The government was entitled to prove the falsity of the statement and, as noted in Arthur's case, no violation of 26 U.S.C. § 7213(a) (1) occurred.
Defendant says he is entitled to a new trial because of newly discovered evidence. This pertains to the time when the witness Boswell identified a picture of a man as that of Albert and said that she had seen the man in the vicinity of the savings and loan association sometime before the robbery. She had testified that the picture was shown her early in the afternoon of the robbery. The alleged new evidence was that the...
To continue reading
Request your trial
-
Wiser v. People
...potentially suspicious circumstances are shown), cert. denied, 464 U.S. 859, 104 S.Ct. 184, 78 L.Ed.2d 163 (1983); United States v. Mares, 383 F.2d 811 (10th Cir.1967) (mere showing of possibility of prejudice is insufficient to warrant a new trial), cert. denied, 390 U.S. 961, 88 S.Ct. 106......
-
U.S. v. Radeker
...the conspiracy must be shown and the connection of the latter therewith established by independent evidence." See also Mares v. United States, 383 F.2d 811 (10th Cir.); Beckwith v. United States, 367 F.2d 458 (10th Cir.); and Tripp v. United States, 295 F.2d 418 (10th Cir.). In United State......
-
U.S. v. Allsup
...it has been stated that there would be no abuse of discretion of the trial court sufficient to warrant reversal. In Mares v. U. S., 383 F.2d 811 (10th Cir. 1967), cert. denied 390 U.S. 961, 88 S.Ct. 1060, 19 L.Ed.2d 1157, in reviewing an overruled objection for cause of a prospective juror ......
-
Booker v. Israel
...is not sufficient to establish a violation of his constitutional right to a fair and impartial jury. See Mares v. United States, 383 F.2d 811, 812 (10th Cir.1967), cert. denied, 390 U.S. 961, 88 S.Ct. 1060, 19 L.Ed.2d 1157 The petitioner did not question juror Lewis about her ability to del......