Mee v. United States

• Decision Date: 31 May 1963
• Docket Number: No. 17041.,17041.
• Citation: 316 F.2d 467
• Parties: Frank J. MEE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

316 F.2d 467 (1963)

Frank J. MEE, Appellant, v. UNITED STATES of America, Appellee.

No. 17041.

United States Court of Appeals Eighth Circuit.

April 24, 1963.

Rehearing Denied May 31, 1963.

Frank J. Mee, Minneapolis, Minn., made argument pro se and filed typewritten brief.

Patrick J. Foley, Asst. U. S. Atty., Minneapolis, Minn., made argument for the appellee and filed brief with Miles W. Lord, U. S. Atty., Minneapolis, Minn.

Before SANBORN and BLACKMUN, Circuit Judges, and STEPHENSON, District Judge.

STEPHENSON, District Judge.

This is an appeal in forma pauperis by Frank J. Mee from a judgment entered upon a jury's verdict of guilty. The indictment charged appellant and co-defendants Walter E. Fisher and Joseph E. Lindquist with conspiring to use the mails to defraud in violation of 18 U.S.C. § 371. The alleged scheme to defraud involved the obtaining of sums of money from two insurance companies on burglary insurance policies. There was evidence that the burglary was feigned and that the claims were false. Some of the articles claimed as a loss by appellant were found buried near the scene of the alleged burglary. Appellant was sentenced to imprisonment for one year and one day. Thereafter the trial court denied the request of appellant and his co-defendants for leave to appeal in forma pauperis, stating as follows:

"The Court has considered all of the claims of all of the defendants and has given consideration to any possible claims of prejudicial error which might have been, but which have not been, alleged, and concludes that there is no issue presented which is not plainly frivolous, and certifies that the appeals are not taken in good faith."

On authority of Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L. Ed.2d 21 (1962) this Court granted the United States an opportunity to show why the appeal was frivolous and thereafter entered an order allowing the joint appeal of appellant and the other two defendants. Appellant herein filed his brief pro se. The other two defendants were granted additional time to file briefs and their appeals have not as yet been heard.

Appellant Mee urges seven grounds for reversal. Appellee maintains that the appeal should not only be denied but also dismissed as frivolous. We agree that the appeal is without merit. A brief discussion of appellant's contentions will suffice.

Appellant first urges the incompetency of the trial counsel which he selected. After reviewing the record we agree with the trial court's observation that "Mee's attorney furnished him a very vigorous defense." There is no merit to appellant's claim.

Appellant next urges the indictment is defective. He claims the indictment is ambiguous because "it charges conspiracy and outlines an alleged mail fraud." Appellant's contention is frivolous. The indictment charges appellant with having conspired in violation of 18 U.S.C. § 371 with named co-defendants to commit offenses in violation of the mail fraud statute 18 U.S.C. § 1341. It is in proper form.

Appellant next contends as follows:

"A `key\' witness to the Government\'s case was seen by not less than four persons, leaving the witness box at the end of his first day of testimony, and walking alongside a juror with his hand on the juror\'s shoulder, and talking to the juror, from the witness box to the exit from the courtroom, which action the witness denied on the following day when questioned about it by the Assistant United States Attorney who was prosecuting the trial, and which action constituted a breach of conduct and a miscarriage of justice because of the deliberate denial of the action by the witness in spite of the facts. Determination by the district court, without inquiring into the situation or questioning either the witness or the juror, that no prejudice had resulted was unsupported."

In the Memorandum and Order denying the appeal in forma pauperis of appellant and co-defendants the trial court in reference to this contention stated as follows:

"The defendants maintain that the government effected `a miscarriage of justice\' and `a breach of conduct\' because a `key\' witness left the courtroom one day during the trial. On this occasion, so the affidavits allege, he walked beside a juror, hand on juror\'s shoulder, and talked with the juror. The affidavits purport to show that the witness on the following day `vigourously (sic) denied\' said conduct; the trial notes do not indicate that the denial, if any, occurred on the witness stand.

"The government attorney brought this matter to the attention of the Court upon his having learned that the witness and a juror did walk from the courtroom together. There was no indication that the walk lasted beyond the door leading from the courtroom to the hall; and counsel for the defendants did not request any cautionary admonitions to be addressed to the jury; nor did they move for a mistrial. It is not claimed or shown that the case or the evidence was discussed by the juror and witness. This alone could not be, and here was not, prejudicial."

In his brief appellant states that the witness in question was Postal Inspector Albert Sable. The record indicates that Sable's first day of testimony was December 7, 1961. The jury was instructed December 13, 1961. At no time was a record made concerning this incident by appellant or his co-defendants each of whom make the same contention in his affidavit in support of his motion for leave to appeal in forma pauperis.

The law in this regard is stated by the Supreme Court in Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 as follows:

"In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant."

To the same effect see, Wheaton v. United States, 8 Cir., 1943...