Rizzo v. United States
| Decision Date | 23 July 1962 |
| Docket Number | 16872.,No. 16822,16822 |
| Citation | 304 F.2d 810 |
| Parties | August Tom RIZZO, Appellant, v. UNITED STATES of America, Appellee. Ruby NAFIE, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
COPYRIGHT MATERIAL OMITTED
Charles M. Shaw, Clayton, Mo., for appellant August Tom Rizzo.
Frederick H. Mayer, Asst. U. S. Atty., St. Louis, Mo., D. Jeff Lance, U. S. Atty. and Lee J. Placio, Jr., Asst. U. S. Atty., St. Louis, Mo., on the brief, for appellee.
Murry L. Randall, St. Louis, Mo., Morris A. Shenker, St. Louis, Mo., on the brief, for appellant Ruby Nafie.
Before SANBORN and MATTHES, Circuit Judges, and GRAVEN, Senior District Judge.
The appellants Ruby Nafie and August Tom Rizzo were found guilty by a jury on a one count indictment. They appeal from the judgments of conviction entered and sentences imposed following the jury verdicts. A five-year prison sentence was imposed on the appellant Nafie; a four-year prison sentence was imposed on the appellant Rizzo. The latter sentence runs consecutively to an eight-year prison sentence imposed upon Rizzo in the case of Rizzo v. United States (8th Cir. 1961), 295 F.2d 638. The appellants will hereinafter be referred to as the defendants.
The indictment charged the defendants with a violation of the conspiracy statute, Section 371, Title 18, United States Code. In the indictment it was alleged that the defendants conspired to purloin or steal money from the Mercantile Trust Company of St. Louis, Missouri, in violation of Section 2113 (b), Title 18, United States Code. That Section makes it a federal offense for any person to purloin or steal money from a bank whose deposits are insured by the Federal Deposit Insurance Corporation. It is undisputed that the Mercantile Trust Company was a bank whose deposits were insured by the Federal Deposit Insurance Corporation.
On December 2, 1960, the defendant Nafie was a teller in the Mercantile Trust Company of St. Louis, Missouri. Shortly after 11:30 o'clock A.M. on that day she reported that because of threats to her life she had delivered over to a colored man through her teller's window a large amount of currency. The Government's case against her and her co-defendant Rizzo is based upon the theory that the alleged holdup was a simulated holdup and that it was the product of a conspiracy between the two.
Each of the defendants makes numerous assignments of error. The indictment was returned on January 25, 1961. Shortly thereafter each of the defendants made several pretrial motions. On February 20, 1961, the trial court heard the motions then pending. Among those motions were motions of the defendants for separate trials. Those motions were denied. The case was set for trial on March 27, 1961, at St. Louis, Missouri. On March 14, 1961, the defendant Rizzo filed a motion for a continuance of the trial. In his motion he alleged that he had recently been on trial in St. Louis on another criminal charge and that there had been extensive newspaper, television and radio publicity in connection with that trial.1 He asked that the trial be continued until later in the year. The defendant Nafie did not make a motion for a continuance. However, she filed a statement in which she stated that she had no objection to the continuance being granted. On March 17, 1961, the trial court entered an order granting the motion. The trial of the case was then set for June 5, 1961.
On June 6, 1961, the case came on for trial. Just prior to the impanelling of the jury the defendants orally moved for separate trials. The defendant Nafie then also orally moved for a continuance and transfer of the case because of recent publicity as to the defendant Rizzo. The attorney for the defendant Rizzo stated that the latter did not join in that motion. The trial court overruled the motions for separate trials. The trial court stated that while for the present it would overrule the motion of the defendant Nafie for a continuance it would determine as the trial progressed whether cause for a continuance appeared. Twenty-eight prospective jurors were then called and sworn. The trial judge first addressed a number of questions to the members of the panel collectively. One of the questions so put was whether any of the panel recalled having read or heard anything about the case either from newspapers or over radio or television. Those who had were asked to raise their hands. Eighteen jurors held up their hands. Following this the record shows the following:
Following the questions put to the members of the panel collectively, the trial judge examined a number of jurors individually. Following that the attorneys were given leave to conduct voir dire examination. The members of the panel were first examined individually by the attorney for the Government. They were then examined individually and at considerable length by the attorneys for the defendants. That examination included the matter of what they may have heard about the case. In the examinations the members of the panel repeatedly assured the Court and the attorneys that they had formed no opinion about the case from what they had heard and that if chosen as jurors they would decide the case solely upon the evidence presented at the trial and they would fairly and impartially decide the issues in the case.
After having examined the members of the panel on voir dire individually and at length, the attorneys for the defendants requested that they be given leave to further examine each member of the panel who had read something about the case in the newspapers individually and apart from the other members of the panel. The attorneys for the defendants were then asked by the trial judge if they wished to make any direct challenges to any of the members of the panel. The attorney for the defendant Nafie answered that he had none unless his request for further examination was denied in which event the defendant Nafie would "* * * challenge all of those who had read newspaper articles concerning the case * * *." The defendant Rizzo apparently concurred in that action of the defendant Nafie. The trial court then denied the requests for further examination under the conditions proposed. Thereafter and before the jury was sworn to try the case the defendants moved for a transfer or in the alternative for a mistrial "* * * in view of the fact that members of the panel have read newspaper accounts concerning this case * * *." Those motions were denied. The trial judge then admonished the jury that they were not to read newspaper accounts of the case or listen to any radio and television accounts of the case and that they were not to allow their wives or husbands to tell them what was contained in such accounts. Thereafter at each recess during the trial and at the end of each day's session the trial judge admonished the members of the jury not to read any newspaper accounts of the trial and not to listen to any radio or television accounts of the trial and not to discuss the case with anyone.
During the trial the defendants prior to the commencement of each day's session, in the absence of the jury, presented to the trial judge newspapers containing accounts of the trial and asked for a mistrial. On each occasion the trial judge would make inquiry of the members of the jury as to whether they had read any newspaper accounts of the trial or heard any radio or television accounts of the trial. On each occasion it was the response of the members of the jury that they had not. The defendant Rizzo assigns error on the part of the trial court in overruling his motions for mistrial made based on newspaper articles appearing during the trial. The defendant Nafie does not make that assignment of error. The defendant Rizzo did not at the trial or since make any showing or offer to make any showing that any of the members of the jury had read any of the newspaper accounts as to the case during the trial. His assignment of error is based upon the assumption that the members of the jury disregarded the repeated admonitions of the trial judge against the reading of newspaper accounts of the trial.
In the case of Fairmount Glass Works v. Cub Fork Coal Co. (1933), 287 U.S. 474, p. 485, 53 S.Ct. 252, p. 255, 77 L.Ed. 439, the Court stated:
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