Rubenstein v. United States

• Decision Date: 01 September 1955
• Docket Number: No. 5120.,5120.
• Citation: 227 F.2d 638
• Parties: Irving M. RUBENSTEIN, also known as Irving M. Ruby, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

227 F.2d 638 (1955)

Irving M. RUBENSTEIN, also known as Irving M. Ruby, Appellant, v. UNITED STATES of America, Appellee.

No. 5120.

United States Court of Appeals Tenth Circuit.

September 1, 1955.

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Isaac Mellman, Denver, Colo. (Gerald N. Mellman, Denver, Colo., was with him on the brief), for appellant.

Robert Swanson, Asst. U. S. Atty., Denver, Colo. (Warren Olney III, Asst. Atty. Gen., Robert S. Erdahl, Carl H. Imlay, Attys., Criminal Division, Dept. of Justice, Washington, D. C., and Donald E. Kelley, U. S. Atty., Denver, Colo., were with him on the brief), for appellee.

Before BRATTON and MURRAH, Circuit Judges, and WALLACE, District Judge.

BRATTON, Circuit Judge.

The present appeal in this criminal case presents for review the action of the trial court in denying without a hearing a motion to vacate and set aside the judgment and sentence.

The indictment contained two counts. The first count charged an attempt to evade and defeat income taxes and the second charged aiding and assisting in the preparation and presentation of a false and fraudulent income tax return. Appellant was found guilty on both counts and was sentenced to imprisonment and payment of a fine on each count. On appeal, the judgment was affirmed in respect to the charge contained in the first count but reversed in respect to that contained in the second count, 10 Cir., 214 F.2d 667; and certiorari was denied, 348 U.S. 896, 75 S.Ct. 215. After remand, the trial court reduced the period of imprisonment under the first count, on condition that the fine be paid. The fine was paid; the sentence of imprisonment under the first count went into effect; and appellant was imprisoned for its service.

After being incarcerated for service of the sentence, appellant filed in the case a motion to vacate and set aside the judgment and sentence. It was alleged in the motion that prior to the commencement of the trial of the case another criminal case in the same court was tried; that in such other case a certain defendant named Smaldone and others were charged with violations of income tax statutes; that such charges were similar to the charges against appellant in this case; that certain information was presented to the authorities which indicated that persons on the jury in the case against Smaldone and others had been approached on behalf of some of the defendants in that case; that such information resulted in an investigation by the grand jury; that, without the knowledge of appellant or his attorneys but with knowledge on the part of the court and the United States Attorney, the members of the panel from which the jury in the case against appellant was selected were questioned by agents of the United States Treasury and were called before the grand jury and interrogated as to whether they had been approached by anyone in respect to their jury service; that such interviewing, questioning, and interrogating of members of the jury panel constituted a form of intimidation on behalf of the United States; that of necessity it had some effect upon the deliberation and determination of the jury in this case; and that therefore appellant did not have a fair and just trial before a fair and impartial jury as guaranteed by the Fifth and Sixth Amendments. The prayer in pertinent part was that appellant be granted a prompt hearing; that upon a finding that there had been a denial or infringement of the constitutional rights of appellant, the verdict and judgment entered thereon be vacated and set aside; and that appellant have such other and further relief as should seem meet and proper. The motion was denied without a hearing, and this appeal followed.

After the appeal had been perfected, the parties filed in the trial court a written stipulation. It was stipulated among other things that a criminal case against Eugene Smaldone came on for trial; that a mistrial was declared and the case set for a second trial about two months latter; that in the meantime, a grand jury undertook an investigation of jury tampering in connection with the then pending Smaldone case; that as the result of the investigation, indictments were returned charging Eugene Smaldone, Clyde Smaldone, and others, with conspiracy and the substantive offenses of attempted bribery and obstruction of justice in approaching members of the petit jury panel; and that the facts relating to the charges as developed at the trial were more fully reflected in Calvaresi v. United States, 10 Cir., 216 F.2d 891, reversed 348 U.S. 961, 75 S.Ct. 522. It was further stipulated that in connection with the investigation of the charge of jury tampering in the Smaldone case, members of the jury panel from which the jury selected to try the instant case was subsequently drawn were questioned by agents of the Internal Revenue Service as to whether they had been approached concerning their jury service; that eight of the jurors who served in this case were questioned as to whether anyone had contacted or talked with them regarding their jury service; that one was questioned as to whether anyone had contacted or talked to him regarding his jury service, or had recently offered him an unusually attractive financial deal; and that all replied in the negative. It was further stipulated that in addition to the questioning by the agents of the Internal Revenue Service, the entire panel of petit jurors were questioned by the grand jury; that each was asked whether he had been approached by anyone with respect to his activities as a juror, whether he had received any threats or promises, and whether he had received any information on the subject; that in each instance the answer was in the negative; that one juror was asked whether he knew one Lawson, an individual involved in the Smaldone case; that the juror said he did but had not visited with him or had any dealings with him; that another juror was asked whether he knew the Smaldones, to which he replied that he only knew them through eating at their restaurant; and that a third juror volunteered the information that she was related "in a vague roundabout way through marriage" to the Smaldones but did not know them or anything about them. And it was further stipulated that the stipulation should be transmitted to this court as part of the record on appeal. A copy of the transcript of the proceedings of the grand jury relating to such jurors...