Shea v. United States

• Decision Date: 03 August 1918
• Docket Number: 3078.
• Citation: 251 F. 433
• Parties: SHEA v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

251 F. 433

SHEA v. UNITED STATES.

No. 3078.

United States Court of Appeals, Sixth Circuit.

August 3, 1918

Cornell Schrieber, of Toledo, Ohio, for plaintiff in error.

E. S Wertz, U.S. Atty., and J. C. Breitenstein, Asst. U.S. Atty both of Cleveland, Ohio.

Before KNAPPEN and DENISON, Circuit Judges, and WESTENHAVER District judge.

KNAPPEN Circuit Judge.

This proceeding is brought to review a second conviction of plaintiff in error upon an indictment under section 37 of the Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1096 (Comp. St. 1916, Sec. 10201)), for conspiracy to use the mails in furtherance of a scheme to defraud condemned by section 215 of the Code (section 10385). A former conviction of plaintiff in error and others upon the same indictment was reviewed by us in Shea v. United States, 236 F. 97, 149 C.C.A. 307, where the fraudulent scheme charged and the salient facts appearing on the trial are set out. It is enough at this time to say that the fraud alleged to have been accomplished is the swindling of one Rundel out of $3,000 by fake horse race betting at a fictitious 'turf exchange' in Toledo, Ohio.

The case is a companion of No. 3079, 251 F. 440, . . . C.C.A. . . ., this day decided, in which Shea and Taylor are plaintiffs in error, and which involves the defrauding of one Hoblitzel out of $5,000, by similar methods; the Hoblitzel case figuring in the evidence on the trial of the instant case. On this review six alleged errors are urged:

1. Section 21 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1090 (U.S. Comp. Stat. 1916, Sec. 988)) provides that when a party to a civil or criminal cause shall file affidavit that the judge before whom the case is to be tried has a personal bias or prejudice either against him, or in favor of his adversary, the judge shall proceed no further, and another judge shall be designated to hear the case. The affidavit must be filed at least 10 days before the commencement of the term (unless some good cause is shown for failure so to do), and must be accompanied by certificate of counsel of record of the good faith of the affidavit and application. The opinion of this court on the former review was handed down October 13, 1916. The mandate was received below November 18th following. The then current term of the District Court began October 31st, and in due course the case was assigned for trial December 4th following, or as soon thereafter as it could be taken up. On the date last named, on application of plaintiff in error that the trial be passed for a few weeks, the case was specially set for trial on Monday, January 8, 1917. On Saturday, January 6th, when the jurors were under notice, and witnesses for the government at distant places in Ohio and adjoining states had been subpoenaed to attend on the following Monday, an affidavit of plaintiff in error, verified on information and belief, but containing formally sufficient averments of the judge's disqualification, was tendered for filing and the tender refused. The certificate of counsel was made by an attorney who had not theretofore appeared in the case. The only reason given for failing to file the affidavit sooner was that the mandate of this court was not filed in the District Court until after the current term had begun.

Upon this state of facts the court rightly refused to consider the application. Technically, the application came too late. Assuming, however, for the purposes of this case, that it could not have been filed before the mandate went down, it clearly could and should have been filed at the nearest available time thereafter. The delay in filing after the mandate issued was in no way explained or accounted for. There is no claim of ignorance of the actual filing of the mandate, or of the announcement of this court's decision more than a month previously. Counsel's appearance had not been entered at the time the affidavit was tendered for filing. Appearance was entered later in the day, but was withdrawn still later in the same day, but after the denial of leave to file affidavit. We do not pass upon the sufficiency of the certificate, nor (though intimating no opinion to the contrary) whether the affidavit in question, made, as it was, on information and belief, was technically sufficient under the statute. We rest our affirmance of the action of the District Judge upon the ground that the affidavit of disqualification was not tendered in due season, and that the circumstances were such as to justify belief that the affidavit was purposely held back, and its use on the eve of trial resorted to for the purpose of securing a postponement. The better practice would have been to permit the affidavit to be filed, and then strike it from the file, thus preserving a more complete record. But no prejudice resulted from the specific practice followed.

2. On the following Monday (January 8th), which was the date set for trial, and when the government was ready therefor, a postponement was asked to enable counsel for plaintiff in error to prepare for trial. The application was denied. The denial is not reviewable, unless it clearly involves an abuse of discretion, which we think it does not. True, counsel who had represented plaintiff in error, on the review in this court of the former trial, had given up their employment January 3d, and the attorney afterwards employed, and who presented the affidavit of disqualification on January 6th, gave up his employment that day, apparently because he concluded that he was not expected to actively represent plaintiff in error on the trial. A New York attorney was expected to attend on behalf of plaintiff in error, although he seems not to have been expected to take an active part in the trial itself. Counsel who made the application to postpone, and who actively tried the case, had been retained on the evening of the previous day.

The meritorious question was whether, under all the circumstances, counsel was given reasonable time to prepare. The opinion of this court on the former review contained a fairly full statement of the history and salient facts of the case. The transcript of the record of the former trial (less than 300 pages) was printed, and the New York attorney had had a copy since November 18th. Plaintiff in error was very familiar with the case and seems to be highly intelligent. Although the jury was impaneled on Monday afternoon, it was not expected that the taking of testimony would begin until Tuesday, and it so turned out. Under all the circumstances, we cannot say that counsel could not be as well prepared to take up the trial on Tuesday as they would be after several weeks' preparation in advance of a first trial. Certainly the record does not indicate prejudice from lack of preparation.

3. Plaintiff in error took the witness stand. On cross-examination the government's counsel was permitted to ask him if he had been charged with fraud or crime in Philadelphia, if he was not at present under indictment in New York, whether he had not been indicted in Boston for clairvoyant frauds, and whether he was arrested in Detroit as a clairvoyant. The ground of complaint stated here is that plaintiff in error was not subject to cross-examination as to previous indictments or arrests, as distinguished from convictions. His answers to the criticized questions, to say the least, largely relieved from prejudice. Sawyer v. United States, 202 U.S. 150, 166, 167, 26 Sup.Ct. 575, 50 L.Ed. 972, 6 Ann.Cas. 269; People v. Ogle, 104 N.Y. 511, 11 N.E. 53; Shears v. State, 147 Ind. 155, 46 N.E. 331. As to the Philadelphia charge, he denied knowledge of its nature, declared he was never identified as the party, and that it had been dismissed as against him; as to the New York charge, that he had been in New York considerably 'since then, and they have never made any effort to arrest me'; as to the Boston charge, that he 'returned there, surrendered, and it was dismissed'; as to the Detroit charge (in apparent substance), that he was not arrested, because found not to be the man wanted. Indeed, on the former trial, as appears by the record on review, the subject of the indictments in Philadelphia, Boston, and New York was introduced by plaintiff in error on his direct examination.

But we are not called upon to consider whether the criticized questions were proper, for the sufficient reason that the ground of the objection was in no case stated, and the objections were thus fatally defective and not entitled to be considered. We need only refer to our own decisions. ^[1] A mere 'I object' did not necessarily suggest the impropriety of cross-examination as to indictments or arrests, as distinguished from convictions. It was broad enough to include an alleged incompetency of the proof as not the best evidence, ^[2] which is not in all jurisdictions a good objection, ^[3] or that the cross-examination was unreasonable or oppressive, which would be largely addressed to the court's sound judicial discretion. Complaint is made of other questions allowed on cross-examination; but, in view of what we have already said, we think the complaint without merit

4. In the course of the charge, after an instruction that the presumption of innocence 'must result in your bringing in a verdict of not guilty,' unless 'the evidence convinces you of the truth of the charge beyond a reasonable doubt,' the court said, in substance, upon the subject of reasonable doubt, that if the individual juror, after considering all the facts and circumstances in evidence putting them together in a logical order, giving to each of them that...