Strauss v. United States

• Decision Date: 22 September 1966
• Docket Number: No. 22897.,22897.
• Citation: 363 F.2d 366
• Parties: Robert L. STRAUSS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

363 F.2d 366 (1966)

Robert L. STRAUSS, Appellant, v. UNITED STATES of America, Appellee.

No. 22897.

United States Court of Appeals Fifth Circuit.

July 21, 1966.

Rehearing Denied September 22, 1966.

Arthur B. Cunningham, Miami, Fla., for appellant.

Lloyd G. Bates, Jr., Asst. U. S. Atty., Miami, Fla., for appellee.

Before TUTTLE, Chief Judge, and BROWN and COLEMAN, Circuit Judges.

TUTTLE, Chief Judge.

This is the second attempt to re-try this case following an affirmance of the original judgment of conviction and sentence by this court, 311 F.2d 926 (5 Cir.,) and denial of certiorari by the United States Supreme Court, 373 U.S. 910, 83 S.Ct. 1299, 10 L.Ed.2d 412.

Strauss was convicted in the United States District Court for the Southern District of Florida for a violation of 18 U.S.C.A. § 371; Conspiracy to Conceal Assets in Contemplation of Bankruptcy. Briefly stated, the nature of the conspiracy charged, and which this court held was proved sufficiently to warrant submission to the jury, was that the appellant, together with Goodman and appellant's wife and one Jeri Bolton, would set up a corporation to acquire a leasehold interest in the Cadillac Hotel in Miami Beach, Florida, and that the corporation thus set up would borrow substantial sums of money, ostensibly for corporate purposes and would sell its stock and debentures, also ostensibly for corporate purposes, but with the true purpose, according to the indictment, of making available funds which would then be withdrawn by the appellant and Goodman, with the concurrence or assistance of the other conspirators, thus denuding the corporation of substantial assets in contemplation of the ultimate failure and bankruptcy of the company. The company was The Harold Corporation.

Upon the affirmance of the judgment of conviction, this court determined that there was substantial evidence to support a finding by the jury that substantial amounts of the funds of the corporation had been improperly withdrawn by appellant. In commenting on such sums, the court indicated that there were three certain checks that were made payable to Strauss and ostensibly endorsed by him. The government produced an expert handwriting witness who testified that in his opinion the endorsements were those of Strauss. In addition, a witness, Jack Lowe, testified that on one occasion he had cashed a check at the instance of Goodman, being a check for $15,000 or larger, and had given the proceeds to Strauss. Lowe also testified that on another occasion he had given the proceeds of a check to Strauss on his front porch in cash. In his testimony on the original trial, Lowe did not give even an approximate date when these occurrences took place, nor did he make it clear that the $15,000 was the proceeds of a single check in that amount, or for a larger sum.

The appellant did not take the witness stand personally on the original trial. He, therefore, did not dispute the testimony by Lowe that the latter had cashed a corporation check and delivered the proceeds to him in cash. Nor did the appellant testify that the signatures on the three mentioned checks were not his signatures. No witness was called on behalf of the defendant to challenge the opinion of the government's witness to the effect that Robert Strauss actually signed the endorsements on the mentioned checks.

After the affirmance of the conviction, a motion for new trial was filed, based on the theory of newly discovered evidence. The newly discovered evidence was the assertion by Strauss that he had discovered, after the trial, that his relations with The Harold Corporation, and Goodman and Jeri Bolton had entirely ceased in March, 1957, prior to some of the transactions testified to on the original trial. This motion for new trial was overruled by the trial court, and this court affirmed, stating that we were "unable to hold that the trial court erred in light of the strict requirements for the granting of such extraordinary motions," Strauss v. United States, (5 Cir.) 337 F.2d 853.

On December 1, 1964, appellant filed this second motion for new trial. This new motion was based on two grounds primarily. The first was that the three checks which have been mentioned above were not endorsed by Strauss but Strauss's signature had been written by someone else attempting to copy it. The second ground was that an analysis of the actual withdrawals by check of The Harold Corporation...