United States v. Tehan, No. 15538.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtMILLER and CECIL, Circuit , and FOX
Citation337 F.2d 990
Docket NumberNo. 15538.
Decision Date10 November 1964
PartiesUNITED STATES of America ex rel. Edgar I. SHOTT, Jr., Relator-Appellant, v. Dan TEHAN, Sheriff of Hamilton County, Respondent-Appellee.

337 F.2d 990 (1964)

UNITED STATES of America ex rel. Edgar I. SHOTT, Jr., Relator-Appellant,
v.
Dan TEHAN, Sheriff of Hamilton County, Respondent-Appellee.

No. 15538.

United States Court of Appeals Sixth Circuit.

November 10, 1964.


Thurman Arnold, Washington, D. C. (James F. Fitzpatrick, Arnold, Fortas &

337 F.2d 991
Porter, Washington, D. C., James G. Andrews, Jr., John A. Lloyd, Jr., Cincinnati, Ohio, of counsel), for appellant

Calvin W. Prem, Cincinnati, Ohio (Raymond E. Shannon, Pros. Atty., Harry C. Schoettmer, Asst. Pros. Atty., Cincinnati, Ohio, on the brief), for appellee.

Before MILLER and CECIL, Circuit Judges, and FOX, District Judge.

SHACKELFORD MILLER, Jr., Circuit Judge.

Appellant, Edgar I. Shott, Jr., a member of the bar of the State of Ohio, was convicted in the state court of a violation of the Ohio Securities Act, generally referred to as the Ohio Blue Sky Law. In the trial at the close of the State's case, appellant's counsel, being of the opinion that the State had not made out a case, did not call appellant as a witness or introduce further evidence, but moved for a directed verdict. The motion was overruled and the case submitted to the jury, which returned a verdict of guilty. Appellant received a sentence of one to five years imprisonment in the state penitentiary.

The judgment was affirmed by both the Ohio Court of Appeals and the Ohio Supreme Court, 173 Ohio St. 542, 184 N.E.2d 213. An appeal to the United States Supreme Court was dismissed, but was treated as an application for writ of certiorari, which was denied. 373 U.S. 240, 83 S.Ct. 1295, 10 L.Ed.2d 409. A petition for rehearing was also denied. 374 U.S. 858, 83 S.Ct. 1865, 10 L.Ed.2d 1082.

Appellant contended in the trial court and on the appeals that the Ohio Blue Sky Law, under which he was convicted, was invalid under the due process clause of the Fourteenth Amendment because it set no ascertainable standard of conduct, required no specific intent, and was so indefinite and vague as to be void. In addition to other defenses, he charged misconduct on the part of the prosecutor in closing argument to the jury in improperly commenting upon the failure of the appellant to testify.

Following the exhaustion of his state remedies, appellant filed the present habeas corpus proceeding in the United States District Court, which, after oral argument, was dismissed by the District Judge, from which order the present appeal was taken. The District Judge entered the necessary Certificate of Probable Cause required by Section 2253, Title 28, United States Code.

The alleged improper comment of the state prosecutor in his closing argument to the jury about appellant's failure to testify raises a constitutional question under the Fifth and Fourteenth Amendments to the United States Constitution, to which we will first direct our attention. We are of the opinion that this issue was properly raised by the present habeas corpus proceeding. Sections 2241-2254, Title 28, United States Code; Rogers v. Richmond, 365 U.S. 534, 540, 81 S.Ct. 735, 5 L.Ed.2d 760; Fay v. Noia, 372 U.S. 391, 420-424, 83 S.Ct. 822, 9 L.Ed.2d 837; Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751.

Without reviewing the comment of the prosecuting attorney to the jury on appellant's failure to testify, it is sufficient to state that if this case had been tried in the United States District Court for an alleged federal offense, it would have violated appellant's constitutional rights against self-incrimination under the Fifth Amendment to the Constitution of the United States. The right contained in the Fifth...

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8 practice notes
  • Sheppard v. Maxwell, No. 16077.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 14, 1965
    ...by the decision in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Cf. United States ex rel. Shott v. Tehan, 337 F.2d 990 (CA 6, 1964); Schiers v. People of State of California, 333 F.2d 173, 176-177 (CA 9, 1964); Helton v. United States, 221 F.2d 338, 341 (CA 5, 1955); M......
  • United States v. Black, No. 72-1906.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 15, 1973
    ...States, 407 F.2d 1313 (6th Cir. 1969) vacated 402 U.S. 938, 91 S.Ct. 1623, 29 L.Ed.2d 107 (1971); United States ex rel. Shott v. Tehan, 337 F.2d 990 (6th Cir. 1964), vacated, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453, rehearing denied, 383 U.S. 931, 86 S.Ct. 925, 15 L.Ed.2d 850 The issue o......
  • Tehan v. United States Shott, No. 52
    • United States
    • U.S. Supreme Court
    • January 19, 1966
    ...to answer incriminating questions, but also the right that such refusal shall not be commented upon by counsel for the prosecution.' 337 F.2d 990, 992. We granted certiorari, requesting the parties 'to brief and argue the question of the retroactivity of the doctrine announced in Griffin v.......
  • United States v. Tarrago, No. 196
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 3, 1968
    ...S.Ct. 1489, 12 L. Ed.2d 653 (1964), the Court of Appeals granted the writ six months before Griffin. United States ex rel. Shott v. Tehan, 337 F.2d 990 (6th Cir. 1964). The State of Ohio appealed to the Supreme Court, which granted certiorari after Griffin and than reversed on the ground th......
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8 cases
  • Sheppard v. Maxwell, No. 16077.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 14, 1965
    ...by the decision in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Cf. United States ex rel. Shott v. Tehan, 337 F.2d 990 (CA 6, 1964); Schiers v. People of State of California, 333 F.2d 173, 176-177 (CA 9, 1964); Helton v. United States, 221 F.2d 338, 341 (CA 5, 1955); M......
  • United States v. Black, No. 72-1906.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 15, 1973
    ...States, 407 F.2d 1313 (6th Cir. 1969) vacated 402 U.S. 938, 91 S.Ct. 1623, 29 L.Ed.2d 107 (1971); United States ex rel. Shott v. Tehan, 337 F.2d 990 (6th Cir. 1964), vacated, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453, rehearing denied, 383 U.S. 931, 86 S.Ct. 925, 15 L.Ed.2d 850 The issue o......
  • Tehan v. United States Shott, No. 52
    • United States
    • U.S. Supreme Court
    • January 19, 1966
    ...to answer incriminating questions, but also the right that such refusal shall not be commented upon by counsel for the prosecution.' 337 F.2d 990, 992. We granted certiorari, requesting the parties 'to brief and argue the question of the retroactivity of the doctrine announced in Griffin v.......
  • United States v. Tarrago, No. 196
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 3, 1968
    ...S.Ct. 1489, 12 L. Ed.2d 653 (1964), the Court of Appeals granted the writ six months before Griffin. United States ex rel. Shott v. Tehan, 337 F.2d 990 (6th Cir. 1964). The State of Ohio appealed to the Supreme Court, which granted certiorari after Griffin and than reversed on the ground th......
  • Request a trial to view additional results

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