United States v. Tehan
Decision Date | 19 August 1966 |
Docket Number | No. 16420.,16420. |
Citation | 365 F.2d 199 |
Parties | UNITED STATES of America ex rel. Leslie D. STICKLER, Petitioner-Appellant, v. Dan TEHAN, Sheriff of Hamilton County, Respondent-Appellee. |
Court | U.S. Court of Appeals — Sixth Circuit |
F. Lee Bailey, Boston, Mass., Bernard A. Kansky, Boston, Mass., of counsel, for appellant.
Fred J. Cartolano, Cincinnati, Ohio, Melvin G. Rueger, Pros. Atty., Fred J. Cartolano, Asst. Pros. Atty., Cincinnati, Ohio, on brief, for appellee.
Before WEICK, Chief Judge, and PHILLIPS and CELEBREZZE, Circuit Judges.
Appellant, Leslie D. Stickler, appeals from an order of the District Court denying his petition for a writ of habeas corpus. Appellant, an attorney, was indicted and convicted in the Common Pleas Court of Hamilton County, Ohio, of selling securities without having been licensed as a security dealer, and selling unlicensed securities.1 The conviction was affirmed by the Court of Appeals, First Appellate District of Ohio, and the Supreme Court of Ohio declined review, State v. Stickler, 174 Ohio St. 382, 189 N.E.2d 433. The Supreme Court of the United States denied certiorari, 375 U.S. 438, 84 S.Ct. 506, 11 L.Ed.2d 471. Appellant instituted this action by filing a petition for a writ of habeas corpus in the United States District Court for the Southern District of Ohio, Western Division.
Appellant contends that the Ohio Securities Act is invalid under the due process clause of the Fourteenth Amendment because the procedural provisions create an evidentiary presumption that Appellant made an unlawful public offering of promissory notes and shifted to the Appellant the burden of proving his innocence.
In a companion case, United States ex rel. Shott v. Tehan, 6 Cir., 365 F.2d 191,2 which arose on similar facts and an identical indictment, this Court held constitutional Ohio Revised Code Section 1707.45 which places on a defendant the burden of proving the exempt status of a promissory note. That decision is adopted here.
However, there are several additional issues presented in this case which were not present in United States ex rel. Shott v. Tehan, supra. Appellant first argues that his constitutional right to an impartial jury was violated by the failure of the trial court to protect the jury against extrinsic and prejudicial influence.
While Appellant's jury was being impanelled, one John Ruf, also indicted for similar offenses and slated to go to trial immediately after Appellant, disappeared. On the night of his disappearance, Ruf's attorney appeared on television and made the following statement:
Appellant's attorney was granted permission by the Court to determine if any of the prospective jurors had heard this television broadcast. Three had. One stated he believed that anybody who had heard the broadcast would have formed an opinion prejudicial to the defendant. That juror was removed for cause. The second juror was removed by a preemptory challenge. The third juror was not challenged, although at the time of his disclosure that he had heard the broadcast, the defendant had not exhausted his preemptory challenges.
After the trial began, the Cincinnati newspapers reported that Ruf had been found dead with a bullet in his head. One of the news articles, entitled, "Stickler Case Figure Is Dead", reported, in part, the following:
Appellant's request to interrogate the jurors was denied by the trial court. Appellant claims the article was presumptively prejudicial to him and that it should be presumed the jurors had read the article.
The trial court on several occasions throughout the trial instructed the jurors to refrain "as far as humanly possible from either listening to the radio or television broadcasts or reading the newspaper, any article that concerns this case". During the voir dire the Court instructed the jurors as follows:
In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), a habeas corpus proceeding, the Supreme Court held that the failure of the State to accord a fair hearing to one accused of a crime violates the due process clause of the Fourteenth Amendment; and a jury trial is not fair unless the jury is impartial.
The challenger has the burden of persuasion whether the jurors are impartial in the constitutional sense. Geagan v. Gavin, 292 F.2d 244, 246 (C.A. 1, 1961), cert. denied, 370 U.S. 903, 82 S.Ct. 1247, 8 L.Ed.2d 399 (1962). This burden is one which must be carried "`not as a matter of speculation but as a demonstrable reality.'" United States ex rel. Darcy v. Handy, 351 U.S. 454, 462, 76 S.Ct. 965, 970, 100 L.Ed. 1331, 1338 (1956); Stroble v. State of California, 343 U.S. 181, 198, 72 S.Ct. 599, 607, 96 L.Ed. 872, 885 (1952). See also Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L. Ed. 268, 276 (1942). In determining whether a juror is impartial or not, the Supreme Court said in Irvin v. Dowd, supra:
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Gordon v. United States
...States, 385 F.2d 34, 39 (5th Cir. 1967); United States v. Kompinski, 373 F.2d 429, 432 (2d Cir. 1967); United States ex rel. Stickler v. Tehan, 365 F.2d 199, 202 (6th Cir. 1966); United States v. Armone, 363 F.2d 385, 396 (2d Cir. 1966); Addison v. United States, 317 F.2d 808, 814 (5th Cir.......
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United States v. Serio, 20612.
...the motion for mistrial on the part of this appellant. Marson v. United States, 203 F.2d 904 (6th Cir. 1953); United States ex rel. Stickler v. Tehan, 365 F. 2d 199 (6th Cir. 1966), cert. denied, 386 U.S. 992, 87 S.Ct. 1306, 18 L.Ed.2d 336, reh. denied, 387 U.S. 926, 87 S.Ct. 2028, 18 L.Ed.......
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U.S. v. Giacalone
...evidence presented in court, it is not error to fail to dismiss such a juror for cause. Id. at 432. See also United States ex rel. Stickler v. Tehan, 365 F.2d 199 (6th Cir. 1966), Cert. denied, 386 U.S. 992, 87 S.Ct. 1306, 18 L.Ed.2d 336 (1967), and United States v. Mitchell, 556 F.2d 371 (......