*2 Cook, Atty., U. Scott T. S. Asst. Wood- from which was his Seals, Atty., Houston, Tex., U. row S. selected. appellee. During the course of cross-ex Beforе HUTCHESON and amining prosecutor, Judges, SIMPSON, Circuit and District attempting to determine the sources of Judge. income, Sally O’Mally, Mirabile’s asked if maid, a woman he knew as a bar was also Judge. HUTCHESON, prostitute. answered, He “I don’t In know”. with a connection series of appeal- Carl Michael Mirabile here qüestions designed to determine whether from the and of sentence knowledge Mirabile had of of sources the United States District Court for the supply planned in Mexico and had Texas, Southern con- District of on his trip, buying Mirabile was asked the last conspiracy import viction of to mari- name aof Baltimore friend. answer huana, in violation of § U.S.C.A. ed, questions “Hernandеz.” These two 176a1, year for which received he a five objects to which the defendant now sentence. during not of to the cоurse in- Borozzi Mirabile and Nicholas Finally, questioning trial. while the de conspiring to dicted in smuggle counts for three fendant, prosecutor attempted to smuggling, marihuana, vio- determine whether the and his concerning lating mari- the revenue laws girl sharing during friend were a room guilty pleaded huana transfers. Borozzi objected to, the trial. The was violations, and Mir- to the law revenue judge commenting with the district Only abile spiracy tried alone. the con- was irrelevancy. its closing It went In unanswered. to count was submitted argument, in an government’s In rested the main ease swer to the defense testimony on riquez, of Rod- Hector Robles government had failed to show that Mexico, Monterrey, of citizen large Mirabile had a market for the go-between in of who acted as a the sale amount of in marihuana involved to Borozzi. marihuana argued case, if defendant was Sally working O’Mally,he would have a not, he, appellant as- nor can does objected to, This market. was given by Rod- sert the evidence sustained, a simulta riquez, bolstered as it overruled, neous motion for mistrial was government witnesses, was insuffi- other cient. charge jury, and in the court’s in argues he Instead this, disregard structions were to prosecutor’s cross-examination as irrelevant. defendant, coupled with his that of jury argument, prejudicial prosecuted This casе was awith zeal approached impro- versible He further asserts that error. the bounds of failing priety, type in the district court erred grant and we do not condone the disqualify engaged prosecu- motion here in tactics “Notwithstanding brouglit contrary § 176a. U.S.C.A. into tliе States United whoever, provision law, conspires law, other or whoever to do knowingly, foregoing acts, imprisoned with intent defrаud the shall be imports brings twenty or into the less than or more than not five law, contrary years and, addition, may United States marihuana not finеd clandestinely smuggles $20,000. or or introduces For more than sequent a second or sub (as marihuana which into the States offense determined under invoiced, receives, (c) should been or have Internal Section 7237 Revenue conceals, buys, sells, 1954), or manner im Codе the offender shall be prisoned conceal than more facilitates ment, ten or less may forty years and, addition, or salе of such marihuana after in, knowing being imported brought $20,000.” be fined not more than imported same have been tendency told nor been asked about tor, to lead to error. neither with their judge. meeting However, their with the find no reversible error. we any, was, if What light precautions taken *3 argument to was prejudice from insure that no resulted judge, by of the trial action removed the judge’s actions, sum- the we hold that his might and, likewise, whatever four, made as in front mons to it was the passed questions which have been in the panel, er- the entire did not constitute not affect the sub- did without ror. of harm Nor is there indication rights accused. of the Fed.Rules stantial of Civil Procedure resulting from the four absence the 52. panel from jury it for the as assembled trial. We selection in Mirabile days before defendant’s Sevеn cannot of the infer that members 17, petit trial, September 1962, on panel that the considered summons jury panel September term was for the judge’s subsequent office absence days. panel’s for excused several panel the four from were the prеsence four its members were re jurors, sult of criticism of four by judge quested the district meet panel then infer that the was infected In his him that аt 1:15. afternoon implied this criticism of unknown judge these chambers district asked way disqualified in such a to be as days jurors, four had three who before serve defendant’s on the acquitted a on which had served a farfetched, The claim of error here is charged of the with violation being indeed, frivolous. There no sub- minutes, narcotics laws in eleven whether appellant’s stance in ror, claims оf er- they had that case verdict is affirmed. thorough consideration, ju whether might influence, ror outside have received Judge gonе on, (dis- anything improper JOHN R. whether senting) they : and he told had returned hastily. The a verdict rather improper I- believe that Because trial, upon learning prior to his mov coupled of the defendant examination September panel, term ed inflammatory made remarks which his be chosen. from He is here prosecutor the prejudicial constitute contending public reversal, requiring Du- еrror jurors a summons to four these States, gan Drug Stores, v. United Inc. panel “demonstration to the entire 835; v. 1964, Hull Cir., 5 326 F.2d acquittal could result in a con vote 817; 1963, States, Cir., 324 F.2d 5 judge’s chambers, and that ference Cir., Washington 5 might juror acquittal who ex voted [1964], respectfully 1964, I F.2d 793 327 upon explain pеct vote called Cir., Cohen, 2 dissent. United States v. jury”. to someone outside the opin- 523, (dissenting 1949, 528 F.2d 177 recognizes ion) ques- hearing . out- The Court on this motion A was held professional knowl- tions, presence September to the certain side edge improper. judge pаnel, were the district in which term equal- compounded jurors All of this was four from the term removed the ly impermissible drilled for Mirabile’s casе. available testimony. prior inadmissible or allow the de- also offered examine in which case to be another seems to examine the remainder fense panel only gets Tipton no relief. Cf. one hurt of the summons effect 1963, Cir., Socony Co., judge’s Oil offers v. Mobil four to the office. These (dissenting opinion), 660, re rejected. jurors F.2d The four mem., 34, 1963, collectively 84 S.Ct. versed 375 U.S. dur- the defense examined 1, they hearing L.Ed.2d and testified that
Carl Michael Mirabile v. United States
330 F.2d 676
5th Cir.1964Check TreatmentAI-generated responses must be verified and are not legal advice.