United States v. Nimrod Solomon and George Sommer

v. Nevertheless, under United States Linkenauger, (C.A. F.2d 925 America, UNITED STATES of appellant observing court,.after Plaintiff-Appellee, Milanovich relied in that the Su- States, stated: “Since United Sommer, George Nimrod SOLOMON although Woody, preme Court affirmed Defendants-Appellants. Court, feel that we equally divided an Nos. 17005-17067. What- decision.” bound we are Appeals, United States Court of arise, deci- misgivings ever Seventh Circuit. trans- are clear in this Circuit sions Feb. 1970. portation violation and concealment 2312 and Rehearing Sections April 18 U.S.C.A. En Title Banc Denied offenses, separate and sentenc- 2313 are valid. es the offenses on each transportation However, since offenses, separate

and concealment proof of jury instructed should beyond a rea found must be each crime to convict in order doubt

sonable both, proof offense will one more, not, permit conviction without Mathis v. United See other. 1952). if the better have been

It would re given here had made instruction However, no absolutely

quirement clear. charge is nor objection was made appeal. propriety issue in this its proof which ample there is Since found concealment could transportation, we

apart from the act plain regard instruction

decline to Powell, 420 error. Cf. F.2d 949 appellant

Nevertheless, because years on the five

sentenced term transportation stolen ve-

count of years hicle, on the count of and five

concealment, run consec- sentences to opinion that, utively, we are of light su- of Mathis given

pra, should be reconsidering

opportunity whether consecutively, run sentences concurrently. affirmed, accordingly judgment Dis- and the cause remanded to the trial

trict with leave Court modify

to reconsider the sentences against appellant. entered heretofore

lili during appeared which the course which, claim, trial and defendants Finally, quired mistrial. exception Solomon has also taken presentation in camera a confidential government report and the trial report use of that in consideration of bail pending appeal. We affirm. Evidence as Solomon Defendant integral of An element by fense stated 18 U.S.C. is 2314 § knowledge. guilty existence of intent or States, Pauldino v. F.2d 379 (10th 1967). 172 Cir. The Wolfson, MaeCar- Terence D. Warren knowledge must in the check George Program, thy, Federal Defender forged volved has been and fraudu 111., appellants. Chicago, Sommer, for lently Barry States, made. v. United Atty., Foran, Sheldon U. Thomas A. S. U.S.App.D.C. 301, 109 287 F.2d Davidson, Chicago, 111., Lul- Peter John Gardner, (1961); United States v. Attys., inski, Nash, U. Asst. S. Michael B. 1948). F.2d This ele appellee. counsel, required ment also a where con SWYGERT, and spiracy charged CUMMINGS Before to violate Section 2314 is Judges. KEENER, Circuit under 18 U.S.C. 371. United § supra, 758-759; Gardner, pp. at cf. Judge. CUMMINGS, Circuit Ausmeier, United States v. (2d 1945). were Evidence Solomon and Defendants Sommer knowledge may along be with inferred in a indictment named 2-count particular I circumstances and acts and Aimer Linkon. Count Farrell and Lew parties (Jacobs conduct of the conspiracy v. United charged trans- them with States, forged port com- in interstate check a 1968)), be and un must clear of 18 violation U.S.C. §§ merce equivocal. charged Direct Co. v. with Sales II them and 2314. Count transporting offense substantive 1674; check, by forged prohibited cf. Miller v. United 18 U.S.C. L.Ed. and trial* died before 2314. Farrell § Defendant Solomon claims acquitted.. Solomon Gov Linkon was prove ernment guilty has failed to counts element on both were found Sommer beyond They a jury. reasonable are un a each doubt. We a trial after before agree. years able to of five on received sentences conspiracy substantive count. On the charged activity The criminal count, term Solomon was sentenced a against defendants occurred the back- years, years to five ten Sommer ground proposed of a business loan concurrently run the sentences $250,000 Space to Air and Manufactur- imposed I. under Count sentences ing, Incorporated, manu- Indiana “Gyro- facturer of an aircraft called a Defendant contends Solomon plane,” comparable which is a heli- to es- lacked evidence sufficient arranged copter. being guilt beyond This loan was a his reasonable tablish Amick, president corpora- Fred G. must conviction doubt tion, initially addition, with Farrell and later with aside. both therefore set Rosenberg, Alan who died claim that denied defendants were indictment but named therein as a co- of the treatment of fair because conspirator. allegedly prejudicial newspaper publicity was testified that he first met Solo- Miller evidence reveals Solomon The August year A later he aquainted Sommer mon in with codefendant well again Rosenberg. com- encountered Solomon Solomon with Alan Rosenberg Chicago pany company restaurant. frequently in a Sommer running day occasionally him next Sommer introduced Miller assisted things Rosenberg, later met like that.” Solomon and the four men “and errands again Skokie, Rosenberg’s clearly at home in of the details aware 12, 1966, present September proposed Miller loan. He was Illinois. On Indiana Sep- mortgage telephone call from when was discussed received Solomon Rosenberg up requested' and Chi- who that he make some tember checks, using cago attorney protector possessed to a Pitt en route a check Cornelius Chicago Rosenberg, perforate airport Pitt Miller to where the amount on the agreed plane to Indiana center of boarded a the checks. Miller Sommer negotiations. morning loan met in with the Solomon later that in front connection day apartment building. September the the of Miller’s On While Amick, given they through forged neighborhood, to check was walked the Rosenberg envelope Solomon Solomon to Amick handed Miller introduced con- taining George”, piece paper blank as “David and Solomon checks and a Chicago present throughout mained a with handwritten names and amounts put Amick and to be on restaurant discussion between the checks. Solomon Rosenberg concerning the an increase in stated that there total of 16 was a $50,000 envelope, initial on loan from checks the advance which were Rosenberg $52,500. up to be and to stated that made two were extras to be When any spoiled used in he to a man” was other- “see since the loan were or given increased, wise to be to to be he drove off alone with Miller. When Solo- apparently they Plymouth, mon returned, noticed a con- Solomon. After Solomon taining through accompanied Rosenberg, police, two men ran Sommer gangway placed envelope City a and Miller Amick to the Marina Bank which containing paper a checks and under returned, Sommer entered. When he he informing containing envelope After had a doormat. that bank Solomon forged passed check which he to him checks Rosen- he would contact when the berg. Rosenberg opened envelope prepared, were Miller returned to his and, examining contents, passed apartment. after Miller later to re- returned Amick, stating envelope it to it contained his cover the and learned from money. Rosenberg apartment it had been then advised Amick tenant of landlady $52,500 not to cash had it. check at the Ma- removed City rina and added that “this Bank envelope strongly ap- The checks Chicago. carry You can’t that kind of pear with the been connected money spending out of the bank.” After for which was indicted. scheme Solomon company, two hours in their Solomon Although he testified that “be- Miller Sommer, Rosenberg drove and Amick envelope top lieved” the check was airport where Sommer and Amick check Fletcher National cashier’s on the plane boarded a for Indiana. Indiana, women who re- Bank of both knowledge loan of the details from under the door- covered the checks His during transaction, presence the de- mat the checks were cash- testified City livery check, his use of an Marina Bank. ier’s checks from the grounds type than create no more of check from same alias The same complicity forged given suspicion ultimately if for Solomon’s bank was days considered in alone. When Amick no more than five after considered addition, testimony of Jerome after Miller had connection with the occurrence. checks, Miller, forger, reported the evidence Solomon a convicted loss of the illegal Rosenberg upset him that was shows that Solomon knew informed and “that there some character of the check. the loss were Indiana, waiting a chartered indictment. As the district court people noted, waiting, people in plane some was Wash- checks, waiting ington these segregate [Sep- “It is difficult going to take over used were Miller-Solo- tember 12 further plant.” Solomon an aircraft reference to conversations with mon] plant airplane was lo- indicated airplane plant and the Indiana Substantially the same in Indiana. cated it, just separate You checks. can’t * * * * ** again communicated was information and for that reason two met when Miller Solomon go it should in.” day and Miller offered two later The indictment asserted that the con- if up checks some additional make began spiracy July 1966 and had as its then look- procured. were Solomon purpose obtaining from Amick of ing printer. check for a $17,500 prepaid through “interest” jury was en- evidence the From this check, counterfeit which was to be the concluding that Solo- tirely justified in first $250,000 installment of a loan to forgery and assisted mon knew Space Manufacturing Air Company. City check Bank’s cashier’s the Marina apparent It the Miller-Solomon given September to Amick which was part transactions were of the indictment ample evidence 1966. There scheme and therefore admissible in evi- lost Miller with connect the checks Wall, dence. United States v. Space Company From scheme. Air and certiorari Septem- participation in events of the his denied, 76 S.Ct. jury actions, the later ber L.Ed. 816. reasonably that inferred have could so, contends that Even Solomon sub- played role the a similar Solomon judge have instructed the trial forgery sequent procurement jury sponte evi sua the Miller the the passed The use of to Amick. check purpose “limited show dence had a —to mys- George” and the alias of “David knowledge.” Assuming such intent and excursion taken Solomon terious demanded, an instruction could have been Rosenberg alter- man” about to “see a proposed, was no such instruction ing to check of the cashier’s the amount objection no to its absence was made.1 supports these to Amick be transferred Accordingly, instruc the absence of this inferences. may assigned not Rule tion as error. testimony argues Miller’s Solomon 30 of the Federal Rules of Criminal up plan concerning to make the abortive Procedure; Hutul, 416 United States September not 12 should on checks 1969); con- He allowed into evidence. have beén Marine, crime it involved a different tends that charged in the indictment from that then, conclude, evidence the We jury merely shed- without inflamed the and, consid- when properly admitted ding light mental state. on Solomon’s to the light favorable most ered pointed out, the evidence As have we Government, Glasser September taken the occurrences of 86 L.Ed. 62 S.Ct. together made Solo- with the remarks guilt of unequivocally to the 680, points concerning the lost mon the use to which Solomon. prox- put close to be and the were checks Sep- imity in time between the events Initially to Jury Not to Warn Failure forged delivery of the tember 12 and the Newspaper Articles Read September Amick check to joined has Solomon Defendant Sommer strongly support inference the the as- demanding because a new trial charges all related to the evidence conduct act or trial jury not on were that defendants instruct 1. The did alleged in the indictment. against judge’s of contamination as a the trial this form sorted deficiencies arising problems not hold handling from the Accardo does matter course. sponte judge at publicity de- trial must sua which surrounded that a adverse overnight jury first recess instruct trial. fendants’ Before day disregard There, newspaper to articles. the first excused at close of giving trial, an initial them after such caution at the district court addressed counsel, the trial as of defense follows: judge specifically repeated denied re- gentlemen, “Ladies we during warnings quests for further going to recess case until tomor- figure prominent course the trial of a morning, just row and I wish to advise even after substantial adverse jury keep to minds their free brought atten- had been open you until heard all circumstances, tion. Under arguments case, evidence in this Judge Kiley out, pointed incum- it was of counsel and the instructions judge bent trial accede to During the Court as to law. “frequently, the defendant’s demands and period you case, hearing separation, call the atten- [to] amongst yourselves do not discuss it jurors specifically pos- tion of the anyone permit nor else discuss sibility carrying newspaper accounts you. case with will You have suffi- statements facts about the case.” amongst cient time to discuss case Margóles, upon 298 F.2d at yourselves you your at the time start suggestions, judge counsel’s your deliberations on verdict.” peatedly told the not to read about judge obligation The trial has the approved and we his action. protect judicial proceedings from However, Margóles specifically refused (Sheppard “outside interferences” sponte sua order action Maxwell, 333, 363, supplement procedures he warning L.Ed.2d and a problems had used to meet the ad- beginning at pro publicity. verse 407 F.2d at 734-735. ceeding publicity to not read about the However, trial case, is advisable. the neither the instant the trial any judge questioned nor requested jurors (see infra) Government the gave jury that frequent the court specific instruct and them to avoid in newspaper bearing accounts on structions the case. once the defendants brought Defendants publicity now contend that United adverse in Accardo, (7th States v. 298 F.2d 133 Cir. herent risks to his attention re 1962), Margoles States, quested United such instructions. There is no (7th 1969), F.2d required suggestion Cir. that, indication or to give time, court to judge such an instruction sua the district was even sponte. any publicity. aware threat of such Under these to circumstances we decline de- accept not view of our We do fault his conduct.2 As in Mar we stated Nothing opinions can in those cisions. góles, any responsibility “the court must notified of place be be to construed upon judge jurors publicity to caution offensive before can be re- Issue, 2. We need not whether trial now decide “Free Press —Fair Trial” 45 F.R. required 391, 409-410, permit be to caution the D. which would jury specifically prejudicial publicity warning party as to either at the of a request by motion, absent a the defendant where on the own court’s with the independently judge becomes aware American Bar Association’s Standards publicity Relating Press, or in threats of adverse the case to Fair Trial Free public significant 3.5(e), p. (1968), interest a trial which would re § notoriety. persons type involving quire of substantial such an in that instruction case, Compare Report on the Committee Jury System Operation of the on jurors. necessary precau- Defendants contend other quired to take obligation requirement Accardo established at 735. tions.” exposed bring publicity to the that the individual this Circuit on counsel only separately jurors not be attention. court’s pub- questioned of the as to the effect interrogated licity they but that must be Interrogation Jurors jurors. presence other out of the charge that next The defendants agree now that this Circuit We required pro- judge follow failed interroga separate private requires possible determining ad- cedures jurors tion of contact who have admitted publicity of the verse effects prejudicial publicity. Contrary jury. They the court contend first defendants, however, the contentions of collectively jurors polled improperly mandatory by the rule made any had seen to ascertain whether Court until goles our recent decision Mar argue They article. v. United F.2d juror questioned out each should have (7th where we stated: presence deter- others to of the “Thus, procedure required article. had read the mine whether prejudicial public- this Circuit where concededly ity brought argument has to the court’s attention same This during rejected this Court a trial is that the court must raised and been Margoles any jurors previous ascertain exposed occasions. if who had been on several publicity F.2d had read or United Rizzo, jurors 1969); heard the spond affirmatively States same. Such who re- 1969); must then examined, individually Hutul, and outside the presence presented 1969).3 jurors, Defendants have other to deter- argument why publicity. interro mine the effect of the no the collective How- ever, juror gation upon inquiry if permitted decisions no those indicates require collectively, a new made to the altered to that he should now be has read or heard trial in this case. question, required is not complain Defendants also proceed further.” interrogate

judge erroneously failed language require was intended to individually presence This and out of the motion, judges, proper regular district jurors each of the six individually jurors outside examine one alternate who admitted knowl- jurors presence edge of other ascertain the of the He did interro- article. prejudice.4 possible gate regular of juror the existence each who acknowl- however, opin- Margóles, edged Prior our independ- awareness of the article merely expressed preference ently, presence ions a the but did so in the of interroga- party” only either conduct such an 3. Rizzo Hutul with this as- deal Margóles pect Patriarca v. United 402 tion. See the and do not show that of 314, (1st 1968), part Margóles dealing certiorari F.2d 318 Cir. with the in- denied, 21 jurors, polling outside dividual presence other, 567. Here defense counsel failed L.Ed.2d effect of of each as to the request polling retroactively applied publicity individual outside be presence to the effect of (see infra). of each other as Instead, for one of the article. counsel only requested individual Margóles defendants in cer- decide whether did not presence polling outside the of each must a tain circumstances district any interrogation, them had read the sponte as to whether sua such conduct question. for another defendant article. Counsel Section we that nor do decide protest mis- until he moved for a did not 3.5(f) Bar the American Association’s reading polling as to Relating trial after both Trial to Fair Standards polling “may effect been later as to had and the on Free states that the court Press completed. on motion of own motion or shall particu adoption Margoles did demand 23 L.Ed.2d 16. not did not only Judge Accardo, impose sought procedure. In the rule lar these defend Kiley Margóles. examination of the ants to ruled favor trial of Dr. juror, presence of the justice out of The of each administration of not would preju by granting others, to the effect served determine here retroactive concurring Duffy’s Judge application Margóles. dicial articles. We therefore opinion such rule salutary expressed not endorse hold did that rule judge should obligatory only stated that instead in trials oc not repeated curring admonition initial after March 1969. Cf. United during trial. newspapers Long States ex rel. Pate, read F.2d dissenting con opinion (7th course 1970); Cir. adequately had Amabile, the trial (7th cluded that States v. F.2d jury. guarded integrity Thus 1968); Smith, of the United States v. Jannsen, F.2d United States F.2d Judge 1964), 919-920 Upon Failure to Declare Mistrial Jurors’ did Swygert pointed that “Accardo out Exposure Publicity 5 Again, rigid rule.” down set Largo, turn We United States v. now to the defendants’ majority went no contention that a mistrial should have preference jurors been than to reiterate declared when further six admitted practice hint in a close for this read a June ar newsp employed type appeared Chicago ticle which case the of examination in a reviewing aper.6 During court’s influence the individual interro gation jurors prejudicial effect. of the article, determination of who read the the district court learned that none place The trial of ease took them opinion had formed an eight approximately our months before guilt or innocence of the defendants. Margóles manner made the decision They claimed their minds were still “free improper. employed of examination below open” impartial,” or “fair and say judge’s re We cannot prejudice no had been instilled acceptability upon apparent liance article. At the of defendant unjustified in view procedure of his counsel, Linkon’s the district court then previous of our decisions which tolerated collectively asked these whether Margóles procedure required by it. The they had discussed the article with each accuracy is intended to increase other, question negative drew a determination response. jury. effects While The article captioned involved was verdicts, it thus serves to insure unbiased “Business Man Tells of Fraud Loan we do not of a dif believe that use body Shark.” In the item, de- practice ferent in the trial below neces fendant Solomon is twice referred to as sarily judge’s rulings un renders the “reputed syndicate crime loan shark.” reliable otherwise casts doubts addition, it states that veracity jury’s determination guilt. Hall v. “Also named in the indictment were 428, 1968), Luigi [Cockeyed 429-430 certiorari 58, Fratto, Louie] of denied, 986, 462, Moines, 393 89 21 U.S. S.Ct. Des who of died cancer Nov. 447; 24, L.Ed.2d 1967, cf. Johnson v. New Rosenberg, Allan Lin- Jersey, 719, 727-730, 384 son-in-law, U.S. 86 S.Ct. kon’s who was in slain 1772, 16 882; Halliday gangland L.Ed.2d v. United 17, fashion 1967, March 831, States, 832-833, Chicago.” 394 89 U.S. S.Ct. Palermo, 5. See also United States v. 13, 410 6. A somewhat similar article of June 468, 471, 1969) 1968, 3. note considered, ju need not be for the they rors advised trial court not seen it. 1118 exceptional courts have been cases that complains Finally, Sommer jury’s willing prejudice in a erroneously to declare stated article or content volume loan verdict because agreed initial make an “Sommer inflammatory publicity gave surround- said, him a $52,000, Amiek of g., Sheppard ing See, the case. e. amount.” for that check 333, 1507, 16 Maxwell, 86 S.Ct. holdings Marshall Relying upon L.Ed.2d 600. States, 310, S.Ct. U.S. 79 360 v. United case, newspaper curiam), article In this (per 1171, 1250 L.Ed.2d 3 admittedly improper remarks. contained Louisiana, 723, 83 U.S. 373 Rideau However, Kahaner, in United States v. as 663, 1417, and Janko L.Ed.2d S.Ct. 10 (2d 1963), 459, certio- 317 States, 470 S.Ct. 81 U.S. v. United 366 rari sub Corallo v. denied nom. (per curiam), de L.Ed.2d 846 6 States, 375 84 S.Ct. U.S. statements these fendants contend L.Ed.2d 65: in

conveyed prejudicial, inadmissible required mistrial not which formation “Comparison facts here with jurors’ protestations withstanding relating to inadmissible reviewing impartiality. After continued States, offenses in Marshall v. United question, the article in we conclude U.S. 79 S.Ct. L.Ed.2d grave it contained no remarks of such a (1959), ‘build-up or inherently prejudicial náture as to prejudice’ Dowd, in Irvin v. accuracy raise such a doubt of serious 717, 725, 1639, 1644, 81 S.Ct. 6 L.Ed.2d jurors’ response call for a as to (1961), inapplicabilitj/ shows the new trial. salutary cases, prin- of these and of the ciple for which Generally, ruling stand.” on a mo mistrial, tion none of contained the article In this case large dis- judge has a trial “The massively inflammatory revelations preju- ruling the issue of cretion convictions, past prior felony criminal reading by resulting dice alleged im conduct and admitted concerning the articles of news proprieties the news which characterized States, U.S. Holt trial. v. United accounts Marshall 245, 251, 1021. L.Ed. 310, 311-312, 79 S.Ct. U.S. beyond that statement Generalizations in item lacked L.Ed.2d 1250. Here the profitable, each case because strongly evidence which admissible special upon own facts.” turn must trial, probative guilt case at States, 360 U.S. Marshall v. United televising widespread 310, 312, 1173. 79 S.Ct. in Rideau defendant’s confession 1417, 10 Louisiana, in such is not The crucial issue cases inadmissibility admissibility finally Nor were ref L.Ed.2d 663.8 degree pervasive- publicity, erences to as a “loan shark” Solomon pos- prejudicial improper influence ness com other remarks here resulting.7 only sibly parable it has Thus been to the contents of the account presently unwill- 7. For this reason we stance and ease of administration. Nev- adopt any impose ing ertheless, would firm rule which we hesitate apply judges de- standards for the all hard and fast to the exclusion of prejudicial partiality. effect. Com- termination relevant indices of 3.5(f) Bar the American pare Section Cf. Smith v. United Relating Fair Association’s Standards dis where the court requires which Free Press Trial and containing tinguished a com an article any juror of the content excuse of aware testify ment on the defendant’s failure prejudicial reports potentially na- “probative guilt” from a news account ques- the material ture “if reference to containing con an excluded such as one required trial itself would tion at the fession. a rule to be declared.” Such a mistrial it, both as to sub- much to commend has

1119 States, 716, 81 366 U.S. could not Janko v. United believe answers of the curiam). 1662, (per jurors compelled L.Ed.2d 6 846 and would S.Ct. to find only preformed opinion re the defendant was not There bias matter as a 11 em to as a relative and former ferred of law.” boss,” ployee of but also was a “rackets Furnishing Report pre a “former convict” who had called of Confidential viously guilty Solomon to District Court been found of the same Defendant charges being but was retried because point turnWe to the last raised on this jurors four at the first read news appeal. objects Defendant Solomon charges.9 accounts of the prepared confidential memorandum publicity in- The circumstances Attorney the Assistant United States many present lack case also in the volved the district court’s in camera in- which have led spection the other features in consideration of the Govern- per prejudice findings se. courts to ment’s to revoke bail. Solomon single Only a article reached claims that the use of this secret re- brought immediately jurors. port It was for revocation of bail affected the judge who the district the attention of proper conclusions as to the sen- interrogated jurors and thereafter impose pro- tence to him and denied due disregard them to peatedly admonished cess of law. newspaper publicity. He concluded decisions, In recent this and accurately responded as jurors well general have indicated dissatis- courts they they honestly indicated that when as inspec- in camera faction the use of impartial capable of ren- remained In Dennis tion of confidential material. Moreover, dering while a fair verdict.10 States, 874-875, 855, v. United U.S. conclusive, ability not in itself 973, 1840, the Su- 86 S.Ct. 16 L.Ed.2d jury impartial acquit de- to remain misgivings preme expressed con- Court ruling supports Linkon fendant cerning efficacy procedure of this conclude, judge. did the We grand utility determining the Washington, Court in Beck v. 369 U.S. pointed minutes. The Court out 557, 541, 955, 964, 98: 8 L.Ed.2d S.Ct. inspection camera minutes * ** pub- places upon say a substantial burden cannot “We naturally perform licity what was so intensive and extensive properly advocate. panel the function of an or the examination of the entire inadequacies more prejudice same are even revealed such that a court given overbalanced the assurances all 9. Janko also from the instant differs jurors they impartial. procedural shortcomings present remained There the court admonished the there. Mitchell, also, 11. See United States v. par jurors disregard accounts, news 1963); 402, (7th F.2d 403-404 Cir. acc ticularly question, the item but refused facts, g., e. ord on similar see Hall v. interrogate jurors concerning their States, (10th 396 F.2d 428 Cir. United contained in awareness of the information 986, 1968), denied, certiorari 393 U.S. prejudicial its effect on their article or 447; 462, 21 L.Ed.2d United States S.Ct. objectivity. such circumstances Under (2d Kahaner, 459, v. 317 F.2d 470-471 reviewing incumbent 1963), sub nom. certiorari denied Cir. prejudicial had assume that article 835, Corallo United improperly contaminated the reached 65; 62, 84 S.Ct. 11 L.Ed.2d jurors. deliberations Cf. United (6th Smith, 687, Palermo, 410 F.2d States v. 471-472 denied, 1968), certiorari 393 U.S. 1969). 162; Ma 21 L.Ed.2d 89 S.Ct. Crouse, Dowd, lone Cf. Irvin v. denied, certiorari L.Ed.2d where the 1174; great Supreme 19 L.Ed.2d Court concluded prejudicial Smith ad volume several missions of guilt preconceptions the defendant’s by to Ward must consider reference apparent where the 1066,12 concerning the conduct United assertions factual justify practice fails to opinion of the defendant. Such character or Ward, guilt adopted Frank- In here. Justice practice, if used to ascertain instance, merely furter noted the trial first the accused of flight by of likelihood fundamental conclusion of most contradict would upon by imposed was confiden- requirements the defendant based procedural of probation reports tial not be and should such Reliance the Constitution. rejected expressed post-conviction for that reason. He in camera material approval practice no objectionable involved. proceedings is where also York, by Williams v. New opportunity for rebuttal no exists by 1079, 93 L.Ed. cited Justice S.Ct. defendant. simply Frankfurter, refused Court to Burke, In Townsend v. process read the due clause of Four- Supreme 92 L.Ed. S.Ct. require teenth Amendment to a state to struck down a sentence whose Court grant evidentiary hearing an with notice materially predicated upon duration was charges opportunity and the by the factual conclusions drawn false relying upon examine witnesses before judge: probation information contained in a severity “It not the or duration port. Moreover, Williams, the trial this sentence that renders consti- judge apparently expounded had tutionally invalid; it is the careless or pertinent supplied by report facts designed pronouncement of sentence on upon which he relied before defend- extensively a foundation and ma- so attorney. Supreme ant’s The Court fur- false, terially prisoner which ther noted that by opportunity no to correct the serv- accuracy of “The the statements made provide, ices which counsel would by judge appellant’s as back- lacking proceedings renders the in due ground past practices was not chal- process.” 334 at at U.S. lenged by appellant counsel, or his nor 1255. judge disregard any was the asked to appellant or them afford however, token, By a defend- the same chance refute or discredit by improved position is avail- little ant’s by them cross-examination other- ability where confidential of counsel wise.” 337 at 69 S.Ct. at prosecution report con- proffered misleading statements false tains go of unneces- uncorreeted because which extrapolate We unable sary secrecy. rel. States ex Cf. United approbation from these decisions an (3d Myers, F.2d 707 Jackson practice report here involved. The The vested broad discretion prepared presented this case pro- post-conviction independent prosecutor, not ceedings adequate supervision and makes probation at officer determinations dif- review substantive judge. 32(c) (2) Rule Under pro- Under circumstances ficult. such Federal Rules Criminal Procedure the safeguards, cedural disclosure discretionary power rebuttal, opportunity all for the extent and manner determine necessary fair the more to insure and ac- pre probation officer’s disclosure of application pre- standards curate (see report sentence is not unfettered fixing by Congress sentences. scribed Baker 1968)) sought justify and should 933-934 has Government liberally applied. report United States confidential the submission appeal. pending It is not offi- opinion cerned bail cially reported. rendered 12. The Justice as Circuit Justice and con- Frankfurter

H21 (2d Fischer, Cir. Counsel Can Count in 381 F.2d 509 Federal Sentenc- ing, 37, denied, (1970). S.Ct. A.B.A.J. certiorari generally 1185; see 19 L.Ed.2d Turning case, to the instant Practice, Moore, 32.03 [4] Federal ¶ 8A ,the presented find we Government case, Moreover, present (1969). the in report pur the to the trial for the adversary position in prosecutor’s the pose showing of that Solomon awas inevitably proceedings, rais criminal danger persons to other and to com complete ing concerning im doubts munity meaning within the of 18 U.S.C. distinguishes accuracy, partiality 3148, the Reform Bail Act. § Solomon reports prosecutorial treatment confidentiality does not raise the issue of supplied “professional neutrals those challenge as a to the court’s decision con probation officer.” Haller v. aas cerning pending appeal. bail Rather he (1st Robbins, urges secret memorandum should not have been submitted to the days four before sentence was super of this Court’s Because imposed. to be He contends that at this function, visory now we not rest need subconsciously least affected the result constitutional dic our conclusion on the ing imposed upon sentence him. While process. Compare Haller tates of due procedure improper, no satisfac Robbins, supra, we at Nor are tory granted relief could be in this case. adapt to blind the need to disclosure judge repeatedly The trial stated that legiti proceedings involved and the the information in to him submitted Government mate interests camera only respect in considered properly necessary secret maintenance to bail. After our own review of secrecy for, is called Where information. confidential memorandum we are in however, court should either district accept clined to those statements de permit material disclosure conclude the residual effect proper protective counsel with fendant’s report upon sentencing, ex if grounds or instructions state detail istent, does not warrant reconsideration prosecutorial memorandum that of the sentence after pertinent to the revocation of bail pertinent disclosure details. post-conviction It action. Circuit, however, Hereafter tri a evidentiary necessary require a formal in camera al court shall not consider hearing grant order the defendant prosecutor’s report about a defendant respond prose opportunity sentencing ruling post- report. cutorial Cf. Williams v. New pertinent conviction motions unless the York, factual information summarized for or 1337; Patterson, Specht L.Ed. appro disclosed to counsel with defense 18 L.Ed.2d 326. priate safeguards. hearing appropriate While appreciative The is most (see Note, Court Due some cases Procedural diligent representation and resourceful Sentencing Process at Judicial of defendant Sommer Terence Mac- Felony, 826-829 81 Harv.L.Rev. Chicago Carthy Bar, serving (1968)), other forms rebuttal are also appointed counsel under the Criminal pro compatible with nature of the Justice Act. ceedings adequate and should be conflicting a fair achieve balance judgments affirmed. at stake. Cf. United States interests White, 382 F.2d SWYGERT, Judge (dissent- Circuit 1967) (dissenting opinion); Haller ing). (1st Robbins, 409 F.2d 1969); morning day On the second Smith v. Steele, 1956); case, Chicago see also the .trial Trib- suggests story very line which read alone that fraud —the carried news une issue part: before involved —was one of the characterizes defendants MAN BUSINESS opprobrious term, “loan shark.” FRAUD body TELLS OF The of the article twice character- “reputed BY SHARK LOAN izes a defendant Solomon as in Trial syndicate Testifies in crime loan shark.” Others Federal Court named in the indictment are referred cago. with mer Des 000 cashier’s land Luigi $250,000. on’s bilked Napoli are Nimrod syndicate loan loan shax'k and testified Also named ^[**] (cid:127)**(cid:127)** n They On trial before A violate formerly son-in-law, Moines, Linkon, fashion Muncie, transporting Chicago that [Cockeyed him 208 yesterday and Allan a after Willow charged who 49, of 5701 Sheridan March reputed to North check across state Ind., shark; federal in the who was Los Louie] offering four died of cancer Judge a in [Timmy] business st., reputed Angeles; 17, 1967, Rosenberg, counterfeit indictment with George crime federal District fraud laws Vernon, Ind. slain in Fratto, Alexander to loan conspiring syndicate executive Solomon, Sommer, persons in Chi- gang- crime Link- were Nov. $52,- lines him Ai- rd. J. physician victions mon’s ference stand may main in regardless exposed ana, Marshall v. United and 2d 663 Allan gangland fashion.” fendants Ed.2d 846 as a as characters and members or associates I Marshall organized Luigi S.Ct. believe later cases whole be impartial. relation to for the Rosenberg, between of such to it will be and his (1963), (Cockeyed Louie) strongly suggests (1961), rev’g per that to the crime “mob.” whether he the reference disreputable proposition such as a history I see and Janko v. United character defendant’s L.Ed.2d “who was presumed prejudiced newspaper 1960). case is crime The article Rideau v. no essential as says 1417, 10 L.Ed. that syndicate an unlicensed here to Solo controlled that a These curiam, that Fratto he can dangerous reference publicity slain (1959), Louisi taken juror cases con dif and de- re by L. in Simi a “loan shark.” activities as resumed, defense counsel When larly, re in Janko judge’s attention to called newspaper a a ferred to in St. Louis al- for a mistrial or article moved employee of rack “former the east side interrogate ternatively judge (Buster) ets’ boss Frank Wortman.” individually. jurors re- The mistrial, prefer grant ques- I would that we future cases fused a did they adopt by proposed jurors individually the standard tion the while jurors and American Bar Association’s Standards box. Six were Press, Relating juror they had To Fair Trial And Free alternate admitted one (1968). article, but, 3.5(f) Under that standard part or in § all of read po- juror subject challenge if the question- sponse further to the judgment prejudicial he to which ing, would tential material said that his each grounds exposed furnish article. Defense has been “would affected not be interrogation pro- trial objected if for a mistrial referred counsel standard, jurors cedure, requesting itself.” Measured separately article The contained questioned in chambers. adverse require question mistrial. would was denied. highly light fail- newspaper I reverse in would also This article was comply inflammatory. ure trial prejudicial head- interpreted Ac cal and so in United States Chief rule established Judge Margoles, supra, cardo, F. Castle 298 F.2d 133 Margoles, Furthermore, 2d at 734-735. neither restated Largo In Ac Jannsen nor modified Accardo F.2d 727 observing no there rule in manner. after substantial cardo certainty admit that' will In Jannsen we held strict com- publicity, by prejudicial were influenced pliance with the un- Accardo rule was States, 106 citing Coppedge necessary juror having since each denied (1959), U.S.App.D.C. publicity. read the adverse We conclud- Judge Kiley “He [the wrote: “precautions ed been re- ex have, careful judge] quired interrogating jurors who pres juror, out of each amination newspaper read a not account need have others, the effect determined ence been In taken” those circumstances. had read on those who of the articles Largo this court held that under discussed the had them and whether facts of that error commit- case no * * * These others. with articles following not rule. ted the Accardo tended have would interviews individual However, Judge Enoch, speaking speak out.” reluctance to overcome majority, voiced caveat: “We believe Judge Margóles practice Castle after Chief the better is to each interview subsequent singly discussing juror presence and two out of the Accardo of all court, jurors. United States If of this other the evidence ad- decisions 1964), (7th presented Jannsen, duced trial here at the had Largo, guilt innocence, close issue of or we States and United 1965), preju- stated: well concluded that dicial For error existed this case.” required Thus, procedure this reasons, these I do not believe that Mar- is prejudicial publicity Circuit where góles announced rule a new for this cir- brought dur- attention court’s cuit, merely but restated Accardo ing as- court must a trial is that pre- rule with added refinement any jurors had been certain if who scribed Jannsen. exposed publicity read to such Assuming, arguendo, Margóles jurors who re- Such heard same. did for the first establish time spond affirmatively ex- then be must preferred circuit fixed rather than a amined, individually and outside rule, nothing in I that decision find presence jurors, to deter- of the other applied indicate that not publicity. How- effect of mine the retroactively. That treatment juror indicates, in- ever, if no not intended is two corroborated cases collectively, quiry made Margóles decided court after the read heard he has decision, Rizzo, States v. publicity question, proceed required further. Hutul, 416 F.2d majori- agree I am unable place Both cases which took involve trials Margóles ty this court’s Margóles. prior to decision this court’s “merely expressed preference” opinions Margóles opinion Each rule and cites exposed to adverse govern implies Margóles if would presence out of the be examined the facts of those cases had called for “adop- jurors, did not demand application. Judge procedure.” any particular tion of grant. unequivo- SWYGERT, J., Kiley’s language voted in Accardo

Case Details

Case Name: United States v. Nimrod Solomon and George Sommer

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Apr 9, 1970

Citation: 422 F.2d 1110

Docket Number: 17005-17067

Court Abbreviation: 7th Cir.