Opinion
Nos. 15891, 15892.
March 26, 1965.
Frank J. Richter, Cincinnati, Ohio, for appellant.
John H. Reddy, U.S. Atty., Knoxville, Tenn. (David E. Smith, Asst. U.S. Atty., Knoxville, Tenn., on the brief), for appellee.
Before WEICK, Chief Judge and CECIL and EDWARDS, Circuit Judges.
VanBuskirk was convicted by a jury in the District Court in 1961 on an indictment charging him with transporting in interstate commerce approximately eight thousand dollars ($8,000.) which he had obtained by fraud, trick, scheme or artifice, in violation of Title 18 U.S.C. § 2314. He was represented by counsel at the trial. He filed a motion for judgment of acquittal or for a new trial, alleging, among other things, an attempt by the prosecuting witness to communicate with a juror by exhibiting to him a Masonic emblem. The juror reported this incident to counsel for VanBuskirk.
The District Judge conducted a hearing at which the testimony of the juror, a deputy United States Marshal, and of another witness was introduced. The District Judge found from the evidence that the alleged attempt to communicate did not prejudice or bias the juror. He denied the motion, relying on Ryan v. United States, 89 U.S.App.D.C. 328, 191 F.2d 779 (C.A.D.C. 1951) cert. denied 342 U.S. 928, 72 S.Ct. 368, 96 L.Ed. 691; and other authorities
Before the trial the District Judge heard and denied a motion for change of venue which complained about adverse newspaper publicity. The Judge informed counsel that he could interrogate the jurors on this subject on voir dire examination, but counsel made no such inquiry.
An appeal was taken to this Court from the judgment of conviction and the judgment was affirmed. 304 F.2d 871 (C.A.6, 1962).
A motion to vacate sentence under Title 28 § 2255 was filed in the District Court on January 14, 1964, and a second motion to vacate was filed on March 5, 1964. In the first motion complaint was made concerning the denial of the motion for change of venue. The second motion dealt with the alleged attempt to communicate with a juror. The District Judge denied both motions to vacate without a hearing. The propriety of his decision is now before us on appeal. We appointed counsel for VanBuskirk, who filed an agreed record and brief and made an oral argument.
The precise points raised in the present appeals were decided against VanBuskirk by the District Court in the original criminal action and by us in the direct appeal. Nothing new has been presented. The matters complained of at most were alleged errors of law occurring at the trial, for which a remedy by appeal was provided and utilized. Franano v. United States, 303 F.2d 470 (C.A.8, 1962) cert. denied 371 U.S. 865, 83 S.Ct. 125, 9 L. Ed.2d 102; Malone v. United States, 257 F.2d 177 (C.A.6, 1958).
Upon the factual record in this case we hold that both matters rested within the sound discretion of the trial judge. We ruled on the direct appeal that there was no abuse of discretion. We are of the same opinion now. In our judgment there has been no denial of VanBuskirk's constitutional rights.
Affirmed.