Carl Blount v. Jugoslavenska Linijska Plovidba
567 F.2d 583
3rd Cir.
1977
Check Treatment

Carl BLOUNT, Appellant, v. Jugoslavenska Linijska PLOVIDBA.

No. 75-2025.

United States Court of Appeals, Third Circuit.

Decided Dec. 8, 1977.

567 F.2d 583

Argued Oct. 6, 1977.

оf delivering and receiving mail in a modern urban environment.” at 542. Those realities lead us to conclude that section 1708 reaches theft of mail that is misdelivered, even if that misdelivered mail is not placed in an officially authorized receptacle.

The defendant further contends that because no intent to steal was formed before the mail was misdelivered to him, section 1708 does not apply. Tо support that proposition, the defendant cites language from the Ninth Circuit case of (per curiam), which stated, “If the mail had already been received by the addressee or if it were misdelivered to one who did not form the intent to steal it until after he had lawfully removed the mail from its receptacle, there is no violation of section 1708.” .

The same argument was advanced again before the Ninth Circuit in . There, Judge Sneed, commenting on the use of the Birnstihl dicta, wrote:

Appellant has drawn this seemingly favorable language out of context. The court made this statement in a discussion of the various types of proof that will rebut the inference that one possessing a recently mailed and properly addressed item which was never received by the addressee stole the item. It does not necessarily follow that a misdelivered letter . . . cannot under any circumstances be stolen from the mail in violation of section 1708.

In Anton, a letter containing a check in the amount of $95,410.13, although properly addressed, was inadvertently delivered to the post office box of Luis Martinez which was adjacent to that of the addressee. Martinez did not discover the misdelivered letter until he opened all the mail later that day. Originally, Martinez intended to locate the true owner but later he and an associate decided to negotiate the check for themselves and enlisted the apрellant Anton to assist in their scheme. The court affirmed the defendant‘s conviction under section 1708 holding that postal matter does not cease to be “mail” when it is misdelivered to a post office box at the instant of its lawful removal from an authorized depository. The subsequently formed intent to steal did not relieve the defendant of criminal liability.

The Ninth Circuit in Anton specifically refused to embrace the comprehensive Davis rule that the authority of the Postal Service continues until the material is returned to the sender or delivered to the proper addressee, , as this would “extend the concept of ‘in the mail’ and the reach of section 1708 to cover some fact situations in which any connection with the mail is attenuated at best.” . Instead, the holding in Anton was limited to the facts of the case.

We see no policy reason why a properly addressed and duly mailed letter ‍‌‌​​​‌​​​​‌‌‌‌​‌‌​​‌‌‌​‌​‌‌​​‌‌‌‌‌​‌‌​‌​‌​​‌‌​‌​‍or package that is misdelivered should not be protected by the broad Davis rule. Therefore, we adopt for this circuit the rule that “under section 1708, postal matter remains in the custody or locus of the postal system, and continues to be ‘mail,’ until such time as the material is returned to the sender or delivered to the address specified by the sender.” .

Accordingly, the judgment of the district court will be affirmed.

Avram G. Adler, Stanley P. Kops, Adler, Barish, Daniels, Levin & Creskoff, Philadelphia, Pa., for appellant.

William E. Rapp, Rawle & Henderson, Philadelphia, Pa., for appellee.

Before SEITZ, Chief Judge, and STALEY and HUNTER, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

Plaintiff, longshoreman, appeals from a judgment for defendant, shipowner, on his claim for personal injuries allegedly caused by defendant‘s negligence while he was discharging cargo from defendant‘s vessel on December 4, 1972. The judgment was based on the jury‘s answer to a special interrogatory finding no negligence that was the proximate cause of plaintiff‘s injuries.

Because of its pervasive importance, we turn immediately to plaintiff‘s contention thаt the district court committed reversible error by granting each party a fourth peremptory challenge in lieu of ruling on an objection for cause asserted by each party to a different member of the venire.

Defendant contends that we should not rule on the issue as now posed because plaintiff‘s counsel did not оbject on that ground at trial. Defendant says that plaintiff objected solely to the defendant‘s use of his additional peremptory challenge to strike the last black from the venire.

After each side objected to a different member of the venire for cause the court, instead of ruling on such objections, stated that it would givе each side an additional peremptory challenge. Plaintiff‘s counsel said, “I don‘t want any additional strikes.” The court replied: “I give you four strikes apiece. You can use it or not.” We think the record supports plaintiff‘s objection in its present form, even though it suffers from imprecision. In any event, we conclude that cognizаnce should be taken of the objection because of the fundamental issue which it raises. ; cf. .

Title 28 U.S.C. § 1870 reads:

In civil cases, each party shall be entitled to three peremptory challenges. Several defendants or several plaintiffs may be considered as a single party for the purposes of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly.

All challenges for cause or favor, whether to the array or panel or to individual jurors, shall be determined by the court. June 25, 1948, c. 646, 62 Stat. 953; Sept. 16, 1959, Pub.L. 86-282, 73 Stat. 565.

The statute, in our view, provides that in single party civil litigation the cоurt ‍‌‌​​​‌​​​​‌‌‌‌​‌‌​​‌‌‌​‌​‌‌​​‌‌‌‌‌​‌‌​‌​‌​​‌‌​‌​‍is not authorized to allow more than three peremptory challenges per side. In , the court held that the word “entitled” in § 1870‘s predecessor statute was not a word of grant but rather a word of limitation, intended by Congress “not merely to give a minimum or to limit the maximum number of challenges, but finally to fix that number,” . Similarly, the legislative history of a 1959 amendment to § 1870 supports our view. In considering whether to extend to multiple plaintiffs the рrivilege previously granted multiple defendants to seek additional peremptory challenges, the Senate Judiciary Committee, the Administrative Office of the Courts, and the Attorney General‘s office all characterized the authorization of extra peremptory strikes in multiple defendant cases as “an exception to this general rule” of the “[e]xisting law [that] now permits three peremptory challenges in civil cases to each party . . . .” S.Rep.No. 848, 86th Congress, 1st Sess., reprinted in [1959] U.S. Code Cong. & Admin.News pp. 2594, 2594-97.

The consequences inherent in a failure to observe the statute‘s mandate are graphically illustrated by the undisputed facts of this case. Defendant does not challenge plaintiff‘s contention that defendant used its first three peremptories to challenge blacks on the venire. When he was given a fourth peremptory it was used by defendant to strike the last black. This occurred in a case where the plaintiff and his witnesses were black. Passing over any question as to pоssible legal limitations on the use of peremptory challenges, the reality is that their use can result in what a party legitimately feels is an unfair advantage. Since such challenges are “irrational” there is no reason to deviate from the statute.

Indeed, where a peremptory challenge is added in lieu of ruling on a сhallenge for cause, it may aggravate the situation. It can result, as here, in a juror serving who was challenged for cause. Thus, the white member of the venire who was challenged for cause by defendant did in fact serve on this jury.1 We point this out, not to suggest that plaintiff had standing to object to the service by the juror originally challengеd by defendant, but to show the potential for prejudice created by a failure to follow the statute. After all, the prospective juror challenged for cause by plaintiff might have ended up on the jury. The court‘s approach gave defendant an additional peremptory challenge which it clearly was not entitled to regardless of the merits of its challenge for cause. One can only speculate as to what the court would have done had only one side challenged for cause.

We conclude that, in view of the statute, it was reversible error to grant each party an additional peremptory challenge in lieu оf ruling on the challenges for cause, at least in a situation where such additional peremptory was exercised by the party who obtained a favorable verdict. Plaintiff is entitled to a new trial.

[4] Because there will be a new trial, we turn to plaintiff‘s other claims of error. Plaintiff argues that defendant‘s requests for charges 24 and 28, given by the court, constitute reversible error. Defendant contends that plaintiff did not object to these instructions and may not be heard to challenge them for the first time in this court. Our examination of the record leaves us in substantial doubt as to whether plaintiff brought his objections to the attention of the district judge. Thus, we do not know whether the triаl judge would have given the questioned instructions had he been made aware of the nature of plaintiff‘s present objections. In these circumstances we think that it would be imprudent to rule on such issues without the benefit of a clear ruling by the trial judge.

Finally, plaintiff argues that the district court committed error in refusing to honor his request to instruct the jury in thе language of Section 413 of the Restatement of Torts, Second. It is not clear to us from the record that such an explicit request was made of the district court. Moreover, counsel argue vigorously as to the possible applicability of and to this issue. Those cases were decided after the trial in this case and thus the district court did not have an opportunity to determine their relevancy. Given these circumstances and the fact of a new trial, we decline to rule on plaintiff‘s contention at this time.

The judgment of the district court will be reversed and the case remanded for a new trial.

JAMES HUNTER, III, Circuit Judge, dissenting:

The issue posed in this appeal is the power of the trial judge to grant a litigant in a two-party, civil case more than three peremptory challenges. As the majority recognizes, this case does not involve an appeal from defense counsel‘s manner of using peremptory challenges on the basis of race. The use of peremptory challenges is unreviеwable. See ; .

The majority‘s interpretation of the governing statute, 28 U.S.C. § 1870, binds the trial judge by allowing only three strikes in all two-party, civil cases. Since I believe that the trial judge is ‍‌‌​​​‌​​​​‌‌‌‌​‌‌​​‌‌‌​‌​‌‌​​‌‌‌‌‌​‌‌​‌​‌​​‌‌​‌​‍not forbidden by statute from exercising his discretion to grant litigants additional challenges, I respectfully dissent.1

Until 1948 the number of peremptory challenges in both civil and criminal cases was set forth in the same statute. R.S. § 819; March 3, 1911, Ch. 231, § 287, 36 Stat. 1166. Thаt statute used the same language which now appears in section 1870:

in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges.

Multiple defendants or plaintiffs were to be treated as a single party for purposes of the statute.

With the revision of the Judicial Code in 1948, the provisiоns applicable to criminal trials were consigned solely to the Rules of Criminal Procedure. See F.R.Crim.P. 24(b); Revisor‘s Note, 28 U.S.C. § 1870. Still, both the criminal rules and section 1870 contain the same terminology of entitlement. By this and subsequent amendments of the statute and criminal rules, multiple parties can, in the discretion of the trial judge, be treated as a single party or could be allowed “additionаl peremptory challenges.” 18 U.S.C. § 1870; F.R.Crim.P. 24(b). As a matter of legislative interpretation, therefore, the reasoning to be applied to strikes in civil cases should apply to criminal cases as well.

The terminology of section 1870 is that a litigant is “entitled” to three strikes. The words “entitled to three peremptory challenges” need not be read as meaning entitlеd to only three. Indeed, a common reading of these words is that the party has a right to at least three. No words in the statute explicitly limit the court‘s discretion to give additional challenges.

The statutory right to peremptory challenges has become an important right of litigants in criminal and civil trials. The use of strikes is intimately bound with the constitutional right to a fair and impartial jury. The peremptory challenge can eliminate a juror when the litigant suspects a bias which cannot be exposed sufficiently to merit a challenge for cause. The strike can be used to minimize the hostility of jurors which might be created by the argument over a challenge for cause. Further, the cоurts have an interest not only in the jury‘s impartiality but also in the litigants’ perception of impartiality. The peremptory strike preserves both justice and the appearance of justice by allowing the litigant to feel that he is arguing before a fair jury. ; ; 9 Wright & Miller, Federal Practice and Procedure § 2483, at 473 (1971); Note, Voir Dire: Establishing Minimum Standards tо Facilitate the Exercise of Peremptory Challenges, 27 Stan.L.Rev. 1465, 1502 (1975).

I do not believe that these interests are adequately served by an interpretation of section 1870 which limits the number of peremptory challenges to three in all two-party cases. Trials can engender a high degree of emotional response from the community. A murder trial may evoke widespread sensationalism; a civil or criminal trial may become the focus of racial, ethnic, or religious tensions. A trial judge has the primary responsibility even in these tumultuous situations to preserve ‍‌‌​​​‌​​​​‌‌‌‌​‌‌​​‌‌‌​‌​‌‌​​‌‌‌‌‌​‌‌​‌​‌​​‌‌​‌​‍both the actual impartiality of his tribunal and its appearance of fairness. The peremptory сhallenge is an important tool for these ends. I cannot agree with an interpretation of the statute which deprives a judge of that tool. The complete responsibility for the conduct of a trial rests on the trial judge, and he should not be constricted unless he exceeds the bounds of his discretion.

The majority points to the only decision discovered interpreting the word “entitled” as used in the statute. . That case held that a party was entitled to only three peremptory challenges.

On the other hand, at least one court, not limiting itself to multi-defendant cases, has stated the general proposition that the trial judge has discretion to grant additiоnal peremptory challenges. . Other courts have reviewed the failure to grant an additional peremptory challenge in a single defendant criminal case under an abuse of discretion standard. E. g., ; , cert. denied, . These cases were decided under the language of Criminal Rule 24(b), which is identical to section 1870 with respect to the power to grant additional strikes.

Further support for the interpretation of section 1870 which I would follow is found in cases involving several parties. The stat-ute states that several defendants or plaintiffs can be treated either as one party or given additional challenges in the trial judge‘s discretion. If the language of the statute was meant to limit the number of challenges in a two-party case to three for each side, it should follow that the number in multi-party cases be limited to at most three per party. Case law, however, has not created such a limit. For example, in a case involving one plaintiff and two defendants, one court allowed each side to take ten peremptory challenges. . This holding can be compatible only with the view that the judge has discretion to grant more than the minimum of three peremptory challenges аllotted to each party.

To conclude that the judge has discretion to allow additional peremptory challenges in a two-party, civil case is not to say that a party may be granted an unlimited number of strikes. The decision of the trial judge is subject to review under the standard of abuse of discretion. See, e. g., .

Since this сase will be remanded on the issue of the selection of the jury, the majority does not reach the other grounds raised on appeal relating to the jury charge. Under these circumstances, it is inappropriate for me to speak to these other aspects of this appeal. I cannot join, however, in the limitation on the power of a trial judge to permit peremptory challenges in addition to the statutory minimum of three.

ST. VINCENT‘S HOSPITAL, Petitioner, v. The NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 77-1027.

United States Court of Appeals, Third Circuit.

Decided Dec. 15, 1977.

Argued Oct. 6, 1977.

Notes

1
The member challenged for cause by plaintiff did not serve. I also disagree with the majority‘s decision to reach the issue of the number of allocable peremptory challenges. Since plaintiff has shown no prejudice impairing his right tо a fair trial, I do not believe that the judge‘s error, if any, constituted plain or fundamental error. See , cert. denied, ; , cert. denied, . The only comments relating to this issue made at trial were that the plaintiff did not want any additional strikes and that defendant had improperly used his challenges. Neither remark was an objection to the power of the judge ‍‌‌​​​‌​​​​‌‌‌‌​‌‌​​‌‌‌​‌​‌‌​​‌‌‌‌‌​‌‌​‌​‌​​‌‌​‌​‍to grant an additional challenge. Since this argument, now raised on appeal, was never directed to the trial judge‘s attention, he was not afforded an opportunity to correct any possible error before the trial proceeded. See . Therefore, we should not consider the argument for the first time on appeal. See ; .