Leroy Walker v. United States
322 F.2d 434
D.C. Cir.
1963
Check Treatment

*1 might been drawn ence other.

as well from one as from provision quoted Because of the Code, we Columbia District that, presence of outside

think who one jury, should tell against his4 testify for

is called spouse com that

pelled if volunteered. be received given, that think, for reasons But ‍​‌‌​​​‌​‌​‌​‌​‌‌‌‌‌‌​​​‌​‌‌​‌‌‌‌‌​​‌​​‌‌​​​‌‌​​‌‍we procedure here the failure follow prejudice Postom’s substantial

rights.

Affirmed. Heinz, Washington, C.,

Mr. James D. аppellant. for WALKER, Appellant, Leroy Atty., Murphy, Mr. Tim Asst. U. S. Acheson, whom Messrs. David C. Q. Atty., Nebeker, U. Frank Asst. America, S. STATES UNITED McLaughlin, Atty., and Appellee. U. S. Arthur J. Atty., Asst. U. at the time brief S. 17547. No. filed, brief, appel- were on the for United States Court lee. Circuit. of Columbia District Judge, Before Senior Circuit Edgerton, May 2, Argued Wilbur K. Cir Bastian, Miller July Decided Judges. cuit Judge. MILLER, K.

WILBUR Circuit An indictmеnt filed October charged appellant, Leroy Walk- er, Walker, and three others—James M. Joseph Quarles M. Charlie Walker and E. August 13, 1960, —on or about robbed filling money station attendant $333 change carrier worth $5.00. 3, 1960, Quarles, November On who begun serving ten-year then sen- robbery imposed for a court in tence plea Maryland, guilty. entered a he became witness the Gov- Later Walkers, three in the trial ernment guilty. pleaded He testified who Judge, Edgerton, he and Senior Circuit dis- robbery, which armed he mitted the de- sented. gender, of course. Common *2 detail, sup 2in Fina scribed and maintained cites in United States1 port proposition. M. Walker of that James M. and Charles Walker part had no evidence it. Other Criminal Rule show, prosecution the ever, how- tended every stage of the defendant “at partici- that all four indictees prohibits of the trial.” This pated commission the crime: communicating police testified that James officers any way, either or it has before self-incriminatory Charlie made state- begun deliberate, the defendant when ments to them. Consequently, is absent. the trial After the consider retired to jury’s erred when he answered the in verdict, Walkers, its the three who were quiry pres when the not bond, court- and their counsel left the salutary provisiоn ent. Rule 43 ais room. When returned later judges scrupulously which trial should day, open them in said to observe, pos no matter how remote court: sibility prejudice may seem. “Gentlemen, I Case in Walker require Such an error does re not received a note from re- versal, .however, when the record shows questing not the whether certainty with reasonable that it did not evidence, man who turned state’s prejudice the' defendant’s substantial rights. Speaking of a similar infraction Quarles, had connected James and Charles crime. Walker with the 43, Judge of Rule Learned Hand said: Reporter “I had the read to me “ * * * Quarles’ testimony аll and he But, like other rules has not in his connected trials, for the conduct it James and Charles with ‍​‌‌​​​‌​‌​‌​‌​‌‌‌‌‌‌​​​‌​‌‌​‌‌‌‌‌​​‌​​‌‌​​​‌‌​​‌‍crime. itself; and, lapses an end while only testimony seemingly And closely scrutinized, should be when anything that has had to do with appears certainty it that no them in their connection with it done, harm has been it would be alleged by were the admissions pedantry upon the merest to insist I detectives. notified the so procedural regularity. cit- [Cases jury.” slightest There cannot ed.] be the informality— doubt here that Walker took no and did for, most, objection any way was no not in it more—did indicate action. re- accused.” court’s Thereafter guilty. finding Lerоy turned a verdict This sensible statement was in obedience disagreed, however, as to his co-de- to, required by, and was Criminal Rule fendants, James and Charlie. 52(a): error, “Any defect, irregularity urges, alia, Leroy appeals. He inter or variance which does not affect sub- rights committed reversible disregarded.” shall be when, Leroy’s absence, he an error Practically holding all cases that a. jury’s question as to whether swered violation of Rule 43 is reversible error implicated Quarles co-defendants, situations involved where it was decided and Charlie Walker Walker. He James there was resultant or a rea argue suggеst that he was does possibility sonable thereof.3 thereby, simply sure,, *To says be. prejudiced gross case, supra, the Fina cited ap that it is not was “so neces error prejudicial,” sary otherwise, pellant, it was show that held but in the later 1931). (10th Cir., rehearing 46 F.2d 643 denied 325 U.S. 89 L.Ed. 2004 Compagna, Cir., 1944), (2nd example, cert denied 324 3. For see Shields v. United 71 L. Ed. 787 Cir., F. A.L.R. States4 case Jones v. ruling Outlaw Fina its Tenth Circuit abandoned ” amounts an incident that such public trial *3 of a unconstitutional denial Mary- Federal decided this since cases though reversal, requires even which as land are to the effect decision same prejudicial. It said: those it refers. to which “ -x- * * no let stand сan [W]e Accordingly hold the trial we that was defendant the conviction where communicating judge’s impropriety in pro- stages of the present at all presence out with the Leroy complete- ceedings record unless require does not Walker possi- negatives any ly reasonable affirmativеly if the record shows arising bility from such tendency to in- communication had no of the record Our error. review against fluence In the the verdict him. no there us that here convinces language of the Tenth Circuit’s Jones possibility of reasonable case, Leroy’s supra, con- we let [present] case.” aрpellant to in viction pletely “unless stand the record com- federal, Many courts, and state both negatives any possi- reasonable presented problem with the judge’s have dealt by bility arising prejudice” to him from with communication judge’s error. and absence in the defendant’s clearly jury’s The record shоws substantially A most suc accord. are in judge’s question and the answer had satisfactory statement of cinct and nothing whatever to do the case with governing principles was made against Leroy Walker or his de- Maryland La Court of fense. As the Tenth Circuit said in the v. State: Guardia supra, “Appellant’s case, Jonеs “ ** shows the record [I]f would aid have been no to his defense affirmatively was that apparent and it that he suffered no improper prejudiced communi- prejudice.” is clear from This jury, with the cation judge’s statement counsel in which error; also and there is reversible he the note described he from reсeived *** shows error if the record communication, his and answer to it—a state- by such but does already quoted ment we and which not the error not show whether or reason we have no to believe is either prejudicial, presumed it is incomplete. inaccurate The prejudicial a re- simply wanted reminded whether States, 10 Little v. United versal. indubitably Quarles, implicated who had Cir., 96 A.L.R. Leroy Walker, had connected James Chang Ah Fook v. United the crime. Charlie with cor- 810. On the Quarles rectly answered that implicated James and Charlie. There- had not hand, if the record shows af- other firmatively that the communication upon, guilty Leroy found ‘tendency to had no influence the disagreed co-defendants. State, (Duffy verdict’ Md. jury’s 189, 195), question Thus, A. and the judge’s judge’s impropriety in communicat- answer concern ing pres- any way. question out of was not asked ence of the defendant quire re- and the does not as to him6 answer made no Dodge him. He reversal. took no reference U.S, jury clearly Evidently 4. 299 F.2d cert. denied 371 remembered unequivocal L.Ed.2d 101 Le- Quarles’s money roy filling sta- took he, Quarles, 5. 190 Md. 58 A.2d tion while held a attendant gun him. explain- any agreement clude it was the court’s action when the court him, no reason should ed have had receive a and would сommunication from pres- giving present. except been His answer it without the de- he opportunity his defense. fendant have aided and his counsel an ence would not conclusively suf- be shows he The record court take such action as ** argu- they might prejudice. Appellant’s fered no *. advised Coun- of, sel, making complained necessarily assumed, it, ment that the incident slightest interest, they to, any in unconstitutionally which he had not the pub- deprived him of munication from the made would be extreme. lic trial is unrealistic in the and that must neces- sarily technicality practicality, opportunity It exhalts theory be offered *4 оver to with- actuality. request already draw preferred, over or * * * vary jury it. a ‘Where has The other reasons for reversal relied retired verdict, to consider of its and by seem to us to lack supplementary required, instructions are guilt amply proved was substance. His jury either because asked for or and his сonviction must stand. reasons, they ought given for other to be Affirmed. either of counsel or after opportunity present; notice and an to be Judge EDGERTON, Senior Circuit ought and written instructions not to (dissenting). jury sent to the without notice counsel In Shields United opportunity object.’ and an If this (1927), L.Ed. case, a true a civil is it true fortiori prosecution conspiracy a for to violate request ain criminal case. The made Act, Prohibition counsel for Shields * * * justify court jointly prosecuting attorney and ask- orderly to the rule of conduct judge jury chambers, ed the retired, after the entitling defendant, of especially jury in to hold the deliberatiоn case, in a criminal a until it reached verdict. The impaneled time is judge sent to in cham- afterwards discharge rendering until its saying a note it found bers certain judgment verdict. We reverse the with- guilty and defendants certain not others out reference the other causes of error agree” guilty but was “unable to assignеd.” 585, 587, 588, 273 U.S. at and two The Shields others. at following then sent the chambers note jury: “The will to the have to judge’s The instruction that the find also whether Shields [and the two guilty guilty find either Shields or not guilty guilty.” or are others] may not or have been erroneous 478, 71 U.S. at L.Ed. 787. prejudicial. Supreme The and did Court was convicted. Shields The Court of question. not сonsider It reversed Appeals for the Third Circuit affirmed conviction not the judge because ‍​‌‌​​​‌​‌​‌​‌​‌‌‌‌‌‌​​​‌​‌‌​‌‌‌‌‌​​‌​​‌‌​​​‌‌​​‌‍of what the the conviction but the Solicitor General said because he said it in a ground “satisfactory op no found posing for note. The Court did not find petition for a writ of cer saying in a it note caused or tiorаri ...” 47 S. might might have caused Supreme Ct. at L.Ed. 787. The thought preju- have been have caused granted Court certiorari and reversed seems dice. clear to me that this the conviction. saying method of what he was asked to Supreme say Court no said: made difference to the “These accused. munications wеre made it made all Yet the difference to the petitioner Supreme Supreme and neither the Court. As the Shields nor present, his counsel nor reversed conviction of Shields were we joint Walker, advised them. reverse the conviction of should * * * request to the court did in- sent the a because note respective prejudice, other and reference to the “without exclusion of assigned.” accused from supplemental court room a causes of error when given instruction re is of the I Amendment think the Sixth quires reversal. Fina v. United also Constitution (10th Cir., 1931);3 requires conviction. us to this reverse People Beck, Ill. 137 N.E. says: all criminal “In The Amendment enjoy the prosecutions, the shall accused right *.” speedy public trial to a right A is constitutional fortiori denied, If is charge given this constitutional privately denied if a is whether must be reversed personal conviction in a visit prejudicial Commonwealth, not the denial room. Puckett v. Beyоnd question “the it Ky. accused.1 34 A.L.R. S.W. courts rule of the federal (1923).4 settled private telephone A con- necessary showing prejudice is not versation between the not had conviction foreman of the violates con- J., Brennan, dis- public proceedings.” stitutional reversal. senting, in Levine Ashley, State v. 121 S.C. 113 S.E. *5 1048, 1038, 4 627n, 610, 80 S.Ct. U.S. 305, (1922); State, Raab 307 v. 62 Okl. (1960). 989 L.Ed.2d 361, 371, 773, (1937) Cr. 71 P.2d 778 (statute). Wroth, In State v. 15 Wash. charge jury neces is a Since 106, 621, (1896), judge, P. 47 107 the trial, if the sary part a criminal of learning jury from a bailiff that the room public from the court is excluded open him, see wished to went to the right charge given, ato the is when public jury room, door of the returned the to and the conviction trial denied is room, court jury and told counsel that the preju reversed, irrespective of must be charge repeat had asked him to 580, People Micalizzi, 223 Mich. v. dice. on ing doubt. reasonable Without concern- (1923). Amend 540 Sixth 194 N.W. possible itself with the least, terms felony guarantees, at cases ment what, anything, judge if effect thе of right present to be of the accused the reply, Supreme said stage trial, “every inclusive of the at Washington Court of held that there empaneling of of the ” ** * part was “such misconduct on the of Diaz reception of the verdict * * States, 455, 442, 32 223 U.S. United v. subject litigant parties does the law 253-254, (1912).2 250, 56 L.Ed. 500 S.Ct. disadvantage being rеquired of accordingly ir- been held It has Supreme Hartman, 242, said: “its sub- People P. 103 Cal. 37 1. v. equivalent is embodied in (1894); stantial 153, 108 Davis v. 42 Am.St.R. 394, Sixth Amendment to 398-399, Constitution States, of F. 247 1918C United Ibid. Cir., 1917); States.” 1164, (8th the United 1168 L.R.A. 58, Tanksley States, v. 145 F.2d Any implication contrary in the 1944); 257, (9th Cir., 59, A.L.R. 260 156 of recent case Jones v. United is States Kobli, 919, 921 172 dictum since the court said: “The most Jelke, People 1949) ; (3d 308 N. appellant’s said for that can be conten 769, 48 A.L.R.2d 1425 123 N.E.2d Y. record tion is that does not affirma (1954), cases. are illustrative complete tively compliance show with the- Similarly, if women are excluded from provisions of Rule Fed.Rules panel statute, in violation “re ” * * * Jones v. United Crim.Proc. depend does error show versible ing (10th Cir., 299 662 in an individual case. denied, 1962), cert. 371 U.S. * * * * * action ‘Such does (1962). L.Ed.2d type to the defendant accord ” him.’ law entitles Ballard which the suggests A dictum if absence of 67 S. affirmatively shown, prejudice were (1946). 261, 265, L.Ed. 181 Ct. Id., need not be reversed. conviction Ky. provision at A.L.R. at 255 S.W. case dealt with a Philippine Act at 102. Government of 1902 Civil accept 991, 996-997, to judge of even the statement 3 L.Ed.2d (1959). thought him- 1041 occurs between what Whatever place of the comply self and the at a where trial court’s failure to right be, liti- Rule has no and where with 43 of the Federal Rules gants required Procedure, It ‍​‌‌​​​‌​‌​‌​‌​‌‌‌‌‌‌​​​‌​‌‌​‌‌‌‌‌​​‌​​‌‌​​​‌‌​​‌‍required to attend. Criminal we are not right permitted party disrеgard the lawful of a the court’s op- comply his cause tried in portunity failure to with the Sixth Amend and heard ment. everything .respect to transacted.” This court cites United States v. Com pagna, (2d Cir., 1944), present case, In the com denied, cert. private municated in a In that case the note. This violated the rule sеnt request a written case, supra, and the Shields constitu testimony to have certain read. The public tional of the accused to a judge “stopped room” and trial. told them this would be read to them Appellate courts are directed to returned dis from lunch. regard read opinion by errors which not affect sub them. In an do Judge rights. Learned Rule 52 Hand the Ap F.R.Crim.P. Court of peals (a);5 U.S.C. “This Second Circuit § affirmed convictions, ground applies on the unless a constitutional that “the in infringed.” formality- for, most, Starr v. United it was no more — U.S.App.D.C. 91, 95, —did not F accused.” But *6 (in banc, 1958), neither was it .2d 381 cert. an de instruction. And the nied, 359 U.S. L. did 3 not discuss or (1959); even mention the Ed.2d 639 Edmonds v. United constitutional States, U.S.App.D.C. 144, 150, public 104 the accused to a trial. As I shown, (1958) (dissenting opin repeatedly have it has been held . ion) States, constitutional Cf. Kotteakos v. United is denied if judge gives 750, 764-765, 1239, a privately. 328 U.S. instruction S.Ct. any 1247-1248, if (1946). consciously New 90 L.Ed. courts held contrary. safeguards charged the The trial “substantial court’s thоse “obvious error” serious crimes cannot case be eradicated is “so funda necessarily guise departures mental of technical to affect under the sub rights regard from the rules.” Russell v. defendant propriety less the nature 'or 369 U.S. given” 1046-1047, (1962); instruction quot 8 L.Ed.2d 240 reversal should ing follow. Smith v. United pre-existing U.S.App.D.C. rule restates law. Jones

5. This Act (1962). c. Stat. of Feb. U.S.C. § former 28 Notes of Advisory ‍​‌‌​​​‌​‌​‌​‌​‌‌‌‌‌‌​​​‌​‌‌​‌‌‌‌‌​​‌​​‌‌​​​‌‌​​‌‍Rules, Arrington Robertson, Committee U.S.C. p. (3d Appendix, Cir., 1940).