United States v. Alessandrello, Gaetano, in No. 79-2654. Appeal of Lacognata, Salvatore, in No. 79-2699

nal venture and enlisted acquaint- three WEIS, Before VAN DUSEN and HIG- ances to help execute it. On July GINBOTHAM, Judges. Circuit co-conspirators three of the went Newfoundland, Dedrick family home OPINION OF THE COURT New Jersey, forcibly and removed De- Joan DUSEN, Judge. VAN Circuit Senior drick from the house. and bound 6,1979, her, October box, On Gaetano Alessandrel- placed blindfolded her in a and lo and Salvatore were apartment convicted drove her to the of one violating bank robbery co-conspirators. They federal stat- then her asked for ute, 2113(a), (b), (e) U.S.C. telephone § husband’s number at the bank. statute, the conspiracy Dedrick, 18 U.S.C. 371 William vice-president § executive (1976). They challenge their Paterson, convictions on the Franklin Bank in New appeal, asserting rights that their Jersey, telephone were vio- received a call from them by their portion lated exclusion from a on his private line. office He was told that jury held, process. They selection also con- his wife being and heard her voice there briefly. $150,000 tend was insufficient evidence He get was then told to small, took money was in the unmarked bills and take it to a tele- of a person pres- phone control bank from the booth the street across from the bank guilty Angel 1. The three each ella and co-defendants entered Humberto Cedeno-Echeverria pleas trial, Shortly to Counts Two. Lacognata, One and before went to trial with Alessandrello and Fonseca-Vasquez day Jose changed Abraham entered but on the pleas of trial third guilty plea. guilty guilty. Jesus Guillermo from Caceres-Nov- not desig- pro- to the in 15 Dedrick went minutes. directing proceedings received a call These ceedings. nated booth and handled At the phone booth. second following him another manner. telling him

booth he received call there pool approximately first addressed many police too area. officers prospective jurors. all the He introduced A few hours Dedrick returned bank. attorneys and the and then ex- telephone call and later he received another plained jury, pros- the basic functions $300,000. get When he was instructed to ecution, trial. and defense in criminal that much protested that there was After some further remarks about bank, money in reiterated the caller he proof, Government’s burden of described De- larger amount and threatened kill The first 16 explained indictment. the money. drick’s if he did not deliver wife prospective jurors placed were called received day Dedrick another next time, box. One at a each of them money the phone place call. He was told to following infor- up stood and disclosed the bag a and shopping in a inside briefcase name; years residence at cur- mation: of Dedrick wait further instructions. address; length employ- rent of employer; $217,000 bag. a and stuffed into suitcase a ment; status; spouse’s occupation, marital thereafter, Shortly he directed to take was spouse's spouse’s employer, length of em- telephone at a money the to a booth certain children; ployment; occupation children’s City. complied; location York He in New place employment; and homeowner sta- of and to that he was called told booth tus; interests; or and hobbies recreational phone a proceed to another booth. After judge level education. The then contin- of steps, finally of was direct- series similar he posing ued voir dire a of by the number to Jersey ed back ordered leave to New and general group to 16. He questions the of a in Fort Lee. money the in wooded area any (1) recognized asked whether of them so, Ap- his home. He did and returned to defendants, any attorneys, law or and hours later proximately one one-half trial, (2) firms ever involved had money was retrieved from wooded (3) grand jury, served on a had ever served by area the defendants. Mrs. Dedrick was (4) jury, on trial ever been a witness had released, blindfolded, gas at a station in still case, (5) in a criminal had ever been a Teaneck, Jersey. The defendants New closely victim of a crime related to or was were a short time later. arrested crime, had victim someone who been a of a September The trial commenced on (6) ever been of a crime or was had accused sequestered. A jury 1979. was selected and to who closely related someone had been began presenting The Government testimo- crime, (7) accused of a had ever been em- ny on rested on October September and ployed by agency a law or was enforcement judgments The of defendants moved for who so closely related someone had been acquittal After the on each count. motions (8) employed, employed by had ever been were the defendants rested without closely Government related presenting any evidence. The case was someone who had been a Government em- 6. That submitted to on October ployee, (9) any disputes pending had evening guilty verdicts returned Government, (10) the Federal and had against each both defendants on count. On about, anything heard this case. were each sen- November jurors prison Any prospective term on who an- five-year tenced to a Count questions term first af- general and concurrent swered the nine One Two, follow-up questions on and Four. It is firmative were asked years Counts Three they judgments appeal. judge. judge explained then from these The legal such principles, certain fundamental II. innocence, re- presumption as found ap- quirement that each defendant be argument The on defendants’ chief doubt, guilty a reasonable the ab- peal improperly beyond were excluded they is that evidentiary weight given they go sence free out and consult charges content of the indict- with their clients often long as and as etc., ment, questioned prospective they wished. He added that would apply to ensure that could these also have an ample opportunity after the principles. judge por- concluded this jury pool was selected to consult with the describing pre- tion of the voir dire advancing defendants before challenges for length weeks, three to four dicted.trial cause or peremptory challenges. While the week, sessions per schedule of six court remained courtroom ap- upon a sequestered restrictions proximately away,4 25 feet the judge con- he jury. explained He wanted to ask a ducted this of the voir dire. Pro- further of each questions prospective few spective jurors entered the anteroom one juror, individually, adjoin- in a small room one. each asked of them several ing the courtroom. He advised the group questions concerning exposure his or her anyone who to be excused wished pre-trial well publicity, as as the effect of personal jury duty due to severe hardship exposure juror, such each offer his excuse in the should or her ante- was permitted request being excused adjoining Up room the courtroom. to this from serving on sequestered jury during all the as well point, as their trial estimated to last three or four weeks.5 attorneys, present during voir dire. juror, saw each and heard After all 16 had been examined on this question each and answer.2 topic, judge the attorneys and returned to judge The to then retired the small There, ante- the again courtroom.6 pres- room, accompanied prosecutors by and ence of the prospec- another 16 attorneys. explained defense He that he jurors tive placed were called and jurors wished prospective to examine indi- jury proceeded box. The dire voir as be- vidually pre-trial publici- on the matter fore. specific Each individual answered ty. He wished to stated that he avoid the questions judge about The himself. asked possibility, place, which never took of hav- the whole group general questions certain ing person one something prejudi- blurt out case, particular related to the explained and prospective cial in front of group legal some basic The principles. topic of tainting jurors, thereby pro- all 15 other pre-trial publicity again explored was spective jurors. attorneys The defense ob- procedure the anteroom. same The was stating jected procedure, to this that time, group followed a third with a third present. defendants judge should be prospective jurors. responded that the was so small room approximately there After 40 individuals enough was not room for the had four defendants.3 jurors He told the defense been to attorneys competent found sit as in this clear, preliminary many transcript 2. These instructions to the 5. The reveals that knew noth- approximately jurors prospective ing examined about the crime. Some had not even heard 25, it; September headlines, place on the voir dire on took a number some had seen but 1979, appear nothing 25, transcript, September at 2-21 of N.T. Document 38 more. Trial 79-269, D.N.J., 1979, 54-95, 120-53, quota- (Document in Crim. No. whereas the at 181-214 appendix 79-269, D.N.J.). tion from the at note 1 of the dissent- Crim. No. ing opinion is record from the of a statement by September judge made on the trial to the questioned 6. After each was attorneys, jury present, when the was not ex- pre-trial publicity, about he was asked if he plaining rulings previous day. on the impartial juror could serve as an in this case. affirmatively, Those who and who answered personal point, hardship At 3. there were four defendants. were not excused for rea- sons, pleaded guilty during Two trial. be one of final See note told would supra. 40 from which the would be selected. trial wait in were directed to another court- See, place. room until took the actual selection transcript, September 4. Trial át 16 September g., transcript, (Document 79-269, e. trial D.N.J.). 54. 34 of Crim. No. panel were interviewed Your and the defense Government Honor in outside the court- the anteroom jurors would sit as agreed the 16 who upon room, presence of the de- of the outside challenges for cause No and alternates. The reason for fendants. September end of the at the advanced per- to exercise are entitled challenges day; peremptory court A emptory challenges. peremptory chal- formally exercised.7 were not anything, lenge based on it can can be morning the next When court convened distrust, gut feeling, on an innate based (September said to court my knows. Your Honor For whatever. (N.T. 10 and counsel for the defendants opportunity to client not to have had 79-269, No. D.N. of Document 34 in Crim. jurors each one of those as every see J.): questions close they answered the will, questions range, pointed if more you You had some motions COURT: “THE alone, distinguished than were-and yesterday respect jury. to You panel of a being a member chambers, you men- those in mentioned room, large it sitting the box in a jurors of them as tioned some deprived opportunity to see them you being I think if want selected. that, feeling and to communi- get that ought put preserve you it on the counsel, cate that which of those .. record.. having having.” or not prefer he would immediately after this It objected We “MR. HOROWITZ: record that the trial and counsel defendants-appellants colloquy had procedure whereby individual members of agreement joined agreed transcript “THE We the names COURT: September ago all end of the counsel at the and numbers. I read off a moment who judge, day, court as stated were at sidebar. was as your follows: checked with clients “You’ve concurrence, . “THE COURT: .. meets with their defense coun- read off these numbers on the “Let me sel? names, my writing. I read record and if can “MR. Yes. HOROWITZ: right, give you please If I don’t the name “MR. SMITH: Yes. me. correct “MR. Yes. PANNULLO: 8192, agreed upon: “These are the sixteen “MR. Yes.” BARONE: Cornelius; McCabe; 8235, Cronk; 8408, (See N.T. of Document 38 in No. 218-19 Crim. '8372, O’Rourke; 8436, Makar; 8133, Moyer; 79-269, D.N.J.). 8391, Martz; 8215, 8438, Bjerklie; Scruggs; jurors brought The were then into above 16 8366, Caruso; 8134, 8052, Cherry; Bright; the trial courtroom and addressed 8144, Scarentino; 8161, 8449, Keyes; Dola- them as follows: han; 8461, Reilly. and going to do is “What we are this: At the “(The court.) following place open takes in you people conclusion of the case twelve of goI “THE Could on the COURT: record by who be will decide this case will selected moment, gentlemen. for a put jurors, anyone lot. excused, or if We’ll sixteen record, put on the interro- “We after benches, in the the remainder we’ll some, what, forty-eight gating jurors, coun- pick and numbers of the twelve names out jurors. agreed upon sel have sixteen We will deciding roll box. will be the twelve Those put in No. 1 seat he has a Mr. Caruso since jury. slight hearing problem, although not it does you serious, “I that tell this because means that seem to be too because he under- you equal everything. each has one of the sixteen an stood jurors put deciding the rest of the in as Mr. chance “We’ll to be on the twelve. There- fore, you pay At Towers calls them. the end of [Clerk] strict should attention to the deciding by case we will select the twelve lot. proceedings evidence. and to the left, sixteen, put We’ll fifteen, thirteen, whatever, the number any you please “If at don’t hear raise time benches, your question have the hand and could read by pull we’ll numbers lot will twelve back.” deciding jurors. be the transcript, id. 222-23. See also See at agreed? “Are we all 26, 1979, (Docu- September at and 41-42 Yes. “MR. BRANIFF: 79-269, D.N.J.). ment 34 at Crim. No. Yes. “MR. HOROWITZ: dissenting Circuit, 148, strictly of the followed this we accom- pages at quoted purposes the beneficent of that Rule’s opinion. plish requirement present that the defendant be record for the There is no basis in this trial, including the im- page stages at at all of the by raised the dissent inference by was said anything 150 that that note 24 paneling jury. of the See below. case dire in this juror during the voir that an entire provide argument

“would A. by what has been contaminated group [a] Also, prospec- juror has said.” neither contend Alessandrello (Richardson), referred to tive female during their absence dissent, nor 150 of the page at right to a fair trial. voir dire violated (Williams), testimony whose juror No. 4 They claim that all defendants have a fun dissent, 150 of the page quoted right present stages at all damental to be jury or alter- ultimately members of the trial, including impaneling jury. (see Document 34 Crim. nates N.T. 67 of right assert this has a basis both 79-269, D.N.J.). The fears of the dis- No. in the Federal Rules of Criminal Procedure might hap- wholly on what sent are based the Constitution. defendants any prejudice pen in other cases and argue process first have a due in this case. by suffered right present during jury impaneling.8 to be there though Even the dissent states Supreme Court has not addressed the “persistent credibility issues of precise question right of whether is an agreed prospective jurors,” all counsel process guaranteed of due element composition jury except on the has, however, Fifth Amendment.9 It stated objection to absence of the alleged recently only has a consti that a defendant portion of the voir from a small stages right to be tutional making record of the without even dire might trial where fundamental fairness peremptory challenges exercised. number of thwarted his absence. Faretta v. Cali opinion that Criminal By announcing in this below) 2525, 2531, . (see fornia, 806, 816, 95 must be page Rule 43 found, concerning nothing Many shall be done in the absence of of the cases 137, prisoner,” Sixth Amend- at trial are based on the id. at 13 S.Ct. at guarantee Sny that a defendant confront expressly ment described Justice Cardozo See, g., against Illinois v. Massachusetts, witnesses Allen, him. e. der v. 291 U.S. 54 S.Ct. 25 L.Ed.2d 397 U.S. 90 S.Ct. (1934), on the L.Ed. 674 as based Massachusetts, (1970); Snyder v. privilege law common and not (1934); United 78 L.Ed. 674 the Constitution. Toliver, 541 F.2d States Co., Fillippon v. Albion Vein Slate Ruiz-Estrella, 1976); United States v. 63 L.Ed. 853 723, (2d 1973). no witnesses 725-26 Cir. Since States, 583, Shields v. United 273 U.S. 47 S.Ct. jury impaneling, Sixth are involved in 478, (1927), Supreme 71 L.Ed. 787 Court inapplica- is Amendment Confrontation Clause judgments reversed based on the violation of the Fourteenth ble. The Due Process Clause right present person the defendant’s “to be inapplicable because it re- Amendment is also by proceedings at all from the time counsel states, by the whereas strains actions taken discharged impaneled until it is after defendants were tried in federal court. Fillippon, rendering 250 U.S. at the verdict.” 574, 202, Utah, Hopt 4 28 v. 110 U.S. S.Ct. 81, 39 at 436. In both cases the Court S.Ct. States, (1884), L.Ed. 262 and Lewis v. United right declined to characterize the as one en 136, 370, (1892), 1011 146 U.S. 13 36 L.Ed. S.Ct. Rather, compassed process. within due incorrectly proposition cited for the are often orderly Court described it as a rule of conduct right presence that there is a constitutional 81, 436; by jury. of a trial Id. at 39 S.Ct. at during jury Hopt viola selection. concerned a Shields, 589, 273 47 479. The U.S. at S.Ct. at proce which outlined a certain tion of a statute Supreme recently Court referred to this non- cause, determining challenges for 110 dure for States, Rogers v. United constitutional rule in 576, at 4 at 203. Lewis reversed a U.S. S.Ct. 2091, 2094, 35, 38-39, 45 422 U.S. 95 S.Ct. defendant was not conviction because the present (1975), right 1 in which the L.Ed.2d case jury had been selected. until after the guaranteed presence 43 was dis- Fed.R.Cr.P. 375-76, at 138. The often 146 U.S. at 13 S.Ct. positive. quoted “after indictment dictum of Lewis that 138 (1975).10 Badger denied,

45 L.Ed.2d 562 v. 1024, 501, See cert. 419 U.S. 95 42 S.Ct. Cardwell, 968, (9th 587 F.2d 970-71 (1974). Cir. L.Ed.2d 298 Walls, 1978); 690, United v. 577 F.2d States (9th Cir.), denied, 893, 698 cert. 439 U.S. 99 B. 251, (1978); 58 L.Ed.2d 239 Polizzi v. 43(a) Rule provides: States, 1133, (9th United 550 F.2d 1137-38 “The present defendant shall be at the 1976). Cir. arraignment, plea, at the time of the We need not reach the constitu every stage including of the trial however, tional issue in this because impaneling and the return of explicit, unqualified defendants have an verdict, imposition and at the of sen- right under Rule 43 of the Federal Rules of tence, except provided by as otherwise present Criminal Procedure to be this rule.” jury impaneling, as well as at all other A violation of Rule in43 some circumstanc stages 43, adopting trial. In Rule Rogers es be harmless error. v. United Congress explicitly codify intended to exist States, 35, 40, 422 U.S. 95 S.Ct. ing concerning law a defendant’s constitu (1975); 45 1 Alper, L.Ed.2d United v. States tional and rights present common law to be 1223, (3d 449 F.2d 1232-33 Cir. throughout 43, trial. Fed.R.Crim.P. 1946 denied, 988, 1248, U.S. Note, ¶1. Advisory Committee Rule 43 (1972), rehearing right embodies the derived 92 S.Ct. 31 L.Ed.2d 822 from the Sixth Amendment Confrontation Alper, the defendants were not Clause, the Due Process Clause of the Fifth present during supplemental instructions to Amendments, and Fourteenth and the com jury, although their counsel were there. privilege presence. mon law 8B Moore’s objection time, No was raised at the but on ¶ 43.02[1], Federal Practice at 43-67 ed. appeal defendant-appellant argued that his 1980). Thus, scope of Rule 43 was right to could not be waived and intended to be broader than constitu was not harmless error. This court said at right. tional Accordingly, insofar as due 1232 of 449 F.2d: concerned,

process is statutory right “Here, far-reaching at least as as the clearly, constitution is an instance Id.; right.11 Brown, al United States v. trial counsel must be assumed to have (6th 1978); F.2d implied authority States to receive notice of a Gregorio, (4th Cir.), v. respecting conference inquiries from the holding Snyder provided attorney 10. Faretta reiterated the would have been Massachusetts, 97, 107-08, California, 291 U.S. 54 S.Ct. minimal. Faretta v. (1934): 78 L.Ed. 674 concerned represent of a “[T]he defendant is a condition the defendant’s himself at a process Thus, of due to the extent that fair provide criminal trial. do not clear just hearing guidance would be thwarted his ab- determining to us in the extent of due sence, only. and to that extent process protection that should be afforded in brought inquiry “We are thus to an as to the circumstances of the instant case. pres- the relation between the defendant’s [portion proceeding] ence at statutory and the 11. Both the and the constitutional justice fundamental rights subject assured to him are to the harmless error doc Constitution of the United States.” 52(a); Chapman trine. Fed.R.Crim.P. v. United Snyder Neither Faretta nor concerned 18, 21-22, absence portion jury impaneling. from a Both (1967). L.Ed.2d 705 In this case the Court said rely cases on the Sixth and Fourteenth Amend- 22, page page at 87 at S.Ct. 827: Snyder Massachusetts, ments. 97, In v. 291 U.S. long ago through United “[T]he States its 330, (1934), 54 S.Ct. 78 L.Ed. 674 the de- Congress established for its courts the rule permission fendant was denied to attend a view judgments shall not be reversed for ‘er- attorneys judge, of the scene of the crime. The rors or defects which do not affect the sub- parties, stenographer for both and the court rights parties.’ stantial 28 U.S.C. accompanied jurors. The court held that 2111.” § rights the defendant’s constitutional had not (Footnote omitted.) been violated because assistance he could

139 Defendants rely upon to contend that absence from a jury. The court was entitled agency performance portion jury impaneling can never be counsels’ appellants’ ab- proposition and to assume that support duties harmless error. To voluntary. Crutcher, was sence they rely on United States v. 405 239, 244 denied, (2d 1968), cert. v. F.2d Cir. 394 point to United States “Appellants 908, 1018, 1963), 22 Neal, (3rd as U.S. 89 S.Ct. 320 F.2d 533 Cir. impropriety charged of instruct- In Crutcher five men were authority for the defend- ing absence of the jury hijacking pleaded guilty a truck. Two supple- The Neal case involved a ant. while two others were scheduled trial. in the circum- mental instruction which defendant, Payne, the fifth remained at prejudicial and a dis- highly stances was large. day On the the trial commenced in coun- pute over even defendant’s whether Connecticut, prosecutor’s office was no Compare informed. United sel Payne tified that had been arrested in New Grosso, (3rd v. 358 F.2d 154 Cir. States Jersey. attempt brought An to have him to 1965), grounds, on other 390 U.S. reversed day Connecticut failed. The trial (1968), 62, 709, 906 88 19 L.Ed.2d believing judge, necessary go it was for rule to an applying the harmless error ward, impaneled the The jury. attorney instruction, in absence of both counsel represent agreed appointed Payne pro defendant, delibera- and the to continue jury ceed with the selection in his client’s very language of the tions. ... [T]he Payne absence. arrived in court after the recognizes 43 second sentence of Rule selected, jury had been but before the rest a trial in some circumstances Thus, begun. of the trial had in Crutcher of the defendant. proceed in the absence during the defendant was absent all of the validity of the Lewis dictum must be dire and selection. The voir Second subsequent questioned view found that this absence violated Circuit adoption of Rule 43 and of the decision Rule 43.12 Allen, 337, v. 397 90 S.Ct. Illinois U.S. 1057, (1970).” 25 L.Ed.2d 353 The facts in the instant case are clearly distinguishable from those possibility prej If there is no reasonable Alessandrello and Crutcher. error, it is deemed harmless. udice from the excluded from the entire voir were not Giacalone, 1158, v. 588 F.2d United States dire; present for all but one denied, 1978), (6th cert. 441 1165 Cir. U.S. They of it. saw each of the small 944, 2162, (1979); 99 S.Ct. jurors and heard each of them Brown, 980, 987 v. 571 F.2d United States respond questions personal about Brewer, 1978); (6th Blackwell v. 562 Cir. Lacog general Alessandrello and matters. 596, (8th 1977); F.2d 599 Cir. United States 829, (2d recognize nata this case does 831 Cir. Rodriguez, v. 545 F.2d 819, 58, as Crutcher. denied, the same circumstances 1976), cert. 98 S.Ct. however, following language point, (1977); Wade v. United 54 L.Ed.2d 1046, (D.C.Cir.1971). in Crutcher: Crutcher, (1884), holding two cases which concern the non-con 12. in United States v. stitutionally right presence. See note based 405 F.2d 239 supra. L.Ed.2d on Fed.R.Crim.P. 43. addition based Crutcher, appeal in ar- On Government elementary refers to “an Rule Crutcher gued Payne rights had waived his under principle process that a defendant must of due Noting that was no indication Rule 43. there trial,” at his own id. be allowed to be 242, actually spoken to or that the defendant had exactly to what but does not illuminate attorney his the time of the retained impaneling, right process guarantees the of a extent due determi- the court remanded for a impaneling present during the defendant to be had waived nation of whether the defendant Furthermore, analysis jury. of a Crutcher’s present; that a new trial it directed States, 146 U.S. relies on Lewis v. granted there found that if the trial Hopt (1892), and L.Ed. waiver. had been no effective Utah, 28 L.Ed. 262 general that as a rule a viola- and to hear their responses questions. “It is true require reversal The defendants were tion of Rule 43 does not excluded from one portion affirmatively inquiry, if the indicates be- of the however. The record questioned jurors the error individu- yond a reasonable doubt that ally at sidebar about the extent did not affect the verdict .... How- ever, exposed pre-trial publici- had been [Chapman v. United the court ty. States, 18, place This examination took out of the [,23 386 U.S. 87 S.Ct. hearing Remarking of the defendants. (1967)] . . . noted that that L.Ed.2d 705] the defendants only seated 15-20 feet prior some of ‘our cases have indicated away, represented at sidebar rights that there are some constitutional counsel, by experienced ample and that so basic to a fair their infrac- given time was for counsel to consult with tion can never be treated as harmless appellate court concluded present to be error.’ A defendant’s procedure did not constitute re- jury appear while the would selected versible error.13 right.” be such a Id. at 244. Alessandrello and The Fifth Circuit in Henderson v. United argue States, that Crutcher thus set forth a rule (1970), 419 F.2d 1277 also reviewed a requiring automatic reversal if the defend case which the defendant had been ab- any part jury ant is absent from sent from a small selec- impaneling, they urge this court During tion. his absence the defense coun- adopt such rule. We conclude that cause, sel only challenge exercised his would apply be unwarranted to the Crutch- granted. which was The defendant was er rule to the facts of this case. We note present challenge for the rest of the period. courts, including that other the Second Cir The court held that this violation of Rule 43 Diog cuit in a later United States v. was harmless error. uardi, denied, 1033, 428 F.2d cert. 400 U.S. Phillips In F.2d 50, (1970), 91 S.Ct. 27 L.Ed.2d 54 denied, (8th Cir.), cert. despite affirmed convictions the defend (1976), 50 L.Ed.2d 292 the court was part ant’s absence from of voir dire when also faced with a claim that a defendant the circumstances showed that the error should have his conviction reversed on the was harmless. Accordingly, we have con during period basis that he was absent cluded that the harmless error test for re challenges in which were made. While viewing requirement violations of Rule 43’s recognizing that a defendant is entitled to present jury’s defendant be at his trial, present stages at all of his includ impaneling applicable to this record. selection, ing jury the court noted that the Dioguardi,

In years case decided two record revealed that the defendant was Crutcher, after the Second Circuit followed present during most of the principle. the harmless error There the de- process approxi and was absent for present fendants were in the courtroom mately 10 minutes while attorneys exer during impaneling jury. They facts, light cised their strikes'. of these prospective jurors were able to view the the court declined to find reversible error.14 Dioguar (1974), 13. defendants United States v. in which the defend di, denied, (2d Cir.), cert. ants were for the entire voir dire. Af 27 L.Ed.2d54 exercised, challenges ter the for cause were request did not at sidebar. The court recessed for noon and the defendants appellate court did not base its affirmance on were removed from the courtroom. The attor waiver, Rather, however. it reviewed all the neys stayed in the courtroom and exercised the surrounding circumstances the voir dire to de recess, peremptory challenges. After the procedure termine whether the consti utilized jurors courtroom clerk read the list of who had doing, tuted reversible error. In so it necessari point been selected. At this ly rejected an automatic reversal rule. apparently expressed to counsel their dis approval of some of the who had been Chrisco, 14. See United F.2d 232 States v. seated. The defense counsel did not make a (8th Cir.), Brown, (6th California, v. F.2d man v. United States 1978), presented slightly a different (1967). 17 L.Ed.2d 705 Neither com- problem judge under Rule 43. The trial jury munication to the is claimed to be held a conference in chambers to discuss the erroneous. That the instruction as to the juror.15 dismissal of a The defendants were verdict was jury understood is present, not but attorneys their were. The demonstrated its acquitted verdict. It appellate court ruled that one counts, defendant on all convicted right present had a under Rule 43 to be one counts, defendant on all and found concerning an in-chambers conference one defendant guilty on one count and However, juror. dismissal of a after exam- guilty twenty inquiry counts. The ining transcript of the conference and respect to the exhibit list and the noting that defense counsel had been zeal- agreed upon reply hardly can be raised to interests, ous advocates of their clients’ the dignity of an instruction. The exhib- court concluded that there was no reasona- room, its were in num- their possibility prejudice ble bering was a housekeeping detail. Ap- affirmed the convictions. See United pellant Greenberg urges that with his Alper, supra States at 1232. experience might he suggested have a persuaded We are by our review of these responding manner of inquiry to the cases that of Rule 43 which about the exhibits that would have been recognizes right of a defendant to be helpful to him but he say does not what present during jury impaneling does not or how. We could not reverse on a require holding that reversible error was ground entirely speculative.” (Footnote so committed on the record in this case. The omitted.) apply harmless error doctrine should to this provision just provisions as it does to other C. Alper, supra, of Fed.R.Crim.P. 43. In this court said at 1232-33 of 449 F.2d: Alessandrello and ad argument.

“In the vance a further presented They circumstances here contend that, relying court was not in error in on the even if a harmless error rule applies to authority of defense counsel to act violations of Rule their convictions their client. should be reversed on the alternative

“Moreover, assuming ground that their part such reliance to exclusion from misplaced unduly impaired have been the error was the voir dire right harm- their beyond less Chap- reasonable doubt. exercise peremptory challenges.16 their objection analysis begins formal known to the trial court. Re 16. Our of this claim with a viewing appeal, recognition right peremp- situation on the court stat that a defendant’s guaranteed tory challenges statutorily, ed that Rule 43 right not constitution- steps selecting ally, 24(b). at all based. See Fed.R.Crim.P. As the jury, including Supreme peremptory the exercise of Court has said: Nonetheless, strikes. it concluded that the fact nothing “There is in the Constitution of the that the defendants were at the time requires Congress United States which gave by reading the clerk grant effect to the strikes peremptory challenges to defendants in jurors, registered opin cases; the list of and had by impartial jury criminal is all attorneys, ions with their demonstrated that that is secured.” States, the error harmless. Stilson v. United fact, (1919). during peremptory challenges This conference occurred trial. The since the “in sequestered. statutory had privilege, been The U. S. Marshal the nature of a ... [it] reported judge juror altogether impairing that one had had a be withheld without argument guaranties impartial jury’ serious with her husband on the tele- constitutional and of ‘an phone night before. The decided to a fair trial.” Frazier v. United juror excuse the because the trial was sched- U.S. L.Ed. 187 505 n. 206 n. Nonetheless, persist- uled to continue for at least another week and “the person peremptories he did not consider it wise to have a ence of and their extensive use upset marriage long widely who was over her anxious demonstrate the that held belief length peremptory challenge necessary part serve as a for that of time. is a all they might assert observed matters other than the absence juror something prospective a during about questioning from the in the exposure concerning the examination pointed anteroom. As out at note above pre-trial might have publicity which led the dissent not been point any has able to their suggestions attorneys them to make unfairness who by any manifested regarding peremptory strikes. con- trial, any served even during moment of the give rise tend that their absence must to a though all the statements made in the ante- prejudice of because presumption the room portion of the voir dire have been ephemeral nature of the information transcribed. Document 38 in Crim. See No. gathered impossible might have makes it. 79-269, D.N.J. prejudice they assess the extent of actual presented We are that other aware courts suffered. with claims that the defendants were de do not Alessandrello and prived might of information which some impartiality of the any way jury. attack have been in the of their helpful exercise complaint Their sole that de- challenges peremptory have reviewed the prived unspecifiable of some information particular circumstances of cases to de might helpful which have been in the exer- termine if the convictions be re should challenges.17 cise peremptory of their concerning jury versed. In all the cases of view, their this limitation in itself necessari- B, impaneling cited above in section ly denied them fair trial. We do not during part defendants were absent of the agree. we do not of the approve While voir jury selection, necessarily and thus were procedure dire followed in this we do deprived pro of some information about deprived of believe spective jurors might have affected fair trial. their suggestions regarding peremptory record, showing In view of de- instance, Yet, challenges. in each the error agreed jury fense counsel on the as selected was deemed harmless. In different con above, pointed as out the statement of the texts, on potentially limitations information dissent the peremptory challenges peremptory useful for challenges also were impermissibly controlled the court been For upheld. example, United is not supported record. Barnes, States v. 604 F.2d 121 Although presence of attorneys (1980), anteroom not a waiver of the the district present, agree names, their

defendants’ court refused to disclose the ad jury selected, dresses, ment to the as after consulta neighborhoods, religions, or ethnic clients, tion with waiver backgrounds prospective their was a as to jurors. Alabama, by jury,” jurors they during of trial Swain v. 380 U.S. knew 80-85% 202, 219, 824, 835, presence. 85 S.Ct. 13 L.Ed.2d voir dire conducted (1965), challenge and the has been described as “Second,” page dissent, At 151 of the under important rights “one of the most se- again Snyder requiring the dissent relies on cured to the accused.” v. Pointer may of the defendant so he “ 410, 414, ‘suggestionfs] supersede make or even to L.Ed. 208 lawyers altogether and conduct the trial him- ” opportunity self.’ He full had in this case to possibilities 17. Most on of the dissent is based quoted take the actions. prejudice presented by to a defendant not page Under on “Third” 151 the dissent proceedings page the voir dire case. At in this quotes desirability Blackstone on the of a de- dissent, Massachusetts, Snyder 151 “ being ‘any fendant not tried one man 78 L.Ed. 674 against prejudice he has whom conceived proposition is relied on for the that “[i]t even . without .. reason.” there Since importance is of the utmost defendant peremptory challenges have been available at being be when the selected” process the time the ended in may identify because “he agreement composition jury, on the that he knows.” The two defendant- convicted possibility not been on this has demonstrated appellants identify ample opportunity had record. Hispanic, 14 blacks and one ac absence from impaneling nor what cused of distribution of quantities massive cause,21 nor how skilled the defendant’s narcotics, inquire were allowed to into counsel, a new trial would required. Al- prospective juror’s family history, each oc though per se rule easy would be cupation, background, educational application, we do not believe it would fur- membership organized groups or clubs.18 ther our interests in ensuring that defend- Despite the fact that peremptory challenges ants receive fair By trials. automatically are often exercised basis of the requiring a every new trial time there was “race, religion, nationality” pro of a [or] a miniscule infraction of the requiring rule Alabama, spective juror, supra Swain at presence jury impaneling, at even when the 16, note U.S. presented defendant specula- the most disagreed Second Circuit with the defend potential prejudice, tive claim of we would ants’ contention that the limitation on the sacrificing judicial be considerable resources concerning religious information and ethnic corresponding without a increase in the ac- background impaired their per exercise of tual fairness of trials. Snyder See v. Mas- emptory challenges deprived the de sachusetts, 97, 122, Thus, fendants of a fair trial.19 the case (1934) (“There 78 L.Ed. 674 danger is law does support per se rule ad the criminal law will brought into by Lacognata. vanced Alessandrello and contempt ... if gossamer possibilities of Furthermore, policy considerations also prejudice to a defendant to nullify are convince perempto- us that the defendants’ pronounced sentence by compe- a court of challenge ry theory reaches too far. Their jurisdiction tent law, in obedience to local position is that the defendant’s absence guilty free.”).22 Moreover, and set the it is any portion of the voir dire vitiates possible that might such a rule create an the whole proceeding because no one can incentive for attempt defendants to to ab- ever know impressions what “sudden sent themselves from jury impaneling prejudices”20 might unaccountable he period. for a short formed had he present. light been In apply Our reluctance to per se rule in view, experienced fact that an this matter leads by us to take a case attorney is case would be irrelevant be- approach. cause As with might defendant and his counsel other violations of Rule form impressions different in each same individu- instance that the defendant theory, al. Under this no dire,23 matter how short absent portion from a of voir we Additionally, prospective jurors Presumably, explicit 18. by 21. waiver the de- any right asked if had close friends or relatives fendant of his to be would be the working any agency dealing exception one with narcotics to this rule. control, any group, law enforcement or governmental agency. They Also, other were also Snyder, supra, the Court stated in re- questioned about their attitudes toward blacks lied on the dissent: groups. and other racial presence required “[T]he the defendant [is relation, reasonably where it bears] sub- Vargas, 19. Cf. United States v. stantial, opportunity to his to defend. No- (1st 1979) (defendant alleged right Cir. where in the decisions of this court is there a peremptory challenge by jur- dictum, was violated ruling, and still less a that the Four- or’s failure to reveal he had been in a mental privilege teenth Amendment assures the hospital: knowledge juror’s presence presence useless, court held that when would be or history subjected mental would have him to the benefit but a shadow. What has been dire, said, decided, interrogation during distinctly further voir but de- if not to the con- trary.” necessary termined that a new trial was not 106-07, showing 291 U.S. at because there was no that the 54 S.Ct. at 332. prejudiced against was biased or the defendant agree holding 23. We with the Second Circuit’s any way). Crutcher, in United States v. 405 F.2d 239 (Lewis’s 20. 4 Blackstone’s Commentaries 353 that without an Edition). effective waiver a defendant’s from the absence totality must examine the of the circum- actual members of the jury, we conclude stances to determine whether the error is that in this instance the violation of Rule 43 Rogers v. harmless. See 422 constituted harmless error.24 L.Ed.2d III. Alessandrello Lacognata also D. urge this court to reverse their conviction principles guide discussed above us on the second count of the indictment. analysis our of the instant case. Alessan- charged this count with -bank were, drello and without robbery 2113(a). in violation of 18 U.S.C. § doubt, excluded from a of the voir part (a) The first of subsection of the stat dire. did not waive provides: ute present. This exclusion was a clear viola- “Whoever, violence, force and or 43(a), pursuant tion of Rule to a method of intimidation, takes, take, attempts or impaneling which we cannot coun- person from the of another Nonetheless, tenance. our review of the any property money any thing or or other particular facts of this case convinces us to, belonging care, of value or in the there is no possibility reasonable of control, custody, management, posses- or prejudice to Lacognata Alessandrello or of, bank, union, any sion any credit or stemming from this error. The defendants savings [sjhall and loan association .. . urge prejudiced were in the exer- $5,000 be fined not impris- more than or However, cise of their peremptories. as we oned not more than twenty years, or before, have mentioned Alessandrello and both.” Lacognata every prospective juror saw portion statute, Under this taking respond questions heard each one about person from the or presence of another is personal background general as well as tri- an essential element of the crime. United al-related matters. They oppor- had a full McGhee, (5th States v. 784 tunity prospec- to measure the demeanor of Cir.), 417 94 U.S. jurors. Thus, they gather tive were able to (1974) (indictment the information upon peremptory part (a) under first of subsection dismissed challenges have traditionally been based. fatally as charged defective because it de Unfortunately, they were not allowed to be taking fendants with money from a bank present questioning at the in the anteroom. allege and did not taking person from the However, since this of the examina- presence another); or cf. United States tion only topic, experi- concerned one since Brown, 547 1976), F.2d Cir. enced defense counsel Redding cert. denied sub nom. v. United encouraged to consult with the de- fendants as frequently fully and as as (1977) (offense L.Ed.2d 389 described in the desired, and since the defendants were lo- first paragraph 2113(a) is analogous to § cated in the courtroom 25 feet away, common law robbery). potential any harm which could arise from procedure this was greatly diminished. charged indictment Alessandrel When these facts are added to the fact that lo and violating with the statute in no way by taking limited the money in the control of Franklin amount of consultation which the defend- person Bank from the presence or of Wil permitted ants and their counsel were liam Dedrick. regard aspect With to this have with each selecting other before dispute there is no about the facts. process entire cannot be deter defendant shall be “[t]he ... every stage mined including to constitute harmless error. impaneling of the trial ” .... judges 24. We caution the trial in this circuit fully comply 43’s direction Fed.R.Crim.P. Culbert, Dedrick, (9th pursuant 548 F.2d 1355 The evidence was Cir. instructions, money (9th 1978).26 left the in a telephoned F.2d 799 Lee, Jersey. New He spot wooded in Fort supra, Brinkley, manager branch Approximately one then took a taxi home. of a bank received a call from one of sever- later, and one-half hours al later convicted of violation of Thus, question picked up money.25 2113(a), demanding get that he U.S.C. § the retrieval presented legal is a one: does several thousand dollars or a bomb would designated money delivered to a isolated go $3,000, put off at his home. He in a sack who leaves wooded area an individual and, receiving after instructions at two dif- retrieval, the scene before the facts booths, phone ultimately ferent “was direct- record, taking constitute a from the the money ed to throw over the Arch Street person presence or of that individual? The complied viaduct.” 560 F.2d at 872. He question has answered this Ninth Circuit away. and drove None of the defendants Culbert, In United States v. negative. possession money. ever secured rev’d on other (1977), F.2d Brinkley brought an action under 28 U.S.C. 1112, 55 grounds, 2255, contending per- “that since no one § the court vacated a con- [him], sonally confronted there was no tak- 2113(a) the criminal viction under because § ing attempted taking person or ‘from the or plan president that the bank should deliver presence required of another’ money specified then return to site and 2113(a).” 560 F.2d at 873. The court § contemplate trespassory “did the bank language affirming used this the denial taking person ‘from the or of’ the petition under 28 2255: U.S.C. § president person.” bank other telephone find that the call to “[W]e [the “proof court held that without of that es- manager] per- branch was as much of a ..., charged element of the offense sential sonal if Brinkley confrontation as had . .. neces- judgment the of conviction must gun the with and entered bank de- sarily be vacated.” Id. When the case was manager] manded hand over branch [the Court, by Supreme later remanded the the money. Through the bank’s intimidation Ninth Circuit reiterated its reversal the manager] and fear branch was [the 2113(a) conviction, explicitly stating it § comply forced to with the demands made following reasoning the set forth in its was great personal upon him or else assume Culbert, United v. States opinion. earlier risk. We also find that there was a tak- (1978). 581 F.2d 799 ing person from the branch mana- [the hand, majority On the other the of the ger] dropped money at the time he the Appeals have an- United States Courts spot over the viaduct at the exact question swered this in the affirmative and robbers had instructed. branch man- [The 2113(a) have found violations of 18 U.S.C. § control ager] possession lost substantially under similar circumstances to point, money was money at See record. presented those this constructively possession of Brink- in the Hackett, v. (4th States 623 F.2d 343 Cir. ley they since had coconspirators and the States, 1980); Brinkley v. United 560 F.2d up, and intend- opportunity pick Beck, v. United States (8th 1977); Cir. ed to do so.” (6th 1975). 511 F.2d 1000 & 1003 Cir. Marx, reasoning applies Cf. United States 1179 We conclude that this 485 F.2d contra, United States v. (10th 1973); in this case. to the facts in the record record, money bag (see September transcript, at 533- in the suitcase and 25. Trial pp. above) De- 37. 133 and 134 was taken care, person custody, drick as disregard deposited the words in 18 U.S.C. management 26. We do not when or of the bank 2113(a) requiring taking attempting or § the wooded area in Fort Lee known person take “from the or of another” vice-president and the bank executive Dedrick care, control, custody, property of agement “in the man- defendants. of, possession bank.” On this IV. $38,000. to deliver they if wished his safe telephone return. Further calls directed his also Alessandrello mother, bank, vice-president claim that there was insufficient evidence steps take a series of which culminated in of their intent to steal from a bank. As leaving money designated place. serting that the evidence at most showed an Emphasizing parents that both were bank money per intent to extort from Dedrick officers, par abductor knew the sonally, urge us to overturn the bank, ents worked at the and that ab examining verdict on the third count. very large ductor demanded a amount of contention, we are bound to view the money, the court held that the facts estab light evidence in the most favorable to the lished that the extortion was directed at the Government. Glasser v. United Id. solely parents. bank and not at the (1942). U.S. 86 L.Ed. 680 generally See United States v. John during The evidence showed that the first son, (8th Cir.), 214-15 Dedrick, call received he was instructed $150,000., bank, get go leave across pay phone, the street to a and wait for a Accordingly, we conclude that there was give call which would further instructions. support finding substantial evidence to pay phone Dedrick received a call on this of intent to steal from a bank. We sustain minutes after the initial contact. Because guilty verdict returned the defendants knew the pay number of the Count Three. bank, phone across the street from the it is clear that knew where Dedrick worked V. very large and that he was a banker. The argue defendants also that the amount of the demand further demon- in admitting court erred certain items money strates that the was not intended to into evidence. contend that the come from Dedrick’s individual account but incorrectly decided under Rule 403 from the bank itself. The evidence also Federal proba Rules of Evidence that showed specifically that Dedrick was in- tive outweighed prejudicial value effect bring only structed to unmarked small bills following articles: a loaded .38 cali Furthermore, during him. the first revolver, holster, coveralls, ber a shoulder conversation Dedrick told his caller that he masks, tape, navy cap, adhesive ski watch $150,000. did not know whether there was sunglasses. We are by bound the trial Additionally, in the bank vault. the de- rulings court’s under Fed.R.Evid. 403 unless fendants not called Dedrick at arbitrarily the court exercised its discretion originally, bank but continued to call the Agee, United v. States irrationally. 597 throughout day. bank the next It was 350, denied, (3d Cir.), cert. F.2d 357 442 U.S. while Dedrick was still at the bank that the 944, 2889, (1979); 99 61 S.Ct. L.Ed.2d 315 defendants called him and increased their 761, Long, United States v. (3d 574 F.2d 767 $300,000. facts, light demand to In of these denied, cert. Cir.), 985, 577, 439 U.S. we believe that there certainly was ade- (1978). 58 L.Ed.2d 657 Our examination of quate evidence from which a could the record reveals no such abuse of discre have concluded that the extortion was di- Consequently, reject tion. we this conten against rected the bank. tion. In a factual quite situation similar to the us,

one before Lastly, Fifth Circuit decided that Alessandrello and La there was cognata complain sufficient evidence of intent that the trial court incor Carpenter, United States v. rob a bank. rectly request denied their for an indefinite (1980). 611 ground F.2d 113 There the son of the continuance. this claim on the president and vice-president guilty plea by of a bank was fact that the entered one of telephoned shortly abducted. The abductor before trial co-defendants en parents gendered bank newspaper and forced the son to tell his a number of articles. is a court did not err grant admitting of a continuance in certain items or denial denying to the discretion or in decision entrusted into evidence the defendants’ Walden, judge. v. 590 request trial United States for an indefinite continuance. denied, 85, (3d Cir.), cert. 444 U.S. F.2d Accordingly, judgments we affirm the in 99, (1979); S.Ct. respects. all Addonizio, 451 F.2d United v. States 1971), Cir. HIGGINBOTHAM, Jr., A. LEON Circuit Although 30 L.Ed.2d 812 Judge, dissenting. guilty publicity generated some III, join I IV Parts and V of the plea, this was not a case in which there was opinion. Because I believe that majority publicity throughout the local pervasive the errors in the conduct of the voir dire Louisiana, area. Cf. Rideau v. reversal, require respectfully dissent from (1963) (20 10 L.Ed.2d 663 judgment view, In my of this court. film defendant’s confession at minute judicial exclusion of willful Alessandrel- police interrogation was broadcast three portion lo and from a critical community television station in times their voir dire is an error which cannot be 150,000 place); and trial took where crime beyond dismissed as harmless a reasonable Haldeman, 31, 141 States majority doubt. standard the uses to (D.C. cert. denied sub nom. Ehr impos- its decision will make it almost reach lichman v. United challenge sible for future defendants to (1977) (newspa right denial of both their per coverage averaged in local area be during right their trial and their to exercise per day tween 30 and 120 column inches peremptory challenges. especially I am years; presumption juror two bias un majority’s approach concerned because the Moreover, warranted). judge the trial seriously erodes the defendants’ prospec the instant case did examine each important make decisions which are to their concerning individually pre-trial tive defense. publicity, attorneys, and the defense after issue, hearing responses on that chal overwhelming I am not unmindful of the lenged These fac none of them for cause. against evidence and I rec- tors, together, considered convince us that ognize distinguished judge, that the trial the denial of the motion for an indefinite respect, presided admirably all but one over was not an abuse of discretion. continuance involving highly publicized a difficult trial tragic rulings judges crime. If

VI. rated, players, gener- like baseball for their conclusion, procedure we hold that the batting average, certainly al conducting used the trial court perfect had an almost record when one rec- proceedings out ognizes challenges of this case. But the of the defendants violated sports. trial of a case is not like the arena of 43(a), be Fed.R.Crim.P. and should not re- The losses of the where here peated. light of the considerations dis- they years, received sentences of cannot totality the of the circumstances cussed and recouped or redeemed in next year’s be case, however, that in this of this we believe World Series. instance the error committed was harmless require Turning and does not reversal. I. charged, we con-

the individual offenses A. clude that the defendants’ convictions of holding significance majority’s The of the (e) violating 2113(b) and will be affirmed. § reading gleaned from a mere Also, cannot there was sufficient evidence of intent and, therefore, the cold trial record or a bland recitation from a the to steal bank during asked 2113(b) (e) questions of the which were convictions under and will be § the defendants were excluded Finally, we hold that the trial the time affirmed. portions virtually that makes impossible one of the vital of their own is or at from formulate”, Hayes least “difficult to v. Mis- jury the part trial. A critical souri, supra, why perempto- the reasons chal- process peremptory is the use of the ry objections not were or were exercised. lenge. challenge permits The for cause Yet it within that this elusive area defendant to exclude individuals about facts of record must be understood. objections; whom he has articulable hand, peremptory, permits him on the other Meanor, addressing Judge after persons on inarticulable to exclude based pool, question elected to each feelings. peremptory protects The that juror individually in a small anteroom locat- men, namely, which we know as women and ed off the main courtroom. the room Since that inarticulable hunches and intuitions was too small to accommodate the perceptions reality. are often accurate counsel, clerk, reporter, and his law a court Supreme Court reflected on this in clerk, prospective juror a court Missouri, 68, 70, Hayes v. S.Ct. defendants, were excluded from 30 L.Ed. 578 where it stat- proceed- of their own voir dire ed: ing. Experience has shown that one of the judge explained The trial the rea- that jury- most effective means to free the sons for exclusion of defendants from the [jurors] box unfit to be there is the proceedings anteroom were those of conve- challenge. peremptory exercise of the (“technical logistical problems”) nience [and, public prosecutor presumably prejudice and a desire to avoid the which strongest have the defendant] might open “in ... occur court [when] reasons to the character of a distrust prospective juror say something will offered,

juror from his habits and associa- provide argument would that an entire tions, yet find it difficult to formu- group has been contaminated what that legal objection late and sustain to him. juror recognized has said.” He that such cases, peremptory challenge In such “significant contamination was a risk in a protection against being accepted. case of this caliber.”1 making peremptory The decision in the I find this startling exclusion itself challenge process recognize occurs within a milieu when we importance right. group 1. THE All COURT: ment that the entire has been contami- Well, look, 1 think for benefit nated what that has said. Now, significant ought point that is a record I out that I have behind risk in a case of primarily this caliber and it was that risk this courtroom two I that small rooms. would by interrogating jurors I upon say probably percent chose to avoid jury interroga- topics, these rather extensive my individu- place tion or addresses took ally. of the defendants. I have a certainly The defendants interrogate jur- small room I use to interrogation at what I call or in sidebar topics; ors on two publicity one was the extent of anteroom, through I counsel. don’t had read or seen or heard any deny think counsel will that counsel regard to this case there can be no during interroga- were told that time gainsay in the fact that this case has received tion or at the end thereof if wished to publicity. topic extensive The second of in- clients, leave and consult with their who quiry was whether the had a result were away, they the courtroom 30 feet otherwise, publicity any precon- of that got were free to do so. I’ve guilt ceived notions about the of the defend- play joints judicial have a little of this logistical prob- ants. have technical and machinery to make it work and I believe that might agree lems. Well I that it would be doing my init this fashion was within discre- preferable the defense be tion. I do not believe it was an abuse of that throughout jury interrogation, the entire discretion. it, just percent significant 80 or 85 1 run a you’re adequately preserved I think on this danger open interrogation if I do in this point Appellate on the record for review. court, present with the members of the Panel just MR. I HOROWITZ: would like to groups present, or the in that someone comment, Honor, your make another so the open prospective juror court who is a will I, course, complete, agree record is with say something provide argu- which would an your Honor’s motives and intention in the proceedings 43(a)” and where defendants’ voir dire Rule which guarantees to each de- objections explicitly had been made to the fendant to “be ... objection judge. trial was not an aft every stage including of the trial the em- erthought Dioguardi, in as United States paneling of the ...” Fed.R.Crim.P. Cir.) n.4 cert. de judges it cautions the trial in this cir- nied, 825, 91 27 L.Ed.2d fully cuit comply with the rule in the objection where the to the voir dire future. However the majority decided that proceedings was for the first raised time at this exclusion was harmless error because Here, hearing sentencing. counsel this of the examination concerned objection explicitl for defendants stated the only topic, one experienced since defense y:2 counsel were and were encour- logistical problem The solution to this aged to consult with the defendants as easy though perhaps was more time con- frequently desired, and as fully they as suming. judge The trial could have had and since the defendants were located in jurors brought individual into the main only courtroom 25 feet away, any courtroom one at a time where could potential harm which could arise from questioned presence have been procedure greatly diminished. defendants, appears and it that there was a When these facts are added to the fact room close proceedings where the could judge way in no limited the place have taken but as the trial amount of consultation which the defend- noted “it would have taken a lot of extra ants and permitted their counsel were time to shuffle everybody over there and have with each other before selecting the back.”

actual members jury, we conclude B. this instance the violation of Rule error, (footnote majority constituted harmless concedes that the exclusion omitted) defendants “was a clear violation of procedure except suggested your I it to Hon- THE COURT: It’s more than that and it yesterday repeat again I here for the would have taken a lot of extra time to shuf- your very everybody record that alternative; Honor had a feasible fle over there and back. interrogation Any you individual further motions wish to make? larger could have been conducted a room MR. HOROWITZ: That’s it. where the present. Appendix could have been at 75-79. Indeed it could have been done in objected pro- 2. MR. HOROWITZ: We potential the courtroom with one wit- whereby cedure individuals members of the ness the courtroom. n jury panel were interviewed Your Honor Yes, THE COURT: it could have been and courtroom, in the anteroom outside the out- bringing it could have been one in at a side of the of the defendants. The groups time instead of in of 16 and it would reason for that is that the defendants are picking jury. have been all week I don’t peremptory challenges. entitled to exercise logistically place which can peremptory challenge any- A can be based on attorneys, retire with four four thing, gut feeling, it can be based on a Clerk, Reporter, attorneys Court a Court two distrust, innate whatever. Your Honor and, perhaps, my for the Government one of my knows. For client not to have had the law clerks to take care of this matter. opportunity every to see each one of right. your point. All You made Denied. jurors questions those as answered the Honor, MR. HOROWITZ: Your there was will, range, you pointed ques- at close if more quite adequate a room which was for that alone, distinguished tions than were-and purpose and it was the room in which the being panel sitting member of defendants were held and which four all room, large deprived the box in a them of given opportunity counsel were con- that, opportunity get feeling to see sult with their defendants after we conducted counsel, and to communicate that to which of interrogation right across the hall. prefer having those he would or not you’re THE COURT: It’s a room what having, (emphasis added) talking about. Appendix at 75. MR. It’s no more than 10 or HOROWITZ: 20 feet. Q. Williams, Majority Opinion you having do page at 144. Mr. recall anything about in the this case read that particularly seems ironic the ma- It the papers or heard about it over of a questioning concludes jority that news media? juror (in the absence of the defendants) error was harmless when A. Yes. questioned on “one being were Q. remem- you specifically Tell me what the trial topic” so sensitive that ber? words, feared, if in his own that another Well, pay while ago, A. it was a I didn’t provide heard the answer it “would an juror ' particu- much attention. I don’t that group entire been argument has per se. larly like sensational cases by what that has said.” contaminated Appendix topic potentially at 76. is only impression If the that I remember enough poisonous to contaminate a whole seems inher- that there to be some jurors, important of isn’t it group why stupidity on the of the de- part ent enough for defendants to fendant. judgments prospec- make their own on Q. Williams, people Mr. these are enti- juror’s responses tive and to decide what you tled to a fair trial. Do believe they hear and whether want see why you there is reason challenge peremptory against exercise a give them fair trial? can’t juror? A, No, that basis. wholeheartedly While I the tri- commend Q. you at you Do think would hesitate judge’s preventing possi- al concern for prejudice publicity, reading of pretrial bring ble back of not all a verdict transcript, pertaining to the ante- guilty you if found had not the case questioning, questions room reveals that beyond proved been a reasonable pre- were raised which are asked issues doubt? interchanges the cisely type defend- problem. A. No ants are entitled to witness order Q. might jar I Do your memory. you meaningful use of the peremp- make having read anything recall challenge. example, one tory prospec- For newspapers or heard over the news juror acknowledged having tive female read anything alleged ab- media about newspaper the crime also about of one Dedrick whose duction Joan having past burglary. been victim a challenged was a of a president The defendants’ counsel her for husband vice going cause because she is to have “I think bank? feelings

some inner that-she .. . [like A. Yes. kidnapping victim of the a wom- instant is] Q. you any opinion Has this led to form Judge home an who is alone.” T.R. guilt as to the innocence challenge Meanor denied the for cause. people now on trial? counsel cast one of the While could have challenges A. I peremptory closely, defendants’ on their didn’t follow it sir. behalf, their absence Q. your nega- take answer is in the deprived opportunity to observe tive? juror’s the would-be demeanor. A. Yes. Similarly following interchange, challenge T.R. 60. Counsel’s defendant, the absence between the again cause was denied. prospective juror court and a illustrative presence: the need for Reading the defendants’ from the cold record we cannot always appreciate the nuances of a trial. PROSPECTIVE

EXAMINATION OF pro- simply we believe that because Should JUROR NO. believed spective juror Williams said he “fair to a BY THE that the defendants entitled COURT:

151 it? really knowledge important trial” that Williams meant What which is stages at all trial, really including record reveal from Williams’ of the does the voir dire. At the voir particularly “I like sensational may, example, identify prospec- answer don’t dire he per only impression jurors cases se. The tive that he knows. He may also knowledge is that there seems to be some remember of facts about himself or part on the of the de- stupidity alleged may inherent crime which not have seemed tranquility fendant.”? relevant to him in the of office, lawyer’s may his and thus not have through- many As I read of the answers disclosed, may been but which become im- proceedings voir dire out anteroom portant prejudices as the individual or incli- persistent credibility there were issues as nations of the are revealed. He prospective jurors. to the How can it be community also a member of the defendants are harmless error when the might which he will be tried and be sensi- hearing seeing jur- excluded from particular prejudices tive to local lawyer his being questioned ors on matters which the does not know about. possibly trial considered sensitive and Second, prejudicial? present, if the defendant will be defense, able to make decisions about his II. well as lawyer. advise his Unless he is present, he cannot observe how his defense jury process The selection in federal unfolding is and would be unable to make precious right courts is too to sanction the intentioned, “suggestion[s] supersede even his law- judge’s purpose- well but yers altogether ful, and conduct the trial him- ap- exclusion of the defendants Massachusetts, Snyder self.” v. 291 U.S. at proximately twenty per cent of their own 54 S.Ct. at 332. He must be so proceeding. majority views voir dire defense, may participate that he if he the lower court’s exclusion of the defend- wishes, “for it is he who suffers the conse- own voir ants from a of their dire quences if the defense fails.” Faretta v. proceeding as mere “harmless error” and California, 806, 819-20, 422 U.S. stresses that “Alessandrello 2525, 2533, (1975). any way impartiality do not in attack the See Williams, page at v. jury.” Majority Opinion States F.2d 198 1980) (Adams, J., dissenting) (discussing Perhaps my disagreement fundamental right in detail the defendant’s to control his differing percep- majority is our defense). own pro- purposes tion of the for the voir dire Third, ceeding. By relying presence on the fact that ulti- the defendant’s mately impartial an jury selected in voir dire not affects the actual attain- majority neglects trial, impartial impor- critical ment but also is importance par- of the defendants’ appearance impartiality. tant to the As ticipate every stage pointed out, necessary of their trial. Clear- Blackstone “how it is ly (when majority jury prisoner put life) would not condone a that a to defend his process, whereby good opinion jury should have a of his given him; absolutely say, merely might no be- want of which totally disconcert impartial panel. cause it resulted in an the law wills not that he should be tried against one man whom he has con- importance It of the utmost prejudice ceived a being even without able defendant be being when the assign a reason for such his dislike.” 4 First, selected. will make for a in, quoted Blackstone Lewis v. United defense, more effective because enables States, 136, 138, U.S. give sugges- the defendant “to advice or (1892). 36 L.Ed. 1011 lawyer during Snyder tion” to his the trial. Massachusetts, Although Supreme v. has never U.S. Court 330, 332,78 impor- peremptory challenge L.Ed. 674 This is held that is re- Constitution, unique quired by tant because the has remarked defendant it has excluded, impor- g., e. defendants were involved significance. its See frequently on prejudice possible issues about tant Lewis United with confi- contemplation majority asserts (“essential jurors. at 139 trial”); Point- was mere harmless dence that the exclusion impartiality law 408, 396, 14 States, the of holding principles 151 Its defies er v. United U.S. error. (“one 410, 414, (1894) 208 of L.Ed. 38 which Mr. Justice Shiras reaffirmed S.Ct. law to rights the secured important ago adopting the most of when the century a almost Alabama, 380 U.S. accused”); v. Story the Swain views and earlier of both Justice 824, 835, 759 85 13 L.Ed.2d S.Ct. Bláckstone: (“a jury.”). (1965) necessary part of trial sensible, (1) what As one must be every challenge important be- peremptory The is impressions sudden and unaccountable jury by a helps defendant select cause the apt upon to prejudices we are conceive min- beyond him the giving opportunity “an another; gestures the bare looks and of requirements of fair selection to ex- imum necessary prisoner and how it is that a among jurors arbitrary preference an press (when life) put his should have to defend to sit fully qualified properly selected opinion jury, his want of good a the judgment in his case.” Frazier United him, the might totally disconcert which 506, 335 tried law wills not that he should be 187 93 L.Ed. has con- any against one man whom he being prejudice was a even challenge procedure The ceived without peremptory for designed implement judge’s percep- assign a able to a reason such his dis- not to Because, (2) challenges for impartial jury. upon like. tion of what constitutes shown, prove for peremptory challenge designed assigned cause if the reason was perhaps prosecutor juror, insufficient to set aside the defendant and —neither appellate questioning courts are the bare his indifference the trial nor the resentment; pre- to litigants’ provoke cast the ballot sometimes a given right to which, challenges. speak- all ill peremptory Plainly consequences vent for type prisoner liberty, pleases, to if he ing, judges it is not for select the still at ac- peremptorily which decide the fate of the to set him aside. will ago Justice cused. More than decade States, 146 13 Lewis v. United U.S. at Swain, White, speaking for the Court at stressed that: Admittedly proceed- before the anteroom peremptory essential nature ing opportunity had some one with- challenge that it is exercised “to measure demeanor stated, inquiry out reason without responses jurors” questions and to hear “to subject con- being without to the court’s personal background, gen- well as about trol. matters,” Majority Opin- eral trial-related In this 380 U.S. S.Ct. at 835. 143-145, recognize pages ion at imper- peremptory challenge twenty only voir dire the anteroom was missibly “subject control” and court’s voir percent of the overall dire. Brief constituted reversible error. therefore entitled Appellee 32. But defendants are rights-an per appreciation per cent of their This is case where grant enough. Important is not issues applicable legal precepts casts the facts cent knowledge, preference and proper Appellate courts of individual perspective. explored anteroom. extremely prejudice cautious when were should juror judge question that a Not did the each beyond a “reasonable doubt” decide inarti- or she seen media not have found an about whether he had defendant would crime, ex- he each suspicion important enough reports but also asked culable he or jury. any why That if there were reasons clude an from the individual against would be the defend- prejudiced made here because she decision cannot be any other rea- ant or whether there portion of voir dire from why See, sons he or she could not serve on the be reversible g., error. e. questions Crutcher, jury. The answers to these States v. (2d 242-43 1968). undoubtedly significant Cir. In every decision case cited the ma jority in which the peremptories. majority about the Can the court held the exclusion error, was a harmless juror’s the defendant say response in- waived these below. The majority’s heavy re quiries given would liance on Alper, U. S. v. Appeal of Court, Stanley Supreme what Justice Storey M. Greenberg, F.2d said, “everyone and Blackstone must denied, impressions be sensible to ... sudden (1972), reh. prejudices” unaccountable because of the response? manner of the the majority Can reveals fail to appreciate sig say any lawyer would be able ade- nificant and critical differences between quately articulate to the defendants what cases where the litigants purposefully impression should be the defendants of “the right where, waived their here, and those as bare gesture looks and of another.”? Lewis litigants the protested beginning from the States, supra. v. United I submit the court’s preclusion of the defendants looks, gestures appearances may which from portion a crucial process. the trial suspect be may to a defendant seem innocu- Alper In this Court explicitly stated ous lawyer. to his The defendants may “there is no indication whatever that [the said, have wished to hear what was to de- were excluded from the discus defendants] cide for juror themselves whether what a sions in by chambers any action of the said “sounded” like truly the believed court.” 449 F.2d at 1231. In contrast here given. the answer defendants the defendants precluded by the “ac have wished to expressions; observe facial tion of the court.” If the defendants’ or other revealing physical reactions. pointed objection enough was not satisfy to These are the kinds of reactions which fre- majority, the nothing then there is that a quently form peremptory the basis of chal- defendant could do to receive right the to lenges. If we find today that non-verbal or “. every stage . . at of the trial intangible inquiries prej- reactions to about including impaneling jury” which unimportant udice and views are beyond a the rules and the grant Constitution to a doubt, query reasonable I whether we defendant. intangibles significant. would ever find In other cases cited the majority the Further, majority ignores the ques- defendant’s waiver followed an offer proof tion of burden of on this issue. Im- repeat trial court to of the voir plicitly placed it has the burden on the See, dire that the defendant had missed. e. defendants. That decision conflicts with g., Phillips States, v. United 533 F.2d the traditional rule that the burden rests (8th Cir.) denied, 372 cert. 429 U.S. 97 government prove procedure to that a (1976) 50 (“Appellant S.Ct. L.Ed.2d 292 error of beyond this sort is harmless a rea- .. . was informed on the record that if he sonable doubt. generally Chapman See v. wished, he entirely could have an new tri California, 18, 24, al.”); United Dioguardi, States v. 428 F.2d n.4, 1039 (1970) ([“T]heir III. counsel, experienced who had been earlier above, objected As I noted proposed procedure, advised of the did not strenuously impor to their exclusion. The ask that be allowed to [the defendants] tance of the waiver in cases such as this is judge come nearer the .. . when point demonstrated my fact that neither was first raised ... stated he review of majority’s the cases nor the un granted request.”); would have such a covered any instance where a defendant Henderson v. United made a timely objection (5th 1970) to his exclusion (“[T]he Court asked from his voir dire and it was not found to counsel whether there was [defendant’s] public’s prel general hostility deci- go through ... back ‘any need a on what requires sion retrial some respect the exercise iminaries with “technicality.” a mere I would consider challenges for To this his counsel cause.’ however, believe, ”). firmly categorical ‘No.’ answered judgment sit in decide attorneys the defendants’ than defendants’ freedom is more is not a at the voir dire in the anteroom technicality. As Mr. Justice Frankfurter infirmity waiver and does not alleviate the ago: observed more than three decades a loss Candidly this case. am at law, life, lines have to be drawn. understanding why majority’s opinion line But the that a has to be drawn fact only 25 feet that the defendants were said, “The Medina once more odious and defendant, chooses, defense. The if he has crime, important despicable the the more judgments own on the make his justice done.”4 In this case be an business, juror’s “nationality, his basis of done, injustice has been and fundamental ties, politics, standing, family religion, social procedural rights have been breached. friends, thought; habits of life and newspapers he likes and reads books kind speech, . .. method of [even his] wears, style clothes he of hair Darrow, Attorney the De

cut. ...” for

fense, Esquire Magazine, quoted May in, Barnes, United States v. COMPANY, TODD INC. and AND Petitioners, Langbein, Thomas K. and to 64 L.Ed.2d Negroes, eliminate “whether Catholics, blue accountants those with AND SECURITIES EXCHANGE Alabama, eyes.” Swain v. 380 U.S. at COMMISSION, Respondent. Here, 831. defendants did No. 80-1633. delegate attorneys to their they need not have done so. Appeals, Court of States Third Circuit. IV. Third Circuit Submitted Under Having for more than been a 1, 1980. 12(6) Rule Dec. years, sympathetic to the thirteen I am Decided Dec. 1980. manage- court’s difficulties lower I of a complex ment and difficult eliminating the im-

applaud concern pretrial publicity. I aware

pact am also See, Allen, in this case Illinois v. 3. Because believe the exclusion error, (1970). I do the issue was not harmless not reach per Nor do 1 of whether a rule is desirable. se express any consequences opinion on the XII, Lloyd Stryker, Advocacy Paul The Art of removing obstreperous be whose defendant proceeding. disruptive voir havior is dire notes being its justify somewhere does sepa- this away from the anteroom where anywhere. drawn hearing being Defend- rate conducted. Pearce v. of Internal Reve- Commissioner eyes bionic nor bionic ants have neither nue, impressions which these ears —for them the J., (1942) (Frankfurter, dissent- L.Ed. being questioned witnesses made while here ing). I draw the line where as adjacent were as undiscernable as room intentionally have been exclud- mile separate proceeding occurred a if ed, good objections over and without their away. cause, significant portion above, right I noted As proceeding.3 Judge As voir dire Harold R. implicates to one’s own

Case Details

Case Name: United States v. Alessandrello, Gaetano, in No. 79-2654. Appeal of Lacognata, Salvatore, in No. 79-2699

Court Name: Court of Appeals for the Third Circuit

Date Published: Nov 21, 1980

Citation: 637 F.2d 131

Docket Number: 79-2654, 79-2699

Court Abbreviation: 3rd Cir.