UNITED STATES of America, Appellee, v. Edward PASTOR and Martin Weiner, Defendants-Appellants.
Nos. 577, 578, Dockets 76-1364, 76-1423
United States Court of Appeals, Second Circuit.
Argued Feb. 22, 1977. Decided May 19, 1977.
557 F.2d 930
See also D.C., 419 F.Supp. 1318.
Evidence which may be arguably relevant should not be admitted if it tends, as here, to mislead rather than enlighten the jury. United States v. Costello, 221 F.2d 668, 674 (2d Cir. 1955), aff‘d, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). This is particularly true where figures are summarized in documents which “have a way of acquiring an existence of their own, independent of the evidence which gave rise to them.” Holland v. United States, 348 U.S. 121, 128, 75 S.Ct. 127, 131, 99 L.Ed. 150 (1954). Evidence should also be excluded which leads to possible confusion, United States v. Harris, 542 F.2d 1283, 1317 (7th Cir. 1976), or tends to prolong the trial or distract the jury into side issues, such as excursions into the detailed history of 324 unrelated recordings. See Belmont Industries, Inc. v. Bethlehem Steel Corp., 512 F.2d 434, 439 (3d Cir. 1975). I am not sure that I understand what my colleagues are directing the District Court to do upon remand. My position simply is that there was no error in the trial court‘s ruling and there is therefore no necessity for any type of remand.
I agree with the majority that the question of liability as to the Virgin contract is a “close one“, and, as a juror, I might well have reached a different conclusion than was reached below. However, I would affirm the judgment on the Virgin contract, both as to liability and amount. I would reverse so much of the judgment as awards damages under the Crunch agreement and such damages as are unallocated.
Joel A. Brenner, New York City (Gerald L. Shargel, Fischetti & Shargel, New York City, of counsel), for appellant Weiner.
John J. Kenney, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., Henry H. Korn, Robert J. Costello, Robert B. Mazur, T. Barry Kingham, Frederick T. Davis, Asst. U. S. Attys., New York City, of counsel), for appellee.
Before MANSFIELD, VAN GRAAFEILAND, Circuit Judges, and CARTER, District Judge.*
MANSFIELD, Circuit Judge:
Appellants Edward Pastor and Martin Weiner were convicted of obtaining and conspiring to obtain controlled substances through false representation and forgery in violation of
Only a brief summary of the underlying offenses is necessary to resolve the issues raised on appeal. Prior to June, 1973, Pastor and Weiner, pharmacists in the Philadelphia area, had been dealing in large quantities of anoretic drugs known as phendimetrazine and phentermine. These drugs are often prescribed for use in weight reduction programs, but are also in demand for illicit purposes because they have qualities similar to amphetamines (“speed“). Formerly these drugs could be obtained by
Thereafter, Pastor and Weiner continued to purchase these drugs from Charles Fernald and Douglas Berry, partners in Wingate Sales Corporation, a New York City drug distribution company. Each transaction was recorded by Fernald and Berry on invoices bearing the name of one Dr. Horace Johnson, a Philadelphia physician who had no knowledge of the transactions. In October, 1973, Pastor ordered from Fernald 250,000 capsules of phendimetrazine which Fernald obtained from Vitarine Corp., a Long Island drug manufacturer. The next month, however, Fernald informed Pastor and Weiner that Vitarine would no longer supply through him such large quantities of the drugs without a written request from a physician. Pastor then sent to Fernald a letter purporting to be from Dr. Johnson, which contained Dr. Johnson‘s drug registration number and a request to ship the capsules. In fact, the stationery and the signature had been falsified by Pastor. Fernald relayed the letter from New York to Vitarine in Long Island, and six shipments totalling 1,200,000 capsules were sent by the company to a Philadelphia terminal. There, Pastor, posing as Dr. Johnson, received the shipments and Pastor and Weiner paid Fernald in cash for each shipment.
On April 18, 1974, Pastor sent Fernald a second forged letter ordering an additional 1,000,000 phentermine capsules which were sent by Vitarine to Pastor who then paid Fernald.
The jury convicted appellants of two counts, one charging violation of
DISCUSSION
Pastor‘s Sixth Amendment Claim
The first issue is whether Judge Motley violated Pastor‘s Sixth Amendment right to be present at his trial when she empaneled the jury in his absence on the first morning of the trial after Pastor failed to appear and advised the court that he was ill. Resolution of this issue depends upon whether the district court‘s finding that Pastor had voluntarily and without justification absented himself from the trial was clearly erroneous, and whether the court‘s decision to commence the proceedings was an abuse of discretion.
It is settled beyond dispute that an accused has a constitutional right to be present at all stages of his trial, Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973),
“A defendant who deliberately fails to appear in court does so voluntarily, and thus the important question is whether his absence can be considered a ‘knowing’ waiver. We hold that it can. The delib-
The decision as to whether the defendant‘s voluntary absence from the trial amounts to a waiver is thus vested in the sound discretion of the trial judge, who is usually in a superior position to evaluate the evidence, including witnesses’ credibility, because of familiarity with the background and circumstances. Moreover, where an evidentiary hearing is conducted to examine these circumstances, the trial judge‘s findings which form the basis of his or her decision on the issue will not be disturbed unless found to be clearly erroneous. See United States v. Lucchetti, 533 F.2d 28, 36 (2d Cir. 1976); United States ex rel. Delle Rose v. LaVallee, 468 F.2d 1288, 1290 (2d Cir. 1972), cert. den., 414 U.S. 1014, 94 S.Ct. 380, 38 L.Ed.2d 251 (1973); 3 Wright, Fed.Practice and Procedure, § 675, p. 130 (1969).
In the present case the question of whether Judge Motley abused her discretion in concluding that Pastor‘s absence amounted to a waiver entitling her to proceed with the trial, or based this conclusion on any clearly erroneous material findings, requires us to review the background. In 1966 Pastor suffered a heart attack and in 1968, 1972 and 1974 he was hospitalized for varying periods suffering from angina pectoris, which refers to chest pains often due to coronary disease. However, since his 1966 attack Pastor has never suffered another heart attack. Following the indictment of Pastor and Weiner on July 31, 1975, Pastor was arraigned on August 18, 1975. On September 10, complaining of chest pains, he went into the hospital where he remained until September 22, when his counsel appeared before Judge Motley for a pretrial conference and furnished the court with a letter from Pastor‘s personal physician describing his heart condition and advising that surgery within the next three to four months was being contemplated. However, no such surgery was ever performed. After further postponements of pretrial motions at Pastor‘s request and over government objection, the case was scheduled for trial on January 15, 1976. However, trial was further postponed to February 13, 1976, when Pastor‘s counsel filed additional motions, including one for a medical examination to determine Pastor‘s fitness to stand trial.1
On February 10, 1976, Pastor was examined by Dr. Leslie A. Kuhn, his doctor, and on February 11, 1976, by Dr. Meyer Texon, a physician selected by the government. When Judge Motley scheduled a hearing for
On February 23, 1976, over the government‘s objection, Judge Motley granted the application for postponement of the trial and adjourned it to May 17, 1976. On March 1, 1976, Pastor was discharged from the hospital, despite the representations by his physician.2 When, in March, Pastor‘s attorney became ill with a back ailment, Judge Motley advised that the trial would not be adjourned beyond May 17 and suggested, against the possibility that his attorney would be unable to participate, that Pastor obtain additional counsel (his own lawyer headed a firm in which there were several other lawyers) and that the court would pay the additional expense if Pastor could not afford it.
As the May 17, 1976, trial date approached, efforts were once again made by Pastor, who had not required any hospitalization since the earlier threat of trial, to postpone the trial. First, a three months postponement was sought on the ground that his attorney was convalescing from the back ailment. This was denied by the district court and we denied a writ of mandamus to compel a further adjournment. On May 9, 1976, Pastor was re-examined by Dr. Texon, the government physician, who reported that
“This patient now presents no evidence of congestive heart failure. His lungs are clear. He is able to ambulate at will in his own home and there is no evidence. that infarction or tachy-arrhythmia has appeared at any time since he has been observed during the past ten years. The anginal pains are relatively stable and appear controlled with Nitrol ointment or Nitroglycerin. . . . I believe his cardiac reserve may be considered diminished but is presently adequate to allow him to be up and about, to travel by automobile, and to participate in a court proceeding. . . . Although this patient may experience chest pain in a court proceeding, I believe it is very unlikely and only remotely possible that a myocardial infarction will occur as a result of his antecedent atherosclerosis at precisely the time of his participating in a court proceeding. Further clinical manifestations of the patient‘s heart disease such as tachycardia or pulmonary congestion are possible—but these, in my opinion, can be successfully controlled as in the past and constitute no serious risk or hazard to the patient‘s health or life in view of the relatively good cardiac status of the patient at this time.”
On May 14, 1976, Judge Motley found, based on reports by both physicians (Texon and Kuhn) and the evidence taken at the hearing of February 17, “that Mr. Pastor is able to withstand the stress of participation in a criminal trial, and to assist in his own defense, without grave risk to his life or health.” Recognizing that both doctors had predicted an increase in pain to Pastor from the stress of trial, Judge Motley ordered that trial proceed for only four hours per day, including recesses, and provided for the presence of Pastor‘s physician and a
On Monday, May 17, Pastor appeared at court for hearings on pretrial suppression motions. Because of the four-hour per day limitation, the hearings were suspended and court was adjourned at 1:00 P.M., with directions to return at 9:00 A.M. on the following morning for the selection of a jury from the large panel of veniremen who had been kept waiting on Monday. However, on the following morning, May 18, neither Pastor nor his attorney appeared. Instead, his attorney‘s associate counsel informed Judge Motley that the defendant was suffering from a heart problem and that his wife had given him oxygen but could not get him clothed. However, the lawyer failed to present to or obtain for the court a doctor‘s statement, either written or oral, nor did he state whether Pastor had been examined by a physician or admitted to a hospital. Instead, he advised that Pastor‘s counsel had been unsuccessful in inducing Dr. Texon, the government‘s physician, to examine Pastor and that he did not know whether Dr. Kuhn would “be able to see Mr. Pastor or not.”
The facts, as developed at a post-trial hearing and found by Judge Motley, were that despite Pastor‘s assertion that he had first suffered severe pain and sweating at 7:00 A.M. on the morning of May 18, 1976, no effort was made to call his physician, Dr. Kuhn. Pastor‘s wife testified that she telephoned his attorney at 8:00 A.M. The attorney, instead of calling Pastor‘s physician (Kuhn), who was at home and available, telephoned the government physician (Texon), who understandably refused to treat or examine Pastor without a court order. No effort was made to communicate with Dr. Kuhn until shortly before 9:00 A.M. when he arranged for Pastor to go to the Mount Sinai Hospital for examination at 10:00 A.M. Thus Pastor was not examined until three hours after his “attack” had occurred, even though his own doctor had been available for consultation and examination.
In the meantime, in the absence of medically-confirmed incapacity, Judge Motley, having experienced earlier efforts by Pastor to adjourn trial despite expert medical opinion to the effect that he was able without any serious risk to his health to stand trial, revoked Pastor‘s bail and ordered that he be brought to court by the United States Marshal. She then proceeded with selection of the jury from the panel of veniremen in order to allow the others to return home. All other proceedings in the case were suspended until the next day. In a later-written opinion Judge Motley stated that Pastor‘s “failure to have a doctor‘s affidavit, or even an unsworn doctor‘s statement, in court by 9:00 A.M. constituted (in view of the arrangements made in this case to have defendant‘s doctor examine him during trial) a voluntary absence by the defendant. It was too plain for argument that the public interest required that the court proceed.”
At 11:30 A.M. on May 18, after trial had proceeded against both Pastor and his co-defendant Weiner, with counsel for each participating, and after the jury had been selected, the court received an affidavit from Dr. Kuhn indicating that Pastor had experienced a painful attack and suspected the possible existence of acute myocardial infarction, a deterioration in Pastor‘s condition. At 6:00 P.M. the government physician examined Pastor and found no acute myocardial infarction, but simply “another episode of angina pectoris—possibly more severe clinically than usually—but still reversible,” and recommended that Pastor return to the court on May 20th. As Pastor‘s presence at trial over the next two weeks demonstrated, this diagnosis proved correct.
After hearing testimony on the defendant‘s condition on May 19, Judge Motley refused to reinstate defendant‘s bail, and
After completion of the 12-day trial Judge Motley resumed the evidentiary hearing with respect to Pastor‘s condition on May 18, 1976, to determine whether he had been able to attend trial on that date, taking testimony of various witnesses, including Mr. and Mrs. Pastor. On November 16, 1976, Judge Motley filed her findings of fact and opinion denying Pastor‘s motion for a new trial, which had been based on his absence during the empaneling of the jury.3 Judge Motley found that, assuming Pastor had experienced pain on the morning of May 18 and that his symptoms, which had been almost entirely subjective, were accepted at face value, he “did not suffer a physiological impairment so severe and so serious as to excuse his absence from the court on that morning“; and that he had “intentionally manipulated what was—at worst—a marginally more painful episode of his chronic angina pectoris as an excuse to frustrate and delay the commencement of his trial on the criminal charges in this case.” Instead of immediately seeking help from his own doctor or going to the hospital, which might have led to his having to go to court, he had deliberately delayed doing so, even though he knew that a physician‘s statement would be required to obtain an adjournment. His gesture in calling the government doctor was found to be a “transparent ploy” designed to avoid standing trial. Furthermore, the court found that while some of the cardiographs were consistent with his claims of pain, they were by no means conclusive and in any event did not indicate he was suffering a heart attack or anything more serious than the malady which he had experienced all along. Judge Motley concluded that, given the totality of the circumstances, he had voluntarily and without justification absented himself from the trial.
Based on our examination of the record, we are satisfied that these findings, being supported by evidence of record, are not clearly erroneous. We further conclude that Judge Motley did not abuse her discretion in proceeding with the selection of a jury in Pastor‘s absence. Although this defendant had repeatedly been found physically able, despite his illness, to stand trial, he had previously attempted, by exaggerating his illness and resorting to hospitalization, to postpone the proceedings in this case, as we evidenced by his voluntary hospitalization in September, the suspiciously-short February hospitalization, and his various other motions for adjournment. His principal symptom (pain) was subjective4
Against Pastor‘s interest in postponing his trial, there were other weighty interests favoring the continuance of trial. More than 50 veniremen had been called and kept waiting on Monday, May 17, at considerable trouble and expense. Because of the small size of the courtroom in which the case was to be tried, which could not accommodate 50 potential jurors, another courtroom had to be borrowed by special arrangement for the selection of the jury. Pastor‘s co-defendant, Weiner, was entitled to proceed with trial rather than face the indefinite adjournment that would probably have otherwise occurred since, if the court had not ordered trial to proceed, Pastor would have remained hospitalized or resorted again to hospitalization. In the event of a severance the government would have been obligated to try the case, which took 12 days for trial, twice. In addition, the government had assembled its witnesses, including one elderly and enfeebled material witness, Dr. Horace Johnson. Lastly, Judge Motley had arranged her schedule and time for the trial and could hardly be expected to find another case ready for immediate trial.
With due respect, Judge Van Graafeiland‘s forceful dissent would have us, in considering the propriety of the district court‘s action in this case, confine ourselves to the events of the morning of May 18, 1976, and even then to consideration only of the evidence tending to support appellant‘s contentions. Were we to so limit ourselves, the justification for affirmance would, of course, not be so compelling. But we refuse to take such a view, which is limited to but a fragment of the entire record.
The events of May 18 must be appraised in the revealing light of what went on before and after that date. The record discloses persuasive evidence of studied prior efforts on the part of Pastor repeatedly to gain postponements or other advantages by hospitalizing himself on the basis of subjective complaints that appear to be suspiciously lacking in substance. This occurred, for instance, just prior to his counsel‘s September 22, 1975, pretrial conference, which was called for the usual purposes, including the fixing of a trial date, and again immediately before Pastor‘s scheduled appearance on February 17, 1976, to determine his ability to stand trial. On each occasion, as soon as the hospitalization had served its purpose, Pastor emerged from the hospital to go about his daily business. Moreover, he voluntarily testified before the FTC in January 1976, when it was in his interest to do so.
The “uncontroverted and undisputed testimony,” moreover, discloses that, despite the use by the hospital and doctors of medical terminology that may sound impressive to laymen (and apparently to our colleague), there was no appreciable change in Pastor‘s basic condition on the morning of May 18. It was essentially the same as it had been for months, if not for years. Furthermore, it was consistent with pain or absence of pain. The existence of “angina” or “angina episodes,” which had occurred in the past and might be expected to recur in
Thus, even viewed with the benefit of hindsight, Judge Motley‘s conduct was not erroneous and does not call for the characterizations used by our dissenting colleague. Although our distinguished colleague reacts differently to the events of the morning of May 18 and takes the view that the better course would have been to delay trial for a few hours or a day to obtain further medical reports, this assumes that Pastor would not then have resorted to even further claims of pain and stayed in the hospital indefinitely rather than have promptly returned to the courtroom and attended trial upon learning that Judge Motley was not to be deceived. If Pastor‘s past efforts are any indication, he would almost certainly have remained in the hospital if his tactics had been successful in securing any postponement. Accordingly, we refuse to find that the trial judge, who was intimately acquainted with the circumstances, erred in concluding that Pastor‘s absence was but one more ploy in an elaborate game designed to disrupt the trial and the court‘s control of it.
Appellant‘s Claims of an Unconstitutional Delegation
We turn next to appellants’ claim that
Under
Section 811(c) of the Act adds eight additional criteria which the Attorney General “shall consider” with respect to the decision to control a drug, and
Despite this particularized Congressional mandate, appellants claim that the delegation is unconstitutional, that the standards prescribed under the Act for the scheduling of substances are vague, and that the agencies failed to adhere to the prescribed standards. Neither appellant makes the claim that the drugs with which this case is concerned are not dangerous enough to be subject to regulation under the Act.
The seminal case in the area of delegation of legislative power is Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935), in which the Supreme
“The President is authorized to prohibit the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn from storage by any state law or valid regulation.”
In analyzing the validity of the broad authority vested in the President, the Court sought to determine whether Congress had declared a clear policy in the area, whether it had set up standards to govern the President‘s actions, and whether Congress had required any factual finding by the President in the exercise of his authority. 293 U.S. at 415, 55 S.Ct. 241. It found all of these to be missing and the statute therefore invalid:
“The Congress did not declare in what circumstances that transportation should be forbidden, or require the President to make any determination as to any facts or circumstances. Among the numerous and diverse objectives broadly stated, the President was not required to choose. The President was not required to ascertain and proclaim the conditions prevailing in the industry which made the prohibition necessary. The Congress left the matter to the President without standard or rule, to be dealt with as he pleased.” 293 U.S. at 418, 55 S.Ct. at 247.
In Panama Refining Chief Justice Hughes also set out circumstances in which a delegation would withstand scrutiny, recognizing that
“The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules.within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply.” 293 U.S. at 421, 55 S.Ct. at 248.
Thus, while the Supreme Court struck down the statute at hand, it laid down the important principle that “Congress may not only give such authorizations to determine specific facts but may establish primary standards, devolving upon others the duty to carry out the declared legislative policy . . . ‘to fill up the details‘“. 293 U.S. at 426, 55 S.Ct. at 251. See also Schechter Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, (1935), in which the Court again struck down a statute as an improper delegation to the President, but did not depart from its analysis in Panama Refining.
In American Power v. Securities and Exchange Commission, 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103 (1946), the Court upheld a delegation of power to the SEC which authorized it to act to prohibit any holding company structure which might “unduly or unnecessarily complicate” the corporate structure or “unfairly or inequitably distribute voting power among security holders.” In testing this broad delegation of authority the Court took into consideration the “necessities of modern legislation dealing with complex economic and social problems.” It said:
“The legislative process would frequently bog down if Congress were constitutionally required to appraise beforehand the myriad situations to which it wishes a particular policy to be applied and to formulate specific rules for each situation. Necessity therefore fixes a point beyond which it is unreasonable and impracticable to compel Congress to prescribe detailed rules; it then becomes constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority. Private rights are protected by access to the courts to test the application of the policy . . ..” 329 U.S. at 105, 67 S.Ct. at 142. See also Yakus v. United States, 321 U.S. 414, 424-26, 64 S.Ct. 660, 88 L.Ed. 834 (1944).
Although defendants claim that the “potential for abuse” standard in
We find that the delegation of authority to the Attorney General under the Act is made pursuant to a clear statement of Congressional policy, is governed by precise standards consistent with the statement of policy, and requires that specific findings be made concerning the qualities and dangers of the substances as a condition precedent to regulation. Moreover, the necessity for speedy, detailed and expert agency action in the area of drug technolo-
Appellants also contend that the delegation of authority to the Attorney General to schedule substances under the Act is inherently unfair because he is also primarily responsible for the enforcement of federal drug laws. While this claim might have some merit if the Attorney General‘s discretion were unfettered and the defendants could make some colorable showing of bad faith in their prosecution, this is decidedly not true in the case at bar. Under the Act, the Attorney General is prohibited from acting contrary to the recommendation of the Secretary of Health, Education and Welfare in deciding whether to schedule a drug and thereby to outlaw its use without compliance with the Act. He is also required to follow the public notice and hearing requirements of the
We also find that appellants’ challenge to the assertion of venue in the Southern District of New York is without
We find that appellants’ other claims lack sufficient merit to warrant discussion. The judgments of conviction are affirmed.
VAN GRAAFEILAND, Circuit Judge (concurring in part and dissenting in part):
“He jests at scars that never felt a wound.” William Shakespeare
“Those who do not feel pain seldom think that it is felt.” Samuel Johnson
At 9:00 A.M., on May 18, 1976, when the District Judge ordered this case to trial, appellant Pastor, who had a previous history of advanced triple-vessel coronary artery disease, myocardial infarction, hypertension and severe angina pectoris, which the District Judge had earlier acknowledged to be a “concededly serious heart condition“, was on his way to the Mt. Sinai Hospital.1 The hospital history showed that he had suffered “two hours of severe anterior chest and left arm pain unrelieved by 20 nitroglycerine tablets“; that he was in severe distress on admission, was given three or four injections of morphine, was administered oxygen and was treated with nitroglycerine, and medication for premature heart beats. Electrocardiogram studies taken on admission showed that there were ST segment depressions in leads V4, V5 and V6, which had not been present previously; and, on the advice of his physician, appellant was placed in the hospital‘s coronary care unit for further observation and treatment.
Both the court appointed physician, Dr. Texon, and Pastor‘s attending physician, Dr. Kuhn, agreed that appellant was suffering from myocardial ischemia and that this was a “true anginal episode” for which he should have sought medical attention.2 Indeed, Dr. Texon, who examined appellant on the evening of May 18, recommended that he be kept in Mt. Sinai Hospital “for at least another 24 hours. . . .” Dr. Texon advised the court on May 19 that, “if improvement continues, such as had occurred from morning to evening of yesterday, [appellant] would suffer no great risk of further infarction by being moved to a facility possibly next to the Court on the next day.”3
Having now set the scene at the hospital, let us shift our attention to the courtroom to see what transpired there on the morning of May 18. So that the record will by crystal clear, a transcript of the proceedings is set forth in full in the margin.5 As is
Looking back on events from the sanctity of this Court‘s ivory tower, my colleagues are critical of the fact that Dr. Kuhn was not called at 7:00 A.M. when appellant‘s onset of pain occurred and did not examine appellant until he reached Mt. Sinai Hospital, 180 minutes after the first “attack“. (The quotes are my colleagues‘.) They also criticize appellant‘s attorney for attempting to arrange for the court appointed physician to examine his client, brushing aside the attorney‘s explanation that he did not think the District Judge would believe appellant‘s own physician, a completely justifiable assumption, it would appear, from a review of the Judge‘s subsequent conduct. Can a finding that appellant intentionally waived his constitutional right to be present during the selection of the jury be constructed upon such a weak foundation as this? I think not.
My colleagues dig deep indeed to justify the District Judge‘s conduct on May 18 by referring to appellant‘s display of pills and a hospital wristband during the course of the trial6 and his wearing of what they term a “see-through” shirt which permitted the jury to see the heart monitoring device attached to his chest.7 If this was egregious conduct on the part of an ill and hospitalized defendant, which is a matter not at all free from doubt, it certainly cannot be relied upon as justification for improper conduct of the District Judge which took place before the trial commenced.
The majority also relies on the rule that where an evidentiary hearing is conducted to determine whether appellant voluntarily absented himself from trial, “the trial judge‘s findings which form the basis of his or her decision on the issue will not be disturbed unless found to be clearly errone-
We have said on numerous occasions that the docketing of an appeal wholly removes the case from the jurisdiction of the trial court and deprives it of the power to make any further orders. United States v. Ellenbogen, 390 F.2d 537, 542 (2d Cir.), cert. denied, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968); United States v. Habib, 72 F.2d 271 (2d Cir. 1934). In United States v. Warren, 453 F.2d 738, 744 (2d Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2040, 32 L.Ed.2d 331 (1972), we specifically held that, once a notice of appeal has been filed, the District Court is deprived of jurisdiction to act upon motions for a new trial. There is, therefore, a serious question in my mind whether a District Judge can retain jurisdiction following the taking of an appeal from a judgment of conviction by the simple expedient of making an oral order and reserving the right to file supportive findings at a later date.8
Assuming, however, that we are prepared to treat the District Judge‘s opinion as something other than an additional appellee‘s brief, a strong argument may nonetheless be made that we should not be bound by the ex post facto findings contained therein. The District Judge did not order the case to trial on the basis of these post trial findings, but, instead, proceeded solely
upon her own arbitrary determination that appellant was engaged in a deliberate attempt to frustrate the court in bringing the case to trial. If full and complete review of this procedure can be thwarted through application of the “clearly erroneous” rule to exculpatory post trial findings by the trial court, a defendant‘s constitutional rights rest on rather shaky grounds. It will be the rare judge indeed who does not find his own conduct to have been blameless. See Fielding v. LeFevre, 548 F.2d 1102, 1104 n. 1 (2d Cir. 1977). Where, as here, the judge departs from her role as impartial arbiter over matters in dispute between litigants and takes an adversary posture against one of them, contrary to the wishes and suggestions of both, substantial justice for the injured party might well require that subsequent findings, made in attempted justification of the judge‘s conduct, be given closer scrutiny than is mandated by the “clearly erroneous” rule. Cf. United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977); Holley v. Lavine, 553 F.2d 845, 851 (2d Cir. 1977); Halliday v. United States, 380 F.2d 270, 272-74 (1st Cir. 1967).
I do not rest my dissent on this argument, however, because I conclude that the District Judge‘s finding that appellant did not suffer a physiological impairment so severe and so serious as to excuse his absence from court on the morning of May 18 was in direct contradiction of the undisputed medical evidence and was therefore clearly erroneous. I also conclude that the District Judge was patently in error in holding that the failure of appellant‘s attorney to have a medical report available for the court at 9:00 A.M. on May 18 constituted a voluntary absence by appellant and a knowing and intentional waiver of his constitutional right to participate in the selection of the jury.
My position, simply put, is that if there was not “persuasive evidence of a knowing and intelligent waiver on the part of [appellant] himself,” Humphrey v. Cady, 405 U.S. 504, 517, 92 S.Ct. 1048, 1056, 31 L.Ed.2d 394 (1972), rather than a “choice made by counsel not participated in by [appellant],” Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963), the District Judge‘s finding of waiver based upon the attorney‘s questionable lack of diligence cannot stand.
My further position, also simply put, is that appellant‘s right to absent himself on the morning of May 18, 1976 should not be determined by what his physical condition was in September 1965, or by the gruesome test of whether he survived the trial. If appellant was properly in Mt. Sinai Hospital while the District Judge was proceeding with the selection of his jury, the trial should not have proceeded in his absence. On this crucial issue, I do not consider only the evidence tending to support appellant‘s contentions, as the majority opinion seems to imply. Both appellant‘s doctor and the court-appointed doctor agreed that appellant‘s hospitalization on May 18, 1976 was proper. As to this salient feature of the case, there was no other medical testimony. This was it. This was the opinion of both the partial and the impartial physician, each of whom was completely familiar with appellant‘s medical history and, despite the omniscience of Federal judges, was better qualified than we to pass upon the necessity for appellant‘s hospitalization.
With all due respect to my colleagues, their argument concerning indefinite adjournments which “probably” would have occurred, severance, separate trials, etc., would, if advanced by a litigant, be properly termed a “red herring“. No one quarrels with the right of a District Judge to proceed with a trial, with or without the defendant being present, when there is medical proof that the defendant is physically able to be present and participate in the trial. The undisputed, I repeat, undisputed proof was that on the morning of May 18, 1976, appellant was properly hospitalized and therefore physically unable to be present.
It is not a pleasant task to pass critical judgment upon the conduct of another judge, and the easy road for me would be to join with my colleagues in their facile approval of what has transpired in this case. However, if we judges are to be consistent in our application of constitutional principles, we should hold ourselves to no less exacting standards than those we demand of police officers who are not blessed, as we are, with legal degrees and presumed knowledge of the law. See, e. g., United States v. Karathanos, 531 F.2d 26, cert. denied, 428 U.S. 910, 96 S.Ct. 3221, 49 L.Ed.2d 1217 (1976); United States v. Magda, 547 F.2d 756, 759 (2d Cir. 1976) (Motley, J., dissenting). In this manner only can the “high reputation of federal criminal justice and the policy of complete and even-handed fairness for the defendant” be maintained. United States v. Fernandez, 480 F.2d 726, 738 (2d Cir. 1973).9 Recognizing, as we do, that the extreme pressures on our trial judges sometimes cause them to “give vent to their frustrations,” United States v. Nazzaro, 472 F.2d 302, 304 (2d Cir. 1973), we have said that “grave errors which result in serious prejudice to a defendant cannot be ignored simply because they grow out of
I agree with my brothers that the judgment of appellant Weiner should be affirmed.
Notes
Q. And based upon what you observed you are not suggesting, are you, that Mr. Pastor should not have sought medical attention, are you?
A. I am not suggesting that at all. Every pain has to be paid attention to.
Q. Isn‘t it a fact that sound medical practice would indicate that he should indeed seek medical attention under those circumstances?
A. That‘s right.
Q. After reviewing the medical records and after examining the patient, Dr. Texon [you] used the very words which I said that this attack was possibly more severe clinically than usual?
A. That‘s quite possible.
Q. And putting that aside just so we are clear, whether or not he suffered it on this morning or on previous mornings, on any occasion when these symptoms were present or this condition existed Mr. Pastor in terms of sound medical practice should medically seek medical attention. Isn‘t that true?
A. That‘s true.
“Discussion: The recurrence of chest pain in this patient with known coronary occlusive
“Opinion: In view of the clinical course to date of chest pain as described but the absence of objective evidence of acute myocardial infarction in this patient, I believe 24 hours of further observation in the hospital are indicated. If improvement continues and no evidence of objective Ekg. or blood enzyme changes are [sic] found, I believe the patient may participate in a court procedure on Thursday, 5/20/76. Re-evaluation at appropriate intervals is advised.”
The Court: Is the Government ready to proceed?
Mr. Timbers: The Government is ready to proceed, your Honor.
The Court: Is the defendant ready to proceed?
Mr. Cooper: The defendant Pastor is not ready at this time.
The Court: Is the defendant Weiner ready to proceed?
Mr. Sparks: Yes, your Honor.
Mr. Cooper: If I may explain: I received a call in my home at about 8:15 this morning from Mr. Kuh who is counsel of record in this case for Mr. Pastor. Mr. Kuh informed me that he had been informed by Mr. Pastor‘s wife that Mr. Pastor had another heart problem I believe early this morning; that she had to administer oxygen; that she could not even get Mr. Pastor clothed this morning he was in such bad shape. Mr. Kuh further informed me that upon hearing that he called Dr. Texon, not having been able to reach Mr. Timbers, who I believe was on his way in from Connecticut. He asked Dr. Texon if he could go to the hotel where Mr. and Mrs. Pastor were staying and examine Mr. Pastor and, if necessary, admit him to the hospital. Dr. Texon said he could not do that; that he is not authorized by the Court to do that; that he doesn‘t have a Court order and therefore he would not do that.
I was informed that Mr. Kuh within the last 15 minutes called Dr. Texon again. Dr. Texon still said he was not able to go to Mr. Pastor. I believe Dr. Texon said that he would be in his office and if Mr. Pastor could get to his office he would be able to examine him there, but my information is that Mr. Pastor was not in condition even to be dressed, no less to go out of the room.
The Court: By when?
Mr. Cooper: He is going to call back in the next ten minutes. I don‘t think he will have seen him by then. What I would request is this: I know Dr. Texon has been examining Mr. Pastor at the Court‘s direction. I would believe if Dr. Texon were ordered to examine him again that he would. I believe the reason Dr. Texon said he wouldn‘t at this time is because he wasn‘t authorized. I would ask that the Court through a phone call at least now order Dr. Texon to examine Mr. Pastor at Mr. Pastor‘s hotel.
The Court: I don‘t have any doctor‘s certificate here, Mr. Cooper, saying that Mr. Pastor is unable to attend court this morning, so his bail is revoked and the United States Marshals are ordered now to go and get him. We are going to proceed in his absence.
Mr. Cooper: May I ask—
The Court: If you say another word you are going to need a lawyer. Now, let‘s go. (Pause.)
The Court: Mr. Timbers, do you have something to say?
Mr. Timbers: Yes, your Honor. The Government is prepared to have Mr. Pastor examined and to have him placed in the Metropolitan Correctional Center if necessary. The Government would apply, however, to defer the selection of a jury to determine whether Mr. Pastor has purposefully absented himself from court today. The Government is concerned that if by chance Mr. Pastor should for once in fact be sick there might be Sixth Amendment problems in choosing a jury in his absence. The Government would apply at this time that a determination be made first as to whether he is in fact sick before proceeding.
Mr. Cooper: May I say something?
The Court: The application is denied.
Mr. Cooper: May I bring the Court up to date?
The Court: Yes.
Mr. Cooper: I spoke to Mr. Kuh against (sic). He said that he had spoken with Dr. Kuhn who in turn spoke with Dr. Texon. I believe it is the consensus of both Dr. Kuhn and Dr. Texon that Mr. Pastor should be examined. These arrangements were made before the Court made its previous order this morning. Mr. Pastor, I believe, is at this time, if he has not already arrived, is on his way to Mount Sinai Hospital‘s emergency room either by ambulance or taxi, whichever was able to be arranged first. I believe Dr. Texon is aware of this fact now. I would ask the Court that the Court‘s reason for revoking bail and ordering the marshals to get him because there was no doctor‘s note, to at least give us an hour to get the note. This set of circumstances was just brought to my attention and I believe just happened. It was not possible to get a doctor‘s note down here by that time.
The Court: The application is denied.
Mr. Cooper: If your Honor please, before we proceed I would make the same objections to having to go forward without Mr. Pastor at this time. I believe he has a right to be here until it is determined—
The Court: He has a right to be here, but he also has a responsibility to present a doctor‘s certificate saying that he is unable to be here. This is a deliberate attempt to frustrate this Court in bringing this case to trial and I‘m not going to hear it again. That is my conclusion, that this was done deliberately to frustrate this Court from selecting a jury this morning at 9 o‘clock as you full well knew as did Mr. Kuh and Mr. Pastor.
Mr. Cooper: You are not saying it is a deliberate attempt.
The Court: I just ruled that it is my view that it is because I changed the schedule and Mr. Kuh didn‘t like it, so we are going ahead. Let‘s go into the courtroom.