United States v. Meger Sigal, United States of America v. Abe Rabinovitz

Sigal Appellant also contends that judgment should be reversed because record failed to Wolf, and Moschzisker Michael von prospective dire examination of voir jurors. Solis-Cohen, Block, Philadel- & Schorr point This also in the view McBride, (Thomas Philadel- phia, D. Pa. However, majority specious. Pittsburgh, Glasso, Pa., Pa., phia, Louis remand the causes to the dissent would Philadelphia, Yanowitz, and Herbert “ * ** supplement district court to Pa., brief), appellant for in No. on the record, 37, supra neces- [not note 14,475. sary quote here], deter- order to ap- Gavin, Pittsburgh, Pa., for John R. mine or not there an effec- whether 144,476. pellant in by either or both of the de- tive waiver pre- fendants.” In view this we will Reich, Atty., Asst. U. S. Samuel J. legal gov- sent the factual and situation King, Atty., Pittsburgh, Pa., Alfred N. erning particular problem. that Justice, Div., Dept, U. S. Criminal (Gustave Diamond, stenographer Washington, C. The court should D. appellee Atty., brief), dire on the for have recorded voir in accordance U. S. pertinent statute, 28 U.S.C. § both cases. 753(b). do in The failure to so in this BIGGS, Judge, and no Chief Mc- stance was harmless error. There is Before STALEY, Circuit is bar contention otherwise. record LAUGHLIN Judges. any support ren of for such if contention Sigal merely it had been made. notes the point paragraphs not two and does Judge. McLAUGHLIN, Circuit reply reply specific in his brief appellants jury con- After trial were disposal ap point authoritative 7272 and victed under §§ pellee. Rabinovitz does not list even provi- for various violations appeal. point his states relat- Internal Code sions Revenue statutory mandatory provision is ing wagering, attempt i. e. Wilful cites Parrot v. United two decisions. tax; pay special Wilful failure to evade (10 Cir.1963) and 314 F.2d 46 register tax; special failure Wilful Stephens v. F.2d 308 United tax; register special Failure to for (5 Cir.1961). The dissent also refers tax; special special pay tax. Failure require eases more these. Both those a mere the Act that than violation On behalf of is asserted judge reversal. In Parrot told and seizures the searches illegal; involved defendant, being slips tried for not the numbers could bank, evidence; conspiracy constitutionally other to rob a had three be received as against charges vending authority robbery agents bank had to ar- warrant; record of the dire him. With no voir there rest without appellate was unable to ascertain should been mistrial because of harmless, attorney re prosecuting the error therefore if remarks argument; closing appeal for a trial. manded the new the first pre appeal improperly Stephens unable to count was submitted urges appeal be jury. errors Appellant sent certain Rabinovitz steno prosecution’s proof partnership the voir dire cause graphieally Fifth The láter recorded. failed One of the indictment as Count Appeals opinion trial be- Circuit that he is entitled to a new

g39 affecting appellant’s 311 F.2d 926 tained no error sub- Strauss rights, Cir.1963), 83 stantial then cert. den. failure to record arguments (1963), gives those would also be harmless appeal, admittedly picture on the of the basic law error.” a clear suggestion great appel- question. no The same was was harm or small to appeal, i. e. as in the instant lants. made there mandatory, despite the law was because Finally, we are confronted with charg- specific that no error was the fact Hardy view that v. United ed, court there should be a reversal. The 277, 282, U.S. p. 933: said (1964) calls for the naked reversal “Furthermore, error or of these convictions on the harmless er- resulting prejudice therefrom is reporter failing ror of the in this trial to called to our attention. This is theory take the voir dire. Under that very required least that would be the realities that the voir dire contained Stephens States, 5 all, no error at that none was ever con- Cir., 1961, 289 F.2d where for, alleged, swept tended even would be specified, errors and where 52(a) aside. Rule F.R.Crim.P. com- test manding there was no record on which to appeal “Any error, that on permit an the claimed errors. To defect, irregularity or variance which appellant simply to claim error for rights does not affect substantial dis- Act, regarded”, failure under the with- to record would be abandoned. The more, out would eliminate the neces- Hardy necessity issue in of fur- sity showing prejudice nishing of a be- appointed ap- court counsel for pellant cause of the error.” Appeals in the Court of with “ * * * opinion transcript testimony important of the In another late presented by Appeals on and evidence the defendant the Fifth Circuit Court charge jury, subject, and also the court’s Addison v. United Cir.1963), testimony as well as cert. den. and evidence 317 F.2d presented by prosecution.” 658, 11 L.Ed.2d And appellant (1964), held: what Court concluded the court to new should have. This was allowed no excuse for the “There is representing attorney appointed comply reporter’s failure to testimony appellant. dire The voir statute, requirements unless necessary transcript excluded from the requirement. party waives given appellant. If there had been However, an au- this does not work relating it, problem it of course (Emphasis sup- tomatic reversal.” present have been included. In the would appeal plied) . have no issue as to the voir we v. United Brown continuity counsel,1 dire, we have we upon support- (9 Cir.1963), relied Hardy as it the exact decision ing position, fail- the defense there was lending impressive stands, indirectly its called ure to record the summations as weight doctrine that sound categori- the statute. The court stenographer with no mistake of the bare disagreed cally proposition that with the flowing damage probably possibly or required the failure of itself reversal. enough deny therefrom, is not affirm- appeal to It remanded the ascertain to these convictions. ance reviewing holding fact that “In criminal sound the above appeal In addition we are to dis- convictions * ** calling of these regard for affirmance doctrine does not ‘error which waiv convictions, effective rights.’ 52(a), there was affect substantial necessity ing the court If Procedure. Federal Rules of Criminal in writ- noting This was closing arguments dire. the voir counsel eon- appeal. Join Glasso, attorney been added counsel have O. of record Louis attorney Gavin, original for Rabino- beginning R. from in this matter attorney of record. attorney also still his vitz is Additional is still record. procedure acceptance followed ing signed full defendants wit- all nonre- trial included the at this reads: This their counsel. nessed cording substance, if voir dire. op as to Satisfaction “Statement plain, us was statement before clear Applied Procedure something into never con be twisted Jury op Selecting templated or their the defendants attorneys callous, wrongful it would be a appeals which would in these maneuver hereby waive the “I do justice. defeat pro- criminal in this have the ceeding judgments of the district court presence of a selected will be affirmed. hereby I do member of Court. certify state and further Judge BIGGS, (concurring Chief assign- open jury in the was selected dissenting part). part and I Court and that ment room of the The unanimous views the court are of during my present counsel was headings expressed first four under the ap- period of time the whole of opinion, “I”, “II”, “III”, of this and jury. plied in the selection expressed A “IV”. dissent is the writ- certify that I am satisfied do further heading being “V”, er under that dissent agreeable procedure ap- and to upon based the failure to record the voir jury. plied to the selection jury. dire examination of the Meyer defendants-appellants, The and Abe Rabinovitz Rabinovitz, individuals, with two other Nathan Granoff jointly, convicted, indicted were after Carl Sehrello jury violating trial, wilfully of Defendants) (Signatures of relating wagering of Internal Rev- Attest: 1954, U.S.C., specifically, enue Code of John R. Gavin (Count I), attempt of to evade Barney Cohen M. wagering imposed by excise tax 10% C. Louis Glasso 7201; Section 4401 in violation of Section Defendants)” (Attorneys for (Counts III, respectively) II en- of gaging wagering in the business of dur- approved The on face statement its all ing periods of March 1961 to phases particular of the selection of the July 1, June 1961 and of 1961 to No- are with which we concerned. It 22, 1961, paying spe- vember without was executed after It certified event. occupational imposed by cial tax Section presence defendants and 7203; throughout violation of Section lawyers pe their the critical (Counts V, respectively) IV and of fail- riod. It certified satisfaction with the ing register gamblers required as “procedure applied to the selection by Section 4412 in jury.” violation Section repudiated. It never 7272; (Counts VII; respec- VI and repudiated never could be in conscience. tively) failing pay special occu- simply quibbling It would be bad faith pational imposed by mentioning tax 4411 in avoid that at the time of this violation of Section The practice defend- report trial the was not to a voir ants were convicted all seven counts. goes dire without incident. The dissent say customary so far as to that “It is period The evidence discloses that for a present.” a court prior Cer time to November tainly agents all this was known to the defense of the Internal Bureau Revenue original lawyers, attorneys assigned Intelligence of record Division had appellants, solidly for these both of them public under surveillance a restaurant lo- grounded practice Pittsburgh the district Whitey’s. cated in known as agents pretend court who could not and have not suspect had reason to premises ed that the being “Statement” meant other than these were used as the gambling enterprise poses case, center for a numbers of this will we endeavor to investigations gave prob- point and their appears. them resolve the as hereinafter suspicions able cause to believe that unnecessary their Our determination renders it agents’ investigation pass legal were Sigal’s correct. on the stand- issue brought ing. light also the fact that certain premises, Street, known as 1808 Locust being .Sigal contends that evidence seized also were used in connection with improperly admitted because the gambling enterprise. On November agents Bureau of Internal Revenue 17, 1961, Special Agent Madden secured power had no to execute search warrants search warrants from a United States or arrest warrants. All the evidence Commissioner for the search of two dispute aspect on this of the case was ob- premises. Whitey’s The search of through the tained searches and seizures. accomplished November gathered persons Material from the of 1808 Locust Street on November 21. defendants, agents taken in- The search resulted the seizure of arrests, agree- not, by cidental to the slips gambling para- numbers phernalia and other parties, put ment of the in evidence in during course incriminating proceedings. these It follows that if the Whitey’s search at certain valid, searches the evidence here in damaging by and statements were made dispute was admissible and we need not one of the defendants which were over- and do not reach the issue as to whether by agents. heard the An arrest warrant agents power there was in the to arrest was issued the arrest of the defend- and search individual as an incident ant-appellant, Sigal, which was served (cid:127) to arrest. agents Intelligence Division Sigal’s Intelligence contention is that of Bureau of Internal Revenue. agents Division of of Bureau Internal power

Revenue no to execute a search times,- warrant at the as indicat critical ed, point in November 1961. is The The Power of Internal Revenue interpretation based on the of a series Agents Intelligence of Di- statutory changes pursuant of made to vision to Execute Search War- promulgation of the Internal Revenue rants and Arrest Warrants. Code of 1954 and its The amendments. Sigal’s provisions We will deal first with conten- of Section 3462 of the Revised affecting Sigal tions or Statutes, contentions in- explicitly authorizing searches dividually affecting appellant by agents and not revenue such as those whose any particular. in authority Rabinovitz We are questioned at case warrants, bar,1 concerned first with two search carried were forward into Section Whitey’s Code, one issued for search of to aid in the en the other for a 1808 Locust search of forcement of the National Prohibition only Act, However, Street. There was one arrest war- Stat. 222. rant issued provisions and that one was for the Code omitted referred to Sigal. Sigal general of arrest asserts there contends that the re

highly prejudicial pealer specifi in errors the issuance section of Code cally repealed authority and execution of the search warrants to execute alleges consequently the searches search warrants conferred Section and seizures were invalid under the 3602. He asserts next that absent such ques- specific statutory authority Fourth Amendment. There is a tion as to is no Sigal’s standing object power agents to to in Inter the Bureau validity seizures, searches nal Revenue to execute warrants. search authority but since the United States concedeshim further contends that the agents issue, pur- to this for the of such raise to a search war execute (7). 7851(a) 1. See Steele v. United 2. 26 69 L.Ed. 761 rant, specifically subsequent The reinstated statute fact there was 62,3 statutory specific further evidences the fact authorization does agents specific authority prohibit was deemed Con the conclusionthat the necessary. gress contention, authority Intelligence This to Division had says Sigal, prior is in execute turn buttressed search warrants even statutory specific fact that authorizations in 26 U.S.C. § authorization contained given particular federal offi 7608. said in United As court Murphy,7 7608 “was cers execute search warrants. Ad any way mittedly, specifically change not meant to limit there was statute or authorizing agents existing authority the Internal Reve the then of internal agents con- nue Bureau to execute warrants to make arrests or search revenue duct thereto.” searches an incident November Although made in the this statement was Every decision of a federal power inquiry context an into we issue has been raised which this agents arrest, what we such to make find has that such been able to held have agents power applicable equally said power to execute have the did “in- conduct a search. statute was grant of prior to the search warrants clarify authority tended inter- statutory authority in 1962.4 charged by nal revenue officers who are preliminarily that our de We state Secretary delegate $1058.00 cision in United States v. duty enforcing any the criminal involving Currency,5 these * * forfeiture controlling parties, since is not same language legis- pertinent contained ques expressly not reach did history authority lative in- that “The adjudication. presented tion here ternal officers make searches revenue the deci The States asserts United 6 and seizures without warrant cer- Joseph is bind v. United States sion recognized, tain is well circumstances presented, ing on court on the issue this agree. Joseph and it this section is intended that case In the but we cannot limiting any argued construed as such exist- be had been that there the defendant agent’s ing implied repeal authority.”9 of a revenue detract from' does not analysis. Clearly, authority warrant. a search statement to execute held that there was solely The quoted apply district to was intended agreed. repeal The con agents such and we those situations in which revenue however, bar, is at legally in the case tention evidence can search and seize by express repeal and not without to make a warrant10 order implication. For find the this reason we procure specific a authorization clear Joseph inapposite. any way decision did not in in- search warrants 7608(b). (3 3. 26 U.S.C. 5. E.2d 211 Oir. 323 193, Pasha, 4. 332 per F.Supp. (E.D.Pa.1959), aff’d 539 6. 174 (7 Cir.), denied, 85 S.Ct. 75 cert. curiam, 196 (3 Cir.), cert. E.2d de 278 504 Clancy, (1964); E. 276 States v. United nied, (1960). 823, 59 364 81 S.Ct. U.S. (7 1960), 629, 617, on other Cir. rev’d 2d 573, 1961), (3 va- 7. 290 E.2d 575 Cir. 645, 312, grounds, L. 81 5 U.S. S.Ct. 365 cated, 852, 402, L. U.S. 369 7 United Ed.2d Alioto v. 574 (1962). Ed.2d 840 48, (E.D.Wis. F.Supp. 216 52 Gannon, 1963); 201 F. Ad.News, United States v. U.S.Code, Cong. pp. & 8. 3 Supp. (D.Mass.1961); States 68 United Cong., (1958). 85tb 2nd Sess. Currency, States $1058.00 United Id., at 4605. (W.D.Pa.1962), E.Supp. 45 aff’d on 210 (3 grounds, See, e.g., E.2d 211 other Carroll 267 323 v. United 1963); Joseph, E. 174 45 69 L.Ed. 543 United States v. U.S. Supp. (E.D.Pa.1959), per (1925) (search moving curi aff’d of a vehicle with- den., am, Cir.), warrant); $1058.- F.2d 504 cert. out United States Currency, in. E.2d L.Ed.2d 52 U.S. United (contraband illegally 1963) agents as these include intent lative power search without validate in- be officers, especially it would since permitted such the law where warrant powers, their duties consistent with a course. power to exe- included U.S.C., 3105, Title 18 Section them. warrants, include not to cute search that, warrant provides “A search provisions of Did the by any the offi served in all cases be together, 41(c), au read 3105 and Rule by an in its direction cers mentioned Agent execute thorize Madden to such serve law to officer authorized warrant, If was authorized warrants? he search except person, no other but enforcing the laws to enforce or assist it, requiring officer of the aid being properly involved, warrants here then the acting execu present in its he serve him he could were directed to successfully con cannot be tion.” lawfully. clear them Intelligence think is We who was individual tended here agents au so Division execute the search warrant directed Secretary Treasury thorized. of the The ease the search do it did not so. power to enforce the and has the Agent Madden was directed to warrant laws,13 power tax and is and this The referred it. statute and he served Secretary’s delegable.14 power has to, however, au confers no substantive delegated properly to the Commis warrant, thority but was to execute Revenue,15 legally sioner of Internal enlarge law rule the common intended to re-delegated by agents latter must be directed that a search warrant Intelligence Division.16 person particular and executed to a authority person.12 The substantive Sigal attempts to rebut this conclusion Rules found in Federal by arguing by analogy requirement 41(c), Title Criminal Procedure. specific authority necessary to execute that, 18, provides “The shall warrant analogy, arrest warrants.17 This how United a civil directed to officer ever, persuasive.18 is not to enforce or assist authorized 41(c), relating of Rule rants, search war enforcing any person or to a law thereof only requirement in which the the President so authorized be “authorized to enforce officer United States.” Steele v. enforcing any or assist in law” of the 505, 417, 761 45 69 L.Ed. 267 U.S. may usefully compared United States (1935), inapposite In that case is here. rigid provisions with the more of Rule question presented was whether the 4(a) 4(c) dealing with an arrest Agent within was an officer Prohibition require warrant which the officer meaning statute, such an the agent of the since be authorized law “to execute it”. the United was not an officer of nothing pro- sense. is constitutional There in Rule 41 that legis- Supreme Court that it was the the held vides that officermust be authorized Fed.Reg. de- not be returned to the 15. seized need 17 4590 fendant) . Fed.Reg. (1956) 16. 21 10432 11. the last two No issue arises under See, e.g., Re, 17. United States v. Di 332 3105, Title clauses of Section 18 U.S.C. 581, 222, U.S. 68 S.Ct. 92 L.Ed. 210 353, (1948); Viale, 12. Leonard v. United 6 F.2d United States v. 312 (1 1925) ; Perry (2 1963), denied, 355 Cir. v. United 595 Cir. cert. 1926); 14 F.2d see United 88 199 Clancy, (1963); Festa, 276 E.2d 629 United States v. E. 192 1960), grounds, Supp. 160, (D.Mass.1960) (dictum). rev’d 365 on other 163 L.Ed.2d 574 U.S. 5 Compare Festa, 18. United States 192 Gannon, F. United States v. E.Supp. 160, (D.Mass.1960) (Wy Supp. (D.Mass.1961). zanski, J.) Gannon, with United States v. E.Supp. (D.Mass.1961) (Wyzanski, 13. § 26 U.S.C. 7801. ). J. § 14. 26 proof crime has been committed.21 that a warrant.19 a search execute law constitutionally permissible, how- pertinent It is ever, sections under clear Code,20 or instru- to search for the means Revenue Internal relating determining the commission of the mentalities supplies test a crime.22 Courts validity warrant. a search of service of long struggled problem of hold have Accordingly, we in the case at bar merely agents eviden- Intelligence an when the search Division that the object tiary one and when the Revenue the Bureau of Internal search the instrumentalities authority warrants concerned search to execute the Each 41(c) 3105. which crime was committed.23 and 18 U.S.C. under Rule analysis facts case must turn on an found fact that we have In view this, Mr. as a case such involved. legally were warrants search that, observation Justice Frankfurter’s any respecting issues the valid- executed journeys in the law “It is true also of ity the ad- or of of the arrest warrant you depends place on the reach seized, missibility al- material you taking. so, And where direction are arrest, legedly dis- as incidental depends comesout on a case on where one appear second See the from case. goes especially pertinent. one If, in.”24 is supra. heading, “I”, paragraph under this Sigal argues, only unlawful ac- as tivity tax, pay then is the failure II gambling para- it is difficult to see how phernalia instrumentality Paraphernalia is the Gambling an Was If, hand, Illegal crime. other unlaw- Instrumentality activity engaging ful in an un- Activity Gambling Therefore government business, lawful as the con- Subject Lawful Seizure? tends, slips then numbers and other argues if the even that legally executed, gambling clearly paraphernalia search warrants were activity means which the unlawful suppressed be still must be the evidence nonetheless, carried on. But as gambling parapher cause the search points out, gambling per se is not evidentiary purely an search nalia was illegal activity under federal law. could seized and therefore material constitutionally objects supporting link of search The crucial government’s again, are con contention 26 U.S.C. § Here we seizure. provides that, person Amendment. “No with the Fourth cerned valid, engaged carry any trade and seizure to be shall be in or order for a search solely pur subject imposed for the cannot be or business tax the search pose * * * securing (wagering) to be used evidence See, e.g., 19. It is true tile alternative Abel v. United (1960); 3105, 217, can a search warrant S.Ct. United 18 U.S.C.A. U.S. 80 683 Lefkowitz, 452, one law to v. 52 S. served authorized States 285 U.S. neeessai-y, 420, (1932); is in this Marron v. serve it. case, Ct. 76 L.Ed. 877 question States, 192, 74, to reach the of whether United 275 U.S. 48 S.Ot. (1927); this authorization be- 72 L.Ed. 231 Gouled must v. United States, 298, 261, 41 L. cause by service case was made 255 U.S. S.Ct. 65 (1921); Boy an officer Ed. 647 States mentioned the warrant’s United v. ette, denied, (4 Cir.), direction. 299 F.2d 92 cert. 844, 875, 369 U.S. 82 S.Ct. 7609(b), 20. 26 §§ (1962); States, 848 Takahashi v. United 298, States, 21. Gouled v. 255 (9 United U.S. 143 E.2d 118 Cir. 261, Boyd (1921); 41 S.Ct. 65 L.Ed. 647 Rabinowitz, 24. United States v. 339 U.S. States, 616, v. United 116 U.S. 6 S.Ct. 56, 69, 430, 436, 70 S.Ct. 94 L.Ed. 653 524, (1886). L.Ed. 29 746 (1950) (Frankfurter-, dissenting). J. 217, 238, 22. Abel v. United 362 U.S. 683, (1960); 80 S.Ct. 4 L.Ed.2d 668 Boyd 21, supra. v. United note

845 special paid there- mation of the Assistant United States tax he until has Attorney require occupational prejudicial Thus, payment was so for.” pointed precedent lawful trial. This court has often to the new tax is condition high duty wagering engagement and moral out the sponsibility re- ethical in the business attorney prosecuting that an Until that tax federal law. under the paid, litiga- law, illegal, for the United owes federal wagering. States it is engage of the United tion of cases on behalf in the business Sober, 281 States.26 In United v. States search, to validate the order 1960), 244, (3 in the con- F.2d curring opinion 251 Cir. subsequently con the fact that was “Cases it was stated: failing pay tax is irrele victed of brought on behalf vant. The time at the warrants dignity with a should be conducted In the affidavit were issued critical. worthy client.” While we cannot Agent signed by Madden obtain high say responsibility met was that this warrants, probable cause for be search hard-fought case, in this we think lieving occupational tax had not that the just prosecutor’s short remarks fell clearly paid he shown because was degree requiring impropriety of that personally checked affirmed that he had context, the a jury taken in new trial. When director and the records of district that the led to not be believe would wagering occupational found that arguing prosecutor facts Sigal. stamp There issued to had been had been admit- other than those which fore, follow and we the search was lawful during the course ted into evidence holding gambling para those cases litigation. cannot condone we While object phernalia proper of a search is the calling prosecutor’s witnesses defense warrant, occupational tax where liars, invited remarks these wagering paid.25 not been allegations counsel of the defense gambling in bad therefore, been instituted hold, case had that the We prosecuting course, instrumentality “the at- faith.27 Of torney paraphernalia succumbed to illegal activity should not have the search 28 kind, temptation” we legal. but to rebut in material was seizure resulted in find remarks cannot however, out, point an unfair trial. We Ill judge judgment the trial in our sternly both counsel should have rebuked Prosecutor. Summation in, persisted and, if the conduct defendants-appellants, upon imposed Si- them sanctions Both should have gone jury gal Rabinovitz, sum- room. contend that the after the curiam, per Shaffer, (E.D.Pa.1959), F. F.2d 689 278 291 aff’d 25. United States 915, denied, (3 Cir.), Cir.) denied, (7 S. S64 U.S. 82 cert. U.S. 2d 504 cert. 368 (1961); 823, 59, 192, L.Ed.2d 52 United 5 L.Ed.2d 130 81 S.Ct. Ct. 617, Clancy, 629-31 276 F.2d States v. 581, Kravitz, United grounds, (7 1960), on other rev’d Cir. denied, 1960), (3 364 U.S. cert. 587 941, 645, L.Ed.2d 574 81 S.Ct. 365 U.S. (1961); L.Ed.2d 372 Leahy (1961); F. v. United Sober, 281 F.2d United grant pet. 1959), for cert. 2d 487 Cir.), denied, 364 U.S. cert. ed, 4 L.Ed. L.Ed.2d dismissed, (1960), pet. for cert. 2d 1152 Tucker, (3 212 Cir. 267 F.2d States v. 1959). 465, 945, 459 364 U.S. P. 249 Merritt v. United States, 355 U.S. 27. v. See Lawn United 1957); (6 v. States United 2d 19 Cir. 339, 15, 311, 2 L. n. at 359-60 Currency, 210 $1058.00 in United States (1958). Ed.2d 321 (W.D.Pa.1962), P.Supp. aff’d on other 45 1963); grounds, (3 Sober, supra, F.2d 211 Cir. 281 323 F.2d 28. States v. United (concurring opinion). P.Supp. Joseph, at 251 539 174 United States v. 846 * * at each of the court attend IV session by shorthand and shall record verbatim Sufficiency of the Evidence pro- by (1) means: all mechanical Charge Court’s the ceedings open had in in criminal cases * * Sigal have and Rabinovitz Both court *.”31 sufficiency the of comprehend as to raised issues the nature of In order to the charge alleged necessary by the court’s evidence and error it is the I, jury ad ordinarily well as to the procedure as under Count to understand the against them. certain evidence mission of District followed States the United adequately questions covered These are of Penn- for the District Court Western opinion on the the the court below sylvania, of tried.32 In where this case was case, and we deem motion for a new trial29 ex- in criminal that court usual unnecessary it here. are jurors to discuss We prospective of is not amination a of evidence shows the view the courtroom but conducted customary and be open assignment of action sufficient concert It is room. defendants-appellants to sus present. reporter tween the not for to be a against judgments conviction tain the of 19 In accordance of the Rules with them.30 Court of the United District States Pennsylvania, of the Western District Trial,” “Examination of Jurors Before V jurors conduct- the examination of The Failure Record Voir rep- a the Court or ed Clerk of Jury. of Dire Examination pro- of rules resentative Clerk. questions asked that certain be vide stock to record failure contends though attorneys parties in accordance the voir dire examination request inquiries Act, Reporters’ additional 28 U.S.C. the Court

with judge must, course, (b) A on of rule 753, made.33 error. Subsection is reversible § inquiries. reporter these additional provides “shall of the Act Cong., Senate, 1st F.Supp. 78th United States 29. 216 306. Sess., 6-10, 37; 620”, pp. “Sen- on S. (3 Sams, F.2d States v. 340 1014 United 620, Report accompanying S. ate No. 553 filed, 1965), pet. for cert. 33 U.S.L.W. Cir. 24(a), Cong., Cf. Rule 78th FedJR.Crim.Proc., 1st Sess.” Minker, (3/1/65) ; v. States 3296 United As to 18 U.S.C. denied, (3 1962), cert. 312 F.2d 632 Cir. stage jury being impaneling 953, 952, 83 9 L.Ed.2d 978 presently can exist the trial doubt provisions Fed. of Rule view its 31. The one of conten- R.Crim.Proe., United as 18 U.S.C. argues tions district, In two other cases inapplicable Reporters’ are Court Act judges out, de have with some trial set at bar because under the circumstances procedures gree completeness, the fol “open selected was not jury. selecting See United lowed my argument opinion, court”. (D.C. Stirone, F.Supp. does merit consideration. serious 1963) Sams, 219 F. Congress was the obvious intention (D.C.1963). Supp. Stirone jurors voir dire examination of both the issues of the absence case Legislative His- recorded verbatim as the judge dire at voir tory Reporters’ plainly Act jurors prospective are at examination “Hearings See before Subcom- indicates. tempted raised under 28 Ju- No. 4 of the mittee Committee 2255. See Stirone Representatives, diciary of the House 1965), opinions in F.2d 3142”, Cong., Sess., H.R. 1st 78th concurrently those which are filed (subsequently amended, reintroduced and Compare in this ease. Haith v. United reported 3611), H.R. November 11, 12-19; pp. No. Serial provides: “During accompanying Report exami- 33. Rule “House No. jurors Clerk, Sess.”, trial, Cong., pp. nation before H.R. 1st 1- 78th representative Clerk, 3; “Hearings con" or the a Subcommittee before ducting Judiciary such shall state the the examination of Committee the and, further, certi of the court the a member met outset with at the areWe by Sigal his coun in a attested himself fied document not question or of whether “pro argu- assuming he with the counsel, that satisfied through sel was his or jury. selecting employed in the possible, the cedure” waived this be endo that Court, Barr, Deputy of 753(b) M. the Clerk that a G. requirement of Section signed respecting the ex- also certificate reporter voir dire the record court by jury procedure selecte the was question is which difficult amination. This by express IBut find waiver insuffi- d.35 record is the because determine Sigal provisions of operative or his counsel of the respect facts. to the cient in 753(b) respect present á in to the reporter or verbatim was a court Either by recording by present. If a shorthand or mechanical reporter not was court reporter present not a court of voir the but was means jury. docu recording dire examination of the the dire and did not record voir being signed by Sigal conduct- his while it was ment counsel, attested examination brought merely atten- ed, the that “I further this was states do unless agreeable Sigal Sigal’s counsel, certify it could I or that am satisfied and tion of scarcely Sigal the waived said that procedure applied be the selection 753(b). Sigal of Section jury.” 34, supra. note I think of the See appeal portion pitched ground his of the ambit of this certification reporter failed to by his coun and of its attestation he the voir dire examination record being probably sel should be construed as allege report- a court either that does judge’s no broader a consent to the than present present at the or was not er was during the of the absence examination examination. having jurors procedure and the right propounded jurors questions Sigal expressly waived the judge presence jury than in the assistant clerk rather selected have 34. The document reads (cid:127)judgment where after husband ed neys in the Court. family, selected porate employer put “STATEMENT each suit, deemed “(b) “I do “(a) “(e) “(f) “(c) “(d) “(g) AS TO you PLIED TO jurors jury of the and then the application Are isWhat each Do* parties? What Do Any appropriate, Who is proper.” stockholders hereby ? (wife), any of the trial you you THE you, parties case, I do the name other juror: member was selected OE JURY your know presence your waive know THE SELECTING hereby or and who OE PROCEDURE being question, and the any shall, criminal employer? following questions, present occupation? any occupation as follows : any SATISFACTION judge, state and member of member made, your family? they represent- inter nature of the residence proceeding his ^[*] shall parties? alia, to have AP- certify attor- (her) ^[*] open your your cor- * Meyer ney I whole of jury novitz —Nathan during assignment the Court selected counsel “Date: certify “Attest: The statement Louis “I M. John R. Gavin Cohen selection of the (Attorneys was selected. Barney hereby certify present jury. the whole procedure applied Louis Nathan Granoffi Meyer Sigal Abe Rabinovitz Jan, Carl Sehrello C. Glasso participated room of the I am satisfied and and that —Carl 21 —1963 “G. Cohen (Signatures Glasso —John Gavin —Bar- period open is as follows: GranofE and Deputy M. Barr period my Defendants)” Sehrello —Abe assignment jury. of time counsel of time that Clerk of Court” Court and to the selection defendant(s) Defendants) do during applied jury agreeable room present further (their) Rabi- indicated, upon contemplated by counsel, As the record as or phase complete. 24(a) Rules of Criminal of the case is far from the Federal stated, Holtzoff, A Criminal As I tell from it cannot whether Procedure. See Courts, reporter present Fed a West’s court was Case in the Federal and failed examination, Procedure record the voir dire or eral Rules of Criminal Orfield, reporter present. 18-19 whether was More- Criminal Code at Cases, over, the Federal Criminal record fails to Trial Jurors in show whether Sigal’s counsel, distinguished be noted should then as 29 F.R.D. Sigal expressed present attorney, him from his that counsel for was aware or also reporter self, did counsel for the other defend was unaware if a court as was jury upon present, ants, reporter pres- their and if court as satisfied with a was Sigal prior to counsels’ ent whether or not return to the courtroom or his counsel Sigal may pre reporter opening be knew that that statements.36 was not record- ing present required by time been at that the examination sumed Sec- as though expressly 753(b). reporter the record does not tion If a court was present reporter making show this. was not transcript, Sigal’s a or coun- issue as to The determination fact, sel was unaware of that as has been implied whether there was waiver an said, scarcely implied could be an repre- is more difficult. He was waiver of the of the statute. experienced sented member The relevant facts to enable this issue Pennsylvania, prac- Bar accustomed only be determined can be determined proceedings tice in criminal in the court Fay practice Noia, remand.37 As was con- stated below. in that court of 391, 439, ducting 822, 849, the voir dire examination jurors prospective open assign- L.Ed.2d a is “an waiver intentional relinquishment presence ment room without abandonment of a reporter privilege.” must, think, known court have been The same authority Sigal’s events, states: “At well known to counsel. As has all we wish clearly indicated, however, known understood that it is not the standard put pres- depends here whether or not court forth the considered * ** Sigal’s jury petitioner. choice ent on the occasion when A participated choice drawn. It is known that dire made voir counsel not petitioner examination was not recorded. does noi automatical- ly Sigal’s importance bar counsel made no ob- relief.” below to a de- jection any employed procedures availability complete fendant of a jury. Sigal appeal apparent does not record on selection of becomes where mandatory provisions assert that he or his counsel was coerced any way, Reporters’ conjunction or that he or counsel was Act are read subjected 52(b), kind of trick of subter- with Rule Fed.R.Crim.Proc. fuge drawing respect provide noticing plain the which for the jury. appellate may error. An itself “('Whereupon, P.M., Yes, your at 4:07 o’clock “Mr. Reicli: Honor. order.) Jury.” Court came to “The Court: Swear the “(All present.) counsel were procedure I conclude that would be “(The Jury seated.) proper under 28 U.S.C.A. 2100 which agree- “The Court: Are the defendants provides appellate may courts “re- Jury able that be sworn? quire proceedings such further your Yes, “Mr. Glasso: Honor. just under the circumstances.” “Mr. Gavin: Yes. Plattner, Cf. United States Yes, your “Mr. Cohen: Honor. 1964) (dictum); Brown government agreea- “The Court: The 314 F.2d 293 Jury ble that be sworn?

849 plain 1961). However, in order to notice and review prevent miscarriage error where a defendant is allege justice specific error, a even able of some though point Appeals raised been Court for the Fifth Circuit appeal. States, transcript United 370 U.S. Silber v. has held that lack of a 1287, (1962). prevents determining 717, 82 8 L.Ed.2d 798 from S.Ct. 52(b) clear, therefore, whether there been error and wheth protects incom- a from the er or not error defendant was harmless. Wash ington petence States, (5 of his counsel. inadvertence v. United 327 F.2d 793 provi- 1964); States, It would be Fowler 310 inconsistent with the Cir. v. United 52(b) 1962). (5 sions of Rule counsel to rule that F.2d 66 Cir. In Parrott v. by object States, (10 a failure to the absence United 314 F.2d 46 Cir. required by 753(b) argued procedure 1963), there the defendant right prejudicial client had waived this behalf his been error in the conduct by Sigal a considered dire which re without voir had not been choice gov reporter. himself. corded The impropriety, ernment argued but admitted Assuming there was no in this waiver that was harmless error. judgment case, must the conviction Appeals Court of for the Tenth Circuit reversed? asserts no reversed the conviction it was because ground prejudice respecting the voir full unable to determine without is, position dire examination. His bald- transcript whether the error was harm ly, Re- that the prejudicial. less or Cf. United v. porters’ mandatory Act are in order Taylor, (4 1962). F.2d 165 303 Cir. allow a defendant’s appellate and the new counsel supports opportunity tribunals an to ex- the defendant’s case position strongly most is Brown United amine the entire record in to de- order 1963) States, (9 314 F.2d 293 er- termine whether there has been Cir. allegation defendant’s sole ror in and if the conduct of the trial a error was to record sum- defendant is denied en- the failure this he is prosecutor. mation The court titled to a new trial. vigorous held, Judge despite dissent reporters Duniway, judgment Failures of court to record while proceedings parts reversed, various not be conviction would it would appeals in- before several courts of be vacated remanded in order creasing frequency despite judicial ad- opportunity to allow the court below the mandatory monition that the act is and reconstruct record determine complied prejudicial must be with. United See re- whether there had been (2 Plattner, prosecutor. Cir. F.2d 271 marks made however, is, concurring opinion, Judge The case Pope pointed at bar one impression first circuit. The plain out that if there had been error Appeals summation, objected Court of for the Fifth Circuit whether Reporters’ might not, has examined the Court Act have to abe reversal. Judge concluded, Pope however, times and it is well several settled circuit that failure of a court trial defendant could be assured a fair proceedings verbatim to record is not I do the record. reconstruction se,38 per although position position error not know what that Court would crystal Stephens thought impossi- not made clear in it been have taken had States, (5 F.2d 308 Cir. case to ble the cited reconstruct (1964); 38. Burns v. United F.2d 269 L.Ed.2d 605 (5 1963), denied, cert. 376 U.S. Strauss v. United 311 F.2d 926 denied, Cir.), L.Ed.2d 606 cert. 373 U.S. v. United Addison 10 L.Ed.2d 412 1963), denied, cert. great bar, I think re- create a distinction be- at would too In the case record. indigent appeal impossibility. non- tween the and the an is construction indigent appeal in which the defendant cases, the current view on these Based transcript paying can obtain the cannot be a conviction that to be seems it. alleged has the defendant unless reversed repre- the counsel prejudicial in the conduct the case at bar error some senting Sigal appeal proceedings. is incon- on is a different This view the reasoning attorney the he the on which than who tried case with the sistent However, in a non- Supreme in its recent deci- court below. the indigent Court rested appear appeal, Hardy it would sion in nothing the circumstances at bar Otherwise, indigent a Hardy, should turn on this fact. defendant’s at- advantage get transcript torney requested at defendant a could the the entire provisions government failure the expense to deter- to conform with in order changing 753(b) merely by any plain had been mine whether attorneys. gov- The This not a the would constitute trial of error the cause. ground he en- sound for distinction. had contended that ernment only portions tran- those of the titled Hardy upon The foundation which alleged error. script related op rests is counsel should have the that had not the counsel he was Since portunity transcript to read the entire majority matter, the tried possible plain error. order to detect entitled to held that he was (cid:127)Court error, plain In order to able to detect be Douglas, transcript. Justice entire Mr. representing it is crucial that the counsel stated, Court, speaking “But transcript. appellant Obvi here, represents when, as new counsel objec ously, if did not raise an counsel indigent appeal, on how can he faith- trial, possible tion not at the error is discharge obligation fully which the impressed only in his mind and rec n placed he can on him unless has ord will reveal it. The duty transcript? entire His read the designed Reporters’ Court Act “are discharged possibly if he is not be preserve a and authentic record correct The .allowed less than that. proceedings of criminal free from the illusory ‘plain is notice errors defects’ they pro infirmities of human error transcript if no is available at least safeguard only vide to which not a n one lawyer appeal on enters whose court but also the defendant entitled n caseafter the trial At least ended.” rights.” preservation Unit Court, however, four members of the Taylor, ed 303 F.2d transcript be felt that the entire must a the aid of Without regardless of whether (cid:127)made available allege only transcript, can those counsel appeal on the same not the counsel he errors that he remembers or thinks majority of .as at the trial. counsel having remembers as occurred. When position Court did not disavow the complied with, the Act is counsel is not concurring merely Justices, de- but rely memory. on his forced to Nor would more narrow cided the case this court be forced affirm or reverse .ground. concurring separate opin- memory conviction on the counsel. ion of Mr. Justice seemed to indi- Clark appellate practice It is a cardinal rule of problem (cid:127)cate be to him would that the facts found in rec are those appeal .solved if counsel on was the same ord and not those found in the minds as counsel at the trial. attorneys. think that accord 52(b), Supreme ance It is clear that the re- with Rule when federal Court conviction, lied court is to affirm a fact asked mandate n Court duty complied Reporters’ has the not to affirm unless it can Act would be Hardy reading ascertain from fair (cid:127)with and that other result in jus- miscarriage gross that no record Sr., MERTENS, individually T. Frederic does so. It cannot will occur if it tice and as Administrator of the Estate of has whether there known in this case Mertens, deceased, Frederic Thorn Congress prejudicial been such error. Margaret lants-Appellees, Mertens, Plaintiffs-Appel S. Reporters’ provided, Act if complied with, a court need guess. LINE, INC., The FLYING TIGER Defendant-Appellee-Appellant. Rabinovitz has The defendant No. Docket 28690. ground for this issue reversal. raised However, as a jointly he indicted Appeals Sigal. aspect of On this Second Circuit. convicted possible perceive dis- case I no can Argued 27, 1964. Oct. between either defendant. tinction Decided Feb. 52(b) Therefore, Rabinovitz being in should be as the same treated position appeal as aspect of Sigal. judgments conviction should vacated and the should remand- cause supplement ed to the district court record, supra, note in order to deter-

mine whether or not effec- de- tive waiver either both of the event, if it is deter- fendants. waiver, mined that there was effective

the court below should be directed

reverse the and to order a convictions trial.

new the event that the court waiver, below found a it should be valid judgments directed reinstate

conviction. In the future of 28 753(b) strictly ad- should be

U.S.C. appreciate I hered to. the fact that

court below as well other district heavy courts this circuit bear a burden litigation, pending but I con- cannot clude that this as a can serve sound basis disregarding imposed the mandate United States district courts 753(b), Title 28 reiterate legislative history the statute Reporters’ makes clear that the Court protection

Act was enacted for parties and of end the court justice having be served adequate

available an record of what transpired pro- in a criminal other ceeding.39 legislative history 31, supra. See set in note out

Case Details

Case Name: United States v. Meger Sigal, United States of America v. Abe Rabinovitz

Court Name: Court of Appeals for the Third Circuit

Date Published: Mar 9, 1965

Citation: 341 F.2d 837

Docket Number: 14476_1

Court Abbreviation: 3rd Cir.