United States v. Zvonko Busic, Julienne Busic, Petar Matanic, Frane Pesut

imрroperly also ex- contends LUMBARD, Before FEINBERG and cluded the of a proffered testimony psychia- TIMBERS, Judges. Circuit incapable trist that he was forming requisite intent commit offenses LUMBARD, Judge: Circuit charged. Busic asserts cer- Julienne Busic, Busic, Zvonko Julienne Petar Ma- flight bag tain items in found her should tanic and Frane appeal judg- Pesut from not have been be- admitted into evidence ments of and conviction sentences under the they an cause were obtained unlawful Antihijacking Act of 49 U.S.C. appellants All argue search. that the dis- 1472(i), following a § five-and-one-half trict court in committed reversible error week jury trial in the Eastern District of refusing instruct on offense appellants New York. All were convicted flight of interference with crew or members of aircraft piracy and conspiracy to commit flight attendants aas lesser-included of- aircraft piracy in their takeover of T.W.A. Busic, of piracy. fense aircraft Julienne Flight 355 en route from Airport LaGuardia allege Matanic and Pesut all that each was to Chicago on September 1976. Zvonko right impartial denied the to a fair and Busic and Julienne Busic were also convict- by the improper remarks and behavior of of ed piracy offense aircraft result- prosecution. both trial court and the ing in the person,1 death of a another New A majority of finds that each York the court City Police Officer killed while at- According- claim of merit. error without tempting to explosive defuse an device ly, all the affirmed. convictions are placed Zvonko a Busic had in locker at Grand Central Station. The Evidence On July the trial court 1977 sentenced September On Friday evening, thirty years’ and Pesut each to Flight 355 took off Trans World Airlines

imprisonment piracy on the aircraft count Airport Chicago. for On and LaGuardia yeаrs’ to a concurrent term of five Boeing board the imprisonment 727 aircraft were seven on conspiracy count. On crew July 21, passengers, including and 85 members Zvonko Busic and Julienne Busic, Busic were each Zvonko Busic and sentenced to the who were mandato- ry travelling imprisonment minimum term of as life husband wife under names, Vlasic, aircraft piracy resulting in sumed Marc Ma the death of Petar another person Pesut, and to a tanic and Frane separately concurrent term of who were years’ five imprisonment the conspiracy travelling seated on the aircraft and also count. The designated court also that Juli- under names. All assumed five had board enne Busic be eligible parole ed pursuant agreement after serv- aircraft ing eight years sentence, of her years two and instructions masterminded Zvonko 1. The thirty years’ found Petar district court sentenced Vlasic Matanic and Frane Pe- guilty sut piracy imprisonment offense aircraft specified, pursuant resulting person. in the death of another 4205(b)(2), immediately § U.S.C. that he be eligible parole for release on discretion trial, defendant, Vlasic, 2. Prior to a fifth Marc the United States Parole Commission. pled guilty piracy. to aircraft In accordance government’s recommendation, with the Carey Montreal, Captain first headed for plane ticket had received a Each Busic. having convinced Zvonko Busic that a re- Bu of leaflets from Zvonko package and a necessary fueling stop Boeing for the sic, departure-time instructions along with flight. a transoceanic En complete a,nd air congregate at the not to directions route, captain informed Zvonko Busic port. plane, hijackers on the one of that six were take-off, Zvonko Busic Shortly after unidentified. Hе whom remain ex- would Van Dorn flight Tom attendant handed plained purpose of the hijacking captain to the envelope to deliver sealed when authorities would become clear lavatory. to the Inside proceeded and then accompanying the bomb received the note Carey the en- opened cockpit, Captain upon receipt in the locker subway following note: and read velope indicating word prearranged code “One, airplane hijacked. this hijackers demands the fulfillment of their “Two, gel- are of five possession we in Europe. Zvonko Busic would surrender in bombs, up which are set ignite four of Captain Carey also told other hi- giving them the same kind pans iron cast jackers explaining were then their mission giant grenade. as a force passengers attempting to calm “Three, addition, we have left the them with assurances that no harm request, Carey’s locker across intended. At Zvonko Busic type same of bomb hijacking allowed him to announce the over Hotel on 42nd from the Commodore public system. the take address Street. To find the locker the sub- Bowery Savings way entrance the copies out of then handed Busic through the token passing Bank. After inviting the them passengers, leaflets to the belonging are three windows booth there propa- questions read and ask about the to the bank. To the left of these win- ganda any and help them with offering number of the dows are the lockers. The special The leaflets they might have. needs locker is 5713. Croatia, a sought support to enlist free “Four, further are con- Throughout instructions independent Yugoslavia. in letter ordeal, tained inside this locker. The their Julienne Busic conversed free- pressing can be activated ly passengers. bomb with the Julienne Busic la- to which it is attached but the switch ter would be re- passengers decided which suggested. stopover caution is at second in leased the aircraft’s Newfoundland. “Five, appropriate authorities plane be notified from the immedi- should his seat when Petar rose from Matanic ately. emerged cockpit Zvonko Busic shortly Captain Carey’s announce- “Six, ultimately after plane will be head- London, dynamite vest, in his England.” ment. Decked out in ing the direction gas a tear handed Matanic Zvonko Busic immediately Captain radioed the note Carey up at the gun him to stand and ordered at J.F.K. Internation- T.W.A. authorities section, apparently passenger front then dialed the Airport al in New York and Matanic, a to keep watch over the cabin. skyjack air traffic control ra- code for the three-inch, built, powerfully six-foot Meanwhile, Zvonko dar location center. Later he pound man, told. did as he was wearing cockpit an had entered the Busic the aisle and acted as up down walked and dyna- three sticks of apparatus resembling Busic, Like Julienne lavatory monitor. with tape, electrical together by mite held passengers talked with sticks, circling protruding from wires ordeal, explaining further their throughout battery leading down to a his neck and some hijacking and purpose of the Busic, toggle switch. Zvonko electrical it. preceded planning finger on the holding the with his switch just ostensibly another lever, Captain Carey to take the Frane Pesut was ordered Cap- the aircraft when passenger board airplane Europe. toward his “Here are the tain announcement. Short demands which Carey made must be Montreal, ly aircraft reached before the met, one, immediately both of these texts an order from Zvonko Bu Vlasic delivered appear entirety in must tomor- in the sic to that Pesut take a seat Pesut morning’s following row edition Vlasic then entered rear of the aircraft. Times, newspapers: all three New York pot, returned with a which lavatory and editions; Times; Chicago Angeles Los Shortly lap. to hold ordered Pesut Tribune; Tribune; Herald International thereafter, Busic Pesut that Zvonko told Washington Post. was a bomb and that he pot the covered “Two, at least one third of each text Pesut must remain seated hold it. did printed be page must on the first trip. the entire so for almost Pesut twice cockpit Captain Carey sat in with first section. The remainder in the first Additionally, about when a an hour. section. jet alongside military appeared French “Three, through prearranged code hijacked Paris, got up over aircraft Pesut we word shall hear if these demands have shades at seats drew window other met by been tomorrow deadline. If [sic] passengers to the same. shouted to the do met, they have not a second been timed Throughout flight Europe, Zvonko explosive device is likewise in a Captain Carey Busic that the air- reminded highly busy be location shall activated. up if any craft blown time could be In printed the event are these texts demands were met. He warned the per instructions, will be deac- this device thirty passengers released at Newfoundland tivated. that if they failed distribute leaflets as “Four, hangs remaining passengers’ many people ordered fate fate spent would be consciences. He on their attempts any the balance if whatsoev- cockpit sitting most of the time in the er are made to our circumvent instruc- toggle Captain electric switch in hand. Fighters tions. for Free Croatia.” Carey did convince him that the must plane The Bomb Squad officers removеd the Montreal, take refueling stops in where he pot from the locker carefully and examined dropping dissuaded Zvonko Busic from leaf- it precision with several instruments. The aircraft, Newfoundland, lets out of the in pot subsequently transported in a bomb where in getting he succeeded Zvonko Busic city’s the police truck to pistol range in the thirty passengers, finally release the and Iceland, in persuaded Zvonko placed where Bu- Bronx and in pit the bomb there. sic escorting to transfer the leaflets to an Knowing nothing pot’s contents, about the Boeing safely drop 707 aircraft could yet fully ninety-two aware that the lives of them over London and Paris as Zvonko people might hinge on the information ob- Busic Without for demanded. relief some by rendering tainable harmless and then seventeen and pilot hours forced to across (“the analyzing mysterious device same an designed Atlantic aircraft and aircraft, type on the of bomb” as those travel, equipped Captain only for domestic note), according hijack explosives to the Carey safely nevertheless the air- landed specialists attempt risky a decided to dis- craft in Paris. mantling operation safe, rather than a but Meanwhile, hijack responding to the note uninformative, intentional detonation of the transmitted, Captain Carey had mem- device. The special officers attached a au- bers of City Depart- the New York Police cutting wires, tomatic device to two ment Squad subway Bomb located locker retreated from pit appropriate for an 5713. The light locker contained a blue interval, and then inspect returned to envelope and a cast iron pot stew with two As officers, results. the two supervising out running wires from pot’s under the lid Sergeant McTigue Terrеnce G. and Officer taped and to the outside. Inside the blue Murray, Brian envelope squatted were two around the propaganda device texts and typewritten following examination, demand note: for a expío- the visual violent knowledge with some occurred, Murray almost Croatian translat- killing Officer sion injuring warnings and seriously Sergeant ed the then took Pesut’s instantly and statement, put which was also in evidence Zvonko Busic admitted McTigue. At trial Busic, Lastly, subway government. lock- Julienne the bomb in having placed intelligent, college-educated person and proved Julienne government er. The teacher, responded warnings to the found on the de- former fingerprints were Busic’s accompa- by indicating rights that she understood her note, as on the two mand as well and to await the advice of counsel. texts. wished nying propaganda Approxi- gave Thus a she never statement. Paris, Zvonko landed After the aircraft later, however, during mately one hour they need Captain Carey that Busic told nap, which time she took Julienne a brief reception prearranged await Busic emerged processing room from twelve nerve- word. There followed code a search her to consent to was asked Carey passengers and his hours racking lying nearby on a luggage, which was desk. re- passed no code word was as time signed then read Julienne Busic were twice herded passengers ceived. The provided, her special form consent the cabin while together in the center luggage per- for some through looked her kill threatened to and Vlasic Zvonko Busic government At belongings. sonal finally decided that them. It was articles later found Juli- introduced three attempt the aircraft and should leave Busic flight bag: two-page photo- enne Busic’s a in the Unit- information sources to contact diagram copy containing Boeing propagan- ed to confirm that two States library and two cards that led to a volume published as demanded. da texts had been Library the New York Public telephoned later Julienne Busic Two hours reproduced. been photocopy had on told him Zvonko Busic the aircraft and government also showed that Julienne Bu- met. After a the demands been fingerprints sic’s were found on all three hours, delay of several the defend- further articles as well as the volume’s index Sunday, Sep- finally ants surrendered on page referring diagram. time, tember at 8:30 A.M. Paris some Cap- began. the seizure thirty hours after All at trial. defendants testified Zvonko Busic, Vlasic, Carey tain escorted Zvonko role as the mas- freely Busic admitted his authorities, to French Matanic and Pesut termind take full blame attempted holding Julienne Busic. already who were operation. hijacking He the entire defense, posed psychological maintaining day, French Later that same authorities jet incapable forming requi- he was military in a French people flew five charged. site intent to commit the offenses Airport International where custo- J.F.K. in- that she never dy agents of the F.B.I. Busic testified was transferred transfer, in hijacking the French the but Immediately participate after this tended along turned the defendants’ went her she authorities also over with husband because luggage, pregnant which had been taken from the was thought she and feared she transported pirated again. aircraft and to New would never see him separate in a area of the French mili- York Pesut each testified he had been invit- jet. tary accompany Chicago ed Busic to Zvonko meeting political they for a secret where Following оffices in New arrival F.B.I. were to deliver the leaflets. Once on City procedures, booking York and routine plane, purportedly Zvonko Busic forced suspects fully each of the advised of his cooperate them of on threat death to in rights or her and asked if he constitutional hijacking. or she would to make a statement. like to do Both Zvonko Busic Matanic chose Piracy- Jurisdiction Over Aircraft so, later used at and their statements were in of Police Resulting the Death Pesut, case. who government’s trial in the York Murray Officer in New response warnings explained in well, very English Busic and Julienne Busic ar did not understand Zvonko refusing agent gue An F.B.I. erred in differently. was handled that the district court 20 ed). jurisdiction Healy, of Cf. United v. 376 for lack first States U.S. dismiss indictment, 83-85, charging 75, 553,

count them of 84 527 S.Ct. 11 L.Ed.2d piracy “which offense resulted (1964) aircraft (general scope purpose of City in of York Police Offi- the death New 1472(i)). Third, construing cases analo § Murray” cer in violation 49 U.S.C. Brian gous support further to our statutes lend They 1472(i)(l)(B).3 plain submit that § death which results conclusion that statute, legislative its histo- language of the from need not have oc piracy the aircraft statutory ry, longstanding rules of con- special curred area of federal within being prosecuted their struction foreclose jurisdiction underlying encompassing the occurring a homicide not within Pietras, Cf. v. 501 offense. United States jurisdiction of “special aircraft the United denied, 182, Cir.), 419 (8th F.2d 186-87 cert. States,” in as that term is defined 49 U.S.C. 660, 668 U.S. 42 L.Ed.2d 1301(34) 1472(i)(3). The district §§ (1974) oc (aggravating factor assault ruled “under 49 U.S.C. underlying during flight curred from the 1472(i)(l)(B), only where the element of § robbery); offense of armed bank Leonard clearly the offense which must be within States, (5th v. United 500 F.2d Cir. jurisdiction the special aircraft of the Unit- 1974) (rape consummated off federal land ed is the piracy, States aircraft the death there); after abduсtion United States resulting place therefrom need also take (3d Bamberger, 1972), 460 F.2d 1277 Cir. agree. therein.” We denied, cert. 413 U.S. 93 S.Ct. First, clearly the statute itself in (1973) (shooting during flight L.Ed.2d 1041 dicates while the offense of aircraft robbery).4 Accordingly, bank piracy can be within the committed death of proximately Murray Officer special jurisdiction aircraft of the United imple caused the defendants’ efforts to States, any person death another hijacking ment was in our scheme —wher ever it occurs —that results from its com give view district court sufficient aggravated may mission constitute the of jurisdiction try the defendants for that fense in piracy resulting of aircraft death.5 Second, Congress’ death person. of another provide scope intention to a broad for the Psychiatric Zvonko Busic’s Proffered prosecution pirates equal suspected air is Testimony Thus, ly reporting “[bjroad, in clear. Zvonko Busic contends that the district stringent legislation” proposed, the House court improperly psychiatric excluded testi- “[wjhile Committee commented that mony incapable forming that he was legislation intended to be as broad its requisite otherwise, intent to commit coverage, geographic and as its offenses plain indicates, meaning charged because he did he did it not intended what out of and, course, “psychological necessity, it cannot —extend be not free choice.” [to]— yond 12.2(b), Fed.R.Crim.P., may imposed such limitations as be by Pursuant Rule Cong. Constitution.” testimony U.S.Code & Zvonko Busic offered the of Dr. pp. (emphasis Diamond, Admin.News add- an expert Bernard L. in law and already purpose placing 5. The behind This Court has held that live bomb “proper subway impress upon Eastern Air District was under was locker Act, Piracy deadly hijackers’ with the relevant [in authorities seriousness accord] Busic, pоlicy.” ability carry constitutional States United v. and to demonstrate 252, (2d 1977). through instantly by 549 F.2d 253 Cir. their threats on identical aircraft, hijacked devices located board though proved sovereign even to be long devices later these It has that a been established Captain Carey jurisdiction prosecute of dummies. testified one has an where offense part Zvonko Busic’s central concerns was whether of a that offense has been committed the authorities followed instructions its within boundaries. See Ford v. United subway hijack placed States, 593, 619-24, 531, note and those 273 U.S. 47 71 S.Ct. (1927). locker. L.Ed. 793

21 30, (footnote 471 F.2d at 998 testify D.C. omit prepared psychiatry, who that: raise the defense banc). charged 2(a), Fed.R.Crim.P., here. ativing in United States v. support Zvonko Busic purpose that he 1, 30-34, 471 F.2d The district dence United States he “Zvanko [sic] mental cy, quality abnormal defendant reasonable the crimes of which lacked the will, Hence, psychological disease, In tent. any mental state was (2d “ “I too is offering this ^[*] intent homicide, . sense defendant was not admissible am of the choice the mental element alleged Cir. But Brawner has was not specified. offenses . much. I conclude that Zvanko [sic ] state on . illness or defect. insanity It is also 1966). of those terms. ^[*] mental state court concluded that .He required capacity and rational sought v. degree and decision that constitute to have committed necessity, Brawner, Busic was of a mental condition opinion offering insane or Counsel September under Rule ^[*] exercising the We Rather, defense did what he Freeman, 357 F.2d and this testimony, not caused my opinion that other criminal for agree. prove 998-1002 ^[*] the definitions such criminal not free explicitly it he powers of free- required was of such for- in an abnormal under Rule court’s decision mentally ill in no prevented 10,1976 when I this abnormal bоth too little U.S.App.D.C. testimony to offered do not counsel 12.2(b) and ^[*] application by mental did out of (1972) (en ordinary, air ‍‌‌‌​​‌‌​‌‌‌‌‌‌​‌​‌​​‌​​‌​​‌​​​‌​‌​​​​​‌​‌​​‌​‌‌​‍charged. the evi- choice.” narrow stated Busic pira- ^[*] acts. it to neg- find 606, this 12.- for in- of 420 U.S. intent. cious and ted). ever, intent, lation of (8th Cir.) (en banc) (1975) United attendants ence known murder 240, “wrongful Here, 1968), prove any created ute. returns (1976) (per (intent olation 60 Cir. Lee, F.2d quired. dangerous weapon on board ation of law when scribed Of sette v. United 1018, ed nio, States 1977) (voluntary United United States v. offense (7th States course 429 U.S. 96 L.Ed. 539 F.2d 1975) (construing serious 1068, 21 L.Ed.2d requires These words ; 96 The offense no such additional cert. v. legal duty Cir. not a to conceal not an essential element States, requires conduct “special” of a known requires See See 909, Winston, S.Ct. Railway 1086 v. intent” flight an 1971). curiam) (wilfully premeditated denied, as a criminal e. carrying United States Meeker, 606, 10, 97 Congress’ a 95 S.Ct. 288 showing intent States, States g., 454, showing (7th and intentional ais intent Flum, willful, required crew members or 608 voluntary, intentional vi (1952). 558 F.2d merely connote the See United States v. of aircraft language into the stat general 393 U.S. F.2d Labor something more 46 L.Ed.2d 390 Cir. cert. necessary (6th offense. See a concealed legal v. 527 342 U.S. (1969) also United States offense 829, of arises 518 F.2d of Bohle, 445 F.2d 1974), insertion 730, perform 22, requirement deliberate, denied, Cir. F.2d specific But the specific general 105, 109 Act); 42 L.Ed.2d 839 intent duty); v. falsifying tax 50 L.Ed.2d 12 (first 736 only by oper an piracy, criminal vio 1976); 246, 72 S.Ct. cert. Greene, of violation of 12, element 39, deadly aircraft). 423 (9th interfer Kane criminal criminal 89 S.Ct. need to Pompo (2d intent). 14 crime); denied, degree United Moris (1975) 41-44 flight Unit mali how gen U.S. pro (9th Cir. Cir. 497 54, re or v. v. required for the culpability eral mental availability a Brawner Unit any serious crime. See commission upon whether the of turns type defense Howard, ed 506 F.2d States pre question fense in “like deliberated (2d 1974). Cir. specific in murder[,] requires a meditated found, by and we merely tent that cannоt be satisfied The trial court requisite agree, Busic had this failed to conform Zvonko showing that defendant disputed It is not U.S.App. general 153 criminal intent. objective to an standard.” 22 hijack court probable

that Zvonko Busic intended there was cause to Moreover, plane. Zvonko Busic admitted explosives, search for we find no error against the hijacking that he knew was law. first, evidence, the admission of the because general recently We have described this agree government we with the that Juli- criminal intent as defendants’ “conscious enne Busic executed a valid consent to ness, they intention and awareness what second, luggage, search of her we because Winston, v. doing.” were United States find that Julienne Busic legiti- retained no supra. psychiatric Whatever the merits of expectation of privacy bag mate her testimony where the defendant raises an pro- which the Fourth Amendment should insanity defense, where he has raised no tect, third, because the Fourth Amend- defense, here, such questions of intent ment and its rule exclusionary do not reach motivation are for the and not for the law foreign enforcement activities of expert witnesses. do recognize We country. acting authorities their own experts in psychiatry law and are so much qualified jurors better We the district court’s rul pass than find upon the question ing voluntarily of a Busic did not defendant’s Julienne intention to bag clearly act commit consent to the search of her piracy that the court totality must view of “the testimony. short, receive their erroneous in In Watson, circumstances.” v. proferred whatever United States “psychological ne 411, 424, 820, 423 96 U.S. S.Ct. 46 L.Ed.2d cessity” testimony show, was meant to (1976); Bustamonte, 598 Schneckloth v. 412 properly district court excluded it. 227, 218, 2041, 93 854 U.S. S.Ct. 36 L.Ed.2d Flight Bag Julienne Busic’s Mariani, (1973); 539 F.2d United States v. Juliеnne Busic asserts that the three 915, (2d 1976). 922-23 Cir. Julienne Busic flight bag items found in her and their intelligent was the most educated and all evidentiary fruits were obtained un- Despite the suspects. weariness, her she lawful search of bag and should have chose to remain silent after the Miranda been suppressed. When Julienne Busic left warnings were read to her. And it was plane in Paris to ascertain whether the right after this assertion her remain hijackers’ met, she demands had been left silent, after time she was when able flight behind a bag which was taken from to sleep briefly, that she consented to the the plane French authorities and Moreover, bag.6 search of her her consent subsequently turned over to the F.B.I. at given any inherently was in the absence J.F.K. Airport. securing After her written intelligent pressure upon ap coercive consent, agents federal searched the praisal right of her to refuse such consent. bag and found the items later introduced at In this Busic’s consent light, Julienne against her. surely free “essentially her own and uncon granted The district initially Juli- choice,” Watson, strained v. United States enne pretrial suppression Busic’s motion on supra, 424, 820, quoting 423 at 96 U.S. S.Ct. ground that her consent the search Bustamonte, supra, from Schneckloth v. 412 involuntary in light of her tired condi- 225, U.S. 93 2041. United S.Ct. See Upon tion. government’s motion for Lemon, 467, States v. (9th 550 F.2d 471 — 73 reargument and presentation of further 1977); Tortorello, Cir. United States v. 533 evidence, the court ruling, reversed its hold- 809, (2d Cir.), denied, F.2d 814 — 15 cert. ing probable cause to search the bag 894, 254, (1976). U.S. 97 S.Ct. 50 L.Ed.2d 177 dangerous explosives existed and that justified. search was Furthermore, therefore Al- Julienne Busic had though we agree cannot expectation with the district no privacy which our law validly (1975), Busic could consent L.Ed.2d with United receiving Lemon, (9th search even after her Miranda warn- States v. 550 F.2d 471-73 Cir. ings exercising 1977), right Faruolo, her to remain silent. and United States v. 506 F.2d Compare Michigan Mosley, (2d 1974). 423 U.S. Cir.

23 448, DeBerry, v. 487 F.2d Supreme has Cf. United States recognize. The Court should 1973) (reassertion (2d of control us that the Fourth 450-51 Cir. recently reminded lawfully); bag previously over seized Elkins “protects people from unrea Amendment States, 1437, 206, into their le v. United 364 80 S.Ct. government intrusions U.S. sonable (1960) (silver platter privacy.” of United 4 L.Ed.2d 1669 doc- gitimate expectations 1, Chadwick, abolished).7 97 S.Ct. trine v. 433 U.S. States 2476, 2481, (1977). 538 53 L.Ed.2d on a Lesser-included Offense Instruction legitimate expectation pri of

Busic had no place bag she left it in a vacy in her when the dis appellants All claim illegally and her associates she request denying erred in trict court Cole, v. 416 F.2d seized. See United States Fed.R.Crim.P., 31(c), to pursuant to Rule denied, (6th 1969), cert. 397 827 U.S. Cir. of interfer jury on the offense instruct 1272, (1970); 1027, 25 L.Ed.2d 537 90 S.Ct. flight or flight crew members ence with Parizo, (2d 52 v. 514 F.2d Cir. United States offense of a lesser-included attendants States, 1975). 362 U.S. Cf. Jones v. United 1472(j) 49 piracy. Title U.S.C. § aircraft 725, 734, 257, 267, 4 L.Ed.2d 697 80 S.Ct. performance with the prohibits interference (1960) (“wrongful presence” cannot estab flight flight member or attend any of crew privacy to standing lish “invoke assault, intimidation, or threats. ant Indeed, searched”). it is premises difficult jury argues that could Zvonko Busic less reasona imagine to a situation where a accepted psychological defense and have legitimate expectation priva less ble and guilty simple him interference be found might hijacker than where a aban cy exist “wrongful intent.” require cause it does not luggage hijacked airplane. in a dons apparently The other assert that appellants accepted their defenses have could Finally, the Fourth Amendment hijack plane they intended to never apply rule do not exclusionary its they have found that but nonetheless could foreign law enforcement activities of au personnel оnce on flight interfered acting country. thorities in their own See the re The district denied board. Ohio, 643, 1684, 367 6 Mapp v. U.S. 81 S.Ct. quests ground on the that interference with (1961). ex L.Ed.2d 1081 Cf. United States flight personnel a different offense and (2d Cir.), Lujan 510 F.2d 62 Gengler, rel. v. offense included in aircraft a lesser denied, cert. 421 95 44 U.S. S.Ct. hold that the court’s refusal piracy. We (1975) (federal L.Ed.2d 668 officials’ con charge correct. On give requested States); duct outside United United States presented, it would have been the evidence Toscanino, (2d Cir.), 500 F.2d reh. en v. 267 acquit any of for the unreasonable (2 1974). denied, It banc 504 F.2d 1380 Cir. yet piracy of aircraft defendants undisputed flight that Julienne Busic’s flight of interference with convict them bag was seized and confiscated French personnel. authorities, gave the forfeited who in turn Court, agents According property Supreme of the United States at “[i]n Airport J.F.K. when the transfer case of the elements suspects’ where some crime custody formally effectuated. As constitute less charged themselves crime, defendant, there is no basis for Julienne Busic’s claim er if evidence justifie[s] that the action of the French authorities in entitled it [is] seizing bag permit finding her constitutional violated instruction which would challenge guilt Sansone v. rights, she cannot the action of of the lesser offense.” 343, 349, turning States, 85 bag 380 the French authorities United U.S. McDowell, 1004, 1009, (1965), quoting over to F.B.I. Burdeau L.Ed.2d 131, 134, States, (1921); v. United 351 U.S. L.Ed. 1048 Berra U.S. 41 S.Ct. made no American authorities. Defendants question reach of the extrater- 7. We do not allegation application here. ritorial of the Fourth Amendment such agents foreign where authorities act as 24 short, (1956). charge But where the 685, L.Ed. 1013 while is piracy

S.Ct. 100 air and begin premise we with the that defendant all the defense concedes elements intent, ordinarily is to a lesser-included is not entitled crime but the defense entitled whenever the lesser of- offense to a instruction. See Sansone instruction lesser-offense 1004, States, 343,85 completely encompassed fense is within the v. United 380 U.S. S.Ct. (sole (1965) delineat- 13 issue one of greater, exceptions the to this rule L.Ed.2d 882 willfulness, by Supreme support the element of both ed the Court which was offenses). give greater in- Kee- court’s refusal lesser-offense and lesser See also States, 205, ble struction. v. United 412 93 S.Ct. U.S. 1993, (1973); 36 844 L.Ed.2d Driscoll v. First, charge “a lesser-offense is States, (1st 1966), United 356 324 Cir. F.2d where, proper present not on the evidence 202, vacated on grounds, other 390 U.S. 88 ed, the by factual issues to be resolved the 899, (1968). Compare S.Ct. 19 L.Ed.2d 1034 jury are the as to the same both ‍‌‌‌​​‌‌​‌‌‌‌‌‌​‌​‌​​‌​​‌​​‌​​​‌​‌​​​​​‌​‌​​‌​‌‌​‍lesser and (2d Harary, United v. 457 F.2d 471 States Sansone, greater supra, offenses.” 380 U.S. 1972)(entrapment fully Cir. de- exculpatory 349-350, 1009, at Berra, 85 at citing S.Ct. Crutchfield, fense) with v. United States supra, Sparf States, and v. United 156 U.S. 1977) 496, (9th (partial 547 Cir. F.2d 501 n. 4 51, 63-64, 15 39 L.Ed. 343 S.Ct. entrapment defense). (1895).8 Here, the only factual issue placed into Second, contention defendants is a defendant entitled was their air requisite lack intent for charge only to a where there lesser-offense But we piracy.9 have already charge held is and some such rational basis for Sansone, neither air piracy it,” supra, nor with justifies interference “the evidence flight personnel specific are intent crimes. 380 Thus a U.S. at at 1004. general Both are intent crimes. According defendant is not entitled to a lesser-offense ly, only be by charge factual issue to merely formally resolved he because contests jury was the same for both the lesser greater charge elements of the which dis greater and offense and the tinguish defendants it from the lesser. The contest were therefore not entitled to a lesser-of produce must be He enough real. must charge. fense The defense did not seriously justify juror evidence tо a reasonable dispute fact, issues of such as concluding whether the that he committed lesser actually defendants had “seized” the air greater offense but did not commit the plane, which justified would have produce instruct offense. not Here defense did ing jury might defendants evidence allow reasonable which would have flight personnel juror interfered with crew defendants know to conclude that the having airplane. personnel without flight “seized” the crew ingly interfered Upon proof hijack airplane. their own view of the entire but knowingly did not trial, Enos, offered at (9th either defendants were Cf. United v. 453 F.2d 342 States guilty not of any they 1972) criminal offense or (stabbing Cir. person another guilty were charged. of the offense In back with a knife an assault constitutes Here, necessarily requi- 8. This is so because the existence or the where the absence distinguish factual issue to be site intent resolved cannot the two offenses provides greater nothing but same both the an all both. lesser of- or defense to fense, presented the defendant has not a de- prosecution Neither can nor the defense distinguishes fense which the two go offenses but greater on both the lesser applies equally one which to both which distinguishes offense unless an element fully exculpatory either actually or no defense at all. disputed. the two is Harary, United States v. may 1972). The defendant not (2d has asserted he 457 F.2d 471 Cir. have committed the lesser crime but psy- 9. Zvonko Busic’s he was defense was that greater; he has asserted has committed chologically incapable requisite forming the circumstances, no crime all. Under these Similarly, Busic, intent. which crime the defendant committed is not an duress, presented Pesut each a defense of issue for trial as the defendant has conceded all duped Zvonko Busic had then coerced first distinguish elements which the two offenses. them. district court an in merit. The delivered detailed deadly weapon, precluding with a simple justifying sentences. on the included offense statements struction Sinclair, Ramos, v. assault); U.S. 572 F.2d Compare United States States United (in (1971) prose App.D.C. (2d 1978). 444 F.2d Cir. burglary, evidence that defend

cution for a hiding in a store which had ant was found The Cross-Appeal Government’s door not broken window and locked did part government The from that appeals require on the lesser offense an instruction designat- of Busic’ssentence which Julienne v. Be entry); of unlawful United States ed, 4205(b)(1), pursuant to 18 that U.S.C. § neke, 1971)(instruc (8th F.2d 1259 449 Cir. eligible serving only parole she be after for tion of malicious mischief on lesser offense sentence, eight years rather than of her life entering required prosecution not for year applicable the ten otherwise minimum destroy draft board remove office to 4205(a). government The under 18 U.S.C. § whether records). official The decision no court had au- argues the district that a lesser- enough justify there is evidence to Busic’s sen- thority designate to sound dis charge offense rests within it was a 4205(b)(1)because tence under § That discretion judge. cretion of the trial prescribed by mandatory sentence minimum abused here. piracy for aircraft 1472(i)(l)(B) 49 U.S.C. § Third, charge is not a lesser-offense resulting and was therefore not in death the ground defendant on available 4205(b)(1). government The covered § “plead for the rule entitles him plain language of points both States, Kelly v. United 125 U.S. mercy.” early parole eligibil- statutory subsection 205, 227, App.D.C. F.2d cert. den. 388 370 general ity Congress’ past and to intent 2127, 913, 87 18 L.Ed.2d 1355 U.S. S.Ct. regarding early parole eligibility per- imper (1967). It is both unreasonable subject mandatory sons life sentences. provide oppor with an missible to jur- our Counsel for Julienne Busic contests compromise a lenient or tunity render appeal under 28 this isdiction to entertain evidentiary no basis. verdict with of propriety 1291 and the our U.S.C. § eligibility reviewing early parole desig- of Petar Miscellaneous Claims 1651, govern- nation 28 U.S.C. § under and Frane Pesut jurisdic- basis for ment’s asserted alternate complain Matanic and Pesut tion. have directed court below should to entertain jurisdiction We hold that government to F.B.I. 302 re disclose the founded on government’s appeal properly is ports with each of the air of interviews respect to mer- 28 U.S.C. 1291. With § passengers craft’s and crew. The its, 4205(b)(1) empowered we find that § quite disclosure of properly refused order designate that Julienne the district court had reports. most of these The defendants eligible parole serving be after Busic passengers a list of all and crew and could eight years of her life sentence. give why no reason further disclosure exculpatory na anything would show of an to entertain the Jurisdiction addition, they ture. In had made no show provided 28 government’s cross-appeal ing they been unable to interview parole eligibility early The U.S.C. 1291. § any Hick passengers of the and crew. Cf. is an element of designation involved here 495, 385, man 67 91 Taylor, v. 329 S.Ct. U.S. which is court’s sentence order the district (1947). L.Ed. 451 of conviction judgment distinct from guilty. verdict complain upon jury’s also entered Matanic and Pesut order, contain resulted improperly sentence sentences district court’s ap designation, overly parole eligibility ing early the court’s mechanical misconception of proach possesses necessary clear “characteristics of and from its required completeness” independence This claim without jury’s verdict. 26 28

for review under 1291 without which once provided parole § U.S.C. the early regard to еligibility provisions the limitations 18 U.S.C. apply any do “not States, v. 354 provided Carroll United U.S. offense for which there is § man- 394, 406, 1332, 1 datory penalty,” precludes 77 L.Ed.2d 1442 now reading S.Ct. this (1957).10 clearly recently The order is 4205. The enacted Parole § “final deci- sion,” Reorganization Act meaning both within the stat- Commission and 4201-18, 1976, ute, explicitly re- Cohen Beneficial Industrial Loan 18 v. U.S.C. §§ 18, 545-47, 1221, pealed (Parole) 69 311 of Title Chapter S.Ct. 93 Corp., U.S. uncodified amend- (1949), Section was an meaning L.Ed. 1528 and within the Marrero, ment. Compare Warden generally given in the context criminal 653, 657-59, U.S. 41 L.Ed.2d States, 94 S.Ct. proceedings, Berman v. United (1974) (repealed ap- remained provision 212-13, 58 82 L.Ed. 204 U.S. plicable specific of by to offender reason (1937). surely, “truly Just it is collateral as savings Moreover, clause). mindful of the the prosecution criminal itself in the Supreme against Court’s admonition read- ‘affect, will sense that or . [it] ing “a change accepted prac- substantial in by, be affected decision the of of merits this ” tice into a revision of Criminal Code States, Abney case.’ v. United 431 U.S. any support without legislative in the histo- 660, 651, 2034, 2041, 97 52 651 L.Ed.2d revision,” ry Hoffman, of that Muniz v. 422 (1977), quoting from Cohen v. Beneficial 454, 2178, 470, 2187, U.S. 95 S.Ct. 45 L.Ed.2d Corp., supra, Industrial Finance 337 U.S. at (1975), 319 support we find for view our in 546, 69 S.Ct. 1221.11 legislative parole history of the new Turning merits, to the we find that 4205(h) law. now covers Section the district possessed statutory au ground provid- by7 by once taken Section thority parole early to make the eligibility ing chapter that “[njothing in shall be this First, designation. 4205(b) explic neither § construed provide any prisoner shall itly nor implicitly excludes life sentences eligible be parole if for release such Moreover, its scope. reading from of prisoner ineligible for such release under Congress 4205 as a whole § indicates that law,” any provision leaving other thus sentencing meant vest court with parole explicit the denial of eligibility for authority 4205(b) designate under § pronouncement respect elsewhere.12 With a person subject eligi to a life sentence be piracy, Congress aircraft omitted such an parole ble for year earlier than the ten Indeed, eligibility. exclusion of parole maximum prescribed by 4205(a). § Committee, House reporting spe- when Second, reject we government’s skyjacking provisions, cial expressly relied argument that Section 7 of Pub. L. No. parole on the early eligibility in statute 85-752, (never 72 (1958) codified), Stat. 847 proposing the harsh sentences made availa- disagree We thus legislative with and history, decline to follow apparently tention in the 10. Lane, (9th United States v. 284 F.2d 935 Cir. Congress because pretation was satisfied with inter- 1960), government’s ap- which dismissed the parole law time it of federal at the peal probation from a order of the district instance, passed legislation. For in new court, although granted requested it the relief following (then Judge) Blackmun’s Mr. Justice by issuing a writ of mandamus. States, lead in 594, v. United 419 F.2d Jones narrowly (8th 1969), Cir. which had agree government 11. We also has “[t]he interpreted “mandatory penalty” in term challenged judge’s power impose the district Section be must to mean “a sentence which did, the sentence that he and such an issue of suspension served [of devoid of the benefits judicial power long recognized has been as sentence], probation, parole,” Ninth falling squarely range within the narrow expressly Circuit had not an 7 was held that Section [may appropri- cases for which mandamus be] parole eligibility Jackson, obstacle to a de- for ate.” United States v. 550 F.2d (2d 1977). piracy. 10, supra. fendant convicted of aircraft United Cir. See also note Ortiz, (9th States v. 488 F.2d 178-79 Cir. repeal replacement by 12. The Section 1973). 4205(h) Section of the Parole Commission and Reorganization Act of 1976 received at- scant Judge 1961 U.S. Lumbard dissents. here fol- piracy. Code All that ble for aircraft pp. Cong. heading & Admin. News his discus- lows under the above that the later mini- provided When it was why sion of convictions of the reasons piracy resulting for sentence aircraft mum should be reversed. Matanic and Pesut person would be life of another the death for Matanic The summations counsel no indication there was imprisonment, by interrupted inexcusably and Pesut were early its view that altered Congress had on so counsel by government the court and available.13 eligibility was parole manner that many in such a occasions and Third, strong congres both presentation of their defenses favoring parole evidenced policy sional seriously prejudiced. Matanic and and Reorgani Parole Commission the new Pesut were as ef- deprived a result that district courts zation Act and belief guaranteed fective assistance counsel possible room as given be much should them The trial Amendment. Sixth sentencing exercising discretion made judge’s interruptions, particular, we Accordingly, our conclusion. support argument by both a counsel connected designa in the court’s find no error district jury impossi- sustained concentration eligible pa Julienne Busic be tion that moved ble. The focus of attention of her life serving eight years role after interjec- argument the court’s counsel’s sentence. moreover, interruptions, made tions. These doubts about defense judge’s clear the trial Interruptions The of Summations for the the and facts. counsel’s view of law Matanic and Pesut that the trial juror Each have known must Busic, Pesut Matanic and Pesut’s de- judge Matanic’s had found that the ground the ask a new for fenses unpersuasive. pro hostility permeated cоurt’s bias concluded on taking of evidence was deprived them of a fair trial. ceedings and Thursday, April 1977. The court then complained examined the incidents We have they advised counsel that be allowed would and, we in of, exception, with one are day one The court for all the summations. agreement they require not remedi do A.M., usual, than would start at 9:00 earlier al That is the court and exception action. P.M., 7:00 and sit until 6:00 or later than of counsel for government’s treatment usual.14 their during and Pesut summations jury. opening summation Mr. Schlam made ex- Although he had Timbers, for government. Judges Feinberg for rea- hours, spoke concurring opinions, pected three only sons set forth in their to take starting at 9:00 insubstantial. for hours claims error five and one-half find the agree fence under 4208. The statute does § not 13. We with the deci- therefore recent and, early point- expressly prohibit parole the Sixth v. sion of Circuit in United States Ortiz, supra, by ed at Remling, (6th 1977) out the Ninth Circuit 548 F.2d 1274-75 Cir. curiam): the statute was n.l the earlier version of (per subject by Congress to be conceived difficulty, is not without “While issue Report early parole provisions. House legislative history of the we conclude 16, 1961, Aug. reprinted No. in 1961 anti-hijacking legislation to a leads different Cong. News P. 2568. U.S.Code & Admin. Hardaway States [United result by Our conclusion is the observation fortified Hardaway, (6th 1965), 350 F.2d 1021 Cir. v. penalty the 1974 amendments sentencing language treated which provisions, Remling pursuant to which “mandatory” postal robbery statute as armed sentenced, passed were Ortiz no after 7], meaning We thus within the of Section con- dissatisfaction with the Ninth Circuit’s align position of Ninth ourselves with the expressed.” struction was Ortiz, 488 in United F.2d Circuit States 1973), (9th Throughout which held that U.S.C. the more five weeks Cir. than trial, 1472(i) provide mandatory jury beginning at does for a accustomed to § allowing judge concluding approximately penalty, the trial 10:00 A.M. and therefore impose 5:00 P.M. discretion indeterminate sen- 3:30 P.M. The finishing simply at about heat. The court advised the jury A.M. and summation that it would hear one more summation but interruption Schlam’s only beyond would not sit 8:00 or repetition after 8:10 P.M. query about was the court’s Then, with but a five minute recess and a argument. five hours of coffee, promise judge moved the case concluded, defense counsel After Schlam along, explaining that he saw no other way minutes, jury’s in the ab- spent some to get the summations done. instruct sence, the court to asking It was after 6:30 P.M. when Matanic’s they matters regarding numerous his, counsel, Bergman, began Mr. summation misstated. When the had claimed Schlam which, delayed by interruptions, over 40 returned, only commented on the court lasted until almost 9:30 P.M. Before ad- statements, which the four of Schlam’s journment jury, and in the absence of the “exaggerations.”15 minimized as mere court counsel for Matanic moved a mistrial counsel, Rochman, began his Mr. Pesut’s “on by the basis of made the comments in the afternoon. After he summation late by during court and Mr. his sum- Schlam” minutes, few spoken mation. Pesut’s counsel also moved for a and rather interrupted fair counsel’s disparate mistrial because of the treatment concerning introductory comments ordinary given the government. defense and the of the case with a brusk the seriousness The court denied both motions. thought you Just a minute. I said “No. An interrup- examination of each of the going appeal sympathy.” we are not tions, comments, objections made abruptly A while later Rochman was short government the court and counsel shows objection interrupted by Schlam’s to his ar- there why was no reason each and gument about the need for Croatian-Ameri- every one of them could not have been secrecy cans such as Pesut to observe appropriate reserved for consideration political meetings. Reacting the court finished, after the summation was objection, complained Schlam’s Rochman just as government counsel’s summa- five and spoke “Mr. Schlam for one-half Instead, tion. on occasions numerous interruption.” hours without The court re- jumped justification, court in without first marked that as the defendants had re- questioning debating and then often with strained was fin- themselves until Schlam counsel any supported whether evidence ished, to refrain until he would ask Schlam statement, only counsel’s to find that counsel had finished. every misinterpreted coun- instance it had Having cautioned not to inter- Schlam argument, sel’s erroneously recollected evi- rupt, the court nevertheless did so itself on dence, or made unnecessary or irrelevant question to subsequent eleven occasions comment. arguments and six more Rochman’s times Bergman times, The court interrupted volume, repetition to comment on in most cases on its own motion. On a length. Most of the eleven in- substantive occasions, minority however, of these terruptions interjecting involved the court’s objections court up by government followed evidence, its own view the such as “I find counsel; participated Schlam himself in 20 no evidence in this case. . . .” The total, interruptions. interruptions In court was frequently wrong. Not one of must Bergman’s have extended Mr. summa- interruptions necessary. was tion any almost one hour. As detailed By the time it Rochman had finished was exposition unnecessary is conclu- to these P.M., past court had 6:00 later than the sat lengthen unduly opin- sions and would this on any day, and after counsel and one ion, interruptions summary of all the jurors of the already had remarked apрended. on the Later, defendants, hearsay after Mr. clear violation of the Rochman’s summation for Pesut, States, principle the court commented on one additional 391 U.S. Bruton v. United argument by Schlam, (1968). his use of Mr. Busic’s 20 L.Ed.2d 476 post-arrest statement to incriminate the other for Busic and for Zvon- interruptions Counsel impact

The total of these deprive of the effective was Matanic with brief summa- ko Busic then followed during phase a crucial assistance of counsel single interruption There not a tions. was inter- trial. the face of constant In two Government these summations. every which were in ference and comments of almost an rebuttal summation counsel’s unnecessary and sometimes irrele- instance twice, just with the interrupted hour was vant, for counsel to make impossible it was permission. court’s keep or to the atten- argument a sustained very day, Later in the at the end of would have been diffi- jury. tion of the It charge jury, to the the trial he judge said any circum- for to do so under cult counsel long day interruptions checked Mr. such a had all stances at end of day talk, usual longer far than Bergman comment “only one had ration but a belated no sustenance proper been for make.” it had He said that made to this objection was of coffee. As no would Bergman point out schedule, not to faulted be the court they had back once have no chance to come At the attempt expedite the trial. this He con- begun consideration of the case. time, circumstances could same these Berg- he not have called ceded that should under help but the difficulties exacerbate Bergman comment ‍‌‌‌​​‌‌​‌‌‌‌‌‌​‌​‌​​‌​​‌​​‌​​​‌​‌​​​​​‌​‌​​‌​‌‌​‍intimidation since man’s This required to labor. which counsel were right say what did. had tight govern- the court and placed schedule special obligation Although ment counsel under treatment of Pesut’s court’s a full give opportunity defense counsel than counsel was less severe that accorded inter- argument, unnecessary free of fair counsel, I the court’s Matanic’s believe more difficult ruptions might make it during each proceedings conduct of the give for the fair attention jury to Pesut and seriously prejudiced summation arguments. presented had Matanic. Pesut and judge must By morning the next the trial testified that he Each identical defenses. have treatment of defense that his realized political rally Chi- had been to a invited Before explanation. counsel some needed takeover Zvonko Busic’s cago and that after called, to coun- he commented Zvonko plane acted under each had too “9:30, think, sel I without dinner issue single Busic’s threats of death. repeat ought much. I don’t think we each was whether raised their defenses he com- performance.” jury, To the air- intentionally participated interrupted Berg- Mr. mented that he had piracy. question This turned essen- craft in his be- man “several times” summation tially inferences to be circumstantial the thought cause he some of had At a from the end of drawn the evidence. evidence, but arguments had no basis the forgotten much long jury trial the will have he governed their recollection only of the It can have in mind evidence. wrong.” “could be He added that he evidence, interrup- much of it pieces checked that one of his bits and the and found justified; tions was this concerned to relevance unconnected and of uncertain argument actions on the that Matanic’s government opposing contentions passen- plane were protection for the was it essential that and the defense. Thus gers felt he had been and that Matanic evidence, and all the infer- the accumulated there was judge coerced. The trial said evidence, be be ences to drawn argument support some evidence to counsel, with by jury summarized give it jury and that to up it was to indictment in the charges reference to the such, proper. they thought consideration as charges. those and the defenses to look at judge The said that he would also was at government’s case stated The other transcript to see if had made five detail for over great length and in errors, interruptions his must adding that during early hours of the court hours any reprimand of Mr. not be considered Although jury was fresh. Bergman, doing duty. day when who was language spared no in summations. government counsel Mr. Justice Stewart wrote for defendants, condemning the actions of the Court: inferences, and drew numerous some “It can hardly questioned be that clos- unsup- which the to be court later found ing argument sharpen and clari- serves to ported, harangue a hour the five and half fy by the issues for resolution the trier of uninterrupted. my opinión, was In the de- fact in a it criminal case. For equal fense was entitled to treatment. It after all the evidence is in that counsel especially important that the treatment parties for the position present are in a equal be because counsel for Pésut and Ma- respective their versions of the case as a compelled argue tanic found themselves Only whole. then they argue can courtroom, day, at the end of the in a hot inferences to be drawn from all the testi- jury sitting evening, a late into the well mony, point out the weaknesses of beyond customary dinner hour and positions. adversaries’ And for the without food. This state of affairs had defense, closing argument is the last clear come largely government about because persuade chance to the trier of fact that counsel exceeded two hours its allotted may there be reasonable doubt of the opening time for its statement. guilt. Winship, defendant’s re In See required Fundamental fairness that de- 1068, 25 L.Ed.2d U.S. 358 S.Ct. [90 368]. counsel, fense placed at such an obvious very premise adversary “The of our disadvantage, equal be treated with consid- system justice partisan is that criminal eration. The court’s failure to see that this a case advocacy on both sides of will best done, principal part due in to the promote objective the ultimate that the frequent court’s own deliberate inter- guilty go the innocent be convicted and summations, ruptions of deprived trial, free. In a which is in criminal equal opportunity defense of a fair and basically end no factfinding process, make argument; a sustained and continuous aspect of advocacy such could be more it also emphasize jury served to important opportunity finally than the court’s arguments disbelief in the defense marshal the evidence for each side before preference and its government. for the It submission of judgment.” the case to made the defense summations seem to the atU.S. errors, like comedy rather than a nn,8 presentation serious by responsible counsel. See also id. at 858-59 & 95 S.Ct. It distracted the jury’s attention from the 2550, and the cases there cited. The Court it, argument counsel’s and focused thread concluded that the closing argu denial of on the nit-picking indulged the court ments even non-jury in a case violated the by government counsel. right guaran to the assistance of counsel teed by the Id. at Sixth Amendment. The opportunity denial of the to make a fortiori, in a trial to a S.Ct. 2550. A summation for thе defense in a criminal possible where each faces sen defendant trial, even where the case is tried to the court, many years up prison, tence of life—in is a basic deprivation of the accused’s — right of counsel right effective assistance Supreme to make his defense. and unnec Court also denied where continuous recently Herring so held in v. New York, 853, 95 2550, 45 by the court so inter essary interruptions 422 U.S. S.Ct. L.Ed.2d (1975), presentation 593 fere with overturning in a New York stat defense counsel’s ute granted judge the in that counsel is non-jury orderly unable to make an deny any trial discretion to opportunity argument for jury.16 and sustained to the Cf. Lloyd Stryker opportunity Paul has described the sum- the climax of the case. It is the apex attorney’s repre- mation perhaps as the of an to rescue a cause until that time seemingly every sentation: lost. It calls for the skill possesses. advocate It calls for more than high point “The summation is the in the art courage, skill—it is a summons to his a test- advocacy; it is the combination and the character, ing ground logic of his a trial of his many culmination of all of its elements. It is

31 States, 466, 698, States, U.S.App. 469-72, 289 145 U.S. 53 S.Ct. 77 Matthews v. United (1971) (ineffective 323, (1933). 449 F.2d 985 L.Ed. 1321 D.C. Counsel error”) (dictum); deprived opportunity “constitutional Pesut were of a fair summation Hammonds, U.S.App. jury, v. 138 United argue States to their clients’ case (ineffective 166, (1970) 425 F.2d 597 by D.C. right guaranteed to the defendants the process); of due Johns v. summation denial of Matanic Constitution. The convictions (E.D.Va.1959)(fail Smyth, F.Supp. 949 stand; 176 they are and Pesut should not each jury to of due argue ure case denial entitled to a new trial.

process). agree my Inasmuch as brothers do not Although jury nearly the had heard 50 point, with me this last the convictions days, extending during witnesses 21 trial appellants of all are affirmed.17 1977, 28, it re April March 23 to case the mained for counsel to summarize APPENDIX in jury, before the to assess the evidence During Mr. Summary Interruptions charges, argue terms of the and to the Bergman’s Summation. weight evidence and suffi given to be summa- begun his Bergman barely per could ciency proofs. The had challenge in to broke tion before court help with the form its function as act his could sides, suggestion his that the particularly light counsel for both arguments (previously advocate the conclusion of the court’s decision disclosed government’s the evidence. since he could not answer the counsel) not to marshal Kahaner, (Court 459, 1) 317 F.2d rebuttal summation himself. United See States later, Cir.), rejected (2d n.12 cert. denied sub Minutes the court counsel’s 479-80 and States, explaining nom. Keogh v. United U.S. reference to court in (1963). and, immediately 11 L.Ed.2d 65 After the jury’s role as factfinder by government arguments thereafter, extensive made about statement counsel’s counsel, uninterrupted by defense counsel result materiality the trial’s court, or re fairness fundamental government. (C2 C3)& quired permitted that defense counsel be The fourth a needless interruption was reply fairly in kind. fully and Cf. United following remark court, was as U.S.App.D.C. 297, Sawyer, States v. one, charge mo- that the would court (trial (1971) 443 F.2d court’s C5) (C4 tive was immaterial. controlling scope discretion of summa later, inter- the court Fifteen minutes prevents tions “if the court defense abused there was no rupted to evi- observe making point counsel from essential to admiration en- concerning dence defense”). Here the tone and nature of promised The tire Matanic. community for interruptions, supple court’s numerous recess arrived, brief coffee then and a by government many mented counsel’s in (C6) taken. terferences, any opportunity foreclosed after Bergman barely resumed appropriatе reply, effectively nullifying his challenged sug- recess when arguments counsel’s the court by disparaging them had instilled a gestion Busic questioning bases, Zvonko factual proper- Bergman doing erroneously many guilt so sense of in Matanic. instances. The an inference explanation ly suggestion trial court’s limited defended this retorted, next day simply too little The and too late from the evidence. argu- irreparable damage justify redress the done “There’s no evidence evening Quercia before. See (C7) v. United ment.” Advocacy, reasoning powers, Stryker, Art of memory, Lloyd pa- his Paul his tact, ability (1954).

tience and his express words; convincing short, himself in it is an government’s the briefs to strike 17. The motion assay every power persuasion pos- denied. of Julienne Busic and Petar sesses.” later, Bergman attempted argue Two the court When then bluntly minutes told to Bergman that, except meeting, for one that was presence plane Matanic’s nothing specific there was the record to necessary protect the passengers, to support actually proper extrap- what was interrupted say court to no that there was regarding olation of the evidence Zvonko (C16) evidence this support to assertion. pre-hijack Busic’s conversations Ma- later, again Then the court ex- minutes reply, Bergman tante. In reminded the pressed length concern about portions have they could argument request for a counsel’s and denied record (C8) reread. (C17) break. Having witnessed court’s failure to against injunction observe its interrup- own thereafter, Shortly objected Schlam to tion, in, breaking Schlam began too first Bergman’s govern- about statement objecting statement to counsel’s to ment’s witness reliance on a certain (Government defense kept had secrets. no court prove venue, objection the which 1) The his court reinforced move: (G5, C18) found “well sustained.” “Yes, objection is well taken. The interrupted The Bergman’s court next re- inference is there’s something up cital to of evidence ask “Who said that?” No, Bergman, sleeve. Mr. keep thereafter, (C19) Immediately Schlam inter- within the of propriety.” (C9) bounds jected, say that,” “I didn’t echoed A few minutes later Schlam unnecessari- “No,” response Bergman’s court’s ar- ly objected to Bergman’s characterization ticulation of main theme in the Schlam’s of his tactics on cross-examination—the colloquy case. There a needless very followed kind of characterization Schlam him- self had all uninterruptedly employed court, Bergman which many Schlam times during argument. lengthy (G2) C20) (G6, contributed. Shortly thereafter cut off an Schlam ar- later, Minutes again court asked gument make, Bergman about to was and counsel if argument. he could shorten his the court Bergman directed state it an- (C21) other way. (G3, CIO) later, interrupted One minute Schlam Ten later, minutes similar interlude challenge suggestion that Bergman’s

provided by supported by Schlam and government provided proof have could court, merely when Bergman said that might support its that the defendants claim recognized Schlam certain evidence as “cru- jail. in- have conferred in The court then (G4, Cll) cial.” terrupted say that there was no testimo- later, Ten minutes after asking how ny had segregat- that the defendants been much longer Bergman going to take ed, (G7, point. which somewhat missed the less, and telling again him to take the court C22) broke in Bergman’s to challenge statement that Carey had testified Matante had later, Bergman Three when men- minutes say no plane. in what went on in the Tannenbaum, with prosecutor tioned state This Bergman salvage time tried to arrest, spoken after his whom Matanic had by reminding situation that their say: interrupted C13) (C12, recollection controlled. sys- “Tannenbaum is not in the federal asked, “What?”, apparent- court next tem, is not representative of the United ly Bergman not what understanding said. States Attorney’s Office. (C14) “Is this clear, made Bergman?” Mr. later, One minute broke in to the court unnecessary comment The thrust of this ask counsel statement was whether his attempting counsel was suggest was to “pure speculation,” Bergman denied. jury, clearly to mislead the when this was Bergman exception to this properly took (C23) not so. interruption. (C15) point Bergman on the thereafter, fruitless discussion Bergman said Immediately continue his state- government attempts could have obtained to that made two by to state the court copies of defendants’ statements once halted only ment to be exchange extraordinary (G12 authorities. This & C28 and once more Schlam. followed: 29)& guess could, I you “The Court: too. spoke out minutes, court Within two object “Mr. Schlam: I to that. report F.B.I. re- an again to ask whether could, “The Court: You too. was in evidence. Bergman ferred to Honor, respect- I Bergman: “Mr. Your said, (C30) “Yes.” Bergman simply which I’ll make

fully except for reasons again court cut A few minutes later later on at the side bar. known Bergman longer would in to ask how much No, no, “The Court: the defendant his sentence. Bergman never finished take. any doesn’t have to come forward with subject, the on to another When he went proof whatsoever. That’s what Mr. already had that he court broke in to note Bergman testifying to. When he’s 32) (C31 & taken two hours. charging great with a omis- Mr. Schlam sion, bring out proper then I think it’s men- later, Bergman when Two sentences he, too, gotten the fact that could have Pesut, interrupted the court him tioned copy interview if he wanted a of it. again: once Bergman: respectfully except. “Mr. I minute, strikes “The this Court: Wait a proper I would be for me to don’t think it repeat Petar me as You rather unusual. any comments. make message re- Now, is the Matanic. what not, No, you pro- “The Court: will but your lated to defense —” ceed.” point re- Bergman developed briefly (G8, C24) Pesut interviewed garding who agent Bergman’s interrupted next Schlam inquire in to broke again when the court Agent point, which stressed that Strand’s objection. any had whether Pesut’s counsel testimony memory, could be a objec- no he had said Although Rochman perfectly proper argument. Again the Bergman was tion, the court observed join court saw fit in the interruption. Rochman’s Mr. “probably intruding on Bergman proceeded argu- When with his (C33 34) grounds.” & ment, again stopped him Schlam and the responded One minute later Schlam added, “Anyway, court it’s immaterial.” had told that Pesut Bergman’s statement told, ensuing All colloquy consumed that there everything, saying Agent Derdak enough up pages take two time to assertion. support ‍‌‌‌​​‌‌​‌‌‌‌‌‌​‌​‌​​‌​​‌​​‌​​​‌​‌​​​​​‌​‌​​‌​‌‌​‍was no evidence to Bergman could minutes before restate his repeating Schlam’s fully agreed, The court argument proceed. colloquy This in- why Bergman he did very words, and asked by the request cluded another then Schlam not defend his own client. (G9 Schlam restrain himself. & C25 & courtroom for permission asked to leave 26) 15, C35) & (G14 two minutes and left. Bergman soon thereafter made When for Zvonko thereafter, Shortly counsel being statement that the asked to Af- discussion. requested Busic a sidebar being if it were tried decide the case as five minute terwards, declared the court objected. The court add- years ago, Schlam M. and P. recess, it was 8:55 observing objectionable” ed “That’s and asked the shorten he could asking Bergman see if C27) (Gil, disregard it. recess, the court his summation. After the Bergman pointed then out that the court though even Bergman proceed asked agent’s interrupted government’s had tes- Schlam was still absent. timony up ambiguity clear in that testi- had Bergman what

mony. again argued intervened. min- Schlam con- pages not been Agent utes then record more than three told Davidheiser minutes, been, objected fession, he Within Schlam when would not if it had in a lawyer have been about a gentlemen, concerned and Bergman said, “Ladies subsequent Agent with conversation over, gowill judge] when this case [the interjected, The “It’s all over Strand. court asked what The court on to another case.” Bergman as far as to Strand —.” tried evidence. with summation of this had to do recoup, “Somebody responding who confess- resumed, (G19, Bergman after C42) When lawyer es to the ask for crime doesn’t “closing” and this was his observing that joined after he then confessed—.” Schlam what it retorting “I don’t care the court’s fray, to asking, “What’s evidence is; irrelevant,” pointed he out it’s still The justify statement?” court re- there its verdict once the rendered sponded: (C43) To thoughts.” could be “no second “None, confusing jury. and it’s to the observation, this relevant routine and plain Let me what make this up, objected, the court followed Schlam happened going are to here. We saying: straighten things out.” They’re “Of know that. they course all proceeded The court give its assertedly ahead.” not Go going definitive intimidated. surrounding version be of the facts the statements taken from Matanic. To (G20, C44) argumentative this wholly unnecessary Bergman his summation. then ended court, by Bergman objected. resumé the courtroom When left jury had The court rejoined, “You cannot make exception” and moved “strong stated his statements which leave that confusion and comments the basis of the a mistrial “on ambiguity up (G16, in the air.” C36 & 37 & Court, during by made Mr. Schlam by the 38) I think on my summation. course of minutes, Within two Schlam precipitated infringe- improper it constituted whole another three-party by discussion objecting about the exchange some ment —.” After Bergman’s Agent statement Davi- Bergman’s argu- dheiser propriety knew of certain “nine times out of ten” jury would testimony ments, believe his against motion. denied mistrial court defendant. grounded Schlam his objection a mistrial moved for Pesut’s counsel also Bergman’s lack of statistical evidence. treatment the court disparate based on the said, Berg- When “Sustained.” government. gave and the the defendant man resumed by saying, “He well knows as know, Petar as may Matanic whatever the M. adjourned at 9:30 P. Court be,” percentages may a needless Schlam objection followed and was by buttressed FEINBERG, Judge (concurring in Circuit court: part): “Mr. Bergman, I interrupt hate to Judge Lum so I concur in much stop you, you but unless your contain the con thorough opinion summation bard’s affirms within the bounds proprie- ty Busic,1 I will stop you.” victions Zvonko and Julienne cross-appeal con denies the Government’s Bergman “respectfully exeept[ed].” (G17 & am unable to 40) I cerning C39 & sentence. Julienne’s Lumbard’s conclusion Judge concur in The court interrupted then say it interruptions of judicial prosecutorial give would Bergman “ten minutes more at of Petar the most behalf because this seems to summations on be endless.” (C41) error. reversible and Frane Pesut constitute agree Judge I sary Lumbard was consent that Julienne whether there to determine Busic, bag whom the authorities had reasonable of the search or whether the seizure hijacker, country cause to foreign believe was a acting had no consti own officials tutionally protected expectation privacy agents re insulated the later search federal garding bag, her requirements left which was behind at the warrant the Fourth scene crime. I thеrefore find it unneces Amendment. some, inability mations or an many, if of the trial court’s understand coun- While reserved comments could have been either light sel. In of the five and one-half hours their sum- completed until defense counsel up allotted to the Government to sum with altogether, or omitted I do not mations defendants, respect surely to four it judge clearly believe that the district attempt not unreasonable to to limit the controlling the sum- abused his discretion in summation of each defendant two hours. Moreover, mations involved this case. occasions, On three other the court seem- given interruptions the in which the context innocent ingly corrected counsel’s misstate- lengthy during the summations occurred— law, times ment of the of these and two following counsel eminently qualified Rochman apologized the court. Unlike guilt was appellants’ six-week trial at which Judge interrup- such Lumbard, consider we interrup- overwhelmingly established—such Moreover, none of the tions justified. to be either effec- deny appellants tions did not lengthy classified as interruptions could be tive assistance of counsel or fair trial. remarks consti- since the total of the court’s joins point, me on this Judge Since Timbers out of pages tuted less than five Rochman’s all of the convictions are affirmed. 90-page summation.2 Nor were the ex- Lumbard, Judge out the pointed As changes Finally, impor- and most acerbic.3 prosecutor virtually his summation made tantly, interjections none of the clearly interruption; without defense counsel re- prejudiced by indicating the appellant many objections served their and comments judge’s in the disbelief defendant’s version until summation was Government’s hijacking by appreciably impeding of the or completed. It is unfortunate persuasive the fluid and flow of Rochman’s Government did not accord the defendants summation.4 courtesy during the same their summations. Bergman’s Mr. summation on behalf of Furthermore, acknowledged it must be at Matanic followed the Rochman summation. judge the outset that the trial intervened in advanced, atmosphere As evening counsel with summations of defense and some placid, became less than frequency doing some after not so with the undoubtedly due Berg- turbulence was Nonetheless, prosecutor. thorough read- following colloquy Thus, occurred man. us with ing of the summations leaves attempted drive home to Bergman when were not firm conclusion that defendants right to decide jury preeminent effective assist- denied a fair trial or the or innocence: question guilt ance of counsel. decision is su- Bergman: Mr. Your counsel, Rochman, spoke Pesut’s Mr. kings. ancient preme. You are like the hours, approximately sporadically two in- Judge Bartels— nobody, And terrupted by the court on 18 occasions. out of this. Court: Just leave me Two thirds interruptions of those occurred I am not— during the last third of summation and justifia- Bergman: bring several involved the Mr. I will in the Presi- clearly court’s ble concern with length either the of sum- dent of the United . States Indeed, longest commentary by judge judge apologized 2. occasion for his inter- the trial Schlam, prosecutor, was a reminder to ruption. objecting refrain from until the defendants had closing arguments. concluded their jury, Busies on That the which convicted counts, acquitted all and Pesut indicated, already supra, 3. As see note 2 resulting charge involving piracy in death is air Schlam, judge seemingly district warned albeit perhaps persuasiveness of indicative of the effect, objecting. without Sev- refrain from Bergman, under- also both Rochman and times, merely eral other the trial court asked prej- аppellants’ mines that the claim for clarification of whether there was a factual judge’s against the trial udiced them because argument. basis for counsel’s Counsel was during generally and the sum- actions the trial quickly accuracy able to of the details assure the court of the specifically. mation presented and contin- argument, ue on with and on one such following exchange Bergman took continued his without Similarly, summation place appellants pressed relatively for the numerous in- despite as counsel hesitation a motion: grant the court to terruptions, and on several occasions intervention. capitalized even on the court’s My Mr. motion— Rochman: Honor,— Your Bergman: Mr. Lumbard that Judge agree Since we The Court: No. to the trial challenges appellants’ other merit, Yes, the narrow Bergman: yes. yes, Mr. court’s have no conduct the summations issue before us is whether Bergman was examples These indicate that so hindered were described in detail above for whatever to blame partially least to have interruptions the trial court’s may have exhibited curtness the trial court rights. abridged constitutional appellants’ proceeding. in the point toward him at this case, have and we been We are cited to no This is that the say not to that we believe a trial court’s any, unable to locate in which impartial trial court so forsook its role of supervision of has alone been summations Bergman’s tribunal or so interfered with as- held to constitute a denial of effective clearly require effective summation as to Supreme sistance of counsel. The Court’s analysis reversal. Careful of the record York, Herring in New 422 decision v. U.S. reflects that at least ten of the forty-odd 853, 2550, (1975), 95 45 L.Ed.2d 593 S.Ct. interruptions Bergman’s three-hour sum- involved a state point not on since that case appropriate queries mation were technical judge trial to statute which allowed the said, the court as to what had been in completely non- eliminate summations Bergman represent- defendant was Indeed, Herring we think cases. ing, longer Bergman or how much intended since the Court supports here our conclusion speak. clearly justified eight were Also the broad discretion specifically emphasized by Berg- other interruptions necessitated control over trial court’s be accorded the man’s improper attribution of statements or 862, 95 S.Ct. closing arguments. Id. actions Similarly, to the Government.5 say We do not that a district court instances, several other 2550.7 prop- the trial court could never Sixth erly Bergman’s corrected or violate a defendant’s clarified sum- effectively denying rights by regards mation as the evidence adduced at Amendment through an excessive se- majority remaining trial.6 of the him a summation inter- ruptions interruptions perhaps unnecessary patently were ries of unwarranted but clearly But this was objections closing argument. harmless of his defense coun- Rochman, sel’s rhetorical Matanic’s hardly excesses. As with the case here. Pesut’s and Once, Bergman misleadingly purported 5. 7. The other ineffective assistance of counsel particular by Judge state the Government’s reliance on a cases cited Lumbard are also distin Thus, impor- guishable. witness and twice he understated the trial court in United 297, U.S.App.D.C. tance of this Sawyer, case to the Two States 443 v. 143 Government. interruptions Bergman’s (1971), by precluding other cut off F.2d baseless 712 defense erred attempts suggest undisputed legal point making the Government had counsel from jury. closing argument. withheld evidence from the The last essential to the defense in his interruptions category However, supervision three in this were of the this erroneous prompted by Bergman’s summation, improper clearly preju characteriza- far more which was here, any interruptions tion of Schlam’s statements at was trial. dicial than Similarly inapposite held to be harmless error. States, U.S.App. arguable are 145 Matthews v. United It is on a few the district court 323, v. (1971); States United incorrectly D.C. 449 F.2d 985 challenged occasions the evidentia- 166, Hammonds, U.S.App.D.C. F.2d However, 425 ry 138 argument. basis of counsel’s F.Supp. (1970); Smyth, 176 597 and Johns v. Bergman usually quickly able to reformu- (E.D.Va.1959), con 949 those decisions argu- since proceed late his with his statement and performance completely inadequate Moreover, cerned the subsequent Bergman’s ment. ar- give including gument, of counsel at the failure to judge specifically instructed the closing argument rendering altogether or the on at least two occasions that certain of perfunctory apologetic interruptions unjustified such summations were and that grossly prejudiced as clients. to have counsel had been correct in his assertions. See, g., e. note 8 infra. Moreover, most summa- serious count. whatev gave two- and three-hour counsel in- intermittently might respectively, impression arguably albeit have negative tions er As demon- judge. the district terrupted by by the court’s conveyed jurors been above, interjections were often such during strated summation questions and comments individually and well-warranted, were subse certainly by the court’s erased harmless, especially consider- cumulatively jury. note 8 See quent comments to given instructions ing supplemental supra. Given all of these circumstances Bergman’s morning after the court cover,” see “cover viewing the trial from summation.8 Sclafani, 487 F.2d United v. States denied, аppel- Similarly, are convinced that (2d Cir.), cert. we U.S. were Appellants fair trial. lants received a (1973), we find no 38 L.Ed.2d 314 present full de- unquestionably able to reversible error. six-week during fiercely litigated fense this not to over- trial. While we would hesitate TIMBERS, Judge, concurring in Circuit upon a trial turn conviction based entirety, in its Judge opinion Feinberg’s par- had exhibited judge which the district opinion in Lumbard’s Judge concurring Fernandez, States see United tisanship, Judge part, disassociating himself from 1973), (2d we do F.2d 735-38 Cir. opinion respect dissenting Lumbard’s The trial think occurred here. this skyjackers to the convictions of irri- understandably grew somewhat judge and Pesut: pro- day of summations long table Terrorism, and internation- both domestic such condone we do not gressed. While of our al, problems gravest is one of the behavior, appel- no indication that there is skyjacking here involved was a day. The overwhelming lants, who were convicted on example It re- heinous of such terrorism. evidence, prejudiced. substantially were City New noted, in the of a York Indeed, sulted death as previously we on police maiming and Pesut officer and the of other acquitted appellants Matanic evidence, that, evidence, “9:30,1 think, sup- telling There was some to with- 8. After counsel port argument. up you accept that It’s to dinner too much. I don’t think we to out ought was argument performance,” give repeat to the court and it such consideration as that proper it, you reject interrup- feel but or instructed the follows: unjustified. my was rec- tion That’s because Gentlemen, night Ladies I inter- and last faulty brings ollection and that was us back rupted Bergman in his Mr. several times point principle your about the know, you summation. As is a a summation count, going recollection is to not mine. arguments review of the evidence and up. transcript The I is not will look at it may upon be made evidence. If there today we before see if I close and made some support arguments, no of evidence errors, other but one must remember course, they improper. then are purpose of also summation and the fact because, according interruption I made the any interruptions of those must not be con- recollections, my arguments some of these any reprimand Bergman sidered as of Mr. my evidence, had no in the but it was basis duty it’s of the because defense counsel acting upon and I that I was recollection strenuously argue as as he to client, can his your wrong. of the could be It’s recollection too, sometimes, he, a mis- makes counts, going not You’re evidence that mine. there’s in that he thinks evidence take facts, I. to make I want decide support arguments. interruptions be that clear so that the would point this is The real is that the result of understood. predicated on whether Petar Matanic morning one of I checked this and I found any hijacking plane predi- intent in justified. my interruptions was not You re- course, upon he did cated that basis —of if stated, think, Bergman call that I and as Mr. then, hijack plane, not have intent to the acquittal, of really argument that Mr. Matanic was on course, that must be an but plane, plane his actions on the were for evidence, upon again, depends which protection passengers. was of the There your recollection of the not the evidence and he some evidence that felt that he simply Court’s recollection of the I evidence. if coerced and that there be disaster would clarify want that so we understand the didn’t From follow Zvonko Busic’s orders. interruptions reason for the and the real is- argument. there he mаde that sue involved. opinion following reasons, police eighty-five pas- of for the briefly officers. The lives sengers and of the crew of summarized: seven members plane placed jeopardy the TWA in (1) were ignored The dissent has the context in during the hour twenty-seven skyjacking interruptions which the occurred— which plane, during terminated which several hours of when summations at protracted took off of a six Chicago from New York for conclusion week trial in the course of flights, was not trans-ocean intended for guilt overwhelming evidence of the skyjackers fly forced across these appellants was adduced. Paris, the Atlantic and to land after The interruptions large measure Montreal, refueling Newfoundland, stops at triggered by provocative were con- Iceland and London. duct on the part defense counsel. Congress more hardly could have been conscientious, trial experienced emphatic in severity its recognition . judge,2 exercising the broad discre- of precisely the offense here involved when tion uniformly which we have ac- provided imposition it for the a manda- control judges corded to in the tory imprisonment sentence of death or life summations, with the ut- acted anyone —nothing upon convicted of the less— impartiality most fairness offense of piracy resulting aircraft in the handling counsel defense who re- death person. another U.S.C. peatedly through- had demonstrated 1472(i)(l)(B) 1975). V (Supp. § out propensity the trial a for inflam- join I in today’s judgment which affirms matory prejudicial statements the convictions appel- and sentences of all presence conduct jury. in the lants on all counts. significance And —of critical here— prejudice no Pesut or Matanic has I concur entirety of Judge Fein- shown; indeеd, been jury’s ac- berg’s opinion affirming the convictions and quittal of them on the count which appellants sentences of Pesut and Matanic. carried a mandatory penalty of death To the Judge extent Lumbard’s or life imprisonment, while convict- opinion affirms and sen- the convictions ing count, the two on that Busies tences of appellants Zvonko Busic and Juli- strongly that suggests Busic, enne I concur. Pesut or prejudiced not Ma- against however, extent, To the Judge that tanic. opinion Lumbard’s constitutes a dissenting (2) dissent, concluding that opinion with respect the convictions of convictions of Pesut and Matanic appellants Matanic,1 Pesut I only and grounds should be reversed on Judge Feinberg’s concur in majority opinion deprived that of the effec- they were convictions; affirming their I respectfully guaranteed tive assistance counsel of but emphatically myself disassociate from by them Amendment and Sixth the entirety of Judge dissenting Lumbard’s they deprived of were a fair Judge Matanic, dissenting opinion begins judge 1. Lumbard’s the trial was Honorable states, “Judge where he Bartels, Lumbard dissents.” John R. United Senior States District Ante at 27. text, It embraces his ante at Judge for the District of New Eastern York. 27-31; footnotes, 27-31; ante his He has served with as a federal distinction trial Appendix, ante at 31-34. judge decades, nearly preceded by for two ser- justice Supreme vice as a Court of the Judge partial majority partial 2. Lumbard’s — State of New has been a member of York. He dissenting disclose, opinion in the fails either century. the bar for more than half a He had text, identity headnote or in the the trial of experience extensive trial as a member of the judge. thought I had such was a disclosure ground Judge bar. I take it to be common practice uniformly by followed our for Court generally Bartels regarded as one of the most many years. experienced conscientious trial federal any event, know, regard important In I it judges in the United States. by grounds urged in view of the dissent for the reversal of the convictions of Pesut reasons, interruptions For these I concur solely entirety because of in the

trial summations, during their counsel’s Judge Feinberg’s majority of succinct opin- contrary to has reached a conclusion respect with ion the convictions of appel- law, by indicated applicable Matanic; regret lants and I Pesut following: emphatically I respectfully must disas- but wholly (a) The dissent’s conclusion Judge sociate Lumbard’s myself from dis- unprecedented. respect to these senting appel- opinion with court has ever crimi- No held lants. be reversed nal conviction should agree I judgment majority by the solely interruptions because which affirms the and sentences convictions during summa- prosecutor or appellants of all counts. on all counsel. tions defense by counsel is made (b) No such claim appellants.

for these claim, their brief set forth in

Their judge’s trial appeal, is that permeated hostility

bias finish”, of which

“from start Ap- facet. were but one

summations unfair trial in of an

pellants’ claims having been unani- respects all other LEE, Lee and Eric Lester Howard S. there remains mously rejected, Lee, Plaintiffs-Appellees, con- error limited the asserted error summations —an duct since claimed which counsel have not SONS, INC., JOSEPH E. SEAGRAM & it. authority there is no Defendant-Appellant. (c) The assistance denial of effective urged counsel reversal ground 78-7331. Docket No. being dissent, aside Appeals, Court precedent, is at best United States wholly without rec- anomaly view ‍‌‌‌​​‌‌​‌‌‌‌‌‌​‌​‌​​‌​​‌​​‌​​​‌​‌​​​​​‌​‌​​‌​‌‌​‍Second Circuit. curious may in this ease. Whatever else ord Argued Oct. 1978. be said defense counsel’s conduct summations, during it most as- Decided Jan. suredly not constitute —under did stringent this Circuit or standard of ef- any

under standard —a denial of In

fective assistance of counsel.

short, right-to- simply this

counsel case. (d) The ground denial of a fair dissent, urged

for reversal interruptions

limited solely summations, during defense counsel’s record as a

ignores not case, in this the settled law

whole but con-

that under the broad discretion judge

ferred the trial control summations, appellate

will not set aside conviction on showing the clearest

ground absent discretion, appel-

of abuse of no

late court has ever done so.

Case Details

Case Name: United States v. Zvonko Busic, Julienne Busic, Petar Matanic, Frane Pesut

Court Name: Court of Appeals for the Second Circuit

Date Published: Oct 30, 1978

Citation: 592 F.2d 13

Docket Number: 383, 389, 410, 411, Dockets 77-1332, 1333, 1334, 1368

Court Abbreviation: 2d Cir.