Petition — Barnes v. United States
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IN THE AUG 17 1979
Supreme Cort of the United RODAK, JR., CLERK |
October Term, 1978 t
No 79-261
Leroy Barnes, Steven Baker, JosepH HaypEen, JoHN
HatcnHer, Waymin Hines, James McCoy, Wauuace FisHEr,
Wauter Centeno, Leon Jonnson, Steven Monsanto and
Lzonarp Ro.uock,
Petitioners,
v.
Unitep States or AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Epwarp M. CurKorsky
Attorney for Petitioners
866 United Nations Plaza
New York, New York 10017
(212) 753-1402
Davip BREITBART
MicHarn Youne
JorL A. BRENNER
HELENE M. FREEMAN
Marx S. ArisoHn
J. JEFFREY WEISENFELD
Marx L. AMSTERDAM
Barry A. BouRrer
JosEPH T. KLEMPNER
Met A. Sacus
Tra A. DeutscH
Of Counsel
ay ne ay ere een
TABLE OF CONTENTS
PAGE
ESTES os LE SE 2
oad dacapdicpdestssivpenes 2
a i, Seva sonacecatentesinsviaens yacsnspvenps 2
Constitutional Provisions, Statutes and Rules In-
I RRO Tay, Aah A, cotecbsadellidecsvesscossnrveseecoens 3
I MN oo cs scons sjaevestvercoawonnccansensi 3
Reasons for Granting the Writ
I—The District Court’s unprecedented empanel-
ing of an ‘‘anonymous’’ petit jury, its refusal
to disclose jurors’ ethnic backgrounds and its
failure to explore less drastic alternatives de-
nied petitioners’ Sixth Amendment rights ...... 9
A. Failure to Disclose Jurors’ Identities or
Ethnic I Svc casi fetackises vod vongacetsvors 10
B. Failure to Explore Less Drastic Alterna-
Rit Ra Said a asc vedpssasigecesevakan vw, 17
II—Petitioners’ right to trial by an impartial jury
was violated by the trial court’s refusal to
inquire into a documented incident of juror
misconduct against the defense outside the
I i av didcassitesbniipasvassovenseseoee 23
A. The Incident on the Jury Bus .................... 24
B. Failure to Conduct an Inquiry .................. 28
I1I—The Court of Appeals erred in holding that no
hearing lies to determine whether petitioners’
It
PAGE
tax returns were acquired in violation of Title
VII of the Tax Reform Act of 1976 .................. 31
Pe RR ERO Fs ean na! 33
B. The Requirement of a Hearing .................. 37
C. The Existence of Alternate Remedies .... 44
es cs, RR IIS Mee REE OE OPO ERY ad 31s 40
INDEX TO APPENDIX
Appendix A—Opinion of the Court of Appeals ........ la
Appendix B—Orders Denying Rehearing or Rehear-
I TRON oi its Sen etch vacate, 101la
Appendix C—Constitutional Provisions, Statutes and
Pe ee 106a
Iti
TABLE OF AUTHORITIES
PAGE
Cases:
Alford v. United States, 282 U.S. 687 (1981) ................ 15
Amsler v. United States, 381 F.2d 87 (9th Cir. 1967)... 10
Apodaca v. Oregon, 406 U.S. 404 (1972) 00... 16
Arizona v. Washington, 434 U.S. 497 (1978) ......0..0........ 19
Bivens v. Six Unknown Agents, 403 U.S. 388 (1971)... 44
Boyd v. United States, 116 U.S. 616 (1886) o.oo. 40
Cohen v. California, 403 U.S. 15 (1971) «0.0.0.0. 31
Coppedge v. United States, 272 F.2d 504 (1st Cir.
Re MART SUP chit lt dl eat Aah in Caer ee 30
Covington v. Harris, 419 ¥.2d 617 (D.C. Cir. 1969)... 21
Dennis v. United States, 339 U.S. 162 (1950) .......... se 28
Donaldson v. United States, 400 U.S. 517 (1971) 33, 43, 44, 45
Duncaa v. Louisiana, 391 U.S. 145 (1968)... 16
FLA. v. Pacifica Foundation, 438 U.S. 726 (1978) ... 31
Franks v. Delaware, 438 U.S. 154 (1978) «0.000.000.0000... 44-45
Gannett Co., Inc. v. De Pasquale, 99 S. Ct. 2898
PO ras shccccrsccssth save Mabie aed tae tag shail ts 16, 17, 20, 22
Giordano v. United States, 416 U.S. 505 (1974) .......... 36
Ham v. South Carolina, 409 U.S. 524 (1978) «0.0.0.0... cone
Hays v. Missouri, 120.U.8. 68 (1887) 00.0... 11
In re Josephson, 218 F.2d 174 (1st Cir. 1954) .............. 5
In re Oliver, 333-U.8..257. (1948) .................ccccceccerscereeeees 17
In re United States, 565 F.2d 19 (2d Cir. 1977) ............ 20
Irvin v. Dowd,.366 U.S. 717 (1961) 0.0.0.0... 23
Katz v. United States, 389 U.S. 347 (1967) 0.0.0. 40
IV
PAGE
Laughlin v. United States, 474 F.2d 444 (D.C. Cir.
TONED cain iciess tees 34
Mattox v. United States, 146 U.S. 140 (1892) ................ 28
Miller v. United States, 357 U.S. 301 (1958) ....000.00000.... 33
Nardone v. United States, 302 U.S. 379 (1937) ............ 33, 45
Nardone v. United States, 308 U.S. 338 (1939) ............ 33
Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1977) 20
Patrick v. United States, 574 F.2d 1109 (7th Cir. 1975) 34
Paz v. United States, 462 F.2d 740 (5th Cir. 1972) ... 30
Pointer v. United States, 151 U.S. 396 (1894) ............ 17
Reisman v. Caplin, 375 U.S. 440 (1964) oo... 33, 43
Ristaino v. Ross, 424 U.S. 589 (1976) ...0.0..e 11
Shelton v. Tucker, 364 U.S. 479 (1960) ...0.0000cen. 22
Silverthorne v. United States, 400 F.2d 627 (9th Cir.
RODD) io ivose scieiccsinliccnuahte opment ital os 29, 30
Smith v. Illinois, 390 U.S. 129 (1968) 2.000000... 14, 15
Stone v. United States, 324 F.2d 804 (5th Cir. 1963)... 10
Swain v. Alabama, 380 U.S. 212 (1965) ..00.0000.. 12
Terry v. Ohio, 393 U.S. 1 (1968)... eee 42
Turner v. Louisiana, 379 U.S. 466 (1965) 0.0.0.0... 23
United States v. Blue, 384 U.S. 251 (1966) 00.0000... 33
United States v. Borelli, 336 F.2d 376 (2d Cir. 1964)... 21
United States v. Caceres, 99 S. Ct.-1465 (1979) ............ 33
United States v. Clarke, 468 F’. 2d 890 (5th Cir. 1972) 10
United States v. Costello, 255 F.2d 876 (2d Cir.
DOG na cin er 36, 37, 38
United States v. Crowell, 442 F.2d 346 (5th Cir.1971) 10
United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972) 6, 11
United States v. Dioguardi, 492 F.2d 70 (2d Cir. 1974) 16
PAGE
United States v. Fruchtman, 421 F.2d 1019 (6th Cir.
ESERIES CaSO Ra ns eye ae ane een 34, 45
United States v. Genser, 582 F.2d 292 (3d Cir. 1978),
on remand, 595 F.2d 139 (3d Cir. 1979) ......34, 43, 44, 45
United States v. Gibbons, —— F.2d —— (2d Cir.
I ict ca saath ah tes kauhdd dentighal eas bbo 8
United States v. Grasso, —— F.2d —— (2d Cir. April
ae as, id 08 sn egaidlavioes sdewsbinioietinnasocs 19
United States v. Gurney, 558 F.2d 1202 (5th Cir.1977) 20
United States v. Harris, 501 F.2d 1 (9th Cir. 1974)... 15
United States v. Harris, 542 F.2d 1283 (7th Cir. 1976) 11
United States v. Hoffa, 367 F.2d 698 (7th Cir. 1966) ... 20
United States v. Hoyt, 451 F.2d 570 (5th Cir. 1971)... 10
United States v. LaSalle National Bank, 437 U.S. 298
Ree evs etsy piled aay uneasscaooon ened 33, 438, 44, 45
United States v. Mangan, 575 F.2d 32 (2d Cir.
a ee eee ea in a a mateinict za sctucteteact 34, 36, 42, 43
United States v. McKinney, 429 F.2d 1019 (5th Cir.
I a ce Bist ee i aweeds an cagvicihiagagna he MeC aie 28
United States v. Miller, 500 F.2d 751 (5th Cir. 1974) 34
United States v. Mills, 440 F.2d 648 (6th Cir. 1971)... 10
United States v. Newman, 549 F.2d 240 (2d Cir. 1977). 13
United States v. Olson, 576 F.2d 1267 (8th Cir. 1979) 34
United States v. Ott, 489 F.2d 872 (7th Cir. 1978) ........ 15
United States v. Pomponio, 517 F.2d 460 (4th Cir.
a a ips tlaens . 80
United States v. Praetorius, 451 F. Supp. 371 (E.D.
REET AD ey ARO Re eh) ec aS TS 36, 37
United States v. Rattenni, 480 F.2d 195 (2d Cir. 1973) 30
United States v. Rhoades, 556 F.2d 599 (1st Cir. 1977) 29
United States v. Spinella, 506 F.2d 426 (5th Cir.
ay he ly TI ates Aad IO hd cg a A AR A 22, 27
United States v. Starling, 571 F.2d 934 (5th Cir.1978) 19
United States v. Tramunti, 513 F.2d 1087 (2d Cir.
AB ASE A le ged kas a I Re Re A aE 11
vI
PAGE
United ‘States v. Tucker, 316 F. Supp. 822 (D. Conn. —
TERR eee we CET a 35
United States v. Vignola, 464 F'. Supp. 1091 (KE. D. Pa.
aera pnitser Sue ASE ROR OMng Cntr Usie amon era (Ure aay 35
United States ex rel. Greene v. State of New Jersey,
519 F.2d 1856 (8d Cir. 1976) ....5......c ccs 29
Weeks v. United States, 232 U.S. 383 (1914) 000.0000... 40
Williams v. Florida, 399 U.S. 78 (1970)... 16
Zicarelli v. Gray, 543 F. 2d 466 (3d Cir. 1976) .............. 16
Constitational Provisions, Statutes and Rules:
OE 55 oor ekccndnd 31 passim
ne | OE CET ET REET RETO POTD passvm
IN 8c Soa. Sus sans Dicnscacvnniaaeanarossvenetb@ions 36, 38
) eo! a RANGING an in nn SER Te OEE 10
Nn ee al a Lusnsducisugusboontivesgnin tbe 3
5455. ch ys nts san dadaaacaspuadpdaldn wien avd Nedkack 3
MIEN 555. hice cd Wnt dinate Aid, Accretion endixdends 3
Sy ic Gosinski sa ido tks as dik yana vin yale eresonghebosie 3
SEU GE AGRO i .tickcc nick deuliiacisaacitisauia 31 passim
i Soe EARP SARE Sargent pre aaa peaant tere tre aeme 34
Southern District Speedy Trial Plan, Rule 6(b) .......... 19
Miscellaneous:
ABA Standards Relating to Fair Trial and Free
PE IE 8) tii doris 2k phate esha bone aekhieiet- es 21
ABA Standards Relating to Trial By Jury (1968) ...... 11
Association of the Bar, Freedom of the Press amd
FRE TO BIE Fi ini sii cde nisspivdcsaratiosssteoperteveviene 21
Association of the Bar, Committee Report on Access
to Federal Income Tax Returns, 34 The Record
PU II 6a i score ass vskesncchasbssesounbuceniunaah tesebbrs ceva: 41, 42
Babcock, Voir Dire: Preserving ‘‘Its Wonderful
Power’’, 27 Stanford L. Rev. 545 (1975) ........ 13, 14, 16
Ss Sad RD ABS LIED WALD 0 55 1d
VII
PAGE
Comment, The Need for Reform of The Informational
and Evidentiary Uses of Tax Returns in Non-
Criminal Tax Prosecutions, 14 Am. Crim. L. Rev.
BR NE sidastce dats olsitionndanedaemecaen na eiae 35, 38
Davies, The Interpretation of Statutes, 35 Col. L. Rev.
ER GESORIERGSIER, St SUE etal hrc eee rin. Fete eet ae 44
Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev.
CU oe, acsete ap lucnadedchics in cca cnoembentsnenbekes kanes 36
Note, Alternatives Available to Trial Courts to Pro-
tect Jurors from Prejudicial Publicity, 9 Seton
BIE Bi SO Te CE ie Liicccettiakcen ed iid 21
Note, Limiting the Peremptory Challenge: Repre-
sentation of Groups on Petit Juries, 86 Yale L. J.
SI iiiti pec cpeeinncislesnatiun die ea obkcdmidoeecira: 12
Note, Sequestration: A Possible Solution to the Free
Press-Fair Trial Dilemma, 23 Am. U. L. Rev. 923
RE hs disisnc. Sein acetone max aihaaclal nani 21
Note, Voir Dire: Establishing Minimum Standards
to Facilitate the Exercise of Peremptory Chal-
lenges, 27 Stanford L. Rev. 1493 (1975) ..00.0.00....... 12
Privacy Study Commission, Federal Tax Return Con-
Podemmbetatibe (TOIG) on. cael ccncccc Lee cehecct Neca 38, 39
Report to the Administrative Conference of the
United States on Administrative Procedures of
the Internal Revenue Service, Sen. Doc. 94-266,
94th Cong. 2d Sess. (October 1975) oo... 35
J. Wigmore, Evidence, §1367 (3d ed. 1940) ooo... 16
Zeisel & Diamond, The Jury Selection im the Mitchell-
Stans Conspiracy Trial, 1976 Amer. Bar F. Res.
eae RIERA ela ee COMME CF CULL ARR 14
IN THE
Suprene Court of the United States
October Term, 1978
No.
—_— ee
Leroy Barnes, Steven Baxer, JosepH Haypen, Joun
Hatcuer, WayMin Hivzs, James McCoy, Watace FisHEr,
Water Centeno, Leon Jounson, SteveN Monsanto and
Lronarp Ro.i1ock,
Petitioners,
v.
Unrtep States or AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Petitioners Leroy Barnes, Steven Baker, Joseph Hay-
den, John Hatcher, Waymin Hines, James McCoy, Wal-
lace Fisher, Walter Centeno, Leon Johnson, Steven Mon-
santo and Leonard Rollock respectfully pray that a writ of
certiorari issue to review the judgment of the United
States Court of Appeals for the Second Circuit in this
case.
Opinions Below
The opinion of the Court of Appeals (Moore and Van
Graafeiland, JJ.) (Meskill, J., dissenting) (App. A, mfra,
pp. la-100a) is not yet reported. The decision of the Court
of Appeals denying rehearing or rehearing en banc (Oakes,
Timbers and Meskill, JJ., dissenting from the denial of re-
hearing en banc) (App. B, infra, pp. 101la-105a) is not yet
reported.
Jurisdiction
The judgment of the Court of Appeals was entered on
April 23, 1979. <A timely petition for rehearing with a
suggestion of rehearing en banc was denied on June 18,
1979. On July 3, 1979, Mr. Justice Marshall extended
the time for filing a petition for a writ of certiorari to and
including August 17, 1979. The jurisdiction of this Court
is invoked under 28 U.S.C. §1254(1).
Questions Presented
1. Whether a criminal defendant may be tried before
an ‘‘anonymous”’ petit jury and whether a defendant may
be compelled to empanel a jury whose veniremen’s names,
identities, residence locales or ethnic and religious back-
grounds are withheld during the trial court’s voir dire.
2. Whether a defendant’s right to trial by an impartial
jury is violated by a trial court’s refusal to make inquiry
into a documented incident of juror misconduct whereby a
trial juror exhibits blatant prejudice against the defense
outside the court’s presence.
3
3. Whether a hearing lies to determine if the Govern-
ment’s acquisition of a defendant’s income tax returns
for use in a nontax criminal prosecution violates the provi-
sions of Title VII of the Tax Reform Act of 1976.
Constitutional Provisions, Statutes and
Rules Involved
The Fourth Amendment to the United States Con-
stitution
The Sixth Amendment to the United States Con-
stitution
Title 26 United States Code $6103
Title 28 United States Code §§1862, 1863 and 1866
Rule 24 of the Federal Rules of Criminal Procedure
The ertinent text of the foregoing provisions is set
forth in Appendix C, infra, pp. 106a-111a.
Statement of the Case
1. On March 14, 1977, a grand jury in the Southern Dis-
trict of New York returned an indictment charging seven-
teen individuals, among them petitioners herein, with con-
spiracy to violate the federal narcotics laws, in violation of
21 U.S.C. §846, and with various individual substantive
violations thereof (21 U.S.C. §§812, 841(a)(1) and 841(b)
(1)(A)). In addition, petitioner Barnes was charged sep-
arately with managing the alleged conspiracy as a continu-
ing criminal enterprise, in violation of 21 U.S.C. §848.
Given the vast scope of the prosecution and the news-
worthiness of petitioner Barnes, the case, not surprisingly,
engendered massive pretrial publicity in the metropolitan
4
New York area, most notably a cover story appearing in a
May 1977 issue of the New York Times Sunday Magazine.
Pretrial motions by the defense for a change of venue or, in
the alternative, restrictions upon pretrial publicity and the
information disseminated to the press all were denied.
However, in response at least in part to the pervasive pub-
licity surrounding the case, the district court consented to
adjourn the trial’s scheduled commencement from June
1977 to September 1977.*
When the court reconvened in September 1977, however,
just prior to the commencement of trial itself, the trial
judge announced, sua sponte, the procedures he had de-
cided to follow in connection with the empaneling and voir
dire examination of prospective jurors. Without assign-
ing any reasons for his unprecedented action, other than
an expressed solicitude for the jurors’ ‘‘privacy’’—jurors
he had already decided to sequester, in any event—the
judge announced that he had decided to withhold from
counsel the names, identities or residence locales of the
veniremen during the actual voir dire and that he would
refuse to make any alternative inquiry, in light of their
anonymity, into the individual jurors’ ethnic or religious
backgrounds as part of the voir dire, claiming the latter
to be ‘‘irrelevant’’ to the intelligent exercise of defendants’
peremptory challenges.**
* During the jury voir dire itself, in September 1977, the judge
was again to express his grave concern with the “irresponsibility”
of the press in this case (17a).
** When counsel suggested that, based on the sequestration order
and the restrictions regarding names and addresses, jurors would infer
the “real” reason for the judge’s actions, namely, that the court be-
lieved that the jurors and their families might somehow be in danger,
the judge disavowed the suggestion, responding: “It has nothing to
do with any real reason. I just do not want them interfered with,
(footnote continued on next page)
5
The trial judge’s actions, occurring sua sponte on the
eve of trial—without any advance notice or request for such
relief from the Government—caught defense counsel, who
already had routinely submitted the customary voir dire
requests, completely by surprise. Despite defense requests
that, in order to preserve juror privacy—the court’s osten-
sible motive—the names be revealed to counsel in camera
or that spectators be excluded during the voir dire—sug-
gestions supported by ample authority—both alternatives
were rejected by the trial court. Moreover, the court re-
fused to permit the defendants to supplement their earlier
submitted voir dire requests, despite these latterly-imposed
—and unexpected—restrictions.*
their privacy interfered with.” (87a). Upon informing the prospec-
tive jurors that they were not to disclose their names and addresses
and that they would be sequestered, the judge informed them that his
decision was based on the likelihood of extensive trial publicity and
the possibility that the media would attempt to interview jurors’
families.
That no actual threats were, in fact, received in this case was
noted explicitly by Judges Meskill and Oakes, in dissent (87a, 104a),
and conceded by the Majority (18a, 27a).
* A sample of the colloquy that transpired at the judge’s announce-
ment gives a rough idea of counsel’s surprise and the court’s disinclina-
tion to engage in extensive dialogue on the subject :
[CouNsEL]: Their names will not be revealed?
Tue Court: That is right. :
[CouNsEL]: I object.
THE Court: You can object as much as you like; that is my
ruling ;
Conic: : Your honor...
Tue Court: Sit down. I have made my ruling. I don’t
want to listen any more.
(HTr. 7-8)
Moreover, the record reveals that the trial judge exercised very
little discretion on the subject, simply announcing his decisions, with-
out entertaining oral argument, and immediately silencing all attempts
at colloquy (87a). As noted by Judge Meskiil, in dissent, citing Judge
Magruder’s “abuse of discretion” standard in Jn Re Josephson, 218
F.2d 174, 182 (ist Cir. 1954), under the circumstances, “[i]t can
hardly be said that he ‘weigh[ed] the relevant factors’.” (92a).
6
The trial judge’s extraordinary cluster of restrictions
regarding his conduct of the voir dire in this case thus
made the actual voir dire the only possible source of in-
formation available about the prospective jurors. The
identities of the prospective jurors were kept secret. All
independent investigation was expressly prohibited. The
jury that was ultimately selected was immediately se-
questered. And any inquiry regarding prospective jurors’
ethnic backgrounds—information traditionally relied upon
as a basis for the exercise of peremptory challenges—was
explicitly precluded by the trial court, despite the fact that
such information routinely is imparted to litigants in fund-
amentally neutral fashion merely through the disclosure
of veniremen’s names and residence locales.
Jury voir dire, whose ultimate purpose is to elicit broad
information regarding potential veniremen’s backgrounds
and attitudes, thus was restricted by the trial judge in this
case virtually to matters upon which challenges for cause
were to be exercised, totally frustrating defense attempts
to gain insight into jurors’ habits, lifestyles, philosophies,
biases or prejudices.
The trial court’s restrictions evinced not only a funda-
mental inisconception of the scope of jury voir dire, but
manifested, as well, a total evisceration of the role of
peremptory challenges in the jury selection process. If
the right to peremptory challenges is to exist at all, its
exercise must be conditioned upon the elicitation of suf-
ficient background information to render its exercise mean-
ingful. United States v. Dellinger, 472 F.2d 340, 367 (7th
Cir. 1972). The unprecedented actions of the trial judge
in refusing to elicit such information in this case, however,
rendered the exercise of defendants’ peremptories an
empty ritual..
a
rene eee ered
wen a.
7
2. A sharply divided United States Court of Appeals
for the Second Circuit (Moore and Van Graafeiland, JJ.)
(Meskill, J., dissenting) affirmed the convictions. Noting
that ‘‘[i]t is not, after all, the prospective jurors who are
on trial .. .’’ (25a), and that if extensive questioning
of prospective jurors were allowed, ‘‘any semblance of
jurer privacy would have to be sacrificed’’ (3la), the
Majority heid that, as long as there is some voir dire ques-
tioning as to identifiable issues connected with the persons
or events likely to be involved at trial, ‘‘an appellate court
faced with a cold record should be satisfied that justice has
been done’’ (23a). Conceding that, in point of fact, no
untoward incidents had occurred prior to trial which might
have warranted the drastic—and unprecedented—restric-
tions actually imposed (18a, 27a), the Majority held,
nevertheless, that it would not interfere with the trial
court’s discretion, despite the court’s failure to explore
less drastic alternatives, because, given the ‘‘all too sor-
did’’ history of suspected jury tampering in other un-
related narcotics trials, ‘‘precaution was best taken so that
fears would not become realities’’ (27a).
Judge Meskill dissented (85a-100a). Noting that the
peremptory challenge is one of the most essential safe-
guards by which defendants may secure a fair and impar-
tial jury (90a), he found the cumulative effect of the trial
court’s cluster of decisions restricting voir dire in this
case, in the absence of persuasive countervailing considera-
tions, to have been so significant as to have deprived de-
fendants of a fair trial. Observing that the trial judge had
taken this unprecedented action sua sponte—without any
request by the Government—and that all defense requests
for colloquy on the subject were sharply denied (87a),
8
Judge Meskill determined that, under the circumstances,
where defendants were not provided jurors’ names or ad-
dresses, failure to make alternative inquiry into their
ethnic backgrounds constituted fundamental error war-
ranting reversal.
3. The Court of Appeals denied rehearing or rehear-
ing en banc with three judges dissenting (Oakes, Timbers
and Meskill, JJ., dissenting from the denial of rehearing
en banc) (103a-105a). Observing that the Majority had
ratified an entirely new rule of law standing without prec-
edent in the history of Anglo-American jurisprudence,
Judge Oakes, reiterating that no threats had occurred
prior to trial, noted that sequestration obviously would
have been an ample remedy if anyone had been threatened
(104a) and that, in any event, there existed other less
drastic alternatives—including revelation of jurors’ iden-
tities in camera to counsel—that went unexplored by the
trial judge (105a). Recounting an extensive litany of
sensational trials involving notorious defendants over the
past forty years in which jury anonymity had never before
even been contemplated, much less implemented sua sponte,
Judge Oakes concluded, presciently, that the precedent
established by this case was as sure to be followed by other
judges as ‘‘a flock of sea gulls follows a lobster boat’’
(105a).*
* Indeed, any suggestion that the case at bar is strictly sui generis
and unlikely to recur was quickly put to rest by the Second Circuit
itself, which subsequently affirmed a similar case involving analogous
restrictions on disclosure of jurors’ residence locales and communities.
United States v. Gibbons, F.2d , No. 78-1189 (2d Cir. June
25, 1979). Moreover, the legal controversy engendered has spilled
over into the public sector, leading even the New York Times to
comment editorially on “tr[ial] by people, not by numbers.” The
New York Times (May 10, 1979) P: 22. See also, Nat'l. L.J. (June
9
18, 1979) p.3; N.Y.L.J. (July 16, 1979) p. 1; N.Y.L.J. (August 10,
1979) p. 1.
I id tiie fll ha SOs Bip eer MP BO hr ht iO
Reasons for Granting the Writ
I
The District Court’s unprecedented empaneling of
an “anonymous” petit jury, its refusal to disclose jurors’
ethnic backgrounds and its failure to explore less dras-
tic Seeman denied petitioners’ Sixth Amendment
rights.
A sharply divided panel of the United States Court
of Appeals for the Second Circuit, in the context of affirm-
ing petitioners’ convictions, has ratified a novel rule of
law, totally unsupported by authority from any other cir-
cuit or this Court, which is unique and without precedent
in the entire history of Anglo-American criminal juris-
prudence.
It has sanctioned—for the first time in American legal
history—the trial of a defendant in a criminal prosecution
before an ‘‘anonymous’’ petit jury; viz., a jury that was
empaneled without the veniremen’s names, identities or
residence locales being revealed to counsel during the
course of the trial court’s voir dire and one that was em-’
paneled without permitting any inquiry whatsoever, in light
of their anonymity, into the individual jurors’ ethnic or
religious backgrounds.
Never before has there been a criminal trial conducted
in this Nation—under federal or state jurisdiction—in
which a defendant was not provided with the identities of
his prospective jurors as a customary—and undeviating—
part of the trial court’s voir dire process.
10
Yet in this criminal case, with absolutely no basis in
prior law, the Second Circuit has effectively emasculated
a fundamental part of the Sixth Amendment’s jury trial
guarantee. It has granted a trial judge the untrammeled
discretion to withhold from litigants the identities of petit
jurors in any case in which he unilaterally perceives a
danger to the jurors’ ‘‘privacy’’—the express reason given
by the trial judge herein—without even imposing a cor-
relative obligation on the trial judge to (a) articulate rea-
sons as to the particularity of the danger inherent in dis-
closure and (b) make a finding that no less drastic rem-
edies—including sequestration and im camera proceedings—
will afford satisfactory protection before resort to the
severe—and unprecedented—sanctions meted out in the
instant case.
A. Failure to Disclose Jurors’ Identities
or Ethnic Backgrounds
The Court of Appeals plainly mischaracterized peti-
tioners’ argument by implying that they sought a general-
ized fishing expedition into jurors’ backgrounds wholly
unrelated to any conceivably relevant line of inquiry.*
* In the interests of clarity, it should be emphasized what peti-
tioners do not contend. First, it is not asserted that defendants are
entitled, as a matter of right in every case, to jury lists and prospective
jurors’ names and addresses in advance of trial. Cf., United States v.
Clarke, 468 F.2d 890 (5th Cir. 1972); United States v. Mills, 440
F.2d 647 (6th Cir. 1971) ; Stone v. United States, 324 F.2d 804 (Sth
Cir. 1963) (failure to provide jury lists prior to trial in non-capital
case not error) with 18 U.S.C. §3432; United States v. Crowell, 442
F.2d 346 (5th Cir. 1971) ; United States v. Hoyt, 451 F.2d 570 (Sth
Cir. 1971) ; Amsler v. United States, 381 F.2d 37 (9th Cir. 1967)
(pre-trial disclosure of jury lists in capital case compelled). Despite
the obvious utility of such pre-trial disclosure to counsel, all that is
asserted here is that, at a minimum, litigants are entitled, as they
always have been, to such disclosure at the time of actual voir dire
(footnote continued on next page)
11
The critical relevance that sufficiently expansive jury
voir dire plays in exploring grounds upon which peremp-
tory challenges may intelligently be exercised springs from
judicial recognition of the fact that, even where jurors’ re-
sponses fall short of an admission of bias, such responses
may nevertheless aid counsel in deciding to exercise per-
emptory challenges. United States v. Harris, 542 F.2d
1283 (7th Cir. 1976) ; United States v. Dellinger, supra, 472
F.2d at 367-370.
Experience has shown that one of the most effective
means to free the jury-box from [jurors] unfit to be
there is the exercise of the peremptory challenge. The
public prosecutor [and, presumably, the defendant]
may have the strongest reasons to distrust the char-
acter of a juror offered, from his habits and associa-
tions, and yet find it difficult to formulate and sustain
a legal objection to him. In such cases, the peremptory
challenge is a protection against his being accepted.
Hayes v. Missouri, 120 U.S. 68, 70 (1887).
In evaluating the importance of peremptory challenges
to a defendant’s right to fairly empanel ‘‘his’’ jury, this
Court has observed that, whatever its constitutional under-
pinnings, the peremptory is still ‘‘one of the most important
of the rights secured to the accused,’’ and that ‘‘[t]he
itself. See, ABA Standards Relating to Trial By Jury, §2.2 (Ap-
proved Draft, 1968).
Second, it is not asserted that defendants ordinarily are entitled,
in each and every case, to voir dire prospective jurors on their ethnic
or religious backgrounds. Cf., Ristaino v. Ross, 424 U.S. 589 (1976) :
Ham v. South Carolina, 409 U.S. 524 (1973) ; United States v. Tra-
munti, 513 F.2d 1087, 1114 (2d Cir. 1975). Rather, in light of the
trial court’s sua sponte ruling in this case denying access to jurors’
identities, inquiry into prospective jurors’ ethnic backgrounds, in lieu
of their identities, was mandated, under the circumstances, in the
interests of fundamental fairness.
12
denial or impairment of the right is reversible error with-
out a showing of prejudice.’’ Swain v. Alabama, 380 U.S.
212, 219 (1965).
Critical in the context of exploring jurors’ backgrounds
—especially where their identities are not revealed—is the
ethnic or religious backgrounds of prospective jurors in
order for counsel to properly weigh and evaluate those
factors which make up the whole person. Indeed, as several
commentators have noted, this Court has implicitly ap-
proved peremptory challenges based on group affiliations
of prospective jurors. Note, Limiting the Peremptory
Challenge: Representation of Growps on Petit Juries, 86
Yale L.J. 1715 (1977) ; Note, Voir Dire: Establishing Mint-
mum Standards to Facilitate the Exercise of Peremptory
Challenges, 27 Stanford L.Rev. 1493 (1975).
In Swain v. Alabama, supra, this Court rejected at-
tempts to place restrictions upon prosecutors’ exercise of
peremptory challenges for suspected racial or ethnic mo-
tives, stating that litigants’ untrammeled discretion in the
exercise of these challenges was sacrosanct, even when
based upon ethnic considerations:
[The peremptory challenge] is no less frequently ex-
ercised on grounds normally thought irrelevant to legal
proceedings or official action, namely, the race, re-
ligion, nationality, occupation, or affiliations of people
summoned for jury duty. For the question a prosecu-
tor or defense counsel must decide is not whether a
juror of a particular race or nationality is in fact
partial, but whether one from a different group is less
likely to be. It is well known that these factors are
widely explored during the voir dire, by both prosecu-
—
ee eee ie
13
tor and accused.... This Court has held that the fair-
ness of trial by jury requires no less. Hence venire-
men are not always judged solely as individuals for
the purpose of exercising peremptory challenges.
Rather they are challenged in light of the limited
knowledge counsel has of them, which may include their
group affiliation, in the context of the case to be tried.
Id., 380 U.S. at 220-221 (emphasis added).
See also, United States v. Newman, 549 F.2d 240, 249 (2d
Cir. 1977).
In analyzing the necessity for this kind of background
evaluation and its relevance in exercising challenges, Pro-
fessor (now Assistant Attorney General) Babcock has
articulated what is probably the underlying motive behind
the relevance of such an inquiry:
The peremptory, made without giving any reason,
avoids trafficking in the core of truth in most common
stereotypes. ... Common human experience, common
sense, psychosociological studies, and public opinion
polls tell us that it is likely that certain classes of peo-
ple statistically have predispositions that would make
them inappropriate jurors for particular kinds of
cases. But to allow this knowledge to be expressed in
the evaluative terms necessary for challenges for cause
would undercut our desire for a society in which all
people are judged as individuals and in which each is
held reasonable and open to compromise. ... Instead
we have evolved in the peremptory challenge a system
that allows the covert expression of what we dare not
say but know is true more often than not.
Challenges for cause, moreover, could not effec-
tively screen those who share biases and prejudices
common to a social or ethnic group, or an economic or
social class.... This phenomenon is especially likely
14
to occur in cases of group bias where the individual
juror may have no inkling that his views are not shared
by others outside his own group or that his attitudes
so profoundly color his perceptions that he may be in-
capable of accepting testimony with an open mind.
Babcock, Voir Dire: Preserving ‘‘Its Wonderful Power’’,
27 Stanford L. Rev. 545, 553-554 (1975).*
Ordinarily, this information is imparted to litigants in
fundamentally neutral fashion—disclosure of jurors’
names and addresses as a normal part of the voir dire.
Had that ordinary practice been followed here, in point of
fact, there would be no need to consider special inquiry
into an area of such great sensitivity.
However, in the case at bar, it was this very failure of
the trial court to permit inquiry either into jurors’ names
and addresses or their ethnic backgrounds that effectively
emasculated defendants’ ability to intelligently exercise
their peremptory challenges. In an analogous context,
this Court repeatedly has struck down similar restrictions
placed upon defense inquiry into witnesses’ names and
addresses for the selfsame reasons asserted here for in-
quiry into jurors’ backgrounds.
In Smith v. Illinois, 390 U.S. 129 (1968), this Court held
it constitutional error to sustain objections to defense
* Indeed, the experience of recent celebrated trials, and the jury
selection techniques that were employed, demonstrate beyond per-
adventure that ethnic backgrounds and group affiliations of jurors may
well be the single most critical piece of information to be elicited upon
voir dire. See, e.g., Zeisel & Diamond, The Jury Selection in the
Mitchell-Stans Conspiracy Trial, 1976 Amer. Bar F. Res. J. 151;
Babcock, Voir Dire, supra, 27 Stanford L. Rev. at 560 n.54 (and
authorities cited therein).
Ect SSR CCE DMAB SA L at SP Pore 22 I pe ot OT
15
questions asking a witness for his name and address, stat-
ing:
The witness’ name and address open countless
avenues of in-court examination and out-of-court in-
vestigation. To forbid this most rudimentary inquiry
at the threshold is effectively to emasculate the right
of cross-examination itself.
Id., 390 U.S. at 131.
The analysis offered by Mr. Justice Stone in Alford v.
United States, 282 U.S. 687 (1931) elucidates the purpose
for this strict rule:
Counsel often cannot know in advance what per-
tinent fact may be elicited on cross-examination. For
that reason it is necessarily exploratory; and the rule
that the examiner must indicate the purpose of his
inquiry does not, in general, apply. (citations omitted).
* * *
The question ‘‘Where do you live?’’ was not only an
appropriate preliminary to the cross-examination of
the witness, but on its face . . . was an essential step
in identifying the witness with his environment, to
which cross-examination may always be directed.
Id., 282 U.S. at 692-693.
See also, United States v. Harris, 501 F.2d 1, 7-9 (9th Cir.
1974); United States v. Ott, 489 F.2d 872, 875-877 (7th
Cir. 1973) (Stevens, J.).
The critical importance of wach probing inquiry is
patent. Voir dire represents the only opportunity for lit-
igants to examine and screen jurors, who are to have the
most crucial role in the trial process as the ultimate triers
16
of fact.* Since appellate courts exhibit great reluctance
to disturb voir dire decisions unless prejudice is strongly
suggested, jury bias goes effectively unchallenged once
the opportunity to screen it out on voir dire has passed.
See, United States v. Dioguardi, 492 F.2d 70 (2d Cir.
1974).**
If the right to trial by an impartial jury and the right
of confrontation are, after all, correlative Sixth Amend-
ment rights, one fundamental corollary is that defendants,
at the very least, are entitled to be confronted not merely
by their accusors, but also by the triers of their fates as
well.t For the voir dire to be more than an empty formal-
* Indeed, Professor Babcock has specifically analogized jury voir
dire to cross-examination, quoting 5 J. Wigmore, Evidence §1367 (3d
ed. 1940) (27 Stanford L. Rev. at 565).
** In the instant case, moreover, juror bias and actual misconduct
was not merely speculative, but, in fact, actually surfaced midtrial.
See Point II, infra.
+ Moreover, jury anonymity—and its relationship to trial secrecy
—obviously implicates subsidiary Sixth Amendment issues transcend-
ing the simple impairment of defendants’ right to properly exercise
peremptory challenges. The central purpose of trial by jury “is to
prevent oppression by the Government by providing a ‘safeguard
against the compliant, biased, or eccentric judge.’ . . . ‘Given this pur-
pose, the essential feature of a jury obviously lies in the interposition
between the accused and his accuser of the commonsense judgment
of a group of laymen ...’” Apodaca v. Oregon, 406 U.S. 404, 410
(1972) ; Duncan v. Louisiana, 391 U.S. 145, 156 (1968) ; Williams
v. Florida, 399 U.S. 78, 100 (1970) ; Zicarelli v. Gray, 543 F.2d 466,
479 (3d Cir. 1976) (en banc).
Yet, the obvious implications of the empaneling of an anonymous
jury—though the trial itself be held in open court—is to remove from
the defendant, and the public, the confidence in the jury system as
an independent safeguard of a democratic society. This Court, indeed,
only recently has recognized that the public trial right guaranteed by
the Sixth Amendment is a right created primarily for the benefit of
the defendant. Gannett Co., Inc. v. DePasquale, 99 S.Ct. 2898
(1979). This inherent distrust of secret proceedings is deeply rooted
(footnote continued on next page)
Ree S RE hire daasc we ~ WA
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17
ity, it is fundamental that defendants must be permitted
to inquire into the identities of the jurors who are to sit in
judgment of them:
[The accused] cannot be compelled to make a per-
emptory challenge until he has been brought face to
face, in the presence of the court, with each proposed
juror, and an opportunity given for such inspection
and examination of him as is required for the due
administration of justice.
Pointer v. United States, 151 U.S. 396, 408-09 (1894)
B. Failure to Explore Less Drastic Alternatives
As noted by Judge Oakes, the City of New York cer-
tainly is no stranger to the sensational trial nor to the
notorious (or newsworthy) defendant (104a-105a). Yet in
no trial in history has a court ever before intimated—
much less ruled sua sponte on the eve of trial—that a
criminal defendant is not entitled to be apprised of the
identities of his jurors, particularly in the case at bar,
where it is undisputed that (a) there had been no sugges-
tion of threats, (b) the added prophylactic precaution of
sequestration already had been decided upon and (c) there
was no suggestion that sequestration was an insufficient
remedy,
In the face of so formidable an array of uniform prior
practice—and the unprecedented action he was about to
in Anglo-American jurisprudence, harkening back to the excesses
historically attributed to the Spanish lnsuitinion and the English
Court of Star Chamber. Jn re Oliver, 333 U.S. 257, 268 (1948). It
can thus be no answer to say that, despite the jurors’ anonymity, the
trial itself was open to the public. As historians have noted, despite
its privately-practiced excesses, the Court of Star Chamber still held
its actual trials in public. Gannett, 99 S.Ct. at 2926-27.
18
take—the trial judge had, at the very least, some minimal
obligation to place on the record his reasons for taking
such drastic action and for finding that no less drastic
alternatives existed in this case. No such findings, of
course, were made; the trial judge refusing even to enter-
tain colloquy from counsel on the subject.
In ratifying the trial judge’s conduct in empaneling an
‘‘anonymous’’ jury—waiting virtually until the eve of the
trial to announce his decision (and catching all parties
completely by surprise)—the Court of Appeals operated
on two clearly erroneous assumptions. First, it assumed
the district judge’s actions were ‘‘manifestly necessary’”’
in light of the ‘‘all too sordid’’ history of jury tampering
in other wholly unrelated Southern District narcotics trials.
Second, it assumed that, before having taken such drastic
action, the trial court painstakingly considered all less
drastic alternatives, and after careful consideration (and
consultation with counsel), it prudently exercised its dis-
cretion by taking the actions complained of herein. Neither
assumption is borne out by record fact.
In the first place, despite the Majority’s transparent
attempts to portray the purported ‘‘dangerousness”’ of
these defendants—based entirely upon wholly speculative
analogy to other unrelated multidefendant narcotics con-
spiracy trials—in point of fact, as noted by the dissent,
no incidents occurred either before or during the trial
of this case to justify any inference of dangerousness
(104a). The Majority implicitly conceded as much when
it stated that, while no actual threats were received in this
19
case, ‘‘the suggestion of disruption was manifest’’ (18a,
27a).*
Second, the trial judge refused to entertain argument
on the subject—simply announcing his decision sua sponte
on the eve of trial and immediately silencing all attempts
at colloquy (HTr. 7-22).** As noted by Judge Meskill, in
dissent, under the circumstances, ‘‘[i]t can hardly be said
that he ‘weigh[ed] the relevant factors’ ’’ (92a).t
Third, and most importantly, not only was this wholly
unprecedented action taken without the input of counsel,
but the trial judge made no attempt to preserve juror
privacy from media inquiry by means less drastic than
total anonymity, despite the existence of substantial au-
* One notes, rhetorically, that if “the suggestion of disruption was
manifest,” the District Court could have remanded the defendants
with “high risk” designations were they to pose such a clear and
present danger to the court or the community. See, Rule 6(b) of
the Southern District Speedy Trial Plan. Yet the District Court
explicitly refused to do so.
** Significantly, the trial judge adhered to his decision in the face
of subsequent defense requests that, in order to preserve juror privacy
—the court’s ostensible motive—the names be revealed to counsel
in camera or that spectators be excluded during the voir dire. Both
suggestions were rejected by the trial court. Moreover, the court re-
fused to allow the defense to supplement its earlier submitted voir dire
requests, despite these latterly-imposed—and unexpected—restric-
tions.
+ In Arizona v. Washington, 434 U.S. 497 (1978), this Court up-
held the trial court’s declaration of a mistrial although ultimately
deeming it not to be manifestly necessary. The Court predicated its
affirmance, however, on the fact that, in making its ruling, the trial
court evinced concern on the record for the double jeopardy conse-
quences of its action and had given both sides opportunity to present
argument on the point. Thus, the trial court had at least exercised
its sound discretion in declaring a mistrial even though it proved to
be not strictly necessary (/d., 434 U.S. at 511-17). See also, United
States v. Starling, 571 F.2d 934, 940-41 (5th Cir. 1978); United
States v. Grasso, —— F.2d ——, No. 78-1284 (2d Cir. April 23,
1979) slip op. 5685, 5694 n.12.
20
thority for reaching that very result by means less restric-
tive of defendants’ right to a full and fair voir dire of the
potential trial jurors.
In Nebraska Press Association v. Stuart, 427 U.S. 539
(1977), this Court held that where pretrial disclosure of
information prejudicial to the accused was being dis-
seminated by the media, and where such events presented
an imminent threat to the empaneling of a constitutionally
impartial jury, the trial court had numerous options at its
disposal, short of issuance of a constitutionally invidious
‘‘oeage order’’ on the press, by which to preserve the im-
partiality and integrity of the trial process. Among the
prophylactic alternatives left open by this Court was that
of ‘‘[c]losing of pretrial proceedings with the consent of
the defendant.’’ Jd., 427 U.S. at 564, 576 n.3, 584 n.11
(Brennan, J., concurring). See also, Gannett Co., Inc. v.
DePasquale, 99 S.Ct. 2898 (1979).
Moreover, there is virtually limitless authority for the
trial court to have adopted counsel’s suggestion that the
jurors’ identities be revealed in camera or that the general
public be foreclosed from the jury selection process. See,
e.g., In re United States (Socialist Workers Party), 565
F.2d 19, 23 (2d Cir. 1977) (‘‘[I]t is by now well-established
that a district judge, in the exercise of his discretion, may
permit opposing counsel to participate in and assist him
in the conduct of in camera proceedings under a pledge
of secrecy’’) ; United States v. Gurney, 558 F.2d 1202, 1210
n.12 (5th Cir. 1977) (jury lists kept sealed from public
though veniremen’s names read aloud in open court);
United States v. Hoffa, 367 F.2d 698, 710 (7th Cir. 1966),
vacated on other grounds, 387 U.S. 231 (1967) (jurors’
_.,
21
names need not be read aloud in open court) ; Gannett Co.,
Inc. v. DePasquale, supra.
Fourth, it is highly significant that the Government
never requested the jury anonymity granted here, fully
content that simple sequestration, without more, would com-
pletely serve the purpose of protecting jurors from ex-
traneous influences.* Certainly, at the time of trial, it felt
its interests more than adequately protected by that limited
remedy.**
The requirement that the court explore the availability
of less drastic alternatives where a possible curtailment of
constitutional rights is threatened is inherent in the very
nature of due process. See, e.g., Covington v. Harris, 419
F.2d 617, 623 n.17 (D.C. Cir. 1969). It is, after all, an axiom
of due process that:
* Indeed, it may be noted parenthetically that, had the jury been
sequestered in United States v. Borelli, 336 F.2d 376, 392 (2d Cir.
1964) or the other cases relied upon by the Majority (12a), the prob-
lems there encountered quite conceivably might never have arisen.
** ABA Guidelines dealing with news coverage of court matters
recommend that sequestration be permitted in highly publicized trials
upon motion of either party, or upon the court’s own motion, when
appropriate. ABA STANDARDS RELATING TO FAIR TRIAL AND FREE
Press §3.5(b) (Approved Draft 1968). A study undertaken by the
Association of the Bar of the City of New York concerning fair trial-
free press conflicts suggested that sequestration be utilized more fre-
quently than it has been in the past, finding it “in theory, [to be] an
ideal remedy for publicity appearing during the trial.” Special Com-
mittee On Radio, Television, And the Administration Of Justice Of
The Association Of The Bar Of The City Of New York, Freepom
OF THE PRESS AND Fair TRIAL 58 (1967). See also, Note, Seques-
tration: A Possible Solution to the Free Press-Fair Trial Dilemma,
23 Am. U. L. Rev. 923, 933-34 (1974) (sequestration effectively
insulates jurors from prejudicial publicity without imposing restric-
tions upon press); Note, Alternatives Available to Trial Courts to
Protect Jurors from Prejudicial Publicity, 9 Seton Hall L. Rev. 73,
92 (1978).
22
«even though the governmental purpose be legiti-
mate and substantial, that purpose cannot be pursued
by means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved.
The breadth of... abridgment must be viewed in light
of less drastic means for achieving the same purpose.”’
Shelton v. Tucker, 364 U.S. 479, 488 (1960).
This principle is entirely as applicable in the context of
a criminal proceeding as in the case of overbroad legislation.
Manifestly, in light of the altogether extraordinary ac-
tion taken by the trial judge—far in excess of any relief
requested by the Government—it was incumbent that before
taking such unprecedented steps, it be required to explore
all possible alternative courses—including sequestration
and im camera proceedings—and make explicit findings,
preferably after a hearing, that there existed no reasonable
alternative to jury anonymity. See, e.g., Gannett Co., Inc.
v. DePasquale, supra, 99 S.Ct. at 2937 (Blackmun, J., dis-
senting) ; United States v. Spinella, 506 F.2d 426, 432 (5th
Cir.) (Wisdom, J.), cert. denied, 423 U.S. 917 (1975).
In the instant case, however, no such exploration of
alternatives, or articulation of reasons behind the court’s
unprecedented actions, was forchcoming. In the interests
of preserving jurors’ privacy—jurors who were being
sequestered, in any event—the trial court took actions
wholly out of proportion to the narrow purpose sought to be
achieved and in so doing, deprived defendants of their fun-
damental right to properly empanel a jury of their peers.
What the Court of Appeals has ratified, then, is nothing
less than unprecedented blanket authorization to keep ju-
23
rors’ identities secret any time the trial court unilaterally
perceives a danger of ‘‘undue influence’’—no matter how
remote or unparticularized—without first imposing a cor-
relative duty on the trial court to make findings of fact
(a) as to the particularity of the danger and (b) that no
less drastic remedies—including sequestration and im
camera proceedings—will afford satisfactory protection be-
fore resorting to the severe sanctions meted out in this
case.
Under the unique facts of this ease, where the trial
court’s sole expressed rationale was to preserve juror
privacy from the media, where the Government itself
though sequestration sufficient, where counsel was never
consulted or permitted to be heard on the matter and, most
importantly, where the trial court itself had made implicit
factual findings of non-dangerousness on the part of de-
fendants, the trial court’s sua sponte conduct was clear
error.
Petitioners’ right to trial by an impartial jury was
violated by the trial court’s refusal to inquire into a
documented incident of juror misconduct against the
defense outside the Court’s presence.
The presence of even one prejudiced juror violates a
defendant’s fundamental right to trial by an impartial jury.
Turner v. Louisiana, 379 U.S. 466, 471 (1965); Irvin v.
Dowd, 366 U.S. 717, 722, 727 (1961). Consequently, the
unvarying rule in every circuit, and this Court, always has
been that allegations of juror misconduct or bias manifest-
24
ing itself outside the Court’s presence require the trial
judge at a minimum to make some form of inquiry.
In this case, however, the Court of Appeals failed to
follow this established rule. Rather, it sustained the dis-
trict court’s decision to ignore a juror’s outrageous ex-
hibition of bias against the defense, without so much as an
inquiry into the incident. Because this ruling is in direct
conflict with the established practice in every other circuit—
as well as decisions of this Court interpreting the Sixth
Amendment’s guarantee of an impartial jury—and because
of its fundamental importance to the conduct of criminal
trials, the Court should grant certiorari to review this
holding.
A. The Incident on the Jury Bus
The danger that prejudice and prejudgment might infect
the jury in this trial was particularly acute. The anonym-
ity of the jury and the undue limitations placed on voir dire
created a substantial risk that persons harboring prejudices
created by pre-trial publicity might well be admitted to
the jury. Moreover, the anonymity of the jury, sequestra-
tion, and the other special features of this trial in and of
themselves were certain to engender speculation among the
jurors that such procedures were made necessary by some
particular infamy attributable to the defendants. In light
of these highly unusual circumstances, then, it was impera-
tive that the credibility of the trial evidence—and defend-
ants’ consequent innocence or guilt—be determined by an
objective and dispassionate jury.
25
Shortly after the commencement of trial, Juror No. 7*
began acting in a suspicious fashion. On various occasions,
he was observed either turning his back on the defendants
and their counsel or giving them ‘‘scary”’’ looks (Tr. 5899).
Even the trial judge’s attention was drawn to this juror
‘in particular’’, the court noting that he seemed to be ‘‘the
sleepy one on the jury.’’ (Tr. 5899).
Then, on November 1, 1977, after one month of trial,
four defense attorneys happened upon the juror bus as
they were leaving the courthouse at the end of the day.
What transpired was subsequently described on the record:
(CounseL): The bus was completely well lit. As
we were walking by the bus I looked up into the bus.
Seated in the back of the bus, I think in the last seat,
was Juror No.7. Seated to his left and maybe slightly
in front of him was I believe the second alternate juror
in the case. There was another juror back there in
that area. I don’t remember who it was, though.
As I looked at the juror, Juror No. 7’s eyes met
mine and the man gave me a—I don’t know how to
describe it except the f--- you sign.
Tue Court: The international signal.
(CounsEL): With his finger ...I clearly saw it.
There was also an expression on his face of, to say the
least, distaste for me.
* * *
This man gave me the finger, Judge. It’s as if he
yelled out to me, ‘‘F--- you, Mr. Goldberger.’’ That’s
exactly what he did.
(Tr. 5888-5895)
* This juror can be identified only by his position in the jury box,
since the trial court refused to disclose any juror’s name. (See Point
I, supra.)
26
Confronted with this overt demonstration of animus
and hostility, counsel immediately returned to the court-
house to advise the court of what had just transpired. The
following morning, they repeated that description on the
record. The fear that this juror was prejudiced, had pre-
judged the case, or had communicated such views to other
jurors with whom he was sequestered, understandably was
paramount in the attorneys’ minds:
(CounseL): To say it’s an ordinary circumstance
for a juror to turn around and give the international
sign, the finger, the f--- you sign, as it is to a lawyer
in a case in the middle of the trial when you are a juror,
I think is ridiculous. I think it indicates and manifests
the state of mind of a person that is not in a frame of
mind to be a juror. He’s obviously made up his mind
in this case already, Judge.
I don’t know about the other people who were sit-
ting in the back of the bus with him. I can’t say they
did anything except the No. 2 alternate juror was
smiling at the time.
(‘Tr. 5891)
A hearing was necessary to determine the extent to
which the defense was victim to this juror’s obvious hos-
tility :
(CounsEL): ... whether it’s just me or my client
and me or it manifests the feeling he has for the entire
defense—that I don’t know for sure.
(Tr. 5891)
However, even without a hearing, one fact seemed clear:
(CounseL): This man is certainly not going to
vote not guilty in this case.
(Tr. 5892)
27
Despite Juror No. 7’s misconduct, the Government op-
posed, and the trial court denied, defense applications to
voir dire this juror or to replace him with one of the
five remaining alternates.* Moreover, the Government
opposed, and the tiral court refused, any inquiry whatso-
ever to determine whether this juror was qualified to con-
tinue on the jury or whether any other jurors were privy
to the taint. Rather, at the Government’s request, the
trial court contented itself with instructing the jury in a
neutral fashion, without reference to the incident at bar,
that they should ‘‘keep an open mind’”’ (Tr. 5902).
Consequently, this individual remained on the jury, in-
teracting and conversing with the other jurors for the final
four weeks of trial, and ultimately participating in the
deliberations which resulted in the convictions now on ap-
peal. Given the trial court’s refusal to remove—or even
to question—this juror, the convictions are constitutionally
infirm and must be set aside.
Juror No. 7’s obscene gesture and other misconduct
were, in and of themselves, such compelling evidence of a
debilitating bias that the trial court erred in failing sum-
marily to replace him. This Court need not resolve that
issue, however; at the very least, the trial court had an
affirmative ‘‘duty to inquire’’ once the question of bias was
raised. See, e.g., United States v. Spimella, 506 F.2d 426
(5th Cir. 1975). Its refusal to make such inquiry requires
that petitioners be afforded a new trial.
* This application was renewed, and again denied, immediately
before the jury began its deliberations.
asain
28
B. Failure to Conduct an Inquiry
Confronted with allegations of Juror No. 7’s miscon-
duct, the trial court was constitutionally obliged to grant
defense counsel’s motion that the juror be questioned:
Preservation of the opportunity to prove actual bias
is a guarantee of a defendant’s right to an impartial
jury.
Dennis v. United States, 339 U.S. 162, 171-72 (1950)
Although the trial court had discretion in determining
the precise scope of the inquiry to be made—and the
nature of appropriate relief if prejudice was confirmed—
it abused its discretion by refusing to conduct any inquiry
whatsoever. Cf., Mattox v. United States, 146 U.S. 140,
147 (1892) (trial court’s failure to consider evidence of
prejudice constitutes a failure to exercise its discretion).
Rather, in giving practical effect to the Sixth Amend-
ment, all circuits have held that inquiry is mandated where
facts suggesting even the possibility of juror prejudice or
misconduct are alleged:
Implicit ini these cases is the assumption that when
jury misconduct is alleged, the trial judge has a duty
to . . . conduct a full investigation to ascertain
whether the alleged jury misconduct actually occurred;
if it occurred, he must determine whether or not it
was prejudicial; . . . if he concludes that it did not
occur or that it was clearly not prejudicial, he must
spell out his findings with adequate aeiiauinced for
meaningful appellate review.
United States v. McKwney, 429 F.2d 1019, 1026 (5th Cir.
1970)
29
See also, Umted States v. Rhodes, 556 F.2d 599 (1st Cir.
1977) ; United States ex rel. Greene v. State of New Jer-
sey, 519 F.2d 1356 (3d Cir. 1975); Silverthorne v. United
States, 400 F.2d 627 (9th Cir. 1968), appeal after remand,
430 F.2d 675 (9th Cir. 1970).
Since the trial court refused inquiry, the Court of Ap-
peals had no valid basis for speculating that the hostility
which Juror No. 7 so blatantly expressed might have been
reserved solely for defendant Guy Fisher’s attorney (34a).
In describing Juror No. 7’s actions to the court, counsel
stressed that although he was the only attorney who clearly
observed the gesture, he had no way of knowing whether
it was directed only at himself, at all four of the attorneys
who were then walking past the bus, or by implication,
at the entire defense (Tr. 5891). Indeed, as lead counsel,
Fisher’s attorney was the most visible embodiment of the
defense and as such, the most likely target of any enmity
toward the defense in general. The difficulty of fathoming,
from the mere description of such misconduct, whether
it was directed toward only one attorney or whether it
constituted a disparagement of the defendants, is one of
the principal reasons why the court is obliged to conduct an
inquiry.
The Court of Appeals also misconceived the jury’s
mixed verdict as proof that Juror No. 7’s prejudice did not
infect the jury deliberations (34a-35a). Quite the con-
trary, in many of the cases in which failure to inquire into
possible juror bias was held to require a new trial, the
30
jury was equally ‘‘discriminating.’’* Despite its surmise
that the mixed nature of the verdict evidenced impartiality,
it is just as possible that such a verdict evidenced the
suecess of one or more jurors in inducing their trial-
weary associates to compromise rather than deadlock. Al-
though a compromise verdict by an impartial jury would
not be grounds for reversal, any verdict rendered by a
jury containing even one biased juror must be set aside.
United States v. Rattenni, supra, 480 F.2d at 198. »
Unfortunately, the court’s cautionary instruction was a
patently inadequate substitute for the mandated inquiry.
In all likelihood, it merely alerted this juror to the fact
that he would have to disguise his prejudices more care-
fully, or else face judicial censure or removal from the jury.
Given Juror No. 7’s graphic expression of prejudice, only
judicial inquiry and possible expulsion of this juror could
effectively insure that petitioners’ Sixth Amendment rights
were being protected. See, e.g., United States v. Pompomo,
517 F.2d 460, 463 (4th Cir. 1975).
The Court of Appeals’ opinion notwithstanding, the
gesture which Juror No. 7 made on the evening of Novem-
* United States v. Pomponio, 517 F.2d 460 (4th Cir. 1975) (two
defendants convicted of all charges, two other defendants convicted
of two counts, acquitted of two counts, and hung jury as to one count) ;
Silverthorne v. United States, 400 F.2d 627 (9th Cir. 1968) (both
defendants acquitted as to conspiracy charge, both convicted as to
bey wy half of the other charges) ; Coppedge v. United States,
272 F.2d 504 (1st Cir. 1959) (one defendant acquitted, one defendant
convicted) ; cf., United States v. Rattenni, 480 F.2d 195 (2d Cir.
1973) (jury reported deadlocked as to three of four defendants and
as to all but one count for fourth defendant when mistrial declared) ;
Paz v. United States, 462 F.2d 740 (Sth Cir. 1972) (one defendant
acquitted, eight other defendants convicted on at least some counts).
31
ber 1, 1977 conveyed only one possible message to the
defense, a message too obscene to be printed in this petition.
Cf., F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978);
Cohen v. California, 403 U.S. 15, 20 (1971). If such ob-
scenity has no place in arguments before this Court, it is
likewise totally inappropriate to the trial proceedings of a
federal district. court.
It is difficult to imagine any explanation which this juror
could have given for his misconduct which would have
established that it was not prejudicial to the defense. Peti-
tioners’ constitutional right to be tried by an impartial
jury imposed a clear obligation on the District Court at
least to inquire into this juror’s actions. Its refusal to do
so requires that petitioners be granted a new trial.
The Court of Appeals erred in holding that no hear-
ing lies to pemne whether petitioners’ tax returns
were acquired in violation of Title VII
form Act of 1976. Ea pcheaetncioe
The Tax Reform Act of 1976 established the exclusive
procedure with which every Federal agency must comply
in order to lawfully acquire income tax returns from the
Internal Revenue Service (IRS) in connection with a non-
tax criminal prosecution. The head of the requesting
agency (or, in the case of the Justice Department, the At-
torney General, Deputy Attorney General or an Assistant
Attorney General) must authorize the application for an
order directing such disclosure (26 U.S.C. §6103(i) (1)
(B)). The application must set forth sufficient facts by
32
which a *udge may determine ex parte that: (1) there is
reliable information demonstrating reasonable cause to be-
lieve that a specific criminal act has been committed; (2)
there is reason to believe the information sought is proba-
tive evidence of a matter related to such act; and (3) the
information sought cannot reasonably be obtained from any
other source, or is the ‘‘most probative evidence’’ of such
act. (26 U.S.C. §6103(i)(1)(B)(i), (ii) & (ii)). If the
judge determines that there has been compliance with §6103
(i)(1)(B), an order is issued directing IRS to turn the
requested returns over to the court; the returns must there-
upon be reviewed and, if they contain the information sug-
gested by the applicaiton, they may be forwarded to the
requesting party. If the returns subsequently are offered
into evidence at trial, the court must make a further finding
that the return ‘‘is probative of a matter in issue relevant
in establishing the commission of a crime or the guilt of
a party’’ (26 U.S.C. §6103(i) (4)).
Prior to trial in this case, counsel learned that the
Government had obtained copies of the tax returns of sev-
eral petitioners.* Accordingly, counsel requested disclo-
sure of the application submitted under §6103(i)(1)(B).
The Government opposed this request on the ground that
an evidentiary hearing did not lie to determine whether
§6103(i) had been complied with or violated. The District
Court agreed, refusing to turn over the affidavits or to hold
any hearing whatsoever. The Court of Appeals affirmed
(35a-38a).
* Specifically, the returns of the following persons ultimately were
admitted into evidence: petitioners Barnes, Hayden, Monsanto,
Hatcher, and Hines ; and codefendants Guy Fisher and Wayne Sasso.
33
A. Introduction
Although this Court has not yet dealt specifically with
the Tax Reform Act of 1976, it has held (or assumed) in
an unbroken line of decisions that a hearing lies to uncover
and remedy violations of federal statutes prescribing the
procedures for the acquisition and use of evidence in fed-
eral prosecutions. See, e.g., Nardone v. United States, 302
U.S. 379 (1937) (Nardone I) and Nardone v. United States,
308 U.S. 338 (1939) (Nardone II) (defendant entitled to
evidentiary hearing to determine if evidence or derivative
evidence obtained in violation of 47 U.S.C. §605) ; Miller v.
United States, 357 U.S. 301 (1958) (defendant entitled to
evidentiary hearing to determine if evidence obtained in
violation of D.C. Code, 1951, §4-141, 4-145 and 18 U.S.C.
§3109) ; Reisman v. Caplin, 375 U.S. 440 (1964) (summonee
has right to adversary proceeding to determine if IRS
summons was issued in violation of 26 U.S.C. $7602);
United States v. Blue, 384 U.S. 251 (1966) (accord);
Donaldson v. United States, 400 U.S. 517 (1971) (accord) ;
United States v. LaSalle National Bank, 437 U.S. 298
(1978) (accord). As this Court held in Blue:
‘‘[T]his Court in a number of areas has recognized or
developed exclusionary rules where evidence has been
gained in violation of the accused’s rights under...
federal statutes...’
384 U.S. at 255 (citations omitted).
Cf., United States v. Caceres, 99 S. Ct. 1465 (1979) (evi-
dence obtained in violation of agency regulation subject to
suppression if regulation required to be adopted by federal
law or Constitution).
Decision of numerous circuits have also held or as-
sumed that an evidentiary hearing lies to uncover and
34
correct a violation of a federal statute, including the Tax
Reform Act. In United States v. Genser, 582 F.3d 292 (3d
Cir. 1978), on remand, 595 F.2d 139 (3d Cir. 1979), there
was a lengthy discussion of appellants’ right to a motion
to suppress evidence obtained in violation of 26 U.S.C.
§7602 and it was held that cases such as Nardone, Reisman,
Blue and Donaldson ‘‘clearly envision such a remedy’’ (582
F.2d 307-311). In United States v. Mangan, 575 F.2d 32,
37-41 (2d Cir. 1978), it was assumed that a motion to sup-
press was the proper method to challenge an alleged viola-
tion of 26 U.S.C. §6103(h) (Tax Reform Act).
Similarly, in United States v. Miller, 500 F.2d 751, 756-
58 (Sth Cir. 1974), rev’d on other grounds, 425 U.S. 435
(1976), it was held that the improper acquisition of records
under the Bank Secrecy Act (12 U.S.C. §1829(b)) was
remediable by a motion to suppress. Genser had also been
presaged in United States v. Fruchtman, 421 F.2d 1019,
1022 (6th Cir. 1970) where it was held that a motion to
suppress was the correct method of challenging an alleged
violation of 26 U.S.C. §7602.* See also, United States v.
Olson, 576 F.2d 1267, 1270-71 (8th Cir. 1979) (assumes
motion to suppress lies but upholds denial of motion be-
cause of absence of proof of illegality of disclosure of re-
turns under §6103(h)); Patrick v. United States, 574 F.2d
* Fruchtman also supports the proposition that even if there is
no absolute right in every case to a full evidentiary hearing, there is
a right to the information submitted to the judge who ordered dis-
closure of the returns in order to determine whether or not to make
a motion for such a hearing. In Fruchtman, the trial judge gave
counsel a confidential IRS report that was the basis of the §7602
summons; the judge also issued a protective order. Both of these
actions were approved by the Sixth Circuit. This compromise solu-
tion would go far to protect the right of petitioners as well as pre-
venting frivolous and speculative hearings (see, ¢.g., United States v.
Olson, infra).
35
1109, 1115-16 (7th Cir. 1975) (accord) ; Laughlin v. United
States, 474 F.2d 444, 453 n.12 (D.C. Cir. 1972) (accord).
Two district courts also support the right to a hearing
under the Tax Reform Act. In United States v. Tucker,
316 F.Supp. 822 (D. Conn. 1970), a lengthy’hearing was
held on a motion to suppress because of an alleged violation
of the predecessor statute of the present §6103. Lastly, in
United States v. Vignola, 464 F.Supp. 1091, 1094 (H.D. Pa.
1979), the trial judge granted a mid-trial severance on tax
counts because ‘‘During the trial a question arose as to
the legality of the procedures employed by the prosecution
in obtaining disclosure of the defendant’s tax returns from
the Internal Revenue Service . .. [under 26 U.S.C.
§6103(h)] and [w]e believed that an evidentiary hearing
might well be necessary to resolve this dispute .. .’’ (em-
phasis added).*
Although none of these cases dealt with the specific
right to an evidentiary hearing under present 26 U.S.C.
§6103(i), they do stand for the general proposition that
‘‘some kind of a hearing’’ is required whenever it is al-
leged that a federal statute governing the acquisition of
* The Senate Finance Committee that wrote the bill that ultimately
became 26 U.S.C. §6103(i) was well aware that by the early 1970's
millions of tax returns were being obtained by federal agencies from
IRS each year (see, in general, Report to the Administrative Confer-
ence of the United States on Administrative Procedures of the In-
ternal Revenue Service, Sen. Doc. 94-266, 94th Cong. 2d Sess. at 832,
855 (October 1975) ), and that “one of the biggest users of the tax
information . . . is the Department of Justice.” For example, in 1975,
the Strike Force alone requested and received 8,103 tax returns of
1,711 taxpayers, and the U.S. Attorneys requested and received
17,678 tax returns of 4,330 taxpayers. See, [1976] U.S. Code Cong.
and Admin. News at 3746-47, 3757. And this use is increasing.
Comment, The Need for Reform of the Informational and Evidentiary
Uses of Tax Returns in Non-Criminal Tax Prosecutions, 14 Am.
Crim. L.Rev. 163, 181 n.119 (1976).
36
evidence has not been complied with. See, generally,
Friendly, ‘‘Some Kind of Hearing’’, 123 U. Pa. L. Rev.
1267 passim (1975). It is petitioners’ primary contention
that there is simply no way in which it can be determined
if there was compliance with the ‘‘severe procedure’”’
(United States v. Mangan, supra, 575 F.2d at 38) man-
dated by §6103(i) except upon disclosure of the informa-
tion submitted to the issuing judge.
For example, there is grave doubt whether the applica-
tion to the district court was even properly authorized in
the first instance. Since the Drug Enforcement Adminis-
tration was presumably the requesting agency, and since
it is part of the Justice Department (Reorg. Plan No. 2
of 1973, §4 (set forth in App. II to 5 U.S.C.)), such author-
ization could only come from the Attorney General, Dep-
uty Attorney General or an Assistant Attorney General.
§6103(i)(1)(B). Improper authorization would require
suppression. Cf., Giordano v. United States, 416 U.S. 505
(1974). There is a serious question whether the affidavits
complied with the ‘‘severe procedure’”’ of §6103(i) (1)(B)
(i)-(iii). Furthermore, there is a question whether the post-
order predisclosure in camera review of the returns contem-
plated by §6103(i)(1)(B)—but not set forth in the statute
(United States v. Praetorius, 451 F.Supp. 371, 373 (E.D.
N.Y. 1978) )—-was made or whether the returns were sim-
ply forwarded directly to the Government by IRS, as was
the practice prior to the statute. See, e.g., United States v.
Costello, 255 F.2d 876, 882-83 (2d Cir. 1958).
Since the district court refused to turn over the affida-
vits or hold any hearing, we are forced to speculate as to
the defects in the Government’s acquisition of the returns.
Three factors, however, suggest the probable presence of
~~ eee 7
37
such defects. First, the statute was relatively new, having
gone into effect on January 1, 1977, only three months
before this indictment was returned. Second, the statute
completely changed (and complicated) the procedure for
obtaining these returns, which had previously consisted of
a simple telephone call to IRS. See, United States v.
Costello, supra. Third, not every procedure contemplated
by the statute is clearly set forth therein. United States v.
Praetorws, swpra.
The foregoing, in sum, demonstrates both that there .
was a high probability of substantial defects in the dis-
closure proceedings and the clear need for an evidentiary
hearing to determine the extent and effect of such defects.
Despite the obvious need for a hearing, and in the face
of all of the authority supporting petitioners’ right to such
a hearing, the Court of Appeals held that none was re-
quired both because a hearing was not explicitly mentioned
in the statute and because other remedies for violations of
the statute existed. Neither ground can withstand careful
analysis.
B. The Requirement of a Hearing
In determining whether a right to a hearing inheres in
§6103(i)(1), recourse to the Congressional debates and
reports accompanying both the 1976 Tax Reform Act and
its progenitor, the Privacy Act of 1974, makes clear that a
hearing was intended to vindicate the right to, and reason-
able expectation of, privacy that is implicit in tax return
information.*
* The close relationship between the Privacy Act and the Tax
Reform Act—and the knowledge of the weaknesses of the former
ao by the drafters of the latter—appears again and again in the
egislative history of the Tax Reform Act. See, generally, [1976]
U.S. Code Cong. and Admin. News at 3747 et seq.
38
Although most taxpayers assumed that their returns
were confidential, in fact they were ‘‘public records’’. See
former 26 U.S.C. §6103(a). And despite the existence of
regulations which attempted to give tax return informa-
tion a degree of confidentiality, there was ‘‘much abuse”’
of the regulations ({1976] U.S. Code Cong. and Admin.
News at 3455), and they were often completely ignored by
the Department of Justice. See, e.g., United States v.
Costello, 255 F.2d 876, 882-83 (2d Cir. 1958) (IRS dis-
closure of tax return information to U.S. Attorney on
basis of telephone request).
Congress previously had tried to ‘‘limit the broad avail-
ability of Federal income tax returns to agencies uncon-
cerned with the collection of revenues’’ in the Privacy Act
of 1974 (5 U.S.C. §552(a) (Supp. IV, 1974), 88 Stat. 1896).
See, Comment, The Need for Reform of the Informational
and Evidentiary Use of Tax Returns in Non-Tax Criminal
Prosecutions, 14 Am. Crim. L. Rev. 163, 184-185 (1976).
As part of this Act, Congress set up the Privacy Study
Commission to report on the operation of the Act. (See,
5 U.S.C. §552(a) (Supp. IV, 1974)). In June, 1976, the
Commission issued a report entitled ‘‘Federal Tax Return
Confidentiality,’’ making the extraordinary finding that
the Internal Revenue Service had managed to ‘‘side-step
the purposes of the Act.’’ Thereafter, the report set forth
the Commission’s six-part recommended procedure for in-
suring the confidentiality of Federal tax returns. (Jd. at 59-
62). While the Privacy Act was not amended to include
this procedure, Section 6103(i) of the Tax Reform Act
repeats almost verbatim the Commission’s specific recom-
mendations.
39
It is, therefore, noteworthy that the Privacy Commis-
sion’s report specifically acknowledged that:
‘*. .. when an agency seeks to compel tax information
directly from the taxpayer ... the taxpayer has an
opportumty ...to suppress use of it once it has been
obtained.’’
Id., at 57 (emphasis added).
The Privacy Commission ultimately concluded that:
‘fa Federal law enforcement agency should not have
easier access from the [Internal Revenue] Service
than from the taxpayer ... [and] from this conclu-
sion, moreover, it follows that the procedural protec-
tions for the taxpayer ... should be comparable to
those the taxpayer would have if the requesting agency
was demandmg the information from him directly.’’
Id., at 58 (emphasis added).*
Furthermore, the comments of the Congressional Fi-
nance Committee that drafted §6103(i) show that the use
of language similar to that in the search-warrant and wire-
tap order statutes was intentional, and its intent was to
remedy the loopholes in the Privacy Act:
‘‘The [Senate Finance] Committee decided that the in-
formation that the American Citizen is compelled by
tax laws to disclose to the Internal Revenue Service
was entitled to essentially the same degree of privacy
* Despite the reference to “suppression” in the Commission’s re-
port, there is no specific reference to “a motion to suppress” in the
wording of the proposed regulations. This is further evidence that
the mere absence of reference to a hearing in §6103 does not show that
such a hearing was not contemplated therein.
“2
40
as those private papers maintained in his home. [*]
Present law and practice does not afford him that pro-
tection—the Justice Department and other Federal
agencies, as a practical matter, being able to obtain
that information for non-tax purposes almost at their
sole discretion. The Committee decided, therefore,
that the Justice Department and any other Federal
agency responsible for the enforcement of a nontax
criminal law should be required to obtain court ap-
proval for the inspection of a taxpayer’s return or
return information. ...’’ Senate Report No. 94-938 at
328, reprinted in [1976] U.S. Code Cong. and Admin.
News at 3757-58.
Prior to the Tax Reform Act,
‘‘Questions [had] been raised and substantial contro-
versy created as to whether the present extent of actual
and potential disclosure of return and return informa-
tion to other Federal and State agencies for nontax
purposes breaches a reasonable expectation of privacy
on the part of the American citizen with respect to such
* This language has clear Fourth Amendment implications, de-
spite the fact that §6103(i) (1) does not deal with the usual “search
and seizure” situation. As this Court noted almost 100 years ago in
Boyd v. United States, 116 U.S. 616, 630 (1886) :
“It is not the breaking of his doors and the rummaging of his
drawers, that constitutes the essence of the offence; but it is the
invasion of his indefeasible right of personal security, personal
liberty and private property . . . Breaking into a house and
opening drawers are circumstances of aggravation ; but any forc-
ible and compulsory extortion of a man’s . . . private papers to
be used as evidence to convict him of crime .. . is within the
”
condemnation of . . . Fourth and Fifth Amendments. . .
See also, Weeks v. United States, 232 U.S. 383, 393 (1914).
And, of course, in Katz v. United States, 389 U.S. 347, 361 (1967)
(Harlan, J., concurring), this Court had used almost precisely the
same language as the Privacy Protection Commission and the Senate
Finance Committee in holding that the protection of the Fourth
Amendment applied where an individual harbored a reasonable “ex-
pectation of privacy”—exactly what §6103(i) envisioned for peti-
tioners here.
41
information. This, in turn, ha[d] raised the question
of whether the public’s reaction to this possible abuse
of privacy would seriously impair the effectiveness of
our country’s very successful voluntary assessment
system which is the mainstay of the Federal tax
system.’’
[1976] U.S. Code Cong. and Admin. News at 3747.*
Accordingly, the Tax Reform Act specifically amended
the administrative provisions of the Internal Revenue Code
to change the status of tax returns from public papers to
confidential documents in order to strengthen taxpayers’
right of privacy. [1976] U.S. Code Cong. and Admin. News
at 3439, 3455, 3747. As the Chairman of the House Ways
and Means Committee said: ‘‘The Conference report [on
H.R. 10612, which eventually became the Tax Reform Act]
. includes a series of very important administrative
changes. These protect taxpayers’ rights with respect to
tax return disclosure .. .’’ Statement of Cong. Al Ullman
(reprinted in 26 U.S.C.A., Tax Reform Act of 1976, at xiii).
The resemblance between §6103 and the procedure for
obtaining a search warrant or wiretap order is readily ap-
parent and, in view of the legislative history set forth
above, quite deliberate. In fact, when §6103(i)(1)(B) was
originally drafted it required ‘‘probable cause’’ and it was
specifically noted that this standard ‘‘is intended to be less
* The concern of Congress that non-confidentiality of tax returns
could impair the ability to voluntarily collect taxes was echoed recently
in a report of the Association of the Bar of the City of New York,
wherein it was noted that “widespread use of tax return information
diminishes a taxpayer’s disposition to cooperate with the [Internal
Revenue] Service by voluntarily filing an accurate tax return.” Com-
mittee Report on Access to Federal Income Tax Returns, 34 The
Record 376, 377-78 (May/June 1979).
42
strict than the ... standard .. . for issuing a search war-
rant.’? (House Conference Report No. 94-1515 (Joint Ex-
planatory Statement of the Committee of Conference) at
482, reprinted in [1976] U.S. Code Cong. and Admin. News
at 4186). This awareness of the analogy between {6103
(i)(1)(B)(i) and traditional search warrant statutes, de-
spite the difference in quantum of proof, is further support
for implying a motion to suppress.*
This analogy was highlighted by Judge Friendly when
he wrote United States v. Mangan, 575 F.2d 32 (2d Cir.
1978). The precise issue in Mangan was whether charges
against the appellants pertained to tax administration un-
der §6103(h) or were nontax matters under §6103(i) (575
F.2d at 39). Although it was ultimately decided to be the
former, Judge Friendly went on at great length to discuss
the ‘‘more severe procedure’’ that would have applied had
it been the latter.** (Jd., 575 F.2d at 38-41 & nn. 6-7). It
was, therefore, erroneous for the Majority to assert that
Judge Friendly was discussing the statute ‘‘in a different
context.”’
*In one of this Court’s landmark decisions, it was specifically
noted that the Fourth Amendment applies to police conduct based on
less than “probable cause.” Terry v. Ohio, 393 U.S. 1, 19 (1968).
Congress obviously had cognizance of Terry, and in light of this
knowledge, the absence of specific reference to a motion to suppress
takes on less significance.
** The previously mentioned City Bar Association Report noted
that there is a difference between the degrees of expectation of privacy
in tax returns when they are used in tax and nontax prosecutions:
“All citizens should expect their returns to be scrutinized . . . for tax
law violations . . . The considerations are quite different, however,
when tax return information is sought for use in non-tax investiga-
tions. In seeking such access, the government is probably going be-
yond the citizen’s justifiable expectations as to the extent of his
personal privacy.” (34 The Record at 381).
43
Mangan is also relevant for another equally important
reason. Although the request for a hearing in this case
was cast in terms of a ‘‘motion to suppress’’, a finding
that such a motion does not lie does not end the matter.
Compliance with the disclosure provisions of §6103(i) (1)
is a condition precedent to admission under §6103(i) (4),
not as a matter of constitutional law but because
§6103(i)(4) specifically conditions admissibility ‘‘on com-
pliance with provisions governing disclosure .. .’’ United
States v. Mangan, supra, 575 F.2d at 41.
Therefore, were it found at a hearing that the dis-
closure provisions had not been complied with, then the
returns could not be admitted, not because the Constitu-
tion had been violated, but because the statute specifically
‘*.. . keys admissibility of returns .. . to compliance with
one of the procedures prescribed in the earlier subdivisions
with respect to disclosure to a Federal Agency.’’ (Jd.,
575 F.2d at 39). Accordingly, even in the absence of con-
stitutional considerations, a hearing is necessary simply
to determine if the statute was complied with.
Last, but of equal importance, it must be noted that in
none of the cases previously cited as requiring a hearing
to determine if a federal statute was violated was there
any explicit provision in that statute, or any related stat-
ute, directing that any such hearing be held. Yet, with the
exception of Genser, where the issue was resolved in favor
of petitioners, not a single court even paused to consider
this ‘‘omission.’’*
* It is true that cases such as Reisman, Donaldson and LaSalle
National Bank were subpoena cases where the procedural device
giving rise to a hearing was a motion to quash. The clear and close
(footnote continued on next page)
44
B. The Existence of Alternate Remedies
The conclusion that an evidentiary hearing is required
is not altered one iota by the existence of other remedies
for violations of the statute. It is a well-known canon of
statutory construction that the existence of one sanction
does not imply the exclusion of others. Davies, The Inter-
pretation of Statutes, 35 Col. L. Rev. 519, 527-28 (1935).
And this is particularly true where, as here, existing sanc-
tions are not in the same section of the law but in other
sections of more general application. Compare, The Finan-
cial Institutions Regulatory and Interest Rate Control Act,
Pub. Law. 95-630, §1117(a) (remedies for any violation of
the Act are ‘‘exclusive’’).
In Bivens v. Six Unknown Federal Narcotics Agents,
403 U.S. 388 (1971), the existence of a motion to suppress
was held not to preclude a monetary damage suit for the
same violation of rights. Clearly, the converse must also
be true in order to ‘‘make good the wrong done’’ (Id., 403
U.S. at 396). This is particularly true where, as here, the
alleged ‘‘alternative sanctions’’ would involve, in effect,
the Government suing itself.
Similarly, in Franks v. Delaware, 438 U.S. 154, 169
(1978), the argument that a motion to suppress should not
relationship between motions to quash and suppression motions, how-
ever, renders the procedures of these cases applicable to §6103(i).
For instance, both Donaldson and LaSalle use language peculiar to
suppression proceedings: “material in question . . . would be subject
to suppression . . .” (400 U.S. at 531) ; rule forbidding use of §7602
subpoena to gather evidence for criminal tax investigations is a “pro-
phylactic restraint” (437 U.S. at 312-313). As the Third Circuit
said in Genser, supra, 582 F.2d at 308: “To make available the
remedy of suppression to taxpayers in cases such as the present is
merely to ensure governmental compliance with the principles enun-
cited in . . . Donaldson, LaSalle [and other cases] . . .”
45
lie because of ‘‘alternative sanctions’’ was rejected in lan-
guage highly apposite here:
{T]he alternative sanctions of a perjury prosecution,
administrative discipline, contempt, or civil suit are
not likely to fill the gap. Mapp v. Ohio implicitly re-
jected the adequacy of these alternatives. Mr. Justice
Douglas noted this in his concurrence in Mapp, 367
U.S. at 670, where he quoted from Wolf v. Colorado,
338 U.S. 25, 42 (1949): ‘Self-scrutiny is a lofty ideal,
but its exaltation reaches new heights if we expect a
District Attorney to prosecute himself or his associates
for well-meaning violations of the search and seizure
clause during a raid the District Attorney or his as-
sociates have ordered.’
Finally, in many of the cases previously cited as
requiring a hearing, the statute allegedly violated also con-
tained other sanctions for non-compliance. See, e.g., Nar-
done v. Umited States, supra, 302 U.S. at 381 (§501 of Com-
munications Act penalized violation of §605 by ‘‘fine and
imprisonment’’); LaSalle National Bank, Donaldson, Gen-
ser and Fruchtman, supra (26 U.S.C. §§7213(a), 7217
provide criminal and civil penalties for violating §7602).
And, once again, in none of these cases did the courts even
pause to consider whether the existence of the other ‘‘rem-
edies’’ deprived a defendant of ‘‘some kind of hearing.’
The decision of the Court of Appeals, effectively emas-
culating the confidentiality and non-disclosure provisions
of §$6103(i), deprives taxpayers of any meaningful remedy
for the deprivation of their right of privacy and raises the
spectre of increased non-compliance with the tax collection
system. This Court should grant certiorari to decide
whether that decision, and the consequences thereof, should
be allowed to stand.
Conclusion
The petition for a writ of certiorari should be granted.
Dated: New York, New York
August 17, 1979
Respectfully submitted,
Daven Brerreart
Micmas. Youne
Joni A. BRENNER
Heuene M. Freeman
Mazx S. Arisonn
J. JerFREY WEISENFELD
Marx L. Amsterpam
Barry A. BonRER
Josepx T. KiemMpner
‘Mazi A. Sacus
Tra A. DeutscH
Of Counsel
Epwarp M. Curkorsky
Attorney for Petitioners
866 United Nations Plaza
New York, New York 10017
(212) 753-1402
APPENDIX
APPENDIX A
Opinion of the Court of Appeals
UNITED STATES COURT OF APPEALS
For tHe Seconp Circurr
>
Nos. 1045, 1046, 1047, 1048, 1049, 1050, 1051, 1052,
1053, 1056, 1057—-September Term, 1977.
(Argued June 22, 1978 Decided April 23, 1979.)
Docket Nos. 78-1040, 1045, 1050, 1051, 1056,
1058, 1059, 1060, 1061, 1063, 1067
—+
Unrrep States or AMERICA,
Appellee,
—against—
Leroy Barnes, a/k/a “Nicky”, Sreven Baker, a/k/a
“Jerry”, Steven Monsanto, a/k/a “Fat Stevie”, Joun
Hatcuer, a/k/a “Bo”, JosepH Haypen, a/k/a “James
Haypen”, a/k/a “Freeman Haypen”, a/k/a “Jazz”,
Watace Fisner, Leon Jonnson, a/k/a “J.J.”,
Waymin Hines, a/k/a “Wor”, Leonarp Ro.wock, a/k/a
“Petey”, James McCoy, Wa rer CenrTeno, a/k/a
“Cxuico Bos”,
Defendants-Appellants.
lial
Before:
Moorz, Van GraaFEILAND and MEsKILL,
Circuit Judges.
—-
Eleven defendants appeal from judgments of the Dis-
trict Court for the Southern District of New York (Hon-
orable Henry F. Werker, District Judge), convicting them
|
after a jury trial of conspiracy to violate the narcotics
laws and substantive offenses consisting of possession and
distribution of heroin and cocaine and illegal possession
of a firearm by defendant James McCoy. Appellant Leroy
Barnes also appeals his conviction for managing a con-
tinuing criminal enterprise. We affirm the convictions of
all defendants on all counts.
——
Rosert B. Fiske, Jr., United States Attorney
for the Southern District of New York
(Thomas H. Sear, Robert B. Mazur, T.
Barry Kingham, Lawrence Pedowitz, Rich-
ard D. Winberg, Robert J. Jossen, Assis-
tant United States Attorneys, of counsel),
for Appellee.
Epwarp M. Cuikorsxy, Esq., New York, N.Y.
(David Breitbart, H. Richard Uviller, New
York, N.Y., of counsel), for Appellant
Barnes.
Micwaz. Youne, Esq., New York, N.Y. (Gold-
berger, Feldman & Dubin, of counsel), for
Appellant Baker.
Me A. Sacus, Esq., New York, N.Y., for Ap-
pellant Monsanto.
Hevene M. Freeman, New York, N.Y. (Robert
Koppelman, of counsel), for Appellant
Hatcher. |
Jozt A. Brenner, Esq., East Northport, N.Y.,
for Appellant Hayden.
Mark LemMie AMSTERDAM, Esq., New York, N.Y.,
for Appellant Fisher.
3a
Joserx T. Kiempner, Esq., New York, N.Y.,
for Appellant Johnson.
Marx S. Arison, Esq., New York, N.Y., for
Appellant Hines.
Metvyn Scnirssrr, Esq., New York, N.Y.
(Bobick, Deutsch & Schlesser, of counsel),
for Appellant Rollock.
J. Jerrrey WEISENFELD, E'sq., New York, N.Y.
(Steven M. Jaeger, on the brief), for Ap-
pellant McCoy.
Barry Bonrer, Esq., New York, N.Y. (Bohrer
and Ullman, of counsel), for Appellant
Centeno.
Moorz, Circuit Judge:
Leroy (“Nicky”) Barnes, Steven Baker, Steven Mon-
santo, John Hatcher, Waymin Hines, Leonard Reollock,
James McCoy, Walter Centeno, Leon Johnson, Joseph
Hayden, and Wallace Fisher appeal from judgments of
conviction entered on January 19 and 23, 1978, in the
United States District Court for the Southern District
of New York after a ten-week trial before the Honorable
Henry F. Werker, District Judge, and a jury. The de-
fendants were convicted of conspiracy to violate the fed-
eral narcotics laws, in violation of 21 U.S.C. §846, and
of various substantive violations thereof (21 U.S.C. $§ 812,
841(a)(1), and 841(b)(1)(A)). In addition, defendant
Barnes was convicted of engaging in a continuing criminal
enterprise involving narcotics, in violation of 21 U.S.C.
§ 848, and defendant McCoy was convicted of unlawful
4a
possession of a firearm during the commission of a federal
felony (18 U.S.C. § 924(c) (2)).
Those defendants who appeal have submitted a Joint
Brief (J.Br.) of 94 pages and a reply brief of 71 pages
covering common issues on appeal. In addition, separate
briefs have been filed by individual appellants as to issues
that apply more particularly to them. In view of the
complexity of the issues raised on appeal, we set forth
a summary of the charges in the indictment, insofar as
it relates to appellants, followed by a brief chronological
sketch of the narcotics investigation which led to the
instant prosecution, the facts of which were presented
to the jury during the ten weeks of trial.
Tue InvictMEentT
Count One charged a conspiracy by Barnes, Baker,
Monsanto, Hatcher, Hayden, Wallace Fisher, Hines
Rollock, McCoy, and Centeno to violate the narcotics “a
of the United States, 21 U.S.C. §§812, 841(a)(1) and 841
(b)(1)(A), 846. The object was the possession and dis-
tribution of heroin and cocaine. Thirty-three overt acts
were alleged. Additional defendants named in this count
included Guy Fisher, Gary Saunders, Wayne Sasso, and
Brenda Sasso. The jury failed to reach a verdict as to
Guy Fisher. Saunders and Wayne Sasso were acquitted.
The charge against Brenda Sasso was dismissed by the
court.
Count Two charged Barnes with operating a “contin-
uing criminal enterprise” to violate 21 U.S.C. §§841 (a) (1)
and 841(b)(1)(A) in concert with five or more other per-
sons with respect to whom he occupied a position of
organizer, supervisor, or manager, and from which enter-
ni ee oe “substantial income or resources”. 21
Oa
The Substantive Narcotics Violation Counts
21 U.S.C. §§812, 841(a)(1) and 841(b)(1)(A),
and 18 U.S.C. §2
1. The Heroin Charges
Count Turee charged Barnes, Baker, Monsanto, McCoy,
and Fisher with possessing and distributing approxi-
mately 445 grams of heroin on or about December 29, 1976.
Count Four charged Barnes, Hatcher, and t isher with
possession and distribution of approximately 457 grams
of heroin on or about March 11, 1977.
Count Frve made the same charge against Barnes,
Hines, and Centeno, the date being on or about March 14,
1977, and the amount being 892.7 grams.
Count Seven charged Baker and McCoy with possession
and distribution of some 191 grams of heroin on or about
March 1, 1977.
Count Exeven charged Barnes, Rollock, and Fisher with
possession and distribution, on or about November 29,
1976, of 107.6 grams of heroin.
2. The Cocaine Charges
Count Twetve charged Johnson with possession and
distribution, on or about December 4, 1976, of some 24.1
grams of cocaine. .
Count Tumrzen charged Johnson with possession and
distribution of 99.5 grams of cocaine on or about December
14, 1976.
The Firearms Violations
Count E1cut charged McCoy with carrying a firearm,
on or about March 15, 1977, during the commission of a
federal felony, in violation of 18 U.S.C. § 924(c) (2).
6 a
In addition, McCoy and Centeno were charged with
separate firearms violations. Count Srx, in which Centeno
was charged, was dismissed at the close of the Government’s
case. The jury acquitted McCoy under Counts Nine and
TEN.
THE INVESTIGATION
Apparently as a result of a New York State narcotics
investigation, Inez Smart, a narcotics “activist”, was
arrested in March 1977. She agreed to cooperate and
testified at trial. Her testimony, in substance, was that, in
October 1974, she had met the defendant Barnes through a
Richard Smith; that Barnes had desired to purchase quinine
(a narcotics cutting material) in large quantities ($150,000
worth a month) at $25 an ounce; and that, upon delivery
of 1000 ounces, Smith and Barnes had paid her $25,000.
Further quinine transactions took place during 1975.
In December 1974 police officers stopped a Mercedes Benz
leased by Barnes from Hoby Darling Leasing Corporation
and driven by Barnes. Richard Smith and one Robert
Monroe were passengers. In the trunk of the car the police
found over $132,000 in cash, mostly small bills.
In November 1976 the Drug Enforcement Administration
(DEA), in an effort to uncover sources of drug traffic in
Harlem and the South Bronx, enlisted, for a financial con-
sideration and witness protection, the services of Robert
Geronimo. He had grown up in the South Bronx and was
friendly with many of the defendants. Geronimo also was
familiar with the Kingdom Auto Leasing Corporation in
the Bronx, owned by Guy Fisher and apparently used by
the Barnes organization narcotics dealers to avoid car
forfeiture if narcotics were found therein.
In November 1976, Geronimo, in an effort to infiltrate
what was believed to be the Barnes organization, called
7a
upon Wallace Fisher, a younger brother of reputed Barnes
confederate Guy Fisher, in an endeavor to enlist his
services. At about this same time, undercover agent Louis
Diaz of the DEA appeared with money to make substantial
purchases. Geronimo represented Diaz to Wallace Fisher’
as his Italian cousin with money to make narcotics
purchases.
On November 29, 1976, for the sum of $8,300 ($8,000 for
the narcotics and $300 for Fisher), one-eighth of a kilogram
of heroin was sold by Rollock to Geronimo and Diaz. This
transaction formed the basis for Count Exeven of the
indictment. Rollock and Fisher were convicted on this
charge; Barnes was acquitted.
“Money-washing” is apparently an important step in the
narcotics business. It involves the conversion of many
small bills into larger denominations. In mid-December
1976, at the Hubba Hubba Social Club in Harlem, Barnes
asked Fisher whether he and Geronimo could handle a
“wash”, This was accomplished at a downtown bank by
Diaz and Wayne Sasso (who was acquitted of the con-
spiracy charge arising from this transaction). Defendant
Hayden, when told of the success of the “wash”, expressed
his satisfaction with the operation.
Shortly thereafter, on an occasion when Barnes met
Fisher at Bubba Jean’s Emporium, Barnes asked Fisher
why he (Fisher) and Geronimo had gone to Rollock; Barnes
directed that, for any further deals, Fisher and Geronimo
should see defendant Monsanto (“Fat Stevie”). A deal was
consummated subsequently at the Harlem River Motor
Garage, whereat Geronimo gave $21,000 to Monsanto, who
in turn gave Geronimo one-half kilogram of heroin which,
1 Hereinafter, “Fisher” will refer only to defendant Wallace Fisher.
Any reference to Guy Fisher will include his full name.
according to the conspirators, $43 come from defendant
Baker. McCoy and Monsanto proceeded to count the money
as Geronimo left the premises. Barnes, Baker, Monsanto,
McCoy and Fisher were convicted for this transaction,
which was Count THREr. |
On about March 11, 1977, a sale of a half-kilo, at the price
of $35,000 (as agreed between Hatcher and Geronimo), was
made by defendant Hatcher, through Fisher, to Geronimo
and Agent Diaz, delivery taking place at the Harlem River
Motors Garage. The package containing the heroin had the
name “Bo” (which was Hatcher’s nickname) written on it.
This transaction, the subject of Count Four, resulted in the
conviction of Hatcher and Fisher; Barnes was acquitted,
despite evidence to the effect that Barnes had been in the
office area watching Diaz’s comings and goings.
While Diaz and Geronimo were continuing their “infiltra-
tion” efforts, the DEA was attempting to find other means
to obtain evidence. Hence, during late summer and early
fall of 1976, the DEA enlisted the services of two additional
informers, Promise Bruce and Robert Wooden. Bruce was
in jail at the time he was approached, but was reputed to
know Barnes, Johnson, Hines and Guy Fisher and to have .
discussed obtaining heroin with Barnes and Guy Fisher
during 1974. After his release from prison, Bruce pur-
chased cocaine from Johnson on about December 3 and 13,
1976. For these two sales Johnson was convicted under
Counts TweLve and THIRTEEN.
Later in December, Bruce proposed exchanging “cut” for
heroin. On two occasions Bruce delivered samples of
quinine and mannite (a cutting narcotic) to Johnson, to be
taken by him to Barnes for his approval. Apparently the
quinine was the wrong kind and the price was out of line.
Further negotiations ensued, and in early February 1977
9a
Bruce discussed such an “exchange” transaction directly
with Barnes. When Hayden joined them, Barnes inquired
as to the quantity of cut that Bruce had on hand. After
hearing his reply and after asking Hayden about his
(Hayden’s) stock of “cut”, Barnes told Bruce that they did
not need any “cut” at that time.
Bruce continued to push his exchange program and, after
unfruitful discussions with Monsanto, made a deal for the
exchange of “cut” and cash for one-quarter kilo of heroin.
The deal was consummated on or about March 1, 1977 by
the delivery to defendants Baker and McCoy of some 44
kilograms of mannite and $2,000 for the one-quarter kilo.
Baker and McCoy were both convicted on this count (Count
SEvEN).
Bruce continued in his efforts to purchase heroin. In
early March 1977, he met the defendant Waymin Hines, who
agreed to sell 250 “quarters” * of heroin for $10,000 and to
provide samples so that the weight and quality might be
checked. Bruce then waited at Julia’s Bar with DEA Agent
Mary Buckley for delivery of the samples. Shortly there-
after defendant Walter Centeno arrived and gave Bruce two
“quarters”. The four—Bruce, Buckley, Centeno and Hines
—left the bar and reassembled at an agreed-upon location,
at which time $10,000 was given to Hines. Hines, in turn,
designated the time and place of delivery of the 250
“quarters”, which were delivered to Agent Buckley by
Centeno, who gave his name as “Chico Bob”. Hines and
Centeno were convicted on this count (Count Five) ; Barnes
was acquitted.
Wooden’s testimony as an informer relates to Monsanto
and Baker. Wooden, posing as a customs agent in 1974,
2 ‘A “quarter”, or “street quarter”, refers to a quantity of approxi-
mately 4 grams of 1.5 percent pure heroin—a package of ten sold to
users of the drug. See Gov't Br. 5 n.*.
10a
had met Monsanto. During the course of their friendship,
Monsanto told Wooden that he (Monsanto) ‘sold heroin. He
asked whether it would be possible for him (Wooden), as a
customs agent, to permit the importation of 300 pounds of
heroin into the country. It was after this event that Wooden
began to cooperate with the DEA. Wooden and Monsanto
conducted business both in “cut” and heroin, Wooden
delivering a case of “bonita” (a cutting material) to
Monsanto for $700 and buying an ounce of heroin for $1500,
the cash being paid to Monsanto at the Harlem River
Motor Garage. Baker was present waen the money was
given to Monsanto, and was introduced to Wooden as
Monsanto’s partner. No charge was brought relating
specifically to this transaction.
Other evidence included testimony of numerous conversa-
tions in which “Nicky” was referred to by Fisher and
others, and general conversations regarding negotiations,
unconsummated deals, and identifications of persons who
arrived at various subject locations just before or just
after a transaction was completed.
The jury began to hear evidence on September 29, 1977,
before the Honorable Henry F. Werker. On December 2, .
after deliberations lasting three days, eleven defendants
were convicted.
THe Issues on APPEAL
I.
Appellants’ opening and much stressed argument deals
with the manner in which the court conducted the voir
dire examination of the potential jurors and its insistence
on their anonymity. More specifically they claim that:
11a
“The district court’s refusal to disclose petit jurors’
identities, residence locales or ethnic backgrounds and
the court’s restrictive voir dire denied defendants due
process.” (J.Br. 5).
They also assert as reversible error the court’s failure to
inquire into the religion of each prospective juror. Using as
their authority Clearence Darrow, who believed that a
juror’s “nationality, his business, religion, politics, social
standing, family ties, friends, habits of life and thought ; the
books and newspapers he likes and reads . . . [even to his]
method of speech, the kind of clothes he wears, the style of
haircut .. .”, were important subjects for questioning, they
contended that the court’s inquiry was unduly (to the point
of reversal) restrictive. (J.Br. 5, quoting Darrow, Attorney
for the Defense, Esquire Magazine, May 1936). Sub-
stantially before Darrow, even Blackstone, also quoted by
appellants, said: “The peremptory challenges of the
prisoner must however have some reasonable boundary.”
4 Blackstone 347 (1769). Appellants themselves recognize
this limitation, saying: “[I]t is not asserted that defen-
dants ordinarily are entitled, in each and every case, to voir
dire prospective jurors on their ethnic or religious back-
grounds”; but they claim “at the very least, their ‘neighbor-
hood’ or township within the County” should have been
disclosed, and that, if names and addresses were properly
withheld, then the court should at least have inquired about
prospective jurors’ ethnic background in order to facilitate
the intelligent exercise of peremptory challenges. (J.Br.
12 n.*).
In view of the challenge to the jury selection procedure
adopted by the district court, a review of the some 524
pages of the transcript covering the voir dire must be made.
rhe tata
124
There were 15 defendants. All but one, a Hispanic, were
black. The charges were serious—the distribution of mas-
sive quantities of narcotics on the streets of Harlem and the
South Bronx from which enormous profits were realized—
an operation which had continued over a period of years.
There had been much pre-trial publicity, particularly
centering around the activities of the alleged ringleader,
the defendant Barnes. Further, the “sordid history” of
multi-defendant narcotics cases tried in the Southern
District*® was sufficient to put the trial court on notice that
3 As the Government points out,
“The trial court was well aware, as is this Court, of the sordid
history of attempts at influencing witnesses and jurors in cases
such as these. See, ¢.g., United States v. Pacelli, 521 F.2d 135 (2d
Cir. 1975) [cert. denied, 424 U.S. 911 (1976) (Pacelli, indieted for
narcotics violations on the grand jury testimony of witness Parks,
convicted of conspiracy to cause Parks’ death)]; cf. United States
ez rel. Lloyd v. Vincent, 520 F.2d 1272, 1275 (2d Cir. 1975) [cert.
denied, 423 U.S. 937 (1975) (noting the peril surrounding the lives
of narcotics agents; no error to close courtroom during agents’
testimony) ].”
Gov’t Br. 66. See also United States v. Arroyo-Angulo, 580 F.2d 1137
(2d Cir. 1978) (in multi-defendant narcotics prosecution, no error to
hold in camera hearings, without all defendants present, under circum-
stances of case, which included death threats made to cooperating
witnesses).
Furthermore, prior to trial, the Government, in its sequestration
papers (11th Supp. Record on Appeal, Document No. 221, Envelope
ordered sealed by district court), directed Judge Werker’s attention to
three recent Southern District cases in which there had been attempts
to influence jurors: (1) United States v. Alvarez (Moten) was a 22-
defendant narcotics case tried before Judge Owen. About six weeks
into the trial, a defense attorney informed Judge Owen that a co-
Moten, 582 F.2d 654 (2d Cir. 1978); United States v. Moten, 564
F.2d 620 (2d Cir.), cert. denied, 484 U.S. 942, 959, 974 (1977); In re
Grand Jury Subpoena served upon Doe, 551 F.2d 899 (2d Cir. 1977).
(2) United States v. Stanzione, No. 78 Cr. 994, tried before Hon.
.
i
;
i
:
13a
all safety measures possible should be taken for the protec-
tion of prospective jurors, including complete anonymity,
namely, no disclosure of name or address. In addition, their
rights of privacy had to be respected except insofar as their
views might relate to the specific charges to be submitted to
them.
The court called 150 potential jurors. To each was
assigned a number. Individual examination followed to
winnow out for cause. The court had received in advance
from. both Government and defendants alike lengthy lists
of questions which they requested the court to ask the
prospective jurors. The Government submitted 45 ques-
tions; respective counsel for Barnes, Hayden, and Fisher,
108, which included questions relating to their general
attitude towards black people and their feelings towards
them.
The substance of these many requests, with the excep-
tion of ethnic background and religion, were embodied
in the court’s questions. None of the crimes charged
related to any specific ethnic background, nor to any
religion. Rather, they concerned simply allegations of
narcotics trafficking committed by blacks. Potential preju-
dices in these fields were fully covered by the court.
The court first addressed a number of questions to the
entire panel. These questions included the usual ques-
tions pertaining to whether the prospective jurors knew
any of the alleged participants or attorneys involved in
pains”, resulting in a mistrial. Judge Griesa thought the circumstances
suspicious, and stated on the record that the juror might have been
“reached”; (3) United States v. Tutino, et al., No. 75 Cr. 1038,
was a narcotics case before Judge Cooper. All of the defendants were
acquitted, but the Government received information concerning contacts
with jurors on behalf of certain of the defendants. The grand jury
investigation that ensued was publicized as a result of articles in New
York newspapers based on disclosures by witnesses who had testified
before the grand jury.
144
the case; whether they could accept and apply the law
as instructed by the court; whether they had any feelings
about undercover agents, paid informants, or electronic
surveillance which would prevent their fair judgment of
the case; whether they, or close friends or relatives, had
had any prior experiences with narcotics or with fire-
arms which would prevent fair consideration of the case;
whether they had seen or read anything that would in-
fluence their judgment; and whether they would be able
to sit during a rather lengthy trial. The entire panel
was also asked to make known to the court whether they —
had ever had any contact with any individuals or busi-
nesses which would be referred to during the trial, in-
cluding the Harlem River Motors Garage, various social
clubs, and various persons, including even the doorman
at the Hubba Hubba Club. The list was quite lengthy,
but only two responded that they, or their close friends
or relatives, had knowledge of the named persons or
places.
After many prospective jurors were excused for cause,
the court addressed the following types of questions to
the individual prospective jurors. All jurors were asked
the county of their residence, and the length of time
they had resided in that county. Family history was
elicited: each prospective juror was asked about marital
status and whether he/she had any children. Further-
more, each was asked about his or her own occupation
and, if he or she had a family, about the occupations of
spouse and/or children.
All prospective jurors were also asked about their edu-
cational backgrounds, and about membership in any or-
ganized group, club, or fraternal organization.
Each was also asked whether he/she or close friends
or relatives had ever had dealings with agents or officers
15a
of the DEA, the New York Drug Enforcement Task
Force, the New York City police, or any agency of Gov-
ernment dealing with narcotics; if there was an affirmative
response, the prospective juror was asked whether the
previous contact had created any opinion. All prospec-
tive jurors were also asked about any family member’s
or friend’s employment with the Federal Government or
with any federal or state investigating agency, etc., which
could support a tendency to favor the Government. Fur-
thermore, each was asked whether he/she had any opinion
about the courts, defense attorneys, prosecutors, and/or
law enforcement officers, that would prevent fair judg-
ment of the case, and whether he/she had been involved
in any suit with the United States; whether he/she or
a friend or family member had ever previously been a
juror or had ever been charged with a crime or been
under subpoena, or had ever been a complainant.
All were asked about health problems, including poten-
tial family health problems. Further, all were asked
whether they had previous knowledge of the indictment,
and whether they had read anything about the case.
Specific questions concerning attitude toward blacks
were addressed to each juror as well.‘ The court first
asked what the prospective juror’s “general attitude
toward blacks” was; to further probe, the court then asked
4 Examples of the specific questions asked of those who were accepted
as jurors are: “Can you tell us what your general attitude is toward
_ black peoplef”; “Have you had any experience with any member of
any race, creed or color other than your own which has resulted in
any kind of civil or criminal confrontation in any court of law?”;
“Have you any experience at your place of employment or residence
or school which would make you feel you could not fairly judge a
person of a different race, creed or color?”’; “Are you in general
prejudiced against persons of another race, creed or color so you
feel that you could not fairly consider and decide this case on the
evidence?” See Tr. 387-88 (Voir dire of No. 1 juror).
164
whether the prospective juror had ever moved to a dif-
ferent area because he/she had been disturbed by chang-
ing conditions. The court asked whether the prospective
jurors had had any experience with persons of other races,
creeds, or colors resulting in civil or criminal confron-
tations, or whether he/she had ever had any experiences
with persons of different races arising out of employment,
residence, or school situations, which might make the
juror feel that he/she could not fairly judge such persons.
Most were also asked whether they felt that they were
generally prejudiced against persons of other races.
There were many instances in which the prospective
jurors admitted some prejudice or tendency to favor the
Government, and they were excused. (F.g., Tr. 144, 193,
196, 197, 384, 435). Several admitted that they had moved
because of “changing conditions” in their neighborhoods.
(E.g., Tr. 329, 338, 382, 470 [because of narcotics entering
neighborhood]). Several admitted some prejudice against
blacks. (E£.g., Tr. 385, 448, 499). These were excused.
Further, after the panel was sworn, and before the alter-
nates were selected, juror No. 5 told the court that he
had been mugged on his way home the previous night
‘by a black person, and he admitted that he could no
longer be fair to black persons. He was excused, and
alternate No. 1 became juror No. 5. (Tr. 571-72). More-
over, after being selected, alternate No. 3 recalled a situ-
ation which, the juror decided, prejudiced him, and he
was excused. (Tr. 499). In sum, the court conducted a
voir dire which resulted in the selection of a panel whose
background was fully explored, and whose state of mind
with respect to the racial “question” was probed as well.’
5 The following is a list of those finally selected: Nos. 97 (#1),
49 (#2); 138 (#3); 63 (#4), 104 (#5) (originally alternate #1);
24 (#6); 110 (#7); 141 (#8); 42 (#9); 146 (#10); 132 (#11)
17 a
Although the court specifically disclaimed that any
threats had been reported in this case (Tr. 291), there
were instances, brought up during the voir dire, that in-
dicated that some threats may have been made in the
case.” For instance, it was reporte’ ,Tr. 283) that the
Marshal’s office, which had the Government’s witness
Geronimo in protective custody, was caJled by an anony-
mous caller who allegedly said, about Geronimo: “If he
does anything, he’ll be dead”. This threat was reported
to the court.
During the voir dire, the court indicated its concern
with the “irresponsibility” of the press. After the court’s
decision to sequester the jury was announced (and the
decision to withhold names and addresses), the New York
City afternoon paper came out with an article which sug-
gested that there had been specific threats. The court
acknowledged later that afternoon that there had been
none (Tr. 370-72), suggesting that the press had irrespon-
sibly attributed such a statement to him when, in fact, a
statement about the possibility of threats had been made
at some earlier proceeding by an Assistant United States
Attorney.
Other problems in insulating the jurors occurred. For
example, at one time defense counsel called to the court’s
attention the fact that there was a “psycho” sitting among
the prospective jurors who had been talking to them about
Barnes. The court’s solution, short of excluding specta-
and 36 (#12). Of these jurors, five were black, one of the five alter-
nates was Hispanic. The individual voir dires of the panel members
reveal a representative sampling. See Tr. pp. 385-92 (#1); 394-99
(#2); 145-50 (#3); 241-45 (#4); 485-90 (#5); 315-24 (#6);
478-83 (#7); 343-49 (#8); 245-53 (#9); 457-63 (#10); 463-69
(#11); and 426-33 (#12).
6 ‘Bee note 3 supra, detailing other Southern District cases in which
intimidation had in fact occurred.
18 4a
tors, was to have prospective jurors sit on one side of
the room, and spectators on the other. (Tr. 373-75).
The court's attitude was expressed at the beginning of
the voir dire:
“It is imperative in a case of this importance that
nothing be allowed to occur which might interfere
with this jury’s impartial and objective study of the
evidence and the application of the law.
“As a consequence, in the interest of protecting the
privacy of the jurors and their families and saving
them from the resultant embarrassment should any
such incident occur [having just discussed media in-
terviews], I have elected to maintain the anonymity
of the jurors. This will insulate the jurors and their
families from such possible inquiries on the one hand
and on the other permit the media complete free-
dom of coverage of this trial.” (Tr. 17).
Appellate judges, from the comparative security of their
ivory towers, are not burdened, as was this trial judge
(and, indeed, as are all trial judges), with the responsi-
bility of providing for the protection of the jurors, wit-
nesses, and counsel.’ It can be no answer that no untoward
event had occurred up to the opening of the trial. The
trial judge had to take such steps as might be necessary in
advance to avoid such an event. Cases need not be cited
to prove the adage of the futility of locking the barn door
after the horse has escaped.
Appellants concede that “it is not asserted that the trial
court’s failure to disclose jurors’ exact residence addresses,
7 Indeed, on the eve of trial, in September 1977, a potential witness,
Shepard Franklin, was reportedly murdered at the Harlem River
Motors Garage—the site of much of the trafficking in this case. (See
Gov’t Br. 106 n.*).
19 a
standing alone, warrants reversal”. (J.Br. 12, n.°*). They
claim, however, that the judge’s refusal to inquire into
“ethnic” background “in lieu of their identities” deprived
them of a fair trial. We disagree.
The Law
Questions as to the trial procedure to be adopted in any
particular case must, of necessity, depend upon the issues
raised in that specific case. A general principle of law thus
has been developed that the trial judge has broad discre-
tion in conducting the voir dire, e.g., Aldridge v. United
States, 283 U.S. 308, 310 (1931); United States v. Taylor,
562 F.2d 1345, 1355 (2d Cir.) cert. denied, 432 U.S. 909,
434 U.S. 853 (1977); United States v. Tramunti, 513 F.2d
1087, 1114 (2d Cir.), cert. denied, 423 U.S. 832 (1975);
United States v. Delay, 500 F.2d 1360, 1366 (8th Cir. 1974),
as he does in his conduct of the trial generaily.
What is required of a trial judge in his conduct of the
voir dire, according to the Supreme Court cases, is that
he permit at least some questioning with respect to any
material issue that may arise, actually or potentially, in
the trial. In Aldridge v. United States, 283 U.S. 308 (1931),
the Supreme Court, exercising “supervisory powers” over
the conviction of a Negro sentenced to death for killing
a white policeman.in the District of Columbia, held that
it was error to deny completely all questioning of venire-
men directed at eliciting racial prejudice. The standard set
by the Court, which remains the standard today,’ is that
8 Aldridge was not founded on any federal constitutional under-
pinnings. However, the right of a state defendant to have questions
asked concerning racial prejudice did assume constitutional propor-
tions in Ham v. South Carolina, 409 U.S. 524 (1973), in which the
Supreme Court held that a bearded black civil rights worker had been
denied due process by the trial court’s refusal to ask about racial
prejudice. The Court found no constitutional errur, however, in the
20 a
the trial court’s discretion must be exercised consistent
_ with “the essential demands of fairness”, id. at 310, in the
particular case, The voir dire was held unfair in Aldridge
because the trial judge “failed to ask any question which
could be deemed to cover the subject’, id. at 311, in order to
uncover a “disqualifying state of mind”. 7d. at 313.
Aldridge rested in part on the fact, brought to the trial
court’s attention, that counsel had heard that a juror on a
previous trial of the case had expressed an attitude about
the defendants’ race and that of the victim. Jd. at 310. The
Supreme Court thought that this factor “invite[d] appro-
priate action by the court’, id. at 311, so that a fair and
impartial verdict would be assured. However, the Court
cited an earlier case, Connors v. United States, 158 U.S.
408 (1895), as an example of a case “where the suggestion
of bias was held to be too remote” to require a judge to
trial court’s refusal to ask about prejudice against bearded persons,
and limited its holding to the facts of the case.
In Ristaino v. Ross, 424 U.8. 589 (1976), the Supreme Court, limiting
Ham, reversed the grant of a Writ of Habeas Corpus given to a black
state prisoner convicted of robbing and assaulting a white security
guard. The Writ had been awarded on the supposed authority of Ham,
because the state trial judge had refused to ask veniremen about racial
prejudice. The Supreme Court stated that “[t]he Constitution does
not always entitle a defendant to have questions posed during voir dire
specifically directed to matters that conceivably might prejudice venire-
men against him”. Jd. at 594, citing Ham, supra, 409 U.S. at 527-28.
The mere circumstances in Ristaino that the defendant was black and
vietim white was insufficient to require, as a matter of constitutional
law, the asking of specific racial prejudice oriented questions, because
the state’s obligation to supply an impartial jury could be satisfied
by less than an inquiry into specific prejudice feared by a defendant.
The Ristaino Court stated that the matter of voir dire was properly
within the trial judge’s discretion because the “ ‘determination of
impartiality, in which demeanor plays such an important part, is
particularly within the province of the trial judge’”. 424 U.S. at
594-95, quoting Rideau v. Louisiana, 373 U.S. 723, 733 (1963) (Clark,
J., dissenting).
It thus appears that the constitutional standard has coalesced with
the Aldridge “fairness” standard.
21a
conduct inquiry. 283 U.S. at 314 n.4. In Connors, a prose-
cution for interference with elections, the Court rejected
the suggestion that the trial judge had abused his discre-
tion in denying all questioning of potential jurors about
political beliefs and affiliations because the potential for
exposing a juror’s bias against the defendant from such
line of questioning was simply too remote.
Although the Court’s decision in Swain v. Alabama,
380 U.S. 202 (1965), recognized the importance of the per-
emptory challenge, and approved questioning of potential
jurors to form the basis for such challenges, it did not
change the basic rule that a trial judge’s discretion will be
upheld unless a defendant has been precluded from obtain-
ing an impartial jury. Thus, as noted by the First Circuit
in Schlinsky v. United States, 379 F.2d 735, 738 (1st Cir.),
cert. denied, 389 U.S. 920 (1967) :
“(Ijn our opinion the purpose of the voir dire is to
ascertain disqualifications, not to afford individual
analysis in depth to permit a party to choose a jury
that fits into some mold that he believes appropriate
for his case.” ®
And, as stated in United States v. Robinson, 475 F.2d 376,
380-81 (D.C. Cir. 1973),
“The defense must be given a full and fair oppor-
tunity to expose bias or prejudice on the part of the
9 In partial contrast, see United States v. Dellinger, 472 F.2d 340
(7th Cir. 1972), cert. denied, 410 U.S. 970 (1973), in which the court
approved broad (but not limitless) voir dire. The case involved con-
victions of demonstrators under the federal Anti-Riot Act arising out
of the events at the Democratic National Convention in Chicago.
Though the defendants accepted the jury “under the greatest of pro-
test”, they argued that the voir dire had been inadequate because
it was too perfunctory to provide a basis for challenge and to permit
selection of an impartial jury. The trial court had asked only some
224
veniremen. ... The possibility of prejudice is real,
and there is consequent need for a searching voir dire
examination, in situations where, for example, the case
carries racial overtones, or involves other matters con-
cerning which either the local community or the popu-
lation at large is commonly known to harbor strong
feelings that may stop short of presumptive bias in law
yet significantly skew deliberations in fact. In a case
involving such sentiment, the trial court must take it
into account and govern the voir dire accordingly. Still
other forms of bias and distorting influence have be-
come evident, through experience with juries, and have
come to be recognized as a proper subject for the
voir dire. An example is the problem that jurors tend
to attach disproportionate weight to the testimony of
police officers. . ..
“When the matter sought to be explored on voir dire
does not relate to one of those recognized classes, it is
of the potential jurors about prejudice resulting from employment
by federal law enforcement agencics; also, the subject of “patriotism”
was not covered; nor was inquiry made into the possibility of a conflict
of values (and resulting prejudice) from the fact that the defendants
wore long hair, beards, and “bizarre clothing” and that they might
“seem to avoid the burdens and responsibilities of regular employment”.
472 F.2d at 369.
The court rejected the prosecution’s argument that voir dire may
be limited to matters falling within challenges for cause, and reversed
the conviction on the ground that insufficient inquiry had been made
under the circumstances of the case. According to the court, the right
to exercise peremptory challenges would be an “empty one” unless
the defendants, on request, were “permitted sufficient inquiry into the
background and attitudes of the jurors to enable them to exercise
intelligently their peremptory challenges”. 472 F.2d at 368.
Although the Dellinger decision suggests that the judge’s discretion
in conducting voir dire should be broad, nonetheless reversal was man-
datec in the case because of the trial court’s refusal to conduct inquiry
into issues touching on the character of the defendants themselves—
issues which, on such a politically-charged question as arose from the
events at the Convention, would surely inject themselves into the
deliberations.
2:
incumbent upon the pla to lay a foundation for
his question by showing that it is reasonably calculated
to discover an actual and likely source of prejudice,
rather than pursue a speculative will-o-the-wisp. .. .
Absent such a showing, [there is] no prejudice to the
rights of the accused.” (Footnotes and citations
omitted).
Little purpose would be served by discussing in detail
all the many cases in this area. They can be summed up by
reference to the discretion standard, and analysis shows
that, when questioning can be deemed fair—when a jury
can be deemed free of bias—a trial judge’s decision as to
the conduct of the voir dire will be upheld. As long as there
is some questioning as to identifiable issues connected in
some way with persons, places, or things likely to arise
during the trial, an appellate court faced with a cold record
should be satisfied that justice has been done.
Illustrative of the cases in this area is Yarborough v.
United States, 230 F.2d 56, 63 (4th Cir.), cert. denied, 351
U.S. 969 (1956), in which it was held that there was no
error in declining to inquire into jurors’ religious back-
grounds and affiliations since no matter of religious
significance was involved. The court noted that there was
nothing to show that defendant belonged to any religious
sect or was charged with a crime as to which any sect held
particular views Similarly, in United States v. Daily, 139
F.2d 7 (7th Cir. 1943), a prosecution for avoiding service
in the armed services brought against a member of the
Jehovah’s Witness sect, the trial court had permitted limited
inquiry into whether any of the potential jurors entertained
a prejudice against members of that minority sect, but
refused to ask about their knowledge of matters of the sect’s
ministry. The Seventh Circuit agreed with the trial court’s
244.
decision; though religious faith was not directly in issue,
still the defendant’s religion would be brought to light in the
case.
There are numerous cases in which a trial court’s decision
to limit voir dire has been sustained because the matter
sought to be probed by the defendant was too remote from
the issues in the case to warrant the intrusion into the
potential jurors’ private thoughts. See, e.g., United States
v. Taylor, 562 F.2d 1345, 1355 (2d Cir.), cert. denied, 432
U.S. 909, 434 U.S. 853 (1977) (no error to deny inquiry
into prospective jurors’ educational backgrounds and into
question whether they had children since questioning was
fair to permit intelligent challenges); United States v.
Hamling, 481 F.2d 307, 314 (9th Cir. 1973), aff’d, 418 U.S.
87, 138-40 (1974) (refusal to ask about views toward sex
and obscenity was proper in obscenity prosecution) ; United
States v. Workman, 454 F.2d 1124, 1128 (9th Cir.), cert.
denied, 409 U.S. 857 (1972) (upholding refusal to ask
about attitudes toward drug use, political activists, and
antiwar demonstrators in prosecution of antiwar demon-
strator for assault on policeman and destruction of govern-
ment property); Maguire v. United States, 358 F.2d 442, |
444-45 (10th Cir.), cert. dismissed, 385 U.S. 801, cert. denied,
385 U.S. 870 (1966) (upholding refusal to inquire about
bias against homosexuals when the defense to charge of
auto theft was that car owner had given car to defendants
after they had threatened to divulge his homosexuality) ;
Wagner v. United States, 264 F.2d 524, 527 (9th Cir.),
cert. denied, 360 U.S. 936 (1959) (rejecting argument that
specific addresses of jurors were necessary to determine
“whether there is any proximity to any possible witnesses
or information”; “approximate community” was sufficient).
Certainly, in all these cases, the information sought would
25a
have been helpful to the defense in the sense that Clarence
Darrow envisioned that every bit of information might be
helpful. However, because no issue was raised requiring
inquiry into the matters as to which requests had been
made, the courts made the determinations that inquiry must
be reasonably limited. It is not, after all, the prospective
jurors who are on trial in the cases that come before the
courts. It can be imagined that, as counsel seek more and
more information to aid in filling the jury box with persons
of a particular type whom they believe to be well disposed
toward their clients, prospective jurors will be less than
willing to serve if they know that inquiry into their essen-
tially private concerns will be pressed. See Yarborough v.
United States, supra, 230 F.2d at 63 (religion is “private
matter”; no reason to inquire) ; cf. United States v. Arroyo-
Angulo, 580 F.2d 1137, 1142 (2d Cir. 1978) (jury provided
with special entrance to courtroom “to secure their privacy
and protection”). As long as a defendant’s substantial
rights are protected by a voir dire designed to uncover bias
as to issues in the cases and as to the defendant himself,
then reasonable limitations on the questioning should not
be disturbed on appeal.
Appellants have not advanced any reason that would sup-
port the disclosure of the ethnic backgrounds of their trial
jurors. There is nothing to indicate that persons of one
ethnic type or another are more favorably disposed to-
ward narcotic trafficking or to using firearms. Whatever
prejudice may be shared by members of any ethnic group
as to black persons would have been uncovered by the ques-
tioning about attitudes toward blacks. Thus, it can hardly
be said that defendants’ right to a fair trial was violated by
the limitation on the voir dire imposed by the trial judge in
this case.
264
As to the court’s decision to withhold names and ad-
dresses of the jurors, appellants take the position that
“jurors must publicly disclose their identities and publicly
‘take responsibility for the decisions they are to make... .”.
(J.Br. 28). This, however, is not the law—and should not
be if a juror feels that he and his family may be sub-
jected to violence or death at the hands of a defendant or
his friends, how can his judgment be as free and impartial
as the Constitution requires? If “the anonymous juror feels
less pressure” as the result of anonymity (J.Br. 28), this is
as it should be—a factor contributing to his impartiality.
The court’s decision as to anonymity and sequestration
comported with its obligation to protect the jury, to assure
its privacy, and to avoid all possible mental blocks against
impartiality.
~~ As noted above, see. note 3, Supra, the history of violence
_in this distriet is well known. There was much_pretrial-
publicity playing up the alleged acts of violence on the
part of the actors in the case.. It would be nothing short
of irresponsible were a trial judge sitting in New York
: ‘City to close his eyes to these circumstances.
»
+
In fact, some fifteen years ago, this court anticipated the |
problem now before us in another case involving a nar-
cotics conspiracy. In a decision written by Judge Friendly,
in which Judge Smith and now-Justice Marshall concurred,
the court stated that the events in ‘hat case, involving
threats to jurors in the form of unsigned letters,
“demonstrat[ed] the need for precautions assuring
that the addresses, and perhaps even the names, of
Jurors in cases such as this will be held in confidence;
courts must protect the integrity of criminal trials
against this kind of disruption, whether it emanated
from defendants’
. enemies, from their friends, or from
eva
United States v. Borelli, 336 F.2d 376, 392 (2d Cir. 1964),
cert. denied sub nom. Cinquegrano v. United States, 379
U.S. 960 (1965). It seems that the time has come to ap-
prove the precautions suggested in Borelli. It will not do
to say that, because there were no actual threats received
in the case at bar, Judge Werker’s action was inappropri-
ate, for the circumstances were such that the suggestion
of disruption was manifest. That is not to say that the
courts should sanction the approach taken by this tri
judge in every case. However, in a case that generated as
much pretrial publicity as this one did and in which allega-
tions of dangerous and unscrupulous conduct abounded,
precaution was best taken so that fears would rot become
realities.
If the giving of names and addresses had been required
so'that investigation could have. been made in the neigh-
borhood or from their families as to their characteristics,
any semblance of an impartial jury would have been
destroyed. Fear of retaliation against themselves or mem-
bers of their families would inevitably have been upper-
‘most in their minds during their deliberations. Sequestra-
tion would have been no protection in the event of a guilty
verdict. And since communication with their families dur-
ing sequestration would have been permitted, a mere threat
to the family of one juror would have permeated the entire
jury.
As to religion, our jury selection system was not designed
to subject prospective jurors to a catechism of their tenets
of faith, whether it be Catholic, Jewish, Protestant, or
Mohammedan, or to force them to publicly declare them-
selves to be atheists. Indeed, many a juror might have a
rea) doubt as te the particular religious category into which
they could properly place themselves. The same can be said
of ethnic background.
OE a itn
r
iW
28a
The courts have recognized the increasing peril in other
contexts. For example, in United States ex rel. Lloyd v.
Vincent, 520 F.2d 1272 (2d Cir.), cert. denied, 423 U.S. 937
(1975), a case dealing with the propriety of closing the.
courtroom to spectators while two undercover narcotics
agents testified, Judge Lumbard, concurring, took note of
the increasing perils associated with narcotics investiga-
tions and prosecutions. He said:
“Any judge of a court which is concerned with the
prosecution of offenses against the narcotics laws
knows all too well the great dangers and difficulties
which face law enforcement officers . . . . In no area of
law enforcement have murder, mayhem and terror
been more frequently used against disclosure and testi-
mony. Against this background of judicial knowledge
and notice, the undisputed assertion of the district
attorney [relating to the dangers posed to the two
agents] was sufficient reason for the county judge’s
action in closing the court to spectators during their
’" testimony.” 520 F.2dat 1275.
Unfortunately, the situation which prompted the trial
judge’s actions in Lloyd was not uncommon. The courts
must recognize the danger, and permit the trial judge ap-
propriate leeway to assure that the trial he is to conduct
will be conducted fairly and impartially, with a minimum
of intrusion into the lives of the prospective jurors.
Appellants’ characterization of the procedure followed
in this case as a “blind-man’s bluff’—as constituting
a deprivation of their right to meaningfully probe the
jurors’ potential biases—is overstated. A criminal defen-
dant is entitled, under the law, to a fair and impartial jury.
To be sure, there must be sufficient information elicited on
29a
voir dire to permit a defendant to intelligently exercise not
only his challenges for cause, but also his peremptory chal-
lenges, the right to which has been specifically acknowl-
edged by the Supreme Court despite the lack of a consti-
tutional statutory source. Swain v. Alabama, 380 U.S. 202
(1965). To say, however, that the limitations imposed in
this case constituted a denial of the right to an intelligent
exercise of the challenge ‘is to underestimate the ability of
counsel to gain the same, or substantially the same, insights
into the prospective juror’s thoughts by observing his de-
meanor, generally, and by listening to the answers to
questions concerning family, education, and other matters
(which were covered rather extensively in this case), as
one might gain by being informed of a person’s residence
address or ethnic background... One’s style of clothes, for
example, and one’s-manner of speaking, certainly reveal
much about a person’s character. Indeed, it is unlikely
that the disclosure of any bit of information will contribute
to an impression of the person that differs materially from
the impression gained by appearances and answers to ques-
tions bearing on the case, such as the questions concerning
attitudes toward blacks that were asked here.
What we are confronted with, then, is a voir dire proce-
dure under which both the prosecutor and defense were
equally in the dark as to names and addresses of the pro-
spective panelists, and where neither side was told the exact
ethnic background or religion of those persons. Both sides,
however, had an arsenal of information about each person
that was based on his responses to questions concerning
his own life, as well as his attitudes about the issues that
would arise in the case. This can hardly be deemed
“inadequate”. The law as to jury selection” is not so
10 ~=©The literature (i.c., the articles) in this field has been amply cited
by the appellants to support their theory that any limitation on the
30 a
unbending that it cannot, or should not, be accommodated
to the realities of modern day trials in large narcotics
cases which have created such problems for the courts in
large cities. Clarence Darrow’s ideal has already yielded
voir dire is improper. E.g., ABA Standards Relating to Trial by Jury
§2.2 (Approved Draft 1968); Babcock, Voir Dire: Preserving “Its
Wonderful Power”, 27 Stan. L.Rev. 545 (1975); Gutman, The Attorney-
Conducted Voir Dire of Jurors: A Constitutional Right, 39 Brooklyn
L.Rev. 290 (1972); Zeisel & Diamond, The Effect of Peremptory Chal-
lenges on Jury and Verdict: An Experiment in a Federal District
Court, 30 Stan. L.Rev. 491 (1978); Note, Voir Dire: Establishing
Minimum Standards to Facilitate the Exercise of Peremptory Chal-
lenges, 27 Stan. L.Rev. 1493 (1975); Note, Limiting the Peremptory
Challenge: Representation of Groups on Petit Juries, 86 Yale L.J.
1715 (1977). A review of these articles—and many, many more—
Icaves the impression that the resolution of the issue before us depends
not on any interpretation of law, but rather requires a judgment
as to the proper accommodation between the need to protect jurors,
the goal. of promoting efficieney in the conduct“of criminal trials
without’ @oing damage to the right of a criminal defendant to an
unbiased and impartial jury, and the desire of the defendant to know
as much as possible about those who sit in judgment on him. The
literature does little to resolve the question; rather, depending on the
slant of the author, each article offers a point c? view on the best
methods of conducting voir dire. The slant of the articles cited by
appellants; of course, is that the attorney should be able to ask what
he will ‘and to take full control.of the jury seléction process. Be that
could be challenge for cause); Kallen, Peremptory Challenges Based
On A Juror’s Background: 4 Rational Use, 13 Trial Lawyer's
31a
to what has been thought to be the greater necessity, ie.,
the need to streamline the voir dire process by resting the
control of it in the district judge, see Fed. R. Crim. P.
24(a), subject to the demand that the essentials of the case
should be the subject of inquiry. If that demand is satisfied,
then so will have been the rights of the parties.
In sum, the trial transcript here reveals that the trial
court followed the voir dire precepts held by the decisions
to be essential. The suggestions made by appellants as to
fields into which they would roam would, if we were blindly
to accept them, lead to ad absurdum ends. If Darrowesque
questioning of prospective jurors were allowed, namely
“religion, politics, social standing, family ties, friends,
habits of life and thought”, any semblance of juror privacy
would have to be sacrificed. There is neither statutory nor
constitutional law that requires disclosure of information
about jurors unrelated to any issue as to which prejudices
may prevent an impartial verdict.’ Nor has any case been
brought to our attention that casts any doubt on the proce-
dure followed by the trial judge in this case. Since the
court gave counsel full opportunity for an intelligent exer-
cise of challenges by inquiring into the essentials of the
case at hand, appellants were not deprived of any trial
right which would require a new trial.”
Guide 143 (1965) (little agreement between experienced trial lawyers
about characteristics making jurors desirable); Plutchik & Schwartz,
Jury Selection: Folklore Or Science?, 1 Crim.L.Bull. 3 (May 1965)
(psychologists think that lawyers’ “rules” for picking juries do not
yield scientific results).
ll In capital cases, there is a statute that requires the disclosure of
names and addresses of prospective jurors three days prior to trial.
18 U.S.C. $3432. The statute is inapplicable to non-capital cases.
12 Indeed, it might even be pointed out that the jury was selective in
its decisions, acquitting two of the defendants entirely, acquitting
defendant Barnes on three of the substantive counts, and failing to
32a
I.
Appellants place great stress on an incident which oc-
curred after some six weeks of trial and at the end of a
court day. Four defense lawyers were walking along a
public sidewalk on a street adjacent to the courthouse when
they passed the bus in which the jurors were sitting. Coun-
sel for the defendant Guy Fisher claimed that one of the
jurors directing his eyes at him, raised his middle finger in
a sign generally recognized to be the antithesis of approval
and indicated by an expression on his face “distaste for me
{the counsel]”. (J.Br. 32). “At the time, three other defense
lawyers were with Fisher’s counsel. The incident was
hrought to the court’s attention that evening. Counsel for
fisher requested that the particular jurior be dismissed and
that an alternate juror be substituted. The following
morning, the court declined to dismiss the juror or. to con-
duct a voir dire on the subject, which would have involved
the juror in question and possibly other panel members.
The court felt that a cautionary instruction would be the
wisest course to follow, but permitted counsel to put the
facts, as he viewed them, on the record. After hearing full
argument, the court stated, in substance, that an examina-
tion into the subject, namely, a voir dire, would involve not
only all four defense counsel present at the time of the in-
cident, but also possibly the other jurors, and that such an
examination “in my [his] opiniou would be extremely preju-
dicial, especially in view of the fact that in all probability
reach a verdict as to defendant Guy Fisher, while voting to convict
as to the remaining charges and defendauts. This is perhaps some
indication that impartial debate was undertaken, the jury deciding the
case on the evidence as it was shown to do. Accord, United States v.
Haldeman, 559 F.2d 31, 60 n28 (D.C. Cir. 1976) (en banc) (per
curiam), cert. denied, 431 U.S. 983 (1977).
33 a
the juror is going to say no, I didn’t do it, and, as a result
of that, there will be resentment which will be engendered
throughout the jury against the four of you”. (Tr. 5896).
The court believed that “no matter what I tell them...
there is bound to be some passing back and forth of com-
munication”. (Tr. 5896-97).
Not waiting for the final charge, the court told the jury,
without reference to any juror, counsel, ~r the incident
itself, that their personal feelings should not “be reflected
for or against any of the defendants or government at-
torneys”. (JA 592).
Appellate courts have given, and should give, broad
discretion to trial judges to pass upon charges of juror
misconduct or disqualifying prejudice made visible in a
tangible way. Other cases presented under other circum-
stances in other courtrooms may provide guidelines, but
each case is actually sui generis. See, e.g., United States
v. Bufalino, 576 F.2d 446, 451-52 (2d Cir. 1978), cert. demed,
99 S.Ct. 314 (1978); United States v. Hockridge, cert.
denied sub nom. Easton v. United States, 99 S.Ct. 85 (1978),
573 °F.2d 752, 756 (2d Cir--1978); United States v. Pame-
bianco, 543 F.2d 447, 457 (2d Cir. 1976), cert. denied, 429
U.S. 1103 (1977).
In Panebianco, for example, defense counsel complained
that, during cross-examination of a Government witness,
one juror had commented “Why doesn’t he stop wasting my
time with these questions?” and “Well, he’s already an-
swered that question”; a second juror had purportedly
said “He’s got some nerve asking these questions”. 543
F.2d at 457. Although the attorneys uad asked the trial
judge to question the two jurors to ascertain bias, this
court upheld the trial court’s decision to simply reiterate
an instruction not to discuss the case or to form any opin-
ion. Writing for this court, Judge Lumbard stated that
344
“the jurors were only exhibiting impatience .... That
jurors react naturally does not mean they are biased. By
reiterating his cautionary instruction to the jury, [the
trial judge] did all that was necessary. Under the circum-
stances this was probably a wiser course than a voir dire
and was clearly not an abuse of discretion”. Id.
Even in the cases where other procedures have been taken
by a trial judge faced with allegations of juror bias during
the trial and approved by this court, the approval has been
based on the reality that the trial judge observing the jury
on a day to day basis (and in the case before us, on a week
to week basis), is in the best position to sense the atmos-
phere of the courtroom as no appellate court can on a
printed record. Any incident, such as the one that al-
legedly occurred in this case, puts court and counsel on the
alert to observe the jurors even more intently during the
remaining time, which, in this case, was another four weeks.
In. those four weeks, no other incident was noted or re-
ported. |
Fortunately, appellate courts are shielded from knowl-
edge of the deliberations in the jury rooth. We are not so
unworldly, however, as not to know that there are skilled
counsel who profess to be able to fortell a juror’s reactions.
We, in turn, can only look at the facts objectively. We know
that there was no verdict of guilty against Guy Fisher,
whose counsel was allegedly the target of the juror’s dis-
tasteful gesture, but rather a “hung jury” as to that defend-
ant. We cannot, therefore, verify the prophecy of Fisher’s
counsel that “This man [the juror in question] is certainly
not going to vote not guilty in this cuse”. (Tr. 5892). There
is thus no basis for any conclusion that the juror was faith-
less to his jury commitment. We do know, also, that two
defendants were acquitted, that Barnes himself was ac-
quitted on the Fovars, Firra and Exeventa Counts, and
. 4
35 a
that McCoy was acquitted on two firearms counts (NinTH
and Tent). Any fear that the allegedly prejudiced juror
could have led the jury to a verdict of guilty is belied by the
result.
Under the circumstances, the court exercised its discre-
tion wisely. A voir dire might well have brought forth
appeals on the ground that such an occurrence as happened
here was prejudicial to all defendants. The trial judge’s
conduct of the matter was entirely appropriate.
Til.
On the trial, the Government introduced into evidence
the income tax returns obtained from the Internal Revenue
Service (IRS) of defendants Barnes, Hayden, Guy Fisher,
Hines, and Wayne Sasso. All appellants now attack the
refusal of the trial court to hold a hearing so that_they
might inquire as to the papers on which, and the manner
by which, the Government obtained these returns. As to
the returns themselves, appellants assert that their preju-
dicial- effect outweighed their relevance to the issues and
also violated appellants’ privilege against.self-incrimina-
tion.
Obtaining the Returns
Appellants argue that they were entitled to have the
information upon which the court issued its order and to a
hearing on their motion to obtain it. 26 U.S.C. §6103(i) (1),
a part of the Tax Reform Act of 1976, provides for dis-
18 26 U.S.C. §6103(i)(1) reads as follows:
(i) Disclosure to Federal officers or employees for administration
of Federal laws not relating to tax administration.—
(1) Nontax criminal investigation —
(A) Information from taxpayer—A return or taxpayer re-
turn information shall, pursuant to, and upon the grant of, an
36 a
closure of tax returns and return information to federal
officers for non-tax-related criminal investigation purposes,
upon an ex parte order by a federal district court judge,
ex parte order by a Federal district court judge as. provided by
this paragraph, be open, but only to the extent necessary as pro-
vided in such order, to officers and employees of a Federal agency
personally and directly engaged in and solcly for their use in,
preparation for any administrative or judicial proceeding (or
investigation which may result in-such a proceeding) pertaining
to the enforcement of a specifically designated Federal criminal
statute (not involving tax administration) to which the United
States or such agency is or may be a party.
(B) Application for order—The head of any Federal agency
described in subparagraph (A) or, in the case of the Depart-
ment of Justice, the Attorney General, the Deputy Attorney
General, or an Assistant Attorney General, may authorize an
application to a Federal district court judge for the order re-
ferred to in subparagraph (A). Upon such application, such
judge may grant»such order if he determines on the basis of the
facts submitted by the applicant that— ‘
(i) there is reasonable cause to believe, based upon in-
formation believed to be reliable, that a specific criminal
act has been committed;
(ii) there is reason to believe that such return or return
information is probative evidence of a matter in inane related
to the commission of sueh criminal ‘act; and :
(iii) the information sought to be disclosed cannot rea-
sonably be obtained from any other source, unless it is
determined that, notwithstanding the reasonable availability
of the information from another source, the return or return
information sought constitutes the most probative evidence
of a matter in issue relating to the commission of such
criminal act.
However, the Secretary shall not disclose any return or return
information under this paragraph if he determines and certifies
to the court that such disclosure would identify a confidential
informant or seriously impair a civil or criminal tax investiga-
tion.
Further, subscetion (4) of the same section provides for use of tax
return information in judicial proceedings. It reads:
(4) Use in judicial or administrative proceeding.—Any return or
return information obtained under paragraph (1), (2), or (3) may
be entered into evidence in any administrative or judicial proceeding
pertaining to enforcement of a specifically designated Federal crim-
37a
when authorized by the Attorney General, the Deputy, or
an Assistant. The judge determines “on the basis of the
facts submitted by the applicant” whether (1) a specific
criminal act has been committed; (2) the return (or return
information) is probative; and (3) the return is the most
probative evidence of the alleged criminal act. If these
questions are answered in the affirmative, the tax info
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