Petition — Alessandrello v. United States

Office-Supreme Court, U.S.

FrikED

80-1389 ee 17 8 |

Oe eT es SIRNAS,

In the CLERK

Supreme Court of the United States

Ocroser TERM, 1980

GAETANO ALLESSANDRELLO and

SALVATORE LACOGNATA,

PETITIONERS,

Dv.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

KENNETH J. FISHMAN

JAMEs MICHAEL MERBERG

One Center Plaza

Boston, Massachusetts 02108

Attorneys for the Petitioners

Blanchard Press, Inc., Boston, Mass.— Law Printers

I

Questions Presented for Review

I. Whether the Court of Appeals erred in ruling that Peti-

tioners were not denied a fundamentally fair trial despite their

exclusion from a significant portion of the jury voir dire and

the resultant impairment of the exercise of their peremptory

challenges?

II. Whether the Court of Appeals erred in ruling that the

“taking ‘from the person or presence of another’ ” element of

18 U.S.C. §2113(a) does not require proof of a trespassory tak-

ing and is satisfied by evidence of constructive possession?

Il

TABLE OF CONTENTS

Page

Questions Presented for Review...................005 I

I a ag 4 Who 6 4 49 45.9 6 ada owls» 2

Maa a ys bua bie ap bie We Vege d 4 seus 2

Constitutional Provisions, Statutes and Rules Involved.. 2

ess ou ns os ee Sew vedas 6 2

Reasons for Granting the Writ....................... 8

A. The Decision of the Court of Appeals for the

Third Circuit That Petitioners’ Exclusion From a

Significant Portion of the Jury Voir Dire Did Not

Deny Petitioners a Fundamentally Fair Trial and

» Did Not Violate Rule 43(a) of the Federal Rules of

Criminal-Procedure Is in Conflict With Control-

ling Case Law of This Court and Other Circuits.. 8

B. A Wide Divergence of Opinion Exists Among

Several Circuits Concerning the Proof Necessary

To Establish the “Taking ‘From the Person or

Presence’ ” Element of 18 U.S.C. §2113(a)...... 14

NS als Fk vk Ba eg GIVER ke Sins wdc Nba gieee’s 17

Appendix A: Opinion of the Court of Appeals for the

ee. hs ea a's Vis amide awa A-1

Order of the Court of Appeals for the

Third Circuit on Petition for Rehearing

PN os cic Wales WWW bn ose a Main & 6 A-46

Appendix B: Constitutional Provisions, Statutes and

! DR er oat oe os Cia a B-1

TABLE OF AUTHORITIES

Cases

Brinkley v. United States, 560 F.2d 871 (8th Cir. 1977).. 15

Harrisen v. United States, 163 U.S. 140 (1896)......... 12

Illinois v. Allen, 397 U.S. 337 (1970). ..............05. 12

ae Renee

| PREVIOUS PAGE: WAS BLANK |

IV

Page

Lewis v. United States, 146 U.S. 370 (1892)........... 10, 12

Pointer v. United States, 151 U.S. 396 (1884)........... 10

Stilson v. United States, 250 U.S. 582 (1919)........... 12

Swain v. Alabama, 380 U.S. 202 (1965)............... 12

United States v. Brown, 547 F.2d 36 (3rd Cir. 1976), cert.

denied sub nom. Redding v. United States, 431 U.S.

I a es oe Sale aoe ok SNe e cin Se vw 16

United States v. Culbert, 548 F.2d 1355 (9th Cir. 1977)

rev'd on other grounds, 435 U.S. 371 (1978).......... 15

United States v. Culbert, 581 F.2d 799 (9th Cir. 1978).. 15

United States v. Crutcher, 405 F.2c¢. 239 (2d Cir. 1968),

cert. denied, 394 U.S. 908 (1969)................4. 11, 12

United States v. Hackett, 623 F.2d 343 (4th Cir. 1980).. 15

United States v. Marx, 485 F.2d 1179 (10th Cir. 1973).. 16

United States v. McGhee, 488 F.2d 781 (5th Cir. 1974),

ouee: Genbd 457 es Bes ai i Rees 15

United States v. Neal, 320 F.2d 33 (3rd Cir. 1963)...... 13

United States v. Toliver, 541 F.2d 958 (2d Cir. 1976)... 12

Wilcox v. United States, 425 F.Supp. 895 (D.Conn.

FUORI AIRE 9 ris ist. eae rene RL: fee eS | 14

Statutes

ee NE 8 oe ete sah al 2

"DESIRES ie PRR ier ipa bh | Meet 2

Ne ae oa Soi in ds np shee ks 2,7, 16, 17

ME LS i iaiel, wail, suger ena sh coe 2

aig ij vin PA So hed ve hc ail 2,3

SE Raga a er ER SRR Te 2, 16

In the |

Suprene Court of the United State

Ocroser Term, 1980

No.

GAETANO ALESSANDRELLO and

SALVATORE LACOGNATA,

PETITIONERS,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioners, Gaetano Alessandrello and Salvatore Lacog-

nata, respectfully pray that a Writ of Certiorari issue to review

the judgment, opinion and orders of the United States Court of

Appeals for the Third Circuit entered on November 21, 1980

and December 19, 1980.

2

Opinion Below

The opinion of the Court of Appeals for the third Circuit has

not yet been published in official reports. A copy of the

opinion is attached hereto as Appendix A (A-1). The Order of

the Court on the Petition for Rehearing En Banc has not yet

been published in official reports. A copy of said Order is at-

tached hereto as Appendix A (A-46).

Jurisdiction

Jurisdiction is conferred upon this Court by 28 U.S.C.

§1254(1) to review the judgment of a Court of Appeals by Writ

of Certiorari.

Constitutional Provisions and

Statutes Involved

The following United States Constitutional provisions are

involved: U.S. Const. Amend. V and VI; 18 U.S.C. §2113(a);

Fed.R.Crim.P. 43.

Statement of the Case

In an indictment filed on August 6, 1979, the petitioners,

Gaetano Alessandrello and Salvatore Lacognata, were charged

in four counts naming three other individuals as co-conspirators

and codefendants.' Count One of the indictment charged the

petitioners with conspiracy to, by force and violence and by in-

timidation, commit bank robbery in violation of 18 U.S.C.

§2113(a), to take and carry away with intent to steal money in

control of a bank in violation of 18 U.S.C. §2113(b), and, in

committing the above offenses, to force a person to accompany

' All but one of the codefendants were originally named in a com-

' plaint charging violations of 18 U.S.C. §2113(e) and 18 U.S.C.

§1951 (affecting commerce by extortion).

3

them without the consent of said person in violation of 18

U.S.C. §2113(e). Counts Two, Three and Four charged

substantive violations of the aforementioned statutory sections

as well as 18 U.S.C. §2.

During the pendency of the kidnapping involved in the case

at bar, pretrial and during trial, the instant case was the sub-

ject of massive media attention, both locally and throughout

the New York metropolitan area. The publicity was suffi-

ciently extensive to compel the trial court (over defense

counsel’s objection) to sequester the jury throughout the

lengthy trial (and to conduct the separate individual voir dire

of prospective jurors in an anteroom discussed below) .*

Nine days prior to the commencement of trial, one codefen-

dant (Fonseca) pled guilty, said plea generating a new wave of

prejudicial publicity in which petitioners were described as

the “masterminds”, “ringleaders” and “leaders” of the kidnap

scheme, and the “Italians” who “planned the kidnap, made

ransom demands. ..and instructed the banker on where to

leave the money.”

Prior to the selection of the jury, petitioners objected to the

manner in which the district court proposed to conduct a

significant segment of the jury voir dire and to select the jury, to

wit: in a small anteroom outside the courtroom and with the

defendants not present.? This objection was restated for the

record after the jury was in fact selected outside the presence

of the defendants. The court overruled the objections, stating

*The district court acknowledged the publicity problem

throughout the proceedings, stating, for example, “there can be no

gainsay in the fact that this case has received extensive publicity.”

See Appendix A, at A-32 n.1. Despite this expressed concern, the

district court denied defense counsel’s request for an indefinite con-

tinuance to allow the publicity and its effect on prospective jurors to

abate.

* Earlier in the proceedings, a defense motion to adjourn an after-

noon hearing on pretrial motions because the petitioner Lacognata

was not present was denied by the trial judge because of his doubts

that the petitioner had a right to be at the hearing and because

counsel’s request was untimely.

-%

4

that it had “technical and logistical problems” generated by

the size of the anteroom and the danger of a prospective juror

contaminating other members of the panel when interrogated

regarding their exposure to pretrial publicity. The court re-

fused to conduct individual voir dire of prospective jurors, ex-

pressing concern over the time it would take to select a jury,

and concluded that “[t]he defendants certainly were present at

that interrogation at what I call sidebar or in the anteroom,

through their counsel.”

The trial judge made general background inquiries of pro-

spective jurors in the courtroom with the defendants present.

Questions addressed to individual jurors regarding potential

bias, however, were raised in the anteroom with the defen-

dants absent. Specifically, the court asked each prospective

juror during the anteroom voir dire whether they had heard or

read anything about the case and the effect of their exposure to

pretrial publicity. Further, jurors were asked, without defen-

dants present, whether serving on a sequestered jury during a

lengthy trial would impose a hardship and whether they knew

of any reason that would preclude them from being fair and

impartial. The exercise of challenges for cause also occurred in

the anteroom and peremptory challenges were informally ex-

ercised through a procedure whereby defense and government

counsel agreed on 16 jurors from a group of 40 deemed compe-

tent by the court.

During the trial, the government elicited testimony from

forty-five witnesses, including one codefendant, which

testimony established that Joan Dedrick was forcibly taken

blindfolded from her home in Newfoundland, New Jersey on

July 20, 1979, to one of the co-conspirator’s basement apart-

ment in Paterson. Her husband is an executive vice-president

at the Franklin Bank in Paterson. She was instructed to give

her captors her husband’s telephone number at the bank.

William Dedrick received a call on his private office line and

was told that his wife was being held. He was also told to get

5

$150,000 and go across the street to a telephone booth in fif-

teen minutes. During cross-examination, Dedrick admitted

that he had neither testified before the Grand Jury concerning

the instructions regarding fifteen minutes nor did the report of

his F.B.I. interview contain reference to fifteen minutes. Mr.

Dedrick complied with the demand but received a telephone

call at the phone booth during which he was told to forget it

because there were too many policemen around.

That afternoon, Mr. Dedrick received another call increas-

ing the demand to $300,000 and instructing him to stay at the

bank until the caller, later identified as the defendant

Lacognata, called back. Dedrick stated to the caller, “I don’t

have $300,000 in the bank”, but claimed on redirect examina-

tion that he often uses the term “I” when referring to the bank.

It was necessary for Dedrick to obtain $200,000 from

Franklin’s correspondent bank. Due to a breakdown in the

bank’s telephone system, there was an eight hour hiatus before

Dedrick received another call giving him instructions, pur-

suant to which he embarked on a journey with the money

through New York City and back to New Jersey, from specific

phone booth locations to other specific locations, and receiving

further instructions along the way. Throughout his journey,

Dedrick was under constant surveillance by F.B.I. agents. He

eventually was instructed to drop the money in Fort Lee, New

Jersey and did so. The money was eventually picked up and

divided between the defendants.

In the meantime, Mrs. Dedrick was released after having

been held for over forty hours, the defendants dropping her off

in a gas station in Teaneck. While Mrs. Dedrick testified on

direct that someone during her period of captivity indicated

that “they wanted the money from the bank”, in responding to

a question from the court, she testified that she had made an

assumption that what her husband was being asked to supply

was money from the bank.

7%

6

Codefendant Fonseca testified in considerable detail

concerning his involvement with the other codefendants.

Specifically, as relates to the instant petition, Fonseca testified

that he met the petitioners at a bar in June, 1979. After this

meeting, he was told that petitioners had offered him a job,

stating: “all I got to do is take this lady out from the house for

two hours and that’s it. We take the lady out and they give us

$5,000....” Fonseca agreed to help and he was told further

that the lady’s husband was a treasurer of a union who kept

money in the house, which money “the two Italians” were go-

ing to take while Fonseca and another codefendant held the

lady for two hours.

Fonseca described preparations for, and the actual abduc-

tion of, Mrs. Dedrick. At the apartment, Fonseca heard

Lacognata on the telephone demand $150,000 in fifteen

minutes during a conversation with Mr. Dedrick. While

Fonseca stated that he believed, at this point, that the money

was to be obtained from the bank, he testified that that belief

was based solely on the fact that $150,000 was demanded from

Mr. Dedrick in fifteen minutes, the belief having been formed

sometime after the initial phone call when he learned that Mr.

Dedrick worked at a bank. Fonseca further stated that Mrs.

Dedrick had merely been asked to give her captors the phone

number where her husband worked with no reference to a

bank.

Fonseca testified that, in a conversation with Alessandrello,

he (Fonseca) was told that Alessandrello and Lacognata had

planned the kidnapping while spending two weeks in Italy.

Alessandrello stated that kidnappings were easy in Italy

because people were too afraid to call the police. Fonseca ad-

mitted telling the F.B.I. that Alessandrello had told him that

Mr. Dedrick was a rich man who could afford to pay.

At the close of the government's case, petitioners* moved for

* During trial, the two remaining codefendants withdrew their

not guilty pleas and pled guilty to Couuts One and Two.

7

a judgment of acquittal based on several grounds, including

the claim that the government failed to prove violations of the

bank robbery statute (18 U.S.C. §2113) because it had not

established that money was taken from the person of another.

Said motion was renewed after the verdict. The trial court

denied both motions.

Included in petitioners’ Requests to Charge was an instruc-

tion relating to Count Two requiring proof of the presence of a

person when the money was taken (Request to Charge #2).

The district court refused to give that charge, and the peti-

tioners entered their objection. The court specifically in-

structed, regarding the “from the person or presence of

another” element of 18 U.S.C. §2113(a), that it “does not

necessarily require a face-to-face confrontation between one of

the defendants and the person having possession of the bank

funds....a defendant takes from the person or presence of

another where that person loses possession and control of the

bank money, and it is in the actual or constructive possession

of the defendant.” Indeed, the court went further by describ-

ing constructive possession in the following terms:

Thus, if you find from the evidence that the defendants

telephoned William Dedrick demanding money for the

safe return of his wife and that as a result of such call Mr.

Dedrick personally deposited $217,000 of the bank’s

money at a location designated by the defendants and

that, by virtue of the secluded nature of the designated

location, or otherwise, the money was not likely to be

discovered by anyone other than the defendants for a

reasonable period of time, you may find that the defen-

dant took such money from the person of William

Dedrick.

The above-quoted portion of the court’s charge was

reiterated to the jury in response to a note from the jury during

deliberations seeking clarification of “from the person and

presence of William A. Dedrick and others.”

8

Following the nine-day trial, the jury returned a verdict of

guilty against both petitioners on each of the four counts of the

indictment. Petitioners were each sentenced to a term of five

years of imprisonment on Count One, a term of twenty-one

years on Counts Two, Three and Four, which counts were

merged for the purposes of sentencing and which sentence is to

run concurrently with the sentence imposed on Count One.

Petitioners filed appeals from their convictions with the

United States Court of Appeals for the Third Circuit, which

appeals were consolidated. On November 21, 1980, the Court

of Appeals affirmed petitioners’ convictions in a 2-1 Opinion,

with the Honorable A. Leon Higginbotham, Jr. dissenting.

A Petition for Rehearing In Banc was filed and, in an Order

dated December 19, 1980, the Court of Appeals denied a

rehearing, with five of the eleven judges voting in favor of

granting a rehearing. Petitioners are currently incarcerated in

the custody of the Attorney General.

Reasons for Granting the Writ

A. Tue DECISION OF THE CourT OF APPEALS FOR THE THIRD

Circuit THaT Petitioners’ ExcLusion FROM A SIGNIFI-

CANT PorTION OF THE Jury Voir Dire Dip Nor Deny Peti-

TIONERS A FUNDAMENTALLY Fain TRIAL AND Dip Nor

VIOLATE RULE 43(a) OF THE FEDERAL RULES oF CRIMINAL

Procepure Is In ConFLICT WiTH CONTROLLING Case LAw

or Tuts Court AND OTHER CIRCUITS.

The petitioners’ non-waived absence from a critical portion

of the jury voir dire and the resultant impairment of the exer-

cise of their peremptory challenges give rise to several issues

which compel review of the decision of the court below by this

Court.

In its two-to-one decision, the majority of the panel of the

Court of Appeals for the Third Circuit deciding the instant

appeal applied the harmless error doctrine to Rule 43(a) of the

Federal Rules of Criminal Procedure and held that although

the exclusion of the petitioners “was a clear violation of Rule

43(a), pursuant to a method of impaneling the jury which we

cannot countenance,” (A-23),° said exclusion was nevertheless

harmless error in the case at bar. The majority further

recognized that the instant defendants had not waived their

right to be present at all stages of the jury selection process.

In his dissenting opinion, the Honorable A. Leon Higgin-

botham, Jr. stated that “the willful judicial exclusion of

Alessandrello and Lacognata from a critical portion of their

voir dire is an error which cannot be dismissed as harmless

beyond a reasonable doubt.” (A-30). The majority deemed the

error to be harmless because the petitioners had, during that

portion of the voir dire in which they were permitted to par-

ticipate, an opportunity to view each prospective juror and to

hear each one answer personal background questions and

questions concerning “general trial-related matters.” Further,

the majority contends that the error was rendered harmless

because the voir dire from which the petitioners were excluded

involved only one area of inquiry (i.e., prospective jurors’ ex-

posure to media accounts of this highly publicized case),* and

because defense were not limited in the amount of

5 It is significant to note that the majority went beyond merely

determining that a violation of Rule 43(a) occurred herein and

warned district court judges in all future cases against excluding

defendants from any portions of the jury impaneling process. (A-24

n. 24). This warning suggests that the Court intends, as it was urged

to do in this case, not to apply the harmless error doctrine in future

cases, although no justification is offered for the singular application

of the doctrine to the case at bar.

* Actually, the anteroom voir dire at which petitioners were not

present was broader than the majority suggests. As noted in the

Statement of the Case, prospective jurors were also asked about any

hardship a long trial would cause and whether they knew of any

reason why they could not be fair and impartial. Further, the

transcripts of the voir dire consists of 108 pages of individual voir

dire in the anteroom as distinguished from the 78 pages of transcript

of the general voir dire in the courtroom.

i

10

consultation in which they could engage with defendants who

“were located in the courtroom only 25 feet away” from the

anteroom in which the trial judge was conducting the

“private” voir dire. (A-23).

That the government failed to establish that the error was

harmless beyond a reasonable doubt is perhaps best illustrated

by the rhetorical questions posited by Judge Higginbotham:

Can the majority say that a juror’s response to any of

these inquiries [during the voir dire from which defen-

dants were excluded] would not have given what the

Supreme Court Justices Storey and Blackstone said, that

“everyone must be sensible to. . .sudden impressions and

unaccountable prejudices” because of the manner of the

response? Can the majority say that any lawyer would be

able to adequately articulate to the defendants what

should be the defendants’ impression of “the hate looks

and gestures of another?” Lewis v. United States, [146

U.S. 370 (1892)].

(A-41).

It was this inability of the petitioners to fully exercise their

peremptory challenges, “one of the most important rights

secured to the accused,” Pointer v. United States, 151 U.S.

396, 408 (1894), that contradicts the finding by the majority of

harmless error in the case at bar. The majority seeks to

minimize the impairment of this right occasioned by the exclu-

sion of petitioners from a segment of the voir dire, but that ef-

fort should be carefully scrutinized, particularly where the

area of inquiry in which petitioners were not permitted to par-

ticipate was the most important aspect of the voir dire in any

criminal case, and especially the instant one, i.e., the potential

bias of prospective jurors.

As noted in the dissenting opinion below:

It seems particularly ironic that the majority concludes

that the questioning of a prospective juror (in the absence

of the defendants) was harmless error when the jurors

ll

were being questioned on the “one topic” so sensitive that

the trial judge feared, in his own words, that if another

juror heard the answer it “would provide an argument

that the entire group has been contaminated by what that

juror has said.” ... If the topic is potentially poisonous

enough to contaminate a whole group of jurors, why isn’t

it important enough for the defendants to be present to

make their own judgments on the prospective jurors’

responses and to decide by what they hear and see

whether they want to exercise a peremptory challenge

against that juror?

(A-35).

Petitioners urged the Court of Appeals to determine that the

involuntary exclusion of a defendant from any portion of the

voir dire is a per se violation of that defendant’s constitutional

and statutory rights. The court below not only refused to

apply a per se rule (except where there is a non-waivered

absence from the entire jury selection process (A-23 n.23)),’

but moreover, declined to reach the constitutional issues on

whether the right to be present is an element of both due pro-

cess guaranteed by the Fifth Amendment and the Sixth

Amendment Confrontation Clause (A-10). Rather, the court

below deemed Rule 43 to be broader than any constitutional

right, ignoring the notion that Rule 43 may be susceptible to

application of the harmless error doctrine whereas the fun-

damental constitutional right to be present throughout the

jury voir dire is not. See United States v. Crutcher, 405 F.2d

239, 244 (2d Cir. 1968), cert. denied, 394 U.S. 908 (1969). The

Court of Appeals position on this issue is in marked contrast to

precedent from this Court and other Circuits.

7 It appears, however, that the Third Circuit intends to apply

Rule 43(a) in a per se manner in the future. See note 5, supra. In his

dissenting opinion, Judge Higginbotham did not decide the issue of a

per se application of the Rule, having determined that the exclusion

was not harmless error. (A-44 n.3).

12

This Court has held that “[o]ne of the most basic of rights

guaranteed by the Confrontation Clause is the accused’s right

to be present in the courtroom at every stage of his trial.”

Illinois v. Allen, 397 U.S. 337, 338 (1970), citing Lewis v.

United States, 146 U.S. 370 (1892). With respect to that stage

of the trial involving the examination and selection of the jury,

the right to be present becomes even more fundamental in

view of the fact that said stage encompasses the right to exer-

cise peremptorv challenges. As this court stated in Lewis:

The right of challenge comes from the common law with

the trial by jury itself, and has always been held essential

to the fairness of trial by jury.

146 U.S. at 376.° Moreover, this Court has held that “[t]he

denial or impairment of the right is reversible error without a

showing of prejudice.” Swain v. Alabama, 380 U.S. 202, 219

(1965) (emphasis added), citing Lewis v. United States, supra,

and Harrison v. United States, 163 U.S. 140 (1896).

The Court of Appeals for the Second Circuit has repeatedly

recognized that the rights of a defendant to be present during

the entire jury voir dire and to participate fully in the exercise

of peremptory challenges are constitutional rights, the denial

of which is probably incapable of being treated as harmless er-

ror. In United States v. Toliver, 541 F.2d 958, 964 (2d Cir.

1976), the Second Circuit stated:

Although we indicated in United States v. Crutcher, 405

F.2d 239 (2d Cir. 1968), cert. denied, 394 U.S. 908, 89

* This court’s recognition that nothing in the Constitution ex-

plicitly requires Congress to grant defendants peremptory

challenges, Swain v. Alabama, 380 U.S. 202, 219 (1965), quoting

Stilson v. United States, 250 U.S. 583, 586 (1919), does not con-

tradict the concept that the right has become an integral element of

fundamental due process, a question yet to be decided by this court.

(See A-10).

13

S.Ct. 1018, 22 L.Ed.2d 219 (1969), that a defendant’s

absence during the empanelling of a jury might be too

basic to be treated as harmless, see also United States v.

Clark, 475 F.2d 240, 247 (2d Cir. 1973), we did so on the

ground that his absence during jury selection might pre-

judice him in ways impossible to determine on an ap-

pellate record, because it would deny him “his

prerogative to challenge a juror simply on the basis of the

‘sudden impressions and unaccountable prejudices we are

apt to conceive upon the bare looks [or] gestures of

another.” 405 F.2d at 244, quoting Lewis v. United

States, 146 U.S. 370, 376, 13 S.Ct. 136, 36 L.Ed. 1011

(1892). This reasoning might justify a rule that would re-

quire automatic reversal when a defendant has been denied

his right to participate in the jury selection process.

It isincongruous for the Third Circuit tonow hold that, at least

in the case at bar, the petitioners’ involuntary absence from a

significant segment of the selection process is harmless error

where that same Circuit has previously refused to apply the

harmless error doctrine to a far less critical stage of the trial, i.e.,

the answering of an inquiry from the jury by the trial judge.

United States v. Neal, 320 F.2d 533, 535-536 (3d Cir. 1963). In-

deed, the majority of the court below was unable to cite a single

decision of any court where the exclusion of the defendant from a

crucial portion of the trial was upheld where the defendant had

not, insome manner, waived his right to be present or voluntarily

absented himself.

The majority opinion of the Third Circuit in the case at bar un-

fairly imposes on def: ndants a virtually impossible and imper-

missible burden, i.e., to prove actual prejudice resulting from

the impairment of defendants’ right to peremptory challenges.

The majority’s concern that the per se rule urged by petitioners

“might create an incentive for defendants to attempt to absent

themselves from the jury impaneling for ashort period,” (A-22) is

unwarranted. Clearly, the right is capable of being waived and

14

an instruction to defendants prior to the commencement of the

voir dire, informing them that they have the right to be pres-

ent and that their voluntary absence would be deemed a

waiver, would save the courts from having to engage in a case-

by-case analysis of whether a defendant’s absence was, in fact,

a knowing and voluntary waiver. In any event, it is beyond

dispute that there was no waiver of the right to be present by

petitioners in the case at bar.

Beyond the denial of the fundamental right to be present

and the resultant impairment of the exercise of peremptory

challenges, the exclusion of petitioners raises an additional

aspect of probable prejudice, described by one court as “an op-

portunity for prejudice, almost unavoidably present at jury

selection....” Wilcox v. United States, 425 F. Supp. 895, 899

(D. Conn. 1975). The Wilcox court noted that:

the absence of a defendant from the jury selection process is

fraught with prejudice; prospective jurors would be very

likely to draw adverse inferences from the failure of a

criminal defendant to be present at the jury’s selection.

Id.

It is respectfully submitted that because the decision below

conflicts with decisions of this Court in Lewis and Swain, deci-

sions of the Second Circuit in Crutcher and Toliver, and the

general weight of authority on the issue, and presents a ques-

tion of substantial constitutional dimension, this Court should

grant a writ of certiorari.

B. A Wipe DIVERGENCE oF OPINION Exists AMONG SEVERAL

Circuits CONCERNING THE Proor Necessary To

ESTABLISH THE ““T AKING ‘FROM THE PERSON OR PRESENCE’ ”

ELEMENT OF 18 U.S.C. §2113(a).

Petitioners were convicted of a substantive violation of 18

U.S.C. §2113(a), and conspiracy to violate said Section. Sec-

tion 2113(a) prescribes a penalty for one who “by force and

violence, or by intimidation, takes or attempts to take, from

15

the person or presence of another, any property or money or

any other thing of value belonging to, or in the care, custody,

control or management of any bank....” (emphasis added).

See Appendix B, at B-1, for the full text of §2113(a).

A major issue at petitioners’ trial was the proof necessary to

establish the essential element of “taking ‘from the person or

presence of another’.” While the district judge initially

remarked that the case should more properly have been the

subject of a state prosecution for kidnapping, he nevertheless

later ruled that this element of §2113(a) is satisfied by evidence

that the bank’s money was in the constructive possession of

another at the time of the taking by petitioners, and instructed

the jury accordingly.

The trial court’s ruling in this regard was upheld by the

Court of Appeals, which adopted and applied the rule ac-

cepted by the Eighth Circuit, and more recently by the Fourth

Circuit, permitting proof of constructive possession. United

States v. Hackett, 623 F.2d 343 (4th Cir. 1980); Brinkley v.

United States, 560 F.2d &71 (8th Cir. 1977).

The Third Circuit’s decision comes in direct conflict with

the decisions of the Court of Appeals for the Ninth Circuit in

United States v. Culbert, 548 F.2d 1355, 1356-1357 (9th Cir.

1977), rev'd on other grounds, 435 U.S. 371 (1978), and

United States v. Culbert, 581 F.2d 799 (9th Cir. 1978). The

Ninth Circuit has determined that proof of a trespassory

taking is required to satisfy §2113(a).

It is respectfully submitted that this Court should grant a

writ of certiorari to determine the proper standard of proof to

apply. Decisions from the Fifth Circuit and, in fact, the Third

Circuit, have indicated and inferred that §2113(a) was de-

signed by Congress to proscribe the typical “gun and mask”

bank robbery, not a case of kidnapping and extortion which

the evidence adduced at the instant trial described. In United

States v. McGhee, 488 F.2d 781, 783-785 (5th Cir. 1974), cert.

denied, 417 U.S. 949, the Fifth Circuit dismissed the first

‘s%

rs

16

count of an indictment where there was no allegation that the

defendants took money from the person of another, and

specifically noted that the first part of §2113(a) “criminalizes

the usual gun and mask form of bank robbery.”

In United States v. Brown, 547 F.2d 36, 39 (3d Cir. 1976),

cert. denied sub nom. Redding v. United States, 431 U.S. 905

(1977), the Third Circuit, in defining §2113(a), stated that

“the crime is [defendants’] resort to force or violence, or in-

timidation, in the presence of another person to accomplish his

purposes.” While Brown did not involve the issue of the inter-

pretation of the “from the person or presence” element of the

crime, it is submitted that implicit in the Third Circuit’s

language is that the taking must be from the actual person or

in that person’s presence. This interpretation is clearly more

logical than that adopted by the court below; an interpreta-

tion permitting proof of constructive possession would effec-

tively render the bank robbery statute duplicitous with the

federal statute proscribing extortion. See 18 U.S.C. §1951.

Both the Fourth and Eighth Circuits in accepting the con-

structive possession position relied on United States v. Marx,

485 F.2d 1179 (10th Cir. 1973). It is submitted that reliance

on Marx was misplaced as it is not supportive of disposing

with the requirement that the money be actually taken

from the person or presence of another. In Marx, the

money belonging to the bank was delivered by the bank

president directly to the defendant under threats that the

president’s family would be killed by a bomb if he did not

follow the defendant’s instructions. Indeed, the Tenth Circuit

specifically stated that “[w]ithout question [the bank presi-

dent] was given bank money for banking purposes, and thus

not until [the defendant] forcefully took it from him did the

bank lose possession and control.” 485 F.2d at 1183 (emphasis

added). Moreover, Marx specifically noted that Section

2113(a) “is not directed toward the crimes of extortion and ob-

taining money by false pretenses;.... Whether the bank was

i

17

robbed depends upon whether or not [the bank president]

turned the money over to appellants in his capacity as an of-

ficer of the bank.” Jd., at 1182-1183 (emphasis added).

The evidence adduced at the trial of the instant case at most

established that petitioners kidnapped the bank president’s

wife and made demands on her husband that caused him to

leave bank funds at a specific location which were later picked

up by petitioners. A substantial question remains as to

whether the evidence established, beyond a reasonable doubt,

that petitioners intended to obtain “ransom” from the bank or

from the bank president personally. Requiring proof of a

_ trespassory taking under 18 U.S.C. §2113(a) would effectively

prevent a conviction under that statute where the intended

victim was not the bank as the statute requires. °

Petitioners contend that a resolution of this important issue

is required both in order to resolve a conflict among the Cir-

cuits and to finally determine for the lower federal courts the

proper standard of proof required under 18 U.S.C. §2113(a).

Conclusion

Based upon the facts of this case and the foregoing

arguments and authorities, it is respectfully submitted that the

Petition for Writ of Certiorari should be granted.

Respectfully submitted,

KENNETH J. FISHMAN

JAMES MICHAEL MERBERG

One Center Plaza

Boston, Massachusetts 02108

Attorneys for the Petitioners

A-1

APPENDIX A

United States Court of Appeals

o For the Third nee

No. 79-2654

UNITED STATES OF AMERICA

v.

ALESSANDRELLO, GAETANO,

Appellant

(D. C. Crim. No. 79-00269-01)

No. 79-2699

UNITED STATES OF AMERICA

v.

LACOGNATA, SALVATORE,

Appellant

(D. C. Crim. No. 79-00269-02)

APPEALS FROM THE UNITED STATEs Districr Court

For THE District or NEw JERSEY

Argued July 10, 1980

Before Weis, VAN Dusen and HiccINBOTHAM,

Circuit Judges

(Opinion filed November 21, 1980)

Kenneth J. Fishman, Esq. (ARGUED)

James Michael Merberg, Esq.

Law Offices of F. Lee Bailey

Boston, Massachusetts

Attorneys for Appellants

A-2

Robert J. Del Tufo, U. S. Attorney

William Braniff, Esq., Chief,

Criminal Division of U. S.

Attorney’s Office.

Samuel A. Alito, Jr., Esq. (ARGUED)

Assistant U. S. Attorney

Newark, New Jersey

Attorneys for Appellee

OPINION OF THE COURT

Van Dusen, Senior Circuit Judge.

On October 6, 1979, Gaetano Alessandrello and Salvatore

Lacognata were convicted of violating the federal bank rob-

bery statute, 18 U.S.C. §2113(a), (b), and (e) (1976), and the

conspiracy statute, 18 U.S.C. §371 (1976). They challenge

their convictions on appeal, asserting that their rights were

violated by their exclusion from a portion of the jury selection

process. They also contend that there was insufficient evidence

that they took money which was in the control of a bank from

the person or presence of another. They further argue that

there was insufficient evidence of intent to rob a bank.

Finally, they allege that the trial court erred in denying their

request for an indefinite continuance, and in admitting certain

items into evidence. After reviewing the record in this case in

light of the applicable law, we affirm.

4

Allessandrello and Lacognata were charged in a four-count

indictment returned August 6, 1979. Three others were named

as co-conspirators and co-defendants.' Count One charged the

' The three co-defendants each entered guilty pleas to Counts One

and Two. Shortly before trial, Jose Abraham Fonseca-Vasquez

entered his guilty plea. Guillermo Jesus Caceres-Novella and Angel

Humberto Cedeno-Echeverria went to trial with Alessandrello and

Lacognata, but on the third day of trial they changed their pleas

from not guilty to guilty.

A-3

defendants with conspiring to rob a bank in violation of 18

U.S.C. §2113(a), (b), and (e). Count Two charged the defen-

dants with using force and violence in robbing a bank. 18

U.S.C. §2113(a). Count Three charged them with taking and

carrying away with intent to steal money in the control of a

bank. 18 U.S.C. §2113(b). Count Four charged them with

forcing a person to accompany them in committing the above

offenses. 18 U.S.C. §2113(e). The evidence adduced at trial,

through 45 Government witnesses, including one co-

conspirator, showed that Allessandrello and Lacognata

planned the criminal venture and enlisted three acquaintances

to help execute it. On July 20, 1979, three of the co-

conspirators went to the Dedrick family home in New-

foundland, New Jersey, and forcibly removed Joan Dedrick

from the house. They bound and blindfolded her, placed her

in a box, and drove her to the apartment of one of the co-

conspirators. They then asked for her husband’s telephone

number at the bank. William Dedrick, executive vice-

president of the Franklin Bank in Paterson, New Jersey,

received a telephone call from them on his private office line.

He was told that his wife was being held, and heard her voice

briefly. He was then told to get $150,000. in small, unmarked

bills and take it to a telephone booth across the street from the

bank in 15 minutes. Dedrick went to the designated booth and

received a call directing him to another phone booth. At the

second booth he received a call telling him there were too

many police officers in the area. Dedrick returned to the bank.

A few hours later he received another telephone call and was

instructed to get $300,000. When he protested that there was

not that much money in the bank, the caller reiterated

larger amount and threatened to kill Dedrick’s wife if he did

not deliver the money. The next day Dedrick received another

phone call. He was told to place the money in a shopping bag

inside a briefcase and wait for further instructions. Dedrick

stuffed $217,000. into a suitcase and a bag. Shortly thereafter,

as

|

A-4

he was directed to take the money to a telephone booth at a

certain location in New York City. He complied; at that booth

he was called and told to proceed to another phone booth.

After a series of similar steps, he was finally directed back to

New Jersey and ordered to leave the money in a wooded area

in Fort Lee. He did so, and returned to his home. Approx-

imately one and one-half hours later the money was retrieved

from the wooded area by the defendants. Mrs. Dedrick was

released, still blindfolded, at a gas station in Teaneck, New

Jersey. The defendants were arrested a short time later.

The trial commenced on September 25, 1979. A judge was

selected and sequestered. The Government began presenting

testimony on September 26 and rested on October 5. The

defendants moved for judgments of acquittal on each count.

After the motions were denied, the defendants rested without

presenting any evidence. The case was submitted to the jury

on October 6. That evening the jury returned verdicts of guilty

against both defendants on each count. On November 9, the

defendants were each sentenced to a five-year prison term on

Count One and a concurrent general term of 21 years on

Counts Two, Three and Four. It is from these judgments that

they appeal.

II.

The defendants’ chief argument on appeal is that they were

improperly excluded from a portion of the jury selection pro-

ceedings. These proceedings were handled in the following

manner. The trial judge first addressed the pool of approx-

imately 80 prospective jurors. He introduced all the attorneys

and the defendants, and then explained the basic functions of

the jury, prosecution, and defense in a criminal trial. After

some further remarks about the Government’s burden of

proof, he described and explained the indictment. The first 16

prospective jurors were called and placed in the jury box. One

at a time, each of them stood up and disclosed the following

A-5

information: name; years of residence at current address;

employer; length of employment; marite! status; spouse's oc-

cupation, spouse’s employer, length of spouse’s employment;

children; children’s occupation and place of employment;

homeowner status; hobbies or recreational interests; and level

of education. The judge then continued the voir dire by posing

a number of general questions to the group of 16, He asked

whether any of them (1) recognized any of the defendants, at-

torneys, or law firms involved in the trial, (2) had ever served

on a grand jury, (3) had ever served on a trial’jury, (4) had

ever been a witness in a criminal case, (5) had ever been a vic-

tim of a crime or was closely related to someone who had been

a victim of a crime, (6) had ever been accused of a crime or

was closely related to someone who had been accused of a

crime, (7) had ever been employed by a law enforcement

agency or was closely related to someone who had been so

employed, (8) had ever been employed by the Government or

was closely related to someone who had been a Government

employee, (9) had any pending disputes with the Federal

Government, and (10) had heard anything about this case.

Any of the prospective jurors who answered the first nine

questions in the affirmative were asked follow-up questions by

the judge. The judge then explained certain fundamental legal

principles, such as the presumption of innocence, the require-

ment that each defendant be found guilty beyond a reasonable

doubt, the absence of any evidentiary we.ght to be given to the

charges and content of the indictment, etc., and questioned

the prospective jurors to ensure that they could apply these

principles. The judge concluded this portion of the voir dire by

describing the predicted trial length of three to four weeks, the

schedule of six court sessions per week, and the restrictions

upon a sequestered jury. He explained that he wanted to ask a

few further questions of each prospective juror, individually,

in a small room adjoining the courtroom. He advised the

group that anyone who wished to be excused from jury duty

A-6

due to severe personal hardship should offer his or her excuse

in the anteroom adjoining the courtroom. Up to this point, ail

the defendants, as well as their attorneys, were present during

voir dire. They saw each prospective juror, and heard each

question and answer.*

The judge then retired to the small anteroom, companied by

the prosecutors and defense attorneys. He explained that he

wished to examine prospective jurors individually on the mat-

ter of pre-trial publicity. He stated that he wished to avoid the

possibility, which never took place, of having one person blurt

out something prejudicial in front of the group of prospective

jurors, thereby tainting all 15 other prospective jurors. The

defense attorneys objected to this procedure, stating that the

defendants should be present. The judge responded that the

room was so small that there was not enough room for the four

defendants.’ He told the defense attorneys that they were free

to go out and consult with their clients as often and as long as

they wished. He added that they would also have an ample op-

portunity after the jury pool was selected to consult with the

defendants before advancing challenges for cause or peremp-

tory challenges. While the defendants remained in the court-

room approximately 25 feet away,‘ the judge conducted this

portion of the voir dire. Prospective jurors entered the

anteroom one by one. The judge asked each of them several

questions concerning his or her exposure to pre-trial publicity,

as well as the effect of such exposure on the juror, and each

juror was permitted to request being excused from serving on a

* These clear, preliminary instructions to the approximately 48

ve jurors examined on the voir dire took place on

2. ODN... at N.T. 2-21 of Document 38 in

teks Fak Mcaionaaen the quotation from the appendix

at note 1 anh ee See ae

made on Saeoke te by he to the attorneys when the

jury was <a aa, xmas on the previous day

during trial. See note 1, supra.

* Trial transcript, September 26, 1979, at 16 (Document 34 of

Crim. No. 79-269, D.N.J.).

A-7

sequestered jury during a trial estimated to last three or four

weeks.®

After all 16 had been examined on this topic, the judge and

attorneys returned to the courtroom.® There, again in the

presence of the defendants, another 16 prospective jurors were

called and placed in the jury box. The voir dire proceeded as

before. Each individual answered specific questions about

himself. The judge asked the whole group certain general

questions related to the particular case, and explained some

basic legal principles. The topic of pre-trial publicity again

was explored in the anteroom. The same procedure was

followed a third time, with a third group of 16 prospective

jurors.

After approximately 40 individuals had been found compe-

tent to sit as jurors in this case, the Government and the

defense agreed upon the 16 who would sit as jurors and alter-

nates. No challenges for cause were advanced at the end of the

September 25, 1979, court day; peremptory challenges were

not formally exercised.’

5 The transcript reveals that many knew nothing about the crime.

Some had not even heard of it; a number had seen some headlines,

but nothing more. Trial transcript, September 25, 1979 at 54-95,

120-53, 181-214 (Document 38 of Crim. No. 79-269, D.N.J.).

* After each prospective juror was questioned about pre-trial

publicity, he was asked if he could serve as an impartial juror in this

case. Those who answered affirmatively, and who were not excused

ab oye hardship reasons, were told they would be one of the

40 from which the trial jury would be selected. They were

directed to wait in another courtroom until the actual selection took

place. See, e. g., trial transcript, September 25, 1979, at 54.

7 The transcript of the agreement joined in by all counsel at the

end of the September 25, 1979, court day, as stated by the trial

judge, was as follows:

“THE COURT: ...

“Let me read off these numbers on the record and names, if I

can read my writing. If I don’t give the name right, you please

correct me.

“These are the sixteen agreed upon: 8192, McCabe; 8235,

Cronk; 8408, Cornelius; 8133, Moyer; 8372, O’Rourke; 8436,

Makar; 8438, Scruggs; 8391, Martz; 8215, Bjerklie; 8366,

A-8

When court convened the next morning (September 26,

1979), the court said to counsel for the defendants (N.T. 10

and 14 of Document 34 in Crim. No. 79-269, D.N.J.):

Caruso; 8134, Cherry; 8052, Bright; 8144, Scarentino; 8161,

Keyes; 8449, Dolahan; and 8461, Reilly.

“(The following takes place in open court.)

“THE COURT: Could I go on the record for a moment,

gentlemen.

“We have put on the record, after interrogating some, what,

forty-eight jurors, counsel have agreed upon sixteen jurors. We

will put Mr. Caruso in No. 1 seat since he has a slight hearing

problem, although it does not seem to be too serious, because

he understood everything.

“We'll put the rest of the jurors in as Mr. Towers (Clerk)

calls them. At the end of the case we will select the deciding

twelve by lot. We'll put the number of jurors left, sixteen, fif-

teen, thirteen, whatever, in the benches, we'll pull twelve

numbers by lot and they will be the deciding jurors.

“Are we all agreed?

“MR. BRANIFF: Yes.

“MR. HOROWITZ: Yes.

“THE COURT: We agreed on the names and numbers. I

read off a moment ago who they were at sidebar.

“You've checked with your clients and it meets with their

concurrence, defense counsel?

“MR. HOROWITZ: Yes.

“MR. SMITH: Yes.

“MR. PANNULLO: Yes.

“MR. BARONE: Yes.”

(See N.T. 218-19 of Document 38 in Crim. No. 79-269, D.N.J.)

The above 16 jurors were then brought into the courtroom and

the trial judge addressed them as follows:

“What we are going to do is this: At the conclusion of the

case twelve of you people who will decide this case will be

selected by lot. We'll put sixteen jurors, or if anyone is excused,

the remainder in the benches, we'll pick twelve names and

numbers out of the roll box. Those twelve will be the deciding

ju :

ry.

“I tell you this because that means that each one of the six-

teen of you has an equal chance to be on the deciding twelve.

Therefore, you should pay strict attention to the proceedings

and to the evidence.

“If at any time you don’t hear please raise your hand and I

could have the question read back.”

See id. at 222-23. See also trial transcript, September 26, 1979, at 21

and 41-42 (Document 34 at Crim. No. 79-269, D.N.J.).

A-9

“THE COURT: You had some motions yesterday

with respect to the jury. You mentioned those in

chambers, you mentioned some of them as to the jurors

being selected. I think if you want to preserve that you

ought to put it on the record...

“MR. HOROWITZ: We objected to the procedure

whereby individual members of the jury panel were in-

terviewed by Your Honor in the anteroom outside the

courtroom, outside of the presence of the defendants. The

reason for that is that the defendants are entitled to exer-

cise peremptory challenges. A peremptory challenge can

be based on anything, it can be based on a gut feeling, an

innate distrust, whatever. Your Honor knows. For my

client not to have had the opportunity to see each and

every one of those jurors as they answered the questions at

close range, if you will, more pointed questions than were

— and alone, as distinguished from being a member of a

panel and sitting in the box in a large room, it deprived

them of the opportunity to see that, to get that feeling

and to communicate that to counsel, which of those

jurors he wouid prefer having or not having.”

It was immediately after this portion of the record that the

trial judge and counsel for the defendants-appellants had the

colloquy quoted at pages 34, 35, 36 of the dissenting opinion.

There is no basis in this record for the inference raised by the

dissent at page 38 that anything that was said by any juror

during the voir dire in this case “would provide an argument

that an entire group has been contaminated by what (a) juror

has said.” Also, neither the prospective female juror (Richard-

son), referred to at page 38 of the dissent, nor prospective juror

No. 4 (Williams), whose testimony is quoted at page 39 of the

dissent, were ultimately members of the jury or alternates (see

N.T. 67 of Document 34 in Crim. No. 79-269, D.N.J.). The

fears of the dissent are wholly based on what might happen in

A-10

other cases and not any prejudice suffered by the defendants in

this case. Even though the dissent states that there were “‘per-

sistent issues of credibility as to the prospective jurors,” all

counsel agreed on the composition of the jury except for the

alleged objection to the absence of the defendants from a small

portion of the voir dire without even making a record of the

number of peremptory challenges exercised. By announcing in

this opinion that Criminal Rule 43 (see page 13 below) must be

strictly followed in this Circuit, we accomplish the beneficent

purposes of that Rule’s requirement that the defendant be

present at all stages of the trial, including the impaneling of

the jury. See note 24 below.

A.

Alessandrello and Lacognata contend that their absence

during a portion of the voir dire violated their right to a fair

trial. They claim that all defendants have a fundamental right

to be present at all stages of the trial, including the impaneling

of a jury. They assert that this right has a basis both in the

Federal Rules of Criminal Procedure and in the Constitution.

The defendants first argue that they have a due process right

to be present during jury impaneling.* The Supreme Court has

not addressed the precise question of whether this right is an

element of due process guaranteed by the Fifth Amendment.®

® Many of the cases concerning the right to be present at trial are

based on the Sixth Amendment guarantee that a defendant may con-

front witnesses against him. See, e.g., Illinois v. Allen, 397 U.S. 337

(1970); Snyder v. Massachusetts, 291 U.S. 97 (1934); United States

v. Toliver, 541 F.2d 958, 964 (2d Cir. 1976); United States v. Ruiz-

Estrella, 481 F.2d 723, 725-26 (2d Cir. 1973). Since no witnesses are

involved in jury impaneling, the Sixth Amendment Confrontation

Clause is inapplicable. The Due Access Clause of the Fourteenth

Amendment is also inapplicable because it restrains actions taken by

the states, whereas defendants were tried in federal court.

® Hopt v. Utah, 110 U.S. 574 (1884), and Lewis v. United States,

146 U.S. 370 (1892), are often incorrectly cited for the proposition

that there is a constitutional right to presence during jury selection.

Hopt concerned a violation of a statute which outlined a certain pro-

cedure for determining challenges for cause. 110 U.S. at 576. Lewis

reversed a conviction because the defendant was not present until

A-11

It has, however, stated recently that a defendant only has a

constitutional right to be present at stages of the trial where

fundamental fairness might be thwarted by his absence.

Faretta v. California, 422 U.S. 806, 816 (1975).'° See Badger

v. Cardwell, 587 F.2d 968, 970-71 (9th Cir. 1978); United

after the jury had been selected. 146 U.S. at 575-76. The often

quoted dictum of Lewis that “after indictment found, nothing shall

be done in the absence of the prisoner,” id. at 372, was expressly

described by Justice Cardozo in Snyder v. Massachusetts, 291 U.S.

97, 117 (1934), as based on the common law privilege of presence

and not on the Constitution.

In Fillippon v. Albion Vein Slate Co., 250 U.S. 76 (1919), and

Shields v. United States, 273 U.S. 583 (1927), the Supreme Court

reversed judgments based on the violation of the defendant's right to

be present in person or by counsel at all proceedings from the time

the jury is impaneled until it is discharged after rendering the ver-

dict.” Fillippon, 250 U.S. at 81. In both cases the Court declined to

characterize the right as one encompassed within due process.

Rather, the Court described it as a rule of orderly conduct of a trial

by jury. Id. at 81; Shields, 273 U.S. at 589. The Supreme Court

recently referred to this non-constitutional rule in Rogers v. United

States, 422 U.S. 35, 38-39 (1975), a case in which the right to

presence guaranteed by Fed. R. Cr. P. 43 was dispositive.

10 Faretta reiterated the holding of Snyder v. Massachusetts, 29

U.S. 97, 107-08 (1934):

“{T]he presence of a defendant is a condition of due process to

the extent that a fair and just hearing would be thwarted by his

absence, and to that extent only.

“We are thus brought to an inquiry as to the relation bet-

ween the defendant’s presence at a (portion of the proceeding)

and the fundamental justice assured to him by the Constitution

of the United States.”

Neither Faretta nor Snyder concerned absence from a portion of the

jury impaneling. Both cases rely on the Sixth and Fourteenth

Amendments. In Snyder v. Massachusetts, 291 U. S. 97 (1934), the

defendant was denied permission to attend a view of the scene of the

crime. The judge, attorneys for both parties, and the court

stenographer accompanied the jurors. The court held that the defen-

dant’s constitutional rights had not been violated because any

assistance he could have provided his attorney would have been

minimal. Faretta v. California, 422 U.S. 806 (1975), concerned the

defendant's right to represent himself at a criminal trial. Thus, they

do not provide clear guidance to us in determining the extent of due

process protection that should be afforded in the circumstances of

the instant case.

A-12

States v. Walls, 577 F.2d 690, 698 (9th Cir.), cert. denied, 439

U.S. 893 (1978); Polizzi v. United States, 550 F.2d 1133,

1137-38 (9th Cir. 1976).

We need not reach the constitutional issue in this case,

however, because defendants have an explicit, unqualified

right under Rule 43 of the Federal Rules of Criminal Pro-

cedure to be present at the jury impaneling, as well as at all

other stages of the trial. In adopting Rule 43, Congress ex-

plicitly intended to codify existing law concerning a defen-

dant’s constitutional and common law rights to be present

throughout trial. Fed. R. Crim. P. 43, 1946 Advisory Commit-

tee Note, 1. Rule 43 embodies the right to be present derived

from the Sixth Amendment Confrontation Clause, the Due

Process Clause of the Fifth and Fourteenth Amendments, and

the common law privilege of presence. 8B Moore's Federal

Practice §43.02(1), at 43-67 (2d ed. 1980). Thus, the scope of

Rule 43 was intended to be broader than the constitutional

right. Accordingly, insofar as due process is concerned, the

statutory right is at least as far-reaching as the constitutional

right.!! Id.; United States v. Brown, 571 F.2d 980, 986 (6th

Cir. 1978); United States v. Gregorio, 497 F.2d 1253, 1257

(4th Cir.), cert. denied, 419 U.S. 1024 (1974).

B.

Rule 43(a) provides:

“The defendant shall be present at the arraignment, at

the time of the plea, at every stage of the trial including

the impaneling of the jury and the return of the verdict,

'! Both the statutory and the constitutional rights are subject to

the harmless error doctrine. Fed, R. Crim. P. 52(a); Chapman v.

United States, 386 U.S. 18, 21-22 (1967). In this case the Court said

at page 22:

“(T]he United States long ago through its Congress established

for its courts the rule that judgments shall not be reversed for

‘errors or defects which do not affect the substantial rights of

the parties.” 28 U.S.C. §2111.”

(Footnote omitted.)

A-13

and at the imposition of sentence, except as otherwise

provided by this rule.”

A violation of Rule 43 in some circumstances may be harmless

error. Rogers v. United States, 422 U.S. 35, 40 (1975); United

States v. Alper, 449 F.2d 1223, 1232-33 (3d Cir. 1971), cert.

denied, 405 U.S. 988 (1972), rehearing denied, 406 U.S. 911

(1972). In Alper, the defendants were not present during sup-

plemental instructions to the jury, although their counsel were

there. No objection was raised at the time, but on appeal

defendant-appellant argued that his right to be present could

not be waived and was not harmless error. This court said at

1232 of 449 F.2d:

“Here, clearly, is an instance in which trial counsel must

be assumed to have implied authority to receive notice of

a conference respecting inquiries from the jury. The court

was entitled to rely upon counsels’ performance of their

agency duties and to assume that appellants’ absence was

voluntary.

“Appellants point to United States v. Neal, 320 F.2d

533 (3rd Cir. 1963), as authority for the impropriety of

instructing the jury in the absence of the defendant. The

Neal case involved a supplemental instruction which in

the circumstances was highly prejudicial and a dispute

over whether even defendant’s counsel was informed.

Compare United States v. Grosso, 358 F.2d 154 (3rd Cir.

1965), reversed on other grounds, 390 U.S. 62, 88 S.Ct.

709, 19 L. Ed.2d 906 (1968), applying the harmless error

rule to an instruction, in the absence of both counsel and

the defendant, to continue deliberations. ... (T)he very

language of the second sentence of Rule 43 recognizes

that in some circumstances a trial may proceed in the

absence of the defendant. The validity of the Lewis dic-

tum must be questioned in view of the subsequent adop-

tion of Rule 43 and of the decision in Illinois v. Allen, 397

U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).”

A-14

If there is no reasonable possibility of prejudice from the error,

it is deemed harmless. United States v. Giacalone, 588 F.2d

1158, 1165 (6th Cir. 1978), cert. denied, 441 U.S. 944 (1979);

United States v. Brown, 571 F.2d 980, 987 (6th Cir. 1978);

Blackwell v. Brewer, 562 F.2d 596, 599 (8th Cir. 1977);

United States v. Rodriguez, 545 F.2d 829, 831 (2d Cir. 1976),

cert. denied, 434 U.S. 819 (1977); Wade v. United States, 441

F.2d 1046, 1050 (D.C.Cir. 1971).

Defendants contend that absence from a portion of jury im-

paneling can never be harmless error. To support this proposi-

tion they rely on United States v. Crutcher, 405 F.2d 239, 244

(2d Cir. 1968), cert. denied, 394 U.S. 908 (1969). In Crutcher

five men were charged with hijacking a truck. Two pleaded

guilty while two others were scheduled for trial. Payne, the

fifth defendant, remained at large. On the day the trial com-

menced in Connecticut, the prosecutor’s office was notified

that Payne had been arrested in New Jersey. An attempt to

have him brought to Connecticut that day failed. The trial

judge, believing it was necessary to go forward, impaneled the

jury. The attorney appointed to represent Payne agreed to

proceed with the jury selection in his client’s absence. Payne

arrived in court after the jury had been selected, but before

the rest of the trial had begun. Thus, in Crutcher the defen-

dant was absent during all of the voir dire and jury selection.

The Second Circuit found that this absence violated Rule 43.'2

'® The holding in United States v. Crutcher, 405 F.2d 239 (2d Cir.

1968), cert. denied, 394 U.S. 908 (1969), is based on Fed. R. Crim.

p. 43. In addition to Rule 43, Crutcher refers to “an elementary

principle of due process that a defendant must be allowed to be pre-

sent at his own trial,” id. at 242, but does not illuminate exactly to

what extent due process guarantees the right of a defendant to be

present during the impaneling of a jury. Furthermore, Crutcher’s

analysis relies on Lewis v. United States, 146 U.S. 370 (1892), and

Hopt v. Utah, 110 U.S. 574 (1884), two cases which concern the

non-constitutionally based right of presence. See note 9, supra.

On appeal in Crutcher, the Government argued that Payne had

waived his rights under Rule 43. Noting that there was no indication

that the defendant had actually spoken to or retained his attorney at

A-15

The facts in the instant case are clearly distinguishable from

those in Crutcher. Alessandrello and Lacognata were not ex-

cluded from the entire voir dire; they were present for all but

one small portion of it. They saw each of the prospective jurors

and heard each of them respond to questions about personal

and general matters. Alessandrello and Lacognata recognize

this case does not present the same circumstances as Crutcher.

They point, however, to the following language in Crutcher:

“It is true that as a general rule a violation of Rule 43 does

not require reversal if the record affirmatively indicates

beyond a reasonable doubt that the error did not affect

the verdict....However, the court in [Chapman v.

United States, 386 U.S. 18, 23 (1967)]. . .noted that some

of ‘our prior cases have indicated that there are some con-

stitutional rights so basic to a fair trial that their infrac-

tion can never be treated as harmless error.’ A

defendant’s right to be present while the jury is selected

would appear to be such a right.”

Id. at 244. Alessandrello and Lacognata argue that Crutcher

thus set forth a rule requiring automatic reversal if the defen-

dant is absent from any part of the jury impaneling, and they

urge this court to adopt such a rule. We conclude that it would

be unwarranted to apply the Crutcher rule to the facts of this

case. We note that other courts, including the Second Circuit

in a later case, United States v. Dioguardi, 428 F.2d 1033,

cert. denied, 400 U.S. 825 (1970), have affirmed convictions

despite the defendant’s absence from part of voir dire when

the circumstances showed that the error was harmless. Accor-

dingly, we have concluded that the harmless error test for

reviewing violations of Rule 43’s requirement that the defen-

dant be present at his jury’s impaneling is applicable to this

record.

the time of the jury impaneling, the court remanded for a deter-

mination of whether the defendant had waived his right to be pre-

sent; it directed that a new trial be granted if the trial judge found

that there had been no effective waiver.

A-16

In Dioguardi, a case decided two years after Crutcher, the

Second Circuit followed the harmless error principle. There

the defendants were present in the courtroom during the im-

paneling of the jury. They were able to view the prospective

jurors and to hear their responses to questions. The defendants

were excluded from one portion of the inquiry, however. The

judge questioned the prospective jurors individually at sidebar

about the extent to which they had been exposed to pre-trial

publicity. This examination took place out of the hearing of

the defendants. Remarking that the defendants were only

seated 15 - 20 feet away, that they were represented at sidebar

by experienced counsel, and that ample time was given for

counsel to consult with defendants, the appellate court con-

cluded that this procedure +id not constitute reversible error.'*

The Fifth Circuit in Henderson v. United States, 419 F.2d

1277 (1970), also reviewed a case in which the defendant had

been absent from a small portion of the jury selection. During

his absence the defense counsel exercised his only challenge for

cause, which was granted. The defendant was present for the

rest of the challenge period. The court held that this violation

of Rule 43 was harmless error.

In Phillips v. United States, 533 F.2d 369 (8th Cir.) cert.

denied, 429 U.S. 924 (1976) the court was also faced with a

claim that a defendant should have his conviction reversed on

the basis that he was absent during the period in which

challenges were made. While recognizing that a defendant is

entitled to be present at all stages of his trial, including jury

selection, the court noted that the record revealed that the

defendant was present during most of the jury selection pro-

cess and was only absent for approximately 10 minutes while

~ 13 The defendants in United States v. Dioguardi, 428 F.2d 1033,

1039 (2d Cir.), cert. denied. 400 U.S. 825 (1970), did not request to

be present at sidebar. The appellate court did not base its affirmance

on waiver, however. Rather, it reviewed all the circumstances sur-

rounding the voir dire to determine whether the procedure utilized

constituted reversible error. In so doing, it necessarily rejected an

automatic reversal rule.

A-17

the attorneys exercised their strikes. In light of these facts, the

court decided to find reversible error.'*

United States v. Brown, 571 F.2d 980 (6th Cir. 1978),

presented a slightly different problem under Rule 43. The trial

judge held a conference in chambers to discuss the dismissal of

a juror.'® The defendants were not present, but their attorneys

were. The appellate court ruled that the defendants had a

right under Rule 43 to be present at an in-chambers con-

ference concerning the dismissal of a juror. However, after ex-

amining the transcript of the conference and noting that

defense counsel had been zealous advocates of their clients’ in-

terests, the court concluded that there was no reasonable

possibility of prejudice in the case, and affirmed the convic-

tions. See United States v. Alper, supra at 1232.

We are persuaded by our review of these cases that the por-

tion of Rule 43 which recognizes the right of a defendant to be

present during jury impaneling does not require a holding that

4 See United States v. Chrisco, 493 F.2d 232 (8th Cir.), cert.

denied, 419 U. S. 847 (1974), in which the defendants were present

for the entire voir dire. After the challenges for cause were exercised,

the court recessed for noon and the defendants were removed from

the courtroom. The attorneys stayed in the courtroom and exercised

the peremptory challenges. After the recess, the courtroom clerk

read the list of jurors who had been selected. At this point the defen-

dants ap tly expressed to their counsel their disapproval of

some of the jurors who had been seated. The defense counsel did not

make a formal objection known to the trial court. Reviewing this

situation on appeal, the court stated that Rule 43 guaranteed the

defendants a right to be present at all steps of selecting a jury, in-

cluding the exercise of peremptory strikes. Nonetheless, it concluded

that the fact that the defendants were present at the time the clerk

gave effect to the strikes by reading the list of jurors, and had

registered their opinions with their attorneys, demonstrated that the

error was harmless.

‘5 This conference occurred during trial. The rm had been se-

questered. The U. S. Marshal reported to the ju beers one juror

had had a serious argument with her husband on the telephone the

night before. The judge decided to excuse the juror because the trial

was scheduled to continue for at least another week and he did not

consider it wise to have a person who was upset and anxious over her

marriage serve as a juror for that length of time.

A-18

reversible error was committed on the record in this case. The

harmless error doctrine should apply to this provision just as it

does to other provisions of Fed. R. Crim. P. 43. In Alper,

supra, this court said at 1232-33 of 449 F.2d:

“In the circumstances here presented the court was not in

error in relying on the authority of defense counsel to act

for their client.

“Moreover, assuming such reliance to have been mis-

placed the error was harmless beyond a reasonable

doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct.

824, 17 L.Ed.2d 705 (1967). Neither communication to

the jury is claimed to be erroneous. That the instruction

as to the verdict was understood by the jury is

demonstrated by its verdict. It acquitted one defendant

on all counts, convicted one defendant on all counts, and

found one defendant guilty on one count and not guilty

on twenty counts. The inquiry with respect to the exhibit

list and the agreed upon reply can hardly be raised to the

dignity of an instruction. The exhibits were in the jury

room, and their numbering was a housekeeping detail.

Appellant Greenberg urges that with his experience he

might have suggested a manner of responding to the in-

quiry about the exhibits that would have been helpful to

him but he does not say what or how. We could not

reverse on a ground so entirely speculative.” (Footnote

omitted.)

OF

Alessandrello and Lacognata advance a further argument.

They contend that, even if a harmless error rule applies to

violations of Rule 43, their convictions should be reversed on

the alternative ground that their exclusion from part of the

voir dire unduly impaired their right to exercise their peremp-

A-19

tory challenges.'® They assert that they might have observed

something about a prospective juror during the examination

concerning exposure to pre-trial publicity which might have

led them to make suggestions to their attorneys regarding

peremptory strikes. They contend that their absence must give

rise to a presumption of prejudice because the ephemeral

nature of the information they might have gathered makes it

impossible to assess the extent of actual prejudice they suf-

fered.

Alessandrello and Lacognata do not in any way attack the

impartiality of the jury. Their sole complaint is that they were

deprived of some unspecifiable information which might have

been helpful in the exercise of their peremptory challenges."

‘© Our analysis of this claim begins with a recognition that a

defendant's right to peremptory challenges is statutorily, not con-

stitutionally, based. See Fed. R. Crim. P. 24(b). As the Supreme

Court has said:

“There is nothing in the Constitution of the United States

which requires the Congress to grant peremptory challenges to

defendants in criminal cases; trial by impartial jury is all that

is secured.”

Stilson v. United States, 250 U. S. 583, 586 (1919). In fact, since the

right to peremptory challenges is “in the nature of a statutory

privilege ... [it] may be withheld altogether without impairing the

constitutional guaranties of ‘an impartial jury’ and a fair trial.”

Frazier v. United States, 335 U.S. 497, 505 n. 11 (1948).

Nonetheless, “the persistence of peremptories and their extensive use

demonstrate the long and widely held belief that peremptory

challenge is a necessary part of trial by jury,” Swain v. Alabama,

380 U. S. 202, 219 (1965), and the challenge has been described as

“one of the most important of the rights secured to the accused.”

Pointer v. United States, 151 U.S. 396, 408 (1894).

17 Most of the dissent is based on possibilities of prejudice to a

defendant not presented by the voir dire proceedings in this case. At

ge 41 of the dissent, Snyder v. Massachusetts 291 U.S. 97 106

(1934), is relied on for the proposition that “[i]t is of the utmost im-

portance that the defendant be present when the jury is being

selected” because “he may identify p ve jurors that he

knows.” The two convicted defendant-appellants had ample oppor-

tunity to identify any jurors they knew during the 80-85% of the

voir dire conducted in their presence.

A-20

In their view, this limitation in itself necessarily denied them a

fair trial. We do not agree. While we do not approve of the

voir dire procedure followed in this case, we do not believe it

deprived the defendants of a fair trial.

In view of the record, showing that defense counsel agreed

on the jury as selected as pointed out above, the statement of

the dissent that the peremptory challenges were impermissibly

controlled by the court is not supported by the record.

Although the presence of attorneys in the anteroom was not

a waiver of the defendants’ right to be present, their agree-

ment to the jury as selected, after consultation with their

clients, was a waiver as to all matters other than the absence of

the defendants from the questioning in the anteroom. As

pointed out above at note 17, the dissent has not been able to

point to any unfairness manifested by any juror who served |

during any moment of the trial, even though all the statements

made in the anteroom portion of the voir dire have been

transcribed. See Document 38 in Crim. No. 79-269, D.N.]J.

We are aware that other courts presented with claims that

the defendants were deprived of some information which

might have been helpful in the exercise of their peremptory

challenges have reviewed the circumstances of the particular

cases to determine if the convictions should be reversed. In all

of the cases concerning jury impaneling cited above in section

B, the defendants were absent during part of the jury selec-

tion, and thus were necessarily deprived of some information

about prospective jurors which might have affected their sug-

At page 41 of the dissent, under “Second,” the dissent again relies

on pales ary lp acror scat whe woe i eee a |

make “ ‘su s] or even to supersede mine arog goer

conduct the trial himself.’ ” He had id aeaiee

take the quoted actions.

Under “Third” on page 42 the dissent quotes Blackstone on the

desirability of a defendant not being tried by “ ‘any one man against

whom he has conceived a prejudice even without ... reason.” Since

there may have been perem peremptory challenges available at the time

in

the jury selection process agreement on the composition of

the jury, this possibility has not been demonstrated on this record.

A-21

gestions regarding peremptory challenges. Yet, in each in-

stance, the error was deemed harmless. In different contexts,

limitations on information potentially useful for peremptory

challenges have also been upheld. For example, in United

States v. Barnes, 604 F.2d 121 (2d Cir. 1979), cert. denied, 100

S.Ct. 1833 (1980), the district court refused to disclose the

names, addresses, neighborhoods, religions, or ethnic

backgrounds of the prospective jurors. The defendants, 14

blacks and one Hispanic, accused of distribution of massive

quantities of narcotics, were allowed to inquire into each pro-

spective juror’s family history, occupation, educational

background, and membership in organized groups or clubs.'®

Despite the fact that peremptory challenges are often exercised

on the basis of the “race, religion, [or] nationality” of a pro-

spective juror, Swain v. Alabama, supra at note 16, 380 U.S.

at 220, the Second Circuit disagreed with the defendants’ con-

tention that the limitation on the information concerning

religious and ethnic background impaired their exercise of

peremptory challenges and deprived the defendants of a fair

trial.'"° Thus, the case law does not support the per se rule ad-

vanced by Alessandrello and Lacognata.

Furthermore, policy considerations also convince us that the

defendants’ peremptory challenge theory reaches too far.

Their position is that the defendant’s absence from any portion

of the voir dire vitiates the whole proceeding because no one

can ever know what “sudden impressions and unaccountable

8 Additionally, the prospective jurors were asked if they had any

close friends or relatives working for any agency dealing with nar-

cotics control, any law enforcement group or any other governmen-

tal agency. They were also questioned about their attitudes toward

blacks and other racial groups. :

© Cf. United States v. Vargas, 606 F.2d 341, 346 (1st Cir. 1979)

(defendant alleged his right to peremptory challenge was violated by

juror’s failure to reveal he had been in a mental hospital; court held

that knowledge of juror’s mental history would have subjected him

to further interrogation during voir dire, but determined that a new

trial was not necessary because there was no showing that the juror

was biased or prejudiced against the defendant in any way).

A-22

prejudices”*’ he might have formed had he been present. In

light of this view, the fact that an experienced trial attorney is

present would be relevant because defendant and his counsel

might form different impressions of the same individual.

Under this theory, no matter how short the absence from the

impaneling nor what the cause,*' nor how skilled the defen-

dant’s counsel, a new trial would be required. Although a per

se rule would be easy of application, we do not believe it

would further our interests in ensuring that defendants receive

fair trials. By automatically requiring a new trial every time

there was a miniscule infraction of the rule requiring presence

at jury impaneling, even when the defendant presented only

the most speculative claim of potential prejudice, we would be

sacrificing considerable judicial resources without a cor-

responding increase in the actual fairness of trials. See Snyder

v. Massachusetts, 291 U.S. 97, 122 (1934) (“There is danger

that the criminal law will be brought into contempt ... if

gossamer possibilities of prejudice to a defendant are to nullify

a sentence pronounced by a court of competent jurisidiction in

obedience to local law, and set the guilty free.”).** Moreover,

it is possible that such a rule might create an incentive for

defendants to attempt to absent themselves from the jury im-

paneling for a short period.

Our reluctance to apply a per se rule in this matter leads us

to take a case. by case approach. As with other violations of

2” 4 Blackstone's Commentaries 353 (Lewis's Ekition).

*! Presumably, an explicit waiver by the defendant of his right to

be present would be the one exception to this rule.

#2 Also, the Court stated in Snyder, supra, relied on by the dissent:

“[T]he presence of the defendant (is required where it bears) a

relation, reasonably substantial, to his opportunity to defend.

Nowhere in the decisions of this court is there a dictum, and

still less a ruling, that the Fourteenth Amendment assures the

ah of presence when presence would be useless, or the

nefit but a shadow. What has been said, if not decided, is

distinctly to the contrary.”

291 U.S. at 106-07.

A-23

Rule 43, in each instance that the defendant is absent from a

portion of voir dire, we must examine the totality of the cir-

cumstances to determine whether the error is harmless. See

Rogers v. United States, 422 U.S. 35, 40 (1975).

D.

The principles discussed above guide us in our analysis of

the instant case. Alessandrello and Lacognata were, without a

doubt, excluded from a portion of the voir dire. They did not

waive their right to be present. This exclusion was a clear

violation of Rule 43(a), pursuant to a method of impaneling

the jury which we cannot countenance. Nonetheless, our

review of the particular facts of this case convinces us that

there is no reasonable possibility of prejudice to Alessandrello

or Lacognata stemming from this error. The defendants urge

that they were prejudiced in the exercise of their peremptories.

However, as we have mentioned before, Alessandrello and

Lacognata saw every prospective juror and heard each one res-

pond to questions about personal background, as well as

general trial-related matters. They had a full opportunity to

measure the demeanor of prospective jurors. Thus, they were

able to gather the information upon which peremptory

challenges have traditionally been based. Unfortunately, they

were not allowed to be present at the questioning in the

anteroom. However, since this portion of the examination con-

cerned only one topic, since experienced defense counsel were

present and were encouraged to consult with the defendants as

frequently and as fully as they desired, and since the defen-

dants were located in the courtroom only 25 feet away, any

potential harm which could arise from this procedure was

*2 We agree with the Second Circuit's holding in United States v.

Crutcher, 405 F.2d 239 (2d Cir. 1968), cert. denied, 394 U.S. 908

(1969), that without an effective waiver a defendant's absence from

the entire jury selection process cannot be determined to constitute

harmless error.

A-24

greatly diminished. When these facts are added to the fact that

the trial judge in no way limited the amount of consultation

which the defendants and their counsel were permitted to

have with each other before selecting the actual members of

the jury, we conclude that in this instance the violation of Rule

43 constituted harmless error.*

III.

Alessandrello and Lacognata also urge this court to reverse

their conviction on the second count of the indictment. In this

count they were charged with bank robbery in violation of 18

U.S.C. §2113(a). The first part of subsection (a) of the statute

provides:

“Whoever, by force and violence, or by intimidation

takes, or attempts to take, from the person or presence of

another any property or money or any other thing of

value belonging to, or in the care, custody, control,

management, or possession of, any bank, credit union, or

any savings and loan association ... [s]hall be fined not

more than $5,000 or imprisoned not more than twenty

years, or both.”

Under this portion of the statute, a taking from the person or

presence of another is an essential element of the crime.

United States v. McGhee, 488 F.2d 781, 784 (5th Cir.), cert.

denied, 417 U.S. 971 (1974) (indictment under first part of

subsection (a) dismissed as fatally defective because it charged

defendants with taking money from a bank and did not allege

a taking from the person or presence of another); cf. United

States v. Brown, 547 F.2d 36, 39 (3d Cir. 1976), cert. denied

sub nom. Redding v. United States, 431 U.S. 905 (1977) (of-

fense described in the first paragraph of §2113(a) is analogous

to common law robbery). |

* We caution the trial judges in this circuit to comply fully with

Fed. R. Crim. P. 43’s diection that “[t]he defendant shall be present

. at every stage of the trial including: the impaneling of the

ss Se

A-25

The indictment charged Alessandrello and Lacognata with

violating the statute by taking money in the control of

Franklin Bank from the person or presence of William

Dedrick. With regard to this aspect of the case, there is no

dispute about the facts. The evidence was that Dedrick, pur-

suant to telephoned instructions, left the money in a wooded

spot in Fort Lee, New Jersey. He then took a taxi home. Ap-

proximately one and one-half hours later, the defendants

picked up the money.* Thus, the question presented is a legal

one: does the retrieval of money delivered to a designated

isolated wooded area by an individual who leaves the scene

before the retrieval, the facts in this record, constitute a taking

from the person or presence of that individual? The Ninth Cir-

cuit has answered this question in the negative. In United

States v. Culbert, 548 F.2d 1355, 1356 (1977), rev'd on other

grounds, 435 U.S. 371 (1978), the court vacated a conviction

under §2113(a) because the criminal plan that the bank presi-

dent should deliver money to a specified site and then return to

the bank “did not contemplate a trespassory taking from the

person or presence of the bank president or any other person.”

The court held that without “proof of that essential element of

the offense charged. .., the judgment of conviction ... must

necessarily be vacated.” Id. When the case was later remand-

ed by the Supreme Court, the Ninth Circuit reiterated its

reversal of the §2113(a) conviction, explicitly stating it was

following the reasoning set forth in its earlier opinion. United

States v. Culbert, 581 F.2d 799, 799 (1978).

On the other hand, the majority of the United States Courts

of Appeals have answered this question in the affirmative and

have found violations of 18 U.S.C. §2113(a) under substan-

tially similar circumstances to those presented by this record.

See United States v. Hackett, _. F.2d _. (4th Cir., July 2,

1980, No. 79-5228); Brinkley v. United States, 560 F.2d 871

(8th Cir. 1977); United States v. Beck, 511 F.2d 997, 1000 &

1003 (6th Cir. 1975). Cf. United States v. Marx, 485 F.2d 1179

% Trial transcript, September 29, 1979, at 533-37.

-%

7.

A-26

(10th Cir. 1973); contra, United States v. Culbert, 548 F.2d

1355 (9th Cir. 1977), 581 F.2d 799 (9th Cir. 1978).

In Brinkley, supra, the branch manager of a bank received a

call from one of several defendants, later convicted of viola-

tion of 18 U.S.C. §2113(a), demanding that he get several

thousand dollars or a bomb would go off at his home. He put

$3,000. in a sack and, after receiving instructions at two dif-

ferent phone booths, “was ultimately directed to throw the

money over the Arch Street viaduct.” 560 F.2d at 872. He

complied and drove away. None of the defendants ever

secured possession of the money. Brinkley brought an action

under 28 U.S.C. §2255, contending “that since no one per-

sonally confronted [him], there was no taking or attempted

taking ‘from the person or presence of another’ as required by

§2113(a).” 560 F.2d at 873. The court used this language in af-

firming the denial of the petition under 28 U.S.C. §2255:

“(W]e find that the telephone call to [the branch

manager] was as much of a personal confrontation as if

Brinkley had entered the bank with a gun and demanded

[the branch manager] hand over the bank’s money.

Through intimidation and fear [the branch manager] was

forced to comply with the demands made upon him or

else assume great personal risk. We also find that there

was a taking from the person of [the branch manager] at

the time he dropped the money over the viaduct at the ex-

act spot the robbers had instructed. [The branch

manager] lost possession and control of the money at that

point, and the money was constructively in the possession

* We do not disregard the words in 18 U.S.C. §2113(a) requiring

a taking or attempting to take “from the person or presence of

another” of property “in the care, custody, control, management or

possession of, any bank.” On this record, the money in the suitcase

and bag (see pp. 5 and 4 above) was taken from Dedrick as a person

and was in the care, custody, or management of the bank when

deposited in the wooded area in Fort Lee known only to bank ex-

ecutive vice-president Dedrick and the defendants.

A-27

|

of Brinkley and the coconspirators since they had the op-

portunity to pick it up, and intended to do so.”

We conclude that this reasoning applies to the facts in the

record in this case.

IV,

Alessandrello and Lacognata also claim that there was in-

sufficient evidence of their intent to steal from a bank. Asserting

that the evidence at most showed an intent to extort money

from Dedrick personally, they urge us to overturn the jury ver-

dict on the third count. In examining this contention, we are

bound to view the evidence in the light most favorable to the

Government. Glasser v. United States, 315 U.S. 60 (1942).

The evidence showed that during the first call received by

Dedrick, he was instructed to get $150,000., leave the bank,

go across the street to a pay phone, and wait for a call which

would give further instructions. Dedrick received a call on this

pay phone 15 minutes after the initial contact. Because the

defendants knew the number of the pay phone across the street

from the bank, it is clear that they knew where Dedrick

worked and that he was a banker. The very large amount of

the demand further demonstrates that the meney was not in-

tended to come from Dedrick’s individual account but from

the bank itself. The evidence also showed that Dedrick was

specifically instructed to bring only unmarked small bills with

him. Furthermore, during the first conversation Dedrick told

his caller that he did not know whether there was $150,000. in

the bank vault. Additionally, the defendants not only called

Dedrick at the bank originally, but continued to call the bank

throughout the next day. It was while Dedrick was still at the

bank that the defendants called him and increased their de-

mand to $300,000. In light of these facts, we believe that there

was certainly adequate evider:ce from which a jury could have

concluded that the extortion was directed against the bank.

A-28

In a factual situation quite similar to the one before us, the

Fifth Circuit decided that there was sufficient evidence of in-

tent to rob a bank. United States v. Carpenter, 611 F.2d 113

(1980). There the son of the president and vice-president of a

bank was abducted. The abductor telephoned the bank and

forced the son to tell his parents to deliver $38,000. if they

wished his safe return. Further telephone calls directed his

mother, the vice-president of the bank, to take a series of steps

which culminated in leaving the money in a designated place.

Emphasizing that both parents were bank officers, that the

abductor knew the parents worked at the bank, and that the

abductor demanded a very large amount of money, the court

held that the facts established that the extortion was directed

at the bank and not solely at the parents. Jd. at 114. See

generally United States v. Johnson, 516 F.2d 209, 214-15 (8th

Cir.), cert. denied, 423 U.S. 859 (1975).

Accordingly, we conclude that there was substantial

evidence to support the finding of intent to steal from a bank.

We sustain the guilty verdict returned by the jury on Count

Three.

V.

The defendants also argue that the trial court erred in ad-

mitting certain items into evidence. They contend that the

judge iricorrectly decided under Rule 403 of the Federal Rules

of Evidence that the probative value outweighed the pre-

judicial effect of the following articles: a loaded .38 caliber

revolver, a shoulder holster, coveralls, adhesive tape, ski

masks, a navy watch cap, and sunglasses. We are bound by the

trial court’s rulings under Fed. R. Evid. 403 unless the court

exercised its discretion arbitrarily or irrationally. United States

v. Agee, 597 F.2d 350, 357 (3d Cir.), cert. denied, 442 U.S.

944 (1979); United States v. Long, 574 F.2d 761, 767 (3d Cir.),

cert. denied, 439 U.S. 985 (1978). Our examination of the

A-29

record reveals no such abuse of discretion. Consequently, we

reject this contention.

Lastly, Alessandrello and Lacognata complain that the trial

court incorrectly denied their request for an indefinite conti-

nuance. They ground this claim on the fact that the guilty plea

entered by one of the co-defendants shortly before trial

engendered a number of newspaper articles. The grant or

denial of a continuance is a decision entrusted to the discretion

of the trial judge. United States v. Walden, 590 F.2d 85, 86

(3d Cir.), cert. denied, 100 S.Ct. 99 (1979); United States v.

Addonizio, 451 F.2d 49, 61 (3d Cir. 1971), cert. denied, 405

U.S. 936 (1972). Although some publicity was generated by

the guilty plea, this was not a case in which there was per-

vasive publicity throughout the local area. Cf. Rideau v. Loui-

siana, 373 U.S. 723 (1963) (20 minute film of defendant’s con-

fession at police interrogation was broadcast three times by

television station in community of 150,000 where crime and

trial took place); United States v. Haldeman, 559 F.2d 31, 141

(D.C.Cir. 1976), cert. denied sub nom. Ehrlichman v. United

States, 431 U.S. 933 (1977) (newspaper coverage in local area

averaged between 30 and 120 column inches per day for two

years; presumption of juror bias unwarranted). Moreover, the

trial judge in the instant case did examine each prospective

juror individually concerning pre-trial publicity, and the

defense attorneys, after hearing the responses on that issue,

challenged none of them for cause. These factors, considered

together, convince us that the denial of the motion for an in-

definite continuance was not an abuse of discretion.

VI.

In conclusion, we hold that the procedure used by the trial

court in conducting a portion of the jury selection proceedings

out of the presence of the defendants violated Fed. R. Crim. P.

43(a), and should not be repeated. In light of the considera-

tions discussed and the totality of the circumstances of this

A-30

case, however, we believe that in this instance the error com-

mitted was harmless and does not require reversal. Turning to

the individual offenses charged, we conclude that the defen-

dants’ convictions of violating §2113(b) and (e) will be af-

firmed. Also, there was sufficient evidence of intent to steal

from a bank and, therefore, the convictions under 2113(b) and

(e) will be affirmed. Finally, we hold that the trial court.did

not err in admitting certain items into evidence or in denying

the defendants’ request for an indefinite continuance.

Accordingly, we affirm the judgments in all respects.

A. Leon HiccinsotuaM, Jr., Circuit Judge, dissenting.

I join in Parts III, IV and V of the majority opinion. Because

I believe that the errors in the conduct of the voir dire require

reversal, I respectfully dissent from the judgment of this court.

In my view, the willful judicial exclusion of Alessandrello and

Lacognata from a critical portion of their voir dire is an error

which cannot be dismissed as harmless beyond a reasonable

doubt. The standard the majority uses to reach its decision will

make it almost impossible for future defendants to challenge a

denial of both their right to be present during their trial and

their right to exercise peremptory challenges. I am especially

concerned because the majority's approach seriously erodes

the defendants’ right to make decisions which are important to

their defense.

I am not unmindful of the overwhelming evidence against

the defendants, and I recognize that the distinguished trial

judge, in all but one respect, presided admirably over a dif-

ficult trial involving a highly publicized and tragic case. If

judges rulings were rated, like baseball players, for their

general batting average, certainly the trial judge had an

almost perfect record when one recognizes the challenges of

this case. But the trial of a case is not like the arena of sports.

The losses of the defendants, where here they received

A-31

sentences of 2] years, cannot be recouped or redeemed in next

year’s Worid Series.

I.

A.

The significance of the majority's holding cannot be gleaned

from a mere reading of the cold trial record or by a bland

recitation of the questions which were asked during the time

the defendants were excluded from one of the vital portions of

their own trial. A critical part of the jury selection process is

the use of the peremptory challenge. The challenge for cause

permits the defendant to exclude individuals about whom he

has articulable objections; the peremptory, on the other hand,

permits him to exclude persons based on inarticulable feelings.

The peremptory protects that which we know as women and

men, namely, that inarticulable hunches and intuitions are

often accurate perceptions of reality. The Supreme Court

reflected on this in Hayes v. Missouri, 120 U.S. 68, 70 (1887),

where it stated:

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 character of a juror

offered, from his habits and associations, 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.

The decision making in the peremptory challenge process

occurs within a milieu that makes it virtually impossible or at

least “difficult to formulate”, Hayes v. Missouri, supra, the

reasons why the peremptory objections were or were not exer-

cised. Yet it is within this elusive area that the facts of record

must be understood.

A-32

Judge Meanor, after addressing the jury pool, elected to

question each prospective juror individually in a small

anteroom located off the main courtroom. Since the room was

too small to accommodate the judge and his law clerk,

counsel, a court reporter, a court clerk, the prospective juror

and defendants, defendants were excluded from this portion of

their own voir dire proceeding.

The trial judge explained that the reasons for exclusion of

defendants from the anteroom proceedings were those of con-

venience (“technical and logistical problems”) and a desire to

avoid the prejudice which might occur “in open court

[when]. . .a prospective juror will say something which would

provide an argument that an entire group has been con-

taminated by what that juror has said.” He recognized that

such contamination was a “significant risk in a case of this

caliber.”

' THE COURT: All right.

Well, look, I think for the benefit of the record I ought to point

out that I have behind this courtroom two small rooms. I

would say probably 80 percent of the jury interrogation or my

addresses to the jury took place in the presence of the defen-

dants. I have a small room that I use to interrogate the jurors

on two topics; one was the extent of publicity that they had

read or seen or heard in regard to this case and there can be no

gainsay in the fact that this case has received extensive pub-

licity. The second topic of inquiry was whether the jurors had

as a result of that publicity or otherwise, any preconceived no-

tions about the guilt of the defendants. I have technical and

logistical problems. Well I might agree that it would be

preferable that the defense be present throughout the entire

jury interrogation, not just 80 or 85 percent of it, I run a

significant danger if I do this interrogation in open court, with

the members of the Panel present or the goups of 16 present,

that someone in open court, who is a prospective juror will say

something which would provide an argument that the entire

group has been contaminated by what that juror has said.

Now, that is a significant risk in a case of this caliber and it

was primarily that risk that I chose to avoid by interrogating

the jurors upon these rather extensive topics, individually.

The defendants certainly were present at that interrogation

at what I call sidebar or in the anteroom, through their

A-33

I find this exclusion in itself startling when we recognize the

importance of the voir dire proceedings and where defendants’

objections had been made explicitly to the trial judge. The ob-

jection was not an afterthought as in United States v. Dio-

counsel. I don’t think any counsel will deny that counsel were

told that any time during the interrogation or at the end

thereof if they wished to leave and consult with their clients,

who were in the courtroom only for 20, 25, 30 feet away, they

were free to do so. I’ve got to have a little play in the joints of

this judicial machinery to make it work and I believe that

doing it in this fashion was within my discretion. I do not

believe it was an abuse of that discretion.

I think you're adequately preserved on this point on the

record for Appellate review.

MR. HOROWITZ: I just would like to make another com-

ment, your Honor, so the record is complete. I, of course,

agree with your Honor’s motives and intention in the pro-

cedure except I suggested it to your Honor yesterday and I

repeat again here for the record that your Honor had a very

feasible alternative that individual interrogation could have

-been conducted in a larger room where the defendants could

have been present. Indeed it could have been done in the

courtroom with only one potential witness in the courtroom.

THE COURT: Yes, it could have been and it could have

been bringing one juror in at a time instead of in groups of 15

and it would have been all week picking a jury. I don’t have

logistically the place with which I can retire with four at-

torneys, four defendants, a Court Clerk, a Court Reporter,

two attorneys for the Government and, perhaps, one of my

law clerks to take care of this matter.

All right. You made your point. Denied.

MR. HOROWITZ: Your Honor, there was a room which

was quite adequate for that purpose and it was the room in

which the defendants were held and which all four counsel

were given the opportunity to consult with their defendants

after we conducted the interrogation right across the hall.

THE COURT: It’s a jury room what you're talking about.

MR. HOROWITZ: It’s no more than 10 or 20 feet.

THE COURT: It’s more than that and it would have taken a

lot of extra time to shuffle everybody over there and back. Any

further motions you wish to make?

MR. HOROWITZ: That's it.

Appendix at 75-79.

A-34

guardi, 428 F.2d 1033, 1039, n.4 (2d Cir.) cert. denied, 400

U.S. 825 (1970), where the objection to the voir dire pro-

ceedings was raised for the first time at the hearing on sentenc-

ing. Here, counsel for defendants stated the objection

explicitly .?

The solution to this logistical problem was easy though

perhaps more time consuming. The trial judge could have had

individual jurors brought into the main courtroom one at a

time where they could have been questioned in the presence of

the defendants, and it appears that there was a room close by

where the proceedings could have taken place but as the trial

judge noted “it would have taken a lot of extra time to shuffle

everybody over there and back.”

B.

The majority concedes that the exclusion of the defendants

“was a clear violation of Rule 43(a)” which guarantees to each

defendant the right to “be present ... at every stage of the

trial including the empanelling of the jury ...”

Fed.R.Crim.P. 43, and it cautions the trial judges in this cir-

cuit to fully comply with the rule in the future. However the

* MR. HOROWITZ: We dbjected to the procedure whereby

individuals members of the jury were interviewed by

Your Honor in the anteroom ou the courtroom, outside of

te Seen a ee eee Se Se ee

ants are enti to exercise peremptory challenges. A

peremptory challenge can be based on it can be bas-

ed on a gut feeling, an innate distrust, . Your Honor

knows. For my client not to have had the opportunity to see

each and every one of those jurors as they answered the ques-

tions at close range, if you will, more pointed questions than

were — and alone, as distinguished from a member of a

panel and sitting in the box in a large room, it deprived them

of the opportunity to see that, to get that feeling and to com-

municate that to counsel, which of those jurors he would

prefer having or not having. (emphasis added)

Appendix at 75.

A-35

majority decided that this exclusion was harmless error

because

this portion of the examination concerned only one topic,

since experienced defense counsel were present and were

encouraged to consult with the defendants as frequently

and as fully as they desired, and since the defendants

were located in the courtroom only 25 feet away, any

potential harm which could arise from this procedure

was greatly diminished. When these facts are added to

the fact that the trial judge in no way limited the amount

of consultation which the defendants and their counsel

were permitted to have with each other before selecting

the actual members of the jury, we conclude that in this

instance the violation of Rule 43 constituted harmless er-

ror. (footnote omitted)

Majority Opinion at pages 24-25.

It seems particularly ironic that the majority concludes that

the questioning of a prospective juror (in the absence of the

defendants) was harmless error when the jurors were being

questioned on the “one topic” so sensitive that the trial judge

feared, in his own words, that if another juror heard the

answer it “would provide an argument that the entire group

has been contaminated by what that juror has said.” Appendix

at 76. If the topic is potentially poisonous enough to con-

taminate a whole group of jurors, why isn’t it important

enough for the defendants to be present to make their own

judgments on the prospective juror’s responses and to decide

by what they hear and see whether they want to exercise a

peremptory challenge against that juror?

While I commend wholeheartedly the trial judge’s concern

for preventing the possible prejudice of pretrial publicity, a

reading of the transcript, pertaining to the anteroom question-

ing, reveals that questions were asked and issues raised which

are precisely the type of interchanges the defendants are en-

A-36

titled to witness in order to make meaningful their use of the

peremptory challenge. For example, one prospective female

juror acknowledged having read about the crime in the

newspaper and also having been the victim of a past burglary.

The defendants’ counsel challenged her for cause because “I

think she is going to have some inner feelings that — she ...

[like the victim of the instant kidnapping is] a woman who is

home alone.” T.R. at 84. Judge Meanor denied the challenge

for cause. While counsel could have cast one of the defendants’

peremptory challenges on their behalf, the defendants by their

absence were deprived of an opportunity to observe the

would-be juror’s demeanor.

Similarly the following interchange, in the absence of the

defendant, between the court and a prospective juror is

illustrative of the need for the defendants’ presence:

EXAMINATION OF PROSPECTIVE JUROR NO. 4

BY THE COURT:

Q. Mr. Williams, do you recall having read anything

about this case in the papers or heard about it over the news

media?

A. Yes.

Q. Tell me what you specifically remember?

A. Well, it was 2 while ago, I didn’t pay that much atten-

tion. I don’t particularly like sensational cases per se. The only

impression that I remember is that there seems to be some in-

herent stupidity on the part of the defendant.

Q. Mr. Williams, these people are entitled to a fair trial.

Do you believe that there is any reason why you can’t give

them a fair trial?

A. No, not on that basis.

Q. Do you think you would hesitate at all to bring back a

verdict of not guilty if you found the case had not been proved

beyond a reasonable doubt?

A. No problem.

A-37

Q. I might jar your memory. Do you recall having read

anything in the newspapers or heard over the news media

anything about the alleged abduction of one Joan Dedrick

whose husband was a vice president of a bank?

A. Yes. |

Q. Has this led you to form any opinion as to the guilt or

innocence of the people now on trial?

A. I didn’t follow it that closely, sir.

Q. I take it your answer is in the negative?

A. Yes.

T.R. at 59, 60. Counsel’s challenge for cause was again

denied.

Reading from the cold record we cannot always appreciate

the nuances of a trial. Should we believe that simply because

prospective juror Williams said he believed that the defen-

dants were entitled to a “fair trial” that Williams really meant

it? What does the record really reveal from Williams’ answer

“I don’t particularly like sensational cases per se. The only

impression that I remember is that there seems to be some in-

herent stupidity on the part of the defendant.”?

As I read many of the answers throughout the anteroom voir

dire proceedings there were persistent issues of credibility as to

the prospective jurors. How can it be harmless error when the

defendants are excluded from hearing and seeing the jurors

being questioned on matters which the trial judge considered

sensitive and possibly prejudicial?

II.

The jury selection process in federal courts is too precious a

right to sanction the trial judge’s well intentioned, but pur-

poseful, exclusion of the defendants from approximately

twenty per cent of their own voir dire proceeding. The

majority views the lower ccurt’s exclusion of the defendants

from a portion of their own voir dire proceeding as mere

-%

A-38

“harmless error” and _ stresses that “Alessandrello and

Lacognata do not in any way attack the impartiality of the

jury.” Majority Opinion at page 20.

Perhaps my fundamental disagreement with the majority is

our differing perception of the purposes for the voir dire pro-

ceeding. By relying on the fact that ultimately an impartial

jury was selected in this case, the majority neglects the critical

importance of the defendants’ right to participate in every

stage of their trial. Clearly the majority would not condone a

jury selection process, whereby the defendants were given

absolutely no say, merely because it resulted in an impartial

jury panel.

It is of the utmost importance that the defendant be present

when the jury is being selected. First, his presence will make

for a more effective defense, because it enables the defendant

“to give advice or suggestion” to his lawyer during the trial.

Snyder v. Massachusetts, 291 U.S. 97, 106 (1934). This is im-

portant bezause the defendant has unique knowledge which is

important at all stages of the trial, including voir dire. At the

voir dire he may, for example, identify prospective jurors that

he knows. He may also have knowledge of facts about himself

or the alleged crime which may not have seemed relevant to

him in the tranquility of his lawyer's office, and thus may not

have been disclosed, but which may become important as the

individual prejudices or inclinations of the jurors are revealed.

He may also be a member of the community in which he will

be tried and might be sensitive to particular local prejudices

his lawyer does not know about.

Second, if present, the defendant will be able to make deci-

sions about his defense, as well as advise his lawyer. Unless he

is present, he cannot observe how his defense is unfolding and

would be unable to make “suggestion[s] or even to supersede

his lawyers altogether and conduct the trial himself.” Snyder

v. Massachusetts, 291 U.S. at 106. He must be present so that

he may participate in the defense, if he wishes, “for it is he

A-39

who suffers the consequences if the defense falls.” Faretta v.

California, 422 U.S. 806, 819-20 (1975). See United States v.

Williams, No. 79-2237 (3d Cir. June 23, 1980) (Adams, J.

dissenting) (discussing in detail the defendants right to control

his own defense).

Third, the defendant’s presence at the voir dire not only af-

fects the actual attainment of an impartial trial, but also is im-

portarit to the appearance of impartiality. As Blackstone

pointed out, “how necessary it is that a prisoner (when put to

defend his life) should have a good opinion of his jury the want

of which might totally disconcert him; the law wills not that

he should be tried by any one man against whom he has con-

ceived a prejudice even without being able to assign a reason

for such his dislike.” 4 Blackstone 353, quoted in, Lewis v.

United States, 146 U.S. 370, 376 (1892).

Although the Supreme Court has never held that the

peremptory challenge is required by the Constitution, it has

remarked frequently on its significance. See e.g., Lewis v. °

United States, 146 U.S. at 378 (“essential in contemplation of

law to the impartiality of the trial”); Pointer v. United States,

151 U. S. 396, 408 (1894) (“one of the most important of the

rights secured to the accused”); Swain v. Alabama, 380 U.S.

202, 219 (1965) (“a necessary part of trial by jury.”). The

peremptory challenge is important because it helps the defen-

dant select a jury by giving him “an opportunity beyond the

minimum requirements of fair selection to express an arbitrary

preference among jurors properly selected and fully qualified

to sit in judgment on his case.” Frazier v. United States, 335

U.S. 497, 506 (1948).

The peremptory challenge procedure was not designed to

implement a judge’s perception of what constitutes an impar-

tial jury. The peremptory challenge was designed for the

defendant and the prosecutor — neither the trial judge nor the

appellate courts are given the right to cast the litigants’ ballot

for peremptory challenges. Plainly speaking, it is not for

A-40

judges to select the type of jury which will decide the fate of

the accused. More than a decade ago Justice White, speaking

for the Court in Swain, stressed that:

The essential nature of the peremptory challenge is that it

is one exercised without a reason stated, without inquiry

and without being subject to the court’s control.

380 U.S. at 220. In this case, the peremptory challenge was

impermissibly “subject to the court’s control” and therefore

constituted reversible error.

This is a case where appreciation of the applicable legal

precepts casts the facts in their proper perspective. Appellate

courts should be extremely cautious when they decide beyond

a “reasonable doubt” that a defendant would not have found

an inarticulable suspicion important enough to exclude an in-

dividual from the jury. That decision cannot be made here

because the portion of the voir dire from which the defendants

were excluded, involved important issues about possible pre-

judice of the jurors. The majority asserts with confidence that

the exclusion was mere harmless error. Its holding defies the

principles of law which Mr. Justice Shiras reaffirmed almost a

century ago when adopting the earlier views of both Justice

Story and Blackstone:

(1) As every one must be sensible, what sudden impres-

sions and unaccountable prejudices we are apt to con-

ceive upon the bare looks and gestures of another; and

how necessary it is that a prisoner (when put to defend his

life) should have a good opinion of his jury, the want of

which might totally disconcert him, the law wills not that

he should be tried by any one man against whom he has

conceived a prejudice even without being able to assign a

reason for such his dislike. (2) Because, upon challenges

for cause shown, if the reason assigned prove insufficient

to set aside the juror, perhaps the bare questioning his in-

difference may sometimes provoke a resentment; to pre-

A-41

vent all ill consequences from which, the prisoner is still

at liberty, if he pleases, peremptorily to set him aside.

Lewis v. United States, 146 U.S. at 376.

Admittedly before the anteroom proceeding the defendants

had some opportunity “to measure the demeanor of prospec-

tive jurors” and to hear responses “to questions about personal

backgrouhd, as well as general trial-related matters,” Majority

Opinion at page 24, and I recognize that the voir dire in the

anteroom was only twenty percent of the overall voir dire.

Brief for Appellee at 32. But defendants are entitled to 100 per

cent of their rights — an 80 per cent grant is not enough. Im-

portant issues of individual knowledge, preference and pre-

judice were explored in the anteroom. Not only did the judge

question each juror about whether he or she had seen media

reports of the crime, but he also asked each juror if there were

any reasons why he or she would be prejudiced against the

defendant or whether there were any other reasons why he or

she could not serve on the jury. The answers to these questions

were undoubtedly significant in the decision about peremp-

tories. Can the majority say a juror’s response to any of these

inquiries would not have given defendants what the Supreme

Court, Justice Storey and Blackstone said, that “everyone must

be sensible to ... sudden impressions and unaccountable pre-

judices” because of the manner of the response? Can the ma-

jority say that any lawyer would be able to adequately ar-

ticulate to the defendants what should be the defendants ex-

pression of “the bare looks and gesture of another.”? Lewis v.

United States, supra. I submit that looks, gestures and ap-

pearances which may be suspect to a defendant may seem in-

nocuous to his lawyer. The defendants may have wished to

hear what was said, to decide for themselves whether what a

juror said “sounded” like the juror truly believed the answer

given. The defendants may have wished to observe facial ex-

pressions, or other revealing physical reactions. These are the

kinds of reactions which frequently form the basis of peremp-

A-42

tory challenges. If we find today that non-verbal or intangible

reactions to inquiries about prejudice and views are unimpor-

tant beyond a reasonable doubt, I query whether we would

ever find intangibles significant.

Further, the majority ignores the question of burden of

proof on this issue. Implicitly it has placed the burden on the

defendants. That decision conflicts with the traditional rule

that the burden rests on the government to prove that a pro-

cedural error of this sort is harmless beyond a reasonable

doubt. See generally Chapman v. California, 386 U.S. 18, 24

(1967).

IIl.

As I noted above, the defendants objected strenuously to

their exclusion. The importance of the waiver in cases such as

this is demonstrated by the fact that neither my review of the

cases nor the majority’s uncovered any instance where a defen-

dant made a timely objection to his exclusion from his voir dire

and it was not found to be reversible error. See, e.g., United

States v. Crutcher, 405 F. 2d 239, 242-43 (2d Cir. 1968). In

every case cited by the majority in which the court held the ex-

clusion was a harmless error, the defendant waived his right

below. The majority's heavy reliance on U.S. v. Alper, Appeal

of Stanley M. Greenberg, 449 F.2d 1223 (3d Cir. 1971), cert.

denied, 405 U.S. 988 (1972), reh. denied, 406 U.S. 911 (1972),

reveals that they fail to appreciate the significant and critical

differences between cases where the litigants purposefully

waived their right and those where, as here, the litigants pro-

tested from the beginning the court's preclusion of the defen-

dants from a crucial portion of the trial process. In Alper this

Court stated explicitly that “there is no indication whatever

that [the defendants] were excluded from the discussions in

chambers by any action of the court.” 449 F.2d at 1231. In

contrast here the defendants were precluded by the “action of

=

A-43

the court.” If the defendants’ pointed objection was not

enough to satisfy the majority, then there is nothing that a

defendant could do to receive the right to be present “... at

every stage of the trial including the impaneling of the jury”

which the rules and the Constitution grant to a defendant.

In other cases cited by the majority the defendant’s waiver

followed an offer by the trial court to repeat the portion of the

voir dire that the defendant had missed. See, e.g., Phillips v.

United States, 533 F. 2d 369, 372 (8th Cir.) cert. denied, 429

U.S. 924 (1976) (“Appellant ... was informed on the record

that if he wished, he could have an entirely new trial.”);

United States v. Dioguardi, 428 F. 2d at 1039 and n.4, cert.

denied,.400 U.S. 825 ( 1970) ( [“T]heir experienced counsel,

who had been earlier advised of the proposed procedure, did

not ask that [the defendants] be allowed to come nearer the

judge ... when the point was first raised ... the judge stated

he would have granted such a request.”); and Henderson v.

United States, 419 F. 2d 1277, 1278 (5th Cir. 1970) (“[T)he

Court asked [defendant’s] counsel whether there was ‘any

need ... to go back through the preliminaries with respect to

the exercise of challenges for cause.’ To this his counsel

answered with a categorical ‘No.’ ”).

The presence of the defendants’ attorneys at the voir dire in

the anteroom is not a waiver and does not alleviate the in-

firmity in this case. Candidly I am at a loss in understanding

why the majority’s opinion notes that the defendants were

only 25 feet away from the anteroom where this separate hear-

ing was being conducted. Defendants have neither bionic eyes

nor bionic ears — for them the impressions which these

witnesses made while being questioned in this adjacent room

were as undiscernable as if that separate proceeding occurred

a mile away.

As I noted above, the right to be present at trial implicates

the right to one’s own. defense. The defendant, if he chooses,

has the right to make his own judgments on the basis of a

A-44

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 ....” Darrow, Attorney for the Defense, Esquire

Magazine, May 1936, quoted in, United States v. Baines, 604

F’. 2d 121, 134 (2d Cir. 1979), cert. denied, 100 S. Ct, 1823

(1980), and to eliminate jurors “whether they be Negroes,

Catholics, accountants or those with blue eyes.” Swain v.

Alabama, 380 U.S. at 212. Here, defendants did not delegate

the selection to their attorneys and they need not have done so.

IV.

Having been a trial judge for more than thirteen years, I am .

sympathetic to the lower court’s difficulties in the manage-

ment of a complex and difficult case, and I applaud his con-

cern for eliminating the impact of pretrial publicity. I am also

aware of the public’s general hostility to any decision which

requires a retrial on what some would consider a mere

“technicality.” I firmly believe, however, that the selection of

a jury to sit in judgment and to decide the defendants’ freedom

is more than a technicality. As Mr. Justice Frankfurter

observed more than three decades ago:

In law, as in life, lines have to be drawn. But the fact that

a line has to be drawn somewhere does not justify its be-

ing drawn anywhere.

Pearce v. Commissioner of Internal Revenue, 315 U.S. 543,

558 (1942) (Frankfurter, J., dissenting). I draw the line where

as here the defendants have been intentionally excluded, over

their objections and without good cause, from a significant

portion of their voir dire proceeding.? As Judge Harold R.

> Because I believe the exclusion in this case was not

harmless error, I do not reach the issue of whether a per se rule

is desirable. Nor do I express any opinion on the consequences

of removing an obstreperous defendant whose behavior is

disruptive to the voir dire proceeding. See, Illinois v. Allen,

397 U.S. 337 (1970).

/

- S

A-45

Medina once said, “The more odious and despicable the case,

the more important it is that justice be done.”* In this case an

injustice has been done, and fundamental procedural rights

have been breached.

A True Copy:

Teste:

Clerk of the United States Court of Appeals for the Third Circuit

‘ XII, Lloyd Paul Stryker, The Art of Advocacy (1954).

A-46

United States Court of Appeals

For the Third ally

No. 79-2654 & 79-2699

UNITED STATES OF AMERICA

v.

GAETANO ALESSANDRELLO and

SALVATORE LACOGNATA,

Appellants

SUR PETITION FOR REHEARING

Present: Serrz, Chief Judge, VAN Dusen, ALDIsertT, ADAMS,

Gispsons, Ros—eNN, Hunter, Weis, GartH, HIGGINBOTHAM,

and S.ovirer, Circuit Judges.

The petition for rehearing filed by appellants in the above

entitled case having been submitted to the judges who par-

ticipated in the decision of this court and to all the other

available circuit judges of the circuit in regular active service,

and no judge who concurred in the decision having asked for

rehearing, and a majority of the circuit judges of the circuit in

regular active service not having voted for rehearing by the

court in banc, the petition for rehearing is denied.

Judge Higginbotham believes that a rehearing in banc

should be granted for the reasons noted in his dissent.

Chief Judge Seitz and Judges Aldisert, Gibbons, and Rosenn

would also grant rehearing.

By the Court,

Weis

Judge

Dated: December 19, 1980

B-1

APPENDIX B

Constitutional Provisions

AMENDMENT V

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in the time of War or

public danger; nor shall any person be subject for the same of-

fense to be twice put in jeopardy of life or limb, nor shall be

compelled in any criminal case to be a witness against hims:if,

nor be deprived of life, liberty or property, without due pro-

cess of law; nor shall private property be taken for public use

without just compensation.

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been commit-

ted; which district shall have been previously ascertained by

law, and to be informed of the nature and cause of the accusa-

tion; to be confronted with witnesses against him; to have

compulsory process for obtaining Witnesses in his favor, and to

have the Assistance of Counsel for his defense.

Statutes

18 U.S.C. §2113(a) Whoever, by force and violence, or by

intimidation, takes or attempts to take, from the person or

presence of another any property or money or any other thing

of value belong to, or in the care, custody, control manage-

ment, or possession of, any bank, credit union, or any savings

and loan association, . .

Shall be fined not more than $5,000, or imprisoned not

more than twenty years or both.

B-2

RULES

Rule 43. Presence of the Defendant

(a) Presence Required. The defendant shall be present at

the arraignment, at the time of the plea, at every stage of the

trial including the impaneling of the jury and the return of the

verdict, and at the imposition of sentence, except as otherwise

provided by this rule.

(b) Continued Presence Not Required. The further pro-

gress of the trial to and including the return of the verdict shall

not be prevented and the defendant shall be considered to

have waived his right to be present whenever a defendant, in-

itially present,

(1) voluntarily absents himself after the trial has com-

menced (whether or not he has been informed by the

court of his obligation to reniain during the trial), or

(2) after being warned by the court that disruptive con-

duct will cause him to be removed from the courtroom,

persists in conduct which is such as to justify his being ex-

cluded from the courtroom.

(c) Presence Not Required. A defendant need not be pre-

sent in the following situations:

(1) A corporation may appear by counsel for all pur-

poses.

(2) In prosecutions for offenses punishable by fine or by

imprisonment for not more than one year or both, the

court, with the written consent of the defendant, may

permit arraignment, plea, trial, and imposition of

sentence in the defendant's absence.

(3) At a conference or argument upon a question of

law.

(4) At a reduction of sentence under Rule 35.