# Petition — Alessandrello v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1342%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 949 ## Text 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1342%3A1. Public record. Not legal advice.