Opposition Brief — Sorrentino v. United States

CITATIONS

Cases:

Adams v. United States ex rel. McCann, 317 U.S. 269.... 8,9

Callahan v. United States, 240 Fed. 683................ 8

Crites v. Radtke, 29 F. Supp. 970..................... 10

Dutton v. State, 123 Md. 373...

Eury v. Huff, 141 F. 2d 554.............

Grove v. United States, 3 F. 2d 965, certiorari denied, 268

Ed Sadie GN k Ak ok kA BRE RSNKA du ceAN oH Gd 8

PER e Da AE oe een oe’ 8

Keddington v. State, 19 Ariz. 457..................... 9,11

Levin v. United States, 5 F. 2d 598, certiorari denied,

269 U. S. 562

QP

People v. Stanley, 33 Cal. App. 624

pueeeme ©. Dap, We Wee. @.......................

Reagan v. United States, 202 Fed. 488. .

Robertson v. United States, 64 Fla. 437

Sawyer v. Duffy, 60 F. Supp. 852.....................

Smith v. United States, 337 U. S. 137

State v. Croak, 167 La. 92

_

State v. Keeler, 52 Mont. 205

State v. Nyhus, 19 N. D. 326

State v. Smith, 90 Utah 482..........................

Steiner v. United States, 134 F. 2d 931

Tanksley v. United States, 145 F. 2d 58

United States v. Jones, 162 F.2d 72...................

United States v. Kobli, 172 F. 24919. _..

United States v. Moe Liss, 105 F.2d 144.............

Worthington v. United States, 1 F. 2d 154, certiorari de-

nied, 266 U. S. 626.......

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Constitution :

Sixth Amendment

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Yuthe Supreme Court of the Waited States

OcToBER TERM, 1949

No. 311

VINCENT ANTHONY SORRENTINO, PETITIONER

v.

UnItTep StaTEs OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals (R. 77-80)

is reported at 175 F’. 2d 721.

JURISDICTION

The judgment of the Court of Appeals was

entered July 6, 1949 (R. 81). On July 20, 1949,

by order of Mr. Justice Burton, petitioner’s time

for filing a petition for a writ of certiorari was

extended to and including September 3, 1949

(R. 82), and the petition was filed on that date.

(1)

2

The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1). See also Rules 37(b) (2) and

45 (a), F.R. Crim. P.

QUESTIONS PRESENTED

At the opening of the trial of petitioner and a

co-defendant for conspiracy and substantive viola-

tions of the Mann Act, the court noted that the

crowded condition of the court room left no room

for the panel of prospective jurors, who were

waiting in another room, and that many young

girls of tender years were among the spectators.

Because of these conditions and the nature of the

case, and with the agreement of all three of peti-

tioner’s trial counsel, the court cleared the court

room of all persons except the defendants, counsel,

witnesses, representatives of the press, and such

persons as defense counsel desired to have remain.

This order was not enforced, however, after the

selection of the jury had been completed. The

questions are whether, in respect of these proceed-

ings on the first day of the trial, petitioner’s right

to a public trial could be waived and whether it

was waived.

STATEMENT

Petitioner and three co-defendants were indicted

for conspiracy and substantive violations of the

Mann Act (see R. 1). The defendants Riviello

and Schiavo changed their pleas to guilty at the

opening of the trial and petitioner and the de-

fendant Kobli stood trial together and were con-

victed (see R. 1-3). The questions here concern

es

only the action of the trial court in clearing the

court room of spectators on the first day of the

trial. The facts as to this phase of the trial pro-

ceedings were developed after the Court of Ap-

peals had, upon the basis only of the District

Court’s order at the opening of the trial clearing

the court room (infra, p. 5), to which only

Kobli’s counsel objected (R. 2), and without

knowledge as to what had transpired in this regard

at the later stages of the trial, reversed Kobli’s

conviction on her separate appeal and remanded

her case for a new trial on the ground that she

had not been accorded a public trial as guaranteed

by the Sixth Amendment. United States v. Kobli,

172 F. 2d 919." Thereafter, the Court of Appeals

allowed petitioner to enlarge the scope of his

appeal to include the question whether he had

also been ‘‘denied a public trial’? (R. 4). The

Government thereupon asked leave to supplement

the record to show that in fact the trial court’s

order of exclusion was not enforced after the jury

was selected (R. 5-7). This motion was granted

and the trial judge was directed to file a certificate

in the Court of Appeals ‘‘disclosing the physical

state of the Courtroom during the trial and the

actual happenings therein, so far as such physical

3

* After summarizing in its opinion the proceedings leading

to the trial court’s order of exclusion, the Court of Appeals

said (172 F. 2d at 921): “While counsel at our bar were not

in agreement with respect to what later transpired the record

reveals nothing from which it might fairly be inferred that

the order to clear the courtroom of the general public was later

modified or rescinded.”

—_—n

a

4

state and happenings may bear upon the fact of

whether or not the trial of this Appellant in the

District Court was open to the public; and was

attended by the public’ (R. 8). Pursuant to this

direction, the trial judge held a hearing at which

persons who were present at the trial testified. A

transcript of these proceedings (R. 13-76) and a

certificate of the trial judge (R. 9-10) were filed

as part of the record in the Court of Appeals. The

facts thus developed may be summarized as fol-

lows:

When the case was called on November 5, 1947,

the court room was “‘packed’’ with between 150

and 175 people (R. 16),? about one-half of whom

were young boys and girls 14 to 18 years old (R.

17), so that there was no room for the panel of

54 jurors, who were waiting in another room

(R. 18), since the court room had seating ac-

commodations for only 96 spectators and standing

room for approximately 50 more (R. 16, 25). The

trial judge, noting that there was no more stand-

ing room and ‘‘no room at all for the jury,” asked

counsel for the four defendants if they had any

objection to ‘‘clearing the Courtroom of all people

except jurors, witnesses, lawyers and members of

the press.’’ Although two of Kobli’s attorneys

objected to this, each of petitioner’s three attor-

neys, as well as the attorneys for Riviello and

Schiavo, expressly stated that he had no objection

? Over 400 more people crowded the corridors seeking ad-

mission (R. 16).

5

(R. 2). The judge then ordered that the court

room be partially cleared, as follows (R. 3):

To the ladies and gentlemen who are in the

Courtroom I might say to you there isn’t

even standing room in the Courtroom at the

present time. The jurors are in the other

Courtroom. They have taken a recess there

and there must be room for the jury. Court

notices a great many young girls of tender

years in this room. One counsel has objected

to the Courtroom being cleared and insists

upon a public trial. This Court, in the

absence of the jury, feels the nature of this

case is such that the Courtroom should be

cleared and directs that the Courtroom be

cleared of all people except the defendants,

their counsel, witnesses and members of the

press. The Court officer is directed to clear

the Courtroom of all persons notwithstanding

one of counsel objects.

The court room was cleared in accordance with

this direction (R. 41, 42) and the veniremen were

brought in (R. 18). At the same time, four or

five law students were admitted (R. 19,25). About

16 witnesses remained in the court room (R. 31,

52,70). Neither of petitioner’s counsel asked that

any other persons be admitted (R. 33). The

remainder of the session on November 5 was

devoted to pre-trial motions and the selection of

a jury; no testimony was taken (R. 33).°

3It appears that this session did not begin until the after-

noon of November 5 (see Pet. 13).

6

At the ensuing sessions of the trial, on Novem-

ber 6, 7 and 8, 1947, the public was admitted. In

his certificate, the trial judge described the situa-

tion on those days as follows (R. 9-10; see also

R. 28, 35-36) :

From the time the taking of testimony

commenced, while children of tender years

were excluded, all adults who desired to at-

tend the trial were permitted to do so subject

to the limitations of the seating space avail-

able.

The number of spectators present increased

as the trial progressed, so much so that at

the evening session of the first day of taking

testimony, and thereafter to the end of the

trial, not only all available seating space but,

in addition, standing room was occupied by

members of the body politic having no con-

nection with the trial other than as spectators.

From the time of the commencement of

taking testimony until the end of the trial no

adult who desired admission to the trial was

excluded while seating space in the court-

room was available.

On this record, the Court of Appeals held that

the constitutional guarantee of a public trial

applies to the process of selecting a jury as part

of a criminal trial, but that petitioner’s right in

respect of the first day’s proceedings was validly

waived (R. 78-80).

ARGUMENT

Much of petitioner’s argument is devoted to

generalities and is pitched upon the hypothesis

7

that the general public was excluded throughout

the trial. But the record shows that the trial was

opened to the public after the first day’s session,

when the jury was selected, and the Court of Ap-

peals agreed, implicitly at least, that there was

no infringement of the right to a public trial at

the ensuing sessions (see R. 78).*

We agree with the Court of Appeals and peti-

tioner (Pet. 11-13) that a trial, within the mean-

ing of the guarantee of a ‘‘public trial,’’ includes

the selection of a jury.” And it may be assumed,

arguendo, although we do not concede, that the

Court of Appeals was right in holding that the

enforcement of the trial judge’s exclusionary

order on the first day was improper if there was

no valid waiver of the right to have the public

admitted.° The questions, then, are whether that

*On Kobli’s appeal, the Court of Appeals held, and rightly

so, that the trial judge’s action in excluding youngsters was

“laudable” (172 F. 2d at 924), and petitioner apparently

makes no complaint on this score.

>It would seem, however, that it does not embrace argu-

ment of pre-trial motions. See Steiner v. United States, 134

F. 2d 931, 935 (C.A. 5).

® The Court of Appeals did not mention the fact that some

law students were admitted before the jury was selected.

In addition to counsel, there were present, at least (see R. 19-

20), petitioner’s wife (R. 56), representatives of the press,

witnesses, and 54 veniremen drawn from those among the

general public who were subject to jury duty. There is no

claim that any person was excluded who might have con-

tributed to the purpose of the trial to elicit the truth. Indeed,

although the opportunity was afforded them, petitioner’s

counsel made no request that anybody not present be admitted.

In these circumstances, we believe we may rightly ask how

many of the public must be admitted and present to constitute

a “public trial”. See In re Oliver, 333 US. 257, 271-272:

“And without exception all courts have held that an accused

8

right can be waived and, if so, whether it was

waived. We think the Court of Appeals correctly

answered both questions in the affirmative.

1, The right to a public trial is guaranteed by the

Sixth Amendment, which provides that ‘In all

criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial

jury * * *.") Among the other rights protected

by that Amendment, it has been held that the

right to a jury trial,’ the right to have the

assistance of counsel,* the right to a speedy trial,"

the right to be confronted with the witnesses

against him,"° and the right to trial in the state

and district of the crime," all may be waived by

the defendant.” In Patton v. United States, 281

is at the very least entitled to have his friends, relatives and

counsel present, no matter with what offense he may be

charged.” See also the following cases sustaining exclusions

throughout the trials of all but counsel, friends and relatives,

and representatives of the press: Callahan v. United States,

240 Fed. 683 (C.A. 9); Reagan v. United States, 202 Fed. 488,

490 (C.A. 9) (compare Tanksley v. United States, 145 F. 2d 58

(C.A. 9)); Sawyer v. Duffy, 60 F. Supp. 852, 853 (N. D. Cal.);

State v. Nyhus, 19 N.D. 326, 330; Moore v. State, 151 Ga. 648,

653; Robertson v. United States, 64 Fla. 437, 440; State v.

Croak, 167 La. 92, 96-97; State v. Johnson, 26 Idaho 609, 612.

* Patton v. United States, 281 U.S. 276, 308; Adams v.

United States ex rel. McCann, 317 U.S. 269, 275.

8 Johnson v. Zerbst, 304 U.S. 458; Adams v. United States

ex rel. cCann, 317 U.S. 269, 275.

® Worthington v. United States, 1 F. 2d 154 (C.A. 7), cer-

tiorari denied, 266 U.S. 626.

© Grove v. United States, 3 F. 2d 965, 966 (C.A. 4), cer-

tiorari denied, 268 U.S. 691.

"United States v. Jones, 162 F. 2d 72, 73 (C.A. 2).

The rights under the Fifth Amendment against double

jeopardy, Levin v. United States, 5 F. 2d 598, 600 (C.A. 9),

9

U. S. 276, 297-8, in holding that the right to trial

by a jury was not a part of the structure of

government, )vt a right or privilege of the ac-

cused which could be waived by him, this Court

found support for its conclusion in the introdue-

tory words of the Sixth Amendment, ‘‘the accused

shall enjoy.”’ In view of this structure of the

Amendment, it is difficult to see how some of the

rights which it confers may not be waived while

others may be waived. It is true, of course, as

some of the cases cited by petitioner point out

(Pet. 16-17), that the people have an interest in

knowing what is being done in their courts.

Nevertheless, it seems clear that the right to a

pubiic trial, like other equally important procedural

safeguards of the Bill of Rights, is primarily for

the benefit of the accused,” and it has often been

held that this right may be waived. Petitioner

cites no decision to the contrary.

2. Petitioner asserts, however, that the action

of his trial counsel in expressly waiving objection

to the court’s order of exclusion was ineffective

because he did not himself consent to it (Pet.

certiorari denied, 269 U.S. 562, and self-incrimination, Smith

v. United States, 337 U.S. 137, 150, and cases cited, may also

be waived.

8 State v. Nyhus, 19 N.D. 326, 330; State v. Smith, 90 Utah

482, 491; Moore v. State, 151 Ga. 648, 654; State v. Keeler,

52 Mont. 205, 218. Cf. Adams v. U. S. ex rel. McCann, 317

US. at 279-280; Patton v. United States, 281 U.S. at 302-308.

Keddington v. State, 19 Ariz. 457, 462; People v. Stanley,

33 Cal. App. 624, 628; State v. Smith, 90 Utah 482, 491-492;

Dutton v. State, 123 Md. 373, 388.

10

22-29). This argument is afterthought. As the

Court of Appeals pointed out (R. 80), petitioner

was represented by three experienced attorneys

of his own choice, and it would seem that their

decision on the question of procedure raised by

the trial judge’s proposal to clear the court room

in order to make room for the panel of jurors

(R. 2) was binding upon him." See Putnam vy.

Day, 22 Wall. 60, 64; Eury v. H uff, 141 F. 2d 554,

599 (C.A. 4)."° Moreover, petitioner must have

been aware of what was taking place, yet he made

no objection. In these circumstances, and in view

of the nature of the charges against him and iis

co-defendants, we think the court below was right

in holding that it must be concluded that he

acquiesced in his attorneys’ judgment and that

he is therefore in no position to complain now

that they had no authority to speak for him. See

United States v. Moe Liss, 105 F. 2a 144, 145

(C.A. 2); Crites v. Radtke, 29 F. Supp. 970, 971-

* There is no justification for petitioner's implication (Pet.

28, 30) that his trial attorneys consented to the court's proposal

because they felt it would have been “vain” to object. The

question of clearing the court room was put to all counsel at

a conference at the bench and each of them was given an

opportunity to object before the order was made. Counsel

for Kobli noted an objection before the question was put to

petitioner's counsel. (R. 2-3.)

'® Petitioner's attempt to distinguish the Eury case on the

ground that the defendant there himself agreed to proceed

with a jury of ten misses the point. The very basis of the

defendant's later attack by habeas corpus upon the validity

of his conviction was that he was not aware at the time of

his trial of his right to a jury of twelve.

——

il :

972 (S.D.N.Y.) ; Keddington v. State, 19 Ariz. 457,

462; State v. Smith, 90 Utah 482, 491-492."

CONCLUSION

The judgment below is correct, there is no con-

flict, and the arguments advanced by petitioner

present nothing meriting further review by this

Court. We therefore respectfully submit that the

petition for a writ of certiorari should be denied.

Pup B. Per~Man,

| Solicitor General.

~ ALEXANDER M. CAMPBELL,

| Assistant Attorney General.

[ Rosert 8. ERDABL,

Rosert G. Maysack,

Attorneys.

OcToBER 1949.

In answer to petitioner's plea that it is unfair to allow his

conviction to stand after Kobli was awarded a new trial

(Pet. 29-30), we think it is proper to point out, dehors the

record, that following the reversal of Kobli’s conviction the

Government was prepared to file a petition for rehearing and

a motion to supplement the record similar to the motion later

filed and allowed in petitioner’s case (see p. 3, supra)

when Kobli appeared before the District Court with her

counsel and, with leave of court, changed her plea to guilty

and was sentenced. In view of this development, it is idle to

speculate whether, upon the record as so supplemented, Kobli’s

conviction would have been reversed or whether she and

petitioner received equal justice in the Court of Appeals.

Wu. s. GOVERNMENT PRINTING OFFICE: 1949 eseize au