342 F.2d 667 (7th Cir. 1965), 14515, United States v. D'Antonio

Docket Nº:14515.
Citation:342 F.2d 667
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James J. D'ANTONIO, Defendant-Appellant.
Case Date:February 09, 1965
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 667

342 F.2d 667 (7th Cir. 1965)

UNITED STATES of America, Plaintiff-Appellee,

v.

James J. D'ANTONIO, Defendant-Appellant.

No. 14515.

United States Court of Appeals, Seventh Circuit.

February 9, 1965

Rehearing Denied April 9, 1965, en banc.

Richard E. Gorman, Chicago, Ill., for appellant.

Edward V. Hanrahan, U.S. Atty., Charles H. Turner, Asst. U.S. Atty., Chicago, Ill., John Peter Lulinski, John Powers Crowley, Asst. U.S. Attys., of counsel, for appellee.

Before DUFFY, SCHNACKENBERG and SWYGERT, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

James J. D'Antonio, defendant, appeals from a judgment of the district court, on a verdict of a jury, convicting him, upon his plea of not guilty, of theft from an interstate shipment of freight, in violation of 18 U.S.C.A. § 659, as charged in an indictment, under which defendant was sentenced to imprisonment for ten years, pursuant to 18 U.S.C.A. § 4208(a)(1), with no minimum service of sentence before parole.

1. In this court defendant contends that the district court erred in permitting the jury to separate after submission of the case to it and before the verdict and in permitting an improper communication with the jury without defendant or his counsel having an opportunity to be present or object.

The trial before the court and a jury started on November 12, 1963. On November 15, 1963 both sides rested and on November 18, 1963 closing arguments were heard, the court instructed the jury as to the law and the jury retired to consider its verdict.

Page 668

Then the following colloquy between court and defense counsel occurred.

'The Court: The procedure will now be that I will leave the jury to deliberate-- I will not tell them, but I will leave the jury to deliberate until 9:00 o'clock. If they have not reached a verdict at that time, they will return tomorrow morning.

'Mr. Gorman: Does your Honor indicate that they will return tomorrow morning to--

'The Court:-- to further deliberate.

'Mr. Gorman:-- to further deliberate. They will separate and return?

'The Court: Yes.

'Mr. Gorman: I know that that has been done here lately, Judge.

'The Court: You may make your objections to it, but that is the policy that I am following and I am going to follow it.

'Mr. Gorman: I am only asking for my own education. I know it has been done lately and it comes as something new to me.

'The Court: It is being done all over the United States, except that in the State of Illinois, we follow the Illinois procedure. We have now changed it. I am following it and I think--

'Mr. Gorman: For my own information again, Judge, has there been a rule, a court rule on it?

'The Court: No, no special, formal rule on it; 'most everybody makes an objection to it.

'Mr. Gorman: Well, we will make an objection to it, Judge.

'The Court: All right.

'We will advise the jury to return under all the circumstances tomorrow morning, so that you will have that right (of polling).'

On November 19, 1963, the jury arrived at a verdict, which was filed in open court and the jury was polled.

Thus the record before us shows that after the jury had been instructed as to the law and retired to consider its verdict, the court announced that, if it had not reached a verdict at 9 P.M., he would permit the jurors to separate and return the following morning to continue their deliberations. Over defendant's objections this course of events actually occurred. In addition, after the verdict was rendered, the court asserted that he had told the marshal to read to the jury, during its deliberations and out of the presence of the court, a statement dictated by the court, which the court stated informed the jury: 'You are instructed to discuss this case with no one, until you return to the jury room tomorrow at 9:30; and you are not to permit anyone to discuss it with you.' The record is otherwise silent as to whether the statement was actually read as dictated. It is also silent as to whether any colloquy occurred between the jurors and the marshal at the reading of the statement, or as to whether any other persons were present on that occasion or then said anything in the jury's presence.

It is basic in the philosophy of the jury system that its members, at all times when they are performing their duties as such, shall be free from contacts with any person save only the presiding judge and those court personnel whose official duties require them to make contact with the jury. The judge has control of the jury but his control cannot be delegated or exercised in...

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