Echert v. United States

• Decision Date: 19 April 1951
• Docket Number: No. 14155.,14155.
• Citation: 188 F.2d 336
• Parties: ECHERT et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

188 F.2d 336 (1951)

ECHERT et al. v. UNITED STATES.

No. 14155.

United States Court of Appeals Eighth Circuit.

April 19, 1951.

Eugene D. O'Sullivan, Jr., and Philip Abboud, Omaha, Neb. (Warren C. Schrempp, Omaha, Neb., on the brief), for appellants.

Edward J. Tangney, Asst. U. S. Atty., Omaha, Neb. (Joseph T. Votava, U.S. Atty., Omaha, Neb., on the brief), for appellee.

Before GARDNER, Chief Judge, and THOMAS and RIDDICK, Circuit Judges.

THOMAS, Circuit Judge.

The appellants were jointly indicted, tried, convicted and sentenced for violation of the White Slave Traffic Act, 18 U.S.C.A. § 2421, and they appeal. Separate motions for new trials were filed by each appellant and denied by the court.

The appellants complain here that the court erred (1) in calling and impaneling a jury in their absence; (2) in the admission and rejection of evidence; and (3) in denying motions for judgments of acquittal of the Echerts made at the close of the Government's evidence.

The indictment charged, and the evidence tended to prove, that appellants feloniously transported in interstate commerce from Omaha, Nebraska, to Sioux City, Iowa, and, as a part of the same trip, from Sioux City by way of Sidney, Nebraska, to Omaha, Nebraska, a woman named Patricia Colleen Sledge for the purpose of debauchery and with the intent and purpose of inducing, enticing and compelling her to give herself up to debauchery and to engage in immoral practices.

On April 6, 1950, the appellants appeared in the district court at Omaha, were arraigned and pleaded not guilty. They were at liberty on bail pending trial. They were notified that their case was set for trial at Omaha on Monday, April 17, 1950. They came to Omaha at that time for trial. One of their attorneys then informed them that four cases were set for trial ahead of their case. Appellants then voluntarily left Omaha and went to Topeka, Kansas, having arranged with their attorney to notify them in time for them to return for the trial when their case was reached. The case was reached for trial on Friday, April 21st. Their attorney notified them on that day and they started to Omaha. They had not arrived when their attorney reported to the judge in chambers that he was ready to proceed to select a jury, and that he was expecting the appellants to arrive at any time. A jury was accordingly selected, but appellants did not arrive until after court adjourned. They were not present when the jury was selected.

On Monday, April 24, 1950, when court convened, at the direction of the court, the appellants, in the absence of the jury, but in the presence of counsel, were called separately to the witness stand to explain their absence on the preceding Friday. At the same time the court explained to them their rights and read to them Rule 43 of the Federal Rules of Criminal Procedure, 18 U.S. C.A. They then expressed satisfaction with the jury which had been selected and each one specifically waived any objection to the fact that the jury was impaneled and sworn in his absence.

The right of appellants to have been present at the impaneling of the jury before which they were tried is not questioned. Article III of the Constitution provides that "Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; * * *" and the Sixth Amendment provides:

"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 committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."

Rule 43 of the Federal Rules of Criminal Procedure is specific. It provides, so far as pertinent:

"Presence of the Defendant. The defendant shall be present at the arraignment, 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 these rules. In prosecutions for offenses not punishable by death, the defendant's voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict."

The question presented is not whether the appellants waived their right to complain because the jury was impaneled in their absence, but it is whether persons accused of a felony can waive such specific right or privilege. As said by the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, "A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Every element of such a waiver is present here. Appellants' counsel were present, examined the panel and exercised appellants' peremptory challenges. Before anything further was done at the trial the court explained to the appellants their rights in the presence of their attorneys, and they then expressly stated that the jury selected "is all right", and that they each desired to waive any defect in the way the jury was impaneled.

In the Notes to Rule 43 of the Federal Rules of Criminal Procedure the Advisory Committee say "The first sentence of the rule setting forth the necessity of the defendant's presence at arraignment and trial is a restatement of existing law", citing Lewis v. United States, 146 U.S. 370, 13 S. Ct. 136, 36 L.Ed. 1011; Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 56 L. Ed. 500.

In the case of Lewis v. United States, supra, 146 U.S. at page 372, 13 S.Ct. at page 137, 36 L.Ed. 1011, the Supreme Court said: "A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner. While this rule has at times, and in the cases of misdemeanors, been somewhat relaxed, yet in felonies it is not in the power of the prisoner, either by himself or his counsel, to waive the right to be personally present during the trial." The court held that the impaneling of the jury is a part of the trial. And it was pointed out that the defendant in that case took exceptions at the trial to the procedure.

In the case of Diaz v. United States, supra, the defendant was present at the impaneling of the jury but at liberty on bail. After the trial had begun he voluntarily absented himself, and the trial proceeded in his absence. The Supreme Court held on appeal, 223 U.S. at page 455, 32 S.Ct. at page 254, 56 L.Ed. 500, that "where the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present, and leaves the court free to proceed with the trial in like manner and with like effect as if he were present."

The question here presented has arisen usually under a right claimed under Article III of the Constitution and the Sixth Amendment, supra. In Schick v. United States, 195 U.S. 65, 72, 24 S.Ct. 826, 828, 49 L.Ed. 99, involving the alleged waiver of trial by jury, the Supreme Court said: "When there is no constitutional or statutory mandate, and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy." And the Court quoted with approval the statement of Chief Justice Shaw of the Supreme Court of Massachusetts in Commonwealth v. Dailey, 12 Cush. 80, 83, that "He the accused may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court." In Patton v. United States, 281 U.S. 276, 298, 50 S.Ct. 253, 258, 74 L.Ed. 854, the Court say: "* * * article 3, § 2 of the Constitution, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. To deny his power to do so is to convert a privilege into an imperative requirement." And the Court held, in answer to a question submitted by this court, that the trial court had jurisdiction to try a criminal case without a jury with the consent of the defendant. This rule, it was held, is applicable in misdemeanors, and felonies but not in capital offenses. See, also, Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 87 L.Ed. 268. Upon the effect of waiver by an accused the Supreme Court in Johnson v. United States, 318 U.S. 189, 201, 63 S.Ct. 549, 555, 87 L.Ed. 704 said: "We cannot permit an accused to elect to pursue one course at the trial and then, when that has proved to be unprofitable, to insist on appeal that the course which he rejected at the trial be reopened to him. However unwise the first choice may have been, the range of waiver is wide. Since the protection which could have been obtained was plainly waived, the accused cannot now be heard to charge the court with depriving him of a fair trial. The court only followed the course which he himself helped to chart and in which he acquiesced until the case was argued on appeal. The fact that the objection did not appear in the motion for new trial or in the assignments of error makes clear that the point now is a `mere after-thought.' United States v. Manton, 2 Cir., 107 F.2d 834 page 847."

Upon the question of the right and effect of waiver by an accused of his rights and privileges guaranteed by Article III of the Constitution and the Sixth Amendment, see, also, Levine v. United States, 8 Cir., 182 F. 2d 556, certiorari denied 340 U.S. 921, 71 S. Ct. 352; United States v. Sorrentino, 3 Cir., 175 F.2d 721, certiorari denied, 338 U.S. 868, 70 S.Ct. 143; and State ex rel. Shetsky v. Utecht, 228 Minn. 44, 36 N.W.2d 126, 6 A.L. R.2d 988.

On this point it remains for us to...