Haith v. United States

Decision Date01 March 1965
Docket NumberNo. 15091.,15091.
Citation342 F.2d 158
PartiesLeroy HAITH, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Third Circuit

Leroy Haith, pro se.

Francis R. Crumlish, Asst. U. S. Atty., Drew J. T. O'Keefe, U. S. Atty., Philadelphia, Pa., for appellee.

Before McLAUGHLIN, FORMAN and GANEY, Circuit Judges.

PER CURIAM.

On June 26, 1961 appellant was convicted of conspiracy to violate Internal Revenue laws relating to the manufacture of distilled spirits. United States v. Kensil, 195 F.Supp. 115 (E.D.Pa.1961). The conviction was affirmed 295 F.2d 489 (3 Cir. 1961) with cert. den. Haith v. United States, 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed.2d 396 (1962). Appellant brought this, his second 2255 proceeding in the district court, decided adversely to him September 18, 1963. 221 F.Supp. 379 (E.D.Pa.1963). On appeal the matter was remanded to the district court for the latter to inquire into the merits of the allegation that the judge was not present during the selection of the jury which had tried appellant. 330 F.2d 198 (3 Cir. 1964).

The district court held a full hearing on the question. It found that the presence of the judge during the selection of the jury had been impliedly waived by appellant's attorney and all of the other ten defense attorneys in the case. It further found that "Such acquiescence continued after the parties returned to the courtroom, throughout the trial, appeal, and first motion to vacate the sentence under § 2255 where no mention is made of this alleged error." It further found that "* * * no prejudice is alleged or shown to have resulted from the judge's absence, * * *." The court concluded that under the facts and law no reversible error had resulted from the absence of the judge during the voir dire and jury selection. 231 F.Supp. 495 (E.D.Pa.1964).

In addition to the specific question sent down from the circuit, the fact that no stenographic record was made of the voir dire and jury selection was explored by the district court. Though there is no formal finding on this, impliedly the court concluded that no specific prejudice had ever been alleged in this connection and certainly no reversible error found. The fact of the failure to record the voir dire and jury selection is included by appellant with his point on the absence of the judge.

We are entirely satisfied that under the facts there was no reversible error in the absence of the trial judge during the voir dire and selection of the jury and that there was no reversible error in the...

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26 cases
  • Edmonson v. Leesville Concrete Company, Inc
    • United States
    • U.S. Supreme Court
    • 3 d1 Junho d1 1991
    ...may take place in the absence of any court personnel. See Haith v. United States, 231 F.Supp. 495 (ED Pa.1964), aff'd, 342 F.2d 158 (CA3 1965) (per curiam ); State v. Eberhardt, 32 Ohio Misc. 39, 282 N.E.2d 62 The alleged state action here is a far cry from that the Court found, for example......
  • U.S. v. Martinez-Torres, MARTINEZ-TORRE
    • United States
    • U.S. Court of Appeals — First Circuit
    • 4 d3 Abril d3 1990
    ...(9th Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985). See, also, a case even prior thereto, Haith v. United States, 342 F.2d 158 (3d Cir.1965). In none did the defendant succeed. In some instances, the defendant failed outright; in others, on the ground that he had n......
  • U.S. v. Ford
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 11 d2 Agosto d2 1987
    ...an erroneous Witherspoon-Witt exclusion of a juror is harmless." Gray v. Mississippi, --- U.S. at ----, 107 S.Ct. at 2055.49 342 F.2d 158 (3d Cir.1965) (per curiam).50 Id. at 159.51 713 F.2d 866 (1st Cir.1983).52 Id. at 874.53 Id.54 720 F.2d 757, 765 (2d Cir.1983), cert. denied, 466 U.S. 90......
  • State v. Patterson
    • United States
    • Connecticut Court of Appeals
    • 22 d4 Abril d4 1993
    ...any part of the voir dire or other jury selection process without recessing the court." Id., at 256 n. 3; see also Haith v. United States, 342 F.2d 158, 159 (3d Cir.1965) (absence of the trial judge not reversible without showing of prejudice). In Taylor v. United States, 386 F.Supp. 132, 1......
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