Haith v. United States
Decision Date | 01 March 1965 |
Docket Number | No. 15091.,15091. |
Citation | 342 F.2d 158 |
Parties | Leroy HAITH, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.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.
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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