Hamer v. United States
| Decision Date | 06 October 1958 |
| Docket Number | No. 15688.,15688. |
| Citation | 259 F.2d 274 |
| Parties | Eddie Rena HAMER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
COPYRIGHT MATERIAL OMITTED
Harry E. Weiss, Los Angeles, Cal., Ernest L. Graves, Wilmington, Cal., for appellant.
Laughlin E. Waters, U. S. Atty., Eugene N. Sherman, Lloyd F. Dunn, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before BARNES and HAMLEY, Circuit Judges, and CLARK, District Judge.
Appellant was convicted on two counts of a five count indictment. On one count she was acquitted by the jury — two counts were dismissed by the judge.
The two counts which resulted in convictions related to the alleged sale of 283 grains of heroin on September 11, 1956, and of 223 grains of heroin on September 24, 1956; the sale in each instance having been made to one William Farrington. These offenses were charged in violation of 21 U.S.C. § 174.1 A timely appeal is taken here. 28 U.S.C. §§ 1291 and 1294.
Appellant raises five points on appeal, which we separately consider in turn.
A glance at the record quickly indicates that defendant's convictions were the result of a jury trial. How then, can appellant claim a deprivation of the right to trial by jury? Because, says appellant, the right to a jury trial necessarily implies and includes the right to exclude jurors that are unfavorable, or that defendant may feel are unfavorable. In order to exercise this "right of exclusion," a defendant must have the right to challenge a juror. And further, argues appellant, this presupposes (a) a fair knowledge (i. e., knowledge before trial) of the jurors' identity, and (b) "an opportunity for investigation, examination and inspection of the proposed jurors, before challenge."
In appellant's words:
2
Having in mind appellant's position on her first point, let us go to the factual situation in the instant case. We first turn to a bit of court history.
On February 28, 1951, there was filed in the United States District Court, Southern District of California, an order of court, reading as follows:
"It Is Hereby Ordered by the Court that neither the Clerk nor the Marshal shall reveal to anyone the names or addresses of persons called for juror duty, or jurors, except (1) Upon prior order of Court, or (2) Where required to do so by any applicable law, or (3) When done in connection with the summoning of or notification to jurors, or as certified in vouchers for payment of jury fees."
Upon the trial of this case, the trial judge, as was the practice in this district under the above rule, undertook to conduct the voir dire examination of the jurors. After explaining that the co-defendant was not being tried; that counts one and two had been dismissed as to defendant Hamer, and having read the indictments, the court advised the jury with respect to the presumption of innocence and the burden of proof on the government. Each prospective juror was then asked his business, and how long he had lived in Los Angeles County.
Counsel for Mrs. Hamer then disclosed his wish "to examine each person on voir dire extensively," and requested that right. The court denied the motion, but added: "If you have any questions you wish put to them, you may ask me." Counsel for appellant then asked that the jury for the second time be instructed that the mere fact of indictment is no indication of guilt. This the court did, twice more. The question of weight to be attached to the testimony of an accomplice was then raised by appellant's counsel. The court asked the prospective jury:
After the exercise of three peremptory challenges by each party, counsel for appellant advised the court, out of the prospective jury's presence, that counsel for the government was using a green loose-leaf folder which apparently contained information as to how the jurors had previously voted. The court required government counsel to cease its use of such book and ordered that whoever compiled it be brought to court during the trial so that he might determine whether it purported to indicate how individual jurors had voted in previous trials, or merely how the jury as a whole had voted in previous trials. The defendant then exercised two more peremptories, and again had no more questions to suggest that the court should ask on voir dire. The jury was then accepted by both sides and sworn. An alternate was then questioned by the court, no further questions were requested by either side, no further challenges were exercised, and the alternate juror was sworn. Counsel for appellant did not exercise all the peremptory challenges available to him.
At a later time in the proceedings, out of the presence of the jury, a Mr. Louis Lee Abbott, then an assistant United States attorney, appeared before the court and made a statement to the court. Discussion in reference to the book continued. In this discussion the judge observed that it was highly unethical for any lawyer to interview members of a jury as to how their vote went or what took place in the jury room. To this Mr. Abbott replied that the book was not made up from information obtained in such a manner, that he believed it would come to his attention if any such interviews has occurred, and he knew of none. He stated that the book reflected things which occurred in open court; that nothing in the book had been secured improperly; that it was based upon observation of jurors in open court. The court stated that the book had the appearance of impropriety. The court further observed that he was loathe to believe that any jurors had been interviewed, "in view of the Court of Appeals' flat declaration on the subject."3 To this Mr. Abbott replied that he would be very much surprised if it had. The court observed that counsel for appellant had challenged the rule of the court that the clerk is not permitted to give out the list of jurors who are to be chosen.
Counsel for appellant made a statement to the court reviewing the position of counsel for appellant. That is, that he had asked to have the names and addresses of the jurors, and then had requested the right to personally examine the jury on voir dire, on the ground that it was a right constitutionally guaranteed, and necessary in view of the deprivation of the right to obtain the names of the people summoned for jury duty. Counsel additionally stated that the reason the book was brought to the court's attention was that it created an unequal situation in the selection of the jury. Counsel for appellant thereupon asked the court to examine the book in camera. This the court did.
At a later time in the proceedings, outside the presence of the jury, further discussion was had concerning the book turned over to the court. First the court reviewed the contents of the book indicating that it was a book compiled of various names of jurors who had served on cases in which deputy United States attorneys had appeared; that it contained comments in reference to the convictions or acquittals; that in one instance it contained information recurring twelve times throughout the book as to what an individual juror had done within the jury room.
Counsel for appellant requested that the book be kept sealed as an exhibit and made part of the record as evidence in support of his position that the book showed private communication with the jurors by the government. Counsel for appellant again referred to the fact that the rule which had theretofore been challenged was itself unconstitutional unless counsel had the right of personal voir dire. Counsel stated that the whole matter, including the book, should be put before an appellate court for determination of the rule involved. The court thereupon ordered that the United States attorney keep the book and make it available for the Court of Appeals. A motion for judgment of acquittal was made at the close of the government's case on the ground that the book had been used in the selection of the jury. This was denied.
Congress, in its wisdom, has seen fit to require that there be given advance notice, by service of jury lists, to defense counsel in certain classes of cases — primarily, treason and capital offenses. 18 U.S.C. § 3432. This statute has never been held applicable to non-capital offenses.4 United States v. Van Duzee, 1890, 140 U.S. 169, 11 S.Ct. 758, 35 L.Ed. 399; Scales v. United States, 4 Cir., 1955, 227 F.2d 581; Brown v. Johnson, 9 Cir., 1942, 126 F.2d 727; ...
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