Ippolito v. United States, 8170

• Decision Date: 15 January 1940
• Docket Number: No. 8170,8171.,8170
• Citation: 108 F.2d 668
• Parties: IPPOLITO et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

108 F.2d 668 (1940)

IPPOLITO et al. v. UNITED STATES.

Nos. 8170, 8171.

Circuit Court of Appeals, Sixth Circuit.

January 15, 1940.

Marc J. Wolpaw, of Cleveland, Ohio, for appellant Sam Ippolito.

Howell Leuck, of Cleveland, Ohio, for appellant Tony Panzarella.

Frank Wiedemann, of Cleveland, Ohio (E. B. Freed and Frank Wiedemann, both of Cleveland, Ohio, on the brief), for appellee.

Before HICKS, SIMONS, ALLEN, Circuit Judges.

SIMONS, Circuit Judge.

The appellants were indicted and convicted of the violation of Section 197 of the Criminal Code, § 320, Title 18 U.S.C. A., and were given the mandatory sentence to imprisonment for twenty-five years therein provided. Their appeal challenges the manner of impaneling the jury, the sufficiency of the evidence to support the verdict of the jury, and the fairness of the trial.

Section 197 as incorporated in the Act of March 4, 1909, provided for the punishment of anyone assaulting with intent to rob or robbing a person having lawful charge, control or custody of mail matter, and provided that if in attempting or effecting such robbery the life of the custodian is put in jeopardy by the use of a dangerous weapon, the offender should be imprisoned for twenty-five years. By the Act of August 26, 1935, the scope of the Section was enlarged to include assaults upon and robbery of persons having lawful charge or custody not only of mail matter but of money or other property of the United States.

On April 1, 1938, one Hildebrandt, an accountant, and Louise McIlbaine, a cashier, for the Cedar-Central Apartment project of the Housing Authority of the Department of the Interior of the United States under construction in Cleveland, Ohio, and having charge of money of the United States being used in connection with the project, were robbed of such money by three masked men carrying guns. Five months later in a police show-up at the Cleveland Police Department, a witness, Mary Fajfar, who lived in an apartment near the Cedar-Central project, undertook to identify the appellants as two of the men who had committed the robbery. The appellants were thereupon remanded to the United States authorities, indicted and brought to trial.

Upon the impaneling of the jury, the list of available jurors in attendance having been exhausted, the court directed the Deputy Marshal to return sufficient jurymen from the bystanders to complete the panel. In the examination of all jurors by the court, each was, at the request of counsel for the appellants, asked whether any member of his or her immediate family was or had been in the employ of the United States. No response being received, the jury was sworn. The defendants had not exhausted their peremptory challenges. Following the conviction their counsel ascertained that one of the original talesmen sworn was a brother-in-law of the Deputy Marshal, and one of the additional jurors sworn was his nephew, and that the nephew was not drawn from the bystanders but was called upon the telephone by the deputy to come to the courtroom to act as a juror in the case.

The appellants complain that they were not tried by a proper jury; that they were entitled to know the relationship of the jurors to government officers so as intelligently to exercise their right to peremptory challenge, and that the return of additional jurors was not in compliance with the Statute, § 280 of the Judicial Code, Title 28 U.S.C.A. § 417, which requires that jurors sufficient to complete an inadequate panel be returned from the by-standers.

Relationship of a juror to a government officer is not of itself a disqualification. United States v. Wood, 299 U.S. 123, 149, 57 S.Ct. 177, 81 L.Ed. 78. Granting that the defendants were entitled upon request to know of the relationship in order intelligently to exercise peremptory challenge, the query suggested to the court was not such as necessarily to require affirmative response from the jurors whose qualifications are now assailed. It may well have been thought by a brother-in-law or nephew of the Deputy Marshal, that he was not in the official's immediate family. As to the failure of the Deputy Marshal to draw additional jurors from the bystanders, there is doubt that the question was properly raised by the motion for new trial, and in the absence of evidence that the questioned juror was in any wise biased or prejudiced, we should hesitate to reverse on that ground, since the qualification of jurors rests largely within the discretion of the District Judge and its exercise should not be disturbed except for clear abuse, of which we find none. It is appropriate, however, to say in passing that the practice of a Deputy Marshal in packing the jury with relatives notified by telephone or otherwise, instead of selecting them from the bystanders within the letter and spirit of the statute, is strongly condemned.

The challenge to the evidence as not supporting the verdict, is based principally upon a contention that the identification of the appellants as the persons who committed the crime, by the witness Mary Fajfar, is so incredible as not to constitute substantial evidence, even though her identification in respect to costume and build is partially supported by a witness who saw their backs while sitting in an automobile behind them, and notwithstanding substantial destruction of an alibi sought to be created for them. Mrs. Fajfar, upon the day of the crime, was looking from her bedroom window, a...