United States v. Gregorio

• Decision Date: 31 May 1974
• Docket Number: No. 72-2429.,72-2429.
• Citation: 497 F.2d 1253
• Parties: UNITED STATES of America, Appellee, v. Paul F. GREGORIO, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

497 F.2d 1253 (1974)

UNITED STATES of America, Appellee, v. Paul F. GREGORIO, Appellant.

No. 72-2429.

United States Court of Appeals, Fourth Circuit.

Argued January 10, 1974.

Decided May 31, 1974.

COPYRIGHT MATERIAL OMITTED

Franklin P. Hall, Richmond, Va. Court appointed counsel (Hall, Hall & Warren, Richmond, Va., on brief), for appellant.

Michael E. Marr, Asst. U. S. Atty. (George Beall, U. S. Atty., on brief), for appellee.

Before WINTER, CRAVEN and WIDENER, Circuit Judges.

WINTER, Circuit Judge:

In a trial by jury, Paul F. Gregorio was found guilty of conspiracy to violate the federal narcotics laws and making, or aiding and abetting making, six sales of cocaine hydrochloride not in the original stamped package. From aggregate sentences of forty years, he appeals. He asserts six grounds for reversal, but we find none of them meritorious and so affirm the judgments. We will discuss the asserted errors seriatim, stating separately the facts which relate to each.

I.

A seven-count indictment (Criminal No. 71-0358-M) was returned against Gregorio on August 20, 1971, after the complaining witnesses had appeared before the grand jury and had testified in person. Gregorio was arraigned on this indictment and he pleaded not guilty to each and every count. He was not tried promptly, however, because successive postponements which he requested were granted.

The original indictment alleged certain acts which the government expected to prove by the testimony of Ralph Caputo. However, on the eve of trial, Caputo could not be located and it was feared that he would be unavailable for trial. Thereupon the government requested and was granted a continuance in order to seek a superseding indictment from the grand jury in which all references to acts which could be proved only by the testimony of Caputo were stricken. The district court directed that any superseding indictment be served on defendant by September 6, 1972, and fixed September 18 as the date for trial.

The superseding indictment (Criminal No. 72-0464-M) was returned on September 5, 1972, just before the term of the then existing grand jury was about to expire. It was obtained on the testimony of a special agent of the Treasury Department who had no firsthand knowledge of the matters on which the indictment was requested, and his testimony appears to have been a hearsay statement of the evidence which had been presented to the grand jury which had returned the original indictment.

Gregorio moved to dismiss the superseding indictment on the ground, inter alia, that it had been returned solely on the basis of hearsay evidence in violation of his fifth amendment right to indictment by grand jury. The motion was denied, and then the government, apparently having located Caputo, moved to abandon and dismiss the superseding indictment and to proceed to trial on the original indictment. The government's motion was made on the morning of trial. Defendant objected to proceeding to trial on the original indictment. The district court sustained the objection and required defendant to be tried on the superseding indictment.

Before us, defendant contends that the indictment on which he was tried and convicted was invalid because it was based solely on hearsay evidence. He cites United States v. Arcuri, 282 F. Supp. 347 (E.D.N.Y.1968), aff'd, 405 F. 2d 691 (2 Cir. 1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969), and United States v. Estepa, 471 F.2d 1132 (2 Cir. 1972), in support of his argument. We see no occasion, however, to decide defendant's contention on its merits. The fact is that the superseding indictment differed from the original indictment only in omission of the allegations which depended upon the testimony of Caputo. No claim could be made that the original indictment was returned solely on hearsay evidence. The allegations in the superseding indictment had initially been made on the basis of testimony which was admissible under strict rules of evidence by witnesses who appeared before the grand jury, who were subject to questioning, and whose demeanor and credibility could be judged. More importantly, defendant was given the option of proceeding to trial on the original indictment, the validity of which he could not and did not challenge. He declined to exercise this right. We hold, therefore, that on the special circumstances of this case defendant waived his right to complain about the hearsay basis of the superseding indictment on which he was tried, even if as an abstract proposition of law his contention might otherwise be meritorious.

II.

Before charging the jury, the trial judge held a conference in chambers with counsel for defendant and the government to hear argument on requested jury instructions and, in accordance with Rule 30, F.R.Cr.P., to make and advise counsel of his rulings thereon. Gregorio, then in custody, was not present at this conference. Although neither Gregorio nor his counsel objected to the defendant's absence from the conference on jury instructions, the failure to have the defendant present is claimed on this appeal to be reversible error.¹ Although not articulated as such, we consider the contention as one that defendant's absence constituted "plain error" which we should consider even in the absence of formal request or formal objection.

Defendant asserts two bases for his contention that he had a right to be present during the conference on jury instructions: the due process clause of the fifth amendment, and Rule 43, F.R. Cr.P. As we shall show, defendant's asserted right under Rule 43 is the more ancient one and decision of it also serves to decide defendant's asserted due process right. We begin therefore with consideration of Rule 43.

In pertinent part, Rule 43 provides that

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.

The advisory committee's note explained that this part of the rule was no more than a "restatement of existing law," citing Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), and Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500 (1912), two early Supreme Court cases applying the common law right of presence in federal criminal cases. In Lewis, the Court held that a federal defendant had a common law right "to be brought face to face with jurors at the time when the challenges were made," and in Diaz, a non-capital case,² the Court ruled that a defendant not in custody³ could waive his right to be present during trial, defining the right in broad, often quoted language.

In cases of felony our courts, with substantial accord, have regarded the defendant\'s right to be present as extending to every stage of the trial, inclusive of the impaneling of the jury and the reception of the verdict, and as being scarcely less important to the accused than the right of trial itself. 223 U.S. at 455.

Since the language in Rule 43 relied on by defendant is a crystallization of these statements of the common law, we believe that the rule should be interpreted in light of the evolving meanings and purposes of the common law.

The earliest and most forceful rationale for the common law privilege of presence undoubtedly derived from the English common law rule, finally abolished by Act of Parliament in 1836, which denied accused felons—though not misdemeanants—the assistance of counsel.⁴ If a defense was to be made, the accused felon had to be present to make it;⁵ and since the death penalty was then more often imposed in felony cases than now, the accused's presence occupied a position of even greater importance. However, the common law prohibition against assistance of counsel for felons was largely rejected by the constitutions and statutes of the American colonies, see Powell v. Alabama, 287 U.S. 45, 61-65, 53 S.Ct. 55, 77 L.Ed. 158 (1932), in part because of the "inherent irrationality of the English limitation." United States v. Ash, 413 U.S. 300, 306, 93 S.Ct. 2568, 2572, 37 L.Ed.2d 619, 625 (1973). As a result, in American opinions —and in 19th and 20th century English decisions—other reasons behind the common law right of presence have come into sharp relief, although the distinction between a misdemeanant's and felon's right of presence has persisted.⁶ Today—apart from the constitutionally based sixth amendment right of confrontation which is not implicated in this case— ⁷ there appear to be two reasons behind the right of presence: (1) assuring nondisruptive defendants⁸ the opportunity to observe—and, it is to be hoped, to understand—all stages of the trial not involving purely legal matters generally incomprehensible to the layman⁹ in order to prevent the loss of confidence in courts as instruments of justice which secret trials would engender;¹⁰ (2) protecting the integrity and reliability of the trial mechanism by guaranteeing the defendant the opportunity to aid in his defense.¹¹

We think neither rationale behind the right of presence is applicable to a purely legal conference on jury instructions. First, the defendant lacked the legal abilities necessary to make a contribution of significance to his defense. Second, had the defendant been present he probably would have been thoroughly confused by the legal argument on proposed jury instructions. An opportunity to observe the conference in chambers would not have improved any sense that justice was being done and possibly might have decreased it; Gregorio did, of course, observe and hear the end product of the conference—the actual giving of the instructions. Furthermore, if the court or counsel had attempted to explain the proceedings to the defendant, the conference would have been unavoidably disrupted and a not insubstantial amount of time might well have been consumed without any...