Wagner v. United States

• Citation: 264 F.2d 524
• Decision Date: 07 April 1959
• Docket Number: No. 16000.,16000.
• Parties: Raymond John WAGNER, Anthony Joseph Cambiano and Donald Vandergrift, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

264 F.2d 524 (1959)

Raymond John WAGNER, Anthony Joseph Cambiano and Donald Vandergrift, Appellants, v. UNITED STATES of America, Appellee.

No. 16000.

United States Court of Appeals Ninth Circuit.

March 2, 1959.

Rehearing Denied April 7, 1959.

COPYRIGHT MATERIAL OMITTED

Morris Lavine, Los Angeles, Cal., for appellants.

Laughlin E. Waters, U. S. Atty., Norman W. Neukom, Robert John Jensen, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge.

On December 19, 1955, the postmaster and assistant postmaster of Bellflower, California, were robbed of $19,342.87 in cash belonging to the United States. Raymond John Wagner, Anthony Joseph Cambiano, and Donald Vandergrift were jointly indicted for this offense. It was charged that in committing the crime they assaulted and put in jeopardy the lives of the two postal officials.¹

The three defendants were tried together, but the jury was unable to reach a verdict. A second jury trial was had, resulting in verdicts of guilty against all three. Judgments of conviction were then entered, each defendant being sentenced to imprisonment for twenty-five years. They join in this appeal, raising several questions for our consideration.

Three of the specifications of error relate to appellants' unsuccessful efforts before and during the trial to obtain the residence address of persons called for jury service.

Prior to the trial appellants' counsel requested permission from the clerk of the district court to see the clerk's card list of persons called for jury service. This list contained the names and addresses of persons then under call for jury service. According to appellants, it also contained information concerning the citizenship, length of jury service, and occupation of each such person. The clerk refused this request, as he was required to do by reason of a general order of the United States District Court, Southern District of California, issued on February 28, 1951.²

At the outset of the trial counsel for appellants requested of the court that they be furnished a list of the names and addresses of prospective jurors. They objected to proceeding with the trial until this was done. The request was denied. Impanelment of the jury was then undertaken, during the course of which counsel for appellants requested the court to ask each prospective juror to state his or her residence address. This request was also refused, but the court had each prospective juror indicate the "approximate community" where he or she resided.³

Counsel for appellants stated to the court that information as to the "approximate" location of prospective jurors would not be satisfactory. The court was told that appellants had no intention of disturbing any juror. The exact residence address was needed, counsel asserted, to enable them to ascertain the jurors' "status or character in the vicinage in which they reside," and "whether there is any proximity to any possible witnesses or information." Unless such information was supplied, the court was told, appellants could not "intelligently select the jurors, nor exercise our challenges satisfactorily." The result, they argued, would be to deprive appellants of due process of law guaranteed by the Fifth Amendment.

On this appeal these reasons for requesting this information are again urged. Condemning both the district court's general order of February 28, 1951, and the trial court rulings denying their requests, appellants here invoke not only the Fifth Amendment but also Art. III, § 2, clause 3, and the First, Sixth, and Seventh Amendments of the Constitution.

In the recent case of Hamer v. United States, 9 Cir., 259 F.2d 274, it was held that the refusal of the defendant's request for the names and addresses of persons summoned for jury duty did not, under the facts of that case, constitute a deprivation of the right to trial by jury as guaranteed by Art. III, § 2, clause 3. It was further held that, under the circumstances there existing, refusal of that request did not deprive the defendant of the right to trial by an impartial jury as guaranteed by the Sixth Amendment. In reaching these conclusions the court studied the record of the voir dire examination and found that it was adequate and fair to insure the selection of an impartial jury.

Appellants criticize the Hamer decision, but we reaffirm the principles there announced as summarized above.

We have similarly studied the record of the voir dire examination in this case. The trial court conducted the voir dire in a fair and patient manner. It responded favorably to practically every request of appellants' counsel concerning questions to be propounded to prospective jurors. Appellants do not contend that the jury selected to try the case was biased or partial in any respect.

Applying the Hamer test to the instant case, we are brought to the same conclusion — refusal to make available the residence addresses of prospective jurors has not deprived appellants of their constitutional rights under Art. III, § 2, clause 3, or the Sixth Amendment of the Constitution.

Although the due process clause of the Fifth Amendment was not specifically invoked in Hamer, the test which was there applied and which we have applied equates with the basic premise of that clause.⁴ Hence, we conclude that the refusal of appellants' requests for the addresses of prospective jurors has not deprived them of due process of law.

Appellants' reliance on the First and Seventh Amendments in connection with the question under discussion is misplaced. The First Amendment places restrictions upon the power of Congress and has no reference to judicial proceedings. The Seventh Amendment has application only in civil cases.

Appellants also argue that by virtue of 28 U.S.C.A. § 1864, the names and addresses of prospective jurors are public records, and defendants in criminal cases are therefore entitled to that information as a matter of right.⁵

The cited section makes it clear that members of the public are entitled to be present when the names of grand and petit jurors are drawn. Presumably this would give a person then present an opportunity to copy down the names so drawn. By the use of directories and other sources of information, such a person might then be able to ascertain the addresses of individuals whose names were drawn for jury service.

In our view the fact that a person might be able to acquire this information for himself in the way indicated does not establish his right to have it supplied to him by the government prior to trial. Nor does this fact give him the right to obtain it at the trial through questioning of prospective jurors. If there is such a right, one would expect it to be evidenced by some statutory or constitutional provision. Neither 28 U.S.C.A. § 1864, nor any other statute called to our attention makes provision for the supplying of such information to parties or their counsel, or even mentions the matter of jurors' addresses. We have heretofore stated our reasons for concluding that there is no constitutional requirement that this be done.

In our opinion appellants' inability to obtain the residence addresses of prospective jurors prior to or during their trial does not call for reversal of the judgments of conviction.

The trial court's refusal to permit counsel for appellants to ask questions of prospective jurors during the voir dire is specified as error. Appellants argue that the right to question jurors directly is authorized by Rule 24 (a), Federal Rules of Criminal Procedure, 18 U.S.C.A., and that refusal to accord this right is violative of the Fifth, Sixth, and Seventh Amendments. Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734, and Morford v. United States, 339 U.S. 258, 70 S.Ct. 586, 94 L.Ed. 815, are cited in support of this contention.

The trial court refused to permit counsel for appellants to question prospective jurors directly, but offered to propound any questions suggested by counsel. Numerous questions were thereafter suggested by counsel for appellants and each such question was propounded and answered.

The procedure followed is in full accord with that outlined in Rule 24(a), quoted in the margin.⁶ The constitutionality of such procedure, with particular reference to Art. III, § 2, clause 3, of the Constitution and the Sixth Amendment, was upheld in Hamer v. United States, supra, 259 F.2d at pages 279-280, where ample authority is cited.

In Morford v. United States, supra 339 U.S. 258, 70 S.Ct. 587, a judgment of conviction was reversed because "the trial court did not permit counsel for petitioner to interrogate prospective government employee jurors upon voir dire examination with specific reference to the possible influence of the `Loyalty Order,' Executive Order No. 9835 5 U.S.C.A. § 631 note, on their ability to render a just and impartial verdict." It was pointed out that such questioning was permitted in Dennis v. United States, supra.

There is nothing in the brief per curiam opinion in Morford to indicate that the appellant was there contending that his counsel rather than the trial court should have interrogated the jury. The reversal came not because counsel for appellant was not permitted to make this inquiry, but because it was not made by anyone. As its reason for reversing, the court in Morford called attention to its language in Dennis, supra, that "preservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury."

In the instant case that opportunity was preserved because the trial court offered to and did propound every question appellants wanted to have propounded. Appellants have not suggested how they could have better ascertained the impartiality of the jurors by asking the same questions themselves. No prejudicial error was committed in refusing this request.

Under two other...