The opinion of the court was delivered by: DUMBAULD
Most of the points raised by defendants in their motion for new trial were timely raised by their able counsel at the trial, and ruled upon at that time.
There is one ground, however (relating to the mode of selection of the jury), which was not raised until the briefs and argument upon the motion for new trial. It is contended that the conviction is invalid for the reason that a judge and a court reporter were not present during the entire period when the jury was being selected. This is said to violate Criminal Rule 24 and 28 U.S.C.A. § 753(b).
With regard to this contention we believe that it is untimely made because it was not raised until this late stage in the proceedings. Had the defendants made a timely indication that they considered it of importance that a judge or reporter be present, the situation could have been easily remedied. A judge was available, and a court reporter was available, in the event that a situation arose requiring their presence; and at any time the defendants could have obtained the presence of a judge or a court reporter if they had so desired.
The jury in the case at bar was selected in accordance with the long established practice of this Court. Counsel for the defense, who have had extensive experience in the trial of criminal cases in the Western District of Pennsylvania, were familiar with this practice and raised no objection in the case at bar to the use of the customary procedure.
Under the usual practice in this District, an experienced Deputy Clerk propounds to the jurors certain stock or standard questions which have been approved by the Court. Upon timely request, the Court will permit other appropriate questions, desired by counsel, to be put to the jurors. The entire selection procedure takes place in the presence of the defendant and his counsel, together with government counsel. Obviously this procedure complies fully with Criminal Rule 24.
With respect to 28 U.S.C. § 753 regarding the duties of court reporters, it seems clear that this is an administrative provision which relates to the roganization of federal courts. It does not directly confer any rights upon defendants. This section is found in that part of the Judicial Code which deals with the organization and staffing of District Courts. It follows a section dealing with clerks, and one dealing with law clerks and secretaries. It precedes one relating to the appointment of court criers, bailiffs, and messengers. It is our recollection of the origin and legislative history of this section that in 1944, as a result of lobbying by court reporters' organizations, legislation was enacted providing that reporters should receive a regular and fixed annual salary in lieu of the former practice of compensating them on a piecework basis by the sale of transcripts. As quid pro quo for this salary, it was necessary that the legislation elaborate the duties of the reporters.
The language of 28 U.S.C. § 753(b) upon which defendants rely really constitutes a job description for the position of court reporter, and specifies what the reporter must do in order to earn his prescribed compensation. These administrative or directory provisions do not confer any legal rights upon defendants. (Of course, if the absence of a transcript made it impossible to show that a defendant was represented by counsel at his arraignment or voluntarily entered a plea of guilty, or resulted in some other actual violation of his legal rights, the defendant could take advantage of this circumstance. But the mere lack of compliance per se with such an administrative provision would not inure to the benefit of a defendant.) In itself, and in the absence of relevance to some other situation of separate significance involving a defendant's rights, non-compliance with section 753(b) gives no better basis for a new trial than would a similar provision directing judges to wear robes, deputy marshals to wear a particular sort of uniform while on duty, or court criers to use a particular formula, or to station the American flag at a particular place in the courtroom.
A second conclusive reason why this ground does not suffice to invalidate the conviction of defendants in this case is the fact that defendants were not in any way prejudiced by reason of the manner in which the jury was selected, even if it be assumed arguendo that it was not selected properly. During the course of oral argument, counsel conceded that in fact there were no additional question which defendants wished to put to the jurors and which they were prevented from putting by reason of the absence of a judge or court reporter, nor did any untoward or inflammatory incidents occur which called for recording. Since defendants did not wish for or request additional relief by reason of circumstances arising out of the procedure adopted for selecting the jury, it seems clear that their rights were in no way prejudiced.
A third completely conclusive reason which demonstrates the total lack of merit in the contention that plaintiffs are entitled to new trial by reason of the jury selection procedure is the fact that defendants have expressly waived any defects with respect to this matter.
On the Clerk's record of the selection of the jury, there appears a written waiver, signed by each defendant, and attested by defendants' counsel, reading as follows:
Furthermore, before the jury was sworn the trial judge inquired 'Is this the jury that has been selected in another part of the building in the presence of the defendants and their counsel to the satisfaction of all parties?'
Thereupon counsel replied as follows:
'MR. REICH (for the Government): Yes, ...