The opinion of the court was delivered by: WILLSON
The petitioner, Nicholas, A. Stirone, by his attorney Vincent M. Casey, Esq., has filed herein a petition to vacate sentence under the provisions of Section 2255, Title 28 United States Code, wherein he alleges a denial of due process under the 5th Amendment of the Constitution and accordingly that he is illegally confined, because: (1) the trial judge was not present at any time during the empanelling and selection of the jury in the trial of said plaintiff before this Court in the case entitled United States of America v. Nicholas A. Stirone, Criminal Action No. 14871; (2) the said jury was interrogated on its voir dire by G. M. Barr, Deputy Clerk of the Court; (3) the trial judge did not interrogate the prospective jurors on their voir dire pursuant to Rule 24 of the Federal Rules of Criminal Procedure, Title 18 United States Code, or permit counsel to do so; (4) although the selection of said jury and its voir dire examination occurred in open court, the proceedings relating thereto were not reported by an official court reporter as required by Section 753(b), Title 28 United States Code, nor was any court reporter present in the court during the selection and voir dire examination of the jury.
The allegation made by petitioner's counsel that the trial judge was not present at any time during the selection of the jury is not accurate. That allegation is refuted by the trial record. The reporter's transcript shows that I opened court and each counsel, on inquiry, replied 'ready'. Messrs. Allan Krouse and Samuel Reich were then admitted specially for the trial of the case. The reporter then shows on the transcript the following: (Transcript, p. 6)
'THE COURT: All right. All right, gentlemen, proceed with the selection of the jury. As is customary and routine here, Miss Barr will handle the proceedings. There are some 40 jurors back there, I take it, and you all know your challenges. You will proceed. If any questions come up, why, I am right here available.'
'(Whereupon a jury was duly empanelled.)'
It is conceded and the record bears out the fact that the voir dire proceedings were not reported by an official court reporter as is required by the Act of Congress, 28 U.S.C. § 753(b). However, the petitioner says that no court reporter was present in the room during the selection and interrogation of the prospective jurors. That statement also is not accurate. It is noticed that it does say in the transcript, p. 6, 'Whereupon a jury was duly empanelled.' The Court then directed the swearing of the jury. From the statements of counsel in this case at the argument on the instant motion, it is apparent that they are not in agreement as to when, if at any time, I, as trial judge, left the bench. As trial judge I will categorically state that in the instant case I was present during all of the voir dire which was conducted by Deputy Clerk Barr. However, when the voir dire was completed and counsel commenced making their challenges I left the bench and went to my adjoining chambers some twelve steps away. During the period that counsel were making their challenges, I was not on the bench. This Court may, of course, take judicial notice of its processes and records. The trial record shows that the jury was sworn at 11:20 A.M. The transcript shows that Court convened at 10:00 A.M. Thus the selection of the jury took an hour and twenty minutes. As any lawyer or judge knows, a court reporter at no time makes a record of the peremptory challenges made by counsel. That procedure is conducted quietly by counsel and no audible words are spoken for the record. In the instant case Mr. Casey concedes that no objection was made and it does not seem to this Court that defendant was in any way prejudiced because the judge left the bench during the period of time it took counsel to make their challenges.
With respect to the allegation that the court reporter failed to stenographically report the voir dire, that point is conceded. However, as trial judge, when the matter came to my attention I was much surprised that no record had been made. I concede that one should have been made as is required by the Statute. However, in Pittsburgh, Court Room No. 6, the court reporter sits at a point not generally visible to the trial judge unless he leans forward and checks to see whether the reporter is actually taking shorthand notes or operating the stenotype machine. The reporter, Riffle, was in Court certainly. I think he remained at his place during the whole selection of the jury, but apparently due to the practice of oft'times selecting juries in the jury room, he did not take the voir dire. If this be error requiring a new trial, then so be it, but I do not regard the admission as fundamental error. The reasons for this conclusion have several aspects. First and foremost is the conceded fact by Mr. Casey that he, as an experienced trial lawyer at the criminal Bar, was aware of the practice in the selection and empanelling of juries and made no objection whatsoever in the instant case. He also concedes that he well knew how to make a record of an objection. He concedes also in this case that he made no objection or called the Court's attention to any irregularity whatsoever. Until 1944 there was no requirement that a reporter stenographically transcribe testimony. A constitutional trial does not require that the testimony be stenographically transcribed. See Baltimore and Potomac Railroad Company v. Trustees of Sixth Presbyterian Church, 91 U.S. 127, 130, 1875, 23 L. Ed. 260; Vickers v. United States, 157 F.2d 285 (8 Cir. 1946). It is not today a part of the record on appeal unless made so by counsel or the Court. See Civil Rule 75 and Criminal Rule 39. In Blease v. Garlington, 92 U.S. 1, 7, 23 L. Ed. 521, 1875, the Supreme Court held that oral evidence must be taken down or its substance stated in writing, and made part of the record. See also the discussion of the method of incorporating testimony as a part of the record in Middleton v. Hartford Acc. & Indemnity Co., 119 F.2d 721 (5 Cir. 1941). Any lawyer is, of course, familiar with the fact that in criminal trials in Federal Courts and elsewhere it has been only in recent times that trial testimony has been taken by a court reporter. A constitutional trial in a criminal case must be according to the common law. In the courts of common law there is no requirement whatsoever for reporting testimony. It is obvious also that even prior to 1944, and since, counsel are required to take some action to preserve an objection for appellate review.
It seems to the Court that counsel is relying on two recent decisions of the Court of Appeals. The more recent case is that of Parrott v. United States, 314 F.2d 46, (10 Cir. 1963), decided in February of 1963. In that case the voir dire examination was not recorded, but in that case counsel had made an objection. The government did not deny that during and in the voir dire the trial judge mentioned 'other bank robbery cases pending in the same court against the defendant.' This was the point that defendant claimed was error. The Court of Appeals held that the unavailability of a full transcript made it impossible for the Court to determine whether or not the error was harmless. The Court sent the case back for a new trial. The other case is one decided in the 5th Circuit in 1961, Stephens v. United States, 289 F.2d 308, (5 Cir. 1961). In that case the attorney for the defendant, on appeal, claimed error in that he could not properly present certain specified errors to the Appellate Court because of the failure of the court reporter to record certain proceedings had in open court. The Court of Appeals agreed with him and also sent the case back. However, in another case decided in 1963 by the 5th Circuit, Strauss v. United States, 311 F.2d 926, (5 Cir. 1963), where no record of side bar conferences was available and the court reporter did not record the examination of the veniremen, the Court held there was no prejudice to defendant when no specific error was alleged. The Court stated that a failure to comply with the Act of Congress, 28 United States Code § 753(b), is not error per se. Judge Dumbauld has recently written an opinion on the subject which I think has applicability in some respects to this case. See his opinion, United States of America v. William Sams, 219 F.Supp. 164, (W.D.Pa., 1963).
Mr. Casey for petitioner also alleges error in that Rule 24 of the Federal Rules of Criminal Procedure, 18 United States Code, was violated because Deputy Clerk G. M. Barr was permitted to interrogate jurors on the voir dire. Criminal Rule 24 provides that:
'The court may permit the defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or his attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper.'
Mr. Casey claims that the voir dire examination by the Deputy Clerk is contrary to the Rule. It is conceded that the general practice in this District Court during the past ten years from time to time in criminal cases as well as civil cases, is that juries are selected in the jury room, not in the presence of the Judge. However, as one of the Judge on the Court, it has been my practice in important cases to have the jury selected in my Court Room and in my presence.
Counsel says that the jury was selected in Court Room No. 6. I think that such was the fact and that this fact is in no wise controverted by anyone. It is conceded, of course, and as the record shows, Miss Barr did conduct the voir dire. The fact is, however, that Miss Barr did not independently select the questions put to the jurors on the voir dire. We have adopted Rule 19 of our Local Rules which sets forth seven questions to be asked of each juror on the voir dire. It has applicability in both civil and criminal cases. Those questions were used in this case with an additional question according to my recollection and that is that the government was permitted to inquire as to whether any juror belonged to a labor union. It must be emphasized that Miss Barr only asked questions which had been previously approved by the Judges, by the Rule or by the trial judge. Hers was only the voice of the Court. The maxim 'Qui Facit Per Alium Facit Per Se,' applies.
What counsel is contending is that per se the record shows lack of due process. I do not agree. We have a situation where an able and experienced counsel does not suggest that defendant was in any wise actually prejudiced. Mr. Casey does not allege or even hint that he was prevented or deprived of making any objection which he sought to make. He does not contend that he desired to put a question on the voir dire which was refused. Indeed, he concedes that he made no such request at any time nor did he make any objection at any time. Finally, no specific ...