Biggs, Chief Judge, and McLaughlin and Staley, Circuit Judges.
MCLAUGHLIN, Circuit Judge
After a jury trial appellants were convicted under 26 U.S.C.§§ 7201, 7272 and 7262 for various violations of the provisions of the Internal Revenue Code relating to wagering, i. e. Wilful attempt to evade special tax; Wilful failure to pay special tax; Wilful failure to register for special tax; Failure to register for special tax; Failure to pay special tax.
On behalf of Sigal it is asserted that the searches and seizures involved were illegal; that the numbers slips could not constitutionally be received as evidence; that the agents had no authority to arrest without a warrant; that there should have been a mistrial because of remarks by the prosecuting attorney in his closing argument; that the first count was improperly submitted to the jury. Appellant Rabinovitz urges that the prosecution's proof of partnership failed as to Count One of the indictment and that he is entitled to a new trial because of the above referred to remarks of the prosecutor in closing.
None of the above points is meritorious. They are covered in the concurrence. They need no discussion in this opinion.
Appellant Sigal also contends that the judgment should be reversed because the court reporter failed to record the voir dire examination of prospective jurors. This point also in the view of the majority is specious. However, the dissent would remand the causes to the district court "* * * to supplement the record, note 37, supra [not necessary to quote here], in order to determine whether or not there was an effective waiver by either or both of the defendants." In view of this we will present the factual and legal situation governing that particular problem.
The court stenographer should have recorded the voir dire in accordance with the pertinent statute, 28 U.S.C. § 753(b). The failure to do so in this instance was harmless error. There is no contention otherwise. The record is barren of any support for such contention if it had been made. Sigal merely notes the point in two paragraphs and does not reply in his reply brief to the specific and authoritative disposal of the point by appellee. Rabinovitz does not even list the point in his appeal. Sigal states the statutory provision is mandatory and cites two decisions. Parrott v. United States, 314 F.2d 46 (10 Cir. 1963) and Stephens v. United States, 289 F.2d 308 (5 Cir. 1961). The dissent also refers to these. Both those cases require more than a mere violation of the Act for reversal. In Parrot the judge told the jury that the defendant, being tried for conspiracy to rob a bank, had three other bank robbery charges pending against him. With no record of the voir dire the appellate court was unable to ascertain if the error was harmless, therefore remanded the appeal for a new trial. In Stephens the appeal was unable to present certain specific errors on appeal because the voir dire had not been stenographically recorded. The later Fifth Circuit Court of Appeals opinion in Strauss v. United States, 311 F.2d 926 (5 Cir. 1963), cert. den. 373 U.S. 910, 83 S. Ct. 1299, 10 L. Ed. 2d 412 (1963), gives a clear picture of the basic law on the question. The same suggestion was made there as in the instant appeal, i. e. because the law was mandatory, despite the fact that no specific error was charged, there should be a reversal. The court said p. 933:
"Furthermore, no specific error or prejudice resulting therefrom is called to our attention. This is the very least that would be required under Stephens v. United States, 5 Cir., 1961, 289 F.2d 308, where errors were specified, and where there was no record on which to test the claimed errors. To permit an appellant simply to claim error for failure to record under the Act, without more, would eliminate the necessity of a showing of prejudice because of the error."
In another late and important opinion of the Fifth Circuit Court of Appeals on this subject, Addison v. United States, 317 F.2d 808, 811 (5 Cir. 1963), cert. den. 376 U.S. 905, 84 S. Ct. 658, 11 L. Ed. 2d 605 (1964), the court held:
"There is no excuse for the court reporter's failure to comply with the requirements of the statute, unless the party waives the requirement. However, this does not work an automatic reversal." (Emphasis supplied).
In Brown v. United States, 314 F.2d 293, 295 (9 Cir. 1963), relied upon as supporting the defense position, there was failure to record the summations as called for by the statute. The court categorically disagreed with the proposition that the failure of itself required reversal. It remanded the appeal to ascertain the fact holding that "In reviewing criminal convictions on appeal we are to disregard 'error * * * which does not affect substantial rights.' Rule 52(a), Federal Rules of Criminal Procedure. If the closing arguments of counsel contained no error affecting appellant's substantial rights, then failure to record those arguments would also be harmless error." In this appeal, admittedly there was no harm great or small to appellants.
Finally, we are confronted with the view that Hardy v. United States, 375 U.S. 277, 282, 84 S. Ct. 424, 11 L. Ed. 2d 331 (1964) calls for the naked reversal of these convictions on the harmless error of the reporter in this trial failing to take the voir dire. Under that theory the realities that the voir dire contained no error at all, that none was ever contended for, even alleged, would be swept aside. Rule 52(a) F.R. Crim. P. commanding that on appeal "Any error, defect, irregularity or variance which does not affect substantial rights be disregarded", would be abandoned. The issue in Hardy was the necessity of furnishing court appointed counsel for appellant in the Court of Appeals with "* * * a transcript of the testimony and evidence presented by the defendant and also the court's charge to the jury, as well as the testimony and evidence presented by the prosecution." And that was what the Court concluded appellant should have. This was allowed to a new court appointed attorney representing appellant. The voir dire testimony was excluded from the necessary transcript to be given appellant. If there had been any problem relating to it, it of course would have been included. In the present appeal we have no issue as to the voir dire, we have continuity of counsel,*fn1 we have the exact Hardy decision as it stands, indirectly lending its impressive weight to the sound doctrine that the bare mistake of the stenographer with no damage possibly or probably flowing therefrom, is not enough to deny affirmance to these convictions.
In addition to the above sound doctrine calling for affirmance of these convictions, there was an effective waiving of the necessity of the court reporter noting the voir dire. This was in writing signed by all defendants and witnessed by their counsel. This reads:
"STATEMENT OF SATISFACTION AS TO THE PROCEDURE APPLIED TO THE SELECTING OF JURY
"I do hereby waive the right to have the jury in this criminal proceeding selected in the presence of a member of the Court. I do hereby further state and certify that the jury was selected in the open assignment room of the Court and that I was present with my counsel during the whole of the period of time applied in the selection of the jury. I do further certify that I am satisfied and agreeable to the procedure applied to the selection of the jury.
(Signatures of Defendants)