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November 10, 1972

Robert RICKUS and Dennis Nazarok

John Morgan Davis, District Judge.

The opinion of the court was delivered by: DAVIS

The defendants have filed a Motion for a New Trial or Arrest of Judgment after they were found guilty by a jury on February 4, 1972 of robbing the Girard Trust Bank in Warminster, Pennsylvania, on June 19, 1970 which was in violation of 18 U.S.C. § 371 and § 2113(b) and (d). The basic substantive facts have been previously stated in the Court' s Opinion, 351 F. Supp. 1379, dated January 10, 1972 which dealt with the suppression of certain evidence. Therefore, there will be no restatement of the facts; however, if other facts must be brought out for clarification, this will be done at the appropriate place in this Opinion.

 The defendants have raised several points in their motion. They shall be dealt with ad seriatim. The defendants' contentions are, as follows:

 1. The Court erred in denying the defendants' Motion for a Mistrial based upon an alleged observation by members of the jury of the defendants wearing handcuffs or to give the jury cautionary instructions about the alleged observation.

 There is no doubt that the defendants were seen by some of the jurors; however, there is some question whether or not the jurors saw that the defendants were handcuffed behind their backs. The Court took notice of this and then propounded the question of whether the government or defense counsel could offer any suggestions that would cure the possibility of the jurors seeing the defendants manacled. (Feb. 1, N.T. 15-17; Feb. 3, N.T. 27-30). Neither the defense nor the government offered any suggestion. The Court instructed the jurors to leave the courthouse immediately when they had been excused (Feb. 1, N.T. 78). It was evident that the colloquy that went on between the Court and counsel could not resolve the problem without further complications arising. (Feb. 1, N.T. 15-17, Feb. 3, N.T. 28-30).

 The defendants did not submit any proposed point for charge on this subject. The Court gave all counsel a broad leeway in this matter and finds no error in not charging the jury on the alleged observance. The fact that some of the jurors may have seen the defendants in handcuffs was not so inherently prejudicial to require a mistrial. See United States v. Acosta-Garcia, 448 F.2d 395 (9th Cir. 1971); United States v. Figuero-Espinoza, 454 F.2d 590, 591 (9th Cir. 1972); McCoy v. Wainwright, 396 F.2d 818 (5th Cir. 1968); United States v. Frazier, 417 F.2d 1138 (4th Cir. 1969), cert. denied 397 U.S. 1013, 90 S. Ct. 1245, 25 L. Ed. 2d 427, rehearing denied 398 U.S. 945, 90 S. Ct. 1850, 26 L. Ed. 2d 284.

 2. The Court wrongfully denied the defendants' Motion for Reconsideration of the Suppression of Evidence that was recovered by the Moorestown, New Jersey police.

 The Court wrote an Opinion on January 10, 1972 in which defendants' motion was denied. The additional argument which the defendants have raised in their present motion does not change the position of the Court's reasoning in denying the original motion to suppress the evidence.

 3. The Court should have quashed the jury panel and the Court erred in not allowing a hearing on the motion.

 The defendants assert that the jury panel does not have any people between the ages of 18 and 25 because they have been excluded and the panel does not contain a fair percentage of black persons based upon 28 U.S.C. § 1867 which provides in part:

(a) In criminal cases, before voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury. [Emphasis added].

 The chronological sequence of defendants' Motion to Quash was the key factor in the Court's Order of January 28, 1972 denying the motion (Jan. 27 and 28, N.T. 2-9). The jury was selected on January 27, 1972 and defense counsel made his motion in writing during the afternoon of January 27, 1972 at the time of jury selection (Jan. 28, N.T. 2). On the morning of January 28, 1972 the Court heard oral argument on the motion and entered an Order denying the motion.

 It is apparent from the statute, 28 U.S.C. § 1867(a), that the motion of defense counsel was too late. The motion was after the voir dire examination had begun. The defense contends that the motion was timely made because the defendants had a Motion to Suppress certain evidence which was denied on January 10, 1972, and since the time gap was only 17 days, from January 10 to 27, 1972, this did not allow defense counsel enough time to discover the alleged unconstitutionality of the selection of the jury (Jan. 28, N.T. 3).

 The statute in question reads in the disjunctive, that is, ". . . before voir dire . . ., or within seven days . . ., whichever is earlier, . . ." [Emphasis added]. The fact that defense counsel was engaged in other matters or did not have enough time to investigate his allegations is irrelevant. Defense counsel made his motion after the voir dire and ...

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