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June 26, 1974


Becker, J.

The opinion of the court was delivered by: BECKER

I. Preliminary Statement

 This is a motion by defendant Douglas Emil Ehly for arrest of judgment and for a new trial following his conviction on charges of bank robbery and forcing someone to accompany him in connection therewith without that person's consent. For the reasons that follow, the motion will be denied.

 The events which followed are reminiscent of those recounted in the novel (and subsequent motion picture) "The Desperate Hours." *fn1" The Matlack family was indeed held as hostage overnight by the two men who entered by the front door and by two confederates whom the men later admitted through the cellar door. The gripping tale, hour by hour, of the events of the evening of May 10, and of the morning of May 11, until the robbery was complete and Mrs. Matlack and their two children released, was recounted in four separate jury trials under the above criminal docket number as well as in the course of pretrial suppression motions. A brief procedural history is thus in order.

 Defendant Francis Aloysius Murphy was referred to throughout the proceedings as the "number one man." According to the evidence at each trial, Murphy was the one who entered the front door first, and who remained in the living room until the Matlacks went to bed brandishing a gun and doing most of the talking, inter alia, about how he had followed Mr. Matlack's routine for several weeks and about how the robbery was to be executed. After his apprehension, Murphy gave a statement to the F.B.I. confessing his role in the kidnapping and robbery. His motion to suppress the statement was denied and thereafter Murphy entered a guilty plea to all counts and has since been sentenced. *fn2" Defendant Clarence Ford was referred to throughout as the "number four man." According to the evidence at each trial, Ford was admitted through the basement, never appeared in the Matlacks' view on the evening of May 10, but was first seen on the morning of May 11 in the car which went to the bank. Upon motion, Ford's case was severed and he was convicted by a jury of all but the "kidnapping" count (18 U.S.C. § 2113(e)) at a trial at which the principal evidence against him was his confession (suppression of which had also been denied after hearing) and Herbert Matlack's identification of him as a man who was in the car en route to the bank and in the bank during the robbery. *fn3"

 The remaining two defendants were Edward Holland, who was referred to at each trial as the "number two man," (i.e., one who entered at the front door with Murphy), and Douglas Ehly, who was referred to throughout as the "number three man," (i.e., one admitted through the cellar door, but who was identified as having spent most of the evening in the living room with Murphy). Holland and Ehly were then brought to trial together. The evidence proceeded to its conclusion, closing arguments were made, and the jury was charged and sent to its deliberations. During those deliberations the events occurred which gave rise to Ehly's double jeopardy claim: a juror, Alice Sarajian, became physically and mentally unable to continue deliberations, and, because of the circumstances detailed below, we declared, over Ehly's objection, a mistrial in the case against him. Defendant Holland elected to have the case against him proceed with eleven jurors; however, those jurors became hopelessly deadlocked; hence a mistrial was declared as to Holland as well. Ehly thereupon announced dissatisfaction with his counsel. We agreed to appoint new counsel for him, and, so as not to delay the retrial of defendant Holland, who had requested a speedy retrial, we severed the trials of Ehly and Holland and proceeded promptly to the retrial of Holland's case. *fn4" This time the government was aided by the testimony of Ford, who confessed his own role in the robbery and implicated Holland. Shortly before the case was to go to the jury, Holland entered a guilty plea to all but the § 2113(e) count, which the government agreed to dismiss at the time of sentencing.

 After newly appointed counsel had time to prepare, we proceeded to the fourth jury trial, at which Ehly was convicted on all counts of the indictment. The present motions arise therefrom, and consist of protective motions filed by Ehly and those filed by his exceptionally able counsel. Ehly's motion essentially tracks that filed by his counsel, except that it also raises the claim of insufficiency of evidence. That claim patently must fail in view of the positive in-court identifications of Ehly by Herbert Matlack, his wife Letitia, and his daughter Anne, all of whom had Ehly in plain view for long periods during the evening of May 10. Each of the identifications was unshaken by cross-examination. The government also presented evidence of an out-of-court identification of Ehly by Herbert Matlack and Anne Matlack, and evidence of a dental examination of Ehly which corroborated Anne Matlack's testimony about the location of Ehly's missing tooth. *fn5" While it is true that Herbert Matlack failed on one occasion to identify Ehly in a photospread, and Letitia made a photospread misidentification, we charged the jury in strict accordance with the requirements of United States v. Barber, 442 F.2d 517 (3d Cir.), cert. denied, 404 U.S. 846, 958, 92 S. Ct. 148, 30 L. Ed. 2d 83 (1971), as to identification testimony. Ehly put on an alibi defense, producing two witnesses (his wife and one John Beauchemin) who claimed that he was in Rocky's Bar in Mays Landing, New Jersey at the time of the kidnapping, but the Government rebutted the defense by testimony of the bar owner, Rocky Castellani, and the jury apparently rejected it. After conviction and on post trial motions, the evidence must be viewed in the light most favorable to the Government. United States v. De Cavalcante, 440 F.2d 1264, 1273 (3d Cir. 1971). The evidence against defendant Ehly was strong, more than sufficient to sustain the verdict. We thus turn to the contentions raised by Ehly's counsel.

 II. The Double Jeopardy Claim

Dear Judge Becker,
This is a burden I can't take. I am too emotionally upset. I cannot condemn anyone! I'm sorry. I'm a Christian and cannot judge a person -- I have no right. Isn't there any way I can possibly be excused?
Alice L. Sarajian. *fn6"

 Shortly thereafter we received word that Miss Sarajian had fainted in the ladies' room. We immediately summoned medical help in the person of William Gorham, M.D., who operates a clinic for the United States Postal Service in the Post Office and Courthouse Building. Dr. Gorham ministered to Miss Sarajian and then, at our direction, came upstairs to the courtroom to testify. *fn7" We also instructed the Marshal to direct the jury not to resume deliberating until we instructed them otherwise.

 According to Dr. Gorham, when he arrived he found Miss Sarajian attended by two of the other jurors in a state of retching. In terms of history, Dr. Gorham learned that Miss Sarajian was nineteen years of age, that she had been running to the bathroom most of the morning, that she had had no dinner the previous night and otherwise had eaten very little in recent days. She was pale and her pulse was rapid. He described her as being in a state of "acute hysteria" brought on by tension or stress; i.e., an inability to face problems present at the moment. Although Miss Sarajian was coherent, Dr. Gorham testified that he did not consider her capable of carrying on as a juror, and that if she went home and came in the next day the same thing would probably happen again in the deliberation room. The parties were all given an opportunity to cross-examine and state a position as to how to proceed. *fn8" However, we deferred final determination of the matter and, at 3:05 p.m., sent the remaining eleven jurors out to lunch, thus giving Dr. Gorham more time to attend Miss Sarajian. At 4:20 p.m., the jury returned from lunch. At that time, with agreement of the parties and with the appropriate admonition, we sent the jurors home, with instructions to return the following morning at 9:30 a.m. One juror remained to accompany Miss Sarajian home. *fn9"

 Dr. Gorham also expressed the opinion that Miss Sarajian's emotional condition was so precarious that were the Court to ask her a few questions, "she's at a point where with her background, and so forth, she could be tipped over into a psychiatric or to a psychotic state."

 As it happened, Albert Levitt, the chief psychologist for the Philadelphia Court of Common Pleas, had been in the United States Attorney's Office on that afternoon, and had been informed by the Assistant United States Attorney prosecuting the case of these developments. After hearing Dr. Gorham's testimony, Dr. Levitt took the witness stand to shed what light he could on the problem. He expressed the view that Miss Sarajian had an hysterical personality, and was a person who withdraws and does not want to accept the responsibility of decision-making. After we read her note to Dr. Levitt, he also described her as a type of personality who tends to think in negative terms because she thinks about herself in that manner and does not want anyone to criticize her, probably because of some underlying guilt feelings deep in her history. In terms of the effect of ordering Miss Sarajian to continue deliberations, Dr. Levitt responded:

[If] you continue to stress her she is quite likely to develop more pathology. In other words, she's quite likely not just to faint next time, she is likely to develop some paranoid thinking, which is what I would suspect.

 At this stage in the proceeding, the Government and defendant Holland stated that they would be willing to proceed with eleven jurors, although Ehly would not. However, everyone concerned (including the defendants), agreed that the next step should be for the Court to meet with Miss Sarajian in chambers with the only others present being Dr. Gorham and the court reporter, who would unobtrusively report the proceedings.

 During the course of the meeting which followed, we expressed to Miss Sarajian our concern for her well being and our desire not to do anything which would impair her health, but we noted our responsibility to resolve the matter one way or the other. The following colloquy ensued:

THE COURT: Will you be able to go back and sit with the jury and deliberate? You heard my instructions, and I think you are an intelligent girl, and could come to a judgment. Will you be able to say, look, I've got certain personal feelings about this kind of thing, but the judge has instructed me that I have to, on the basis of the evidence and on the law as instructed, come to a verdict that I think is right and just and vote one way or the other. . . .
JUROR NO. 9: I don't think I can do it. It is too much of a burden on me. I don't care who it is, who is on trial. I just can't judge a person. I am sorry. I should have told you that before. I apologize for all this. I can't make a judgment on anybody. I can't. If I am forced to -- I don't know.
. . .
It is not that I am saying the man is innocent or guilty. It is ...

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