upon the contention that there was insufficient independent evidence of a joint undertaking to justify admission of the statements of the alleged co-conspirators (N.T. 10-6). We do not agree. For the reasons stated, we have concluded that there was substantial independent evidence which justified the admission of the statements, and accordingly we denied the motion on this ground.
Counsel for Dabney does not assert that the court erred in failing to instruct the jury that Dabney's participation in the conspiracy had to be established without reference to the declarations of alleged co-conspirators, unless there was proof aliunde of Dabney's participation in the conspiracy. Even if such a contention were made, however, there was no objection to the Court's charge on conspiracy prior to the submission of the case to the jury, as required by Rule 30 of the Federal Rules of Criminal Procedure. Moreover, the Court of Appeals for the Third Circuit had made it clear that such a failure to instruct the jury is not plain error, when, as in the instant case, the trial court has made the independent determination required by United States v. Bey, supra ; United States v. Rodrigues, supra, 491 F.2d at 666. As the Court noted in United States v. Van Orden, 469 F.2d 461, 464 (3d Cir. 1972), ". . . once the district court determines that the statement is properly admitted under the co-conspirator exception to the hearsay rule, no instruction to the jury is necessary."
Finally, counsel for Dabney has asserted that we erred in admitting testimony with respect to the actions of alleged co-conspirators. No grounds for this contention have been offered, nor has the issue been briefed. Since the matter does not raise hearsay problems, we are unable to understand the reasons, if any, which might be asserted in its support. In any event, we instructed the jury extensively with respect to the manner in which Dabney could be bound by the acts of alleged co-conspirators (N.T. 10-93 to 10-95), and no objection was made to these instructions. Apart from the lack of objection at the time, our independent review satisfies us that no ground for error exists on this score and that the issue is a spurious one.
For all of these reasons, we decline to grant a new trial on the basis of alleged error through the admission of testimony with respect to the actions and statements of alleged co-conspirators. We find that the entire contention lacks merit.
5. The effect of the conviction of Clark, Christian, and Griffin on murder charges in the District of Columbia.
On May 17, 1974, during the course of this trial, John Clark, William Christian, and John Griffin, co-defendants in this case, whose trials were served from Dabney's, were found guilty by a jury in the District of Columbia of murder charges. The victims in the District of Columbia case included women and children, and the proceeding attracted considerable publicity.
On May 28, 1974, counsel for Dabney moved for a mistrial, based upon the publicity surrounding these convictions (N.T. 7-4). The Court denied the motion for a mistrial, and ordered an extensive voir dire of the jury to determine if any of its members had been exposed to prejudicial publicity (N.T. 7-5, 7-10, 11), according to the procedure described in United States v. Addonizio, 451 F.2d 49, 67 (3d Cir. 1972). It is important to note that although these defendants were alleged co-conspirators in the case at bar, Dabney was not implicated in the Washington case nor was he mentioned in any of the publicity attendant to that action.
The voir dire was conducted by us of each juror individually out of the hearing of the other jurors, United States v. Addonizio, supra, 451 F.2d at 67 (exercising the supervisory power over the District Courts in this Circuit); see also the ABA Standards Relating to Fair Trial and Free Press, § 3.4(a) (Approved Draft, March, 1968). The questions were as follows:
1. During the recess in this matter from May 17th until today [May 28, 1974], have you had any discussions about the case with anyone?
2. Either during the recess or prior to that time, prior to your becoming a member of the jury, have you heard anything or read anything about any of the following persons: John W. Clark, Richard Dabney, William Christian, John Griffin, Ernest Kelly, Mrs. Thelma Kelly, John Thomas, Detective English [a member of the Philadelphia Police Department involved in the investigation of the case], Agent Larry Doss [the FBI case agent], Agent Richard Schwein [another FBI agent assigned to the case], Mr. Miller of the U.S. Attorney's office, Mr. Mellon of the U.S. Attorney's office, Mr. Tinari [defense counsel], Mr. McCaskill [defense counsel]?
The Court afforded counsel the opportunity to ask additional questions. Counsel for Mr. Dabney asked one question of Juror Leposa (N.T. 7-19), and, after six jurors had been questioned, requested the Court to substitute a general question relating to news media for the phrase "have you read anything?" Counsel stated that the previous questioning had been sufficiently broad, however, to include news media, and specifically informed the Court that it was unnecessary to re-examine those jurors previously questioned (N.T. 7-27).
Mr. Martin was the only juror who stated that the name of one of the defendants, John Griffin, struck a responsive chord, but he was unable to pinpoint any specific frame of reference (N.T. 7-50).
Under these circumstances, we concluded then, and we conclude now, that cause did not exist for the grant of a mistrial on May 28, 1974, because none of the jurors had been exposed to publicity which he or she connected in any way with the events in the trial or with defendant Dabney;
or, indeed, with any of the defendants in any other context whatsoever.
6. The finding of guilt on both Counts II and IV.
The jury found Dabney guilty of the offenses charged in Counts I, II, IV, and VIII of the indictment. Dabney now asserts that the guilty verdict cannot stand as to Counts II and IV, since he claims that both counts charge the same offense; viz., violations of 18 U.S.C. § 2113(a). In support of this contention Dabney cites two cases from the District of Columbia Circuit, Coleman v. United States, 137 U.S. App. D.C. 48, 420 F.2d 616 (D.C. Cir. 1969), and Bryant v. United States, 135 U.S. App. D.C. 138, 417 F.2d 555 (D.C. Cir. 1969).
After carefully reviewing the record, we conclude that we lack jurisdiction to consider this ground asserted in support of the motion for a new trial.
The trial terminated on May 31, 1974. After the jury returned its verdict, we stated that an extension of time for the filing of post-trial motions would be granted, if such extension were requested; we said, however, that in any event, the motions must be filed and the matter briefed and argued prior to the date set for sentencing, which was June 27, 1974 (N.T. 10-114 to 116). No extension of time within which to file post-trial motions was requested.
The contention that a finding of guilt on both Counts II and IV would be contrary to law was first raised orally on July 16, 1974 (N.T. 12, July 16, 1974). There was no mention of such ground in the motion for a new trial filed on June 5, 1974, although that motion did purport to reserve the right to file additional reasons at the time of argument.
The law is clear in this Circuit that any motion for a new trial, together with all grounds in support thereof, must be filed by the defendant within the seven day period mandated by Rule 33 of the Federal Rules of Criminal Procedure, or within such further time as the Court may fix during the original seven day period, United States v. Newman, 456 F.2d 668, 670 (3d Cir. 1972). Purported "reservation" clauses which would extend this period are without force or effect, United States v. Hamilton, 457 F.2d 95, 99-100 (3d Cir. 1972). Moreover, this limitation is said to be jurisdictional, United States v. Newman, supra, 456 F.2d at 672, and any order of the District Court in contravention thereof is without effect, United States v. Hamilton, supra, 457 F.2d at 100.
In addition, the reasons in support of the motion for a new trial must be in writing, United States v. Newman, 456 F.2d at 670; see Rule 47, Federal Rules of Criminal Procedure.
In the instant case, we will assume, arguendo, that the Court's statement that motions should be filed before June 27, 1974, the date originally set for sentencing, operated as an extension granted within the usual seven day period, under the rule of Newman. Even under this construction, which is most favorable to defendant, we lack jurisdiction to consider reasons in support of the new trial motion asserted orally on July 16, 1974.
We note, however, that even if we had jurisdiction to consider this ground urged in support of a new trial, it is wholly without merit. The cases cited by Dabney, Coleman v. United States and Bryant v. United States, supra, deal with conviction and sentencing under the various sections of the federal bank robbery statute. In the instant case, however, neither a judgment of conviction, under Rule 32(b)(1), nor sentence under Rule 32(a)(1), has been entered by the Court. Should a judgment of conviction be entered and sentence imposed upon it, we will, of course, be guided by the admonition of the Court of Appeals for the Third Circuit, en banc, in United States v. Corson, 449 F.2d 544, 551 (3d Cir. 1971), that
the only practicable way of implementing [ Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1957)] is to impose a general sentence on all counts for a term not exceeding the maximum permissible sentence on that count which carries the greatest maximum sentence.
At this juncture, however, Dabney's contention is both premature and erroneous.
The motion for a new trial on the ground that a verdict of guilty on Counts II and IV was contrary to law accordingly will be and is denied.
7. The prosecutor's reference in closing argument to the dismissed firearms counts.
Dabney next contends that the government improperly argued the dismissed firearms counts to the jury.
This ground in support of the motion for a new trial was first asserted in a memorandum filed by counsel for Dabney on October 10, 1974. Under the rule of United States v. Newman and United States v. Hamilton, supra, we clearly lack jurisdiction to consider this contention.
Again, assuming, arguendo, that we do have jurisdiction, we find this ground to be utterly without merit. The challenged statement of the prosecutor was as follows:
* * * Mr. Dabney had his hands in his pocket. Now, did Mr. Dabney have a gun or is he charged with having a gun? His honor will tell you that certain counts of the indictment have been dropped, an acquittal has been granted with the consent of the government. There is no evidence throughout the entire trial -- and I concede -- that Mr. Dabney personally, that he himself, carried a gun. There is no evidence of that. You could guess that he carried a gun because he had his hand in his pocket. You could guess that he carried a gun because other people had guns. You could guess that he carried a gun because there was one found in Mr. Kelly's car. That would be guesswork. We would not want you to convict anyone on speculation. So the count that charges Mr. Dabney with personally carrying a firearm is not in the indictment that will go out with you, they have been deleted, just so you understand that. Numerous other counts are in the indictment, and there is sufficient evidence with respect to them so that you need not guess; all you have to do is think. (N.T. 10-40).