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July 14, 1975


Fogel, J.

The opinion of the court was delivered by: FOGEL



 On November 22, 1974, John W. Clark, William Christian, and John Griffin were found guilty by a jury on four counts charging them with conspiracy, (18 U.S.C. § 371), and aiding and abetting violations of the federal bank robbery statute, (18 U.S.C. §§ 2, 2113). *fn1" Each defendant has now filed motions which seek, in the alternative: (1) dismissal of the indictment based upon excessive pretrial delay; (2) a judgment of acquittal, under Rule 29 of the Federal Rules of Criminal Procedure; (3) a new trial, under Rule 33 of the Federal Rules of Criminal Procedure; or (4) arrest of judgment, under Rule 34 of the Federal Rules of Criminal Procedure.

 In his original motions, Clark asserted 41 separate grounds in support of the relief sought; Christian and Griffin each asserted 34 such grounds. At this juncture, however, the defendants among them press only 16 separate contentions, which may be categorized as follows: (1) pretrial motions, ruled upon by the Court prior to trial but renewed thereafter; (2) challenges to the manner of jury selection; (3) rulings of the Court during trial; (4) the instructions of the Court to the jury; and (5) the legal sufficiency of the evidence to support the jury's verdict. *fn2" We shall discuss these contentions seriatim.

  I. Pretrial motions

 Defendants now challenge our rulings on pretrial motions in which they sought: (1) dismissal of the indictment based upon their contentions of excessive pretrial delay; (2) a severance; and (3) a change of venue. Each of these motions was denied prior to trial. After a review of the record, and the restatement of the position of defendants by their counsel in the post-trial motions and briefs in support of those motions, we reaffirm our original decision for the reasons hereinafter set forth.

 1. Pretrial delay.

 On November 1, 1974, after extensive pretrial hearings, the Court denied the motions of Clark, Christian, and Griffin to dismiss the indictment based upon pretrial delay, and delivered oral findings of fact and conclusions of law with respect to those matters. We shall review the substance of those findings and conclusions.

 The factual framework upon which we based our conclusions may be summarized as follows:

 1. On February 8, 1973, incidents occurred at the home of Ernest Kelly, Sr., 5769 Kemble Avenue, Philadelphia, Pa., and at the Continental Bank, Broad Street and Nedro Avenue, Philadelphia, Pa., from which arose the instant federal prosecution. Christian and Griffin were arrested inside the Kelly home on the afternoon of February 8, 1973; Clark was not arrested on that date.

 2. On or about March 1, 1973, at a meeting in Philadelphia between representatives of the United States Attorney's office, Washington, D.C., and the Philadelphia Police Department, the name of John Clark was suggested as a suspect in the February 8, 1973 incident.

 3. On March 16, 1973, Ernest Kelly, Sr., and Thelma Kelly, his wife, were shown a photospread by Detective English of the Philadelphia Police Department; each identified the photograph of John Clark, who was still at large, as the fifth man involved in the February 8, 1973 incident. Detective English thereupon swore out a complaint against Clark on state charges including aggravated robbery, kidnapping, conspiracy, burglary, violation of the Uniform Firearms Act, and carrying a concealed deadly weapon. Later that day, arrest and search warrants were signed by Municipal Court Judge Edward T. Quinn, and Clark was arrested by Detective English.

 4. On March 20, 1973, Clark began serving a fifteen year sentence imposed by Judge Ditter of this Court in an unrelated case, Criminal No. 71-163.

 5. On March 21, 1973, Assistant United States Attorney Percy H. Russell, Jr., of the office of the United States Attorney in Washington, D.C., presented the testimony of Ernest and Thelma Kelly to a grand jury in Philadelphia. Both of the Kellys testified with respect to the participation of Clark in the incident of February 8, 1973.

 6. On July 11, 1973, unindicted co-conspirator Thomas Clinton died, apparently of natural causes.

 7. On August 24, 1973, the indictment in the instant case was lodged against the defendants.

 8. On September 5, 1973, Herbert Fisher, Esq., was appointed to represent Clark in these proceedings. Fisher entered his appearance on September 12, 1973.

 9. On September 5, 1973, Christian and Griffin failed to appear for arraignment on the indictment.

 10. On September 25, 1975, Jeffrey Miller, Esq., the Assistant United States Attorney charged with the prosecution of this case, wrote to Fisher and suggested the possibility of a conflict in Fisher's representation of Clark, because Richard Dabney, a co-defendant, was represented in another criminal action in this Court by Herman Bloom, Esq., a partner of Fisher.

 11. On September 28, 1973, Edward H. Weis, Esq., appointed counsel for Dabney, advised the Court in writing that the Defender Association of Philadelphia, with which Weis was associated, represented Clark in another matter which was the subject of a petition under 28 U.S.C. § 2255.

 12. Between September 28 and October 1, 1973, Fisher withdrew as counsel for Clark because of potential conflict.

 13. On October 1, 1973, Andrew Gay, Esq., was appointed to represent Clark. Gay filed an entry of appearance on October 3, 1973.

 14. On October 3, 1973, Miller notified the Court in writing that William Christian and John Griffin had been arrested by the Federal Bureau of Investigation in Jacksonville, Florida.

 15. On that same date, Weis wrote to the Court requesting a continuance of the trial date from October 29, 1973, when it was originally scheduled, until a date after November 12, 1973, because of Weis' impending marriage and wedding trip. A copy of this letter went to Fisher, but not to Gay, whose entry of appearance was filed on the same day the letter was written.

 16. At some time between October 3 and October 28, 1973, Robert Meistering, Deputy Clerk of this Court, telephoned Gay and continued the trial as to Dabney and Clark. Gay did not formally object to this continuance, which was at the request of Weis, then counsel of record for Dabney.

 17. On or about October 12, 1973, Christian and Griffin, who had been apprehended in Jacksonville, Florida, were taken to the District of Columbia, where they faced murder charges.

 18. On October 25, 1973, this Court appointed Charles Burr, Esq., to represent Christian, and David Creskoff, Esq., to represent Griffin.

 19. At some time between October 25, and October 29, 1973, Charles Burr, Esq., withdrew due to a conflict; between October 25 and November 7, 1973, David Creskoff, Esq., also withdrew.

 20. On October 29, 1973, Eugene Clarke, Esq., was appointed to represent Christian, but declined this appointment prior to November 7, 1973, because of his previous representation of Ernest Kelly.

 21. On November 7, 1973, James Binns, Esq., and Mark Dolin, Esq., were appointed to represent Christian and Griffin, respectively.

 22. On November 10, 1973, Fred Davis died. Davis was purportedly an exculpatory witness in this matter.

 23. On November 15, 1973, Clark wrote a letter to this Court, which the government concedes to be a request for a speedy trial (N.T. 93, June 26, 1974).

 24. In late November or early December, 1973, the prosecuting authorities in the District of Columbia asked for a continuance of the murder case scheduled to be tried in that forum; the case was continued from January to February, 1974.

 25. On December 5, 1973, Christian and Griffin were arraigned before Magistrate Leomporra on the instant indictment. Both defendants stood mute during the arraignment, and not guilty pleas were accordingly entered as to each.

 26. On December 13, 1973, Clark wrote to this Court to request a speedy trial.

 27. On December 21, 1973, Christian and Griffin wrote to this Court from the Baltimore City Jail stating that they had refused to consult with their appointed counsel because they were not given sufficient time, and also stated that their lawyers did not have proper identification. They asked to be brought to Philadelphia for assignment of counsel and preparation of their defense.

  28. On December 25, 1973, Clark wrote to this Court requesting a speedy trial; the letter was mailed on December 28, 1973.

 29. In the latter part of December, 1973, Lonny Anderson, purportedly an exculpatory witness in this matter, died.

 30. On January 22, 1974, Clark wrote to Chief Judge Lord of this Court requesting a speedy trial, and sent a copy of that letter to us.

 31. On January 28, 1974, we wrote to Chief Judge Lord stating, inter alia, that Christian and Griffin did not wish to be represented by Binns and Dolin, and that these attorneys accordingly sought to withdraw; that the trial of Clark had been continued due to the arrest of Christian and Griffin in Florida, because the four defendants could be tried together; that the Washington, D.C., trial had been continued until February 11, 1974; and that the Dabney trial had been specially listed for February 19, 1974.

 32. On February 11, 1974, pretrial hearings began in the Washington, D.C., case involving Clark, Christian, and Griffin; the trial commenced one week later.

 33. In the middle of April, during the Washington, D.C., trial, we asked Jeffrey Miller, Esq., to contact the Assistant United States Attorney prosecuting that case for the purpose of determining whether Christian and Griffin had counsel in the instant case, or if they desired to have counsel appointed by us.

 34. On April 25, 1974, Miller wrote to this Court stating that Christian and Griffin had refused to discuss the selection of counsel in this matter with the prosecuting Assistant United States Attorney, and had instructed their attorneys representing them in that forum to refrain from taking any part in such selection.

 35. On May 2, 1974, we appointed Harold Randolph, Esq., to represent Christian, and Ronald Brockington, Esq., to represent Griffin.

 36. On May 9, 1974, Brockington withdrew from representation of Griffin.

 37. On May 13, 1974, Ronald McCaskill, Esq., was appointed to represent Griffin. Four days later, before McCaskill had commenced his representation of Griffin, he was relieved of this appointment and thereafter appointed to represent Dabney, whose trial was then in progress.

 38. On May 17, 1974, the trial of Clark, Christian, and Griffin in Washington, D.C., concluded with guilty verdicts against each of these defendants.

 39. On May 23, 1974, Harry Seay, Esq., was appointed to represent Griffin.

 40. On June 6, 1974, we held a meeting in Chambers attended by Jeffrey Miller, Esq., the prosecuting Assistant United States Attorney; Andrew Gay, Esq., counsel for Clark; Harry Seay, Esq., counsel for Griffin; and Harold Randolph, Esq., counsel for Christian. Trial was scheduled for July 12, 1974.

 41. On July 5, 1974, the United States Attorney's office notified us that a letter had been received from Samuel Dershaw, M.D., recommending a three-month postponement of the trial because of the delicate health of the Kellys.

 42. On July 10, 1974, we held a hearing, and testimony was taken from Dr. Dershaw, and from Ernest Kelly, Sr. The trial was continued until October 7, 1974.

 43. On September 7, 1974, Emily Jackson, apparently also known as Emily Burnett, died. On October 1, 1974, James Kennedy also died. Clark contends that these persons would have appeared as exculpatory witnesses.

 44. On October 7, 1974, hearings on pre-trial motions were held in open Court. When Ernest Kelly testified that he had been subjected to threats with respect to his appearance as a prosecution witness the trial was continued, and we ordered an investigation to be undertaken by authorized federal agencies.

 45. On October 21, 1974, pretrial hearings resumed; the pretrial motions were adjudicated; thereafter the trial commenced on November 4, 1974 and culminated in a guilty verdict which was returned by the jury on November 22, 1974.

 In conformity with the relevant case law, we shall separately discuss the claims with respect to asserted delay before and after the federal indictment. Since we have extensively reviewed the law in this area in the prior Opinion and Order denying Dabney's motion for a new trial, 393 F. Supp. 529 (E.D.Pa.1975), we will limit our discussion to the broad contours of the law as they have evolved in this area.

 a. Pre-indictment delay

 The Sixth Amendment right to a speedy trial does not attach prior to indictment or arrest, United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). Similarly, the provisions of Rule 48(b) of the Federal Rules of Criminal Procedure are clearly limited to post-arrest situations, United States v. Marion, supra, 404 U.S. at 319, United States v. Dukow, 453 F.2d 1328 (3d Cir. 1972), cert. den. 406 U.S. 945, 92 S. Ct. 2042, 32 L. Ed. 2d 331.

 An arrest on state charges, under the circumstances presented by this case, does not trigger any Sixth Amendment rights with respect to federal charges which may follow. "It would be absurd in the extreme if an arrest on one charge triggered the Sixth Amendment's speedy trial protection as to prosecutions for any other chargeable offenses", United States v. DeTienne, 468 F.2d 151, 155 (7th Cir. 1972), although "if the crimes for which a defendant is ultimately prosecuted really only gild the charge underlying his initial arrest and the different accusatorial dates between them are not reasonably explicable, the initial arrest may well mark the speedy trial provision's applicability as to prosecution for all the interrelated offenses", Id. at 155. In the instant case, the state charges included aggravated robbery, kidnapping, conspiracy, burglary, violation of the Uniform Firearms Act, and carrying a concealed deadly weapon, some or all of which offenses could clearly be completed by acts which took place at or near the Kellys' home, and are thus independent of the federal bank robbery offense which constitutes the basis for the instant indictment. *fn3"

 Nor does an arrest on state charges trigger the provisions of Rule 48(b), which provide for dismissal "[if] there is unnecessary delay in presenting the charge to the grand jury or in filing an information against a defendant who has been held to answer to the district court " (emphasis added).

 Thus, Clark, Christian, and Griffin can have no claims based upon the Sixth Amendment's speedy trial guarantee, nor upon Rule 48(b), for the period from February 8, 1973, the date of the incident, until August 24, 1973, the date of the instant indictment. *fn4"

  United States v. Marion, however, does permit claims based upon the Due Process clause of the Fifth Amendment for the pre-indictment period. Id., 404 U.S. at 324. As we interpret United States v. Dukow, supra, 453 F.2d at 1330, either substantial prejudice to a defendant's right to a fair trial, or delay as an intentional device by the prosecution to gain a tactical advantage over the accused, must be shown in order to make out a due process violation under the criteria of United States v. Marion.

 We stated in our oral findings and conclusions delivered on November 1, 1974 that there is not a scintilla of evidence in this record that the pre-indictment delay was "an intentional device to gain tactical advantage over the accused", United States v. Marion, supra, 404 U.S. at 324; hence, the only ground which would warrant dismissal of the indictment is that of substantial prejudice to the rights of these defendants to a fair trial.

 At the pretrial hearings in this case, defendants' primary claim of prejudice pertained to the death of unindicted co-conspirator Thomas Clinton, which occurred July 11, 1973, between the arrest of defendants on state charges and the federal indictment. We rejected this claim at the conclusion of the pretrial hearings, and we reject it now for the following reasons:

 First: At the time of Clinton's death, a mere five months had elapsed since the events of February 8, 1973, and four months since the arrest of Clark on March 16, 1973. The government simply could not be accused of inordinate delay at this point. See United States v. Anderson, 471 F.2d 201, 203 (5th Cir. 1973).

 Second: Clinton could not have been compelled to testify in these proceedings, had he chosen to assert his Fifth Amendment privilege against self-incrimination. See United States v. Lane, 465 F.2d 408, 412 (5th Cir. 1972). Clinton was named as an unindicted co-conspirator, rather than a co-defendant, only because he died prior to the federal indictment. Even if Clinton had lived, and was not named in the federal indictment, he could clearly have claimed his Fifth Amendment rights with respect to possible state prosecution.

 Third: There is no evidence of any agreement on the part of Clinton to waive his Fifth Amendment rights and to testify in these proceedings. There are no statements by Clinton, exculpatory or otherwise, in the possession of defendants, their counsel, or the government. Indeed, there is no independent evidence of any kind, other than the obviously self-serving statements of these defendants, that Clinton could or would exculpate them. Moreover, Clinton was alive for several months after the state arrest, and yet no evidence was presented which would demonstrate an attempt to preserve his testimony or, indeed, to obtain it between the date of the indictment and the time of his death.

 Thus, we are not convinced that the death of Thomas Clinton establishes the "substantial prejudice" which would warrant the dismissal of the indictment in this case.

 Defendants next argue that the delay in indictment enabled the government to indict and try the defendants on the Washington, D.C., charges, thus tactically prejudicing them in the instant case because, inter alia, they could be impeached in these proceedings by use of the prior convictions, and also were irreparably prejudiced by the publicity surrounding the Washington, D.C. case which made a fair trial in this District impossible. *fn5" We cannot agree.

 First, the law is clear that a defendant has no constitutional right to be arrested and charged with an offense.


* * * Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.

 Hoffa v. United States, 385 U.S. 293, 310, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966). See also Hunt v. United States, 456 F.2d 582, 583 (3d Cir. 1972). The authorities in this District and in the District of Columbia were free to pursue their respective investigations as they saw fit, in the absence of an intentional effort to gain a tactical advantage over the defendants by means of prejudicing their rights to a fair trial. Such a contention just cannot be sustained upon the record in this case.

 Second, the offense in Washington, D.C., occurred in January of 1973, prior to the February 8, 1973 incident which was the basis for the instant prosecution. The indictment in the Washington, D.C., case was returned on August 15, 1973, before the August 24, 1973 indictment in this case. Thus, the government quite properly proceeded to trial in that case, in which the offense and the indictment were prior in time.

 Third, the asserted prejudice from publicity and potential impeachment by reference to the Washington, D.C., convictions does not rise to the standard of substantiality under the criteria established by Marion and Dukow, to warrant dismissal of the indictment.

 We took great pains, during the course of nine days of jury selection, to exclude potential jurors who had been exposed to the Washington, D.C., incident and the subsequent trial, even when they did not specifically connect these defendants with the episode; when such exclusion was requested by defendants, we granted it, even though we could justifiably have denied such requests, because of the prospective juror's lack of knowledge of the incident.

 With respect to the impeachment question, the law is clear in this Circuit that while the government may seek to impeach a defendant by prior conviction of a felony, or of a misdemeanor amounting to crimen falsi, such evidence is not automatically admissible, but is subject to the discretion of the trial judge, who may exclude it if its probative value is outweighed by the prejudicial effect upon the defendant, United States v. Greenberg, 419 F.2d 808, 809 (3d Cir. 1969). In the instant case, we expressly and absolutely excluded from consideration by the jury any reference to the Washington convictions, a decision in which the government concurred. Moreover, the government agreed not to cross-examine the defendants with respect to the Washington convictions if they did decide to take the stand. (N.T. 36, November 12, 1974.) If the defendants did not wish to rely upon this representation by the government, they could have asked the Court for a ruling on the impeachment issue prior to giving testimony. This they did not do. Moreover, in the face of the clear representation of the Assistant United States Attorney in this regard, had he violated that agreement, a mistrial which could have been dispositive of the case, would have been ordered by us. Under the circumstances, therefore, we find any asserted injury from the threat of impeachment not only to be too speculative to establish the "substantial prejudice" which is required under Marion and Dukow,6 but to be utterly without merit under the facts of this case.

  For these reasons, we reaffirm our decision denying defendants' motion to dismiss this indictment based upon asserted pre-indictment delay.

 b. Post-indictment delay

 In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Supreme Court established four guidelines which control the determination of speedy trial motions: (1) the length of the alleged period of delay, (2) the defendant's assertion of the right, (3) the reason for the delay, and (4) the prejudice to the defendant.

 Each of these factors shall be considered separately.

 (1) Length of the delay.

 The total time from the indictment until October 21, 1974, was approximately fourteen months.

 (2) Defendants' assertion of the right.

 Clark first asserted the right to a speedy trial in a letter to the Court dated November 15, 1973. Christian and Griffin first asserted the right in a letter dated December 21, 1973.

 (3) The reasons for the delay.

 With respect to Clark, the delay from indictment until the original trial date of October 29, 1973, amounted to slightly more than two months, and was well within the normal period for trial preparation.

 Christian and Griffin were fugitives until their arrest in Florida on October 2, 1973.

 The delay from October 29, 1973, until February 11, 1974, occurred for the following reasons: (1) on October 3, 1973, Edward Weis, Esq., then counsel for Dabney, wrote to the Court requesting a continuance until after November 12, 1973, because of his impending marriage and wedding trip. (2) Counsel for Clark, when informed of the subsequent continuance by telephone, did not register any objection. (3) After the arrest of Christian and Griffin in Florida, the government desired to try all of the four defendants at one trial. We made repeated efforts to secure court-appointed counsel for Christian and Griffin. After several withdrawals, the Court finally appointed James Binns, Esq., and Mark Dolin, Esq., experienced members of the trial bar. Christian and Griffin, however, refused to confer with them at their arraignment on December 5, 1973, nor would they do so, despite attempts by these lawyers to undertake the representation. Thus, the appointment of counsel had not been resolved by the end of January, 1974, the eve of the trial in Washington, D.C.

 The delay from February 11, 1974, until May 17, 1974, was necessitated by the trial of these defendants on murder charges in Washington, D.C. The delay from May 17, 1974, until July 10, 1974, permitted completion of post-trial matters in Washington, D.C., and allowed defendants an opportunity to consult with their counsel in this District. We attempted to appoint counsel for Christian and Griffin during the Washington, D.C. trial, notwithstanding the refusal of these defendants to take any action, or to permit their Washington lawyers to take any action, in response to the Court's inquiries. On May 2, 1974, Harold Randolph, Esq., was appointed to represent Christian; on May 23, 1974, Harry Seay, Esq., was appointed to represent Griffin. A meeting of counsel was held in Chambers on June 6, 1974, at which time the trial was scheduled for July 12, 1974. Harry Seay first consulted with Griffin on June 13, 1974; Harold Randolph first saw Christian the following day.

 The continuance from July 12, 1974 until October 7, 1974, was at the request of the government due to the health of prosecution witnesses.

 The short continuance from October 8, 1974 until October 21, 1974 was granted to allow an investigation into alleged threats to the family of Ernest Kelly, the chief prosecution witness, and to accommodate the trial schedule of Mr. Seay.

 (4) Prejudice to the defendants.

 Among the factors to be considered in weighing possible prejudice to the defendants are (1) oppressive pretrial incarceration, (2) anxiety and concern, and (3) impairment of the defense, Barker v. Wingo, supra, 407 U.S. at 532-533. None of these factors warrants dismissal of the indictment in the instant case, particularly when put in the proper perspective with respect to the length of delay and the reasons for that delay.

  Oppressive pretrial incarceration is clearly not a significant factor in this case. Clark was arrested on state charges on March 16, 1973, and began serving a fifteen year federal sentence four days later. Christian and Griffin were incarcerated in connection with the offenses charged in the Washington, D.C., case from the date of their arrest in Florida on October 2, 1973, until the present time. Thus, each of these defendants would have been incarcerated during the entire period of these proceedings even if the instant indictment had never been returned.

  Nor is anxiety a real factor in this case. Whatever emotional problems these defendants may have encountered, if any, certainly were more clearly attributable to the prior indictment in Washington, D.C., which charged them with multiple murders, offenses which are far more serious than the bank robbery which is the basis for the indictment in this case.

  With respect to the impairment of their defense, the defendants present a myriad of claims, none of which is substantial or credible. We shall deal with all of these claims.

  All defendants claim prejudice from the death of Lonny Anderson in the latter part of December, 1973. There is, however, not a shred of evidence, other than the palpably self-serving statements of these defendants, that Lonny Anderson knew anything at all about the events in question in this case; indeed, there is no independent evidence that Anderson was other than an individual known to the defendants who happened to have conveniently died during the pretrial period. There are no statements by Anderson in the possession of the defendants or their counsel, and no indication that any effort was made to procure such statements, notwithstanding the fact that he lived for several months after the state charges were lodged, as previously noted. Indeed, the government has no information about Lonny Anderson's connection with, or knowledge, of any of the matters in issue in this case. The testimony of the defendants is completely uncorroborated and inherently implausible. Defendants have every reason to fabricate such a story in an attempt to secure dismissal of the indictment in this case.

  Similar reasoning applies in the case of Fred Davis, who died on November 10, 1973, and who Clark claims would have impeached the identification testimony of Ernest Kelly. Again, there is no independent evidence that Fred Davis was present at the meeting at which Kelly purportedly made statements that were inconsistent with his testimony at the trial, or that Clark was unable to locate any of the other persons who were also purportedly at the Mosque on that occasion. *fn7" See United States v. Childs, 415 F.2d 535, 539 (3d Cir. 1969).

  Clark makes the same claim with respect to the death of Emily Jackson, apparently also known as Emily Burnett, on September 7, 1974, and James Kennedy, on October 1, 1974, and the purported deaths of Marvin Grier and Charles Robinson. He also claims that one Country Davis, an associate of Ernest Kelly, could have testified in his behalf, had he been located prior to trial. Again, there is not the slightest corroboration of these claims.

  The only conclusion which we are able to reach from this tale of death and disappearance is that defendants' associates have a convenient and abnormally high mortality rate. We must agree with the Court in United States v. Research Foundation, 155 F. Supp. 650, 655 (S.D. N.Y. 1957) when it rejected a similar contention:


* * * this move to dismiss the indictment may perhaps be regarded as a post mortem alibi. It is based on the alleged facts that all of the defense witnesses have died or are missing * * *. There is some basis for believing that, by thus casting deceased persons in exculpatory roles, defendants hope to snatch a defense out of the jaws of death. The tactical theory behind this apparent maneuver is familiar: dead men tell no tales.

  We must also conclude that Clark's claim of missing evidence is woven upon the same loom out of the same flimsy fabric. We took testimony from the Philadelphia Police and members of the staff of the United States Attorney in the District of Columbia, and we are satisfied as to the chain of custody of the evidence and the good faith of the government. Again, there is no showing of necessity to the defense, since at least one corroborative witness, one Geraldine Sistrone, was apparently available and was never called, and defendant himself testified that he had an independent recollection of the events in question, and, of course, he chose not to testify with respect to them.

  In summary, we engaged in the "difficult and sensitive balancing process" mandated by the Court in Barker v. Wingo, supra, mindful of the fundamental rights of these defendants to a speedy trial. Id., 407 U.S. at 533. We conclude that none of these defendants was denied a speedy trial, nor, for the reasons previously discussed, were they denied due process or any rights under Rule 48(b). Accordingly, we reaffirm our prior rejection of the motions to dismiss the indictment.

  2. Severance

  Defendants claim that a new trial should be granted because the Court abused its discretion in refusing to sever the trial of Clark from that of Christian and Griffin. Clark argues that Christian and Griffin were arrested in the Kellys' home on February 8, 1973; that he was not arrested until some weeks later; and that the government's case therefore rested upon identification testimony by the Kellys. Hence, he states his trial should have been severed from that of the two co-defendants to avoid a "bandwagon effect". Christian and Griffin argue that since they were arrested in the Kellys' home, while Clark and Dabney accompanied Ernest Kelly to the bank, a severance should have been granted because of the jury's inevitable consideration of the evidence against Clark and Dabney in their deliberations with respect to Christian and Griffin. We find these arguments totally frivolous.

  Initially, we note the general rule that persons jointly indicted should be tried together, except on a strong showing of prejudice. United States v. Boyance, 30 F.R.D. 146, 147 (E.D. Pa. 1962). The burden falls upon the defendant to make such a showing. United States v. Lipowitz, 407 F.2d 597, 601 n. 15 (3d Cir.1969), cert. den. 395 U.S. 946, 89 S. Ct. 2026, 23 L. Ed. 2d 466. The fact that defendants might have had a better chance of acquittal if separately tried is, in and of itself, plainly insufficient to justify severance. United States v. Cassino, 467 F.2d 610, 622-623 (2d Cir. 1972), cert. den. 410 U.S. 913, 93 S. Ct. 957, 959, 35 L. Ed. 2d 276, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 590, 410 U.S. 942, 93 S. Ct. 1363, 35 L. Ed. 2d 608. Particularly in conspiracy cases, in which a charge against the defendants may be proven for the most part, by the same evidence, a severance should not be granted, except when there are extenuating circumstances; United States v. Boyance, supra, 30 F.R.D. at 148. Conflict among defendants in conspiracy trials is common, and a severance should not be granted when this is the sole ground alleged, United States v. Abrams, 29 F.R.D. 178, 182 (S.D. N.Y. 1961).

  Applying these general principles of law to the facts of the instant case, we find that Clark, Christian, and Griffin were all charged with the same offenses in the same counts of the indictment. Each of these defendants was charged with conspiracy in Count I, and each was charged with aiding and abetting the violation of the federal bank robbery statute by Dabney in Counts III, V, and IX. The fact that Christian and Griffin may have remained behind at the Kellys' home while Clark accompanied Ernest Kelly to the bank, or the fact that there was no identification of Clark by police officers, but by the Kellys alone, fall far short of the "strong showing of prejudice" required to grant a severance. Since the matter of a severance is committed to the discretion of the trial court, United States v. Lipowitz, supra, 407 F.2d at 599, and the defendants have failed to meet the burden imposed upon them by the law, we conclude that the denial of a severance was not an abuse of discretion, and we again reaffirm our prior denial of this motion.

  3. Change of venue

  Defendants next argue that we erred in refusing to grant a change of venue when the appropriate motions were made prior to trial, or when these motions were renewed during the process of jury selection. We do not agree.

  With respect to the pretrial motions for change of venue, the law in this Circuit is well established that such motions are premature prior to voir dire of the prospective jurors. In United States v. Addonizio, 313 F. Supp. 486, 493 (D.N.J. 1970), aff'd 451 F.2d 49 (3d Cir. 1972), cert. den. 405 U.S. 936, 92 S. Ct. 949, 30 L. Ed. 2d 812, Judge Barlow outlined the correct procedure for the District Court when confronted with motions for change of venue based upon alleged adverse pretrial publicity; his analysis was subsequently adopted by the Court of Appeals for the Third Circuit, 451 F.2d at 61:


* * * While the volume of such publicity resists precise definition, it was clearly both extensive and intensive. Even, however, accepting that characterization of the pre-trial publicity herein, this court is not persuaded that that fact alone necessarily precludes the possibility of selecting a fair and impartial jury for the trial of this indictment. Indeed, it has been recently held that publicity associating criminal defendants with "the Mafia" is not, per se, prejudicial. See Patriarca v. United States, 402 F.2d 314 (1st Cir., 1968), cert. denied, 393 U.S. 1022, 89 S. Ct. 633, 21 L. Ed. 2d 567 (1969); United States v. Corallo, 281 F. Supp. 24 (S.D. N.Y., 1968).


To presume, in advance of the voir dire examination of the prospective trial jurors, that the extent of the pre-trial publicity in this case negates the selection of a fair and impartial jury represents a premature and unwarranted supposition. This court is satisfied that a properly conducted voir dire will adequately protect the rights of these defendants to a fair trial. See United States v. Wolfson, 294 F. Supp. 267, 274 (D.Del., 1968). If the voir dire disproves this assumption, the relief requested could then be reconsidered. * * * Id., 313 F. Supp. at 493-494.

  Thus, we conclude that the motions for change of venue in advance of voir dire were properly denied.

   Conceding that the pretrial motions for change of venue may have been premature, defendants nonetheless argue that the voir dire actually conducted in this case established the soundness of their original contentions, and that a new trial should be granted in another District. We reject those contentions.

  The Court in United States v. Farries, 328 F. Supp. 1034, 1037 (M.D. Pa. 1971), aff'd 459 F.2d 1057 (3d Cir. 1972), confronted a similar situation in prosecutions arising out of disturbances at Lewisburg Penitentiary in 1970. In concluding that defendants were tried by a fair and impartial jury, Judge Muir discussed several considerations which are equally applicable in the instant case:


Defendants are Black Muslims. They argued that their religious beliefs precluded their obtaining a fair trial in Lewisburg. Thus, it was argued that since there were no adherents of the Black Muslim faith in this area, the particular problems and views of this group could not be objectively evaluated. Additionally, it was argued that since the United States Penitentiary was a key economic factor in the area, an impartial jury could not be impaneled.


The ultimate question is whether it was possible in Lewisburg to select a fair and impartial jury. Blumenfield v. United States, 284 F.2d 46, 51 (8th Cir. 1960). The time for determination of this question is upon the voir dire examination. The record in this case will reflect that (1) an extensive and comprehensive examination was made of each individual member of the panel by the Court; (2) few of the prospective jurors had any prior knowledge of the case; (3) the Court allowed the defense great latitude with respect to its challenges for cause when a prospective juror was in any way connected with the United States Penitentiary, and (4) the Court permitted the defense a number of peremptory challenges unparalleled in this district. While counsel at argument talked in terms of a "feeling of prejudice", the records clearly indicate that no actual prejudice existed.

  In the instant case, we conducted an extensive, exhaustive and comprehensive voir dire examination of potential jurors which lasted nine days as reflected in the 1,449 pages of the record devoted to this aspect of the trial. We have carefully reviewed that transcript and again unequivocally conclude that a fair and impartial jury was in fact selected.

  During the first days of jury selection, a large number of jurors were stricken for cause because of exposure to certain newspaper articles discussing the instant case and the prior Washington convictions. After this incident, however, the Court admonished members of the panel to avoid news media, and the problem was brought under control.

  Great latitude was extended to defense counsel with respect to challenges for cause based upon knowledge of the instant case, exposure to the prior Washington convictions, prejudice against Black Muslims or black persons in general, and, indeed, whenever the slightest question arose as to the inability of a prospective juror to fairly and impartially serve in this case. Moreover, based upon our review of the record, we have found only one instance in nine days in which the Court denied a motion to strike a prospective juror for cause based upon exposure to pretrial publicity. *fn8"

   In Farries, each defendant was allowed four peremptory challenges. In the instant case, each defendant was allowed six, and the government six.9

  Under the circumstances, therefore, we are satisfied that the extensive voir dire and the liberal allowance of challenges for cause, which went far beyond the standards established by the decisions, enabled the defendants to choose from a jury panel that was not only free from bias and prejudice, but also from exposure to any pretrial publicity which could be considered even to be remotely prejudicial to defendants. Moreover, the allowance of a total of eighteen peremptory challenges among the three defendants permitted them to exclude those potential jurors whom they thought may have harbored some hidden ill will or prejudice which did not appear on the record. For these reasons, the motions for change of venue were properly denied. We are convinced that the exhaustive and painstaking procedure in jury panel selection gave all of the defendants every possible protection and benefit of any doubt.

  II. Jury Selection

  Defendants next raise several challenges to the manner of jury selection.

  Two of these claims have been discussed at length in a prior portion of this Opinion: (1) the assertedly pervasive character of pretrial publicity concerning this case and the Washington convictions, and (2) the alleged failure of the Court to fully explore the prejudices of potential jurors against members of the Black Muslim faith. For the reasons previously discussed, we conclude that the extensive voir dire adequately neutralized the effects of pretrial publicity, and effectively excluded potential jurors who were prejudiced against Black Muslims. It would be supererogation to repeat those reasons.

  Defendants also claim that the use of voter registration lists from which potential jurors were selected for service excludes Black Muslims, who assertedly do not register to vote because of the tenets of that religion. We have previously considered and rejected such a claim, and we reaffirm our earlier action.

  Initially, we note that there exists a procedural impediment to this challenge in the provisions of the Jury Selection and Service Act of 1968, Pub. L. 90-274, Mar. 27, 1968, 28 U.S.C. § 1861 et seq. Section 1867 provides as follows, in pertinent part:


(a) In criminal cases, before the 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.


* * *


(d) Upon motion filed under subsection (a) * * * of this section, containing a sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions of this title, the moving party shall be entitled to present in support of such motion the testimony of the jury commission or clerk, if available, any relevant records and papers not public or otherwise available used by the jury commissioner or clerk, and any other relevant evidence. * * * If the court determines that there has been a substantial failure to comply with the provisions of this title in selecting the petit jury, the court shall stay the proceedings pending the selection of a petit jury in conformity with this title.


(e) The procedures prescribed by this section shall be the exclusive means by which a person accused of a Federal crime * * * may challenge any jury on the ground that such jury was not selected in conformity with the provisions of this title. * * *

  These provisions of the statute have been strictly construed. In United States v. Rickus, 351 F. Supp. 1386, 1388 (E.D. Pa. 1972), aff'd 480 F.2d 919, cert. den. 414 U.S. 1006, 94 S. Ct. 365, 38 L. Ed. 2d 243 (1973), the Court was faced with a challenge to the jury panel based upon exclusion of persons within the ages of 18 and 25, and underrepresentation of blacks:


* * * 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 there is no indication that defense counsel made his motion within the limits of the statute.


It is clear from reading the legislative history of the bill that Congress set up the time limitations to reduce the possibility of challenges to the jury for delaying purposes only. The legislative history as stated in 1968 U.S. Code Cong. and Adm. News, p. 1805, is as follows:


The new section 1867 establishes the procedure for challenging compliance with the act in the selection of both grand and petit juries. The Attorney General and the defendant in criminal cases, and both parties in civil cases, are allowed to challenge the selection procedures. But the provisions of the bill are designed to reduce the possibility that such challenges will be used for dilatory purposes.


First, the bill sets time limitations upon the availability of challenges. Subsections (a), (b), and (c) specify that challenges must be offered before the voir dire begins. And if the challenging party discovered, or in the exercise of diligence could have discovered, the grounds for the challenge earlier, the challenging motion must be made within 7 days of the earlier date.

  In the instant case, defense counsel first raised this issue on the day when jury selection began, before the commencement of voir dire. *fn10" All counsel, however, had known of the Black Muslim affiliations of their clients for several months prior to November of 1974. It is likely, therefore, that counsel discovered, or in the exercise of diligence could have discovered, the grounds for the challenge prior to the date when the oral motion was in fact made. Under a strict reading of the statute, in light of the legislative history cited in Rickus, supra, it is probable that the oral motion was untimely and therefore barred. However, we shall assume, most favorably to the defendants, that the date when jury selection began, was the first point in time when their counsel discovered, or in the exercise of diligence could have discovered, that members of the Black Muslim faith did not choose to register to vote, and accordingly were not represented on the lists from which jury panels are called.

  Even if we assume that the motions were timely when made, *fn11" defendants face yet another procedural obstacle in their challenge to the jury panel. As noted supra, § 1867 requires that a sworn statement of facts be filed with the motion challenging the jury panel. This requirement has also been strictly construed by the Courts. In United States v. Jones, 480 F.2d 1135, 1139 (2d Cir. 1973), the Court stated:


Prior to the selection of the jury appellants moved to strike the jury panel "on the grounds that blacks and other minority members of the population were not adequately represented on the jury panels, and that * * * the method of selection of jurors in this district is inadequate to accomplish the goals of the Federal Jury Service and Selection Act of 1968 * * *." They made an offer of proof and requested permission to subpoena witnesses, but did not file a motion "containing a sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions of this title", as required by 28 U.S.C. § 1867(d). Section 1867(e) provides that, "The procedures prescribed by this section shall be the exclusive means by which a person accused of a Federal crime * * * may challenge any jury on the ground that such jury was not selected in conformity with the provisions of this title." Compliance with these express statutory requirements is necessary to question the validity of a plan adopted and approved pursuant to the Jury Selection and Service Act. (footnotes omitted)

  See also United States v. James, 453 F.2d 27, 29 (9th Cir. 1971).

  In the instant case, no sworn statement in support of the motion was ever filed by counsel for any defendant. Under the cases cited supra, therefore, the challenge to the jury panel is barred.

  Even if we assume, however, that literal compliance with the requirements of the statute should be excused under the facts of the case at bar, *fn12" an issue which we expressly decline to decide, the law in this Circuit is clear that defendants must fail on the merits of their challenge to the jury panel.

  In United States v. Lewis, 472 F.2d 252, 256 (3d Cir. 1973), the Court considered and rejected a challenge to the use of voter registration lists as the sole source of jurors, when that challenge was based upon the assertion that blacks in the divisions did not register to vote and the registration lists were accordingly unrepresentative of the community as a whole:


In reviewing challenges to an approved plan (28 U.S.C. § 1863(a)), we "require that prospective jurors be selected 'without systematic and intentional exclusion' of any group." United States v. Zirpolo, 450 F.2d 424, 428 (3d Cir. 1971); Dow v. Carnegie-Illinois Steel Corp., 224 F.2d 414, 423-24 (3d Cir. 1955), cert. denied, 350 U.S. 971, 76 S. Ct. 442, 100 L. Ed. 842 (1956). Similarly, the Fifth Circuit in Camp v. United States, 413 F.2d 419, 421 (5th Cir.), cert. denied, 396 U.S. 968, 90 S. Ct. 451, 24 L. Ed. 2d 434 (1969) stated:


Use of [voter registration] lists as the sole source of names for jury duty is constitutionally permissible unless this system results in the systematic exclusion of a "cognizable group or class of qualified citizens." (emphasis added).


Therefore, the defendant must establish that blacks in the Pittsburgh Division choosing not to register to vote were a "cognizable group" which were "systematically excluded".


In Camp the Fifth Circuit further stated at 421:


[The Fifth Circuit] and [other courts] have held that those who do not choose to register to vote cannot be considered a 'cognizable group.' [citations omitted]. The fact that some persons may from religious conscience or otherwise choose not to register to vote, does not, in our view, convert that subclass of nonvoters into a "cognizable group."


We likewise hold that a group of persons who choose not to vote do not constitute a "cognizable group." Further, their non-registration is a result of their own inaction; not a result of affirmative conduct by others to bar their registration. Therefore, while a fairer cross section of the community may have been produced by the use of "other sources of names ", the Plan's sole reliance on voter registration lists was constitutionally permissible. (footnotes omitted)

  While the Lewis case did not deal with the question of nonrepresentation of those persons who for religious reasons choose not to register to vote, the quoted portion of the Camp opinion from the Fifth Circuit makes it clear that "[the] fact that some persons may from religious conscience or otherwise choose not to register to vote does not * * * convert that subclass of nonvoters into a 'cognizable group'".

  The issue of the representativeness of jury panels is a difficult one, and the law may be in a state of flux. See generally Judge Gewin's very scholarly analysis of federal jury selection law, attached as an appendix to the Fifth Circuit's recent decision in Foster v. Sparks, 506 F.2d 805, 811-837 (5th Cir. 1975). At the present time, however, we are bound by the law as stated in Lewis, and we hold that the instant challenge, which is predicated upon the voluntary election of Black Muslims to decline their right to register to vote because of their religious convictions that prompt them, of their own free choice, to refrain from registering, must fail on the merits.

  Defendants raise one further challenge to the manner of jury selection in this case. Because of the unfortunate exposure of a number of members of the original panel to newspaper articles concerning this case and the prior Washington convictions, it was necessary to summon additional jurors according to Section 10 of the Jury Selection Plan of the United States District Court for the Eastern District of Pennsylvania, approved September 23, 1968, as amended, February 20, 1973. Section 10 provides as follows:


(a). Pursuant to 28 U.S.C., 1866(f), when there is an unanticipated shortage of available petit jurors for the trial of any case, the Court may order the Marshal to summon a sufficient number of petit jurors, selected at random from a prepared list, to fill the required emergency needs of the Court. Said list shall be prepared by the Clerk by selecting at random the names of jurors from the qualified jury wheel and then determining by written inquiry to the jurors so drawn whether or not said jurors would be available for service on short notice.


(b). The following random selection procedure will be used to select names from the qualified jury wheel for the short notice list:

   (i). Total number of names in the qualified jury wheel / Total number of = Stated names required to Increment adequately supply short notice jurors


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