APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before Weis, Van Dusen and Higginbotham, Circuit Judges.
On October 6, 1979, Gaetano Alessandrello and Salvatore Lacognata were convicted of violating the federal bank robbery statute, 18 U.S.C. § 2113(a), (b), and (e) (1976), and the conspiracy statute, 18 U.S.C. § 371 (1976). They challenge their convictions on appeal, asserting that their rights were violated by their exclusion from a portion of the jury selection process. They also contend that there was insufficient evidence that they took money which was in the control of a bank from the person or presence of another. They further argue that there was insufficient evidence of intent to rob a bank. Finally, they allege that the trial court erred in denying their request for an indefinite continuance, and in admitting certain items into evidence. After reviewing the record in this case in light of the applicable law, we affirm.
Alessandrello and Lacognata were charged in a four-count indictment returned August 6, 1979. Three others were named as co-conspirators and co-defendants.*fn1 Count One charged the defendants with conspiring to rob a bank in violation of 18 U.S.C. § 2113(a), (b), and (e). Count Two charged the defendants with using force and violence in robbing a bank. 18 U.S.C. § 2113(a). Count Three charged them with taking and carrying away with intent to steal money in the control of a bank. 18 U.S.C. § 2113(b). Count Four charged them with forcing a person to accompany them in committing the above offenses. 18 U.S.C. § 2113(e). The evidence adduced at trial, through 45 Government witnesses, including one co-conspirator, showed that Alessandrello and Lacognata planned the criminal venture and enlisted three acquaintances to help execute it. On July 20, 1979, three of the co-conspirators went to the Dedrick family home in Newfoundland, New Jersey, and forcibly removed Joan Dedrick from the house. They bound and blindfolded her, placed her in a box, and drove her to the apartment of one of the co-conspirators. They then asked for her husband's telephone number at the bank. William Dedrick, executive vice-president of the Franklin Bank in Paterson, New Jersey, received a telephone call from them on his private office line. He was told that his wife was being held, and heard her voice briefly. He was then told to get $150,000 in small, unmarked bills and take it to a telephone booth across the street from the bank in 15 minutes. Dedrick went to the designated booth and received a call directing him to another phone booth. At the second booth he received a call telling him there were too many police officers in the area. Dedrick returned to the bank. A few hours later he received another telephone call and was instructed to get $300,000. When he protested that there was not that much money in the bank, the caller reiterated the larger amount and threatened to kill Dedrick's wife if he did not deliver the money. The next day Dedrick received another phone call. He was told to place the money in a shopping bag inside a briefcase and wait for further instructions. Dedrick stuffed $217,000 into a suitcase and a bag. Shortly thereafter, he was directed to take the money to a telephone booth at a certain location in New York City. He complied; at that booth he was called and told to proceed to another phone booth. After a series of similar steps, he was finally directed back to New Jersey and ordered to leave the money in a wooded area in Fort Lee. He did so, and returned to his home. Approximately one and one-half hours later the money was retrieved from the wooded area by the defendants. Mrs. Dedrick was released, still blindfolded, at a gas station in Teaneck, New Jersey. The defendants were arrested a short time later.
The trial commenced on September 25, 1979. A jury was selected and sequestered. The Government began presenting testimony on September 26 and rested on October 5. The defendants moved for judgments of acquittal on each count. After the motions were denied, the defendants rested without presenting any evidence. The case was submitted to the jury on October 6. That evening the jury returned verdicts of guilty against both defendants on each count. On November 9, the defendants were each sentenced to a five-year prison term on Count One and a concurrent general term of 21 years on Counts Two, Three and Four. It is from these judgments that they appeal.
The defendants' chief argument on appeal is that they were improperly excluded from a portion of the jury selection proceedings. These proceedings were handled in the following manner. The trial judge first addressed the pool of approximately 80 prospective jurors. He introduced all the attorneys and the defendants, and then explained the basic functions of the jury, prosecution, and defense in a criminal trial. After some further remarks about the Government's burden of proof, he described and explained the indictment. The first 16 prospective jurors were called and placed in the jury box. One at a time, each of them stood up and disclosed the following information: name; years of residence at current address; employer; length of employment; marital status; spouse's occupation, spouse's employer, length of spouse's employment; children; children's occupation and place of employment; homeowner status; hobbies or recreational interests; and level of education. The judge then continued the voir dire by posing a number of general questions to the group of 16. He asked whether any of them (1) recognized any of the defendants, attorneys, or law firms involved in the trial, (2) had ever served on a grand jury, (3) had ever served on a trial jury, (4) had ever been a witness in a criminal case, (5) had ever been a victim of a crime or was closely related to someone who had been a victim of a crime, (6) had ever been accused of a crime or was closely related to someone who had been accused of a crime, (7) had ever been employed by a law enforcement agency or was closely related to someone who had been so employed, (8) had ever been employed by the Government or was closely related to someone who had been a Government employee, (9) had any pending disputes with the Federal Government, and (10) had heard anything about this case.
Any of the prospective jurors who answered the first nine questions in the affirmative were asked follow-up questions by the judge. The judge then explained certain fundamental legal principles, such as the presumption of innocence, the requirement that each defendant be found guilty beyond a reasonable doubt, the absence of any evidentiary weight to be given to the charges and content of the indictment, etc., and questioned the prospective jurors to ensure that they could apply these principles. The judge concluded this portion of the voir dire by describing the predicted trial length of three to four weeks, the schedule of six court sessions per week, and the restrictions upon a sequestered jury. He explained that he wanted to ask a few further questions of each prospective juror, individually, in a small room adjoining the courtroom. He advised the group that anyone who wished to be excused from jury duty due to severe personal hardship should offer his or her excuse in the anteroom adjoining the courtroom. Up to this point, all the defendants, as well as their attorneys, were present during voir dire. They saw each prospective juror, and heard each question and answer.*fn2
The judge then retired to the small anteroom, accompanied by the prosecutors and defense attorneys. He explained that he wished to examine prospective jurors individually on the matter of pre-trial publicity. He stated that he wished to avoid the possibility, which never took place, of having one person blurt out something prejudicial in front of the group of prospective jurors, thereby tainting all 15 other prospective jurors. The defense attorneys objected to this procedure, stating that the defendants should be present. The judge responded that the room was so small that there was not enough room for the four defendants.*fn3 He told the defense attorneys that they were free to go out and consult with their clients as often and as long as they wished. He added that they would also have an ample opportunity after the jury pool was selected to consult with the defendants before advancing challenges for cause or peremptory challenges. While the defendants remained in the courtroom approximately 25 feet away,*fn4 the judge conducted this portion of the voir dire. Prospective jurors entered the anteroom one by one. The judge asked each of them several questions concerning his or her exposure to pre-trial publicity, as well as the effect of such exposure on the juror, and each juror was permitted to request being excused from serving on a sequestered jury during a trial estimated to last three or four weeks.*fn5
After all 16 had been examined on this topic, the judge and attorneys returned to the courtroom.*fn6 There, again in the presence of the defendants, another 16 prospective jurors were called and placed in the jury box. The voir dire proceeded as before. Each individual answered specific questions about himself. The judge asked the whole group certain general questions related to the particular case, and explained some basic legal principles. The topic of pre-trial publicity again was explored in the anteroom. The same procedure was followed a third time, with a third group of 16 prospective jurors.
After approximately 40 individuals had been found competent to sit as jurors in this case, the Government and the defense agreed upon the 16 who would sit as jurors and alternates. No challenges for cause were advanced at the end of the September 25, 1979, court day; peremptory challenges were not formally exercised.*fn7
When court convened the next morning (September 26, 1979), the court said to counsel for the defendants (N.T. 10 and 14 of Document 34 in Crim. No. 79-269, D.N.J.):
"THE COURT: You had some motions yesterday with respect to the jury. You mentioned those in chambers, you mentioned some of them as to the jurors being selected. I think if you want to preserve that you ought to put it on the record....
"MR. HOROWITZ: We objected to the procedure whereby individual members of the jury panel were interviewed by Your Honor in the anteroom outside the courtroom, outside of the presence of the defendants. The reason for that is that the defendants are entitled to exercise peremptory challenges. A peremptory challenge can be based on anything, it can be based on a gut feeling, an innate distrust, whatever. Your Honor knows. For my client not to have had the opportunity to see each and every one of those jurors as they answered the questions at close range, if you will, more pointed questions than were-and alone, as distinguished from being a member of a panel and sitting in the box in a large room, it deprived them of the opportunity to see that, to get that feeling and to communicate that to counsel, which of those jurors he would prefer having or not having."
It was immediately after this portion of the record that the trial judge and counsel for the defendants-appellants had the colloquy quoted at pages 148, 149 of the dissenting opinion.
There is no basis in this record for the inference raised by the dissent at page 150 that anything that was said by any juror during the voir dire in this case "would provide an argument that an entire group has been contaminated by what (a) juror has said." Also, neither the prospective female juror (Richardson), referred to at page 150 of the dissent, nor prospective juror No. 4 (Williams), whose testimony is quoted at page 150 of the dissent, were ultimately members of the jury or alternates (see N.T. 67 of Document 34 in Crim. No. 79-269, D.N.J.). The fears of the dissent are wholly based on what might happen in other cases and not any prejudice suffered by the defendants in this case. Even though the dissent states that there were "persistent issues of credibility as to the prospective jurors," all counsel agreed on the composition of the jury except for the alleged objection to the absence of the defendants from a small portion of the voir dire without even making a record of the number of peremptory challenges exercised. By announcing in this opinion that Criminal Rule 43 (see page 138 below) must be strictly followed in this Circuit, we accomplish the beneficent purposes of that Rule's requirement that the defendant be present at all stages of the trial, including the impaneling of the jury. See note 24 below.
Alessandrello and Lacognata contend that their absence during a portion of the voir dire violated their right to a fair trial. They claim that all defendants have a fundamental right to be present at all stages of the trial, including the impaneling of a jury. They assert that this right has a basis both in the Federal Rules of Criminal Procedure and in the Constitution. The defendants first argue that they have a due process right to be present during jury impaneling.*fn8 The Supreme Court has not addressed the precise question of whether this right is an element of due process guaranteed by the Fifth Amendment.*fn9 It has, however, stated recently that a defendant only has a constitutional right to be present at stages of the trial where fundamental fairness might be thwarted by his absence. Faretta v. California, 422 U.S. 806, 816, 95 S. Ct. 2525, 2531, 45 L. Ed. 2d 562 (1975).*fn10 See Badger v. Cardwell, 587 F.2d 968, 970-71 (9th Cir. 1978); United States v. Walls, 577 F.2d 690, 698 (9th Cir.), cert. denied, 439 U.S. 893, 99 S. Ct. 251, 58 L. Ed. 2d 239 (1978); Polizzi v. United States, 550 F.2d 1133, 1137-38 (9th Cir. 1976).
We need not reach the constitutional issue in this case, however, because defendants have an explicit, unqualified right under Rule 43 of the Federal Rules of Criminal Procedure to be present at the jury impaneling, as well as at all other stages of the trial. In adopting Rule 43, Congress explicitly intended to codify existing law concerning a defendant's constitutional and common law rights to be present throughout trial. Fed.R.Crim.P. 43, 1946 Advisory Committee Note, P 1. Rule 43 embodies the right to be present derived from the Sixth Amendment Confrontation Clause, the Due Process Clause of the Fifth and Fourteenth Amendments, and the common law privilege of presence. 8B Moore's Federal Practice P 43.02(1), at 43-67 (2d ed. 1980). Thus, the scope of Rule 43 was intended to be broader than the constitutional right. Accordingly, insofar as due process is concerned, the statutory right is at least as far-reaching as the constitutional right.*fn11 Id.; United States v. Brown, 571 F.2d 980, 986 (6th Cir. 1978); United States v. Gregorio, 497 F.2d 1253, 1257 (4th Cir.), cert. denied, 419 U.S. 1024, 95 S. Ct. 501, 42 L. Ed. 2d 298 (1974).
"The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule."
A violation of Rule 43 in some circumstances may be harmless error. Rogers v. United States, 422 U.S. 35, 40, 95 S. Ct. 2091, 2095, 45 L. Ed. 2d 1 (1975); United States v. Alper, 449 F.2d 1223, 1232-33 (3d Cir. 1971), cert. denied, 405 U.S. 988, 92 S. Ct. 1248, 31 L. Ed. 2d 453 (1972), rehearing denied, 406 U.S. 911, 92 S. Ct. 1605, 31 L. Ed. 2d 822 (1972). In Alper, the defendants were not present during supplemental instructions to the jury, although their counsel were there. No objection was raised at the time, but on appeal defendant-appellant argued that his right to be present could not be waived and was not harmless error. This court said at 1232 of 449 F.2d:
"Here, clearly, is an instance in which trial counsel must be assumed to have implied authority to receive notice of a conference respecting inquiries from the jury. The court was entitled to rely upon counsels' performance of their agency duties and to assume that appellants' absence was voluntary.
"Appellants point to United States v. Neal, 320 F.2d 533 (3rd Cir. 1963), as authority for the impropriety of instructing the jury in the absence of the defendant. The Neal case involved a supplemental instruction which in the circumstances was highly prejudicial and a dispute over whether even defendant's counsel was informed. Compare United States v. Grosso, 358 F.2d 154 (3rd Cir. 1965), reversed on other grounds, 390 U.S. 62, 88 S. Ct. 709, 19 L. Ed. 2d 906 (1968), applying the harmless error rule to an instruction, in the absence of both counsel and the defendant, to continue deliberations.... (T)he very language of the second sentence of Rule 43 recognizes that in some circumstances a trial may proceed in the absence of the defendant. The validity of the Lewis dictum must be questioned in view of the subsequent adoption of Rule 43 and of the decision in Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970)."
If there is no reasonable possibility of prejudice from the error, it is deemed harmless. United States v. Giacalone, 588 F.2d 1158, 1165 (6th Cir. 1978), cert. denied, 441 U.S. 944, 99 S. Ct. 2162, 60 L. Ed. 2d 1045 (1979); United States v. Brown, 571 F.2d 980, 987 (6th Cir. 1978); Blackwell v. Brewer, 562 F.2d 596, 599 (8th Cir. 1977); United States v. Rodriguez, 545 F.2d 829, 831 (2d Cir. 1976), cert. denied, 434 U.S. 819, 98 S. Ct. 58, 54 L. Ed. 2d 74 (1977); Wade v. United States, 142 U.S. App. D.C. 356, 441 F.2d 1046, 1050 (D.C.Cir.1971).
Defendants contend that absence from a portion of jury impaneling can never be harmless error. To support this proposition they rely on United States v. Crutcher, 405 F.2d 239, 244 (2d Cir. 1968), cert. denied, 394 U.S. 908, 89 S. Ct. 1018, 22 L. Ed. 2d 219 (1969). In Crutcher five men were charged with hijacking a truck. Two pleaded guilty while two others were scheduled for trial. Payne, the fifth defendant, remained at large. On the day the trial commenced in Connecticut, the prosecutor's office was notified that Payne had been arrested in New Jersey. An attempt to have him brought to Connecticut that day failed. The trial judge, believing it was necessary to go forward, impaneled the jury. The attorney appointed to represent Payne agreed to proceed with the jury selection in his client's absence. Payne arrived in court after the jury had been selected, but before the rest of the trial had begun. Thus, in Crutcher the defendant was absent during all of the voir dire and jury selection. The Second Circuit found that this absence violated Rule 43.*fn12
The facts in the instant case are clearly distinguishable from those in Crutcher. Alessandrello and Lacognata were not excluded from the entire voir dire ; they were present for all but one small portion of it. They saw each of the prospective jurors and heard each of them respond to questions about personal and general matters. Alessandrello and Lacognata recognize this case does not present the same circumstances as Crutcher. They point, however, to the following language in Crutcher :
"It is true that as a general rule a violation of Rule 43 does not require reversal if the record affirmatively indicates beyond a reasonable doubt that the error did not affect the verdict .... However, the court in (Chapman v. United States, 386 U.S. 18, 23 (, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705) (1967)) ... noted that some of "our prior cases have indicated that there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.' A defendant's right to be present while the jury is selected would appear to be such a right."
Id. at 244. Alessandrello and Lacognata argue that Crutcher thus set forth a rule requiring automatic reversal if the defendant is absent from any part of the jury impaneling, and they urge this court to adopt such a rule. We conclude that it would be unwarranted to apply the Crutcher rule to the facts of this case. We note that other courts, including the Second Circuit in a later case, United States v. Dioguardi, 428 F.2d 1033, cert. denied, 400 U.S. 825, 91 S. Ct. 50, 27 L. Ed. 2d 54 (1970), have affirmed convictions despite the defendant's absence from part of voir dire when the circumstances showed that the error was harmless. Accordingly, we have concluded that the harmless error test for reviewing violations of Rule 43's requirement that the defendant be present at his jury's impaneling is applicable to this record.
In Dioguardi, a case decided two years after Crutcher, the Second Circuit followed the harmless error principle. There the defendants were present in the courtroom during the impaneling of the jury. They were able to view the prospective jurors and to hear their responses to questions. The defendants were excluded from one portion of the inquiry, however. The judge questioned the prospective jurors individually at sidebar about the extent to which they had been exposed to pre-trial publicity. This examination took place out of the hearing of the defendants. Remarking that the defendants were only seated 15-20 feet away, that they were represented at sidebar by experienced counsel, and that ample time was given for counsel to consult with defendants, the appellate court concluded that this procedure did not constitute reversible error.*fn13
The Fifth Circuit in Henderson v. United States, 419 F.2d 1277 (1970), also reviewed a case in which the defendant had been absent from a small portion of the jury selection. During his absence the defense counsel exercised his only challenge for cause, which was granted. The defendant was present for the rest of the challenge period. The court held that this violation of Rule 43 was harmless error.
In Phillips v. United States, 533 F.2d 369 (8th Cir.), cert. denied, 429 U.S. 924, 97 S. Ct. 324, 50 L. Ed. 2d 292 (1976), the court was also faced with a claim that a defendant should have his conviction reversed on the basis that he was absent during the period in which challenges were made. While recognizing that a defendant is entitled to be present at all stages of his trial, including jury selection, the court noted that the record revealed that the defendant was present during most of the jury selection process and was only absent for approximately 10 minutes while the attorneys exercised their strikes. In light of these facts, the court declined to find reversible error.*fn14
United States v. Brown, 571 F.2d 980 (6th Cir. 1978), presented a slightly different problem under Rule 43. The trial judge held a conference in chambers to discuss the dismissal of a juror.*fn15 The defendants were not present, but their attorneys were. The appellate court ruled that the defendants had a right under Rule 43 to be present at an in-chambers conference concerning the dismissal of a juror. However, after examining the transcript of the conference and noting that defense counsel had been zealous advocates of their clients' interests, the court concluded that there was no reasonable possibility of prejudice in the case, and affirmed the convictions. See United States v. Alper, supra at 1232.
We are persuaded by our review of these cases that the portion of Rule 43 which recognizes the right of a defendant to be present during jury impaneling does not require a holding that reversible error was committed on the record in this case. The harmless error doctrine should apply to this provision just as it does to other provisions of Fed.R.Crim.P. 43. In Alper, supra, this court said at 1232-33 of 449 F.2d:
"In the circumstances here presented the court was not in error in relying on the authority of defense counsel to act for their client.
"Moreover, assuming such reliance to have been misplaced the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Neither communication to the jury is claimed to be erroneous. That the instruction as to the verdict was understood by the jury is demonstrated by its verdict. It acquitted one defendant on all counts, convicted one defendant on all counts, and found one defendant guilty on one count and not guilty on twenty counts. The inquiry with respect to the exhibit list and the agreed upon reply can hardly be raised to the dignity of an instruction. The exhibits were in the jury room, and their numbering was a housekeeping detail. Appellant Greenberg urges that with his experience he might have suggested a ...