States Attorney had pointed out the defendant to Striar in the courtroom in order to assist the witness in his identification of the defendant. The United States Attorney thereupon objected and rightly so to the question and stated that his office did not engage in such conduct.
Taken in context, the United States Attorney's objection served only to neutralize what I consider to be an unfair question by defense counsel. Counsel then made the surprising suggestion in the jury's presence that the United States Attorney take the stand and testify to rebut the insinuation that he had done something which was tantamount to suborning perjury. The United States Attorney did not launch an attack upon the defendant, as was condemned in Somers, but merely defended his office by making which I consider to be a proper objection. Defendant was in no way prejudiced by the remark.
I reach the same conclusion as to the question posed by the United States Attorney concerning "leaks" from his office. Here the United States Attorney was provoked by an unresponsive answer of the defendant to the effect that there were "leaks" emanating from his office. Moreover, rather than objecting to the United States Attorney's questions, defense counsel insisted that his client answer them. The defendant appeared to be waiting for an opportunity to inject the issue of "leaks" into the trial.
Shortly thereafter, the defendant gave another unresponsive answer wherein he recalled reading newspaper accounts concerning a so-called war between the United States Attorney's office and the State Attorney General's office over the investigation of the Writer's Associate invoice. The United States Attorney attempted to cross-examine defendant concerning this alleged incident but was prohibited by this Court. However, I do not find anything stated by the United States Attorney which constituted misconduct in the sense of implicating the defendant or expressing an opinion as to guilt. Again I find that defendant was not prejudiced by the incident.
Defendant cites other instances of alleged prosecutorial misconduct. As to the United States Attorney's reference to "arson" during the cross-examination of the defense witness Albanese, I conclude there was no prejudice. I consider this Court's prompt cautionary instructions to be effective and sufficient to protect the defendant. I reach the same conclusion as to the partial question asked of Albert Gross: "Did there come a time when you were personally sued by trustees . . .?" Defense counsel interrupted the question with an objection. Again I consider my stern cautionary instructions sufficient to protect the defendant from any prejudice.
Defendant cites several other alleged instances of prosecutorial misconduct. Many of these were not objected to at trial. Accordingly, the defendant cannot raise them on his post trial motion. See United States v. Somers, supra at 29-30; United States v. Lawson, 337 F.2d 800, 807 (3d Cir. 1969) cert. denied 380 U.S. 919, 85 S. Ct. 913, 13 L. Ed. 2d 804 (1965). After carefully reviewing this record in its entirety, I conclude there was no "prosecutorial misconduct" and the defendant was not denied a fair trial. As a result defendant's motion for a new trial based on his third category of objections is also denied.
Finally, the defendant raises what he considers to be a serious constitutional infirmity in this District's jury selection plan. He argues that the plan in effect in this District systematically excludes attorneys, public officials, professional or business persons and others of high income.
Whatever merit there may be in defendant's allegation, a reading of the precedents available in this Circuit, as well as in the United States Supreme Court, leads me to conclude that defendant's motion comes too late. Although the precedents that the Court will rely upon deal with the composition of Grand Juries, I consider these cases closely analogous both factually and legally. The selection of petit and grand juries is governed by a single statutory provision 28 U.S.C. § 1867 which requires all objection to the method of the jury's selection be raised prior to the voir dire, 28 U.S.C. § 1867(a) and (e). As a result, the failure to raise a timely objection on these grounds has been held to constitute a waiver based on policy considerations underlying Fed. R. Crim. P. 12(b) (2), Davis v. United States, 411 U.S. 233, 93 S. Ct. 1577, 36 L. Ed. 2d 216 (1973); United States v. Noah, 475 F.2d 688 (9th Cir. 1973); United States v. Zirpolo, 450 F.2d 424 (3rd Cir. 1971). That policy has alternatively been expressed as the need for an orderly process of criminal procedure with sanctions of forfeiture for those who seek to avoid the impact of procedural rules, Fay v. Noia, 372 U.S. 391, 432, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963) or finality in criminal judgments, Thorton v. United States, 125 U.S. App. D.C. 114, 368 F.2d 822 (1966). These formalistic considerations, however, have repeatedly been overturned when serious questions concerning the denial of constitutional rights have been asserted, Kaufman v. United States, 394 U.S. 217, 228, 89 S. Ct. 1068, 22 L. Ed. 2d 227 (1968); Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). As the Supreme Court said in Sanders : ". . . conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged." Id. p. 8, 89 S. Ct. p. 1073.
These legitimate governmental interests in forfeiture and finality have added weight, however, when the convicted criminal defendant alleges unconstitutional composition of a jury in whose selection he actively and vigorously participated. To grant relief in this context would have the Court approve and participate in the defendant's trial tactics which involve the deliberate avoidance of Congressionally approved procedural requirements. If the Court consented to such a course of action, then for every defendant, "(Strong) tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time . .", Davis v. United States, 411 U.S. 233, 241, 93 S. Ct. 1577, 1582, 36 L. Ed. 2d 216 (1972).
In the present case, this Court will not be a party to these tactics. The defendant here offers no plausible explanation for his failure to make timely objection to the composition of the jury. The method of selecting the jury panel has been utilized in this District since 1968 and it was implemented pursuant to the standards of 28 U.S.C. § 1861 et seq. No reason has been suggested why the defendant or his counsel could not have ascertained the information relative to his present objection prior to trial or, at least, in the course of the very thorough voir dire of each juror individually and in chambers by the Court with the defendant present as well as counsel for the government and the defense. This Court also does not perceive how prejudice to the defendant's right to a fair trial could have resulted from the jury which was actually selected. For these reasons, this Court denies defendant's motion for a new trial on the basis of his fourth category of objection and it also denies his application for an evidentiary hearing concerning the jury selection practice pursued in this District.
It is, therefore, ordered, this 15th day of May, 1974 that defendant's motion for a judgment of acquittal pursuant to Fed. R. Crim. P. 29(c) and in the alternative for a new trial pursuant to Fed. R. Crim. P. 33 be and the same are hereby denied.
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