Before CLARK, FRANK, and HINCKS, Circuit Judges.
1. Alleged illegal constitution of the grand jury and petit jury.
The trial occurred in Syracuse in Onondaga County, New York. The trial judge denied defendant's motion, made eight days before the first trial, to dismiss the indictment on the ground that the grand jury had been illegally constituted. The government urges that, under Criminal Rule 12(b)(3), 18 U.S.C., this motion was not timely made;*fn2 we are not entirely free from doubt on the matter, but, in the circumstances, we think it desirable to pass on the motion's merits.
28 U.S.C. § 1865(a) reads in part as follows: "Grand and petit jurors shall from time to time be selected from such parts of the district as the court directs so as to be most favorable to an impartial trial, and not to incur unnecessary expense or unduly burden the citizens of any part of the district with jury service."*fn2a
In 1914, the district court for the Northern District of New York made an order, never since modified, providing that when a stated trial term of that court is held at Syracuse, New York, the grand and petit jurors are to be drawn from Onondaga County. The Northern District contains 29 counties; on its westerly side it runs from the Canadian border on the north to almost the Pennsylvania border on the south, and on its easterly side to the southerly limits of Albany County. The defendant contends that this method of selection, employed in choosing the grand jurors who indicted the defendant, violated his constitutional rights. We do not agree. See United States v. Gottfried, 2 Cir., 165 F.2d 360, 363-365. For the same reasons we reject defendant's similar contention that the trial court erred in denying defendant's challenge to the array of the petit jury.
2. Alleged adverse publicity.
Defendant, citing Delaney v. United States, 1 Cir., 199 F.2d 107, argues that he was deprived of due process because of adverse local publicity in Syracuse where the trial was held. The record contains no evidence to support that contention. Moreover, defendant specifically asked that he be tried in Syracuse.
3. Refusal to sustain a challenge of a juror for bias.
On the voir dire of the jurors, the defense exhausted its peremptory challenges. Prospective juror Van Denburg testified that he had formed an opinion as to the merits from what he had read of the former trial which would require some evidence to remove. The court then told the veniremen:
"You are all human beings. You have to discard your opinions and ideas the best you can and decide it solely on the evidence. I think we understand it."
Van Denburg: "Suppose evidence is brought out in this case not brought out before. Are you supposed to forget the other evidence?"
The Court: "Just listen to what comes ...