Moore and Smith, Circuit Judges, and Weinfeld, District Judge.*fn*
EDWARD WEINFELD, District Judge.
Malcolm Bowles, David Thomas and Walter Wilson appeal from judgments of conviction after a jury trial for knowing possession of stolen mail. They were indicted together with a fourth defendant, Felix Ganuza, who pleaded guilty before the trial. The appealing defendants attack their convictions upon different grounds. Finding no error we affirm the convictions.
The jury having returned the guilty verdict, the evidence must be viewed most favorably to the government.*fn1 On the morning of July 16, 1968, William Genovese, a letter carrier assigned to the Morrisania post office station in the Bronx, in accordance with his usual practice, prepared pieces of mail in "relay bags" and sent one such bag ahead to be placed in a "relay box" located at 169th Street and Morris Avenue, where he would later pick up the bag and make his deliveries. At about 10:15 a.m., as he approached the relay box, a woman attracted his attention by shouting something and he saw two men running up the block on 169th Street, making a turn on College Avenue. One of the men wore a "bright red or orange shirt." Genovese ran after them, but by the time he reached the corner they were out of sight. He did notice there a convertible car with New Jersey license plates. Genovese then returned to the relay box, which he found had been broken into, the lock broken; the relay bag which he had earlier prepared was missing.
At 10:15 a.m. or thereabouts, Officer Harmon of the New York City Police Department, while on radio patrol, observed a white convertible with New Jersey registration plates in the vicinity of 170th Street between Park and Washington Avenues. Seated in the car were four men, Wilson, Thomas and Bowles, the appellants here, and Ganuza, their co-defendant. Wilson was behind the wheel; Thomas was next to him in the front seat; Bowles, wearing a bright orange shirt, was in the back, and alongside of him was Ganuza. Officer Harmon asked Wilson, the driver of the car, to open the trunk.*fn2 As Harmon and Wilson were walking to the rear of the convertible, the top of which was down, Harmon noticed a bundle covered by a shirt between Ganuza's legs. The officer asked what was in the bundle, and getting no response, lifted the shirt and saw a mail bag with a stamp, "U.S. Mail," on its side. Next to the mail bag the police officer also found two crowbars, a ball peen hammer and a screwdriver. The bag, when seized by the police officer, contained 208 pieces of mail.
Later that day, Genovese, the letter carrier, identified the bag as the one he had sent on to be placed in the relay box at 169th Street and Morris Avenue.
None of the defendants testified upon the trial.
Appellant Bowles does not challenge the sufficiency of the evidence against him. He presents other grounds for reversal. First, he contends that it was prejudicial error for Judge Cannella, who heard and denied a pretrial motion to suppress evidence, to deny Bowles' request that he disqualify himself from presiding at the trial. The contention appears to be that at the suppression hearing evidence was properly received on the issue of probable cause that four men, driving a white convertible, were involved in a series of mail thefts, and hence this presented "the possibility that the Judge's knowledge of this information would prejudice the [defendant's] right to a fair trial."
The point hardly merits discussion. Trial judges are disciplined to exclude hearsay or prejudicial evidence in reaching a final determination.*fn3 If in fact there was any claim of bias or prejudice, whatever the alleged ground, the proper procedure was to comply with the recusing statute, 28 U.S.C. section 144, which appellant failed to do. In any event, the jury, and not Judge Cannella, was the trier of the fact.*fn4 Moreover, the speciousness of appellant's claim is demonstrated by Judge Cannella's action before the jury panel was assembled, when noting that Bowles wore a "sweater of orange hue," he suggested a change of attire "because it isn't fair to him to be sitting there with the same shirt he was supposed to have worn at the time the thing happened."*fn5 The court thereupon directed that Bowles be afforded an opportunity to change his shirt, which he did.
In a related argument it is urged that Bowles desired a nonjury trial, but that his decision would be influenced by Judge Cannella's ruling on the motion for disqualification. Judge Cannella refused to consider a nonjury trial for Bowles, since his codefendant Wilson adhered to his constitutional right to trial by a jury of his peers, and also denied Bowles' motion for severance. However, there is no constitutional right to a nonjury trial.*fn6 Under the Rule,*fn7 the consent of the United States Attorney and the court is required, and such consent was not granted. Thus, any effect on appellant's decision to waive trial by jury is wholly academic.
Bowles' next contention centers about the court's supplemental charge, when the jury, after several hours deliberation, was unable to agree upon a verdict. Thereupon the court instructed them to deliberate further, stating:
It seems to me that in a case of this kind where the evidence has been so short and the arguments have been made to you immediately thereafter that you should come to some conclusion.
You are in the same position as a doctor. A doctor sometimes goes in and does something he doesn't like to see. He opens up a person and he ...