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United States v. Colabella

decided: September 30, 1971.


Kaufman, Anderson and Feinberg, Circuit Judges.

Author: Kaufman

IRVING R. KAUFMAN, Circuit Judge:

This appeal from a judgment of conviction for violating the federal narcotics laws involves the "most priceless" safeguard "of individual liberty and of the dignity and worth of every man" -- the right to a trial by an impartial jury. Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961).

Vincent N. Colabella, charged with the illegal sale of heroin,*fn1 was convicted after a three-day jury trial before Judge Levet on evidence that clearly established his guilt. Ronald J. Rossi, the government's principal witness and, at the time of the alleged crimes, a Special Agent of that Bureau of Narcotics and Dangerous Drugs, testified that he had purchased heroin from the defendant on February 22, 1966, and the following March 20. Corroboration was clear from the testimony of other agents who observed the transactions.

The case for the defense consisted solely of Colabella's own testimony. He claimed that he had never seen Agent Rossi until shortly before the trial and denied that any of the transactions testified to by the government witnesses ever occurred. He admitted, however, to prior convictions for selling narcotics, possessing narcotics, grand larceny and assault.

Colabella's sole ground for challenging his conviction on appeal is that the voir dire examination for selection of the jury so infected all the prospective jurors with wide-spread bias that he was deprived of his sixth amendment right to trial by an impartial jury. We do not agree and, for reasons set forth below, affirm the judgment of conviction. Because the facts are essential to the resolution of the issue, we will describe the voir dire examination in some detail.

Judge Levet, at the outset, asked the customary questions of the prospective jurors, such as whether they knew the attorneys or anyone connected with them or knew the defendant or anyone connected with a law enforcement agency. After explaining to the panel that the indictment against the defendant charged narcotics violations, he inquired whether any prospective juror had "any inherent determinations or attitudes with respect to either the use of drugs or with respect to the prosecution. * * *" There was no response. At the request of defense counsel, Judge Levet then queried whether any prospective juror would have difficulty applying the presumption of innocence and at the same time instructed the panel that defendant was not required to testify in his own behalf.

After the district judge had questioned the first twelve prospective jurors, the defendant exercised two peremptory challenges. He exercised four more before a private detective, who admitted that his employment would affect his impartiality, was dismissed with the consent of both parties.

When the defense exercised its ninth peremptory challenge, a prospective juror named Erosa was called. He announced in open court that he had "prejudged already" and promptly was excused without further questioning. Thereafter, one Mary Symmons was summoned to the jury box, and she too indicated that she had prejudged the case. She also was excused without further questioning. At this point, three jurors who had been previously questioned and temporarily seated in the box raised their hands. The judge called on each of the three individually, while commenting that "it is catching." The first stated that he too had prejudged. The judge excused him after stating that he had failed to reveal his prejudice during his earlier questioning. The other two were also excused after asserting a claim of bias. Thereupon, the judge addressed the entire panel of prospective jurors in the courtroom:

Now, I want to ask you once more -- I told you about the nature of the case and I asked about whether you had any -- I want to remind you of this -- I asked whether you had any prejudices one way or the other about narcotics, and now after I asked that question and nobody spoke up, now I have four people who said they are biased.

But go ahead, we will get a jury. If necessary, we may have to send for more.

Thereafter, Judge Levet questioned the four replacements. When he reached Mr. Efthimiou, the following exchange occurred:

Q. Are you affected by any questions I have asked? A. Well, to be perfectly honest with you, your Honor --

Q. Well, I assume all questions will be answered perfectly honestly. Are you or are you not ...

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