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United States v. Barnes


decided: April 23, 1979.


On Petition For Rehearing En Banc

A petition for rehearing containing a suggestion that the action be reheard en banc having been filed herein by counsel for the Appellants, a poll of the judges in regular active service having been taken and there being no majority in favor thereof,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

OAKES, TIMBERS and MESKILL, Circuit Judges, voted to grant the petition limited to the propriety of the Voir dire examination. OAKES, Circuit Judge, reserves the right to file a memorandum.

OAKES, Circuit Judge (dissenting):

I dissent from the denial of the petition for rehearing en banc.

The panel majority affirming the appellant's convictions adopted an entirely new rule of law that so far as I know stands without precedent in the history of Anglo-American jurisprudence. The panel majority's sanction of the trial of a defendant in a criminal prosecution before an anonymous petit jury, without disclosure of even the approximate community or neighborhood in which the jurors reside and absent requested inquiry into ethnic and religious backgrounds (much of which would be revealed by the usual name and address), strikes a Vermont judge as bizarre, almost Kafka-esque. It makes peremptory challenges for all practical purposes worthless,*fn1 to me a sorry state of affairs.

Judge Meskill's dissenting opinion, United States v. Barnes, 604 F.2d 121 (2d Cir. 1979), stands on its own feet. I would add only that so far as appears in the record no one had been threatened as the majority said, "no untoward event had occurred up to the opening of the trial," Id. at 137 and sequestration under protection would be an ample remedy if anyone had been. I note that no similarly anonymous jury drawing took place in any of the following cases, notwithstanding the notoriety of the defendants: Buchalter v. New York, 319 U.S. 427, 63 S. Ct. 1129, 87 L. Ed. 1492 (1973) (homicide trial of Murder, Inc.'s Louis "Lepke" Buchalter); United States v. Bufalino, 285 F.2d 408 (2d Cir. 1960); United States v. Costello, 255 F.2d 876 (2d Cir.), Cert. denied, 357 U.S. 937, 78 S. Ct. 1385, 2 L. Ed. 2d 1551 (1958); Capone v. United States, 56 F.2d 927 (7th Cir.), Cert. denied, 286 U.S. 553, 52 S. Ct. 503, 76 L. Ed. 1288 (1932); People v. Luciano, 277 N.Y. 348, 14 N.E.2d 433, cert. denied, 305 U.S. 620, 59 S. Ct. 81, 83 L. Ed. 396 (1938). It would seem to me that there were other less drastic alternatives available here including revelation of the jurors' identities in camera to counsel, See, e. g., United States v. Gurney, 558 F.2d 1202, 1210 n.12 (5th Cir. 1977) (jury listing, including addresses and other personal information, not publicly released), Cert. denied Miami Herald Pub. Co. v. Krentzman, 435 U.S. 968, 98 S. Ct. 1606, 56 L. Ed. 2d 59 (1978); See also United States v. Hoffa, 367 F.2d 698, 710 (7th Cir. 1966) (jurors' names need not be read aloud in open court prior to voir dire), Vacated on other grounds, 387 U.S. 231, 87 S. Ct. 1583, 18 L. Ed. 2d 738 (1967) (per curiam). I believe that the issue is of sufficient importance to be deserving of en banc treatment since judges in other narcotics cases are sure to follow its precedent as, to borrow a simile of Judge Timbers,*fn2 a flock of sea gulls follows a lobster boat. This case calls to mind Mr. Justice Holmes' dissent in Northern Securities Co. v. United States, 193 U.S. 197, 400-01, 24 S. Ct. 436, 468, 48 L. Ed. 679 (1904):

Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.

TIMBERS and MESKILL, Circuit Judges, concur in this opinion.

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