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UNITED STATES v. BAKER

March 20, 1967

UNITED STATES of America
v.
Robert G. BAKER



The opinion of the court was delivered by: GASCH

 GASCH, District Judge.

 On January 29, 1967, a petit jury in the District of Columbia found the defendant, Robert G. Baker, guilty on seven counts of a nine-count indictment. Following his conviction, defendant's counsel filed extensive motions seeking a new trial, a judgment notwithstanding the verdict, and an arrest of judgment. The Court has previously considered most of the points raised by the defendant in his memorandum and can see no useful purpose in reconsidering those contentions which are the subject of its memorandum opinion. *fn1"

 Consequently, the Court will confine itself to the points orally raised in defendant's motion for a new trial, towit: (1) That James Buchanan, the foreman of the jury, concealed from the Court and counsel his status as a lieutenant in the reserve of the Metropolitan Police for the District of Columbia; (2) That the Court conducted a voir dire without notice to, and outside of the presence of, the defendant and his counsel; (3) That the additional panel from which the defendant's jury was drawn was illegally summoned; and (4) That the selection process currently employed by the District of Columbia Jury Commissioners is unlawful.

 The Court is of the opinion that the defendant's motion for new trial based on the alleged misconduct of juror Buchanan is without merit. Although juror Buchanan has been a reserve officer in the Metropolitan Police Department attached to the 14th Precinct for approximately seventeen years, only on a few occasions and for limited periods of time has he been called upon to serve as a special police officer as provided by § 4-133 of the District of Columbia Code. The most recent occasion was the 1965 Presidential inauguration when he served for one day. Prior to that, he served as a special officer for three days in connection with the Civil Rights March on Washington in August, 1963. On each of these occasions, Buchanan's duties consisted primarily of helping to maintain order in connection with the unusually large crowds attracted to these events. At no time has juror Buchanan been on the payroll of the Police Department nor has he received any compensation for any services he has performed as a special police officer.

 The defendant contends that Buchanan concealed his status as a reserve officer by failing to respond to three questions propounded by the Court to the prospective jurors. These questions were:

 (1) Is anyone connected with the police department or the fire department of the District of Columbia?

 (2) Is anyone of you a special police officer?

 (3) Are any of you an employee of the United States Government or the District of Columbia Government?

 Before granting a new trial on the grounds that a prospective juror failed to disclose material facts during an examination as to his qualification, it must be shown to the Court's satisfaction that the juror deliberately attempted to deceive the Court by intentionally concealing facts reasonably called for by a question and that the defendant was prejudiced thereby. Carpenter v. United States, 69 App.D.C. 306, 100 F.2d 716 (1938); Orenberg v. Thecker, 79 U.S.App.D.C. 149, 143 F.2d 375 (1944); Marshall v. United States, 355 F.2d 999 (9th Cir. 1966); and Bal Theatre Corp. v. Paramount Film Distributing Corp., 206 F. Supp. 708 (S.D.Calif.1962). Such is not the case here.

 When routine questions were propounded to the augmented panel of prospective jurors on January 4, 1967, respecting police service, juror Buchanan's silence regarding any connection he may have with the Metropolitan Police Department was clearly not the result of any intentional concealment or deceitfulness. This is amply demonstrated by the fact that in April, 1966, Buchanan, after responding to this exact question, was told by the then Chief Judge that he was not a police officer. Not unnaturally, Buchanan understood the Chief Judge's statement to mean that he need not have responded to the question initially. Therefore, as Buchanan testified at the hearing on these motions, *fn2" when this same question was asked of him eight months later in January, 1967, he felt there was no reason to supply an answer which another judge had previously told him was not required.

 Juror Buchanan had no reason to respond to the question "Is anyone of you a special police officer?" because at that time he was not a special police officer and had not been since the Presidential inauguration in January, 1965.

 As to the third question, which was propounded by the Court on the January 9th voir dire at the request of the defense, regarding employment by the United States Government or the Government of the District of Columbia, juror Buchanan responded that he was an employee of the United States Government, Bureau of Census. He did not respond that he was an employee of the District of Columbia Government for the simple reason that he was not so employed. His service with the Reserve Corps of the Metropolitan Police Department was completely voluntary and without compensation.

 The Court feels it is significant that of the 68 questions proposed by the defendant and asked by the Court on voir dire, none were designed to elicit the information which he now contends Buchanan intentionally concealed. The simple fact is that if the defense wished to elicit information whether any prospective juror was a policeman, a special policeman, an auxiliary policeman, or a relative of a ...


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