United States v. Louis Salvatore Baccari & Ralph Clifford Zanfagna, 489 F.2d 274 (10th Cir. 1974). · Go Syfert
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United States v. Louis Salvatore Baccari & Ralph Clifford Zanfagna, 489 F.2d 274 (10th Cir. 1974). Cases Citing This Book View Copy Cite
24 citation events (2 in the last 25 years) across 10 distinct courts.
Strongest positive: United States v. Lemrick Nelson, Jr. And Charles Price, Also Known as Bald Black Man (ca2, 2002-01-07)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Lemrick Nelson, Jr. And Charles Price, Also Known as Bald Black Man (2×)
2d Cir. · 2002 · confidence medium
See, e.g., United States v. Viserto, 596 F.2d 531, 539-40 (2d Cir. 1979) (finding express consent to a technical deviation from these procedures to constitute a valid waiver of the defendants' right to challenge this deviation on appeal); United States v. Josefik, 753 F.2d 585, 588 (7th Cir. 1985) (same); United States v. Baccari, 489 F.2d 274, 275 (10th Cir. 1973) (same); Leser v. United States, 358 F.2d 313, 317 (9th Cir. 1966) (same).
discussed Cited as authority (rule) Tony Lynn Davis v. Ron Champion and Attorney General for the State of Oklahoma
10th Cir. · 1994 · confidence medium
See, e.g., United States v. Neal, 692 F.2d 1296, 1307-08 (10th Cir.1982); United States v. Taylor, 498 F.2d 390, 392 (6th Cir.1974); United States v. Baccari, 489 F.2d 274, 275 (10th Cir.1973), cert. denied, 417 U.S. 914 (1974); Leser v. United States, 358 F.2d 313, 316-17 (9th Cir.), cert. dismissed, 385 U.S. 802 (1966) The only case cited by the district court involving a 2254 petition which implies a federal right to a twelve-person jury is Peek v. Kemp, 746 P.2d 672 (11th Cir.1984), which was vacated at 746 F.2d 699 (1984).
discussed Cited as authority (rule) United States v. Thomas P. Dempsey
10th Cir. · 1987 · confidence medium
See United States v. Beasley, 464 F.2d 468, 470 (10th Cir.1972) (citing Virginia Erection); United States v. Baccari, 489 F.2d 274, 275 (10th Cir.1973) (affirming recall of alternate juror by distinguishing Virginia Erection), cert. denied, 417 U.S. 914 , 94 S.Ct. 2614 , 41 L.Ed.2d 218 (1974); cf. Eckstein v. Kirby, 452 F.Supp. 1235, 1244 (E.D.Ark.1978) (“the presence of a thirteenth person during jury deliberations ... violates the secrecy of the jury room and thereby deprives an accused person of their [sic] right to trial by jury under the Sixth and Fourteenth Amendments”).
discussed Cited as authority (rule) United States v. Robert Evans, Jr. (2×)
4th Cir. · 1980 · confidence medium
As the majority points out, the parties did stipulate during oral argument that the subject of Rule 23(b) was brought up, but they conceded that it appears most probable that Evans "expressed no conclusion for or against an eleven man jury." 34 This, to my mind, distinguishes the cases relied upon by my brethren, for in Henderson v. Lane, 613 F.2d 175 (7th Cir. 1980), the defendant specifically refused to stipulate to an eleven member jury, and in United States v. Baccari, 489 F.2d 274, 275 (10th Cir. 1973) (emphasis added), the opinion states that "(a)fter discussing various alternatives, it …
discussed Cited "see" Samudio v. State
Tex. Crim. App. · 1983 · signal: see · confidence high
See, for example, United States v. Baccari, 489 F.2d 274 (10th Cir.1973); Taylor v. State, Wyo., 612 P.2d 851 (1980); Short v. Commonwealth, Ky., 519 S.W.2d 828 (1975); State v. Olivera, 53 Haw. 551 , 497 P.2d 1360 (1972).
cited Cited "see" United States v. Frank Viserto, Jr., Richard Rocco, Joseph Solce, Garnet Johnson, Sarah Payne, Howard Williams and Prentiss Covington
2d Cir. · 1979 · signal: see · confidence high
See United States v. Baccari, 489 F.2d 274 (10th Cir. 1973) (per curiam), cert. denied, 417 U.S. 914 , 94 S.Ct. 2614 , 41 L.Ed.2d 218 (1974).
discussed Cited "see, e.g." Seese v. Volkswagenwerk
3rd Cir. · 1981 · signal: see also · confidence medium
See also United States v. Baccari, 489 F.2d 274, 275 (10th Cir. 1973), cert. denied, 417 U.S. 914 , 94 S.Ct. 2614 , 41 L.Ed.2d 218 (1974); Leser v. United States, 358 F.2d 313, 317 (9th Cir. 1966), cert. dismissed, 385 U.S. 802 , 87 S.Ct. 10 , 17 L.Ed.2d 49 (1966); and see United States v. Lopez, 581 F.2d 1338, 1342 (1978). 78 The district court, here, was careful to negate any adverse effect that deliberations might have had on the substituted alternate jurors.
discussed Cited "see, e.g." Seese v. Volkswagenwerk A. G.
3rd Cir. · 1981 · signal: see also · confidence medium
See also United States v. Baccari, 489 F.2d 274, 275 (10th Cir. 1973), cert. denied, 417 U.S. 914 , 94 S.Ct. 2614 , 41 L.Ed.2d 218 (1974); Leser v. United States, 358 F.2d 313, 317 (9th Cir. 1966), cert. dismissed, 385 U.S. 802 , 87 S.Ct. 10 , 17 L.Ed.2d 49 (1966); and see United States v. Lopez, 581 F.2d 1338, 1342 (1978).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Louis Salvatore BACCARI and Ralph Clifford Zanfagna, Appellants
73-1457, 73-1458.
Court of Appeals for the Tenth Circuit.
Jan 18, 1974.
489 F.2d 274
Carroll Samara, Oklahoma City, Okl. (Raymond J. Daniels, Providence, R. I., with him on the brief), for appellants., Jeff R. Laird, First Asst. U. S. Atty. (William R. Burkett, U. S. Atty., with him on the brief), for appellee.
Seth, Aldisert, McWilliams.
Cited by 18 opinions  |  Published
PER CURIAM.

Appellants challenge their convictions for perjury in violation of 18 U.S.C. § 1623. Three issues were initially raised on this appeal. The first questions the propriety of permitting a previously discharged alternate juror to replace a regular juror who became incapacitated during deliberations, when all parties agreed to the substitution. The second is whether the trial court should have imposed a “gag” order on the press with respect to mention of the results of a prior related trial. The final issue relates to the second, and questions whether a new trial should have been granted if the jury in the jury room read newspaper accounts of a prior related trial.

During the course of the oral argument herein, we were advised that the second and third issues are no longer in contention.

The facts material to the first issue can be briefly summarized: At the close of argument and before the jury retired to begin its deliberations, the alternate juror was discharged as required by Fed.R.Crim.Proc. 24(c). During and near the outset of the deliberations one of the regular jurors became incapacitated and had to be hospitalized. At the request of the trial judge a conference was held which included both defendants, their counsel, and the prosecutor. After discussing various alternatives, it was agreed by all parties that the alternate juror should be recalled and the deliberations continued. Although this conference was not included in the record, the trial judge has submitted an affidavit recounting its substance. Furthermore, following the conference the reporter was summoned, and each defendant as well as counsel stated his approval of the agreed upon plan for the record. Thereafter the juror was recalled, and deliberations continued until the guilty verdicts were reached.

Defendants do not disavow their previous knowledgeable assent to the above procedure. Their contention is simply that the procedure was improper and unauthorized, and that their assent to it could not cure the defect. Their authority for this position is the case of United States v. Virginia Erection Corp., 335 F.2d 868 (4th Cir.). In that case a new trial was ordered because the district court had allowed the alternate juror to be present during deliberations when it appeared that one of the regular jurors was becoming ill. That case is distinguishable for two reasons: First, the decision turned on the fact that there were thirteen jurors present during deliberations even though the alternate may not have participated, and the court was concerned that the presence of the extra juror violated the privacy and secrecy of the deliberations. Second, although the record indicated that counsel had consented to the added juror, there was no showing that the defendants had personally been consulted or their consent obtained. See also United States v. Beasley, 464 F.2d 468 (10th Cir.), where a thirteenth juror participated without the knowledge of the judge or parties.

Recall of the alternate ' juror without the defendants’ consent would have been improper and grounds for a new trial. Nevertheless, we conclude that in consenting to the substitution, the defendants knowingly waived any objections that could have been interposed. The criteria for effective waiver of constitutional jury rights set forth in Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930), are well satisfied under the circumstances.

The convictions are affirmed.