On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 87-00298-01)
Sloviter and Becker, Circuit Judges, and Barry, District Judge*fn*
Following an FBI investigation into corruption in the Philadelphia judicial system, Thomas Shiomos, who was then a Senior Judge of the Philadelphia Court of Common Pleas, was indicted on three counts of extortion in violation of the Hobbs Act, 18 U.S.C. § 1951 (1982). He was convicted on two of the counts. On this direct appeal, Shiomos challenges, inter alia, the trial court's sequestration of the jury. We have jurisdiction under 28 U.S.C. § 1291 (1982).
In 1986 the FBI approached Barry Denker, a Philadelphia criminal lawyer, and confronted him with evidence that he had bribed a state parole officer some years earlier. Denker agreed to participate in an investigation into judicial corruption in the Philadelphia court system. As part of the investigation Denker agreed to tape record conversations with various judges, including appellant Shiomos, and to provide the government with opportunities to gather evidence of payoffs. On October 3, 1986 Denker met Shiomos on the street and paid him $300 "on account." App. at 679-685, 296-298. The transaction was videotaped by a Philadelphia police officer. This transaction formed the basis of Count Three of the indictment, on which Shiomos was convicted.
Shiomos was also charged with and convicted of extortion on the basis of evidence showing that on or about December 10, 1985, he received $300 from a slush fund controlled by Steven Traitz, Business Manager of the Roofers' Union, Local 30-30B. Electronic surveillance of activities of the Roofers' Union established that the $300 was one of a group of payments made to Common Pleas judges and other local officials for the general purpose of obtaining favorable results in matters involving union members. Grand jury testimony, given by Shiomos, was read into the record by FBI agent Welch which revealed that Shiomos had received such presents, which Shiomos assumed to be from the Roofers' Union, on several occasions, including the one charged in Count Two of the indictment. Nine or ten days after receiving the gift charged in the indictment, Judge Shiomos imposed a reduced sentence on Ronald Botson, a member of the Roofers' Union charged with aggravated assault, reckless endangerment, and weapons charges.
Denker testified that, prior to the investigation, he also made payments to Judge Shiomos on several occasions from late 1983 or early 1984 to July 1985 to influence various pretrial and trial decisions in the Botson case. Those payments formed the basis of Count One of the indictment, on which Shiomos was acquitted.
Shiomos was sentenced to two years imprisonment on Count Two, to be followed by five years probation imposed on Count Three and a $6,000 fine, with a special assessment of $50 on both counts.
In this appeal, Shiomos challenges the district court's right to direct sequestration of the jury sua sponte, an issue which this court has not previously addressed. The district court ordered the jury's sequestration because of concern that Shiomos' case would generate significant amounts of publicity, as had the other cases arising out of the FBI investigation of the Philadelphia judiciary. Neither party requested sequestration, and Shiomos specifically opposed it on the ground that qualified jurors, especially housewives, single parents or those taking care of aged parents, would not be able to serve on the jury because of the sequestration. In fact, five jurors were excused for cause on the ground that sequestration would impose a hardship. Counsel for Shiomos noted that he would have approved two of the jurors who were so excused.
Although Shiomos asserts that the decision to sequester was error, he does not articulate the precise legal rationale for this claim. Presumably, his claim is that his right to select a jury, protected by the Sixth and Fourteenth Amendments, was violated because the jury did not include those jurors who would have been acceptable, but for the sequestration.
The parties agree that a decision not to sequester the jury is in the sound discretion of the trial judge. See Holt v. United States 218 U.S. 245, 251, 54 L. Ed. 1021, 31 S. Ct. 2 (1910). We so held in United States v. De Peri, 778 F.2d 963, 972-73 (3d Cir. 1985) (refusal to sequester not an abuse of ...