The opinion of the court was delivered by: PALMIERI
The defendants were convicted of violating Int.Rev.Code of 1939 § 145(b), 26 U.S.C.A. § 145(b), in that they had attempted to defeat and evade the income tax due from the corporate defendant for the year 1951. Judgments of conviction were entered on April 16, 1956, after a protracted jury trial. The convictions were affirmed
and defendant's petition for certiorari was denied
on June 3, 1957.
The defendants Bowers and Ward are now serving prison sentences. The defendant Potter is dead.
Now, almost two years after the judgments of conviction, the surviving defendants move for a new trial 'on the ground that one of the jurors who sat in this case, John E. McLaughlin, and who had voted guilty, had in his possession a handbook for Instructions to Petit Jurors which contained principles of law governing the trial of criminal cases and that John E. McLaughlin had read the handbook before appearing for jury service in this case.' Thereafter, the motion was amended to include 'newly discovered evidence' as a further ground. This amendment was evidently made because of the time limitations of Fed.R.Crim.P. 18 U.S.C.A., which provides that unless a motion for a new trial is based on newly discovered evidence, it must be made within five days after verdict or a finding of guilt. A motion based on newly discovered evidence may be made within two years after final judgment.
It is clear from the proceedings which have taken place following this motion that by whatever name it may be labelled, the sole ground for the relief sought is the alleged improper use of a juror's handbook by one of the jurors, Mr. John E. McLaughlin. A hearing was held at which Mr. McLaughlin was questioned; counsel for both sides were afforded three oral arguments, and they have submitted briefs.
After the first argument of the motion, it became apparent that the sole basis for the defendants' motion for a new trial was the possible application to this case of a decision by the Seventh Circuit in United States v. Gordon (July 16, 1957). Since that decision was again sub judice, the Seventh Circuit having granted reargument before the court en banc, I decided to await the result before proceeding further. I also though it desirable to question the juror, Mr. McLaughlin, and to refresh my recollection of the trial proceedings involving the moving defendants.
On February 19, 1958, 253 F.2d 177, the Seventh Circuit in a decision comprising five separate opinions (including a concurrence by Judge Hastings in the opinions of Judge Parkinson and Chief Judge Duffy), withdrew its opinion of July 16, 1957, and, in effect, decided two matters:
First: that 'the only evidence offered by the defendant (in asserting error on appeal from his conviction after two trials) was that the handbooks were distributed to the prospective jurors with a suggestion that they be read. The record is completely devoid of any evidence that any members of the jury read the handbook or had any information as to its contents or, if read, would have been influenced thereby against the defendant. It was incumbent upon the defendant to introduce, or to offer, distinct evidence in support of the challenge and the failure to prove his contentions was fatal. Glasser v. U.S., 1942, 315 U.S. 60, 87, 62 S. Ct. 457, 86 L. Ed. 680.'
Second: 'Assuming, arguendo, that the entire panel read the handbook and that the handbook did contain statements inimical to a defendant in a criminal case,' the defendant should have made a challenge to the polls by an appropriate challenge for cause after inquiry on the voir dire. Not having done so, the defendant waived his rights.
Despite the withdrawal of the Seventh Circuit's opinion of July 16, 1957, defendants here rely on it, and on the statements of Judges Finnegan and Schnackenberg, who partially dissented, in the opinion of February 19, 1958. But the earlier opinion, even if it were still vital, has no application here. In Gordon 'the person to whom the petit jurors report at the commencement of their service, (testified) that she gave a copy of the handbook to each of the prospective jurors and told them it was 'a nice jury book and they should read it' * * *'
There was no such 'official indoctrination' in this case.
Thus, the integrity of the jury system as a whole, which the first Gordon opinion held to be in issue in that case, and which obviated the requirement for a showing of prejudice to the individual defendant, is not in issue in this case
There is no contention that the Handbook was distributed to the entire panel in this case, or that any suggestion was ever made that they read it. They were told at various times during the case that they were obliged to discharge their duties upon the admissible proof subject to the law as charged by the Court.
Counsel for the defendants does not deny this nor does he claim that any of the remaining eleven jurors who considered the verdict were in any way influenced by the Handbook. Indeed, he conceded that he rested solely on whatever use the juror McLaughlin made of the handbook; and he conceded that the other eleven jurors did not use the handbook.
The fact of its use by only one juror was substantiated by the report of an agent of the Federal Bureau of Investigation whom I requested to question the members of the jury after this motion was brought
Of course, defendants' position is not supported by the majority holding in the February 19, 1958 opinion, summarized above. Passing the failure of defendants to raise this issue on the voir dire, I turn to a consideration of the evidence adduced on this motion to determine whether defendants were prejudiced by the use of the Handbook by the juror McLaughlin.
The position of the moving defendants was made clear by their counsel as follows:
'(The Court:) * * * Do we all assume or do you formally concede that the taint, if there was a taint, stems from whatever use the juror McLaughlin, ...