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UNITED STATES v. DIOGUARDI

July 18, 1973

UNITED STATES of America
v.
John DIOGUARDI and Louis Ostrer


Edelstein, Chief Judge.


The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, Chief Judge.

Defendants John Dioguardi and Louis Ostrer were indicted on May 27, 1971, and brought to trial on January 4, 1973, for conspiring to violate and for violating the federal securities laws *fn1" and regulations *fn2" and the federal mail fraud statute. *fn3" On January 26, 1973, after three days of deliberations, a jury returned verdicts of guilty against both defendants. *fn4" Defendants have now moved for a new trial, pursuant to F.R. Cr. P. 33, *fn5" on the ground that one of the jurors suffered from "a mental infirmity making her incapable of rendering efficient jury service" within the meaning of 28 U.S.C. ยง 1865(b)(4). *fn6"

 In support of their motion, defendants rely upon a letter which was sent to Dioguardi by the juror in question. The letter portrays the juror as a person with religious feelings who believes herself to be a clairvoyant. This clairvoyance, according to the letter, has enabled the juror to conclude that Dioguardi is basically a good person. (The juror repeated the phrase ". . . I saw the good within you . . . .") Nevertheless, the juror affirms her belief that Dioguardi is guilty ("Your mistake your [sic] guilty."); admonishes him for becoming involved with criminals ("Why you let such a relationship exist between you and a man like Hellerman?") *fn7" and suggests that he should repent and be saved. ("If you repent and run a clean business it is the good within you that will save you, and you will gain what you have lost.")

 Defendants have also submitted six letters from six different psychiatrists and an affidavit from a seventh psychiatrist. Based only upon an analysis of the juror's letter and, in some instances, an assumption of the juror's religious feelings, cultural background and intelligence level, the doctors offered, in various ways, their opinion that the juror is, and was during trial, hallucinatory, delusional, psychotic, grandiose and suffered from guilt feelings and a persecution complex; and they attempted to make the legal determination that the juror was not mentally qualified to serve on a jury.

 Defendants have requested that this court either (a) hold a hearing "with necessary mental examination" to determine whether the juror was unqualified to serve, and to grant a new trial "should the juror be found to have been unqualified;" or (b) grant a new trial even if the court refuses to hold a hearing.

 The demand for a new trial based upon a postverdict attack on a juror's mental competency is an issue of first impression in this circuit. The problem, however, has been considered by the highest tribunals of fourteen states, *fn8" by an intermediate appellate court in one other state, *fn9" and by the Courts of Appeals for the First Circuit *fn10" and Third Circuit. *fn11" The decisions rendered by these courts all are to the effect that a post-verdict inquiry into a juror's mental competency will not be permitted unless the party seeking to set aside the jury's verdict makes a strong showing as to the existence of the alleged mental infirmity. At a minimum, this showing should be sufficient to overcome the legal presumption that all men are sane. *fn12" An analysis of the relevant cases reveals no precise formula by which to measure the standard of proof necessary to warrant a post-verdict investigation. They do reveal, however, a difference between a sufficient and an insufficient showing.

 These cases can be divided into three categories, ranging in degree from the strongest to the weakest showings which have been made in attacking a juror's competency. The strongest showing is illustrated by fact patterns in those cases in which the juror, prior to trial, had been adjudged mentally incompetent; had spent time in a hospital for the mentally ill; and had not been legally restored to competency during the period of his jury service. In such cases, the mere adjudication of incompetency, without a restoration to competency, regardless of the period of time which had elapsed between the date of the adjudication and the date of jury service, was sufficient to overcome the presumption that the juror was sane during the trial. *fn13" In these circumstances, the courts have held a post-verdict investigation to ascertain the extent to which the disability existed during trial, and the effect the disability had on the juror's consideration of the facts of the case. *fn14"

 The second category of cases involves jurors who have been declared insane shortly after the verdict was rendered. The adjudications were by an independent tribunal, and the proceedings were completely unrelated to the postverdict investigation of the jurors' qualifications. As in the first category of cases, the presumption of sanity had been overcome. However, an adjudication of incompetency does not determine a person's mental capacity prior to the determination. Yet, the inference is clear that the underlying causes of the incompetent condition existed before the adjudication. Thus, in this category of cases, due process requires *fn15" that there be a hearing to establish whether the disability existed during trial, and if it did exist, the effect it had on the juror's deliberations. *fn16"

 Absent the type of showing demonstrated in the first two categories, the courts have been extremely reluctant to invade the privacy of the jury room. Thus, the Court of Appeals for the First Circuit, in Peterman v. Indian Motorcycle Co., 216 F.2d 289 (1st Cir. 1954), the Court of Appeals for the Third Circuit, in United States ex rel. Daverse v. Hohn, 198 F.2d 934 (3rd Cir. 1952), and the Supreme Court of New Mexico, in State v. Eskildson, 36 N.M. 238, 13 P. 2d 417 (1932), approved the trial court's refusal to hold an evidentiary hearing absent an adjudication of incompetency. In Peterman, the movants offered to prove that

 
. . . the juror in question, because of mental disturbance, [had] been receiving disability compensation from the Veterans Bureau, that he [had] difficulty in sleeping and concentrating; that his memory [was] not good; that he [had] had depressed periods during which he entertained the idea of suicide; that he [ had ] had to undergo treatment for anxiety reaction to a psychic episode expressed by auditory hallucinations; that he has been under the care of a psychiatrist for an extended period, with little prospect of an early overcoming of his difficulties.

 216 F.2d at 293 (emphasis added). Yet, Judge Wyzanski of the United States District Court for the District of Massachusetts refused to hold an evidentiary hearing. According to the opinion of the Court of Appeals, Judge Wyzanski's reason was based upon the fact that the offer of proof, "taken at its face value," did not present "a sufficient ground for impeaching a verdict once returned" because it "contained no suggestion that the juror was insane or had at any time been confined in a sanitarium 'or was so incapacitated that he did not perform as adequately as many people do ordinary occupational tasks.'" Id. The Court of Appeals noted that Judge Wyzanski observed the juror during the trial and that he did not get the impression that the juror was incompetent. In its affirmance, the Court of Appeals indicated its approval of "the strong policy against the too-ready impeachment of jury verdicts on the basis of such afterthoughts suggested by a disappointed litigant." Id.

 Similarly, in Eskildson, defendant sought to establish a juror's mental incompetency through the testimony of a psychiatrist. The trial court, however, refused to hold an evidentiary hearing because there had not been "an adjudication that settled [the juror's] status." 13 P. 2d at 421. The Supreme Court of New Mexico, while sanctioning the adjudication requirement adopted by the trial court, suggested that a hearing might also be appropriate if the trial judge believed, based upon his observations of the juror during trial, that the juror was incompetent. *fn17"

 Finally, the Third Circuit's opinion in Daverse, although not precisely on point, is consonant with the policy reflected in Peterman and Eskildson. In Daverse, the defendant attempted to amend a paragraph of a petition for habeas corpus by adding an allegation that the juror suffered from a mental disease. This proposed amendment, however, was framed in uncertain, rather than specific, language (". . . [the] juror . . . may be suffering from a mental disease. . . .") 198 F.2d at 937 (emphasis added). Focusing upon the failure to allege "specifically that [the juror] was in fact mentally incompetent or 'insane,'" the Court of Appeals affirmed the District Court's refusal to allow the amendment. In so doing, the court stated:

 
If a juror's mental competence is to be attacked at the late stage offered by a habeas corpus proceeding, the charge must be made in much more certain terms and not on a tentative basis. A fishing expedition into a juror's competency may not be employed as a basis to attack a conviction valid on its face. To rule otherwise would be to strike a serious blow at the sanctity of the jury system for any juror, who it was alleged might be suffering from ...

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