The opinion of the court was delivered by: CANNELLA
CANNELLA, District Judge:
After a trial of some four weeks in duration, a jury found Frank J. Brasco, a United States Congressman, guilty of conspiracy, 18 U.S.C. § 371, to violate three substantive federal statutes (18 U.S.C. §§ 201, 203 and 1341). On October 10, 1974, in advance of imposition of sentence, Brasco moved for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. In so moving, he asserted two grounds: (1) "directing that a new trial be conducted due to the improper conduct and handling of the jury during sequestration;" and (2) "[striking] the testimony [of] John M. Masiello, and setting aside the verdict and directing that a new trial be conducted . . . ." After an evidentiary hearing which was conducted on October 19 and 21, 1974, the Court ruled upon this motion as follows: "The motion is denied as to the first ground stated, memorandum to be filed, and as to the second ground stated upon memorandum previously filed [385 F. Supp. 964, (S.D.N.Y.1974)]." The ensuing paragraphs constitute the memorandum referred to in the Court's earlier ruling.
The general propositions and rules of law which are applicable to a motion for a new trial premised upon an assertion of misconduct by trial jurors have been cogently and succinctly stated by Judge Harvey in United States v. Rocks, 339 F. Supp. 249, 253-254 (E.D.Va.1972).
With limited exceptions, it is a settled rule that a juror's testimony is not receivable to impeach his own verdict. (citations omitted) The inviolability of the jury room from outside influence of any sort is a prime necessity in the administration of justice. (citations omitted) As the Supreme Court said in McDonald v. Pless, 238 U.S. 264, 267 [35 S. Ct. 783, 784, 59 L. Ed. 1300] (1915), if there were not strict limits to inquiries into jury verdicts after they had been returned, the jurors "would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict." Litigation must be terminated at some reasonable point and if jurors could, without limitation, be examined concerning their deliberations and their verdict, the result would be to make what was intended to be a private deliberation into a constant subject of public investigation impeding frankness and freedom of discussion in the jury room. (citations omitted)
In United States v. Crosby, 294 F.2d 928, 950 (2d Cir. 1961), cert. den., Mittelman v. United States, 368 U.S. 984, [82 S. Ct. 599, 7 L. Ed. 2d 523] (1962), the Court listed the dangers inherent in a post-verdict inquiry into jury verdicts as follows (at 950 [82 S. Ct. 599]):
"There are many cogent reasons militating against post-verdict inquiry into jurors' motives for decision. The jurors themselves ought not be subjected to harassment; the courts ought not be burdened with large numbers of applications mostly without real merit; the chances and temptations for tampering ought not be increased; verdicts ought not be made so uncertain."
An exception to the general rule limiting post-verdict examination of jurors is recognized when it appears that matters not in evidence may have come to the attention of one or more jurors so as to violate the defendant's constitutional right to be confronted with the witnesses against him. (citation omitted) Thus, a juror may testify to facts bearing upon the question of the existence of any such extraneous influence, but not as to how far that influence operated upon his mind. (citations omitted) A new trial is mandatory if it appears in a criminal case that individual jurors have read newspaper articles containing incompetent and prejudicial information. (citation omitted) However, the manner in which a Court should determine whether a jury has been subjected to ouside influence should be left to the discretion of the trial judge. Marshall v. United States, 360 U.S. 310 [79 S. Ct. 1171, 3 L. Ed. 2d 1250] (1959). As the Supreme Court said in that case (at page 312, 79 S. Ct. 1171, at page 1173):
"The trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial. Holt v. United States, 218 U.S. 245, 251, [31 S. Ct. 2, 6, 54 L. Ed. 1021]. Generalizations beyond that statement are not profitable, because each case must turn on its special facts."
In this regard, it must be noted that prejudice on the part of any juror is not presumed, rather, the defendant must prove prejudice by a preponderance of the credible evidence. United States v. Cashio, 420 F.2d 1132, 1136 (5 Cir.), cert. denied, 397 U.S. 1007, 90 S. Ct. 1234, 25 L. Ed. 2d 420 (1970); United States v. Provenzano, 240 F. Supp. 393 (D.N.J.), aff'd, 353 F.2d 1011 (3 Cir. 1965) (per curiam), cert. denied, 384 U.S. 905, 86 S. Ct. 1340, 16 L. Ed. 2d 358 (1966).
In accordance with the principles set forth above, as well as the directive of Mr. Justice Clark, sitting by designation, in United States v. Rattenni, 480 F.2d 195 (2 Cir. 1973), that the Court ask each juror individually whether the extrajudicial matter which allegedly came to the jury's attention biased or prejudiced that juror in any fashion against the defendant, this Court directed that a post-trial evidentiary hearing be conducted concerning the matters contained in defendant's motion. In advance of such hearing, the attorney for the Government conceded as true for purposes of the motion each and every allegation of the moving affidavits except for that which asserted improper conduct and prejudice on the part of several jurors as the result of their having read a newspaper account directed at Masiello's failure to testify at trial.
The Court is of the view that the attorney for the Government correctly conceded the points which he did. These allegations, at best, demonstrate violations of the Court's sequestration order either by the members of the jury or the marshals assigned to supervise the panel. However, accepting these assertions as true, the Court is unable to perceive one scintilla of prejudice inuring to the defendant as a result. Defendant wholly failed to show that at the point in time that the case was given to the panel for its deliberations, any juror was intoxicated, fearful or otherwise incapacitated or unable to discharge his or her duties by incidents which had occurred during the sequestration. In short, Brasco has failed to sustain the initial burden of alleging any prejudice as a consequence of these incidents.
At the hearing which was conducted by the Court with regard to the allegation of prejudice to the defendant as a result of the "Masiello newspaper article" (the article in question is said to have discussed the refusal of Masiello to testify at trial and is alleged to have given the reason therefore as his concern over the health of his wife and the consequences that his giving testimony would have upon her),
ten of the trial jurors were present and gave testimony under oath. In addition, one juror, Mrs. Anderson, was interviewed by the Court via telephone, as she was at that time visiting her son in Iowa and, another juror, Mr. Aponte, was interviewed by the Court subsequent to the completion of the evidentiary hearing but prior to the filing of this memorandum.
Brasco raised the issue concerning the "Masiello newspaper report" by means of the affidavit of Dominick Barbarino, submitted in support of the motion.
. . . Marie Purpo stated that during the course of the trial she had occasion to be in one of the recreation rooms at the Skyline Motel, at approximately 1:00 A.M., at which time she was approached by a fellow juror, Edward Hutton. Hutton then showed her a newspaper article from The New York Post. (Hutton told her that he had read the entire article). She then told me that she read a portion of the article and that it stated, in words or substance, that John Masiello had refused to testify at the Brasco trial because he feared that by testifying he would place his wife's life in jeopardy. She further stated that she and Mr. Hutton ripped the article out of the newspaper and flushed it down the toilet. Marie Purpo described said article as being a long, thin article. She further advised me that the following morning she and Mr. Hutton told Marshal Bob White what had happened regarding the newspaper article and that she was unaware of what, if any, action Mr. White took upon receiving the information.
Barbarino Affidavit at 4-5. The issue thus framed, each juror was questioned individually concerning the newspaper incident.
The two principal "offenders" according to Barbarino, Miss Purpo and Mr. Hutton, both testified under oath and each denied the essential elements of Barbarino's account. Miss Purpo testified unequivocally that she did not, at any time, read the substance of the newspaper account.
This testimony is corroborated by a statement made by Juror Purpo during a telephone conversation with Mr. Barbarino, which was taped by Barbarino without Purpo's knowledge or consent. (Tr. at 232-36)
The following questions of the Court and responses by Miss Purpo are instructive:
Q. Miss Purpo, at any time from the time that you heard the charge from the Court and you went into the jury room and you deliberated until the time that you came up with a verdict, was there anything in your own mind which in any way you feel was affected by the fact that you had seen this article?
A. No, sir. Definitely not.
Q. And your judgment was not in any way affected by the fact that you had seen and torn up this article, or whoever tore it up, and flushed it down in the bathroom, wherever it was?
Q. Was it any part of your judgment or in the deliberations did you take this into consideration at all in any shape or fashion?
A. It was forgotten, Judge.
Mr. Hutton, the other juror alleged by Barbarino to have read the newspaper account of Masiello's refusal to testify, flatly denied any knowledge of the reasons for Masiello's refusal to testify. In substance, Hutton testified that he had come upon the involved newspaper account of the trial while perusing an edition of The New York Post and that, upon observing the headline and the initial portion of the story, he realized that it concerned the trial and immediately ceased further reading of it; subsequently, he destroyed the article.
Questioned by the Court, Mr. Hutton stated:
Q. Am I right in summarizing your testimony to the effect while you saw this article, and you indicated it was about the case you never told anybody even about what you had read as far as you had gone, and nobody else saw it, as far as you knew?
A. I indicated the title that I had read.
Q. The title, the stand-in?
A. Yes. But beyond that, nothing, because I had not myself read it.
Q. Then you didn't say [should read see] any of the other things that appear in the article further on past the first mention of his [Masiello's] name?
Tr. at 91-92. Thereafter, the next day Mr. Hutton gave further answers to questions addressed by the Court:
THE COURT: When you entered in your deliberations in the jury room at the time you arrived at a verdict, what, if anything, about that article did you remember. What did it say as far as you were concerned?
A. What I remembered was what I said, that the hearing was something like, "stand-in testifies for mob figure."
THE COURT: Anything else?
A. And -- no. That was it, and that I had seen the name Masiello in the article and that is when I decided not to read it, obviously.
THE COURT: And that is all you knew at the time you started your deliberations?
THE COURT: Did you know, for example, at that time that it was alleged in that article that Masiello refused to testify because of the fact that his wife's health was concerned and there was some threat of his being out on a contract or some such language?
A. No, I didn't know that.
THE COURT: You didn't know that?
THE COURT: Did anything that appeared in the article in any way interfere with your judgment or prejudice you in any way against the defendant as far as you yourself were concerned?
In addition to Jurors Hutton and Purpo each and every other juror that participated in the deliberation and decision of this cause was questioned concerning the "newspaper incident." Four jurors stated that they were wholly unaware of the Masiello article or the incidents surrounding its discovery by Hutton.
Six other jurors recounted that while they were aware of the article and the incident surrounding its discovery, they had no knowledge of the substance of its contents.
Upon the inquiry of the jurors, this Court unhesitatingly concludes that no juror had any knowledge whatever of the sum or substance of the "Masiello newspaper account."
The encounter of several of the trial jurors with the "Masiello" newspaper article is not to be considered by the Court as per se prejudicial to the defendant. "Whether publicity is so prejudicial as to require a new trial is ordinarily committed to the trial judge's discretion. 'Generalizations beyond that statement are not profitable, because each case must turn on its special facts.'" United States v. Armone, 363 F.2d 385, 396 (2 Cir.) (quoting from, Marshall v. United States, 360 U.S. 310, 312, 79 S. Ct. 1171, 3 L. Ed. 2d 1250), cert. denied, 385 U.S. 957, 87 S. Ct. 391, 17 L. Ed. 2d 303 (1966). Rather, on the instant record, the Court finds that defendant has failed to sustain his burden of proving that any juror who came into contact with the newspaper article was thereby prejudiced against him or that the incident in any manner acted to impair his securing of a fair trial. "Even if the jurors read the article referred to, that alone is not ground for a new trial. . . . The burden was upon counsel for defendant to show that prejudice resulted, and he failed to establish such prejudice." Gicinto v. United States, 212 F.2d 8, 10-11 (8 Cir.), cert. denied, 348 U.S. 884, 75 S. Ct. 125, 99 L. Ed. 695 (1954).
This Court has had ample opportunity to observe these jurors throughout the trial of this case, as well as their demeanor and bearing when called as witnesses upon the hearing of this motion. During the trial, the jurors conducted themselves in an alert and intent fashion and, the manner in which they conducted their deliberations (as is well evidenced by the pointed and relevant questions going to the heart of the case which were asked by them) demonstrates their understanding of both the law and the facts. This jury did not appear to the Court to be inattentive, disinterested or close-minded. As witnesses, each juror impressed the Court as an honest and sincere individual who had discharged his or her duty in accordance with the juror's oath. Each juror that had come into contact with or had been made aware of the "Masiello" article, unequivocally stated that his judgment in this case was not affected by this extrajudicial account and that he was not prejudiced against the defendant in any fashion whatever because of it. The Court believes these jurors. Notwithstanding the testimony of Messrs. Lyon and Erlbaum and that of Miss Romaner, the Court believes the in-court testimony of Miss Purpo.
She stated, under oath, that she had seen only "the heading and . . . the first paragraph" of the article, but that she "didn't even read it." The Court believes this statement, as well as her representation that the newspaper incident "was forgotten" and did not in any way affect her judgment in this case.
As has been stated, "[the] mere fact that jurors have read newspaper accounts of the trial in which they are participants is not ground for a new trial," Bratcher v. United States, 149 F.2d 742, 746 (4 Cir.), cert. denied, 325 U.S. 885, 65 S. Ct. 1580, 89 L. Ed. 2000 (1945), rather, "[the] crucial question in cases such as this is the degree of prejudice created by the improper publicity, since a new trial is required only when substantial prejudice has occurred." United States v. D'Andrea, 495 F.2d 1170, 1172 (3 Cir. 1974). On the state of the record before it, not only does the Court perceive no substantial prejudice to the defendant as a consequence of the jurors' contact with the article, but, indeed, the Court cannot find the slightest suggestion of prejudice of whatever nature to have been demonstrated by the defendant. See, e.g., United States v. Wilshire Oil Co., 427 F.2d 969, 975 (10 Cir.), cert. denied, 400 U.S. 829, 91 S. Ct. 58, 27 L. Ed. 2d 59 (1970). While it is true that a "verdict must be set aside where even one juror in effect admits prejudice; after all, a defendant is entitled to twelve fair and impartial jurors. . . ." United States v. Rattenni, 480 F.2d at 198, here, no juror has so admitted and the Court cannot, on this record, so infer.
It was upon the request of the defendant and over the objection of the Government that the Court acted to sequester the jury in this cause. It did so in an effort to better insure that the defendant would receive a fair trial in what might be termed a "high publicity" case. But a fair trial does not mean a perfect trial and the defendant, despite his protestations, did receive a fair trial and the verdict of an impartial jury.
This is not to say that violations of the Court's sequestration order did not occur. The proof well demonstrates that they did, and that several jurors did come into contact with extrajudicial matter. But perfection is far too elusive a standard upon which the fairness of a trial might be judged and sequestration cannot be viewed as "perfection" insurance. Rather, sequestration is but a means invoked by the Court to effectuate the goal of affording a defendant a fair trial by a fair and unbiased jury. Dissatisfied litigants should not, upon the close of their own trial, proceed to try the jury upon assertions of irregularities and hearsay innuendo. In the opinion of this Court, taking into account the myriad of circumstances surrounding the nature and conduct of this trial, Frank Brasco received a fair trial and was found guilty by a fair jury composed of honest, sincere and unbiased people. As Mr. Justice Story, sitting as Circuit Justice in United States v. Gibert, 2 Sumn. 19, 25 Fed.Cas. 1287, 1310 (No. 15,204) (C.C.D.Mass.1834), well stated with respect to a sequestered jury:
We must take things as they are in our days. Juries cannot now, as in former ages, be kept in capital cases upon bread and water, and shut up in a sort of gloomy imprisonment, with nothing to occupy their thoughts. It would probably be most disastrous to the administration of justice, and especially to prisoners, to attempt, in these days, the enforcement of such rigid severities, so repugnant to all the usual habits of life. And for one, I am not satisfied that the irregularity in the present case has been in the slightest manner prejudicial to the prisoners . . . . The indulgence ceased the moment when the charge was given, and the jury were then put upon their own solemn and exclusive deliberations on the case.
The relevant portions of Miss Purpo's testimony are as follows:
Q. Did you read some of the article?
A. I didn't read the article but from what I was told by Mr. Hutton, it had to do with the Brasco case.
THE COURT: Never mind what you were told. You didn't read the article, period. Strike out the rest of it.
Q. Did you see some of the article, the first paragraph of the article?
Q. Did you see enough to have any idea of what the article was about?
Q. Now I am going to ask you, were you told anything about the contents of the article?
A. About the contents? No.
Q. Were you told anything about the article?
A. Yes, that it dealt with the case.
Q. Were you told anything about whether the article referred to Mr. Masiello at all?
Q. Is there anything you knew about the contents of that article from any source whatsoever during sequestration?
Q. What did you know about it?
A. That it dealt -- that that particular article dealt with Mr. Masiello's not appearing in court.
Q. Do you remember where that article -- in which newspaper that article was printed?
A. From what I remember, Mr. Lyon, it was either in the New York Post or the Daily News. I can't place my finger on which exactly.
Q. Can you describe the physical appearance of the article, whether it was a three-column --
A. It was a long, thin article.
Q. And were you ever shown articles from the Post and from the News relating to Mr. ...