The opinion of the court was delivered by: OWEN
In 1976, a jury found seventeen defendants guilty of being members of a far-reaching heroin and cocaine distribution network. The convictions were affirmed on direct appeal, see, United States v. Moten, 564 F.2d 620 (2d Cir.), cert. denied 434 U.S. 959, 98 S. Ct. 489, 54 L. Ed. 2d 318 (1977) ("Moten I"). Today's opinion is yet another chapter in the extensive post-trial history of this case. See, United States v. Moten, 582 F.2d 654 (2d Cir. 1978) ("Moten II"); United States v. Moten, 620 F.2d 13 (2d Cir. 1980) ("Moten III"). See generally, In re Grand Jury Subpoena Served Upon Doe, 551 F.2d 899 (2d Cir. 1977).
While this opinion assumes that the reader is familiar with the foregoing opinions, it is appropriate to observe that they deal mainly with a corrupt trial juror William Keno. At one point during the lengthy trial, Keno corruptly approached and spoke to Yolanda Intersimone, the sister of Sebastian Intersimone, the movant herein, on Broadway, near the Courthouse. The court was promptly informed of the incident, and Keno was immediately discharged. Over the succeeding years, various inquiries have been held and some testimony has been taken on whether another man was with Keno at the time of the corrupt approach, and if so, whether that man was another juror. These inquiries have failed to establish that another juror was with Keno at the critical time.
Against this background of inquiry and appellate review, defendant Intersimone now moves for a new trial. His motion is based on a recent affidavit of his sister, Yolanda Intersimone, and certain assertions on information and belief in his notice of motion. Essentially four grounds are alleged in support of his application: (1) that there was a second man with William Keno at the time of his corrupt approach to Yolanda Intersimone on September 17, 1976 and that beyond question it was juror number eight, Antonio Perez, who thereafter participated in the deliberations resulting in the convictions; (2) that, prior to the trial, Keno had visited a printing establishment and laundromat which were frequented by Intersimone's co-defendant, Frank Moten, had contacted a relative of Moten, named Dudley, before being removed from the jury, and had received a $ 1500.00 payment from someone before he approached Yolanda Intersimone; (3) that other unspecified members of the jury were offered or were paid bribes; and (4) that the court improperly admitted into evidence a $ 20,000.00 check issued by the Brunswick Finance Corporation and deposited by Intersimone in his account at the Bankers Trust Company, which was obtained by Internal Revenue Service ("IRS") Agent Kirchen through the issuance of an IRS Civil subpoena pursuant to 26 U.S.C. § 7602. These allegations, while seeming to warrant a further hearing, upon analysis, do not. For the reasons set forth hereafter the motion is denied in its entirety.
Turning to the first ground, the affidavit of Yolanda Intersimone, sworn to before a notary public on April 24, 1980 and declared to be true and correct under penalties of perjury, asserts "beyond a reasonable doubt and to a moral certainty, without any reluctance nor reservation" (sic) that the second man with Keno in front of the Duane Reade drug store on Broadway was juror number eight, Antonio Perez. Clearly, if Keno were, in fact, standing with juror Perez at the time of his corrupt approach to Yolanda Intersimone, the possibility that Perez was in league with Keno would probably necessitate a new trial. However, Ms. Intersimone's present unequivocal words, uttered for the first time some four years after the event, when viewed against her prior utterances, both under oath and otherwise, do not even justify the holding a hearing.
On three prior occasions Ms. Intersimone has testified on this very subject the identity of the person who may have been with Keno on the Friday afternoon, September 17, 1976. The first two times were on Monday September 20, just three days after the encounter. That morning, Ms. Intersimone was summoned before the Court. At that time, in response to an in camera inquiry she said:
As I was coming out (of Duane Reade drug store) I was very shocked to see one of the jurors standing outside the door, talking to someone. I didn't really notice the man who he was talking to because I was so shocked to see (Keno) right there.
Later that day she was summoned before a grand jury where she testified:
As I walked out the door (of Duane Reade drug store), who was standing right by the door one of the jurors (Keno). He was talking to a man but I did not see who the man was. I just recognized the juror.
Thus, three days after the incident, when her recollection was, or should have been, the freshest, she neither recognized the other man nor could she identify him as a member of the jury, let alone juror number eight.
Next, in March 1977, in the first of the post-trial attacks on the conviction, David Keegan, Intersimone's trial attorney, filed a hearsay affidavit, giving the following as his recollection of a conversation with Ms. Intersimone:
I had informed the prosecutor Daniel Beller that, according to Ms. Intersimone, juror number 10 was not alone at the time he spoke to her. As I understood it, he had been speaking with another juror, ....
Ms. Intersimone felt she could not say positively which juror had been with Keno, but she believed that it was one of the Hispanic jurors, either number 2 or number 8. When pressed by me, Ms. Intersimone finally decided she was unable to positively identify the person who had been with Keno and rather than identify the wrong person, she said she could not identify the other person. I reported this to Mr. Beller by telephone and there the matter was dropped.
Moten II, supra, at 659. Based solely on this hearsay affidavit, hearings were held in November 1978 and January 1979 on the question of whether another juror was with Keno outside the Duane-Reade drug store. See Moten II, supra. However, at that hearing Ms. Intersimone, again under oath, basically failed to ...