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September 17, 1982


The opinion of the court was delivered by: LASKER


 James Hillard moves pursuant to Fed. R. Cr. Pr. 33 for a new trial. The motion is based on three items of extra-record information which he claims may have come to the attention of a juror or jurors during the course of his trial. The items are:

 (1) that Hillard's counsel, David Breitbart, had formerly been both a prosecutor and counsel for a major narcotics figure;

 (2) that certain defendants had been released on bail during the trial, while others were in custody; and

 (3) that "Black Sunday," the heroin network which Hillard allegedly controlled, was an actual operation that still existed at the time of trial.

 The first two items came to light during the jury's deliberations on July 2, 1982. Juror No. 1, Ms. Blackwelder, advised the Court and counsel that certain "improprieties" had occurred in the jury room; in particular, that a relative of Debra Gause, Juror No. 3, had been present in the courtroom during the trial, and had shared certain extra-record information with Gause about Breitbart's experience and the custodial status of the various defendants. Gause was immediately summoned for an inquiry on these matters, in the presence of counsel and on the record. In response to questions from the Court, Gause explained that her cousin, Kibra Phillips, had accompanied her to New York City from Poughkeepsie, where they both resided, because she had been afraid to travel to and from New York by herself. She stated that her cousin had told her that some of the defendants had been handcuffed and others had not, and that she had also been told that Breitbart had formerly been a prosecutor. Gause was then sworn, and asked by the Court whether she had related the full content of her conversations with her cousin concerning the case, to which she responded in the affirmative. Certain defense counsel urged that additional members of the jury be questioned, and as a result, Juror No. 8, Marion Smith, who had impressed us "as being very steady and sensible" (Transcript at 2031), was questioned as to comments, if any made by Gause to her as to Breitbart's history or the custodial status of the defendants. Her answers were basically consistent with the answers of Blackwelder and Gause.

 At that point, we determined that sufficient inquiry had been conducted. We found Gause to have been credible in her statements as to the extent of her discussions with her cousin. Although any discussion between a juror and any other person concerning a trial on which that juror is sitting is improper, a cautionary instruction seemed sufficient to dispel any confusion and alleviate any prejudice which Gause's revelations had created among the jurors.

 The jury was convened, and instructed that neither the background of the attorneys nor the custodial status of the defendants were of any relevance to the issues before them and should be disregarded:

"I talk about those things to . . . tell you that neither of those propositions has anything to do, I underline the words -- anything to do -- with the issues that you have before you. . . . I therefore urge you and emphatically instruct you to return to your deliberations, put aside such irrelevancies and deal with the issues in the case."

 (Transcript at 2042-44).

 The third item of extra-record information came to light several days later. With the permission of the Court, attorney Breitbart interviewed Kibra Phillips, Juror Gause's cousin. Breitbart informed the Court that Phillips had stated that she and another relative of hers had had a conversation in the presence of Gause during the course of the trial about the Black Sunday operation and the quality of Black Sunday heroin. (Transcript at 2114-15). *fn1"

 While this disclosure appeared more serious than the earlier ones, it came at a time when deliberations had already been going on for three and a half days, and we determined that, under the circumstances, it would not be appropriate to halt the deliberations and conduct an inquiry:

"I think that the way for me to handle this is to go ahead and find out what the verdict of the jury is with regard to the various counts still remaining, . . . and if anything is to be done about the material which you have brought to my attention, which as I say leaves me confused rather than anything else, it would have to be done in a formal manner by motion to set aside such verdicts as have already been found against Mr. Hillard or ...

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