The opinion of the court was delivered by: LOWE
MEMORANDUM OPINION AND ORDER
Presently pending before this Court are two separate post trial proceedings brought by the defendant, Solomon Weiss. The most recent is defendant's motion for a new trial on the ground of jury contamination pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Also pending before this Court are previously filed motions for judgment of acquittal pursuant to Rule 29, or in the alternative, for a new trial under Rule 33, alleging inter alia that the credible evidence is insufficient to support a verdict of guilty on any count.
Two separate discussions follow. The Rule 29 and the Rule 33 opinion was written in May, 1983, but was not released, because of a letter received by this Court from defendant's attorney, Robert Kasanof, dated May 12, 1983 (see footnote 2 infra). It was the opinion of this Court upon receipt of the May 12, 1983, letter, that the issue of jury contamination should be resolved prior to final determination of the earlier Rule 29 and 33 motions.
The multiple count indictment filed in this case charged the defendant with racketeering, mail fraud, perjury and tax fraud. The theory of the government's case at trial was that in 1973, Weiss arranged for Warner Communications ("Warner") to purchase stock in the Westchester Premier Theatre ("WPT") and in return, receive cash for a Warner "cash fund ". As part of the scheme, the government argued that Weiss caused Warner to issue checks for services never actually performed by others for Warner in order to obtain money for Warner's "cash fund." The defendant denied the charges contained in the indictment.
At the conclusion of a three week trial, the jury commenced its deliberations on Tuesday afternoon, November 23, 1982, at approximately 1:45 p.m. (Tr. 1937)
The jury deliberated for several hours that first day, retiring for the evening at 10:00 p.m. (Tr. 1952) Deliberations resumed at 10:00 a.m. the following morning, Thanksgiving eve, and continued until 5:50 p.m. (Tr. 1954, 1980)
At the end of the second day of deliberations, at 5:50 p.m., the jury informed the Court that it was unable to reach a unanimous verdict on any count. (Tr. 1980, Court Exh. X) The defendant then moved for a mistrial. (Tr. 1980) That motion was denied. (Tr. 1984) The Court instead instructed the jury, to resume deliberations. (Tr. 1989-1990) Twenty minutes later, the jury requested that its deliberations be adjourned until after the Thanksgiving holiday. (Tr. 1992) Following the Thanksgiving recess the jurors resumed deliberations on Friday morning, November 26, 1982. (Tr. 1994) On Saturday, November 27, 1982, at 4:00 p.m., the jury returned a verdict of guilty on seven of the thirteen counts charged in the indictment. (Tr. 2056) These seven counts charged Weiss with RICO violations, mail fraud, and perjury.
On December 12, 1982, defendant submitted motions under Rule 29 or, in the alternative requested a new trial under Rule 33. After extended briefing by the defendant and the government, the Court held a hearing on the motion on February 23, 1983, and permitted parties to file further written submissions. Final submissions were filed on March 10, 1983.
In May of 1983, the Court was prepared to render a decision on the Rule 29 and 33 motions. However, on May 12, 1983, the Court received a letter from counsel for the defendant requesting that the court hold in abeyance its pending decision since the defendant had a new and urgent matter, the possibility of jury contamination, to bring before the Court.
The Court scheduled a hearing on this claim on May 17, 1983, at which time defense counsel requested and the Court granted an in camera hearing on the allegations. Present at the May 17th hearing were Assistant United States Attorneys Nathaniel Akerman and Lawrence Pedowitz representing the government, and Robert Kasanof and Bart Schwartz then of the law firm Kasanof and Schwartz representing the defendant. Also present was Leon Silverman, who is of counsel to Kasanof and Schwartz.
Mr. Kasanof informed the Court that extra-record evidence had been presented to the jury during their deliberations which may well have contaminated those deliberations. Mr. Kasanof then read from the trial transcript of November 26, 1982 (page 1998, lines 13 to 20), which was a proceeding after the court had received a note from the deliberating jury (Court Exh. Y). The transcript was as follows:
THE COURT: [Reading the note from the jury] The jury has been directed to use its best unbiased judgment and common sense in reaching a verdict on a series of counts outlined to us. Our ability to do this fairly is dependent upon our varied, collective experiences. Most of us are unfamiliar with the nature of the training of a CPA. Underlined. "Mr. Weiss is a CPA."
Question, period, for question: Is this jury entitled to know what a CPA is, as opposed to bookkeeper, lawyer versus legal aid[e], M.D. versus paramedic, dentist versus dental tech."
A line is drawn and under the line is: "Re underlined (Xerox), sentences, Meigs and Meigs. ["]
" , J3," and signed by our foreperson.
Mr. Kasanof informed the Court that he had identified a standard set of accounting textbooks which were authored by Meigs and Meigs, and which also discuss the "understanding or required understanding of a CPA . . ."
Mr. Silverman reported to the Court that he had been reliably informed by someone that an accounting text had been brought into the jury room during deliberations. This person indicated to Mr. Silverman that a magazine reporter had interviewed several jurors in the case who in the course of the interviews stated that "a text, an accounting text had been brought into the jury room." (Hr. I, 7) On a later occasion, Mr. Silverman continued, he spoke with the same reporter who stated that his research indicated that, although the textbook had not been brought into the jury room, a copy or excerpt from the book was present during the deliberations. (Hr. I, 8)
Mr. Kasanof then marked the textbook Meigs & Meigs, Financial Accounting, as an exhibit and read into the record the following from page 6. (Hr. I, 11-12)
Certified public accountants are independent professional persons comparable to attorneys or physicians who offer accounting services to clients for a fee . . . The principal function of a CPA is auditing. How do people outside a business entity, owners, creditors, government officials and other interested parties know that the financial statements prepared by the company's management are reliable and complete? In large part these outsiders rely upon audits performed by a CPA firm which is independent of the company issuing the financial statements.
Defense counsel stated that the jurors either had the excerpt from the book or it was read to them for the purpose of indicating that a CPA had a greater degree of responsibility and learning than a bookkeeper.
Mr. Kasanof then submitted a list of cases and made a motion that the Court inquire of the jurors concerning the alleged extra-record evidence. After a short recess and further discussion, the Court granted the government's request to adjourn the proceeding for briefing and set the matter down for May 20, 1983, for a decision on defense counsel's application. On application of Mr. Kasanof and with no objection from the government, the record was sealed. At the May 20, hearing the Court ruled that an inquiry of all the members of the jury would be conducted beginning on May 25, 1983, and also at that time, a conference would be held for both sides to work out the mechanics of the questioning.
At the inquiry, the Court questioned Juror #3, the author of the jury note, Court Exh. "Y", who stated that when he came to the deliberations on November 26, he brought with him a basic text on bookkeeping and had xeroxed a page of the book.
Juror #3 explained that neither the book nor xerox was brought into the jury room. (Hr. II, 27) However, Juror #3 testified that from his reading of the book, he explained to the jury what kind of training an accountant has, and specifically, how such training differs from the training of a bookkeeper. (Hr. II, 27-28) When asked by the Court to explain his reasons for what he did, Juror #3 stated that:
One of the key aspects of deciding whether or not Mr. Weiss was guilty rested on the argument of whether or not one can reasonably expect him to know certain kinds of things. The understanding that Mr. Kasanof would have had us to accept was that . . . (Mr. Weiss) was just following the kinds of things that a bookkeeper or accountant does without really having a good grasp of the significance of it. . . . And if the man was functioning as a bookkeeper then one might accept that, I suppose. But . . . to me what is important, to me the man is trained as a CPA . . . [Hr. II, 32-33]
Juror #3 further testified that:
When you have a CPA (in contrast to a bookkeeper) you're (sic) trained different . . . I felt that was important for people to understand that because we're trying to decide what Mr. Weiss knows and what it is that we can reasonably expect him to know and what you can reasonably expect of him is different for a CPA than it is for a bookkeeper. [Hr. II, 28]
In response to the Court's written inquiry to Juror #3
asking him to indicate those portions of the text that he explained to the jury, he responded with the following letter to the Court:
At some point during the trial the nature of the defendants education was discussed. It was indicated that Mr. Weiss was a CPA. Neither lawyer disagreed with this. CPA -- this is not 3 randomly selected letters, it is not XYZ. CPA abbreviates CERTIFIED PUBLIC ACCOUNTANT. Certified by who to do what? What is his job? For what may he be held accountable as a CPA? A lawyer can be disbarred, a medical doctor can have his license revoked. What can happen to a CPA?
I have bracketed the quote I recited to the jury on page 7. My note which you asked if I had written, may also have mentioned another page but I believe I didn't bother with it. For my own edification I read pages 6, 7, 8 and perhaps a few other pages at home -- not at the court house.
We were to use our best judgement, experience, etc. in evaluating the evidence presented. No one said I could not inform myself of the training and skills of a CPA. Having done so, that is my experience. The quote is a definition. It is in no way directed toward either the prosecution or the defense. Since I could not get the page entered in a formal way, it was presented as my opinion -- carrying no more weight than anyone else's opinion. The argument among jurors was going on before the quote, and contiued (sic) to the end of the deliberations. The other jurors were not willing to let me rephrase the question so I dropped the issue and left it as my own opinion.
In addition to the testimony of Juror #3, at least six other jurors of the twelve were interviewed by the Court, seven had some recollection of the note in question (Exhibit "Y").
The knowledge of these six ranged from a simple recollection that the note was written, to a specific recollection of the conversations that lead up to and followed the writing of the note. On June 1, 1983, the Court questioned the marshall who was assigned to the jury deliberations on November 26, a Mr. Richard McHale. Marshall McHale testified that he neither recalled seeing an accounting book in the jury-room, nor recalled any juror asking that he give to the Court a book or xeroxed pages of a book.
On June 29, 1983, following several hearings on this matter, defense counsel filed a motion for a new trial pursuant to Rule 33, on the ground of jury contamination. On July 7, 1983, the government filed its opposition to the latest motion, and final submissions were made on July 14, 1983. Given the sensitive nature of the proceedings and at the request of counsel all of the records pertaining to the jury inquiry were sealed.
II. EVIDENCE PRESENTED AT TRIAL
Because the jury contamination question requires this Court to look at the entire trial record, (see legal discussion pages 1236-37 infra), what follows is a detailed examination of the evidence presented at trial. The record before the Court is both lengthy and complicated. For purposes of clarity and organization this opinion relies on both parties' summations in its review of the record.
In his summation Assistant United States Attorney Nathaniel H. Akerman (AUSA Akerman) stressed three factors which he claimed proved Weiss' guilt: (1) the direct testimony of accomplices, (2) the undisputed evidence of his signature on the documents in question, and (3) evidence suggesting that Weiss committed forgery.
I. Testimony of Horwitz and Emmett (The Accomplices)
As defendant's counsel stated in his summation, the question before the jury was a "relatively sharply drawn issue" (Tr. 2050) as to whether the jury believed the government's witnesses, Jay Emmett and Leonard Horwitz, or the defendant. The testimony of Emmett and Horwitz, the government argued, proved that Weiss negotiated with Horwitz for cash, accepted cash from Horwitz, made false entries in Warner's records and caused false documents to be created knowing that it was for a secret cash fund.
Horwitz testified that sometime in May 1973, the Westchester Premier Theater ("WPT") was in the process of selling stock for a public offering. (Tr. 130) During the course of this offering, Elliot Weisman, the president of WPT, asked Horwitz, a friend of Emmett to approach Emmett about purchasing 10,000 shares of WPT stock for $75,000. (Tr. 138) Under the deal offered by Weisman, the theater would loan Emmett $50,000 toward the purchase price of the stock. (Tr. 138)
Horwitz subsequently met with Emmett at the Warner office and carried with him, in a brown paper bag $50,000 received from Weisman. (Tr. 140) Emmett testified that after hearing Horwitz' proposal, he declined his offer because he had already bought 10,000 shares of seed stock in the WPT for a lower price and did not wish to buy any more. (Tr. 680) He suggested, however, that Warner might be interested in the offer. (Tr. 681) Emmett left Horwitz to go talk to Steven Ross, Chairman of the Board of Warner. (Tr. 681) According to Emmett's testimony, Ross stated that Warner could not take a loan to buy stock in a public company, but suggested that Horwitz meet with Sol Weiss,
and that maybe Horwitz could help with the Warner "cash fund". (Tr. 681) Emmett then contacted Weiss and told him of his conversation with Ross. (Tr. 682) Thereafter, Emmett introduced Weiss to Horwitz and left the two to discuss the matter. (Tr. 682)
Horwitz testified that he proposed to Weiss the same deal that he had offered to Emmett. (Tr. 143) Weiss indicated that the company would be interested since it always had a need for cash. (Tr. 143) Weiss then counted the cash in the paper bag, excused himself and started to leave the room. (Tr. 144) Horwitz asked Weiss if he was going to see Ross and Weiss responded that Ross' name wasn't to be used. (Tr. 144) Five to ten minutes later, Weiss returned and made a counteroffer. He proposed that Warner would buy 20,000 shares of stock, provided that WPT give Warner $100,000 in cash as payment for Warner buying the stock. (Tr. 144) Horwitz phoned Weisman, secured his approval, and accepted Weiss' offer. (Tr. 145) The $50,000 in cash in the bag was then turned over to Weiss with the promise that the additional $50,000 would be forthcoming. (Tr. 146)
II. Undisputed evidence of Weiss' signature on the documents in question.
On May 30, 1973, Warner purchased 20,000 shares of WPT stock. The request for check
was prepared and initialed by Weiss. (GX 1) The request for check was also approved by Bert Wasserman
and contained the writing "O.K. per Jay Emmett". Pursuant to this request, a check was mailed to the brokerage firm handling the transaction. (GX 2) Horwitz testified that following the stock purchase, Weiss asked Horwitz for the $50,000 in cash that was still due Warner pursuant to their agreement. (Tr. 150) Horwitz informed Weiss that WPT did not have that amount of money in cash, and Weiss modified his original deal with Horwitz. Instead of $50,000 in cash, Weiss instructed Horwitz to deliver to him $20,000.
(Tr. 151) At the same time Weiss agreed to issue two Warner checks totalling $50,000 to WPT representatives for non-existent services. (Tr. 151)
Horwitz testified that on the same day that he delivered the $20,000 in cash to Weiss, Weiss in return gave him two checks; one for $30,000 made payable to the WPT and the second for $20,000 made payable to Horwitz. (Tr. 153) Both checks were signed by Jay Hardy, an employee of Warner. (GX 8 and 15) Horwitz took the $20,000 check and opened an account at Bank Leumi. (Tr. 154, GX 10 is the record of that account) After depositing that check, Horwitz withdrew $9,900 to give to Elliot Weisman. (Tr. 153, GX 12 is a check for cash in the amount of $9,900) Horwitz delivered to Weisman the $30,000 check made out to the WPT. (Tr. 156) However, Weisman would not accept the check since it was made out to WPT and would therefore be accountable on its books and records. (Tr. 157) Horwitz returned this check to Weiss, who then voided it by tearing off the signature. (Tr. 157, GX 17) Horwitz and Weiss agreed that a $30,000 check payable to Dennis Konner of Konner & Brodsky would be issued to replace the original check to the WPT. (Tr. 158)
Horwitz further testified that to make it appear that actual services had been provided to Warner by Konner, Weiss directed him (Horwitz) to prepare a false backdated invoice purportedly from Konner. (Tr. ...