The opinion of the court was delivered by: KNAPP
Petitioners have filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, seeking to vacate their 1977 convictions and gain a new trial due to alleged jury tampering. Petitioners and the government have jointly undertaken discovery to ascertain what facts, if any, exist to substantiate the claim that co-defendant Guy Fisher bribed a juror in their trial. That process is now complete. Since insufficient evidence exists to warrant a hearing in which the individual jurors would be examined for evidence of taint, the petition is hereby dismissed.
On December 2, 1977 after a nine and a half week anonymous jury trial before the Honorable Henry F. Werker, the three petitioners and eight of their co-defendants -- including Leroy "Nicky" Barnes -- were convicted of various violations of federal narcotics and firearms laws. The jury hung as to Guy Fisher and acquitted the remaining two co-defendants.
In 1983 Fisher and others were tried again for violations of the narcotics, firearms and racketeering laws. In support of its motion for an anonymous jury in that case, the Government disclosed statements reportedly made by Guy Fisher to Barnes and a confidential informant about the alleged bribing of a juror in the 1977 trial. In substance, Fisher reportedly told Barnes that someone known to Fisher was attending the trial and had recognized one of the jurors and that he (Fisher) intended to approach the juror. Fisher later told the informant that a female spectator at the trial, who was known to all three petitioners in the instant case, recognized a black female who had been seated in the jury box as a prospective juror. Shortly thereafter a meeting was held near the courthouse at which these petitioners and other defendants discussed raising $25,000 to be paid to a relative of the juror. This juror was allegedly a black female who worked in a hospital. The informant further reported that Fisher told him that $25,000 was paid to the juror in return for obtaining a hung jury for Fisher, and that to the informant's knowledge the juror had disappeared from New York after the trial. According to the Assistant United States Attorney who prosecuted the case, the only black female juror then employed in a hospital was Juror #49, who was eventually seated as Juror #2.
Since the filing of the instant petition, petitioners and the government have deposed Guy Fisher and three women identified by petitioners as possessing "valuable evidence" about the alleged bribe.
Fisher denied having tampered with the jury in any way.
Pat Pender, an acquaintance of both Fisher and petitioner Steven Baker testified that she attended the Barnes trial on one occasion and recognized one of the jurors as "Randy", a doorman in her building. However, she never reported this fact to Fisher or any of the other defendants except for Baker, who simply told her that it would be better not to mention the matter to anyone. Pender did testify that Ingrid Weeks told her that she (Weeks) "knew someone who knew someone" on the Barnes jury.
Ingrid Weeks testified that she did not attend the Barnes trial, did not know any of the jurors and never had any discussion with anyone about the Barnes jury.
Dorothy Winchester testified that she neither attended the trial nor spoke to anyone about having a friend on the Barnes jury. She did, however, know two co-workers who may have been on some sort of jury duty during the relevant time period.
Petitioners seek an evidentiary hearing and the Government moves to dismiss.
We shall assume, for the sake of this discussion, that if it could be established that a juror had been bribed, we would be justified in examining the jurors as to the deliberations leading up to their verdict.
Upon such assumption, the question presented is whether petitioners have made ...