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United States v. Colombo

argued: January 6, 1989.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ANTHONY COLOMBO, VINCENT COLOMBO, JOSEPH COLOMBO, JR., PETER LUDOVICO, PHILIP ROSSILLO, ALPHONSE MEROLLA, WILLIAM F.X. KLAN, ANTONIO LO PICCOLO, FRANK SPARACO, MICHAEL DETORE, VINCENT CASUCCI, FRANK BUSCEMI, JOHN DE LISO, VINCENT LA ROSA, JOSEPH LA ROSA, SALVATORE CLEMENTE, THOMAS DI DONATO, SALVATORE CARDELLA, JOSEPH LA BELLA, JOSEPH RUDD, JEROME BAPTIST, LESLIE KAYE, JOHN LOMBARDO, VINCENT DELANDRO, FRANK FRISONE, DEFENDANTS, WILLIAM F.X. KLAN, DEFENDANT-APPELLANT



Appeal from a conviction in the United States District Court for the Eastern District of New York (Edward R. Korman, Judge) on one count of conspiracy to violate RICO, 18 U.S.C. § 1962(d), and one count of conspiracy to distribute narcotics, 21 U.S.C. § 846. Appellant claims that a juror's deliberately failing to disclose during voir dire that her brother-in-law was a government attorney requires a reversal. We remand for a factual determination as to whether the brother-in-law was such an attorney.

Kearse, Cardamone and Winter, Circuit Judges.

Author: Winter

WINTER, Circuit Judge.

This appeal principally concerns a juror's alleged misconduct. It is claimed that one member of the jury that convicted appellant deliberately violated her oath during the voir dire by failing to disclose that her brother-in-law was a government attorney and that she did so in order to sit on this case. We remand for a finding of fact as to whether her brother-in-law is a government attorney. If it is found that he is, appellant's conviction must be vacated.

BACKGROUND

Appellant William F. X. Klan was charged with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d) (1982), and conspiracy to distribute narcotics, 21 U.S.C. § 846 (1982). His first trial ended in a mistrial when the jury could not agree. At his second trial, he was convicted on both counts by the jury.

Appellant was alleged to have provided information to members of an organized crime family about possible criminal ventures. The government claimed that appellant, a lawyer, became connected with this organized crime family through a client, Peter Ludovico, allegedly an associate of that family. Ludovico would obtain information about probable "scores" from various tipsters, including appellant, and robberies would then be carried out, the proceeds being shared with the particular tipster. One of the gang that carried out the robberies was Anthony Ferraro, a former client of, and key immunized witness against, appellant. The robbers were alleged to have met at various locations, including the El Doro Caterers, to discuss their criminal plans.

At trial, Ferraro testified that appellant had provided tips about three of appellant's clients likely to have cash, drugs, or valuables, which then led to these individuals being robbed. One of these was a man thought to have gold and cocaine stashed in his home. Upon finding neither gold nor drugs, the crew raped and sodomized the man's wife. Appellant denied any involvement in the crimes. The jury in the second trial convicted him on both counts.

After his conviction, appellant moved for a new trial based upon an affidavit and supplemental affidavit of an alternate juror, Florence Kennedy, concerning, inter alia, statements to her by another juror ("the juror"). During the voir dire, the magistrate had made several inquiries concerning the potential jurors' contacts with both law enforcement personnel and lawyers. Included were such questions as: "Were any of you or any of your close friends or relatives ever involved in law enforcement?"; "Do any of you know anyone on the staff of the United States Attorney's Office of the Eastern District of New York?"; and "Do any of you work with lawyers or have close friends, relatives who are lawyers?" Under oath, the juror told the magistrate that she did not have a "yes" answer to any of those questions.

Ms. Kennedy averred, inter alia, that during a break in the trial, the juror stated to Ms. Kennedy that her brother-in-law was a lawyer for the government, but that she, the juror, did not mention this during the voir dire because she wanted to sit on the case. In addition, the juror said that she lived near the El Doro Caterers and "knew it was a hang out for gangsters."

Discussion

Appellant contends that the juror's allegedly untruthful response during the voir dire prejudiced his right to a fair and impartial jury. The government claims that appellant waived this claim by not asserting it in his motion for a new trial. While appellant could have been more specific in asserting this ground, the issue was clearly before the district judge. Appellant's motion thus alleged "misconduct by the jury," and incorporated by reference the Kennedy affidavit detailing the remarks of the juror. Moreover, the judge expressly stated that he had ruled on all the allegations in the Kennedy affidavit and that the only matter worthy of a hearing involved third-party communications to another juror. The issue having been before the district court and ruled upon, it has clearly been preserved for appeal.

For purposes of the appeal, we must assume the truth of the Kennedy affidavit that the juror in question deliberately failed to reveal that her brother-in-law was an attorney for the government and did so because she believed that revelation of that information might thwart her desire to sit on this case. If those are the facts, Mr. Klan's conviction cannot stand, because such conduct obstructed the voir dire and indicated an impermissible partiality on the juror's part.

Voir dire is an important method of protecting a defendant's right to trial by an impartial jury. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 78 L. Ed. 2d 663, 104 S. Ct. 845 (1984). We have held that the defense deserves "'a full and fair opportunity to expose bias or prejudice on the part of veniremen.'" United States v. Barnes, 604 F.2d 121, 139 (2d Cir. 1979) (quoting United States v. Robinson, 154 U.S. App. D.C. 265, 475 F.2d 376, 380-81 (D.C. Cir. 1973)), cert. denied, 446 U.S. 907, 100 S. Ct. 1833, 64 L. Ed. 2d 260 (1980). "There must be sufficient information elicited on voir dire to permit a defendant to intelligently ...


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