Appeal attacking order of the United States District Court for the Southern District of New York, Mary Johnson Lowe, J., denying, without a hearing, defendant's motion for a new trial. Appellants claim that ex parte statements made to the jury by the district judge and a federal marshal deprived them of a fair trial. Order vacated and case remanded for a hearing.
Feinberg, Newman and Altimari, Circuit Judges.
Matthew Ianniello, Vincent DiNapoli, Louis DiNapoli, Nicholas Auletta, Edward J. Halloran, Aniello Migliore, Anthony Salerno, Richard Costa and Alvin O. Chattin appeal after judgments of conviction in the United States District Court for the Southern District of New York, Mary Johnson Lowe, J. The subject of the appeal is the judge's denial of appellants' motion for a new trial and her refusal to recuse herself from deciding the motion. We vacate the order denying a new trial and remand to another district judge for further proceedings, including an evidentiary hearing.
Appellants were convicted of violations of the RICO statute, 18 U.S.C. § 1961 et seq., and various underlying offenses following a thirteen-month trial in the district court. The jury was "semi-anonymous," that is, the trial court directed the jurors not to reveal their first names, addresses, or places of employment during voir dire. The jurors were also required to eat lunch together and were driven away from the courthouse at the end of each day. The jury convicted nine and acquitted two of the eleven defendants, failing to agree only on four predicate racketeering acts. After the verdicts were returned, defendants moved for a new trial and for recusal of the district judge in deciding the motion, claiming that they had been denied a fair trial because of ex parte communications between the judge and jury and an improper statement by a federal marshal to the jury. The district judge denied the motion without a hearing, holding that "the evidence submitted by the defendants in support of their motion lack[ed] sufficient reliability, clarity, and strength to warrant further inquiry." After imposition of sentences ranging from six years to 70, these appeals followed. Pursuant to an order of this court, the appeals have proceeded on a bifurcated basis with the questions dealt with in this opinion submitted to this panel on an expedited basis.
The alleged facts here are most unusual. In the district court, appellants offered three affidavits, allegedly signed by jurors and procured by a private investigator hired by defendants, swearing that three improper events took place during jury deliberations, two involving the judge and one involving a federal marshal. The affidavit of the jury foreperson states that the district judge, after about a week of deliberations, "appeared at their room and from the doorway told them they must work together and come to some decision. Either a conviction or acquital (sic), but she did not want a hung jury. All the jurors heard the Judge's remarks." According to appellants' calculations, the jury produced a verdict as to each defendant after deliberating for only seven and one half hours more after this incident. The foreperson's affidavit also claims that on another occasion, while she was in the judge's "room" making a telephone call, "the Judge admonished that [she] must pull the others together and reach a verdict [on the forfeiture decisions], again stating that she did not want a hung jury." The exact timing of this incident is unknown.
The affidavit of another juror stated, "the Judge did not want a split decision, it had to be yes or no. . . . [The juror] remembers the Judge once coming to the door and reminding them to either convict or acquit, but she did not want a hung jury." On another occasion, while in the judge's room making a telephone call, "the Judge told [the foreperson] to go back and try to convince the others to agree." The affidavit of the third juror indicated that it was also his understanding that "we could not have a 'hung jury' we had to either find the defendants guilty or not guilty."
One of the affidavits also stated that "during the deliberation the jury Foreperson was advised by the Marshall (sic) that we had to listen to over one hundred tapes if we didn't come to some decision." Although the foreperson's affidavit does not corroborate that the marshal made such a statement, it does say that "she was told the people outside are becoming tired of this, if you don't come to a decision soon you are going to have to listen to over one hundred tapes and you'll really be stuck, so pass that on to the others." After this last incident, according to appellants' calculations, the jury deliberated only three and one half hours more before returning a verdict.
Appellants claim that these events deprived them of a fair trial and coerced the jury into a verdict. They argue that the judge's comments would have been improper even if they had been delivered in open court because the jury never gave any indication to the court that it was deadlocked and the instructions lacked a necessary element of a valid Allen charge--a reminder that the jurors should not abandon their conscientiously held doubts.*fn1 Appellants claim that the judge told the jury that there could be no hung jury and that this was fundamental error, citing, e.g., United States v. United States Gypsum Co., 438 U.S. 422, 57 L. Ed. 2d 854, 98 S. Ct. 2864 (1978), and Jenkins v. United States, 380 U.S. 445, 13 L. Ed. 2d 957, 85 S. Ct. 1059 (1965) (per curiam). The jury followed this erroneous instruction, appellants contend, as evidenced by its reaching a verdict on each and every count of the indictment as to each defendant, totalling over 160 findings of guilt or innocence. Appellants claim that the ex parte nature of the instructions aggravated the error, denying defendants' Sixth Amendment right to confrontation, and violating Fed. R. Crim. P. 43, under which a defendant has the right to be present when the court communicates with the jury.
The government responds by raising doubts as to whether the judge's and jurors' alleged statements were made at all, or, in the case of the jurors, made freely. It also argues that even if the statements were made, they were harmless. It claims that in context, and under all the circumstances, the jury was not coerced into a verdict as shown by the fact that it continued deliberating and failed to reach agreement on some of the predicate acts. The government does not agree with appellants' estimates of how much time the jury deliberated. The government also argues that the law creates a presumption against the hearing requested here, and that this court should be reluctant to allow reexamination of a jury verdict, because such inquiries lead to jury tampering and harassment. Like the district judge in her opinion, the government contends that the proffered affidavits reveal facial inconsistencies and indicate unreliability, arguing that the proof appellants have offered is insufficient to require a new trial or even a hearing.
It would be entirely inappropriate for this court to order a new trial at this time, when it is not clear what occurred, United States v. Gersh, 328 F.2d 460, 464 (2d Cir.), cert. denied sub nom., Mugnola v. United States, 377 U.S. 992, 12 L. Ed. 2d 1045, 84 S. Ct. 1919 (1964), or whether defendants suffered prejudice. At oral argument, appellants seemed to retreat from their request for a new trial, pressing instead their demand for an evidentiary hearing. The gravity of granting such a request should not be underestimated, however, because even a post-verdict evidentiary hearing raises serious questions. "The duty to investigate arises only when the party alleging misconduct makes an adequate showing of extrinsic influence to overcome the presumption of jury impartiality." United States v. Barshov, 733 F.2d 842, 851 (11th Cir. 1984), cert. denied, 469 U.S. 1158, 83 L. Ed. 2d 919, 105 S. Ct. 904 (1985), citing United States v. Winkle, 587 F.2d 705, 714 (5th Cir.), cert. denied, 444 U.S. 827, 62 L. Ed. 2d 34, 100 S. Ct. 51 (1979). As the judge pointed out in her opinion below, hearings such as the one that appellants request should be "avoided whenever possible."
We are always reluctant to "haul jurors in after they have reached a verdict in order to probe for potential instances of bias, misconduct or extraneous influences." United States v. Moon, 718 F.2d 1210, 1234 (2d Cir. 1983), cert. denied, 466 U.S. 971, 80 L. Ed. 2d 818, 104 S. Ct. 2344 (1984). As we have said before, post-verdict inquiries may lead to evil consequences: subjecting juries to harassment, inhibiting juryroom deliberation, burdening courts with meritless applications, increasing temptation for jury tampering and creating uncertainty in jury verdicts. Miller v. United States, 403 F.2d 77, 82 (2d Cir. 1968); United States v. Crosby, 294 F.2d 928, 950 (2d Cir. 1961), cert. denied sub nom., Mittelman v. United States, 368 U.S. 984, 7 L. Ed. 2d 523, 82 S. Ct. 599 ...