conducted an immediate post-trial inquiry to determine whether
the jury had been tainted by certain extra-record information
obtained by one of the jurors. The court heard testimony from
ten other jurors in camera because the witnesses were jurors
who had not expressed a willingness to come forward on behalf
of the defendants. The interview of the jurors was conducted
only in the presence of counsel, the private investigator, and
a court reporter, and the court did not apply the Federal Rules
of Evidence. The Second Circuit commended the court's handling
of the matter: "[t]he court wisely refrained from allowing the
inquiry to become an adversarial evidentiary hearing so as to
minimize intrusion on the jury's deliberation." Id. at 896.
We distinguished Calbas from the instant case in part because
of the representations made by defense counsel in this case
regarding the willingness of three of the jurors to participate
in a post-trial inquiry. In both their written submissions to
the Court and at the first hearing, counsel for the defendants
stated that the witnesses who would testify at this evidentiary
hearing had agreed to come forward on behalf of the defendants.
This representation turned out to be valid. Thus, the three
jurors were not being compelled to return to court, against
their will, after completing their jury duty. Rather, this was
a case where the three jurors had submitted affidavits and had
otherwise shown "their willingness to participate in further
proceedings." Accordingly, this Court ruled that at least as to
their testimony the hearing should be held in open court.
Next, we addressed the questioning of the witnesses. The
Court ruled that the witnesses would be questioned by the
movants' attorneys, followed by cross-examination and
re-direct examination as governed by the Federal Rules of
Evidence. The Court's role would be limited only to questions
asked for the purpose of clarification. See United States v.
Ianniello, 866 F.2d 540, 544 ("We leave it to the District
Court's discretion to decide the extent to which the parties
may participate in questioning the witnesses. . . ."). As a
result, this Court established adversarial standards for the
conduct of the hearing which were in direct contrast to the
informal inquisitorial proceeding held in Calbas.
Throughout the hearing itself, this Court stated that the
Federal Rules of Evidence should apply "to the extent they are
interpreted in this District and to the extent they are
modified by the Judge Goddard Rule" (Tr. 627-629).*fn12
The Government believes the tapes were admitted into
evidence on consent (Tr. 202-204). When Mr. Glynn was
examined, he agreed that the microcassettes contained his
conversations with the jurors, and he explained his procedure
for recording the jurors (Tr. 36-39). When the Government
offered those exhibits into evidence on cross-examination,
defense counsel did not object and the exhibits were received
(Tr. 202-204). Defense counsel counters that although there
was no contemporaneous objection to the admission of tapes,
the proffer was made after the Court stated: "I'm not having
any tapes played unless they are for the limited purpose of
impeachment . . ." (Tr. 97, emphasis added). Therefore, the
defendants believed that the tapes were admitted only for
impeachment purposes, not as substantive proof. The Court left
the issue open when it stated: "I assume that the tapes are for
the purpose of . . . obviously for credibility and prior
statements as they would be in any situation. I don't know if
they are being offered for the truth" (Tr. 628).
In light of this colloquy, although this was a post-verdict
hearing which perhaps did not have to adhere to the Federal
Rules of Evidence, the Court, in fairness and to avoid
surprise, should, consistent with its prior rulings decide the
issue of the admissibility of the tapes pursuant to the
Federal Rules of Evidence.
Rule 803(24) R.F. Evid.
The issue then becomes whether these tapes, which are
clearly hearsay, fall under one of the exceptions to the
hearsay rule. The only exception which appears to be
applicable to this case, where the witnesses are available to
testify (although as a matter of policy they should not be
required to do so), is Rule 803(24), which provides that
hearsay statements not otherwise included within any specific
exception may be admitted if they have equivalent
circumstantial guaranties of trustworthiness. Rule 803(24)
The following are not excluded by the hearsay rule even
though the declarant is available as a witness:
(24) Other exceptions. A statement not
specifically covered by any of the foregoing
exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court
determines that (A) the statement is offered as
evidence of a material fact; (B) the statement is
more probative on the point for which it is being
offered than any other evidence which the
proponent can procure through reasonable efforts;
and (C) the general purposes of these rules and
the interests of justice will be best served by
the admission of the statements into evidence.
This hearsay exception has been applied in a number of cases
to allow into evidence statements that do not fit into any of
the traditional and explicit exceptions to the hearsay rule.
See United States v. Medico, 557 F.2d 309 (2d Cir.), cert.
denied, 434 U.S. 986, 98 S.Ct. 614, 54 L.Ed.2d 480 (1977);
United States v. Iaconetti, 540 F.2d 574 (2d Cir.), cert.
denied, 429 U.S. 1041, 97 S.Ct. 739, 50 L.Ed.2d 752 (1976);
Robinson v. Shapiro, 646 F.2d 734 (2d Cir. 1981). The Court
recognizes, however, that Rule 803(24) is not intended to be "a
broad license" to trial judges to admit hearsay, but rather, it
should be used in rare and exceptional circumstances, keeping
in mind that the trial judge should "exercise no less care,
reflection and caution than the courts did under the common law
in establishing the now-recognized exceptions to the hearsay
rule." S.Rep. No. 1277, 93rd Cong., 2d Sess. 19, U.S.Code Cong.
& Admin.News 1974, p. 7066.
One of the paramount concerns in a criminal trial is the
cross-examination of witnesses. See Sullivan v. Fogg,
613 F.2d 465 (2d Cir. 1980); see United States v. Shakur, 817 F.2d 189,
200 (2d Cir. 1987), quoting Chambers v. Mississippi,
410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973) ("absence
of cross examination 'calls into question the ultimate
integrity of the fact finding process'"). When our judicial
system was established and the requirement of an oath or
affirmation on the part of a witness was borrowed from the
British common law, the swearing of an oath meant something —
namely, that the court could be fairly sure that a witness
would tell the truth. In the time of our Founding Fathers,
witnesses believed that they would be subject to severe and
perhaps immediate Divine retribution if they lied under oath on
the witness stand, based on the Ninth Commandment's
proscription, handed down by God to Moses that "Thou shalt not
bear false witness against thy neighbor" (Exodus, Ch. 20, Verse
16 (King James Version)).
Unfortunately, the sanctity of the oath taken by witnesses
at trial has been significantly eroded and laced with
skepticism in recent years. Yet it is still believed that the
courtroom engenders an atmosphere conducive to truth-telling,
for it is likely that upon being brought before such a body of
neighbors and fellow citizens, and having been placed under a
solemn oath to tell the truth under the temporal penalties of
perjury, many witnesses feel obliged to do just that.
The fact that a witness takes an oath to tell the truth,
however, does not necessarily mean that when he takes the
stand he is going to tell the truth. We hope and expect
that he will. But for different reasons or motives people have
been known and will be known to lie. In light of this reality,
cross-examination has come to be viewed as an acceptable means
of getting at the truth. See Spaeth v. United States,
232 F.2d 776, 779 (6th Cir. 1956) ("In our judgment, cross-examination
is generally an even more effective factor in revealing truth
than the oath of a witness"); California v. Green,
399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970)
(mechanisms of confrontation and cross-examination advance the
pursuit of truth in criminal trials). Cross-examination does
this generally by suggestive and leading questions which lead
to inconsistencies or implausibilities and trap all liars but
the most skilled and well-prepared.
The right to Sixth Amendment cross-examination now extends
beyond the constitutional requirements of the Confrontation
Clause. However, the Supreme Court has also made clear that
while the hearsay rule and the Confrontation Clause "stem from
the same roots," Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct.
210, 218, 27 L.Ed.2d 213 (1970), and "are generally designed to
protect similar values," California v. Green, 399 U.S. 149,
155, 90 S.Ct. 1930, 1933, 26 L.Ed.2d 489 (1970), their reach is
not co-extensive. See Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct.
2308, 33 L.Ed.2d 293 (1972). The Sixth Amendment guaranty of
confrontation, therefore, should not blind us to the reality
that the question of the admission of hearsay statements at
this point in history, whether in a criminal or civil case,
turns solely on due process considerations of fairness,
reliability and trustworthiness.
The tape-recorded interviews meet all the criteria set forth
in the residual exception. The factors supporting
admissibility include the fact that the interviews took place
shortly after the trial ended, thereby assuring that the
events of the trial and deliberations were still fresh in the
jurors' minds. Mr. Glynn interviewed the jurors at great
length. His years of police experience served him well, as he
repeatedly probed the jurors by leading and suggestive
questions and argumentative assertions of "fact" said,
falsely, to have been corroborated by others previously
The interrogation of the jurors possessed every
characteristic of a thorough and exhaustive cross-examination
as to whether any outside influence affected their
deliberations. In each case, the non-affiant jurors, who had
no reason to lie or distort the facts, either did not recall
the incidents or expressly denied that they ever occurred.
They did so repeatedly, despite wheedling and suggestive
exhortation by Mr. Glynn. Indeed, Mr. Glynn admitted on
cross-examination that each of the non-affiant jurors had, in
fact, denied any knowledge of the alleged incidents (Tr. 105).
Although the movants may not like the answers, there is no
reason to doubt the trustworthiness of the statements.
Therefore, the conversations on the tapes have sufficient
indicia of reliability to be admitted under Rule 803(24).
This Court believes it would be highly unfair and a waste of
judicial resources now to require these jurors to testify as
a condition to the admissibility of these secretly-recorded
interviews conducted by a hired investigator whose sole
purpose was to elicit facts favorable to those who hired him
and now object to the admissibility of his work. The
reliability of the tapes and the thorough manner in which the
jurors were interrogated leads us to conclude that no further
questioning is necessary or productive. If any of these
non-affiant jurors now testified inconsistently with the
tapes, they would not be credible, and any such testimony
would be impeached by the tapes. The circumstances concerning
the statements on the tapes "provide a guarantee of
trustworthiness equivalent to the exceptions to the hearsay
rule." United States v. Iaconetti, supra, at 574; see United
States v. Ianniello, supra, at 544 ("the rest of the jurors
should be examined only if the district court conducting the
hearing determines, in its discretion, that such testimony is
The defendants' final contention is that the tapes of the
inadmissible on authenticity grounds. Basically, the
defendants now claim that the testimony of Mr. Glynn left
serious doubt concerning both his competence and the ability
of the tape recorder accurately to record the conversations.
Defendants rely on United States v. Fuentes, 563 F.2d 527 (2d
Cir. 1977), a case where the Court of Appeals held that because
"recorded evidence is . . . susceptible to alteration, clear
and convincing evidence of authenticity and accuracy must be
present before taped evidence may be admitted." Id. at 532. The
Court is satisfied that the tapes are accurate and trustworthy
so that they may be received in evidence for substantive
Indeed, the taped interviews by Glynn of the non-affiant
jurors are the most highly probative evidence in our entire
record bearing on the main issue: Was the verdict tainted by
improper ex parte contact with the jurors? Had the original
motion papers considered by the Court of Appeals disclosed the
existence of these four tapes and their content, it is highly
likely that these hearings would have been considered
Defendants' Motion to Call Remaining Jurors as Witnesses
Defendants request that all remaining jurors be called to
testify, and that they be placed under oath and subject to
The right of a criminal defendant to be tried by a jury is
one of the most significant guaranties of our Constitution.
Such a defendant has a right to a trial by an impartial jury,
unprejudiced by extraneous influence, and when reasonable
grounds exist to believe that the jury may have been exposed
to such an influence, the inquiry must be broad enough to
permit "the entire picture" to be explored. Remmer v. United
States, 350 U.S. 377, 379, 76 S.Ct. 425, 426, 100 L.Ed. 435
(1955) ("Remmer II").
The defendants argue that this Court can only explore "the
entire picture" by calling the remaining nine jurors to
testify. However, the interest in allowing the defendants to
explore all relevant surrounding circumstances concerning
possible ex parte communications to the jury must be balanced
against the conflicting but equally important interest in
preserving the sanctity of jury verdicts and protecting jurors
from harassment and intimidation. A post-trial hearing is not
held to afford a convicted defendant the opportunity to
"conduct a fishing expedition." United States v. Moten,
582 F.2d 654, 667 (2d Cir. 1978) ("Moten I").
Courts traditionally have been reluctant to allow expansive
post-trial reexamination of jury verdicts. See United States v.
Ianniello, 866 F.2d 540, 543 (2d Cir. 1989). "A juror must feel
free to exercise his functions without . . . anyone looking
over his shoulder." Remmer v. United States, 347 U.S. 227, 229,
74 S.Ct. 450, 451, 98 L.Ed. 654 (1953) ("Remmer I"). Certain
limits on post-trial inquiry into jury verdicts are also
necessary in the interest of finality lest judges "become
Penelopes, forever engaged in unravelling the webs they wove."
Jorgenson v. York Ice Machinery Corp., 160 F.2d 432, 435 (2d
Cir.), cert. denied, 332 U.S. 764, 68 S.Ct. 69, 92 L.Ed. 349
(1947), cited in Moten I, 582 F.2d at 664. If routine
post-trial inquiries into what transpired during jury
deliberations were permitted, "what was intended to be a
private deliberation would become the constant subject of
public investigation — to the destruction of all frankness and
freedom of discussion and conference." McDonald v. Pless,
238 U.S. 264, 267-68, 35 S.Ct. 783, 784, 59 L.Ed. 1300 (1915).
"[N]o verdict would be safe." Id. at 268, 35 S.Ct. at 785
A juror is supposed to be able to give his or her verdict
and go home. "Post-verdict inquiries may lead to evil
consequences: subjecting juries to harassment, inhibiting jury
room deliberation . . . increasing temptation for jury
tampering and creating uncertainty in jury verdicts."
United States v. Ianniello, 866 F.2d at 543; see 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, 82 S.Ct. 599, 7
L.Ed.2d 523 (1962).
We are justifiably reluctant to bring jurors before the court
again after they have reached a verdict and honorably
performed their civic duty 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, 104 S.Ct. 2344, 80 L.Ed.2d 818
Seven of the jurors in this case have already been located,
interviewed, manipulated and probed in a concerted effort to
extract statements from them that could be used to impeach the
verdicts. Without some showing of genuine necessity, the
jurors who did not choose to enter the fray by making
affidavits should not be called into court now merely to be
harassed and intimidated, subjected to direct examination,
cross-examination, redirect examination, and
recross-examination, and to face the same persons whom they
previously convicted of serious crimes.
The defendants' contention that "entire juries are routinely
questioned," Defendants' Brief at 18, is an overstatement. In
Moten I, the Court of Appeals remanded the case to the District
Court and directed that the jurors be questioned regarding the
facts surrounding a corrupt approach made to one or more of the
jurors during the course of the trial. On remand, the District
Court interviewed two jurors and determined that no further
inquiry was necessary. The Court of Appeals affirmed in words
prescient of this case, noting that "the factual underpinnings
of this Court's prior concern collapsed under the weight of the
evidence received at the remand hearing." United States v.
Moten, 620 F.2d 13, 16 (2d Cir. 1980) ("Moten II").
Similarly, the Court of Appeals in United States v. Calbas,
821 F.2d 887 (2d Cir. 1987), cert. denied, 485 U.S. 937, 108
S.Ct. 1114, 99 L.Ed.2d 275 (1988), found "no substance in
Calbas's suggestion that the District Court acted improperly in
conducting a limited inquiry," asserting that it had previously
stated that "the trial court has wide discretion in deciding
how to pursue an inquiry into the effects of extra-record
information," Id. at 896; see United States v. Hillard,
701 F.2d 1052, 1064 (2d Cir.), cert. denied, 461 U.S. 958, 103
S.Ct. 2431, 77 L.Ed.2d 1318 (1983), and "indeed has the power
and the duty to supervise and closely control such inquiries."
United States v. Calbas, 821 F.2d at 896; Moten I, 582 F.2d at
The Court of Appeals opinion in this case expressly states
that the scope of this hearing "should be limited to only what
is absolutely necessary to determine the facts with
precision." United States v. Ianniello, 866 F.2d at 544; see
Moten I, 582 F.2d at 667. The opinion further stated that the
other jurors should be called only if their testimony would be
probative on the issue of "whether the jurors who heard the
statements communicated the contents of those statements to the
other jurors." United States v. Ianniello, 866 F.2d at 544.
That some of the four jurors who were interviewed and taped
might change their story on the stand is a speculative
argument insufficient to justify further inquiry. Such a
change, should it occur, would be highly suspect and entitled
to no weight. Further examination of the taped jurors would at
most be merely harassing and cumulative in the context of the
present record. Mr. Glynn intentionally avoided contacting the
two "upstate" jurors because he believed that their responses
"would not help the cause." There is no reason to believe he
was incorrect in this assessment. No sufficient reason exists
to disturb the privacy of the three jurors who refused to be
interviewed. Relying on overwhelming precedent and strong
policy arguments, we conclude that under the facts of this
case, there is no need or justification to call the remaining
On the totality of the evidence this Court concludes that
there is no credible evidence that either Judge Lowe or Deputy
Marshal Perrine interfered with the deliberations of the
jurors or attempted in any way to influence or coerce the
trial jury. Based on the proof adduced before me, neither this
jury nor a "hypothetical average jury" would have been
influenced, coerced, or led astray.
The motions for a new trial are denied.