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April 26, 1990


The opinion of the court was delivered by: Brieant, Chief Judge.

  Pursuant to a Mandate of the United States Court of Appeals
for the Second Circuit, docketed in the Southern District of
New York on February 23, 1989, which vacated and remanded a
prior order of this Court (Judge Lowe), reported at 698 F. Supp. 1109
 sub nom United States v. Salerno (SDNY 1988), denying a
new trial to defendants Matthew Ianniello, Vincent DiNapoli,
Louis DiNapoli, Nicholas Auletta, Edward J. Halloran, Aniello
Migliore, Anthony Salerno, Richard Costa, and Alvin O. Chattin,
the District Court was directed to hold further proceedings on
remand consistent with the panel opinion of the Court of
Appeals for the Second Circuit in this case, decided January
18, 1989 and reported at 866 F.2d 540.

Evidentiary hearings were held before this Court on April 13, 14, 27 and 28, and December 21, 1989. The matter has been fully submitted as of March 23, 1990. The Court now sets forth below its findings of fact and conclusions of law, and its decision with respect to the motion for a new trial and the matters directed to be adjudicated by the Court of Appeals.

This Court concludes that the moving defendants have failed to prove that there were any improper ex parte contacts with the jury or that the verdicts were tainted as claimed. Also, no necessity is shown to require the oral testimony of the trial judge. The motions are denied for the reasons set forth below.

Indictment SSS 86 Cr. 245, filed on April 7, 1988, charged a total of eleven defendants in 35 counts. The Indictment charged that, from April 1970 to April 1987, the defendants led, managed, and participated in a racketeering enterprise known as the Genovese Family of La Cosa Nostra (the "Genovese Family"), a secret criminal organization, by committing and agreeing to commit numerous crimes. The defendants include alleged leaders of the Genovese Family, as well as several businessmen who allegedly became their partners and assisted the Genovese Family in infiltrating businesses in the New York City area and nationwide.

Following more than thirteen months of trial, jury verdicts of conviction were returned against the moving defendants on May 4, 1988 for violations of the RICO statute, 18 U.S.C. § 1961 et seq., and various underlying offenses. The jury convicted nine and acquitted two of the eleven defendants, failing to agree on four predicate racketeering acts found in the RICO allegations. The trial had a second phase involving forfeitures during which the already exhausted jurors were instructed as to the additional facts which needed to be found to dispose of the forfeiture allegations in the Indictment. The jury granted the government's application for forfeiture except with regard to some of the interests of defendants Salerno, Auletta, and Halloran. The initial deliberation to reach the verdicts on the criminal counts extended over nine days. An additional two days of deliberation were required for the forfeiture phase of the jury trial.

After the verdicts were returned, defendants moved for a new trial and for recusal of the trial 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 Deputy United States Marshal to the jury. In support of their motion, the defendants submitted the affidavits of three jurors, Joyce Domingo, Helen Talley, and Joseph James. On October 12, 1988, the trial 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 pre-Guideline sentences on October 13, and 14, 1988 ranging from six to seventy years, the defendants appealed the trial judge's order.

In its decision of January 18, 1989, the Court of Appeals vacated the trial judge's order denying a new trial and remanded the case for further proceedings before another district judge, including an evidentiary hearing "to determine whether the allegations are true and to provide a basis for assessing whether [defendants] were prejudiced by inappropriate communications with the jury". 866 F.2d at 544. The Court of Appeals stated that "[t]he substance of the inquiry on remand should be limited to determining whether the Judge or Marshal made ex parte statements to the jury, what each said, the factual circumstances surrounding any ex parte contacts, and whether the jurors who heard the statements communicated the content of those statements to the other jurors" in order to determine whether defendants are entitled to a new trial. Id. The Court of Appeals noted that, on remand, the investigator who submitted the cursory affidavit stating that he took the statements of three jurors, the three jurors who came forward with affidavits, and the Deputy Marshal, should be called as witnesses. Whether the rest of the jurors, as well as the trial judge, should testify was left to the discretion of this Court.

The Hearing

Pursuant to the Court of Appeals Mandate that the scope of this hearing "should be limited to only what is absolutely necessary to determine the facts with precision," 866 F.2d at 544, this Court heard the testimony of the three affiant jurors, two private investigators, Raymond Glynn and Marilyn Reynolds, who solicited the statements contained in the three jurors' affidavits, three notaries public who notarized the affidavits, an attorney, Stiso, who attended a meeting with between one juror and the investigator, and the Deputy Marshal who allegedly made an ex parte statement to the jurors.

Findings of Fact and Conclusions of Law

Raymond P. Glynn, a New York State licensed private investigator, had retired as a Lieutenant in the New York City Police Department, having served from 1954 to 1974 both as a detective and a uniformed officer. Prior to that time he had been employed as a part-time United States Marshal and in other occupations. A distinguished looking, gray-haired man, Glynn could have come from Central Casting to play the part of a Detective-Investigator.

His connection with the trial began in 1987 and included almost daily attendance in Court, both during the trial and during jury deliberation. He testified that during the trial he had been employed by Albert A. Gaudelli, Esq., attorney for defendant Aniello Migliore. The reason for and scope of this employment is unclear. Glynn claimed that his employment by Gaudelli was concluded following the post-verdict medical hearings before Judge Lowe but that on June 1, 1988 he met with Mr. Anthony DiNapoli, brother of Vincent and Louis DiNapoli, defendants in the case, who asked Mr. Glynn to interview the jurors because he was "quite concerned at what appeared to him to be a sudden and precipitous decision on the part of the jury when they were obviously focusing in a different direction" (Tr. 12). Glynn contended that his investigative efforts were sought and thereafter supervised by Mr. DiNapoli, not by Mr. Gaudelli or any other attorney. Apparently this rather vague instruction was sufficient for Mr. Glynn, who set off to locate and interview the jurors.

There is a slight ring of untruth about this aspect of Glynn's retainer. The Court suspects that Glynn's post-trial services were sought and managed, directly or indirectly, by one or more lawyers, for it defies belief that such inquiries were the brainchild of the defendants' brother.*fn1 The point is of little moment except insofar as it affects Mr. Glynn's credibility adversely, in a general way.

Our Court of Appeals has stated that "complicity by counsel in a planned, systematic, broad-scale, post-trial inquisition of the jurors . . . is reprehensible." United States v. Brasco, 516 F.2d 816, 819 n. 4 (2d Cir. 1975) Although not forbidden by statute, post-trial inquiries of jurors conducted in defiance of specific court orders may constitute obstruction of justice. Rakes v. United States, 169 F.2d 739, 745-46 (4th Cir. 1948). Nothing in the record of this case, however, suggests that counsel for defendants, assuming they directed Mr. Glynn, violated either of these principles. Glynn neither harassed unwilling jurors nor violated instructions against approaching them because no such instructions were ever given.*fn2 He asked questions of cooperative jurors, declining even to approach two jurors (the "upstate" jurors) from whom he expected hostile or unsympathetic responses. At the close of trial, the jurors were free to discuss the case to whatever extent they saw fit. Mr. Glynn did nothing improper by asking several of them whether they wished to do so.

Our Court of Appeals has stated in dicta that ". . . post-trial questioning of jurors must only be conducted under the strict supervision and control of the court, with inquiry restricted to those matters found by the court as both relevant and proper." United States v. Brasco, supra. We believe, however, that this principle does not apply where, as here, jurors voluntarily submit to interrogation and choose to exercise their First Amendment rights to criticize the judicial system and their own participation in it — whether to counsel, the media, or a private investigator hired to impeach the verdict. The rule of Brasco is not supposed to disable lawyers from establishing claims of juror bribery or improper outside influence. The right to assistance of counsel does not end with the judgment of conviction. We can conceive of no reason why counsel for criminal defendants should be forced either to await the fortuity of media investigation or to file unsubstantiated motions to impeach a verdict based only on suspicion. Any rule necessitating such a choice would so limit counsel as to deny criminal defendants their Sixth Amendment right to effective representation. It would also burden the courts with meritless — and, by definition, unexamined — allegations.

Practical necessity often leaves counsel with little choice but to conduct a limited independent investigation to substantiate suspicion in order to justify a court-directed full investigation. Indeed, counsel may have believed that judicial supervision and authorization of their effort to impeach the jury's verdict would be inappropriate if, as here, some supposed interaction between the trial judge or the marshal and the jurors was the object of investigation. Such a view would not necessarily involve any imputation of bias or unfairness against the trial judge, for our system of limited government does not permit the President to adjudicate the lawfulness of his own actions, United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), nor the legislature to determine the constitutionality of its own enactments, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). Surely the Court of Appeals did not intend in Brasco to make individual judges the sole investigators of their own conduct. The mandate of the Court of Appeals in this case rests on the assumption that such allegations are best investigated by an independent, unbiased fact-finder. It is our view, therefore, that once their suspicions were activated, defendants' lawyers were entitled to conduct such inquiries of the jurors as were necessary to establish a colorable claim. That the investigators in this case did so with deference to the privacy rights of individual jurors, as they did, reinforces our belief that such inquiries need not open the door to intrusive post-trial investigations.

Thus, even assuming that Glynn's investigation was coordinated by some knowledgeable lawyer acting for one or more of the defendants — an obvious conclusion on this record — no wrongdoing or ethical breach was involved.

Glynn claims that the investigation was prompted by a perceived suddenness of the jury's verdict. On May 2, 1988 the jurors sent out an ambiguous note calling for a series of tapes by subject matter. At least five hours were wasted while the attorneys bickered with each other and argued with the trial judge over which tapes were required to be re-played in response to the note. Thereafter, some tapes were replayed, but the jurors decided that they did not want to review additional tapes. According to Glynn: "A short time thereafter, they came out with a verdict and [Anthony DiNapoli] thought this was — it just wasn't consistent." Glynn describes his retainer as being "to interview some of the jurors to determine what their feelings were along this — these lines." (Tr. p. 12). In fact, the verdict was rendered on May 4, 1988, two days after the jury decided it did not wish to re-hear the additional tapes.

The jury in this case was described as "semi-anonymous". There is, of course, no such thing as a semi-anonymous jury in a long trial. Apparently, the jurors were permitted to give only their last names, and tell the general neighborhood or vicinity in which they lived, as well as their occupations. Since all jurors, with exceptions not material, of necessity had to come from Manhattan, the Bronx, or a point upstate within fifty (50) miles of the Foley Square Courthouse, locating such jurors could not have been a difficult problem for a trained investigator. Mr. Glynn contends that he used ordinary procedures, such as the Motor Vehicle Department checks, the telephone book, and reference to the Board of Elections. It is more likely that Joyce Domingo, the foreperson of the jury and an early, enthusiastic participant in this plan to impeach the verdict, who admits she knows the full names and residence addresses of all, or almost all, of the jurors, provided the information needed to locate them.

Glynn says he found out that the jury foreperson, Joyce Domingo, lived in the Bronx, and managed to obtain her home telephone number in spite of the fact that the phone listing was under the name "Gibson". Mr. Glynn testified that he called and identified himself, told Ms. Domingo that he was interviewing jurors in the Salerno case, and asked her if she would meet with him to discuss the case. They arranged to meet at a nearby Burger King restaurant on June 13, 1988. (Tr. 18-20) Ms. Domingo emerges as the most important figure in this proceeding, and this Court is compelled carefully to scrutinize her testimony, which presents the only evidence of prejudicial ex parte juror contact.

According to Glynn, Ms. Domingo began the restaurant conversation, which conversation was not tape-recorded, by saying that she was "sorry the way the verdict turned out" and "that deliberations began with a vote of 9 to 3 for acquittal, because they felt that there was not enough evidence shown to convict these people" (Tr. 21). According to Glynn, Ms. Domingo, told him the following during that first meeting:

(1) She was told by someone on the outside that if they didn't come to a decision they would have to listen again to 100 of the tapes;

(2) On another occasion, the Judge had come to the deliberation room door and had said to them that she did not want a hung jury, either convict or acquit, but she did not want a hung jury; and

(3) During the forfeiture proceedings, after the initial guilty verdict had been announced, she had entered the Judge's Chambers to call home, the Judge had asked her how she was doing, and when she responded that they "were having big arguments and it looked like they were not going to be able to come to some decision", the Judge then told her to go back in and to try to pull the others together "because I don't — I do not want a hung jury" (Tr. 22).

Glynn claims that he tried to tape record this meeting, but his only recorder was broken. (Tr. 26). His "scratch notes" of the interview were not produced.

The Domingo affidavit is Exhibit "1" at the Hearing. The claim about the Judge appearing at the doorway and telling them that "they must work together and come to some decision . . . [e]ither a conviction or an acquittal, but she did not want a hung jury" appears on the first page of the Exhibit originally typed by Mr. Glynn, followed by the conclusion of Ms. Domingo that "all the Jurors heard the Judge's remarks." Reference to the second alleged contact with the Judge, when Ms. Domingo made a telephone call from the judge's room, is also found on the first page.

The second re-typed page contains nothing of specific relevance to this Hearing. However, it does tell us that Ms. Domingo, at least in June of 1988, was most displeased with the jury verdict, regarded the Judge as "a very nice lady [who] seemed to lean more toward the Government", and claimed that in the forfeiture proceeding there had been "trading off" among the Jurors in order to reach an agreement that "Tony" (Mr. Salerno) could keep his farm. She also offered the conjecture that she was "sure some of [the jurors] [had] read the [news] papers." These two latter assertions are of no relevance except that they bear on the witness' state of mind. They are not within the scope of the remand and are barred by Rule 606(b) F.R.Evid.

This Court has examined the original, unsigned page two of the affidavit as drafted by Mr. Glynn. The differences between the respective second pages are very slight. For example, Ms. Domingo corrected the name of the judge's clerk, typed by Glynn as "Lily" to read "Lisa". The sentence referring to the Salerno farm had originally been drafted by Mr. Glynn as reading "Ms. Domingo said they got Tony [Anthony Salerno] and Maishe [Milton Rockman] out of the Teamster thing, only by swapping or trading off". References to Senate Sub-Committee Hearings and Vincent Coffaro were eliminated in the re-draft. All these changes are essentially insignificant. After signing the affidavit, Ms. Domingo asked Mr. Glynn for a copy of it. He took the original and left the Richman law office. Mr. Glynn's June 20th and July 19th meetings with Ms. Domingo were tape recorded. Meetings on June 13th, 16th and June 17th were not recorded. The excuse given is that the tape recorder was broken. No inference adverse to the movants or the witnesses can be drawn from the fact that some meetings were recorded, and some were not. All law enforcement agencies make selective use of specific methods of investigation, including concealed tape recorders. However, the claim that the tape recorder was "broken" and no substitute machine was available has a slight ring of untruth to it.

Ms. Domingo testified before me on April 14, 1989. Her demeanor and attitude could fairly be described as highly favorable to the movants. Ms. Domingo testified that she was strongly in favor of acquitting the defendants and was happy to assist Mr. Glynn in any way she could to see that the defendants received a new trial (Tr. 403). Nevertheless, on her direct examination, she was somewhat less certain of the critical facts than her affidavit and prior conversations, as reported by Glynn, would suggest. In response to a leading question, she described the trial judge, at a date or time which she could not remember, as having come to the jury room door. She testified:

(Direct examination by Mr. Jacobs (Tr. 303)

  Q. Did there come a time during the jury
  deliberations in that case that Judge Lowe
  appeared in the doorway of the Jury Room?

A. Yes, she did.

  Q. Do you recall anything that she said, if

THE COURT: First fix the time.

Q. Do you remember when that was, Miss Domingo?

A. I really can't say. It's been so long ago.

Q. Can you tell us what was said, if anything.

  A. For us to carry on and come to a decision.
  Probably during lunch break. That's the only time
  the door would have been open.

Q. Do you remember her exact words?

A. Come to a decision. Carry on.

The witness also testified (Tr. 304) that at a later time the Judge said that she did not want a hung Jury: "She said to pull the others together, so we can come to a decision and we can't [sic] have twelve yes and twelve no. Just come to a decision." This event is described as having happened on a "night we worked very late, till 1:00, 2:00 o'clock in the morning". Ms. Domingo was in the Judge's robing room to make a telephone call "and she asked how everything was going, and I told her not good" (Tr. 305). The telephone call was placed while the Jury was engaged in deliberation on the issue of forfeiture, and I find that it is the same contact described in Judge Lowe's affidavit as the "we want pillows and blankets" situation, discussed below.

Movants then confronted Ms. Domingo with her own affidavit obtained by Mr. Glynn. The following testimony ensued:

(By Mr. Jacobs: Tr. 305)

  Q. Ms. Domingo, let me take you back to the first
  time that you said the judge was at the jury room
  door. Do you remember anything else that the
  judge said at that time?

A. No, just to carry on and come to a decision.

  Q. Let me show you court Exhibit No. 1, Ms.
  Domingo, and ask you whether you have seen that

A. Yes, I have.

Q. And what is it, ma'am?

A. Well, it's a deposition of what I remember.

  Q. Would you look at it — would you take a moment
  and read it, please?

A. Starting with the date?

Q. No, read it to yourself.


Q. Have you read the document?

A. Yes, I have.

  Q. Is that your signature that appears on page 2
  of the document?

A. Yes, it is.

  Q. After reading [that] document, do you recall
  anything else the judge said when she was at the
  doorway to ...

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