The opinion of the court was delivered by: I. LEO GLASSER
GLASSER, United States District Judge:
The defendants have moved this court for an order disclosing the names of the persons who served as jurors in two previous trials in this district, anonymously in the case of United States v. John Gotti, et al., CR-85-178 (EHN) and not anonymously in the case of United States v. Edward Leno, CR-83-483 (JMM).
The reasons advanced to support the relief they seek are: (1) the government's assertion that it will seek to prove a conspiracy to bribe and an actual bribe of a juror in the Gotti case, and (2) the government's representation that it will offer proof of jury tampering in the Leno case. The names of the jurors, they contend, are therefore necessary to enable them to prepare their defense.
The cases upon which the defendants rely will be considered in turn. In United States v. Ianniello, 740 F. Supp. 171 (S.D.N.Y. 1990), the United States Court of Appeals for the Second Circuit had directed the district court to hold further proceedings in accordance with the opinion in 866 F.2d 540 (2d Cir. 1989), familiarity with which is assumed. At issue in that case was a motion for a new trial made by convicted defendants who claimed that the trial judge had ex parte communications with a deliberating jury and that a federal marshal made an improper statement to that jury; defendants asserted that they were thereby deprived of their due process right to a fair trial. Counsel, at page 2 in their memorandum of law ("Def. Mem.") in support of their motion, selectively cull the following language from the district court's opinion at page 177:
The right to assistance of counsel does not end with the judgment of conviction. . . . Any rule necessitating such a [result] would so limit counsel as to deny criminal defendants their Sixth Amendment right to effective representation. It would burden the courts with meritless -- and, by definition, unexamined -- allegations.
Omitted from the quoted language is the following:
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. (Emphasis added).
The remarks of the court were made in the context of commenting upon the propriety of a private investigator questioning jurors in the light of Brasco. In any event, it is clear that the defendants in Ianniello were seeking to impeach a verdict and that the court was not determining a motion to obtain the names of jurors or permission to interview them. It is also significant to note that the jury in Ianniello was not an anonymous jury, although the defendants intimate (Def. Mem. at 2) that it was ("As Chief Judge Brieant of the Southern District has observed in finding post-verdict jury anonymity inapplicable . . . .")
The importance of distinguishing a case in which a verdict is sought to be impeached on grounds of juror misconduct from a subsequent prosecution of the same defendant for jury tampering is crucial. In the former case, weighing heavily in the balance favoring juror interviews is the integrity of the judicial process and the societal interest in just verdicts. To vindicate those interests a juror may testify and may therefore be asked if any extraneous prejudicial information was improperly brought to her attention or whether any outside influence was improperly brought to bear upon any juror. Fed. R. Evid. 606(b). In the latter case, the same concerns are not implicated. The first jury's deliberations simply are not relevant to a charge that the defendant conspired to or actually did tamper with a juror.
United States v. Militello, 673 F. Supp. 141 (D.N.J. 1987), upon which the defendants also rely, falls peculiarly between those two categories. In that case, a jury which was not anonymous was unable to reach a verdict as to Pepe, one of the defendants. It was subsequently revealed that Pepe had engaged in improper communications with Hand, one of the jurors in the trial. Pepe was subsequently indicted for jury tampering and the government moved, pursuant to General Rules of the United States District Court for the District of New Jersey, for permission to interview selected jurors with an eye to determining whether any of them should be called as witnesses in the new trial against Pepe for influencing a juror. The court granted permission to interview only a few select jurors and extended that permission to Pepe as well since he was still a defendant in the related prosecution.
In its memorandum in opposition to the defendants' request, the government represents its "stated intention to offer evidence at this trial of efforts by the defendants to influence the jury in each of [the] two trials," (emphasis added). Gov't. Mem. at 1. Again on page 2 of that memorandum, the government states that "the evidence we will offer at trial relates to efforts to influence directly one juror from each prior trial" (emphasis added). And on page 3 of that memorandum, the government represents yet again that "we will present evidence showing that persons acting on behalf of John Gotti and others sought to influence directly two jurors" (emphasis added). At the oral argument on this request, the government again indicated that its proof would be of an endeavor to obstruct justice. Transcripts of proceedings, February 3, 1992, p. 589, lines 9-14.
A close reading of Militello would suggest that there were two considerations which were determinative. Count Two of the new ...