and that a "high threshold for such interviews is maintained to avoid harassment of jurors, preserve the finality of judgments, discourage meritless applications for post-verdict hearings, reduce the likelihood of and temptation for jury tampering as well as other concerns." 673 F. Supp. at 144. The court found, following a hearing, that the required threshold was reached, and fashioned a rigidly restricted order which was not compulsory on the few jurors permitted to be interviewed. In doing so the court was careful to note that the purpose of its order was not to enable the government to attack the verdict in the first trial, but to permit an investigation of jury tampering of which there was already evidence in the record. "The compelling interest of the federal courts and the government in the effective prosecution of efforts to corrupt the administration of justice alone justifies the appropriately rare inquiry into the named jurors' deliberative process." 673 F. Supp. at 145. It is the last observation which required the disclosure (to differentiated investigative personnel) of the names of the anonymous jurors in the Gotti trial -- "the compelling interest" to prosecute those who would corrupt the judicial process.
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 indictment of Pepe charged that he
"Knowingly, wilfully and corruptly did influence, obstruct and impede" the due administration of justice as well as endeavoring to do so (emphasis supplied). Clearly, then, knowledge of the relation, if any, between the number and timing of votes on Pepe's verdict and Pepe's contacts with Hand will go a long way in showing the extent to which Pepe "did" obstruct justice. Seen in this light, the progress and division of voting is not only arguably relevant, but may well even prove significantly if not conclusively advantageous to Pepe and could undoubtedly trigger Brady obligations.
673 F. Supp. at 146. Upon the understanding that the government's proof will seek to establish only an endeavor to tamper with the jury, factors such as the progress and division of voting and the names of the jurors are totally irrelevant and Militello is, on that ground, inapposite.
The second consideration alluded to is to be found in the following observation of the court:
It is also not an unworthy or inappropriate objective of the government to seek from juror/witnesses corroboration from the anticipated testimony of its cooperating witness Patricia Hand. Having conducted post-trial evidentiary hearings, this court is in a particularly favorable position to understand the government's concerns for her impeachment at the time of trial.
673 F. Supp. at 146.
It is plain that the court in Militello determined that the testimony of other juror/witnesses, if offered, would be substantively relevant on Count Two of the indictment.
The government here states that it has not yet isolated the Leno juror and will make known to the defendants the name of the juror influenced in the Gotti trial. (Gov't Mem. at 2). There is no indication that other juror/witnesses will be called and Militello is, on that ground, also inapposite. The defendants will have the opportunity to cross-examine the Gotti juror, whose identity the government is under no obligation to reveal in advance.
The defendants further request the names of all of the jurors so that they may be called to testify that no effort was made to tamper with them. Def. hem. at 4. Such evidence would be irrelevant and therefore inadmissible. "A defendant may not seek to establish his innocence . . . through proof of the absence of criminal acts on specific occasions." United States v. Scarpa, 897 F.2d 63, 70 (2d Cir. 1990). Similarly, a defendant cannot establish that he did not commit a crime as to A because he did not commit a crime as to B.
The defendants' reliance upon Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) as requiring the government to disclose the names of the anonymous jurors it obtained is, for the reasons discussed, misplaced. The testimony of those jurors would be inadmissible and therefore could not be exculpatory. Insofar as the defendants request the court to permit an inquiry of the Leno jurors, there has been no showing of any reason why such inquiry should be authorized, given the sensitive concern the courts have consistently displayed to prevent the needless harassment of jurors; nor have the defendants shown any basis upon which information necessary to preparing a defense on this issue could conceivably be obtained.
For the foregoing reasons, this motion is denied.
I. Leo Glasser,
United States District Judge
Dated: Brooklyn, New York
February 11th 1992