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UNITED STATES v. ABCASIS

December 18, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
SIMON ABCASIS, a/k/a "HACHAM," RALPH ABCASIS and REBECCA ABCASIS, Defendants.



The opinion of the court was delivered by: DENIS R. HURLEY

 HURLEY, District Judge

 Following a jury trial, defendants in the above captioned prosecution were convicted of various narcotics-related offenses. Currently before the Court is defendants' request for post-trial relief based on alleged juror misconduct. More specifically, defendants apparently seek the names and addresses or telephone numbers of the jurors in order to conduct post-trial interviews, an evidentiary hearing on the issue of the misconduct, and a new trial. *fn1" They make these requests based on allegations that a juror who served on the case commented on the evidence throughout the trial, gestured during the trial in a way that indicated she was biased against defendants, and made anti-Semitic comments with respect to defendants. They further allege that the jurors conducted pre-deliberations "polls" or the defendants' guilt or innocence. The court denies each of defendants' requests for the reasons stated below.

 BACKGROUND

 During the trial, counsel for defendants informed the Court that they perceived that Juror No. 4 was commenting on the evidence as it was being received and that they believed they had heard her discussing the evidence with another juror in the hall of the courthouse. Although the Court responded that it had "not noted anything inappropriate about the jury" (Tr. 1306), it agreed, pursuant to Mr. Breitbart's request, to interview Juror No. 4 out of the presence of the other jurors.

 The following day, the Court called Juror No. 4 into the courtroom and instructed her not to discuss the case with her co-jurors. The Court also asked her whether she had done so, to which she replied, "Not that I know of", and then "No. Not other than, you know, I asked [the courtroom deputy] a question, but other than that . . . ." When the Court asked her what she had asked the courtroom deputy, she responded that she had asked whether the defendants were permitted to communicate with their family while in the courtroom. The Court explained that while no one should speak if it would disrupt the proceedings, the defendants do have a right to confer. Tr. 1348. The Court then asked her again whether she had discussed the evidence or the parties with other jurors, and she answered "No."

 Finally, the Court asked Juror No. 4 whether there was anything that would prevent her from keeping an open mind with respect to the case, and from basing her decision on the evidence at trial and the Court's legal instructions, and she answered in the negative. Tr. 1349. Following this colloquy, the Court asked counsel at sidebar whether there were any objections to what was said or anything counsel wanted the Court to add, to which both the government and the defense answered "No." Tr. 1349-50.

 After the above-incident, defense counsel again complained of what they perceived to be misconduct on the part of Juror No. 4, including that she was "making gestures" and not observing evidence (Tr. 2259), all of which indicated to defense counsel that she had already made up her mind that defendants were guilty. Defense counsel also noted that Juror No. 4 spoke to other jurors "about the whispering that goes on at defense table." Tr. 2260. Based on these observations, defense counsel asked that she be removed from the jury.

 With respect to the allegation that Juror No. 4 commented on the fact that defendants and defense counsel conferred, the Court stated, in substance, that her reaction "doesn't impinge on her role as a juror" and "would not serve as a basis to eliminate her from the jury." Tr. 2265-66. Moreover, the Court stated that it would be amenable to speaking to all the jurors as a group if the defense thought it was appropriate, and if so, would instruct the jurors in the same way the Court had with Juror No. 4, and also mention that the defendants have a right to confer with counsel and each other during the proceedings. In response to the Court's suggestion, Mr. Breitbart asked the Court to pay close attention to Juror No. 4. Tr. 2268. However, he did not request a hearing, and Mr. Schoen explicitly stated that the other jurors should not be voir dired. Tr. 2269, 2260. The Court then reiterated that it had not observed any irregular behavior, but that it would be willing to "entertain any application at any time. Tr. 2269.

 That afternoon, Mr. Schoen claimed that he had been observing Juror No. 4 and had caught her "in the act" of making "mocking" gestures. Tr. 2348. The Court stated that it had been watching Juror No. 4 "almost the entire time" since the last conference, and that it "didn't think there's a problem with this juror". Tr. 2350. Mr. Breitbart suggested dismissing the juror (Tr. 2351), but the Court, although it expressed a willingness to voir dire the juror again and/or give further instructions, held that "there is not, from what I heard, a proper predicate to remove this woman. . . . I've not observed inappropriate behavior." Tr. 2351. The Court asked the defense to reflect on suggestions for an appropriate course of action, but the defense never addressed the issue to the Court again.

 At the close of the testimony on July 23, the Court instructed the jury at length that they should not discuss the case, the evidence, the witnesses, "or anything that transpires" (Tr. 2424) and that "if anyone speaks to you, either any of the jurors or anybody else, anybody outside of the courtroom, concerning the evidence, you are duty-bound to report it to the courtroom deputy who will report it to the Court." Tr. 2425.

 On Friday, August 7, 1992, the case was submitted to the jury and the alternates were discharged. Messrs. Breitbart and DePetris interviewed Alternate No. 2, who apparently informed them of the following:

 - Juror No. 4 constantly discussed defendants, defendants' counsel and the evidence with the other jurors throughout the case. Breitbart Aff. P 10; DePetris Aff. P 10.

 - pre-deliberations polls were regularly taken by all jurors as to the defendants' guilt or innocence. Breitbart Aff. P 10; DePetris Aff. P 10.

 - Juror No. 4 was extremely disruptive, repeatedly engaged in inappropriate conduct, and caused problems for other jurors. Breitbart Aff. P 10; DePetris Aff. P 10.

 This information was first brought to the Court's attention in papers relating to the instant motion.

 On August 13, 1992, the jury, consisting of eleven members on consent of counsel, rendered a verdict of guilty on Counts One, Two, Three and Seven and a verdict of not guilty on Counts Five and Six.

 In connection with this motion, defense counsel submitted attorney affidavits indicating that after the verdict, Juror No. 2 informed them of ...


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