The only exception to this proscription is that a juror "may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." (emphasis added). Id.
The policy considerations that underlie Rule, 606(b) include "encouraging the finality of jury verdicts, conserving judicial resources by foreclosing lengthy adversary hearings on marginal claims of misconduct, and preserving the dignity of the court." Crump, Jury Misconduct, Jury Interviews, and the Federal Rules of Evidence, 66 N.C.L. Rev. 509, 512 (1988). Moreover, the rule encourages open and honest deliberations among members of a jury, who can be assured that their contributions to the deliberative process will not subject them to subsequent harassment. See id.; see also United States v. Ianniello, 866 F.2d 540, 543 (2d Cir. 1989) ("post-verdict inquiries may lead to evil consequences: subjecting juries to harassment, inhibiting juries from deliberating, burdening courts with meritless applications, increasing temptation for jury tampering and creating uncertainty in jury verdicts."). Finally, the rule prevents minority jurors from "agreeing" to a verdict only to challenge it at a later date. See Crump, supra at 512.
A. Extraneous Influences
Defendants point to several instances of misconduct on the part of Juror No. 4 as the basis for their motion. As noted, this claimed misconduct includes commenting on the evidence throughout the trial, gesturing during the trial in a manner that reflected anti-defense bias, and makinq anti-Semitic comments. Defendants also point to the fact that pre-deliberations polls were conducted by the jury.
In Tanner v. United States, 483 U.S. 107, 97 L. Ed. 2d 90, 107 S. Ct. 2739 (1987), the Supreme court enunciated its position on the appropriateness of the use of Rule 606(b) to impeach verdicts based on juror misconduct. In Tanner, a juror on the case indicated that "the jury was on one big party": seven of the jurors drank alcohol during the noon recess; four jurors, himself included, consumed among them "'a pitcher to three pitchers'" of beer during various recesses and smoked marijuana "quite regularly"; on several occasions, two jurors had one or two mixed drinks during lunch, and the foreperson had a liter of wine during lunch on three occasions; one juror sold a quarter pound of marijuana to another and took marijuana, cocaine and drug paraphernalia into the courthouse; one juror ingested cocaine five times during the trial; and the jurors were often asleep during the trial. Id. at 115-16.
Noting the substantial policy considerations supporting the rule against the admission of jury testimony to impeach a verdict, the Court held that "however severe their effect and improper their use, drugs or alcohol voluntarily ingested by a juror" do not constitute an "extraneous" or "outside influence" for purposes of the exception to Rule 606(b). Id. at 122. In support of this position, the Court cited to, inter alia, the legislative history of the rule. This history amplifies the distinction between extraneous influences and misconduct or irregularity that falls within the proscription of Rule 606(b):
[A juror] could testify as to the influence of extraneous prejudicial information brought to the jury's attention (e.g. a radio newscast or a newspaper account) or an outside influence which improperly had been brought to bear upon a juror (e.g. a threat to the safety of a member of his family), but he could not testify as to other irregularities which occurred in the jury room.
Id. at 122-23 (citing H.R.Rep. No. 93-650, pp. 9-10 (1973), 1974 U.S. Code Cong. & Admin. News 7083). Acknowledging that "postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior," Tanner 483 U.S. at 120, the Court nonetheless ruled that the legislative history of Rule 606(b) made it pointedly clear that Congress did not intend that jurors be permitted to testify on juror conduct, including intoxication, that occurs during deliberations.
Id. at 125. Moreover, the Court noted that this result was consistent with the desirability of maintaining "the finality of the [jury] process". Id. at 120.
The gravity of the conduct at issue in Tanner indicates the seriousness with which courts view post-verdict intrusions into juror conduct, barring an extraneous influence. In the present case, defendants have not alleged any conduct reflecting an outside influence that was brought to bear on the jury. Rather, their allegations relate to misconduct by the jurors themselves -- conduct which the Supreme Court has held is not excepted from Rule 606(b)'s prohibition.
In fact, each of the instances of misconduct alleged by defendant has been held an inappropriate ground for a new trial:
(i) Alleged Polls and Comments on the Evidence
In United States v. Piccarreto, 718 F. Supp. 1088 (W.D.N.Y. 1989), the Court held that pre-deliberation "polls" regarding the guilt of the defendants, as well as discussions relating to the evidence as it unfolded, did not warrant a new trial or an evidentiary hearing. Id. at 1092. These "reactions to the evidence as it developed" were held not to be extraneous under Rule 606(b). Id. at 1093.
(ii) Alleged Pressure to Convict
In United States v. Cuthel, 903 F.2d 1381 (11th Cir. 1990), the court held that the severe pressure jurors may be subject to in reaching a verdict "can suggest the normal dynamic of jury deliberations", and did not provide a basis for post-verdict hearings. Id. at 1383; see also United States v. Gravely, 840 F.2d 1156, 1159 (4th Cir. 1988) (defendant failed to show improper outside influence where he alleged that jury felt great pressure to render verdict). Thus, no inquiry into the jury process is permitted merely because there is information that a jury felt pressured to reach a verdict, as long as that pressure was not exerted by an outside source.
(iii) Alleged Anti-Semitic Remarks
In general, evidence of bias is not admissible as "extraneous" under Rule 606(b). Developments in the Law - Race and the Criminal Process: Racist Juror Misconduct During Deliberations, 101 Harv. L. Rev. 1595, 1597 (1988) see Shillcutt v. Gagnon, 827 F.2d 1155, 1159 (7th Cir. 1987); United States v. Caro-Quintero, 769 F. Supp. 1564, 1570 (C.D. Cal 1991); Mueller, Jurors' Impeachment of Verdicts and, Indictments in Federal Court Under Rule 606(b), 57 Neb. L. Rev. 920, 942 n.93 (1978) (even egregious racial or ethnic prejudice may be barred by Rule 606(b) because "such proof . . . goes to the . . . 'mental processes' of these jurors"). However, some courts have held that Rule 606(b) could not be applied to exclude such evidence if "taken at face value, the evidence established a constitutional violation", Developments, supra at 1597, because "in egregious cases the resulting misconduct might offend fundamental fairness even though the legislative history of Rule 606(b) argues for juror privacy." Crump, Jury Misconduct, Jury Interviews, and the Federal Rules of Evidence, 66 N.C.L. Rev. 509, 524 (1988); see United States v. Dean, 647 F.2d 779, 785 (8th Cir. 1981), cert. denied, 456 U.S. 1006, 73 L. Ed. 2d 1300, 102 S. Ct. 2296 (1982); Smith v. Brewer, 444 F. Supp. 482, 485 (S.D. Iowa), aff'd, 577 F.2d 466 (8th Cir.), cert. denied, 439 U.S. 967, 58 L. Ed. 2d 426, 99 S. Ct. 457 (1978) (if racially biased remarks were likely to have prejudiced the case, court indicated it might have considered juror testimony competent, in spite of Rule 606(b)).
In this district, it has been held that evidence of bias may be sufficient to establish a constitutional violation if there is " clear and incontrovertible" or "substantial if not wholly conclusive evidence" that if was "more likely than not" that a juror was biased and that his bias affected the actual deliberations. Wright v. United States, 559 F. Supp. 1139, 1151 (E.D.N.Y. 1983), aff'd, 732 F.2d 1048 (2d Cir. 1984), cert. denied, 469 U.S. 1106, 83 L. Ed. 2d 774, 105 S. Ct. 779 (1985) Assuming as true defendants' allegations that Juror No. 4 stated: "It's Jews who bring drugs into our [the African-American] community", the Court is dismayed at this display of intolerance. However, the Court cannot find that such a statement rises to the level of "substantial and incontrovertible" evidence that Juror No. 4 was biased and that this bias affected the actual deliberations.
In determining whether this allegation meets the above stringent standard, the Court considers the indirect nature of the source of these allegations, which are affidavits prepared by the attorneys in this case and consisting of hearsay allegations. As explained more fully below, the Court finds that such submissions do not carry nearly the weight of sworn statements based on personal knowledge.
Perhaps more importantly, defendants have submitted no information indicating that this display of bias impacted upon the jury in their deliberations, see 2 J. Weinstein & M. Berger, Weinstein's Evidence, P 606  (1976) ("in the heat of juror debate all kinds of statements may be made which have little effect on the outcome, though taken out of context they seem damning and absurd"), or even necessarily affected Juror No. 4's impartiality.
See United States v. Dean, 647 F.2d 779, 785 (8th Cir. 1981), cert. denied, 456 U.S. 1006, 73 L. Ed. 2d 1300, 102 S. Ct. 2296 (1982) (court notes that expressions of bias are not necessarily a ground for a finding that a juror was not impartial). Accordingly, the Court finds that this alleged statement of bias by Juror No. 4 is not an appropriate ground for the relief defendants seek.
In conclusion, there is substantial support for the government's position that pursuant to Rule 606(b)'s proscription against juror testimony on internal or non-extraneous matters, none of defendant's alleged claims of juror misconduct warrant an evidentiary hearing
or a new trial. Thus, although Ralph and Simon Abcasis have only waived those claims arising out of Alternate No. 2's allegations, all three defendants' claims, including those occurring during deliberations, are barred by Rule 606(b).
III. Attorney Affidavits
In this case, as discussed above, none of the conduct that defendants cite in support of their motion constitutes "extraneous" conduct under Rule 606(b). Defendants' motion is denied on that ground, as well as on the ground that Ralph and Simon Abcasis have waived their objection to conduct occurring prior to deliberations. However, the Court notes additionally that it is troubled by the submission of attorney affidavits citing the juror misconduct. The law is clear that a trial court is required to hold a post-verdict investigation only "when there is clear, strong, substantial and incontrovertible evidence . . . that a specific, non-speculative impropriety has occurred which could have prejudiced the trial of a defendant. United States v. Sun Myung Moon, 718 F.2d 1210, 1234 (2d Cir. 1983), cert. denied, 466 U.S. 971, 80 L. Ed. 2d 818, 104 S. Ct. 2344 (1984). Short of such a showing, policy considerations dictate that jurors not be hauled into court "'in an effort to secure from them evidence of facts which might establish misconduct sufficient to set a aside a verdict.'" Attridge v. Cencorp Div. of Dover Technologies Int'l, Inc., 836 F.2d 113, 115 (2d Cir. 1987) (citing McDonald v. Pless, 238 U.S. 264, 267-68, 59 L. Ed. 1300, 35 S. Ct. 783 (1915)).
In this case, the conclusory statements submitted by defendants' counsel in support of this motion, all of which are based on hearsay allegations, can hardly meet such a stringent requirement.
In fact, the New York Court of Appeals has held on more than one occasion that a trial court may properly deny a defendant's claims of juror misconduct on the sole ground that the only proffer in support thereof is the hearsay allegations contained in the affidavit of defense counsel and/or a private investigator employed by him See People v. Friedgood, 58 N.Y.2d 467, 473, 462 N.Y.S.2d 406, 409, 448 N.E.2d 1317 (1983); People v. Salaam, 590 N.Y.S.2d 195, 590 N.Y.S.2d 195 (N.Y. App. Div. 1st Dept. 1992) (court upheld trial court's summary denial of defendant's post-judgment motion on ground that contention that jurors read newspapers during proceedings was pure hearsay); "Juror Misconduct Issue, Weighed in 2 Appeals", New York L.J., November 29, 1992, at p. 1 col. 4.
While these New York state cases are obviously not binding on this Court, the rationale employed is certainly relevant to the instant case: the Court should not take the drastic step of requiring jurors to come to court and testify in an evidentiary hearing in the absence of evidence of juror misconduct based on personal knowledge.
III. Interviews With Jurors
In their various submissions to the Court on this issue, defendants have requested that the Court provide them with the names and addresses or telephone numbers of the jurors who served on this case in an effort to interview them with respect to the above-mentioned allegations. Although Rule 606(b) is silent on the propriety of counsel interviewing jurors after they have been discharged, the rules relating to post-trial interviewing of jurors implicate many of the same interests as the rules relating to the admission of juror testimony to impeach a verdict. United States v. Moten, 582 F.2d 654, 665 (2d Cir. 1978). Among these concerns is avoiding: the harassment of jurors; the inhibition of deliberations in future cases; a deluge of postverdict applications; and the uncertainty of verdicts. See King v. United States, 576 F.2d 432, 438 (2d Cir. 1978) (citing United States v. Crosby, 294 F.2d 928, 950 (2d Cir. 1961), cert. denied, 368 U.S. 984, 7 L. Ed. 2d 523, 82 S. Ct. 599 (1962)).
Accordingly, a convicted defendant may not "inconvenience jurors merely to conduct a fishing expedition" unless he has made a showing, with "'strong'" and "'clear'" evidence, see King, 576 F.2d at 438 (quoting United States v. Dioguardi, 492 F.2d 70, 78, 79, 80 (2d Cir. 1974)), of events at trial that "support a reasonable suspicion that the jury may have been corrupted." Id. at 666; see United States v. Sanchez, 380 F. Supp. 1260 (N.D. Tex. 1973), aff'd, 508 F.2d 388 (5th Cir. 1975), cert. denied, 423 U.S. 827, 46 L. Ed. 2d 44, 96 S. Ct. 45 (1975) (interviews should only be conducted in extreme situations). The Court finds that the "frail and ambiguous showing" in this case, consisting of attorney affidavits based on hearsay allegations, fails to meet this requirement. See King, 576 F.2d at 438.
The Second Circuit has stated that "complicity by counsel in a planned, systematic, broad-scale, postrial inquisition of the jurors by a private investigator of investigators is reprehensible, to say the least." Brasco, 516 F.2d at 819 n.4. Thus, "at a minimum", counsel must notify the Court of its intention to conduct post-trial questioning of jurors so that the court may "take full control of the matter", United States v. Moten, 582 F.2d 654, 665-66 (2d Cir. 1978), and order that such questioning, where warranted, "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." King, 576 F.2d at 438 (quoting United States v. Brasco, 385 F. Supp. 966, 970 n.5 (S.D.N.Y. 1974), aff'd, 516 F.2d 816, 819 n.4 (2d Cir.), cert. denied, 423 U.S. 860, 46 L. Ed. 2d 88, 96 S. Ct. 116 (1975) (on appeal, quoted language was specifically approved by Second Circuit in affirming judgment of conviction)); see Miller v. United States, 403 F.2d 77, 81-82 (2d Cir. 1968). In this case, defendants have persisted in their attempts, however unavailing, to interview jurors without notifying the Court and without the Court's prior approval or supervision. Such efforts are completely inappropriate and are hereby ordered ceased.
For the foregoing reasons, the Court declines defendants' motion for an evidentiary hearing and/or a new trial on the ground of juror misconduct. The Court further denies defendants' request for the names and addresses or telephone numbers of jurors on the case and orders defendants to cease their efforts, if any, to contact jurors.
Dated: Brooklyn, New York
December 18, 1992
DENIS R. HURLEY, U.S.D.J.