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UNITED STATES v. DEVERY

July 29, 1996

UNITED STATES OF AMERICA, against JOSEPH DEVERY and JOAQUIN RIVERA, Defendants.


The opinion of the court was delivered by: PRESKA

 LORETTA A. PRESKA, United States District Judge:

 After an eight-week trial in which they were found guilty of conspiring to violate federal money laundering laws, defendants Joseph Devery and Joaquin Rivera have moved, under Federal Rules of Criminal Procedure 29 and 33, for a judgment setting aside the verdict or for a new trial. For the reasons stated below, defendants' motions are denied.

 BACKGROUND

 Defendants' trial began on September 21, 1995 and ended on November 30, 1995. After eight days of deliberation, the jury convicted both defendants on Count I of the Indictment, which charged them with conspiring to violate the money laundering laws in violation of 18 U.S.C. 371, but deadlocked on Counts II and III of the Indictment, which charged them with the substantive money laundering violations of 18 U.S.C. § 1956 and 18 U.S.C. § 1957. The parties are fluent with the facts of this case, which will not be set out in detail. Only the circumstances pertinent to each facet of the defendants' motions will be described below.

 The unlawful proceeds at issue in this case were the revenue of an enormous heroin trafficking network operating out of the Bronx, New York for approximately eight years. At its peak, this operation generated cash revenues of over a million dollars a week. The kingpin of the enterprise was Robert Torres, who was arrested in March 1993 and pleaded guilty six months later. Torres then testified against Devery and Rivera as a cooperating witness. A jury found that Devery, a banker, and Rivera, a lawyer, had conspired to help Torres launder his abundant, tainted cash.

 The Indictment accused Devery of using his position as a Vice President at Chase Manhattan Bank, working out of a branch in the Bronx, to help Torres launder his drug money by structuring large cash deposits into amounts less than $ 10,000 so as to avoid a federal law requiring the filing of Cash Transaction Reports, or "CTRs," for cash deposits of $ 10,000 or more. Rivera was accused in the Indictment of helping Torres launder his drug money through real estate purchases.

 After his conviction, Devery moved to set aside the verdict or for a new trial, offering three grounds on which he was denied a fair trial. The first was that I had erroneously excluded four venirepersons from the jury for cause. The second was that I had erroneously precluded the scope of the cross-examination of one of the government's witnesses. Third, Devery argued that the jury, on the day it rendered its verdict, engaged in deliberation in the absence of one of the jurors. Rivera joined in the motion.

 While the motion was pending, the government sent a letter to the Court and to defense counsel, dated March 12, 1996, revealing that it had just discovered that Robert Torres had committed perjury during his testimony. Defendants requested, and received, the right to add this development to their grounds to set aside the verdict or for a new trial, and each has submitted a motion asking for the same, on the basis of newly discovered evidence.

 DISCUSSION

 I. Voir Dire and For Cause Exclusions

 Defendants first argue that they were denied their Sixth Amendment right to a fair trial when four venirepersons were improperly excluded for cause.

 Within the context of the Sixth Amendment, the importance of voir dire to protecting the accused's right to a fair trial is well recognized. The Supreme Court has noted that

 Rosales-Lopez v. United States, 451 U.S. 182, 188, 68 L. Ed. 2d 22, 101 S. Ct. 1629 (1981). A second function of voir dire is to preserve counsels' right to exercise peremptory challenges. See Mu'min v. Virginia, 500 U.S. 415, 431, 114 L. Ed. 2d 493, 111 S. Ct. 1899 (1991) ("Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges."). Under Federal Rule of Criminal Procedure 24(a) and the traditional practice of this Court, conduct of voir dire is properly entrusted to the presiding trial judge.

 Although "subject to the essential demands of fairness," Aldridge v. United States, 283 U.S. 308, 310, 75 L. Ed. 1054, 51 S. Ct. 470 (1931), a trial judge has "broad discretion" in conducting voir dire. Rosales-Lopez, 451 U.S. at 189; Ham v. South Carolina, 409 U.S. 524, 528, 35 L. Ed. 2d 46, 93 S. Ct. 848 (1973); Dennis v. United States, 339 U.S. 162, 168, 94 L. Ed. 734, 70 S. Ct. 519 (1950); Aldridge, 283 U.S. at 310. In Rosales-Lopez, the Supreme Court explained the purpose behind the trial judge's latitude in this area.

 
Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge's function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions. . . . In neither instance can an appellate court easily second-guess the conclusions of the decision-maker who heard and observed the witnesses.
 
Because the obligation to impanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct voir dire.

 Rosales-Lopez, 451 U.S. 182 at 188, 68 L. Ed. 2d 22, 101 S. Ct. 1629; see Wainwright v. Witt, 469 U.S. 412, 428, 83 L. Ed. 2d 841, 105 S. Ct. 844 (1985) (the determination of whether a venireperson is biased is "based upon determinations of demeanor and credibility that are peculiarly within a trial judge's province"); Mu'min, 500 U.S. at 431; Dennis, 339 U.S. at 168; United States v. Gonzalez-Balderas, 11 F.3d 1218, 1222 (5th Cir. 1994) ("We have only the cold record before us; the trial court had the opportunity to observe the voice and demeanor of the person in determining what he really was saying and in assessing his credibility."), cert. denied, 128 L. Ed. 2d 867, 114 S. Ct. 2138 (1994). This broad discretion has long been recognized by the Court of Appeals for the Second Circuit. See, e.g., United States v. Ploof, 464 F.2d 116, 118 (2d Cir.) (citing cases), cert. denied sub nom., Godin v. United States, 409 U.S. 952, 34 L. Ed. 2d 224, 93 S. Ct. 298 (1972).

 The four for cause exclusions challenged by defendants occurred under the circumstances described below -- keeping in mind that voir dire was being conducted to choose a jury for a criminal trial involving the laundering of money gained from the unlawful sale of drugs by, among other means, avoiding the filing of CTRs.

 A. Jurors Who Avoided Filing CTRs

 In the morning of the first day of jury selection, two venirepersons indicated, at separate sidebar conferences outside the hearing of the jury pool, that they themselves took part in activity that involved the structuring of cash transactions of over $ 10,000 in such a way as to avoid CTR filing requirements. The first, Juror no. 7, worked in the payroll department for a cemetery which employed about 60 men who were each paid four or five hundred dollars a week in cash. Juror no. 7 went to the bank before payday and wrote out a check for some amount over $ 10,000 and the bank in return gave her cash. "Some years ago," she related at sidebar, the rules changed and for "any transaction over $ 10,000 [the bank] wanted some sort of report made." (Transcript ("Tr.") 70). She was informed of the new rule by someone at the bank. For a period of two to three weeks, however, she recalled that the reporting requirement was avoided by writing out two checks for the bank in return for two cash sums under $ 10,000 each. "But rather than make the report, we were withdrawing funds for 10,000. So instead of -- over 10,000. So instead of making two checks out -- making one check, we made two to keep it under 10,000 so that we did not have to file a report." (Id.). After two or three weeks, the cemetery started paying its employees in checks rather than cash, obviating the weekly cash transactions with the bank and the CTR reporting requirement.

 Over the objections of defense counsel, who argued that her answers did not manifest a willful violation of the law and that she had not been asked whether she felt she could not be impartial, Juror no. 7 was excused for cause on the government's motion. Before excusing the juror, the Court, still at sidebar, stated, "I don't see that she had to admit that she violated the law for it to rise to cause on this. What she may well think is that in following instructions on the law she may be forced to admit to herself that something she did violated the law. Maybe or maybe not. But I just can't imagine she could be fair." (Id. at 74).

 Juror no. 27 was the general partner of a real estate venture which raised money from investors and bought and sold properties. Occasionally, investors would give him over $ 10,000 in cash, which he would deposit in a bank. After having been told by the bank at some point, which he placed around 1988, *fn1" that there was a new reporting requirement for cash deposits over $ 10,000, Juror no. 27 recalled breaking down a $ 12,000 or $ 13,000 cash deposit into two smaller amounts, each under $ 10,000. (Id. at 83-84). After similar objections from defense counsel, particularly over the mens rea element of money structuring, Juror no. 27 was also excused for cause. Before he was excused, still at sidebar and outside the jury pool's hearing, the Court noted that "my concern is, just as with [Juror no. 7], their activities are so close that they will feel threatened personally if they feel they must convict." (Id. at 90). A question was then asked, at the suggestion of defense counsel, to elicit whether this juror's past experience would impair his ability to be impartial.

 
THE COURT: [Juror no. 27], as part of the instructions in this case, the instructions on the law, if I were to instruct you that breaking down a deposit of over $ 10,00 into two or more deposits of less than $ 10,000 in order to willfully evade the filing of a CTR, if I were to instruct you that that was illegal, would that affect your ability to be fair and impartial in this case?
 
JUROR NO. 27: I would think so.
 
THE COURT: How, sir?
 
JUROR NO. 27: Because I did it. I did it and you are telling me that I did something illegal, so I feel like you are accusing me of a criminal act.

 (Id. at 91) (emphasis added).

 Defendants argue that Jurors no. 7 and 27 were improperly excluded for cause. Their argument rests heavily on the Court of Appeals for the Third Circuit's reasoning in United States v. Salamone, 800 F.2d 1216 (3d Cir. 1986), cert. denied, 493 U.S. 895, 107 L. Ed. 2d 196, 110 S. Ct. 246 (1989). The distinctions between Salamone and the present case are salient.

 Salamone had been convicted of various firearms offenses. On appeal, his conviction was overturned because the trial judge was found to have "abused his discretion in conducting the voir dire proceedings." Salamone, 800 F.2d at 1220. The abuse consisted of the trial judge's perfunctory disqualification of several venirepersons solely because of their membership in the National Rifle Association. *fn2" No inquiry was made into their ability to serve impartially despite this affiliation. On appeal, Salamone objected to "the presumed bias of potential jurors which occasioned the arbitrary exclusion of an entire class of otherwise qualified jurors from his panel." Id. at 1224. The Court reasoned as follows.

 
To allow trial judges and prosecutors to determine juror eligibility based solely on their perceptions of the external associations of a juror threatens the heretofore guarded right of an accused to a fair trial by an impartial jury as well as the integrity of the judicial process as a whole. Taken to its illogical conclusion, the government's position would sanction, inter alia, the summary exclusion for cause of NAACP members from cases seeking the enforcement of civil rights statutes, Moral Majority activists from pornography cases, Catholics from cases involving abortion clinic protests, members of NOW from sex discrimination cases, and subscribers to Consumer Reports from cases involving products liability claims.

 Id. at 1225 (footnote omitted).

 Underlying this reasoning was the fundamental principle that challenges for cause should be based not on "wholesale exclusions of a particular group," id. at 1227, but rather on an individual juror's ability to serve impartially and "in accordance with his instructions and his oath," id. at 1226 (citing Thiel v. Southern Pac. Co., 328 U.S. 217, 220, 90 L. Ed. 1181, 66 S. Ct. 984 (1946) ("Jury competence is an individual rather than a group or class matter.")). Individualized determinations, in turn, require "inquiries relevant to the discovery of actual bias." Id. Without a factual predicate underlying for cause exclusions, the voir dire is "inadequate to preserve and protect the rights of the accused." Id. The Court went so far as to invoke language from the Supreme Court in Thiel, positing that unsupported blanket exclusions for cause threaten to "open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury." Id. (quoting Thiel, 328 U.S. at 220).

 Salamone reaffirms unquestionably fundamental and worthy principles that are not at stake in the present case. First, there is no identifiable group here, even if two persons could be said to constitute a "group." Second, I did not, with Juror no. 7 or Juror no. 27, "determine juror eligibility based solely on [my] perceptions of the external associations of a juror." 800 F.2d at 1225. Third, the improperly excluded jurors in Salamone were excused because they belonged to a group, and because of that affiliation they were presumed to have opinions or beliefs that would prevent them from impartially weighing the evidence. In the present case, the excluded jurors actually engaged in the kind of activity for which one of the defendants was on trial. As stated above, when Juror no. 27 was asked if an instruction that willfully structuring a deposit to avoid filing a CTR was illegal would affect his ability to be fair and impartial he answered: "I would think so." (Tr. 91). When asked why, he answered: "Because I did it. I did it and you are telling me that I did something illegal, so I feel like you are accusing me of a criminal act." (Id.). This was not a perceived or presumed conflict, but an actual conflict that clearly impaired his ability to sit fairly as a juror, that clearly impaired his ability to weigh the evidence "in accordance with his instructions and his oath." Salamone, 800 F.2d at 1226. The NRA members in Salamone were not excluded because they admitted to the unlawful possession of firearms, the same act the defendant was accused of. They were excluded for the far more tenuous presumption that NRA membership alone prevented them from fairly weighing the evidence in a case involving firearms possession.

 In sum, the two fears protected against in Salamone do not threaten here. First, there is no danger that the "wholesale" exclusion for cause of certain classes of persons will usher racial, sexual, social, economic or other invidious discrimination into our courtrooms and efface the Sixth Amendment's guarantee of a fair trial. Second, there is no danger that the exclusion of Jurors no. 7 and 27 deprived defendants of a fair trial. I find now, as I did then, that these jurors' bias was evident in the acts to which they admitted, and which too closely resembled acts at the core of this trial. Juror no. 7 expressly acknowledged as much. For Juror no. 27, defendants might argue, bias was neither clearly expressed nor inevitable. Assuming this to be so, the mental gymnastics required for her to separate her own experience with CTRs from the extensive testimony about CTRs brought out at trial would have been too precarious and too strenuous to have been expected of any juror. I do not agree that, as a matter of law, an exclusion for cause is improper if the excused juror was not explicitly asked if he or she could impartially weigh the evidence as it was presented. In a case such as this, such an inquiry would have been redundant. Furthermore, even if the impartiality question is asked directly and answered affirmatively, a trial court need not accept on its face a prospective juror's pledge. Voir dire would be sterilized by such a restriction, and its function in securing a fair trial compromised. As former Chief Justice John Marshall has written, a prospective juror "may declare that he feels no prejudice in a case; and yet the law cautiously incapacitates him from serving on the jury; because it suspects prejudice; because in general, persons in a similar situation would feel prejudice." United States v. Burr, 25 F. Cas. 49, 50 (1807). The unsuitability of Jurors no. 7 and 27 was manifest in their actions, their demeanor, and their voir dire answers, and I was well within my discretion to excuse them for cause. *fn3"

 Far more applicable than Salamone is United States v. Ploof, supra. Ploof was charged and convicted of, among other things, receiving and concealing a stolen motor vehicle. On appeal he challenged, inter alia, the refusal of the trial judge, The Honorable Thomas F. Murphy, late of this Court, to exclude for cause a venireperson who indicated she "might" have difficulty being impartial because she had a friend who had been hit by a stolen car. The Court on review upheld Judge Murphy's determination. Noting that the juror "tried to extend the range for disqualification," the Court "appreciated that the trial judge was getting a little sick of jurors trying to escape service." Ploof, 464 F.2d at 118. Importantly for our purposes, the Court contrasted this determination with Judge Murphy's determinations on who should be excused for cause.

 
Earlier the court had excused for cause, on its own motion, four veniremen who related recent experiences they or immediate members of their families had had involving stolen or vandalized cars which they believed would bias them.

 Id. Here, as in Ploof, the excluded jurors had engaged in conduct so proximate to the unlawful conduct defendant Devery was accused of that their experience necessarily -- and, in one of the two instances, admittedly -- impacted their ability to weigh impartially the evidence presented. In this case, there was the additional obstacle to impartiality that, after they were instructed on the law, these jurors may well have felt that, in weighing on the defendant's guilt or innocence, they were confronting the legality of their own past acts as well. As I noted during voir dire, "my concern is . . . their activities are so close that they will feel threatened personally if they feel they must convict." (Tr. 90). *fn4"

 Ploof also stressed the deference owed to a trial judge's management of voir dire when it stated that,

 Ploof, 464 F.2d at 118. The Court further noted that,

 
there are few aspects of a jury trial where we would be less inclined to disturb a trial judge's exercise of discretion, absent a clear abuse, than in ruling on challenges for cause in the empaneling of a jury. Indeed, the entire voir dire procedure . . . is one best left to the sound discretion of the judge.

 Id. at 118-19 n.4.

 B. Drug Dealer Witness Credibility

 On the afternoon of the first day of jury selection, two subsequent for cause exclusions involved venirepersons who indicated they could not fairly and impartially consider the testimony of a drug dealer. In response to a question posed to the jury pool "relating to witnesses who may testify that they were drug dealers or that they committed other crimes," (Tr. 100), Juror no. 38 offered, at sidebar, that "I have a second cousin who was murdered by a drug dealer, and I don't know if I could render -- if I could stay even on something like that," (id.). Juror no. 38 was then instructed by the Court that

 
what we seek to avoid is to have anything that you learned or any attitude that you have from outside the courtroom affect your judgment as to what you hear here. . . . What I guess we're trying to get at here is whether the nature of this testimony or the fact that it comes from someone who has admitted to committing one or more specific crimes would cause you, for reasons unrelated to the evidence, not to be fair and impartial.

 (Id. at 110-11). In response Juror no. 38 said

 
like I said, if I knew somebody was involved in the drug trade, even if there wasn't evidence that this person had something to benefit from being there, I would have in-bred doubt in my mind about that person to begin with, just because of my experience in the past with such individuals.

 (Id. at 111).

 The government, out of hearing of the juror, stated that the juror's responses indicated he was "unfairly biased in the sense he cannot overcome his emotion." (Id. at 115). Defense counsel disagreed, arguing that the Court's questions were prejudicial to the defendants because they implied that jurors should not rely on their life experiences ...


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