The opinion of the court was delivered by: Robert L. Carter, District Judge.
Mohamad Dolah and Marshall Weinberg were charged, in an eleven
count indictment, along with William Stern, Nelson Walker, Jeremy
Crittenden and Eric Martinez, with conspiracy to commit fraud in
connection with the offer and sale of the common stock of
ConnecTechnologies, Inc. and Vital Signs, Inc. from July, 1997 to
February, 1998 in violation of Title 18, United States Code, §
371, and fraud in connection with the offer and sale of the
common stock of the two corporations in violation of Title 18,
United States Code, §§ 77q and 77x. Only Dolah and Weinberg went
to trial; the other defendants pleaded guilty to one or more
counts. The trial commenced on April 26, 1999, and concluded on
May 14, 1999, with a jury verdict convicting defendants on the
remaining ten counts of the indictment.*fn1
Weinberg moves for a new trial on the grounds that the court
committed reversible error in refusing to strike three jurors for
cause, in curtailing defendants' cross examination of government
witnesses as to their good faith belief that they were engaged in
legitimate transactions and their reliance on the good faith of
various persons not charged in the indictment, refusing to read a
theory of the defense charge, disparaging counsel throughout the
trial and in taking a partial verdict from the jury. Dolah joins
in the motion as to the court's refusal to strike three jurors
The testimony supporting the jury verdict was straight forward,
establishing beyond a reasonable doubt that defendants had
knowingly engaged in a scheme to interest susceptible members of
the public into buying worthless common stock of
ConnecTechnologies, Inc. and Vital Signs, Inc., and in knowingly
offering and selling them such worthless common stock of the
corporations with the intent to defraud in violation of Title 18,
United States Code, §§ 77(q) and 77(x).
Dolah elected to take the witness stand, and, by his
performance, doomed whatever hopes he might have entertained that
the jury might find that the government had not met its beyond a
reasonable doubt requirement. He told blatant and transparent
lies on the witness stand and made foolishly absurd assertions,
all of which did not aid his cause. Weinberg did not testify.
a. Jury Selection
Q. You have never been on a jury before?
A. Thank you.
A. Thank you.
Mr. Grandpre was interviewed next in the robing room. (Tr. 74).
He repeated the concerns expressed in open court about his
parents being hurt by an overzealous broker as the basis for his
belief that he would have difficulty being fair. He spoke of Ivan
Boesky and Michael Milken and the need to make examples "of some
of these people." (Tr. 75). After being told that his obligation
was to analyze the evidence and on that basis make a fair
determination, he replied, "I understand. I am just trying to be
honest in terms of this type of business, it is very difficult
for me to remain objective." The colloquy continued with the
court asking, "if the evidence is such that the government has
not proved these men to have done anything wrong, beyond a
reasonable doubt, would you come in with a verdict of not
guilty?" His response of "I am not sure I could" was not found
believable by the court: "I am not going to accept that. . . . I
am not going to accept that." I think that Mr. Grandpre is
looking at three weeks and trying to find a way out. I am not
going to excuse him period. (Tr. 76).
Mr. Santa was next (Tr. 77) and for the first time expressed a
bias, saying he was against Arabs. After counsel confirmed that
Dolah was an Arab, the following colloquy took place:
A. No, I don't think so.
A. Right, by the evidence.
Q. And you — whatever the evidence is in this case,
whether it is sufficient to if you are on this
jury, to convict this man or let him go, you would
weigh the evidence, correct?
A. Weigh the evidence, yes.
Q. Okay, thank you.
A. That's it.
The defendants' challenge of the three for cause was rejected
(Tr. 80-81), and defendants used three of their peremptory
challenges to excuse Ms. Zomback, Mr. Grandpre, and Mr. Santa.
In response to the government's inquiry as to whether the
court's rejection was its disbelief in what the jurors had said,
the answer was that the three had indicated that "they were going
to weigh the evidence and . . . make the decision based on the
evidence." (Tr. 81). The record is clear, however, that in Mr.
Grandpre's case, the court had refused to believe or accept his
statement that he was not sure he would base his decision on the
evidence. (Tr. 76). Apparently, the court had forgotten that Mr.
Grandpre, unlike the other two, had not said that he would weigh
the evidence and base his decision on the evidence, and that his
response of doubt that he would find the man not guilty even if
the evidence called for it was not credited by the court.
The court rejects out of hand any claim that it was required to
excuse Ms. Zomback and Mr. Santa for cause. Both did express a
predisposition to bias: Ms. Zomback against both defendants ("I
have a sense of felling one sided") (Tr. 72); "a sense of seeing
FBI men and the government making a case" (id.); "a sense that
these young men are guilty"(Tr. 73); and Mr. Santa against Dolah
because he is an Arab — "I am against the Arabs" (Tr. 78).
However, when reminded of their obligation as jurors to weigh the
evidence and base their decision on the evidence, both agreed
that they would do so. Ms. Zomback stated, "Of course I would
serve on the jury, and would I listen and try to be fair, of
course I would." (Tr. 73). Mr. Santa stated that he would not
convict on insufficient evidence because defendant was an Arab;
he would judge the case based on the evidence. (Tr. 78). No more
than that can be asked of any juror. The issue is not whether a
prospective juror is free of prejudice, since very few if any of
us are, but "whether the juror's views would `prevent or
substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath'" Wainwright v.
Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)
(citations omitted). Both Ms. Zomback and Mr. Santa assured the
court that their predispositions or inclinations would not
prevent them from fulfilling their sworn obligation to weigh and
decide the case based on the evidence. Under such circumstances,
defendants have no viable claim that their rights were violated
because the court refused to excuse Ms. Zomback and Mr. Santa for
cause. See United States v. Ploof, 464 F.2d 116, 118 (2d Cir.),
cert. denied, 409 U.S. 952, 93 S.Ct. 298, 34 L.Ed.2d 224(1972)
(no error in court's refusal to excuse for cause a juror who
initially stated his thinking might be affected by an outside
event, but after being pressed by the court said he would do his
best to be fair). Even United States v. Martinez-Salazar,
146 F.3d 653 (9th Cir. 1998), on which defendants rely and which will
be discussed more fully below, is to the same effect. Id. at
656 ("We have upheld a district court's decision not to dismiss
for cause a juror who initially admits bias as long as he or she
ultimately asserts an ability to be fair and impartial.")
(citations omitted). Accordingly, the motion for a new trial as
it relates to the court's refusal to dismiss Ms. Zomback and Mr.
Santa for cause is denied.
The refusal to excuse Grandpre for cause requires a fuller
discussion since he did not assure the court that he would be
fair. The court did not believe he would vote for a verdict not
based on the evidence; rather, the court believed that he was
seeking to be excused from a potential three week jury trial
which would cause him an inconvenience that he did not want to
Defendants rely on Martinez-Salazar, 146 F.3d 653, which
stated that the United States Supreme Court's decision in Ross
v. Oklahoma, 487 U.S. 81, 87, 108 S.Ct. 2273, 101 L.Ed.2d 80
(1988), left open the question whether a 5th Amendment violation
occurs when a defendant is required to use up all the peremptory
challenges to which he is entitled because of the erroneous
refusal of the court to excuse a juror for cause. The Ninth
Circuit held that in such circumstances, the defendant's 5th
Amendment due process rights have been violated.
That decision, however, is not the law of this circuit. In
applying Ross, 487 U.S. at 88, 108 S.Ct. 2273 (loss of
peremptory challenge not an infringement of constitutional right
to impartial jury: "So long as the jury that sits is impartial,
the fact that the defendant had to use a peremptory challenge to
achieve that result does not mean the Sixth Amendment was
violated."), this circuit has held that there can be no viable
claim of the violation of a defendant's Fifth or Sixth Amendment
rights because of loss of use of peremptory challenges unless the
sitting jury ultimately chosen was itself biased. See United
States v. Rubin, 37 F.3d 49, 54 (2d Cir. 1994); United States
v. Towne, 870 F.2d 880, 885 (2d Cir. 1989); United States v.
Brown, 644 F.2d 101, 103-04 (2d Cir. 1981).
Since defendants do not and cannot claim that the jury
ultimately chosen was biased or infected with prejudice, the
prerequisite in this circuit for their claim to succeed has not
been met. See Rubin, 37 F.3d at 54 ("[Defendant] cannot prevail
because he has not made the requisite showing that the jury
eventually empaneled was not impartial. Under this court's
precedents, without such a showing his claim must fail.")
(citations omitted); United States v. Morales, 185 F.3d 74 (2d
Cir. 1999). Accordingly, their claim that the court's refusal to
dismiss Mr. Grandpre for cause entitles them to a new trial is
b. Weinberg's Sundry Claims of Prejudice in Re: Court's Conduct
of Trial and Jury Charge
Weinberg contends that he was denied his 6th Amendment right to
present a defense by being prevented from questioning various
witnesses as to their good faith beliefs. The defendant's good
faith belief was relevant, and the jury was charged that the
defendant's good faith belief was a complete defense. Testimony
as to the good faith belief of the various government witnesses
was irrelevant, a waste of time, and could have caused the jury
to be needlessly confused. Nonetheless, the record shows that
defendant's cross-examination was not curtailed to any
appreciable degree and that some inquiries into a witnesses'
beliefs were permitted, as is set forth in the government's brief
Weinberg also claims that after "nearly two-and-one half weeks
of trial . . . over one thousand pages of material . . .
including impeachment materials, investigative leads and other .
. . favorable [evidence] . . . were provided just two days prior
to closing argument," too late to allow their effective use by
defendant. (Bondy Aff. at 8). This is an appreciable misstatement
of the record. When the complaint about the late production of
the material by the government and the prejudice to defendants
was made on May 6, 1999, the court took the material home to
examine it over the weekend to determine whether defendants had
been prejudiced and to determine what relief should be afforded.
(Tr. 1113-17). After examination, the court determined that none
of the materials contained exculpatory or Brady material and
that defendants had not been prejudiced. (Tr. 1396-97). Very
little of the material was found to be pertinent and what was
was allowed to be introduced. Subsequently, other documents were
examined, which defendants claimed had exculpatory material (Tr.
1415), and again none such was found. (Tr. 1427). The court
agreed to review any specific portions of a deposition which
defendants designated as containing exculpatory material. (Tr.
1442-45). There was no follow-up on this matter. Misstatements
and inaccuracies are allowable to a point but in this instance,
the assertions are outrageously inaccurate. The court will rely
on the record.
Weinberg also contends that a new trial is warranted based on
the court's refusal to give the defendant's theory of defense
charge. (Bondy Aff. at 15). Although the court did charge the
jury on intent and good faith and more than adequately covered
the substance of Weinberg's defense, it did not give the charge
in the precise language proffered by defendant. The jury was told
that good faith on the part of the defendant was a complete
defense to a charge of securities fraud and that defendant did
not have to establish his good faith as a defense. It was the
government's burden to prove fraudulent intent and consequent
lack of good faith beyond a reasonable doubt. The charge was
sufficient and fully satisfied defendant's entitlements.
c. Jury's Return of a Partial Verdict
The final claim is that the court "erred in forcing the jury to
return a partial verdict." This again both misstates and distorts
the record. The jury began its deliberations on May 13, 1999 at
1:14 p.m. (Tr. 1901). The court called the jury to the courtroom
at 5:25 p.m. (Tr. 1910), preparing to dismiss them for the day.
The foreperson, James J. Rosso was asked if the jury had been
able to complete any of its deliberations (Tr. 1910). He advised
the court that the jury had completed part of its deliberations
and asked, "Can we report one charge or is that permitted?" He
was told that if the jury had completed any of its deliberations,
it could be reported, but it had to be in writing. There followed
A Juror: We will do that.
The Foreperson: Fine
A Juror: You have to get it. We already voted.
The Foreperson: Can I just go out and bring it in to
The Court: But it has to be in writing.
Your determination has to be in writing.
The Foreperson: Right. I'm saying does the rest of
the jury have to leave now ?
The Court: No, I don't think so. If you have it in
writing, you can bring it in
Mr. Russo left the courtroom and returned with the special
verdict form on which had been recorded the jury's verdict
finding the defendants guilty on count one. The verdict was read,
and the jury was polled, dismissed for the day, and requested to
return at 9 a.m. the next morning to continue its deliberations.
Weinberg contends that the court acted improperly in taking a
partial verdict; that the court "surprised" the jurors by asking
for their partial verdict; "ordered the foreman to return to the
jury room to write out the oral verdict that he and the other
jurors had arrived at together previously." (Bondy Aff. at 11).
There is no support in the record for these inflated assertions.
Prior to calling the jury to the courtroom, the court advised
counsel that it "was going to find out how they progressed, and
if they haven't reached any conclusions, I am going to dismiss
them for the night." (Tr. 1909). The record is clear that the
jury was not ordered to report anything. The foreperson said they
had finished part of their deliberations and asked whether they
could report one charge. He was told he could do so and that it
had to be in writing. Mr. Russo then went to the jury room,
special verdict form, and brought it into the courtroom.
In accepting the partial verdict, no error was committed. See
United States v. Levasseur, 816 F.2d 37, 45 (2d Cir. 1987)
("This court has long allowed partial jury verdicts which resolve
less than all counts as well as those which resolve all counts
against less than all defendants") (citations omitted). The
considerations of concern in United States v. DiLapi,
651 F.2d 140, 146-47 (2d Cir. 1981) were not present. The jury had reached
a verdict as to both defendants on one count, and had recorded
their decision on the special verdict form. It were ready to
announce its partial verdict if permissible. They were advised
that their verdict could be reported if they had concluded their
deliberations and if their verdict was in writing. What occurred
was consistent with Rule 31(b), F.R. Cr. P., and the law of the
circuit. The court did not commit error in accepting the partial
verdict. Therefore, Weinberg's claim in that regard provides no
basis for a new trial.
The remaining claims raised by Weinberg are without merit and
need not be discussed.
In sum, the motion for a new trial on behalf of defendants
Dolah and Weinberg because the court refused to dismiss jurors
Zomback, Santa, and Grandpre is denied. The motion on behalf of
Weinberg is denied in all other respects.
IT IS SO ORDERED.