him also is
insufficient to satisfy the McDonough test. Jurors are not prohibited
from forming impressions based on a defendant's demeanor during the
course of a trial. The fact that they do so is not an indicator that
they were not honest during voir dire, nor is it a basis for impeaching
d. Presumption of Innocence
At the start of voir dire, the jurors were told that the indictment was
not evidence of guilt and that each defendant is presumed innocent and
remains so unless and until the government proves guilt beyond a
reasonable doubt.*fn67 They then were asked whether they had any
hesitation or unwillingness to accept any of these rules.*fn68 Later in
the voir dire, they were asked whether they thought law enforcement
offers more or less likely to testify truthfully than other witnesses.
Juror No. 3 indicated no such views.*fn69 The thrust of Ida's position
again therefore is that Sullivan's affidavit suggests that the juror
misled the Court during voir dire.
In this instance, it is difficult to see how the alleged statement, if
it was made, could be reconciled with truthful responses to the voir dire
questions referred to above. If indeed Lynch believed that the defendants
would not have been arrested if they were not guilty, he may have
approached the case with a presumption of guilt, not a presumption of
innocence. If so, his failure to disclose that view in response to the
Court's question as to whether he could apply the presumption of
innocence, willingly and without hesitation, arguably was a failure to
answer honestly. And there is no serious doubt that an affirmative
response to the Court's question would have afforded a basis for a
meritorious challenge for cause. Accordingly, in this one instance, the
McDonough test is satisfied, assuming the facts to be as Sullivan claims.
The government nevertheless contends that no hearing or other inquiry
is required because the fact that the jury acquitted Ruggiero of all and
both Ida and Frustaci of some charges indicated that the jurors did not
harbor a presumption of guilt. In this instance, however, that is not a
satisfactory answer. If in fact a juror held the view that the defendants
were presumed guilty and, in substance, had the burden of proving their
innocence, the return of some not guilty verdicts does not establish the
overall fairness of the trial. The possibility that the defendants would
have been acquitted on other charges as well save for the concealment of
such a juror's views during voir dire cannot be disregarded.
A hearing limited to this issue therefore is necessary.
The Court will conduct an evidentiary hearing concerning the limited
issue described above on April 30, 2002 at 10:00 a.m. There is to be no
contact by either side with Juror No. 3 except during the hearing by
means of questioning while he is on the witness stand should he be called
as a witness. If either side wishes to have Juror No. 3 served with a
subpoena, it should cause issuance of a subpoena*fn70 and cause it to be
delivered to the U.S. Marshal, on or before April 15, 2002, for service.
The Court hereby authorizes the Clerk to disclose the name and last known
address of Juror No. 3 to the Marshal, and only the Marshal, for that
purpose. In the event the Marshal is requested to serve such a subpoena,
he shall not disclose any identifying or locational information to anyone
absent further order of this Court. Any return or other proof of service
shall be filed under seal, although the Marshal is free to inform counsel
of the fact of service of any such subpoena. Counsel shall notify one
another and the Court, on or before April 25, 2002, of the identities of
all persons whom they intend to call as witnesses at the hearing.