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IDA v. U.S.

June 4, 2002


The opinion of the court was delivered by: Kaplan, District Judge.


Movant, reputedly the former consigliere of the Genovese organized crime family, was convicted after a lengthy jury trial of racketeering conspiracy, racketeering, eight substantive crimes which were alleged also as acts of racketeering, and conspiracy to defraud the United States. Three of the acts of racketeering, two of which were alleged also as substantive counts, were murders or conspiracies to commit murder. On October 7, 1997, he was sentenced to a term of life imprisonment, five years of supervised release, a mandatory special assessment, and a $1 million forfeiture. On April 30, 1999, the Second Circuit substantially affirmed the convictions, reversing only racketeering act 2(a) and count nine, the DeSimone murder conspiracy.*fn1

On October 15, 1999, Ida moved for a new trial based on alleged newly discovered evidence. The Court denied the motion on December 14, 1999, and the Second Circuit affirmed on September 14, 2000.*fn2

Ida has moved pursuant to 28 U.S.C. § 2255 to vacate his conviction and sentence as well as for discovery in support of the motion and for a hearing. Much of the application focuses on alleged newly-discovered evidence concerning the murder of Hickey Dilorenzo and the conspiracy to murder Dominic Tucci, the evidence concerning which is summarized in the Second Circuit's opinion and need not be repeated here.*fn3 Movant alleges also that the government violated its disclosure obligations under Brady v. Maryland*fn4 and Gigio v. United States;*fn5 that he was deprived of the effective assistance of counsel; that Apprendi v. New Jersey*fn6 requires reversal of the criminal forfeiture verdict; and that the testimony of two of the government's witnesses should have been excluded under United States v. Singleton.*fn7 Finally, he seeks to have the government's memorandum in opposition to his motion stricken on the ground that the Assistant United States Attorney who signed it is not a member of the New York Bar. As previously noted, however, the centerpiece of the motion consists of claims of jury tampering and juror misconduct. In a prior opinion, familiarity with which is assumed,*fn8 the Court rejected all of the claims of jury tampering and all but one of the claims of juror misconduct and ordered a hearing as to the remaining juror misconduct claim. The hearing now having been concluded, the entire remaining part of the motion is ripe for disposition.

I. Alleged Jury Misconduct

A. Alleged Concealment of Pro-Prosecution Bias by Juror No. 3.

In Ida v. United States,*fn9 the Court rejected all of the claims of jury tampering and juror misconduct Ida had raised thus far save his contention that Juror No. 3, now known to have been one John Lynch,*fn10 improperly misled the Court during voir dire by failing to disclose his alleged belief that the defendants would not have been arrested and brought to trial unless they were guilty — in other words, that he approached the case not with acceptance of the presumption of innocence, but with a presumption of guilt. Ida's claim rested on the affidavit of one William Sullivan, formerly a proprietor and bar tender at a golf club at which Lynch's wife was employed, which claimed that Lynch told him during the trial that he was a juror in this case and, among other things, that the defendants would not have been arrested and brought to trial unless they were guilty.

The Court conducted an evidentiary hearing on this issue on April 30, 2002 during which Ida called both Sullivan and Lynch as witnesses. Sullivan's account largely followed that set forth in his affidavit.*fn11 Lynch flatly denied having made any of the statements attributed to him by Sullivan or, for that matter, having discussed the case with him during or after the trial.*fn12 Thus, the question whether Lynch misled the Court during the voir dire in the respect claimed by Ida comes down to a pure question of credibility.

The Court has considered carefully the respective accounts of these witnesses, the inherent probabilities of their accounts, and their demeanor on the witness stand. Without attempting to set forth all of the considerations that have entered into the Court's determination, a number of factors are worthy of mention.

To begin with, Sullivan's contention that Lynch discussed the matter with him at all is improbable. This was an organized crime case involving several murder charges. The jurors were aware that their identities were secret.*fn13 They were taken from the courthouse each day in vehicles arranged by the United States Marshal Service and dropped at remote locations to avoid their being followed and identified. The likelihood that Lynch would have revealed even the fact that he was a juror in this case, let alone made the statements attributed to him, therefore is low.

This improbability is compounded by Sullivan's account. According to Sullivan, Lynch simply came into the bar and volunteered the series of points set forth in Sullivan's affidavit without Sullivan offering any comment at all,*fn14 yet failed to mention any of a host of details concerning the case and the extraordinary treatment of the jurors that would have been at the very top of the list of points that someone in Lynch's position almost surely would have mentioned. Thus, Sullivan testified that Lynch did not tell him anything about what was going on in the case, did not tell him it was a murder case, did not tell him that the jury was anonymous, did not mention the extraordinary means taken to preserve the jurors' anonymity, and did not tell him who the defendants were.*fn15 And there are other problems with Sullivan's story.

Sullivan's tale first came to light as a result of his reporting what Lynch allegedly told him to his brother-in-law, an attorney named Michael Negri, at a family function a couple of months after the trial ended.*fn16 Negri's affirmation makes clear that when he heard whatever precisely Sullivan told him, he quickly contacted Jeffrey Hoffman, Esq., Ida's trial counsel.*fn17 How, then, did Negri know to contact Hoffman? According to Sullivan, Lynch never told him who the defendants were.*fn18 This information appeared only in the newspaper article Sullivan claims to have seen at the end of the trial.*fn19 Yet the Court is asked to believe that Sullivan knew enough — from a brief look at a newspaper article — about who had been on trial and, for that matter, who Ida's lawyer was to give that information to Negri long afterward.

To be sure, one must consider how Ida and the defense team learned of Lynch's identity if Sullivan's story is a fabrication. But the question admits of several possible answers. For one thing, it is conceivable that Lynch or his wife told Sullivan, or Sullivan deduced from Lynch's long jury service, that Lynch was serving on this case but that nothing more was said. Even more likely is the possibility that the fact of Lynch's service on this jury became known as a result of his having been recognized in the courthouse. For example, during course of the trial, two police officers employed by a municipality in the area in which Lynch lives were outside the courtroom in which the trial took place and recognized Lynch as a juror. Indeed, the Assistant United States Attorney who tried the case on behalf of the government brought that fact to the Court's attention during the trial, and Lynch then acknowledged that he had recognized one of the officers.*fn20 Thus, while the Court certainly does not suggest that the officers, who evidently had some affiliation with the prosecution in this case, informed Ida or others connected with him of the identity of this juror, it is far from unlikely that some perhaps inadvertent remark by one of them ultimately resulted in the defense identifying Lynch and learning of his location and of the fact that his wife worked at the same bar as did Sullivan. Thus, there were ample means by which the Ida team could have identified Lynch other than that which Sullivan advanced. Sullivan's story is improbable to begin with, and the fact that the defense found out Lynch's identity does not strongly corroborate it.

Ida argues that Sullivan nevertheless should be believed because some of the things he claims Lynch told him could have come only from Lynch, specifically, that Lynch's car had been vandalized at a train station, that Lynch took notes during the trial, and that Lynch discussed the trial with someone named John Walsh. But Ida overstates the evidence.

First, Lynch was not the only person from whom Sullivan could have learned the fact that Lynch's car was vandalized at a train station. Lynch made clear at the hearing that numerous people in his neighborhood knew of the damage his windshield sustained at the train station.*fn21 And certainly Lynch's wife could have mentioned the fact in casual conversation with any number of people at the bar where Sullivan worked. Even if Lynch himself told Sullivan about his windshield, discussing what occurred to Lynch's car is wholly different than discussing the case on which Lynch was a juror. He was perfectly free to tell people that his car windshield had been broken at a train station and could have done so without violating his juror oath.

Second, the fact that Sullivan referenced Lynch's trial notes in his affidavit and that Lynch admitted to taking notes in the trial does not make Sullivan's account of the alleged conversation any more probable. Many jurors take notes, especially in trials as long as this one. And the fact that the juror sitting in chair number three took notes during this particular trial was not a secret to anyone who was in the courtroom, including Ida and his defense team.*fn22

Finally, there is no admissible evidence before the Court that corroborates Sullivan's assertions with regard to John Walsh.*fn23

The conclusion that Sullivan did not testify accurately is confirmed by the Court's assessment of the demeanor and credibility of the witnesses. The Court found Lynch direct, straightforward and candid.*fn24 It was not similarly impressed with Sullivan.*fn25 Considering all of these factors, as well as others that need not be enumerated here, the Court finds that Lynch never discussed the case with Sullivan or anyone else and never made any of the statements attributed to him by Sullivan.*fn26 Ida's juror misconduct argument, to the extent it survived the Court's prior decision, is entirely without merit.

B. Belated Claims of Juror Misconduct

Although this Section 2255 motion has been pending for well over a year and was briefed extensively prior to the juror misconduct hearing, Ida sought at the hearing to raise entirely new claims of misconduct by Lynch, claiming that Lynch misled the Court by (a) failing to acknowledge that he knew two police officers whose names appeared on a list of possible government witnesses, (b) claiming, in an effort to avoid jury service on the ground of hardship, that he was the sole provider for his wife and children when in fact his wife was employed at the bar that Sullivan ran, (c) failing to disclose his predisposition in favor of law enforcement officers implicit in the alleged statement to Sullivan, (d) and ignoring the Court's instructions to leave any notes taken during the trial in the jury room.*fn27

When Ida first sought during the hearing to raise these points, the Court ruled that it would not consider them in view of Ida's failure to raise them earlier.*fn28 The Court, however, did allow inquiry into these areas because they bore on Lynch's credibility and then allowed Ida the opportunity to brief the question whether the initial ruling should be adhered to. Ida declined this opportunity and briefed these claims solely as they related to Lynch's credibility.*fn29 Having considered the matter further, the Court adheres to its view that Ida's failure to raise these issues in a more timely fashion precludes him from doing so now.

Had Ida pressed these claims as additional grounds for relief as distinct from matters bearing on credibility, he in substance would be seeking to amend his Section 2255 motion to conform to the evidence. Such a motion would be governed by Rule 15 of the Federal Rules of Civil Procedure.*fn30 In consequence, Ida would be required to demonstrate that the new claims satisfied Rule 15's relation back requirements.*fn31 He has made no such showing. But the point ultimately would be academic even if Ida had pressed it. Based on the evidence presented at the hearing, there is no merit to any of these claims.

First, the Court credits Lynch's testimony that he overlooked the names of the two police officers in scanning the nine page, single spaced list of prospective government witnesses.*fn32 It therefore finds that he did not wittingly mislead the Court in this respect during voir dire.

Similarly, the Court finds, that Lynch in fact did not hold the view of law enforcement officers attributed to him by Sullivan and did not disregard the Court's instructions with respect to his notes of the trial.*fn33

The final claim — that Lynch misled the Court by claiming that he was the sole supporter of his family — requires slightly more discussion, but leads to no different result. To be sure, Lynch's contention that he was the sole supporter was not literally true, as his wife worked seven hours per week at Sullivan's bar.*fn34 But it was not far from the truth. And this modest exaggeration warrants no relief here.

In order to set aside a jury verdict on the ground that a juror misled the Court during voir dire, Ida "must first demonstrate that [the] juror failed to answer honestly a material question on voir dire and then further show that a correct response would have provided a valid basis for a challenge for cause."*fn35 A literally truthful statement — that Lynch supported his family with aid from his wife's seven-hour per week job — would not have grounded a meritorious challenge for cause.*fn36

In view of the foregoing, the Court rejects all of Ida's claims of juror misconduct both on the merits and, in the case of these eleventh hour ...

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