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U.S. v. WEISSMAN

July 6, 2004.

UNITED STATES OF AMERICA,
v.
MORRIS WEISSMAN, Defendant.



The opinion of the court was delivered by: BARBARA JONES, District Judge

MEMORANDUM OPINION

Defendant moves for a new trial, for a declaration of a mistrial on Count II, and for reconsideration of this Court's opinion denying the existence of a joint defense privilege shielding certain communications from use at trial. For the reasons to follow, Defendant's motions are DENIED.

1. Motion for a New Trial

  Defendant moves for a new trial, pursuant to Federal Rule of Criminal Procedure 33, on the grounds that the Court's submission of special interrogatories to the jury was inherently suggestive and coerced the jury by providing a roadmap to a finding of guilt. Although special interrogatories were used only for Counts I and II, Defendant also argues that the allegedly improper interrogatories "tainted" the verdicts on Counts III and IV.

  As an initial matter, the Court notes that the Second Circuit has approved the use of special verdict forms. In fact, the Second Circuit has upheld convictions in cases where the trial court employed special verdict forms in a variety of criminal cases, including for RICO violations, continuing criminal enterprise violations, securities fraud, money laundering, mail fraud, wire fraud, and conspiracies.*fn1 See, e.g., United States v. Pimentel 346 F.3d 285, 305 (2d Cir. 2003) ("[W]e also strongly encourage the use of special verdict forms in cases alleging multiple racketeering acts to facilitate appellate review."); United States v. Coriaty, 300 F.3d 244 (2d Cir. 2002) (wire fraud); United States v. Zichetello 208 F.3d 72 (2d Cir. 1991) (RICO).

  In United States v. Ruggiero, 726 F.2d 913 (2d Cir. 1984), the Second Circuit approved of the form in a RICO case, reasoning that,
if . . . a defect effecting a single predicate act is later discovered, an automatic retrial can be avoided whenever the jury's additional determinations indicate that the defendant has been found beyond a reasonable doubt to have committed at least two other of the alleged predicate crimes.
Ruggiero, 726 F.2d at 922.

  This logic is applicable here. Specifically, the verdict form in this case "secur[ed] particularized fact-finding," see Ruggiero, 726 F.2d at 927, and was used to avoid the possibility of a retrial of a complex case in the event that certain objects of the conspiracy or certain prongs of the security fraud count were subsequently found defective.

  Moreover, the Defendant suffered no prejudice from the use of the special verdict form. The form first asked whether the jury reached a general verdict of guilty or not guilty, and then instructed the jury to answer the special interrogatories only if they answered guilty to that first question. Cf. id. ("[I]t might be worth considering an instruction to the jury, reflected on the interrogatory form, that the interrogatory . . . is to be answered only in the event that the jury has agreed upon a general verdict.").

  The structure of the special verdict form also refutes Defendant's contention that the form influenced the jury or provided a roadmap to a finding of guilty. In fact, the Second Circuit approved a similar form in United States v. Handakas, 286 F.3d 92 (2d Cir. 2002). In that case, the Court affirmed a conviction in which the special verdict form "supplied by the district court, [] separately asked whether" the Defendant committed either of two predicate acts. Handakas, 286 F.3d at 100-101. The Court found that "[t]he district court thus carefully assured that each theory of the prosecution would be separately considered and decided." Id.

  Defendant also contends that it was improper not to include the standard for the burden of proof and the requirement of unanimity in the form. There is no requirement, however, that verdict forms include this information, and it is not disputed in this case that the Court properly instructed the jury during the charge that the burden of proof was on the Government to prove guilt on each of the elements beyond a reasonable doubt. Cf. United States v. Gallishaw, 428 F.2d 760, 766 (2d Cir. 1970) ("Th[e] omission [of the burden of proof] does not require us to reverse so long as the oral charge on these matters was adequate."). Likewise, not only did the Court instruct the jury on the requirement of unanimity, the jury clearly indicated its understanding of that requirement when it sent out its note regarding the questions relating to the objects of the conspiracy, stating: "regarding question 4(a)(ii), in 4(a) it says you may select more than one. If we do not have unanimous agreement on (ii) but have unanimous agreement on (i) and (iii), can we leave (ii) open (blank)?" (Tr. at 4087).

  Accordingly, the Court finds that the special verdict form was proper for Counts I and II.

  Defendant also claims that any flaws in Counts I and II tainted the guilty verdicts on Counts III and IV. (Def's Reply at 3). Even if this Court found Counts I and II flawed, which it does not, the Defendant has made no showing that "there is a substantial risk of prejudicial spillover," as is required. See United States v. Scotti, 47 F.3d 1237, 1247 (2d Cir. 1995). 2. Motion for a Mistrial as to Count II

  The defendant moves for a mistrial "at least as to Count 2" claiming that the verdict was incomplete and that the Court should have instructed the jury to continue their deliberations. (Def's Br. at 18). These claims are without merit.

  Question 3 on the verdict form asked the jury whether they found Defendant guilty or not guilty of Count Two (securities fraud). Question 4 states, "If you answered `guilty' in Question 3, answer the following questions for the defendant." The subparts in Question 4(a) then asked whether the jury found that the Defendant (i) employed a device, scheme or artifice to defraud, or (ii) obtained money or property by means of making an untrue statement ...


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