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