United States v. Allied Stevedoring Corporation

• Decision Date: 11 July 1958
• Docket Number: Docket 25154.,No. 393,393
• Citation: 258 F.2d 104
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ALLIED STEVEDORING CORPORATION, John Ward, and Michael Bowers, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

258 F.2d 104 (1958)

UNITED STATES of America, Plaintiff-Appellee, v. ALLIED STEVEDORING CORPORATION, John Ward, and Michael Bowers, Defendants-Appellants.

No. 393, Docket 25154.

United States Court of Appeals Second Circuit.

Argued June 6, 1958.

Decided July 11, 1958.

Certiorari Denied October 13, 1958.

George I. Gordon, Asst. U. S. Atty., S. D. N. Y., New York City (Paul W. Williams, U. S. Atty., New York City, on the brief), for plaintiff-appellee.

Henry A. Lowenberg, New York City, for defendants-appellants.

Before CLARK, Chief Judge, and PICKETT and MOORE, Circuit Judges.

Certiorari Denied October 13, 1958. See 79 S.Ct. 58.

CLARK, Chief Judge.

This is a consolidated appeal from the denials of two motions for new trials. In March 1956 the defendants¹ were convicted of attempting to "defeat and evade" the income tax for the year 1951 of Allied Stevedoring Corporation in violation of Internal Revenue Code of 1939, § 145(b). After the denial of a motion under F.R.Crim.Proc., Rule 35, for reduction of sentence, United States v. Allied Stevedoring Corp., D.C.S.D.N.Y., 143 F.Supp. 947, we affirmed the convictions, 2 Cir., 241 F.2d 925, certiorari denied 353 U.S. 984, 77 S.Ct. 1282, 1 L.Ed. 2d 1143. On January 9, 1958, the defendants moved for a new trial under F. R.Crim.Proc., Rule 33, on the ground that they had just discovered that one of the jurors involved in the original conviction possessed and utilized "A Handbook for Petit Jurors" previously issued to him by the Clerk of the United States District Court. After a full hearing the district court denied the motion. D.C. S.D.N.Y., 162 F.Supp. 874. The defendants then made a second attempt to procure the same relief. In support of this motion they produced an affidavit by Joseph E. Potter, the brother of the deceased codefendant, John Potter, which alleged that a third brother, Charles Potter, told Joseph that he knew two of the jurors who convicted the defendants for some time prior to their selection. The district court denied this motion without a hearing. D.C.S.D.N.Y., 162 F. Supp. 879.

It is questionable whether the defendants have made an adequate showing that the "newly discovered" evidence was unavailable at the time of the trial, had they exercised the required due diligence in their search for it. United States v. Costello, 2 Cir., 255 F.2d 876, certiorari denied Costello v. United States, 78 S.Ct. 1385; United States v. Hiss, D.C.S.D.N.Y., 107 F.Supp. 128, affirmed 2 Cir., 201 F.2d 372, certiorari denied Hiss v. United States, 345 U.S. 942, 73 S.Ct. 830, 97 L.Ed. 1368. But in the interest of the prompt determination of criminal cases we have concluded to examine the merits of the claims made by the defendants and to treat their motions as requests for relief under 28 U.S.C. § 2255, as well as motions made pursuant to Rule 33.

The defendants' second motion, chronologically, is so patently weak that it deserves only passing mention. On the original trial the jury submitted a recommendation for leniency with respect to the now deceased codefendant, John Potter. The court first sentenced him to one year and one day in prison, but later, on motion of the defendants, suspended his sentence, while refusing to reduce the sentences of the others. Potter at that time was over 65 years of age and was suffering from cancer. The defendants argue in their motion papers that it was possible that the two jurors who allegedly knew Potter's brother "arranged a deal in the jury room to have leniency recommended for the defendant, John Potter, and then they would vote to convict," and that this fact "could have very easily resulted to the disadvantage of the defendants, Ward and Bowers, and to the advantage of the defendant, Potter."² Obviously a jury's differing treatment of codefendants can give rise to much speculation to explain the result. But if each time this occurs the disfavored codefendants are to be afforded the opportunity to recall the jury for a detailed interrogation, one of the cherished features of the jury system — the secrecy which attends its proceedings — will be sacrificed unnecessarily and for no justified purpose. Jurors might be exposed to undue criticism and annoyance or they might find themselves responsive to undue influences if such an easy opportunity were afforded to scrutinize their deliberations. In this very case, in fact, a shocking attempt was made to influence a juror, who had to be excused in the midst of the trial. D.C.S.D.N.Y., 143 F. Supp. 947, 952. This is not to say, however, that such examinations are prohibited in all cases. See, e. g., Jorgensen v. York Ice & Machinery Corp., 2 Cir., 160 F.2d 432, certiorari denied 332 U.S. 764, 68 S.Ct. 69, 92 L.Ed. 349, and Comment, Impeachment of Jury Verdicts, 25 U. of Chi.L.Rev. 360-372 (1958). But where they are sought, adequate grounds must be disclosed before a hearing will be ordered.

Here the affidavit of Joseph E. Potter is patently inadequate to justify a hearing. In it he seeks to establish some kind of acquaintanceship between another brother and two jurors solely on the basis of a hearsay statement of the third brother, who presumably was available to testify. Moreover, the extent of the acquaintanceship is left open for speculation. Certainly if there was any close relationship which would justify doubts as to the impartiality of these jurors, it had to be shown in the supporting papers. Presumably, however, such a relationship did not exist. But most important is the utter absence of any showing that the jurors knew that their "friend" was related to the codefendant, Potter. Obviously this is an essential element in the defendants' argument — one that must be shown to support an invasion of the jury room. This showing is too slight to call for a hearing or to raise any serious doubts regarding these convictions so amply justified by the evidence in the record.

The other motion, attacking the propriety of issuing to jurors in criminal cases the "Handbook for Petit Jurors," is also based on evidence which scarcely indicates any prejudice to the defendants. No Handbooks were issued to the panel in this case; but one juror, who testified at the hearing of this motion, had previously served in the Southern District of New York, at which time, at his request, he had been issued the Handbook now under attack.³ His lucid testimony established that he had read the Handbook twice, once while awaiting jury service in a prior case and again just prior to the trial in this case. Although he could not remember whether or not he had produced the Handbook in the jury room after the court delivered its instructions, he recalled in great detail that the only time he made any reference to the book was when the jury was discussing its power to recommend leniency for John Potter. At that time he told his fellow jurors that the sentence was for the court, and that the jury had the power only to render a verdict of guilt or innocence. He further testified that he did not rely on the Handbook in any other way, as he considered it only a guide for jurors — not a detailed set of instructions for a specific case.

The effect of the book on the rest of the jury is best illustrated by the fact that they ignored this juror's statement and asked the court for a special instruction concerning the propriety of recommending leniency. Under these circumstances it seems clear that the defendants have not shown any grounds for relief, even if the issuance of the Handbook is considered as a deprivation of the right to a fair trial. All they have shown is that one juror studied a set of general instructions previously given to him at his request and was not affected in any vital way by them, and that the other jurors were wholly unaffected.

We believe that it is worth while, however, to consider the central issue here — the propriety of the book itself. It would serve no useful purpose to set out at length the history of its adoption and use. These facts, together with an excellent discussion upholding the value of the book and the constitutionality of its use, with which we concur, are well set forth in the concurring opinion of Chief Judge Duffy in United States v. Gordon, 7 Cir., 253 F.2d 177, 185; see also the opinion of Chief Judge Simon in Horton v. United States, 6 Cir., 256 F.2d 138. The defendants' attack on the book consists of isolating specific passages which they...