480 F.2d 195 (2nd Cir. 1973), 780, United States v. Rattenni

Docket Nº:780, 73-1062.
Citation:480 F.2d 195
Party Name:UNITED STATES of America, Appellee, v. Nicholas RATTENNI, Appellant.
Case Date:June 07, 1973
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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480 F.2d 195 (2nd Cir. 1973)

UNITED STATES of America, Appellee,

v.

Nicholas RATTENNI, Appellant.

No. 780, 73-1062.

United States Court of Appeals, Second Circuit.

June 7, 1973

Argued April 18, 1973.

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Roy M. Cohn, New York City (Saxe, Bacon, Bolan & Manley, New York City, Michael Rosen, on the brief), for appellant.

Edward M. Shaw, Sp. Atty., Dept. of Justice (Whitney North Seymour, Jr., U. S. Atty., S.D. N. Y., John W. Nields, Asst. U. S. Atty., on the brief), for appellee.

Before CLARK, Associate Justice, [*] and WATERMAN and FEINBERG, Circuit Judges.

Mr. Justice CLARK:

Appellant Nicholas Rattenni, along with his co-defendants Boggia, Fiore and Roman, was charged under § 1503 of Title 18 with conspiracy to corruptly influence, impede and intimidate petit jurors in the discharge of their duties in a previous felony trial of Rattenni; a second count charged them with the substantive offense of obstruction of justice, i. e., corruptly endeavoring to influence a member of the jury, William Freeman, in the same case in violation of § 1503 and § 371, Title 18; and a third count charged Fiore alone with perjury in the presentation of this case to the grand jury. The indictment was dismissed as to Boggia on the opening day of the trial. Three days later the case went to the jury in the afternoon and about 9:30 p. m. a verdict was returned against Rattenni on the conspiracy charge. The jury announced that it was deadlocked as to all other defendants and charges. On the following morning before deliberation was resumed, the forelady of the jury advised the trial judge that she had heard a radio broadcast 1 that morning which made reference to Rattenni's prior conviction but stated that she was not influenced by it. The trial judge decided to interrogate the other jurors about the broadcast; he conducted the inquiry himself in an anteroom, allowing counsel to make suggestions. It was learned that six of the jurors had heard the broadcast. One juror, Mrs. Metz, stated that she had not only heard the broadcast but had also read a story about Rattenni in the New York Daily News on the previous day prior to the verdict on the conspiracy count. 2 She readily admitted her prejudice against Rattenni on the remaining open charges against him as well as on all of the charges against his co-defendants. The trial judge then ordered a mistrial on the open charges against Rattenni and all of the charges against all of the remaining defendants. He refused, however, to set aside the verdict previously

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returned against Rattenni on the conspiracy charge. Later Rattenni was sentenced to five years in prison to run consecutively with a three-year sentence previously imposed upon him in another prosecution then on appeal. We have concluded that this was error and reverse.

Our reversal hinges on the disclosures of Mrs. Metz to the trial judge when he was examining the jurors about the radio broadcast. She told him that she had read the Daily News story before the verdict of guilty was returned against Rattenni on the conspiracy count. Although she did identify the article by the tag "garbage...

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