US v. Rugiero, 90-80941.

• Decision Date: 16 October 1992
• Docket Number: No. 90-80941.,90-80941.
• Parties: UNITED STATES of America, Plaintiff, v. Patrick RUGIERO, and Ara Basmadjian, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

804 F. Supp. 925

UNITED STATES of America, Plaintiff, v. Patrick RUGIERO, and Ara Basmadjian, et al., Defendants.

No. 90-80941.

United States District Court, E.D. Michigan, S.D.

October 16, 1992.

Stephen J. Markman, U.S. Atty., by Richard L. Delonis, Asst. U.S. Atty., Detroit, Mich., for plaintiff.

N.C. Deday Larene, Detroit, Mich., William E. Bufalino, II, St. Clair Shores, Mich., for defendants.

ORDER DENYING DEFENDANTS' MOTION FOR NEW TRIAL

GADOLA, District Judge.

On June 19, 1992, defendant Patrick Rugiero was convicted by a jury of conspiracy to distribute, or possess with intent to distribute, cocaine and heroin. Also on June 19, 1992, and in the same proceeding, defendant Ara Basmadjian was convicted of conspiracy to distribute, or possess with intent to distribute cocaine and heroin, and of distribution of heroin.

On June 23, 1992, following further deliberations of the same jury within the same proceeding, defendant Patrick Rugiero was convicted of distribution of cocaine.

On June 23, 1992, the court issued a stipulation and order extending the time for filing a motion for new trial. On July 28, 1992, defendants filed this motion for new trial. On August 31, 1992, the government filed an answer to defendants' motion for new trial. Defendants Patrick Rugiero and Ara Basmadjian, on August 27, 1992 and September 4, 1992, respectively, filed motions for bond pending appeal of the issues raised in the defendants' motion for new trial.

FACTS

On June 16, 1992, at the conclusion of a trial before a jury, this case was submitted to the jury for deliberations as to defendants Patrick Rugiero, Ara Basmadjian, and Anthony Rugiero. On the evening of June 17, 1992, certain local news broadcasts reported that one of defendant Patrick Rugiero's trial counsel was the subject of a federal criminal investigation. On the morning of June 18, 1992, the court and the parties met in chambers for the purpose of discussing how to proceed in light of the publicity. All agreed that the appropriate course of action would be to defer any inquiry of the jurors until such time that jury deliberations had been concluded and any verdicts had been reached.

At the conclusion of their deliberations on June 18, 1992, the jury reported to the court's clerk that it had reached verdicts. Because of the unavailability of the court and the parties, the jurors were excused for the day and directed to return the next morning.

On June 19, 1992, while en route from the jury assembly room to the court's jury room, a juror handed a court security officer a note containing comments critical of the deliberations and of certain verdicts. The note made no reference to the aforementioned publicity nor to any other extraneous occurrence having influenced the jury. Shortly after convening in the jury room, the jury sent the court a note indicating that it had reached its verdict. Moments later, another note, written by the same complaining juror who had written the first note, was received by the court. The juror asked that her first note be disregarded and confirmed that, in fact, a unanimous decision had been reached.

Defense counsel requested that the court, before taking any verdict, make an inquiry of the juror who wrote the notes, regarding the proceedings in the jury room which preceded the sending of the juror's notes. Pursuant to rule 606(b) of the Federal Rules of Evidence, the court denied this request for inquiry of the juror who wrote the notes, since the notes gave no indication either that any extraneous prejudicial information had been improperly brought to the jury's attention or that any outside influence had been improperly brought to bear upon any juror.¹ Rule 606(b) forbids inquiry of a juror regarding any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict, or concerning the juror's mental processes in connection therewith. A juror may neither testify to such matters nor may an affidavit or evidence of any statement of the juror concerning such matters be received. The only exceptions are, as above stated, evidence of extraneous prejudicial information brought to the jury's attention or outside influence improperly brought to bear upon a juror, and the juror's notes did not so reflect or so indicate. Further, the court had the opportunity, which was exercised, to subsequently make inquiry concerning those limited exceptions under Rule 606(b) after the verdicts were returned and during the polling of the jury, which of course took place after verdicts were reported.

The jury then returned the following verdicts, as reported by its foreperson:

1) Defendant Anthony Rugiero was acquitted on Count V (Intimidating a Witness) and Count VI (Use and Carrying of a Firearm During a Crime of Violence);

2) Defendant Ara Basmadjian was found guilty on Count I (Conspiracy) and Count III (Distribution of Heroin);

3) Defendant Patrick Rugiero was found guilty on Count I (Conspiracy) but was acquitted on Count III (Distribution of Heroin), Count V (Intimidating a Witness) and Count VI (Use and Carrying of a Firearm During a Crime of Violence).

The foreperson also reported a verdict of guilty as to Patrick Rugiero on Count II (Distribution of Cocaine).

The court then proceeded to poll each juror individually and out of the hearing of the other jurors, as to the reported verdicts. The court asked each juror whether he or she had been exposed to the publicity of June 17, 1992, regarding Patrick Rugiero's trial counsel. Many jurors acknowledged having seen or heard of the publicity, but each juror advised the court that the publicity had had no influence upon his or her decision; in fact, two jurors even expressed admiration for the trial counsel who had been the subject of the publicity. The juror who had written the note to the court complaining about the jury's deliberations and the note retracting this complaint, indicated that her complaints about the jury's deliberations were not motivated by concerns of any extraneous prejudicial information brought to the jury's attention or by any outside influence improperly brought to bear upon any juror; she further stated that she had not been influenced in her decision by the publicity regarding defendant Patrick Rugiero's counsel.

The poll of the jurors did indicate, however, that the verdict as to Patrick Rugiero on Count II was not unanimous, and the court therefore did not receive a verdict on that count. The jury was excused for the day and directed to return on Monday, June 22, 1992, to continue deliberations as to Count II.

On June 23, 1992, the jury returned a verdict of guilty on Count II as to defendant Patrick Rugiero. A poll of the jury disclosed that the verdict was unanimous, and the jurors were discharged.

On July 28, 1992, as noted above, the defendants filed a motion for a new trial on grounds that the jury was prejudiced by the news reports or by other extraneous forces which allegedly were alluded to in the complaining juror's note to the court.

STANDARD OF REVIEW

Rule 33 of the Federal Rules of Criminal Procedure provides in pertinent part that on motion of a defendant the court may grant a new trial "if required in the interest of justice." Decisions on motions for new trial are within the sound discretion of the trial judge. Burks v. Egeler, 512 F.2d 221, 224 (6th Cir.1975), cert. denied, 423 U.S. 937, 96 S.Ct. 297, 46 L.Ed.2d 270 (1975). Motions for new trial are not favored and should be granted only with great caution and in the most extraordinary of circumstances. United States v. Garner, 529 F.2d 962, 969 (6th Cir.1976), cert. denied, 426 U.S. 922, 96 S.Ct. 2630, 49 L.Ed.2d 376 (1986) and 429 U.S. 850, 97 S.Ct. 138, 50 L.Ed.2d 124.

ANALYSIS

In defendants' motion for new trial, defendants make two arguments: 1) that the jury possibly was prejudicially influenced by television news reports which were broadcast during the jury's deliberations and that such prejudicial influence possibly resulted in actual bias against the defendant on the part of the jury, and 2) that a note from a juror to the court indicated that members of the jury possibly were being influenced by forces extraneous to the jury's deliberations and that such forces possibly caused actual bias. The court disagrees with both of defendants' arguments.

I.

The remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias. Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 944-45, 71 L.Ed.2d 78 (1982). The defendant has the burden of proving that any unauthorized communication with jurors resulted in actual juror bias. United States v. Pennell, 737 F.2d 521, 532 (6th Cir.1984).

In the case at hand, the defendants' concerns that the jury may have been exposed to unfavorable publicity as to one of defendant Patrick Rugiero's trial counsel, were brought to the attention of the court prior to the jury returning a verdict. The court immediately responded to defendants' concerns by holding a meeting in chambers between the court and the parties, wherein it was agreed that the jurors were to be questioned regarding their exposure to the publicity, if any, after verdicts had been reached. Consequently, when the jury returned with its verdicts, the jurors were questioned by the court as to whether they had seen or heard of the publicity. All jurors indicated either that they had seen the publicity but had not been influenced by it, or that they had not seen it. In fact, as noted above, two of the jurors spoke to the court of their admiration for the trial counsel in question.

The court finds...