Miller v. United States, No. 76

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: MOORE, FRIENDLY and FEINBERG, Circuit
• Citation: 403 F.2d 77
• Decision Date: 09 October 1968
• Docket Number: No. 76,Docket 32368.
• Parties: James MILLER, Appellant, v. UNITED STATES of America, Appellee.

403 F.2d 77 (1968)

James MILLER, Appellant,
v.
UNITED STATES of America, Appellee.

No. 76, Docket 32368.

United States Court of Appeals Second Circuit.

Argued September 19, 1968.

Decided October 9, 1968.

403 F.2d 78

Steven B. Duke, New Haven, Conn. (W. Paul Flynn of Kopkind & Flynn, New Haven, Conn. and Richard H. Simons, Milford, Conn., on brief), for appellant.

Jon O. Newman, U. S. Atty., District of Connecticut, Hartford, Conn., for appellee.

New York County Lawyers' Assn. (Nathan B. Kogan, George S. Leisure, Jr., David Hartfield, Jr., Edward J. Daus, New York City, of counsel), filed brief as amicus curiae.

Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.

FRIENDLY, Circuit Judge:

This appeal is from an order of Judge Blumenfeld in the District Court for Connecticut enjoining defendant Miller, whose conviction we have affirmed, 381 F.2d 529 (1967), cert. denied, 392 U.S. 929, 88 S.Ct. 2273, 20 L.Ed.2d 1387 (1968), his counsel, an investigator counsel had employed, and other agents "from making any inquiry of any of the jurors who comprised the petit jury which heard and decided the above captioned case, except upon further order of the court."

I.

No one has challenged our jurisdiction to entertain the appeal, the parties apparently having assumed that this was conferred by 28 U.S.C. § 1292 (a) (1). However, we are bound to consider the question, and we think it plain that the answer must be in the negative.

We have held in civil cases that § 1292(a) (1) is limited "to injunctions which give or aid in giving some or all of the substantive relief sought by a complaint" and does not include "restraints or directions in orders concerning the conduct of the parties or their counsel, unrelated to the substantive issues in the action, while awaiting trial." International Prods. Corp. v. Koons, 325 F.2d 403, 406 (2 Cir. 1963), and many authorities there cited. The same principle must apply in criminal cases; indeed we had earlier held in such a case that "an order, made in the exercise of `the inherent disciplinary power' of the court, directing one of its own officers to refrain from using books and papers claimed to have been unlawfully taken until the court can determine his right to use them" was not an injunction within § 1292(a) (1). Grant v. United States, 282 F.2d 165, 169 (2 Cir. 1960). Indeed, we strongly doubt whether § 1292(a) (1) applies to criminal cases at all. That section, as it appeared in the Evarts Act of 1891, c. 517, § 7, 26 Stat. 828, and later in the Judicial Code of 1911, c. 231, § 129, 36 Stat. 1134, began "where, upon a hearing in equity in a district court," language manifestly inapplicable to criminal cases. The Supreme Court has said that the dropping of the words "in equity" by the amendment of 1925, 43 Stat. 937, was not intended to effect a change, Schoenamsgruber v. Hamburg American Line, 294 U.S. 454, 457 n. 3, 55 S.Ct. 475, 79 L.Ed. 989 (1935); Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 180 and n. 6, 75 S.Ct. 249, 99 L.Ed. 233 (1955), and the latter decision necessarily implies

403 F.2d 79

the same about the revision of 1948. Most decisive of all is the Court's statement that "every statutory exception" to the final judgment rule "is addressed either in terms or by necessary operation solely to civil actions," emphasizing that "the delays and disruptions attendant upon intermediate appeal are especially inimical to the effective and fair administration of the criminal law." Di Bella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 658, 7 L.Ed. 2d 614 (1962). See In re Grand Jury Investigation, 318 F.2d 533, 536 (2 Cir.), petition for certiorari dismissed, 375 U.S. 802, 84 S.Ct. 25, 11 L.Ed.2d 37 (1963). The importance of expedition in criminal cases is as great when a convicted defendant remains at liberty — here more than two years after conviction — as before trial.¹

We are free, however, to consider the appeal as a petition for mandamus or prohibition, see International Prods. Corp. v. Koons, supra, 325 F.2d at 407, although notice would have to be given the judge before any writ were to issue. We deem this an appropriate instance for doing so. Miller's challenge to the power of the district court to enjoin inquiry of the jurors falls within the traditional ambit of the extraordinary writs. Since this case of first impression is properly before us on that basis, we may deal also with Miller's challenges to the propriety of the order "so as to avoid piecemeal litigation and to settle new and important problems." Schlagenhauf v. Holder, 379 U.S. 104, 109-112, 85 S.Ct. 234, 239, 13 L.Ed.2d 152 (1964). See D. Currie, Federal Courts 234-35 (1968).

II.

The activities of defense counsel that triggered the injunction stemmed from the remark made by an outsider to one of the jurors, which was discussed in Part VI of our earlier opinion, United States v. Miller, 381 F.2d 529, 538-540 (1967), cert. denied, 392 U.S. 929, 88 S.Ct. 2273, 20 L.Ed.2d 1387 (1968). As there recounted, the juror related the incident to the deputy clerk, who in turn informed the judge. The latter immediately brought the matter to the attention of counsel, saying that, although he was not quoting exactly, "a juror was informed or told at a social family affair — some dinner party, I guess — that there were toughs or hoodlums in the Torrington area, where this juror lives, who * * * were stating that they had better vote — the jurors had better vote in favor of Jimmy Miller, or watch out."² The judge announced his intention to pursue the matter, and said "I don't think that counsel ought to be present when I discuss this with the jurors." Leading defense counsel at the trial, Percy Foreman of Houston, Texas, agreed, and the Judge invited suggestions about the course he should follow; apparently his then intention was to have each of the twelve jurors brought to him. Mr. Foreman proffered the suggestion that since the trial would shortly be over, such interviews with jurors should be postponed until the taking of evidence was concluded. He asked also for "the full information" after the verdict was in, since "we want to conduct our investigation of this sort of thing outside of police fraternities as to what brought

403 F.2d 80

about this situation"; he was particularly concerned with finding out who had talked to the juror.³ The judge did not then commit himself on what he would disclose. After further discussion it was left that the judge should call in the juror and simply caution him not to repeat the story to other jurors, with further inquiry by the judge to be deferred as Mr. Foreman had proposed. The judge did this and, on learning that the juror, Leslie Lester, had told two other jurors from Litchfield, Clarence Baldwin and Levi Parsons, asked him to transmit the same caution to them

After the evidence had been completed, the judge called the three jurors into his chambers; our opinion, 381 F.2d at 539, which we quote in the margin,⁴ summarizes what occurred.

On the next day, June 2, 1966, the case was submitted to the jury, which returned a verdict of guilty. On September 26, the day of sentence, one of the defense counsel, Mr. Flynn, was to argue a motion for a new trial based in part upon the communication to juror Lester. Before argument the judge made available the transcript of his conference with the jurors. Mr. Flynn sought an adjournment to afford an opportunity "to do some further investigation." He stated that the three jurors had agreed "to be interviewed by people who were engaged by the defense to conduct the independent investigation"; that the jurors had then consulted an attorney; and that he was then advised that the matter should be "held in abeyance until an affirmative order of Judge Blumenfeld is issued." The judge heard the motion for a new trial on its merits and denied it, saying that "to permit and indulge in post-verdict inquiries of each and every juror as to the reasons why he reached a verdict * * * has been invariably discountenanced by the Court."

More than a year later, in November 1967, Mr. Duke, another of Miller's attorneys, took up the matter again.⁵ As stated in his brief, he requested the Diamond Detective Agency of Boston to "provide an investigator to conduct interviews of the jurors, alternates, and others regarding the warning which had been given to Mr. Lester." No request for permission to conduct such interviews was made to the judge; indeed neither he nor the United States Attorney was informed. The investigator, Miss Virginia Samon, "an attractive, petite blonde, twenty-two years old," received her initial instructions from still another defense attorney, Mr. Simons. As she testified at the hearing below, she was to ask all the jurors "whether any or all of the jurors had been influenced in any way by the threats which

403 F.2d 81

were imposed upon three of the jurors,⁶ and he Mr. Simons set up two questions involving this, first, were they aware of the threats, and if so, the second question was what effect did they have, if any, influence on them whatsoever." She later saw Mr. Duke, who "went along" with this. He made no effort to have Miss Samon ascertain who spoke to Lester, although he had tried by other means without success

On her first day Miss Samon interviewed five jurors in unannounced visits at their homes. Later she had further discussions with Mr. Duke, who furnished her with two questionnaires, one designed for the three jurors and one for the others.⁷ All told, she interviewed or sought to interview eight or nine jurors. Admittedly the conversations "were very long and involved," but on Miss Samon's version, this was "only because they in turn asked me many questions." Miss Samon was not altogether unresponsive to such inquiries; concluding a conversation with a lady juror, she asked "at what point during the progress of the case she determined that Mr. Miller was guilty." Several jurors,...