U.S. v. Breit, 82-5309

• Decision Date: 12 July 1983
• Docket Number: No. 82-5309,82-5309
• Parties: 13 Fed. R. Evid. Serv. 1304 UNITED STATES of America, Appellee, v. Calvin W. BREIT, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 81

712 F.2d 81

13 Fed. R. Evid. Serv. 1304

UNITED STATES of America, Appellee, v. Calvin W. BREIT, Appellant.

No. 82-5309.

United States Court of Appeals, Fourth Circuit.

Argued May 13, 1983.

Decided July 12, 1983.

Aubrey M. Daniel, III, Washington, D.C. (Trevor W. Swett, III, Williams & Connolly, Washington, D.C., Theodore Krieger, New York City, on brief), for appellant.

William G. Otis, Sp. Asst. U.S. Atty., Patricia A. Kerwin, Asst. U.S. Atty., Richmond, Va. (Elsie L. Munsell, U.S. Atty., Marla L. Graff, Student Asst. to the U.S. Atty., Alexandria, Va., on brief), for appellee.

Before HALL and SPROUSE, Circuit Judges, and TURK, ^* Chief District Judge.

K.K. HALL, Circuit Judge:

Calvin W. Breit (Breit) appeals from his conviction by a jury of conspiracy in violation of 21 U.S.C. § 846 and two counts of possession of cocaine and aiding and abetting the possession of cocaine with intent to distribute in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). On appeal, Breit's primary contention is that the district court erred in denying his motion for a new trial where two jurors lied on voir dire by concealing familial involvement in criminal cases. Finding no error, we affirm.

I.

On August 6, 1982, Breit, a lawyer, was indicted, inter alia, on one count of conspiracy and six counts of possession of cocaine and aiding and abetting the possession of cocaine with intent to distribute. Approximately two weeks before trial, Breit was furnished with a list of the names of fifty-five to sixty prospective jurors. He had his son, William Breit (William), who was also a lawyer and in practice with his father, conduct an extensive investigation into the backgrounds of the prospective jurors, including information on each juror's neighborhood, economic status, spouse, spouse's occupation, plus a photograph of each juror's home.

At the pre-trial voir dire of prospective jurors, the district court asked whether any venireman or member of his immediate family had been a witness or a defendant in a criminal case. Mildred Privott and Jean Allsbrook failed to disclose the criminal records of their sons, and Mrs. Privott concealed that she had been a criminal defendant. They were later selected as jurors.

On Friday, October 8, 1982, the jury convicted Breit of conspiracy and two possession counts. On October 13, 1982, Breit informed the district court for the first time of the jurors' misconduct and moved for a new trial. He claimed that on Saturday or Sunday after the verdict his law firm received an anonymous telephone call about Mrs. Allsbrook and that this call prompted a search of the Privott and Allsbrook names in court records from which it was apparent that Mrs. Privott and Mrs. Allsbrook had lied on voir dire.

On October 29, 1982, the district court held an evidentiary hearing on Breit's motion. The witnesses at the hearing included Breit's son and law partner, Jeffrey Breit (Jeffrey), attorney Thomas Shuttleworth (Shuttleworth), Thomas Collins (Collins), a private investigator, and Breit.

Jeffrey testified that before trial he reviewed the entire list of names of prospective jurors with his close friend Thomas Shuttleworth. Jeffrey acknowledged that Shuttleworth told him prior to trial he had represented Mrs. Privott or someone in her family and that he thought Mrs. Privott "wouldn't be a bad juror." He admitted he gleaned from this conversation "that either Mrs. Privott or someone in her family had been in trouble, criminal trouble." He testified he told his brother, William, only that Shuttleworth thought that Mrs. Privott "wouldn't be a bad juror." As to Mrs. Allsbrook, Jeffrey admitted that Collins approached him in the hall after the trial had started but before the jury returned its verdict, pointed out Mrs. Allsbrook and told him "I think one of her children has had some trouble."

Shuttleworth testified that prior to trial he told Jeffrey that he had represented Mildred Privott or her son and that he thought she would make "a very good juror." He stated he told Jeffrey that he represented Mrs. Privott's son in a criminal matter in Florida. He further testified he "may very well have" told Jeffrey that the charge against Mrs. Privott's son was a triple murder.

Collins testified that during one of the trial recesses, he told Breit's chief defense counsel that if juror Allsbrook was the same Allsbrook he knew, then "one of her sons had been in trouble." Collins further testified that he told Jeffrey after a lunch recess that "one of [Mrs. Allsbrook's] sons had definitely been in trouble and been in and out of the penitentiary most of his life."

Breit denied that his son Jeffrey told him the information learned from Shuttleworth and Collins about the Privott and Allsbrook sons. However, Breit admitted he knew prior to the verdict that Mrs. Privott had been charged with her husband's homicide. He further testified that on the morning of trial or the night before, his son Jeffrey had told him that Shuttleworth had probably represented Mrs. Privott and thought that she would make a favorable juror.

The district court found that the evidence established "clearly and convincingly" that Breit knew before the verdict that Mrs. Privott and Mrs. Allsbrook had given false answers to the questions posed on voir dire. The court further held that Breit deliberately and knowingly elected not to bring this information to the court's attention and thereby waived any right to a new trial. We agree.

II.

On appeal, Breit argues that the district court could not properly have found a waiver unless the evidence showed knowing silence beyond a reasonable doubt and that, under any standard, the court was clearly erroneous in finding that he knew during the trial that Mrs. Privott and Mrs. Allsbrook had lied about the criminal involvement of their sons.

In Gray v. Hutto, 648 F.2d 210 (4th Cir.1981), we held that the defendant had waived his right to a new trial where he learned of alleged juror misconduct while the case was still in progress but delayed bringing the matter to the attention of the court until after the verdict. At the post-trial hearing in this case, the government conceded arguendo that Mrs. Privott and Mrs. Allsbrook were actually prejudiced against Breit. The issue at the post-trial hearing, therefore, was whether Breit knew before the verdict about the criminal record of the jurors' sons and thus knew that they had lied on voir dire. The resolution of this issue rested on a strictly factual determination not going to ultimate guilt or innocence.

In closely analogous circumstances, the Supreme Court has held that the proper standard for making such a factual determination is proof by a preponderance of the evidence. See, e.g., United States v. Matlock, 415 U.S. 164, 177 n. 14, 94 S.Ct. 988, 996 n. 14, 39 L.Ed.2d 242 ...