U.S. v. Fiorilla

• Decision Date: 26 July 1988
• Docket Number: Nos. 87-5445,No. 87-5445,No. 87-5446,87-5446,87-5445,s. 87-5445
• Citation: 850 F.2d 172
• Parties: UNITED STATES of America, Appellee v. John FIORILLA, Appellant atUNITED STATES of America, Appellee v. Mary FIORILLA, Appellant at
• Court: U.S. Court of Appeals — Third Circuit

Page 172

850 F.2d 172

UNITED STATES of America, Appellee v. John FIORILLA, Appellant at No. 87-5445.

UNITED STATES of America, Appellee v. Mary FIORILLA, Appellant at No. 87-5446.

Nos. 87-5445, 87-5446.

United States Court of Appeals, Third Circuit.

Argued April 14, 1988.

Decided June 30, 1988.

Rehearing and Rehearing In Banc Denied July 26, 1988.

Adolph J. Galluccio (argued), Browne & Galluccio, Paterson, N.J., for appellant John Fiorilla.

Jonathan L. Goldstein, Stephen M. Greenberg (argued), Hellring Lindeman Goldstein Siegal Stern & Greenberg, Newark, N.J., for appellant Mary Fiorilla.

Edna Ball Axelrod (argued), Samuel A. Alito, Jr., Appeals Div., U.S. Attorney's Office, Newark, N.J., for appellee.

Before HUTCHINSON, SCIRICA and ROSENN, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Defendant-appellants John and Mary Fiorilla (the Fiorillas) appeal from judgments of sentence imposed after a jury found them guilty of violating 8 U.S.C.A. Sec. 1324 (West Supp.1988), 18 U.S.C.A. Sec. 371 (West 1966) and 18 U.S.C.A. Sec. 1001 (West 1976). ¹ We have jurisdiction over this appeal from a final order of the district court. 28 U.S.C.A. Sec. 1291 (West Supp.1988). Appellants contend that the district court erred in failing to grant their request for a new trial when a poll taken following the The Fiorillas had been indicted along with three co-defendants on one count of conspiracy to harbor illegal aliens, 18 U.S.C.A. Sec. 371, and nine substantive counts of harboring illegal aliens, 18 U.S.C.A. Sec. 2 and 8 U.S.C.A. Sec. 1324. The Fiorillas were also charged with two counts of false statements to the United States Labor Department and the Immigration and Naturalization Service in violation of 18 U.S.C.A. Secs. 2 and 1001. After the trial, the jury informed the court that it had reached a verdict, returned to the courtroom and delivered its decision. John and Mary Fiorilla were found guilty on all counts with which they had been charged under the jury foreman's original announcement of the collective verdict. Thomas Fiorilla, Frances Scullion and Charles Hirschkind were also on trial with appellants John and Mary Fiorilla for charges stemming from the employment of aliens at appellants' nursing homes. Thomas Fiorilla was found not guilty on counts one through four and guilty on counts five through thirteen. Frances Scullion was found guilty on count one and counts five through thirteen and not guilty on counts two through four. Charles Hirschkind was found not guilty on all counts. Counsel for John Fiorilla then asked to poll the jury.

announcement of the purportedly unanimous verdict revealed a dissident within the jury. The trial judge ordered the jurors to continue their deliberations. They did and returned unanimous verdicts. Because the trial judge properly determined that the inadvertent disclosure of the venire's division did not coerce the recalcitrant juror, we believe he had discretion to order the verdict recorded. On this record that discretion was not abused. We will therefore affirm the judgments of sentence. ²

The individual jurors were first asked whether they concurred in the verdict as it related to John Fiorilla. Jurors one through nine agreed with the reported verdict. With juror number ten, this colloquy ensued:

THE COURT: Mr. Fonseca, do you agree or disagree with the verdict against John Fiorilla as I have just reported it?

JUROR NO. 10: I disagree.

THE COURT: You disagree with the verdict as reported?

JUROR NO. 10: Yes.

THE COURT: Did I report it inaccurately?

JUROR NO. 10: Yes.

THE COURT: Let me reiterate what was stated here. As I told you, your verdict in this case had to be 12 nothing. Correct?

....

In other words, the report of the jury here on this verdict sheet was that the jury had found Mr. John Fiorilla unanimously guilty on all counts with which he was charged. Now, what I am asking you is do you agree or disagree with that verdict as reported here?

Do you understand what I am saying?

JUROR NO. 10: Yes, I understand. Yes, to be honest, I have no peace in me.

Jt.App. at 1758-59. The trial court excused the other eleven jurors and then renewed his discussion with Mr. Fonseca:

THE COURT: Mr. Fonseca, I'd like to hear what you have to say or what you meant by that comment and we will take it from there. When you said you have no peace in you, could you amplify that for us, please?

JUROR NO. 10: Sure. When we were up there in the jury room discussing [sic] the defendants were guilty or not guilty, I gave my opinion and everybody gave their opinion and when I gave mine all of them started giving me their point of view and I kind of saw myself, you know, attacked, you know, and so I agreed. But--

Id. at 1759-60. At that point, the trial judge reread to Mr. Fonseca that portion of the charge to the jury referring to a juror's obligation to deliberate with a view to reaching an agreement, consistent with language All counsel then agreed with the trial court's suggestion that Mr. Fonseca be questioned on his position about the other defendants. So questioned, this juror expressed his disagreement with all of the jury's findings of guilt against Mary Fiorilla. He then voiced agreement with the findings exonerating Thomas Fiorilla and Frances Scullion but disagreed with all of the guilty findings against these last two defendants. On defendant Charles Hirschkind, juror Fonseca agreed with the determination of innocence on all counts. Since no discrepancy appeared as to Mr. Hirschkind, a verdict of acquittal was recorded as to him.

approved by this Court in United States v. Fioravanti, 412 F.2d 407 (3d Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969). Once again, juror Fonseca reiterated his position that the verdict sheet did not reflect his view on the guilt or innocence of John Fiorilla.

The trial judge then revealed his intention to continue the poll as to the remaining jurors. At this point, counsel advanced no objection to the trial court's proposal to interrogate the other members of the venire. ³ Jurors eleven and twelve indicated their agreement with the reported verdicts as to John Fiorilla. The eleven jurors then stated their approval of Mary Fiorilla's guilty verdicts. Similarly, the eleven voiced their assent in the guilty findings as to Thomas Fiorilla and Frances Scullion. Through the polling of the jurors in this manner, an eleven to one division on the guilty verdicts became apparent. The trial court temporarily excused the jury but ordered them to return for further deliberations the following morning.

The next morning, the trial judge informed counsel of an Eleventh Circuit decision, United States v. Spitz, 696 F.2d 916 (11th Cir.1983) (per curiam), which held that a trial judge may not continue a poll once a dissenter has emerged. Although the trial judge was not yet prepared to grant a mistrial on this basis, he sought to give all counsel the benefit of his research. In the meantime, he ordered the jury to continue its deliberations. After two days of additional deliberations, the jury returned a verdict finding John and Mary Fiorilla guilty on all counts but completely exonerating Thomas Fiorilla and Frances Scullion. A second poll of the jury showed no discrepancy between the reported collective verdicts and the jurors' individual votes.

In their post-trial motions the Fiorillas renewed their request for a mistrial because the trial judge continued the jury poll after juror number ten voiced disagreement with the initially reported collective verdict. After briefing and oral argument, the district court ruled that the jury poll did not warrant the granting of a new trial under the unique circumstances of this case. The appellants now renew their argument that the continued polling of the jury, following the dissent of one of its members, requires the granting of a new trial. In support, appellants cite the decision in Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). In that case, the Supreme Court held it is improper for a trial court to inquire into the numerical division of a jury. They also point to the opinion in United States v. Spitz, supra, in which the Eleventh Circuit extended the Brasfield rule to jury polls. We believe the trial judge has a limited discretion to determine whether the circumstances demonstrate a lack of coercion upon the initially dissenting member of the jury. We will therefore review the district court's order denying a mistrial for an abuse of that discretion. Since a lack of coercion is demonstrated by this record, we find no abuse of discretion.

In Brasfield, after "some" hours of deliberation, the trial judge inquired as to how the jury stood numerically. Without revealing which jurors favored conviction, the foreman disclosed that the jury stood nine to three. In reversing, Justice Stone stated:

We deem it essential to the fair and impartial conduct of the trial, that the inquiry itself should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.

272 U.S. at 450, 47 S.Ct. at 135-36. This Court has relied upon the Brasfield prohibition to condemn a trial judge's sending a note to the jury foreman to determine the...