U.S. v. Gambino
| Decision Date | 10 December 1991 |
| Docket Number | D,Nos. 149,150,s. 149 |
| Citation | 951 F.2d 498 |
| Parties | UNITED STATES of America, Appellee, v. Guiseppe GAMBINO, Francesco Gambino, Lorenzo Mannino, Matto Romano, Salvatore LoBuglio, Salvatore Rina, Guiseppe D'Amico, Salvatore D'Amico, Francesco Cipriano, Pietro Candela, Salvatore Candela, Francesco Inzerillo, Joseph LaRosa, Paolo D'Amico, Rocco Launi, Fabrizio Tesi, Vittorio Barletta, Carmelo Guarnera, Sasha (LNU), Giovanni Zarbano, Rosario Naimo, Emanuele Adamita and Giovanni Gambino, Defendants, Salvatore LoBuglio and Salvatore D'Amico, Defendants-Appellants. ockets 91-1153, 91-1231. |
| Court | U.S. Court of Appeals — Second Circuit |
Andrew C. McCarthy, Frances M. Fragos and James B. Comey, Asst. U.S. Attys., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., of counsel), for appellee.
Russell M. Leisner, Forest Hills, N.Y., and Martin G. Goldberg, Franklin Square, N.Y., for defendants-appellants.
Before MINER and MAHONEY, Circuit Judges, and MISHLER, District Judge. *
Salvatore LoBuglio ("LoBuglio") and Salvatore D'Amico ("D'Amico") appeal from judgments of conviction for violations of the federal narcotics laws after a jury trial in the United States District Court for the Southern District of New York.
A superseding indictment was returned on January 3, 1990, charging LoBuglio, D'Amico and fourteen co-defendants with conspiracy to import multi-kilograms of The charges against LoBuglio, D'Amico, and co-defendants Giuseppe D'Amico, Francesco Cipriano, Salvatore Candela and Carmelo Guarnera were severed. A trial on Counts One, Two and Five of the indictment of these defendants started on May 7, 1990. On July 24, 1990, the jury returned a verdict finding LoBuglio and D'Amico guilty on Counts One, Two and Five, and acquitting the co-defendants on all charges. 1
heroin and cocaine in violation of 21 U.S.C. § 963 (Count One), conspiracy to distribute the imported narcotic drugs in violation of 21 U.S.C. § 846 (Count Two), and with distributing one-quarter kilogram of heroin on March 15, 1988, in violation of 21 U.S.C. § 841(a)(1) (Count Five).
Appellants appeal their convictions, contending, inter alia, that the district court: (1) deprived the appellants of a fair trial when it continued to poll the jury after it learned that the verdict was not unanimous; (2) improperly removed a juror during the trial; (3) erred in allowing the government to cross-examine LoBuglio by repeatedly asking him about his relationship with friends and family who were part of the "Mafia."
We first address the issue raised in polling the jury. After five days of deliberation, the foreperson sent a note to the court indicating that the jury had arrived at a verdict. Judge Leisure inquired of the foreperson as to whether the jury agreed upon a verdict, to which the foreperson responded, "Yes we have." The verdict form signed by the foreperson showed that the jury had found LoBuglio and D'Amico guilty on all counts, and the other four co-defendants not guilty on all counts. Counsel for LoBuglio and D'Amico requested that the jury be polled. The following exchange took place:
MR. EVSEROFF (LoBuglio's Attorney): I move for a mistrial, if it pleases the court.
MR. GOLDBERG (D'Amico's Attorney): I join that.
(Jury excused)
* * * * * *
MR. GEDULDIG (Giuseppe D'Amico's attorney): Judge, if we could be heard for a second. There are several of us who do not join in Mr. Evseroff's application.
The attorneys for Giuseppe D'Amico, Cipriano, Candela and Guarnera asked Judge Leisure to inquire of the jury as to whether the jury had arrived at a unanimous verdict on the charges against them. Judge Leisure directed the return of the jury to the courtroom. The jury found the said defendants "not guilty" on all charges.
The judge then instructed the jury to review the jury instructions and continue its deliberation as to appellants LoBuglio and D'Amico. Two hours later, the jury returned a verdict and found appellants LoBuglio and D'Amico guilty on all counts. Another poll of the jury revealed that the verdict was unanimous.
Though this Circuit has not expressly ruled on the question, the weight of authority suggests that when the trial judge continues to poll the jury after one juror disagrees with the verdict, reversible error occurs only when it is apparent that the judge coerced the jurors into prematurely rendering a decision, and not merely because the judge continued to poll the jury. United States v. Fiorilla, 850 F.2d 172, 174 (3d Cir.), cert. denied, 488 U.S. 966, 109 S.Ct. 492, 102 L.Ed.2d 529 (1988); Amos v. United States, 496 F.2d 1269, 1272 (8th Cir.1974); United States v. Brooks, 420 F.2d 1350, 1354 (D.C.Cir.1969).
Rule 31(d) of the Federal Rules of Criminal Procedure provides that "[i]f upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged." Courts have interpreted Rule 31(d) as leaving the method of conducting the jury poll to the judge's discretion. United States v. Hernandez-Garcia, 901 F.2d 875, 877, 878 (10th Cir.1990) (citation omitted); Fiorilla, at 177; Amos at 1272; Bruce v. Chestnut Farms-Chevy Chase Dairy, 126 F.2d 224, 225-26 (D.C.Cir.1942).
Since Rule 31(d) entrusts the trial judge with a measure of discretion, "the reasonable exercise of this discretion should be accorded proper deference by a reviewing court." Brooks, at 1353; see also Fiorilla, supra; Amos, at 1273.
When appellate courts consider the coercive effects of a trial judge's statements to the jury, such assertions must be evaluated "in ... context and under all the circumstances." United States v. Dorsey, 865 F.2d 1275 (D.C.Cir.1989), cert. denied, 492 U.S. 924, 109 S.Ct. 3257, 106 L.Ed.2d 603 (1989) (quoting Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957 (1965)).
Other courts have suggested factors to be applied in determining whether the method of polling is coercive: (1) The absence of counsel's objection to the polling. Fiorilla, at 176 ("[c]ounsels' failure to In Appellants' case, counsel failed to raise a contemporaneous objection to the polling procedure, the trial judge reminded the jury to review the jury instructions before continuing their deliberation and the guilty verdicts were rendered in two hours. We find that the judge's procedure was not coercive.
voice a specific contemporaneous objection to the polling ... demonstrates to some degree the absence of a coercive atmosphere."); see also Amos, at 1273, Brooks, at 1354; (2) Whether the trial judge again gave the jury a cautionary instruction before excusing the jury for further deliberation. Fiorilla, at 177. (The possibility of coercion is significantly lessened when the trial judge "deliver[s]" a cautionary instruction asking the jurors to carefully weigh and consider the view of their fellow jurors ..." before the jurors are sent back to the jury room to continue their deliberation.); (3) The deliberation time after being excused for further deliberation. In Amos, at 1272 and Brooks, at 1353, the juries returned verdicts after approximately twenty minutes of additional deliberation
The holding in United States v. Spitz, 696 F.2d 916 (11th Cir.1983) (citing Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926)), cited by appellants, is not to the contrary. 2 In Spitz, after one juror dissented from the verdict, the judge continued to poll the jury until he realized that there was only one juror who had dissented. The trial judge then directed the dissenting juror to stand and ordered her once again to repeat in open court that she disagreed with the verdict. While the juror was still standing, the judge proceeded to give an Allen charge and then excused the jury to return to its deliberation. The court found that the trial judge unnecessarily interfered with the deliberative process and held that per se reversible error occurred when the...
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Hinton v. U.S., No. 01-CF-1145.
...the trial court failed to explain why the dismissed juror was "unable or disqualified" to perform juror duties); United States v. Gambino, 951 F.2d 498, 502-03 (2d Cir.1991) ("Discretion ... is vested in the district court to remove a juror when the facts reveal that the juror's ability to ......
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Wiseman v. Armstrong, (SC 18152) (Conn. 3/9/2010)
...to agree to a verdict to which he [or she] has not fully assented" [internal quotation marks omitted]); see also United States v. Gambino, 951 F.2d 498, 502 (2d Cir. 1991) ("[t]he purpose of a jury poll is to test the uncoerced unanimity of the verdict by requiring each juror to answer for ......
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