U.S. v. Moten

• Decision Date: 29 September 1978
• Docket Number: D,No. 489,489
• Citation: 582 F.2d 654
• Parties: 3 Fed. R. Evid. Serv. 136 UNITED STATES of America, Appellee, v. Frank MOTEN, Defendant-Appellant. ocket 77-1324.
• Court: U.S. Court of Appeals — Second Circuit

Page 654

582 F.2d 654

3 Fed. R. Evid. Serv. 136

UNITED STATES of America, Appellee, v. Frank MOTEN, Defendant-Appellant.

No. 489, Docket 77-1324.

United States Court of Appeals Second Circuit.

Argued Dec. 9, 1977.

Decided May 19, 1978.

Rehearing Denied Sept. 29, 1978.

Ivan S. Fisher, New York City, for defendant-appellant.

Daniel J. Beller, Asst. U. S. Atty. (Robert B. Fiske, Jr., U. S. Atty., Robert J. Jossen, Asst. U. S. Atty., Southern District of New York, New York City, of counsel), for the United States of America.

Before FRIENDLY, SMITH and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

This appeal, which arises as a result of the efforts of a major narcotics trafficker to secure a new trial, raises important questions regarding the extent to which a convicted defendant must be allowed to investigate suspected misconduct by members of the jury that found him guilty. Appellant Frank Moten's claims have their origin in an incident of jury corruption that has twice before occupied the attention of this Court. In re Grand Jury Subpoena Served Upon Doe, 551 F.2d 899 (2d Cir. 1977); United States v. Moten, 564 F.2d 620 (2d Cir. 1977).

On April 5, 1976, an indictment was filed in the Southern District of New York. It charged 33 individuals, in 40 counts, with various violations of the federal narcotics laws. Moten was charged with engaging in a continuing criminal enterprise, with conspiracy, and with 4 individual substantive offenses. Moten's co-conspirators included Sebastian Intersimone and Bernard Brightman. Trial began with respect to 22 defendants on August 10, 1976, before Judge Richard Owen and a jury. See Moten, supra, 564 F.2d at 622 n.2.

After 6 weeks of trial, on September 20, 1976, the district judge was informed by Intersimone's lawyer, David Doe, ¹ that one of the jurors, William T. Keno (juror number 10), had engaged in improper conduct. Doe first brought the matter to the attention of Assistant United States Attorney Daniel J. Beller, and this was followed by an In camera consultation between Doe, Beller and the district judge. During the consultation, Doe told the district judge of the following two incidents. First, he revealed that some time after the trial began he was told by Intersimone that Brightman "had approached (him) and said there was a possibility of reaching one of the jurors." Doe told the district judge that his client's original response to this news had been "inappropriate," and he said that he had told his client "in no uncertain terms to go back and tell Bernie Brightman that you want no part of this at all." The second incident had occurred on Friday, September 17, 1976. After court recessed at about 1:00 P.M., Doe, Intersimone and his sister Viola Intersimone, ² went to 299 Broadway, a short distance from the federal courthouse, where Intersimone's brother-in-law, Anthony Sutera, has a law office. Because of her fear of riding in elevators, Viola Intersimone waited downstairs. While she was waiting outside a Duane Reade discount drug store, juror Keno approached her and asked whether she was Intersimone's wife. She answered that she was his sister. Keno then said he had a message for Intersimone. Viola Intersimone protested that they should not be talking, but Keno nevertheless told her to tell her brother to meet him on the following Monday during lunch. She reported this encounter to Mr. Sutera and he conveyed the story to Doe, who informed Beller and the district judge on Monday morning. The minutes of this consultation were ordered sealed, but their contents were substantially disclosed in the opinion of this Court in Doe, supra. They Upon being informed of these incidents, the district judge examined Viola Intersimone In camera. She confirmed what he had already been told. It is unclear from the record whether Doe or Beller was present. Judge Owen next questioned Keno under oath. This was also done In camera, but the record shows that Doe, Beller and Viola Intersimone were present. The court discharged Keno and replaced him with an alternate, a decision which this Court has twice before held to be fully justified. Doe, supra, 551 F.2d at 901; Moten, supra, 564 F.2d at 629. Although the minutes of the In camera examinations of Keno and Viola Intersimone have been ordered sealed, portions of them have been quoted in the press. N.Y. Post, Feb. 4, 1977, at 8. They are before this Court for consideration on appeal.

were turned over by the government to Intersimone's lawyers with the permission of the district judge, and they now appear unsealed as a part of Moten's Appendix.

After Keno was discharged, the district judge returned to the courtroom and made the following statement to all defense counsel out of the presence of the jury:

The Court: Now, at the beginning of the morning it was brought to my attention that there was a possible attempt by a juror to approach a defendant in this case to get a message to that defendant. I have held a brief hearing on that subject and have confirmed that it is entirely possible that that may have occurred, although I make no finding to that effect.

I have excused that juror. It is Juror No. 10. It was also brought to my attention, rather, information was brought to my attention that one defendant in this case spoke to another defendant in this case about the possibility of reaching a juror. Now, in that premise I propose to inquire on (sic) each of the remaining jurors, regular and alternate, separately in my robing room without counsel, to ascertain I will do this on the record to ascertain whether any information is forthcoming that would be suggested by this information that I have received.

I have in mind to ask each juror or alternate roughly as follows, to tell each juror that I had instructed the jury generally at the beginning of the trial they were to speak to no one about the case. They were not to discuss the case amongst themselves or with anybody else. And with that as a prelude to ask two questions.

One, whether anyone has spoken to that particular juror or try (sic) to speak with that particular juror about the case in any way at all.

Two, whether the jury has in fact spoken amonst (sic) itself in any way as to the merits of the case that is before it.

Now, I invite suggestions from counsel before me as to whether they disapprove of the procedure I have in mind or of the two questions I propose to ask, keeping in mind I obviously have a duty to ask something, given what has come to my attention, but I do not wish to go so far in the asking of the questions as to make an affirmative suggestion to any juror that anything has been afoot from defendants or counsel or anyone else, but that's the inference they might well draw if one gets too deep.

The district judge explained that he had taken the testimony of Keno and had interviewed a relative of one of the defendants. The defendant was not identified by the judge. Counsel were also told that the judge had asked Keno whether he had discussed these matters with any other juror and had been told by Keno that he had not.

The responses of counsel were varied. Some agreed with the district judge's proposal. Others objected to the use of any In camera proceedings and suggested that the voir dire should be done individually but with all counsel present. Some proposed that the voir dire be conducted En masse. Others thought there should be no voir dire at all. One lawyer sought a dismissal of the indictment with prejudice on the ground that a juror had been excused without his participation.

During the afternoon of September 20, 1976, the district judge conducted an In Also on September 20, 1976, the government commenced a separate investigation into possible jury tampering. The minutes of the grand jury testimony taken that afternoon have not been made public, and a criminal complaint upon which Keno was arrested in connection with this matter remains under seal. Both are before this Court for consideration of this appeal. Doe was eventually subpoenaed to testify before the grand jury on January 19, 1977, but he refused to testify, on grounds of attorney-client privilege, about what Intersimone told him about the conversation with Brightman. Judge Pierce rejected Doe's claim of privilege and held him in contempt. This Court affirmed that decision on March 17, 1977. Doe, supra. Doe testified before the grand jury on March 22, 1977. The minutes of his testimony are also before this Court, as is a copy of an affidavit submitted In camera in connection with the Doe matter by John P. Flannery, II, the Assistant United States Attorney in charge of the grand jury investigation.

camera voir dire of each juror in the manner he had proposed, except that at the suggestion of one lawyer he reversed the order of the two questions. The judge read the minutes of the voir dire to defense counsel, and there were no objections or suggestions for further questioning. The minutes reflect only three remarks that are worthy of mention here. Juror number 2, when asked whether the jurors had been discussing the merits among themselves, responded, "No. We have been talking about something else." Juror number 7, when asked whether anyone had spoken to her or attempted to speak to her replied, "No, not really, not nobody around the court, you know, not really." The district judge then asked, "And when you say 'not really', I take it by that you mean nobody has spoken to you?" She answered, "No, no." Juror number 8, when asked whether anyone had tried to talk to him about the case, said, "No, sir, not to me."

Moten's trial concluded on November 16, 1976, when the jury returned verdicts of guilty against 17 defendants. Moten was convicted of conspiracy and 2 substantive offenses. The jury failed to reach a verdict as to him with respect to the other charges, and they were subsequently dismissed on the government's motion. Moten was sentenced on January 21, 1977, to an aggregate...