United States v. Driscoll

• Decision Date: 08 November 1967
• Docket Number: 66 Cr. 129.
• Citation: 276 F. Supp. 333
• Parties: UNITED STATES of America v. Daniel J. DRISCOLL, Defendant.
• Court: U.S. District Court — Southern District of New York

276 F. Supp. 333

UNITED STATES of America v. Daniel J. DRISCOLL, Defendant.

66 Cr. 129.

United States District Court S. D. New York.

November 1, 1967.

Supplemental Opinion November 8, 1967.

Robert M. Morgenthau, U. S. Atty. for S. D. of New York, New York City, for the United States. Albert J. Gaynor, Executive Asst. U. S. Atty., John H. Doyle III, Asst. U. S. Atty., of counsel.

Frank G. Raichle, Buffalo, N. Y., for defendant. Thomas A. Bolan, Saxe, Bacon & Bolan, New York City, of counsel.

OPINION

McLEAN, District Judge.

This is a motion by the government to restrain defendant and his attorneys and investigators from interviewing members of the jury which, on October 2, 1967, returned a verdict of guilty on each of three counts of an indictment which charged defendant with willful failure to file his federal income tax returns for the respective years 1960, 1961, and 1962 within the time required by law. I held a hearing and took testimony. On the basis of that testimony, I find the facts to be as follows.

A few days after the verdict, William J. Whelan, a private investigator, had telephone conversations with three jurors and a more extended face-to-face interview with a fourth. The substance of these conversations was as follows.

On October 4, Whelan telephoned juror no. 6, Newton Perlman, stated that he represented the law firm of Saxe, Bacon & Bolan (of which defendant is a member) and asked to see Perlman about the case. Perlman said that he was too busy to see Whelan at that time. A few days later Whelan telephoned Perlman again and inquired, "By the way, do you know that there was a hung jury on this?" This was a reference to defendant's first trial on this indictment, at which the jury disagreed. In response to Perlman's question as to whether a discussion of the case would be proper, Whelan said, "We usually do this. It is done in certain cases." Perlman made a tentative appointment to see Whelan but because of the temporary restraining order which I granted pending a determination of this motion, the interview never took place.

On October 4, Whelan telephoned juror no. 10, George J. Gurner. He said that he was from Saxe, Bacon & Bolan and asked for an interview. According to Gurner, Whelan said that his purpose was "to ask how I felt about the defense attorney's handling of the trial, why I rejected the insanity plea, did I know that there was a previous trial * * * in December 1966 at which time the trial ended with a hung jury, six for and six against, and what other aspects did I feel were hurtful to the defendant's case."

Whelan said that there was "nothing irregular" in this procedure. In his own testimony at the hearing, Whelan amplified this remark by stating that he said to Gurner:

"We do this usually in case of a new trial, or any material that we can gather for an appeal, or so. * * * Oh, that's what is done. You file papers for an appeal, and things like that."

Because of the temporary restraining order, Whelan had no further conversation with Gurner.

On October 3 or thereabouts, Whelan telephoned juror no. 2, Rosalie Carruba. She testified that "the gist of the whole conversation was where did they go wrong." Whelan assured her that a discussion of this subject was not irregular. He asked her to sign "a paper, a petition of some kind." She understood that this was a petition for a new trial. According to Whelan, he was referring to a petition for leniency in sentence. Mrs. Carruba declined to see Whelan. She declined to sign the petition.

On October 4, Whelan went to the place of business of juror no. 7, Vincent Michael Martin, and talked to Martin for approximately forty minutes. When Martin at first hesitated to discuss the case, Whelan told him that it was "legal" to do so.

Whelan asked Martin what the weak points of defendant's case had been and what evidence the jury considered damaging to defendant. Martin discussed with him at some length what the evidence was and how it had impressed the jury.

Whelan inquired why the jury found defendant guilty. He said, "Do you know you could have voted for an insanity plea?" In this connection, he asked why the jury had not been impressed with some of the testimony on this subject. Whelan testified that he said to Martin after Martin had answered this inquiry:

"I says, `Well, that's where the mental block came in, see?'"

Whelan asked how the jury had proceeded in its discussion of the case and "whether we the jury polled ourselves." He told Martin that at the first trial the jury had divided six to six and that at that trial one juror "had stuck to his guns and said he wouldn't change his verdict." The context of this remark indicates that Whelan made it clear that this resolute juror had voted for acquittal. He wanted to know why the present jury voted the defendant guilty when the previous jury had disagreed. Whelan said that he had been "wary" of some of the present jurors when they were first selected, particularly the two women.

Whelan asked Martin to sign a petition for leniency. Martin was unwilling to commit himself to do so.

Subsequent to this interview, about a week before the hearing upon the present motion, Whelan telephoned Martin to say that Martin would probably be contacted by the U.S. Attorney's office. He asked Martin if he thought that Whelan had "harassed or intimidated" him, to which Martin replied, "No. It was just a conversation."

Whelan testified that he had been asked to interview the jurors by John F. Lang. Lang testified to the same effect. Lang is a lawyer who at one time was employed by Saxe, Bacon & Bolan and is now employed on the legal staff of one of that firm's principal clients. Lang was present during the trial and apparently assisted in the defense.

Lang testified that no one asked him to retain Whelan to interview the jurors but that he did so because:

"I have been working with Mr. Bolan on cases in this Federal Court and other cases where I have been an associate counsel with him over the past four or five years. And we have been doing that in every case that we have been on. And originally, when I was working for Mr. Bolan, he would tell me to contact Mr. Whelan, and have him interview jurors, and this happened in all the cases that I was on with him."

He went on to say that although Mr. Bolan did not ask him to retain Whelan in this particular instance, this was the "standard practice" of Saxe, Bacon & Bolan. He testified that he assumed Whelan's compensation would be paid by Saxe, Bacon & Bolan because Whelan was on a yearly retainer with that firm.

Lang also testified that immediately after the jury returned its verdict of guilty on October 2, Lang spoke to the foreman, Staulings, on the street outside the courthouse, that he asked what the most persuasive evidence was against the defendant, and that Staulings told him about a certain documentary exhibit which the jury considered most important.

Upon the return of the order to show cause in this matter on October 10, at which time I set the motion down for an evidentiary hearing to be held on October 24, Thomas A. Bolan, a member of the firm of Saxe, Bacon & Bolan, and one of defendant's attorneys throughout this and the previous trial, stated, when asked by the court whether he wished to say anything:

"As to my own participation, I would prefer to defer answering that, if it should be necessary, to some future time, as to whether I had any knowledge."

At the hearing on October 24, Bolan said that he wanted to make a statement. He thereupon testified that although Lang had not specifically requested his authorization to employ Whelan to interview these jurors, Lang's action had Bolan's full approval and he took full responsibility for it. He said that he believed such interviews to be entirely proper and that "practically every trial that I have been involved in there have been interviews of jurors," not only at his instance, but in some cases at the instance of the opposing party as well. He specifically referred to the trial of another member of the firm of Saxe, Bacon & Bolan (which eventually resulted in an acquittal) after which he and the United States Attorney's office each caused the jurors to be interviewed, as they had after the abortive first trial of the present defendant. He said that such interviews in his experience were "common practice among trial attorneys."

Bolan and Lang each testified that he had no reason to believe that the jury had acted in any way improperly in its consideration of this case, or that any improper outside influence had been brought to bear upon it. They made it clear that the purpose of the interviews was not to secure evidence of any such impropriety. Bolan testified that "basically, what Mr. Lang and I have been interested in * * * is what evidence did influence the jury in their verdict * * *."

Whelan's testimony was to the same effect. He said that Lang had not told him that the jury had done anything it should not have done, or that anyone had brought improper pressure to bear on it, or that any fraud was involved.

Defendant Driscoll testified, after having been advised by the court that he was not obligated to do so and need not answer the court's questions. He testified that he had not known of Whelan's activities in interviewing the jurors and that he had not authorized the interviews or discussed them with anybody. As to the practice of the firm of Saxe, Bacon & Bolan of which he is a member, he said that although he had heard in a general way that after the trial of his partner jurors had expressed certain feelings, he had nothing to do with it because he was never in actual litigation.

Frank G. Raichle, defendant's trial counsel, stated to the court that he had not been aware of the interviewing of jurors and had not requested or authorized it.

Two questions have been argued on this motion, each of which must be considered and decided by the court: (1) whether the...