United States v. Kohne, Crim. A. No. 71-254.

• Citation: 358 F. Supp. 1046
• Decision Date: 23 April 1973
• Docket Number: Crim. A. No. 71-254.
• Parties: UNITED STATES of America v. William Paul KOHNE et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

358 F. Supp. 1046

UNITED STATES of America v. William Paul KOHNE et al.

Crim. A. No. 71-254.

United States District Court, W.D. Pennsylvania.

April 23, 1973.

Samuel J. Orr, III, Asst. U.S. Atty., Pittsburgh, Pa., for the U.S.

James A. Ashton, Pittsburgh, Pa., for defendants William Paul Kohne, Patrick Denham and Jeanine Denham.

Martin M. Sheinman, Pittsburgh, Pa., for defendants Patsy Stanizzo and Betty Howden Stanizzo.

Ray Radakovich, Pittsburgh, Pa., for defendant Joseph Tabella.

James R. Fitzgerald, Pittsburgh, Pa., for defendant Paul Patrick Woods.

Gilbert M. Gerber, Pittsburgh, Pa., for defendant Frank DeLucia.

OPINION AND ORDER

MARSH, Chief Judge.

After a protracted criminal trial of five and one-half weeks, the jury in the above case returned verdicts which found the defendants, William Paul Kohne, Paul Patrick Woods, Patsy Stanizzo, Betty Howden Stanizzo, Joseph Tabella, Patrick Denham, Jeanine Denham and Frank DeLucia, not guilty of Count 1, conspiracy, and guilty of Count 2, violating the federal gambling statute, Title 18 U.S.C. § 1955.

The jury retired to deliberate at 1:10 p. m. on Tuesday, February 13, 1973, and returned the verdicts on Wednesday, February 14th, at approximately 4:30 p. m., after spending the night at the William Penn Hotel in Pittsburgh.

On Monday, February 19, 1973, Steve Tisak, No. 10 juror, went to the law office of James A. Ashton, Esq., where he met with three defense counsel, including Attorney Ashton, who represented William Paul Kohne, the owner of the alleged illegal gambling business, and defendants, Patrick and Jeanine Denham. There he signed a written question and answer statement in which he repented joining in the verdicts of guilty and complained about the words and actions of some other jurors, the hotel "cots", and worry over an erratic oil heater in his home.

On February 20, 1973, the defendants, William Paul Kohne, Patrick Denham and Jeanine Denham, filed a motion for mistrial alleging that Mr. Tisak rendered guilty verdicts because he "was coerced by threats of physical harm that he felt were real." Mr. Tisak's unsworn statement was attached. In their motion for mistrial, the moving defendants requested "that an evidentiary hearing be held by this Court to determine all facts which are germane to the issues raised by this petition, subject to the right of examination and cross-examination by all affected parties."

All defendants have filed motions for a new trial. All defendants, except Patsy Stanizzo and Betty Howden Stanizzo, alleged as one of the reasons for a new trial that juror No. 10 was coerced into finding the defendants guilty of Count 2. Defendants, Patsy Stanizzo and Betty Howden Stanizzo, alleged in their motion that the verdicts of the jury might have been the result of a compromise or of some type of coercion brought on by the inadequate accommodations the jurors had during their overnight sequestration. Defendant Tabella alleged that since "the jurors were made to sleep ten in one room overnight", such an atmosphere was not conducive to a fair and impartial trial.

The William Penn Hotel is one of Pittsburgh's leading hotels where, to my knowledge, many juries have been sequestered overnight during the past 20 years. Five juries have spent the night in that hotel so far this year. I have not heard of any prior complaints about the accommodations. Even if the "cots" were not entirely to Tisak's liking, I find that the accommodations were adequate. (See: Exhibits 2, 3.)

Obviously, there is nothing in Tisak's written statement which would warrant impeachment of the verdicts. He does not assert that he was "coerced" into rendering the guilty verdicts. His predominant concerns were the performance of the oil heater at his home and the prospect of spending another night on a "cot" in a room with eight other exasperated male jurors. But because there was innuendo of threats of bodily harm, with considerable reluctance, I granted the request for a hearing to determine if there were genuine attempt to inflict bodily harm upon Tisak, or threats which actually put him in fear of bodily harm. Cf. United States v. Grieco, 261 F.2d 414, 415 (2d Cir. 1958).

All counsel were notified; four defense attorneys attended the hearing as well as the Assistant United States Attorney, who prosecuted the case.¹ Several defendants were present. Juror, Steve Tisak, was present and was examined by me at some length. Counsel for the government and counsel for the defendants who were present were not permitted to cross-examine Tisak. United States v. Grieco, supra, pp. 414-415. However, all counsel who were present were given the opportunity to suggest additional questions that they desired me to put to Tisak. No specific question was suggested.

Three of the jury attendants, a Marshal, Mr. Ray Eschman, my law clerk, Mr. James West, and the court-crier in attendance, Mr. William Ellis,² were also questioned by me. Counsel for the defendants were given the opportunity to examine these witnesses. Counsel for the defendants questioned Mr. Ellis; no questions were asked of either Mr. West or Mr. Eschman.

From the testimony taken, I find the following facts:

Steve Tisak was seated as juror No. 10 and served the entire duration of the trial. Tisak wrote and sent three communications to me; one during the course of the trial and two on February 14th, while the jury was deliberating. Tisak is not a frail man; he is 5' 8" in height, weighs 150 pounds, and is a truck driver and construction worker. From his appearance and demeanor, he did not appear to be a "weak sister" or a "shrinking violet" who would easily be intimidated by threats. On the contrary, he seemed to be endowed with the characteristics of an individualist and a worthy opponent for his 11 peers in the advocacy of his positions. His will was not overborne by threats of violence; to the contrary, his mind was changed in the heat of deliberations and shortly after my response to his last written question.³ I gathered from his testimony that he was greatly concerned about being sequestered because of a problem that he was having with an oil heater in his home. He testified that he was not allowed to make a call to have someone check his heater. Pursuant to Tisak's written instructions (Exhibit 1), Mr. West made a call to Andrew Yanchik at 8:30 p. m. on February 13th to inform him that Tisak would be detained overnight. Tisak testified that he had previously arranged with Mr. Yanchik to feed his dogs if he was detained overnight. Tisak recalled writing the message and giving it to Mr. West, but erroneously thought it took place at 5:30 in the afternoon. Late that evening at the hotel, Tisak requested Mr. Ellis to make another call concerning his car which he had parked in Aliquippa that morning, but this request was refused because Ellis felt he could not leave the jurors unattended to make the call, and Tisak did not seem to be overly concerned. No mention was made of the oil heater to either West or Ellis.

Tisak also testified that at the conclusion of the charge, he remembered that I inquired whether any juror was unable to stay overnight if such became necessary. In response to that inquiry, Mrs. Csurilla, a juror, stated she could not stay overnight because she had two children at home with no one to care for them, and she was excused, but Mr. Tisak did not mention that the oil heater constituted a danger to his home.

In his statement Tisak described the threats as follows:

"* * * Other jurors said they did not intend to sleep on them cots again. One juror stated if he has to sleep there again he will be in Federal Court in the morning for murder. Through the day two jurors acted in such a manner that I thought they would pick up a chair and break it on my head because I would not vote blank sic guilty charges. Now, I finally voted guilty on a sic gambling charges because it was admitted in Court that gambling was performed. * * * I signed guilty on that blank sic charges because I myself did not want to sleep at the hotel with those people because I did not think I would have walked out of that place the next day after sleeping on those cots. * * * One juror stated Wednesday, `I do not get mad, I just get even.'"

Tisak testified that the alleged threats occurred on Wednesday, February 14th, in the jury room, but Mr. Ellis and the Marshal in attendance stated that Tisak did not inform them at any time about any threats that were being made against him.

At the hearing Tisak testified that one juror acted very nervous and grabbed the back of his chair, and one juror stood up flexing his muscles. But he also testified that no one picked up a chair and attempted to strike him over the head with it. He admitted that no one so much as touched him or attempted to touch him. In connection with Tisak's written statements concerning a juror being in federal court for murder if he had to stay another night, and a juror stating, "I do not get mad, I just get even", he admitted that these assertions were not accompanied by any act or threats of physical violence directed at his person.

Tisak also testified that several jurors were hollering at him and called him, among other things, "an opinionated ass". He related that several of the jurors told him that if they had to stay another night, they would go bankrupt.

From the testimony of Tisak, it seems obvious that on Wednesday all the jurors favored acquittal of the defendants of Count 1, and 11 jurors favored conviction of the defendants of Count 2. Tisak was the holdout. He testified that he had problems with the effect of the terms "wilfully and knowingly". This problem was a subject of the two communications he sent to the court on Wednesday, February 14th, prior to the return of the verdicts by the jury. Tisak knew that he could communicate with the court by writing a message and handing it to the bailiff. This he had done once during the trial...