United States v. Miller

• Decision Date: 28 March 1968
• Docket Number: Cr. No. 11191.
• Citation: 284 F. Supp. 220
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. James MILLER, a/k/a Frank James Coppola.

284 F. Supp. 220

UNITED STATES of America v.James MILLER, a/k/a Frank James Coppola.

Cr. No. 11191.

United States District Court D. Connecticut.

March 28, 1968.

Jon O. Newman, U. S. Atty., Hartford, Conn., for the United States.

W. Paul Flynn, New Haven, Conn., Richard H. Simons, Gerald F. Stevens, Milford, Conn., Percy Foreman, Houston, Tex., Steven B. Duke, New Haven, Conn., for defendant.

Curtiss K. Thompson, New Haven, Conn., for W. Paul Flynn.

Richard Jacobs, New Haven, Conn., for defendant Miller.

Allen H. Duffy, New Haven, Conn., for Richard H. Simons and Steven B. Duke.

Charles Gill, New Haven, Conn., and Donald G. Walsh, New Haven, Conn., for Richard B. Lane and Virginia Samon.

RULING ON ORDER TO SHOW CAUSE

BLUMENFELD, District Judge.

This is an application for an injunction to restrain the defendant, James Miller, his attorneys and their investigators from interviewing any members of the petit jury which on June 2, 1966, returned a verdict of guilty on an indictment charging the defendant with violation of 21 U.S.C. §§ 173,174.

Eighteen months after the verdict, on December 2, 1967, the defendant and his counsel through private investigators employed by them undertook to interview all of the members of that jury.When this activity was brought to the attention of the court, an order to show cause why they should not be enjoined from making inquiry of any of those jurors was issued.The defendants filed responses and a hearing has been held.

It is important to recall what preceded their recent interrogation of the jurors in order to put the present proceeding in perspective.Nothing to the contrary having been shown, I take the legal and factual situation at the time the defendants commenced their inquiry to have been as stated in Part VI of the opinion by the Court of Appeals in affirming the conviction of U. S. v. Miller, 381 F.2d 529, 538-540(2d Cir.1967).

"VI.

"When the trial was in its fourth week, the deputy clerk advised the judge that someone had talked to a juror about the case at a social gathering.The judge immediately brought the matter to the attention of counsel; defense counsel requested him to make inquiry without counsel being present and suggested that this be deferred for a short time until the taking of evidence was concluded and that the juror be cautioned in the meanwhile not to discuss the matter.When the judge spoke to the juror, it was discovered that he had already mentioned the incident to two others, like him residents of Litchfield, Conn., with whom he drove to court; the judge instructed him not to discuss it further and to give similar instructions to the two other jurors.

"After the taking of evidence had ended, the judge called the three jurors into his chambers.The juror reported that a man serving drinks at a cocktail party had said, `I'm just going to warn you that another man in Litchfield told me that when this is over, that unless you're very careful that there is a bunch in Torrington who are going to get after you and beat you up.They don't want to kill you, but they don't like what is going on.'After pointing out that such a remark might have been intended either to intimidate a juror or to cause him to stiffen up, the judge inquired whether it would affect the decision of any of the three.All answered in the negative and assured the judge that no other jurors knew of the incident.The juror to whom the remark had been made then said he thought one of the others `should mention something about that place over there.'This juror said there were two places in Torrington where his grandsons reported dope was being sold.He added `that doesn't affect me any, only to the extent I have grandsons, and so forth,' the suggestion apparently being that the judge should bring the matter to the attention of the authorities in order to stop further sales.On further questioning this juror affirmed, `It has nothing to do with me.I will say it the way I see it.'On returning to court the judge denied a defense motion for a mistrial.

"* * * Here there is no basis for doubting the ability of the three jurors to exercise the fair judgment they promised.The only way in which the judge might have handled the matter better would have been by interviewing the jurors individually as he had indicated he would, since this would have somewhat reduced the risk of a juror's being unwilling to admit susceptibility to extraneous influence.However, we cannot regard the joint interview as a misuse of the wide discretion accorded him.While the written motion for a new trial complained that the opportunity to cross-examine the three jurors was not granted or afforded defense counsel, that had been expressly waived in favor of inquiry by the judge.At the argument on the motion defense counsel referred to his attempts to interview the jurors, their consulting an attorney, and a suggestion by someone, presumably the attorney, that any interviews be held in abeyance pending an order from the judge; he sought a two week adjournment to permit such interviews.The judge declined to grant this and denied the motion for a new trial.We find no error in this.* * * Here the judge had developed the facts by interrogating the jurors, with counsel agreeing not to be present; there was thus no occasion for subjecting the jurors to a further inquiry.Cf.United States v. Crosby, 294 F.2d 928, 949-950(2 Cir.1961), cert. denied sub nom.Mittelman v. United States, 368 U.S. 98482 S.Ct. 599, 7 L.Ed.2d 523(1962);United States v. Dardi, 330 F.2d 316, 332(2 Cir.), cert. denied, 379 U.S. 84585 S.Ct. 50, 13 L.Ed.2d 50(1964)."

Subsequently, on September 27, 1967, the defendant made a motion for a new trial grounded on newly discovered evidence.This motion was denied on November 21, 1967.United States v. Miller, 277 F.Supp. 200(D.Conn.).

The next move by the defendant was on a course of conduct which precipitated the issuance of the order to show cause now being considered.What occurred within a few days after the motion for a new trial was denied is sufficiently recounted in the defendants' own brief which they filed in this proceeding, excerpts from which follow:

"On Friday, December 1, 1967, one of the attorneys for James Miller, Mr. Richard Simons, met with Virginia Samon, a private investigator employed by the Diamond Detective Agency, 11 Beacon Street, Boston, Massachusetts.Miss Samon was instructed by Mr. Simons to contact some or all of the persons who served as jurors in the case of United States v. Miller and to inquire of them whether they knew of the threats in the case and whether they were influenced thereby.Miss Samon was told by Mr. Simons not to ask the jurors about anything other than the threats and that if they insisted on discussing other aspects of the case, to leave if and when she politely could.

"Later on the same day Miss Samon met with Mr. Duke, also one of the attorneys for James Miller.Mr. Duke discussed the threats with her, gave her a copy of the petition for certiorari, discussed with her his theory about the threats and gave her a copy of the transcript of the colloquy between the judge and the three jurors during the trial.* * * He pencilled a number of questions in the margin of the transcript.Mr. Duke instructed Miss Samon to introduce herself as a private investigator.He also told her that if any jurors were reluctant to discuss the threats with her, she should inform them that the United States Attorney had stated in open court that the defense was free to investigate the matter, and that if they had any doubts, they should call the United States Attorney.

"On December 2, 1967, Miss Samon contacted five persons who had served as jurors.Among them were the three who had acknowledged at the trial that they were aware of the threats.She attempted to ask them about the threats, but some were unwilling to discuss the case at all. * * *

"The evening after the first day's investigation, Miss Samon reported to Mr. Duke.She also told him that she was introducing herself as a private investigator working for Professor Duke of the Yale Law School, one of the attorneys working on the appeal.After assuring himself that Miss Samon was making clear to the jurors that she was not engaged in scholarly research, but that Professor Duke was acting in the capacity of an attorney, he approved her method of introduction.¹Thereafter, as on the first day, Miss Samon continued to introduce herself as aforesaid.

"On December 3, Miss Samon saw one or two more jurors.

"Some time between December 4 and December 10, Mr. Duke prepared two sets of questionnaire-form instructions for Miss Samon.One set was for the three jurors who discussed the threats with the judge during the trial.The other set was for all other jurors contacted. * * *

"The investigation was continued on December 17 and 18, 1967, with Miss Samon using the questionnaires prepared by Mr. Duke.Since some of the questions related to matters which had been discovered in the earlier part of the investigation, Miss Samon was directed to return to jurors already contacted and to attempt to get answers to the new questions from them.She contacted several jurors that weekend, bringing the total number contacted to 8 or 9."(Memorandum Re Order to Show Cause, pp. 2-3.)

As always it is important to reach the precise question presented.One path to that end is to note what is not involved.It is not disputed that out-of-court statements made to a juror during the course of a trial may, if prejudicial to a losing party, warrant a new trial, cf.Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654(1954), nor that testimony of jurors is admissible to prove that improper statements have been communicated to a juror.Cf.Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917(1892);Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654.But these rules do not deal...