United States v. Musto

• Decision Date: 12 May 1982
• Docket Number: Crim. No. 81-144.
• Parties: UNITED STATES of America, Plaintiff, v. William V. MUSTO, Frank Scarafile, John J. Powers, Thomas Principe, Lawrence Dentico, Dominick D'Agostino, Gildo Aimone, Anthony Genovese and John Bertoli, Defendants.
• Court: U.S. District Court — District of New Jersey

540 F. Supp. 318

UNITED STATES of America, Plaintiff, v. William V. MUSTO, Frank Scarafile, John J. Powers, Thomas Principe, Lawrence Dentico, Dominick D'Agostino, Gildo Aimone, Anthony Genovese and John Bertoli, Defendants.

Crim. No. 81-144.

United States District Court, D. New Jersey.

May 6, 1982.

As Amended May 12, 1982.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

W. Hunt Dumont, U. S. Atty. by Maryanne T. Desmond, First Asst. U. S. Atty., Samuel Rosenthal, James Plaisted, Mark Malone, Richard Friedman, Asst. U. S. Attys., Newark, N. J., for plaintiff.

Irving Anolik, New York City, for defendant William V. Musto.

Dennis McAlevy, Hoboken, N. J., for defendant Frank Scarafile.

Shain, Hayden, Perle, Rafanello, Schaffer & Irish by Joseph Hayden, Newark, N. J., for defendant John J. Powers.

Thomas Ford, Millburn, N. J., for defendant Lawrence Dentico.

Podvey & Sachs by Alan Silber, Newark, N. J., for defendant Dominick D'Agostino.

Sills, Beck, Cummis, Radin & Tischman by Robert Baime, Newark, N. J., for defendant Gildo Aimone.

Flood & Basile by Raymond Flood, Hackensack, N. J., for defendant Anthony Genovese.

Robinson, Wayne & Greenberg by Jack Arseneault, Newark, N. J., for defendant John Bertoli.

Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan by Theodore Wells, Roseland, N. J., of counsel for defendants Musto, Powers, Scarafile and Genovese.

Kunstler & Mason by William M. Kunstler, New York City, of counsel for defendants Dentico and D'Agostino.

SAROKIN, District Judge.

Defendants, alleging that various errors were committed at trial with respect to the jury's deliberations and verdict, seek a judgment of acquittal or a new trial, and hearings of one or more jurors.

The trial of this matter lasted approximately five months. The complex, 46-count indictment, charged defendants with conspiracy to violate the RICO statute, tax fraud, mail fraud, and wire fraud. Throughout the trial, and despite the unanticipated length of the proceedings, the jury listened attentively to witnesses and displayed unflagging interest in the proceedings. On March 22, 1982, the jury began its deliberations. Two days later, the court received a message from the Marshals that one of the jurors, Mrs. Steidl, was upset. This message was communicated to counsel by the court:

Gentlemen, as I informed you off the record I have received a message from the Marshals that Mrs. Steidl is very upset. She had been crying, she claims that she has never been away from her husband before, and the general indication that I have received is that she has some doubts as to her ability to continue to serve and to participate in the deliberations.

Under the circumstances it is my suggestion that I meet with her informally, off the record, if I have your consent to do that, first of all to find out what the problem is, report back to you as to what it is that she tells me and then if necessary we will put something on the record, if you think that is appropriate, but my feeling is that I will do much better with her if I can discuss the matter with her without a Court Reporter being present and see what the problem is, but I only will do that if you all consent.

If you want a Court Reporter there I will do that as well.

My suggestion is we start informally before we put ourselves in the position from where there is no retreat.

All counsel agreed that the court should informally interview Mrs. Steidl. A message requesting the interview was then sent to the jury with instructions that further deliberations were to cease until notification to resume was given by the court.

The court's conversation with Mrs. Steidl was held in chambers and lasted for only a few minutes. The substance of the conversation was immediately reported to counsel:

THE COURT: Gentlemen, here is what I gleaned from my conversation with Mrs. Steidl:

First of all, I want you to know that when I began talking to her I instructed explicitly to her that she was not to reveal to me anything that had taken place during the deliberations. She indicated to me that the first night she was very upset because she was away from her husband.

Last night she indicated that in addition she was hysterical because of the pressure of the deliberations. Apparently the foreperson had insisted that the jurors support their views and indicated that they should do so before going to dinner last night.

Apparently that direction upset her very much. She said that that pressure is making her sick and she does not think that she can continue to serve as a juror.

After the court related the details of its discussion with Mrs. Steidl to counsel, there was argument over what should be done next. There were suggestions to interview the foreman, to reinstruct the jurors that each of them must vote their own conscience, to allow Mrs. Steidl to meet with her husband, and to interview Mrs. Steidl again to see whether the proposed meeting with her husband would ameliorate the problems which she was having. Defense counsel urged that the court's first obligation was to have another conversation with Mrs. Steidl:

MR. HAYDEN: I submit that you need at the very least another meeting with Mrs. Steidl.

MR. BAIME: And the foreperson.

MR. HAYDEN: Call her down, explain to her your rationale as to why you are not going to excuse her, explain to her if she has to see her husband, if it were important enough—I don't think giving her the—

THE COURT: I'll do it but I don't want to do it formally.

MR. HAYDEN: Doesn't have to be on the record.

MR. FORD: I can't urge more strongly it be done informally.

The court held another informal meeting with Mrs. Steidl at the urging of and with the consent of counsel. The meeting lasted for only a few minutes and its details were immediately disclosed to counsel in open court:

THE COURT: Gentlemen, I had a second conversation with Mrs. Steidl. The situation has deteriorated rather than improved.

I told her that we would make arrangements to bring her husband down if she wanted, that I would bring the foreperson in and have a chat with him as to his functions and I read to her the portion of the charge which I said I would consider reading to the jury as a whole and to the foreman, and she said to me that she does not wish to continue under any circumstances.

An attorney for the defense then asked the court for time to caucus with co-counsel. The court, granting the request, stated: "I would suggest, gentlemen, there are three choices: One is to go with a jury of eleven, one is to make use of one of the four alternates who are here, and the third I do not wish to speak aloud."

After counsel met, they jointly proposed that the court should excuse Mrs. Steidl and the foreman and substitute two of the alternate jurors. Alternatively, they asked for a 24-hour adjournment to determine whether their clients were financially able to move for a mistrial. Argument ensued, with the prosecution vigorously opposing a dismissal of the foreman:

MR. PLAISTED: No factual record to justifying going into the jury, plucking out Number 1 the foreman and say you are dismissed, no basis for it.

We object. It is inappropriate, no precedent for it.

With respect to Juror Number 9 Mrs. Steidl, there are in essence two choices, one to tell her to go back and deliberate, or two, substitute another juror in unless defense are willing to have deliberations continue with eleven jurors.

Counsel for one of the defendants responded to the government's argument:

MR. MC ALEVY: I couldn't disagree more with the government.

I think certainly if there is the slightest hint of taint on that jury it should be ferreted out right now, and I don't think there's any question about the fact, just from what your Honor has told us, Juror Number 9, the accusation she made about Number 1, I think it is something that should be inquired into not only by the court but by counsel within that limited area but we should have the limited right because if there is a taint on this jury there would be absolutely no choice except for a mistrial.

Other counsel also urged that a hearing should be held to determine whether the pressure Mrs. Steidl was feeling was due to improper conduct on the part of the foreman. Counsel also advised the court that their willingness to excuse Mrs. Steidl and substitute an alternate was conditioned upon excusing the foreman as well. Counsel were then requested by the court to decide whether they would want Mrs. Steidl excused should the request to dismiss the foreman be denied:

THE COURT: Gentlemen, I think I have fairly conveyed to you Mrs. Steidl's position and her indication based upon two conversations with her that she does not think that she can continue, and therefore, I agree with Mr. Plaisted that I would like to know whether under those circumstances from each defendant, whether they want Mrs. Steidl excused, if they do want her excused I would like to know whether or not they want an alternate substituted, or whether they move for a mistrial.

As of this moment I am rejecting the condition that Mr. Fitzgibbon also be excused, but that does not mean that I won't deal with the problem, if there is one, once we decide on Mrs. Steidl.

I will not accept that as a condition for excusing Mrs. Steidl. I think we have to deal with her separately and resolve it.

Counsel responded by again renewing their request for a hearing to determine whether Mrs. Steidl was being improperly pressured by other jurors. The attorneys were divided, however, on whether she should be excused, and those that favored excusing her refused to agree to substitute an alternate without first having a hearing on the possibility of juror misconduct. None of the attorneys expressed a willingness to proceed with a jury of eleven.

Because counsel were unable to agree upon how to proceed, the court suggested that they meet informally in chambers:

THE COURT: I will suggest that we will be more productive if we meet

...