United States v. Winters

• Decision Date: 04 August 1977
• Docket Number: No. S Cr 75-12.,S Cr 75-12.
• Parties: UNITED STATES of America, Plaintiff, v. David Roy WINTERS, Defendant.
• Court: U.S. District Court — Northern District of Indiana

434 F. Supp. 1181

UNITED STATES of America, Plaintiff, v. David Roy WINTERS, Defendant.

No. S Cr 75-12.

United States District Court, N. D. Indiana, South Bend Division.

August 4, 1977.

John S. Leonardo, Asst. U. S. Atty., South Bend, Ind., for plaintiff.

Timothy W. Woods, South Bend, Ind., Kim D. Jordan, Hammond, Ind., for defendant.

ORDER

ALLEN SHARP, District Judge.

The defendants, David Roy Winters and Arnold Brewer, were each charged by way of an indictment, Count I of which alleged the violation of Section 1201(a) and 2, Title 18 of the United States Code, and Count III of which charged each of them with a violation of Section 924(c) of Title 18 of the United States Code. (Count II of the same indictment was dismissed on motion of the Government preliminary to the trial of either defendant.)

Arnold Brewer was tried first and separately before this Court in South Bend, Indiana, which trial resulted in jury verdicts of guilty as to him on Counts I and III. At the request of the defendant, David Roy Winters, his trial was held in Hammond, Indiana on the 16th and 17th of May, 1977. On May 17, 1977 the case was submitted to the jury as to the defendant, David Roy Winters, on Counts I and III. A verdict was returned by the jury on both Counts I and III and upon the return of such verdicts the following proceedings were had in open court in the presence of the defendant, David Roy Winters, and all counsel:

"THE COURT: You may be seated.

Who is the Foreman of the jury?

MR. SIMIC: I am, your Honor.

THE COURT: Has the jury reached verdicts on Counts I and III of the indictment?

MR. SIMIC: Yes, your Honor.

THE COURT: Please hand the verdict forms to the Deputy Marshal. I want to see them first. The Marshal will hand them up to the Court.

The Clerk will read the verdict and the defendant will rise.

THE CLERK: U.S.A. vs. David Winters, Cause No. S CR 75-12. Verdict: We, the jury find the defendant, David Winters, guilty as charged, guilty as to Count I in the indictment, dated May 17th, 1977, signed Thomas Simic, Foreman.

Omitting the caption, we, the jury find the defendant, David Winters, guilty as to Count III of the indictment, dated May 17, 1977, signed Thomas Simic, Foreman. THE COURT: Hand up the verdict forms, please.

You may be seated, sir.

Ladies and gentlemen of the jury: Did you select and elect Thomas Simic as the Foreman of this jury?

THE JURY: Yes.

THE COURT: You have heard the Clerk read the verdict as to Count I. The Clerk has read that the jury finds the defendant, David Winters, guilty as to Count I of the indictment.

Is this the verdict of each and all of the members of this jury?

THE JURY: It is.

THE COURT: Do any one of the 12 members of this jury now object to or dissent from this announced verdict on Count I? If so, please indicate it.

(No audible response.)

THE COURT: You have heard the Clerk read the verdict of the jury as announced on Count III; that verdict being a verdict of guilty.

Is this verdict of guilty on Count III of the indictment the verdict of each and all of the 12 members of this jury?

THE JURY: It is.

THE COURT: Do any one of the 12 members of this jury now in any way object to or dissent from this announced verdict on Count III? If so, please indicate.

(No audible response.)

THE COURT: Ladies and gentlemen, thank you for your time and attention to this case. It is the policy of the Judge of this Court in this and in all other cases that you do not have to answer anyone's questions about the contents of your deliberations or reasons for your verdict unless I order you to do so, and if I do it, you will know it.

So those connected with this case and all others are now enjoined from interrogating you about your deliberations or the reasons for your verdict. There are good reasons for that; one of which is you may be called back for other cases, but there are other good reasons.

So with that said, and I understand the work slip problem has been handled, you are discharged and released with my renewed thanks. You may leave out this door."

At the time the above proceedings were had in regard to the return and announcement of verdicts this Court takes judicial notice of the fact that none of the 12 members of this jury in any manner through conduct or words indicated then that any objection existed as to these two announced verdicts.

Subsequently, on the 18th and again on the 19th of May, 1977, the juror, Albert Douglas, called the chambers of this Judge in this Court in South Bend, Indiana and spoke with a member of this judge's staff but did not speak with this Judge personally.

Thereafter, on the 20th day of May, 1977, this Judge wrote a letter which is a part of the record in this case to both defense counsel and to the Assistant United States Attorney, which letter reads as follows:

"Gentlemen:

This will give some information regarding an incident subsequent to the verdicts in this case. On Wednesday, May 18, 1977, one of the members of the jury, Albert Douglas, called my office in South Bend and spoke to Mr. Vance Curtis. He did not speak to me but indicated a desire to do so. He stated to Mr. Curtis that he desired to relay certain information about the deliberations in this case. He did not relate to Mr. Curtis anything further at that time.

He called again on May 19, 1977 and again spoke to Mr. Curtis on the same subject matter.

On the second call he did not relate the precise nature of the information that he wanted to convey but expressed a renewed desire to talk to me. I was not present in the office at the time of his second call and did not talk to him.

After the second call I authorized Deputy United States Marshal Joseph Rogowski to interview Albert Douglas either in person or by telephone and further ordered that Deputy United States Marshal Oswalt witness any such interview. I am orally advised that such an interview did take place on May 19, 1977 and Marshal Rogowski will be forwarding a written summation of the same to me.

Since this incident has come up I felt obliged to inform all counsel of it and in doing so, am making no judgment as to what, if any, effect it might have on the verdicts rendered by the jury in this case.

I think some guidelines are in order in regard to this incident. Certainly, all counsel and all parties are free to interview Deputy Marshals Rogowski, Oswalt and Yates. I will gladly make available to all counsel the contents of the written report that I am to receive from Marshal Rogowski, which I have not yet received. It is my further belief that any interviews by anyone of any member of this jury should be conducted in a very controlled situation established in advance by an order of this Court. I do not believe that ex parte interviews of any member of this jury by the counsel or representative of any party is now in order. As indicated, if such interviews should become necessary they should be authorized by an express written order of this Court after due consultation with counsel for all parties."

Thereafter, on the 10th of June and on the 22nd of June, 1977 evidentiary hearings were held at which time juror, Albert Douglas, the Foreman of the jury, Thomas Simic, and juror, Scott T. Howat, as well as Deputy United States Marshal, Bruce Yates, were interrogated under oath by the Court.

The defendant objected to the manner in which the Court conducted said evidentiary hearing and asserted the right of defense counsel to personally question the witnesses who testified in that proceeding. The only authority cited to the Court was the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury, Section 5.7(c), Approved Draft 1968, which standards were cited as authority in United States v. Thomas, 463 F.2d 1061 (7th Cir. 1972). In each instance before a witness was excused both defense counsel and counsel for the United States of America had a full and complete opportunity to submit proposed questions to this Court to be asked and in all instances such questions were in fact asked. This precise procedure by which the district judge solely propounds the questions at this type of hearing is consistent with authority on this subject. See Rakes v. U. S., 169 F.2d 739 (4th Cir. 1948); Miller v. U. S., 403 F.2d 77 (2d Cir. 1968); and U. S. v. Brasco, 385 F.Supp. 966 (S.D.N.Y.1974).

This Court is very much concerned of counsel interrogating jurors after a verdict has been reached whether that counsel be for the United States of America or for a defendant. That practice has been the subject of considerable concern in other federal judicial quarters. See Bryson v. U. S., 238 F.2d 657 (9th Cir. 1956); Northern Pacific Ry. Co. v. Mely, 219 F.2d 199 (9th Cir. 1954); U. S. v. Miller, 284 F.Supp. 220 (D.Conn.1968); U. S. v. Crosby, 294 F.2d 928, 950 (2d Cir. 1961), cert. den. 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962).

The proceedings here that involve the interrogation of three members of this jury are very closely analogous to the proceedings on voir dire examination. It is the universal practice of this Judge of this Court to conduct such voir dire examination but always affording counsel a full opportunity to submit questions to the Court before any challenges are required. Therefore, the procedure established for these hearings did not in any way violate the due process rights of this defendant and were consistent with the mandate imposed upon this Court in Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), and by our own Court of Appeals in U. S. v. Thomas, 463 F.2d 1061 (7th Cir. 1972).

Albert Douglas testified that handwritten sheets of paper with writing on both sides and with numbers were presented to him during the middle to latter part of the deliberations in this case. The record indicates that the jury retired at approximately 11:07 A.M. after which lunch was served to them in the jury room. They returned to open court at approximately...