US v. Boylan

• Decision Date: 11 October 1988
• Docket Number: Crim. A. No. 87-342-MA.
• Parties: UNITED STATES of America v. Peter BOYLAN, et al.
• Court: U.S. District Court — District of Massachusetts

698 F. Supp. 376

UNITED STATES of America v. Peter BOYLAN, et al.

Crim. A. No. 87-342-MA.

United States District Court, D. Massachusetts.

October 7, 1988.

As Amended October 11, 1988.

Diane M. Kottmyer, James B. Farmer, Boston, Mass., for U.S.

Thomas J. Ford, Boston, Mass., Paul Buckley, Milton, Mass., Buckley, Haight, Muldoon, for defendant Peter Boylan.

Regina Quinlan, Boston, Mass., for defendant John E. Carey.

Albert F. Cullen, Jr., law offices of Albert F. Cullen, Jr., Boston, Mass., for defendant Thomas J. Connolly.

Martin K. Leppo, Leppo & Traini, Randolph, Mass., for defendant Matthew A. Kilroe.

Anthony M. Cardinale, Boston, Mass., for defendant John F. McCormick.

Paul F. Markham, Boston, Mass., for defendant Kenneth J. Nave.

Robert Muse, Boston, Mass., for defendant Francis X. Sheehan.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

This matter is before the Court on defendants' various motions based on jury misconduct. The events which precipitated these motions began on September 13, 1988 when a jury returned a guilty verdict on fifty-six of fifty-seven counts against seven defendants following an eleven week trial. On September 16, three days after the verdict was returned, a juror phoned Paul F. Markham, one of the defense counsel, and stated that the jurors had discussed the case during the trial and were predisposed to find the defendants guilty before deliberations began. According to an affidavit subsequently filed with the Court by Mr. Markham, the juror expressed a desire to speak only to defense counsel. Mindful of United States v. Kepreos, 759 F.2d 961 (1st Cir.), cert. denied, 474 U.S. 901, 106 S.Ct. 227, 88 L.Ed.2d 227 (1985), Mr. Markham contacted me at home and advised me of the juror's call. Also mindful of Kepreos, I set the matter down for hearing at which defense counsel moved jointly to interview the juror without the presence or participation of either the Court or the government. I decided to interview the juror in the presence of all counsel pursuant to Fed.R.Evid. 606(b), although I did not rule formally on the defendants' motion. The juror's identity was not divulged to me or to the government until he appeared at the hearing on September 20. At that hearing, the juror reiterated the statement he had made to Mr. Markham. He also stated that a particular magazine article and unspecified newspapers had circulated among jurors in the jury room. As a result of this initial interview, I decided to question the entire panel, including the alternates. Fourteen jurors were interviewed on September 21 and the last juror was interviewed on September 26.

Following the interviews, the defendants moved for a new trial incorporating within the motion a request for an evidentiary hearing. The motions present the following issues: (1) whether defense counsel should have been permitted to interview the juror without the Court present; (2) whether I should grant the motion for a new trial based on the claim that extraneous prejudicial information reached the jury and that the jury was predisposed to convict the defendants; and (3) whether I should order a formal evidentiary hearing, before another judge, at which the jurors would be questioned and cross-examined while under oath.

I set out the facts of this case in detail because they are crucial to understanding the serious issues raised by the defendants' motions. In so doing I am mindful of the Supreme Court's admonition that ultimately, "each case of alleged juror misconduct must turn on its own special facts." Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1172, 3 L.Ed.2d 1250 (1959) (per curiam); see also Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982) (O'Connor, J., concurring) ("each case must turn on its own facts ... except in some extreme situations"); Neron v. Tierney, 841 F.2d 1197, 1201 (1st Cir.1988) (`we have long acknowledged the case-specific nature of such explorations").

I.

On November 9, 1987, three current and four former members of the Boston Police Department were indicted for violations of federal anti-racketeering and anti-corruption laws. The fifty-seven count indictment charged the defendants with soliciting and accepting money and other things of value from certain bars and nightclubs in exchange for special services and help in avoiding certain licensing requirements.¹ Jury selection began on June 27, 1988, from a panel of approximately 150 jurors. The panel was first subjected to a general voir dire consisting of standard questions about their knowledge of any parties, lawyers, or witnesses in the case, exposure to any publicity about the case, and any strong feelings about or connection with law enforcement or licensing boards. Then the panel was given preliminary instructions about general principles of law applicable to criminal cases, including the presumption of innocence. The panel was advised that it was their duty to render a verdict based solely on the evidence. Other routine questions followed, including inquiries about any prior experience as jurors, any disabilities that might interfere with jury service, and whether anything might prevent them from serving for at least eight weeks, the expected duration of this case. Jurors who responded affirmatively to these inquiries were then questioned individually at sidebar outside the hearing of the rest of the panel.

Following this general screening, each juror was called into the lobby for an additional individual voir dire. The purpose of this voir dire was to address certain sensitive and particularly significant matters, most notably the homosexual clientele of some of the establishments involved in this case. The issue of alleged corruption in the Boston Police Department was also addressed. All seven defendants were present. Both defense and government counsel participated in the questioning. The media was invited to attend and remained present at least through the beginning of the inquiry. After some jurors were excused for cause as a result of this voir dire, a panel of thirty-eight was chosen randomly from those remaining. The parties consulted amongst themselves and exercised their peremptory challenges, selecting a panel of sixteen jurors. Counsel agreed that four of these jurors would be randomly designated as alternates before deliberations began.

After the jury was sworn and in accordance with my usual practice, I gave the jury preliminary instructions before counsel made their opening statements. Each juror was provided with a notebook and instructed on the taking and use of notes. I admonished them not to discuss the case among themselves or with others, and not to read, watch or listen to any media reports about the trial. Similar instructions were repeated from time to time throughout the trial, especially the instruction about media reports because of the significant publicity attending the trial. On several occasions, at the request of counsel, I asked the jury whether they had seen or read a particular newspaper or magazine article. The responses to these inquiries were negative. I was not asked to inquire about the specific magazine article which the defendants claim prejudiced the jury in this case, although I was informed of the article at a sidebar conference.

The trial lasted forty-seven days. The evidence consisted of the testimony of seventy-two witnesses and over 300 exhibits, including many audio and video tapes of meetings between some defendants and key government witnesses. The trial, while protracted and contentious, was not factually complex. In opening statements, defense counsel outlined the evidence they believed was forthcoming, and stated that it would demonstrate that the defendants merely accepted gifts or gratuities and were not bribed or involved in extorting payments. These conflicting theories were presented clearly, forcefully and consistently to the jury.

Each juror was present at every day of the trial, which continued day to day except for one holiday and one day when I was required to attend a meeting in Washington. The trial day began at 9:30 A.M. and concluded at 2:00 P.M. Pastries and beverages were provided daily to the jury during a late-morning break. The jury was attended by the same two experienced and capable court officers throughout the trial. Jurors entered and departed the courthouse by rear elevators not generally available for public access to the twelfth floor level. This regimen, it can be seen, placed the jurors in close and isolated daily contact with each other during the trial.

The jury received their final instructions on September 6, 1988. The four alternates were randomly chosen and the remaining twelve began their deliberations that afternoon. They deliberated for approximately thirty-five hours over five and one-half days. On their first day, they requested a list of the exhibits, copies of the indictment and charge, and a trial transcript.² They also requested an audio tape player and video cassette recorder and spent nearly an entire day reviewing tapes. While they were deliberating they also submitted several questions to the Court, including one about a confusing typographical error in the indictment which had escaped the attention of both the Court and all counsel, and another in which they sought to learn why a specific dollar amount was missing from Count 16.

On the fourth day of deliberations, a newspaper article was published about a speech made by the Chief of the Justice Department's New England Organized Crime Strike Force. The speech referred to the role certain criminal defense lawyers allegedly played in aiding their clients to identify and "silence" government informants. Although no lawyers were named, a reputed leader of organized crime was identified. This person had been previously represented by Anthony Cardinale, a lawyer representing a defendant in this case. The author of the story...