US v. Pelullo, Crim. A. No. 91-00060. Civ. A. No. 94-7266.

• Decision Date: 11 August 1995
• Docket Number: Crim. A. No. 91-00060. Civ. A. No. 94-7266.
• Citation: 895 F. Supp. 718
• Parties: UNITED STATES of America v. Leonard A. PELULLO. UNITED STATES of America v. Leonard A. PELULLO.
• Court: U.S. District Court — Eastern District of Pennsylvania

895 F. Supp. 718

UNITED STATES of America v. Leonard A. PELULLO.

UNITED STATES of America v. Leonard A. PELULLO.

Crim. A. No. 91-00060. Civ. A. No. 94-7266.

United States District Court, E.D. Pennsylvania.

August 8, 1995.

As Corrected August 11, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Ronald G. Cole, Frank A. Labor, III, Asst. U.S. Attys., Philadelphia, PA, for U.S.

Walter M. Phillips, Jr., Philadelphia, PA, W. Neil Eggleston, Howrey & Simon, Washington, DC, for Leonard A. Pelullo.

MEMORANDUM

ROBERT F. KELLY, District Judge.

On July 3, 1991, Defendant, Leonard Pelullo, was convicted of 49 counts of wire fraud and one count under the Racketeer Influenced and Corrupt Organization Act ("RICO"). On May 12, 1992, the Third Circuit Court of Appeals reversed Defendant's conviction on all counts except Count 54, which it affirmed, and remanded the case to this Court for re-trial. United States v. Pelullo, 964 F.2d 193 (3d Cir.1992). On January 11, 1993 Defendant was retried on 48 wire fraud counts and one RICO count. After a three week trial, the jury convicted Defendant on all counts. The Third Circuit, on January 24, 1994 reversed Defendant's second conviction. United States v. Pelullo 14 F.3d 881 (3d Cir.1994). On October 3, 1994 Defendant was retried on the 48 wire fraud counts and one RICO count. The jury failed to reach a verdict, and on October 25, 1994, this Court declared a mistrial. A fourth trial began on January 9, 1995 and resulted in Defendant's being convicted of 46 counts of wire fraud and one count under RICO.

Before the Court are: Defendant's Motion for a New Trial Based on Newly Discovered Evidence of Juror Misconduct; Defendant's Motion Pursuant to 28 U.S.C. § 2255 to Set Aside the Conviction of Count 54 and Dismiss the Indictment; Defendant's Motion for Judgment of Acquittal or For a New Trial; Defendant's Motion for the Production of Rough Notes of All Interviews; Defendant's Motion for the Production of Rough Notes of the Interviews of Arthur and Peter Pelullo, Jr.; and Defendant's Motion to Supplement his Motion on Juror Misconduct. For the reasons that follow, Defendant's Motions will be denied.

I. DEFENDANT'S MOTION AS TO JUROR MISCONDUCT

On March 28, 1995, Defendant filed a Motion for a New Trial or an Evidentiary Hearing based on Newly Discovered Evidence of Juror Misconduct pursuant to Rule 33 of the Federal Rules of Criminal Procedure. In this Motion, Defendant contends that he is entitled to a new trial because Juror 229¹ did not truthfully answer questions posed by the Court during voir dire. In the alternative, Defendant requests that this Court convene a hearing at which the Juror would testify concerning these matters. According to Defendant, the Juror's alleged failure to truthfully respond during voir dire prejudiced his right to a fair and impartial jury.

In his Motion, Defendant claims to have learned after trial that the brother-in-law of Juror 229, who was ultimately seated on the jury, is James Cattalo, a former police officer for the City of Philadelphia who was convicted of racketeering charges in the "Five Squad" trial. During voir dire, the panel was asked the following questions, to which Juror 229 did not respond: "Is any juror related to or closely associated with anyone employed by any law enforcement agency, including the FBI, local police?"; "Has any juror ever been related to, associated or connected with anyone who was involved in the defense of a criminal case? Whether as a witness, party or as an attorney who defended the matter?"; "Has any juror, relative or close friend ever been charged with a crime in any court, state, local or federal?" "Now, as to this, if any of you feel that you would rather give that response to me in private, you may do so at sidebar, at the end of this voir dire. Okay, do you understand. The question was, has any juror ever been related to, associated with or connected with anyone or charged with a crime in any court, state, local or federal?" 01/09/95 N.T. at 49-53. Defendant argues that Juror 229 should have responded to these questions, and her failure to do so prejudiced him from exercising his peremptory challenges.

In order to succeed on a Rule 33 motion based on juror misconduct, a defendant must show 1) that the evidence is newly discovered, in other words, that it has been discovered since the end of the trial and 2) that the defendant's failure to discover this information during trial is not the result of a lack of diligence. United States v. Bolinger, 837 F.2d 436, 438-439 (11th Cir.1988); United States v. Jones, 597 F.2d 485, 488 (5th Cir.1979); United States v. McKinney, 952 F.2d 333 (9th Cir.1991). "A defendant cannot learn of juror misconduct during the trial, gamble on a favorable verdict by remaining silent, and then complain in a post-verdict motion that the verdict was prejudicially influenced by that misconduct." United States v. Bolinger, 837 F.2d 436, 438-439 (11th Cir.1988), quoting, United States v. Jones, 597 F.2d 485, 488 (5th Cir.1979). This rationale is particularly pertinent to the matter at hand, as the Government has presented evidence contradicting Defendant's claim that this is newly discovered evidence.

There exists a great reluctance for courts to "haul jurors in after they have reached a verdict in order to probe for potential instances of bias misconduct or extraneous influences." United States v. Gilsenan, 949 F.2d 90, 97 (3d Cir.1991), quoting, United States v. Ianniello, 866 F.2d 540, 543 (2d Cir.1989). "Jurors who complete their service should rarely, if at all, be recalled for proceedings such as those appellants propose here. Evidentiary hearing to determine if the jury considered a newspaper account of the case. It is qualitatively a different thing to conduct a voir dire during an ongoing proceeding at which the jury is part of the adjudicative process than to recall a jury months or years later for that purpose." Gilsenan, 949 F.2d at 98.

Such caution is warranted because constant investigation into juror misconduct would "seriously disrupt the finality of the process" by encouraging the losing party to endlessly investigate every juror in the hope of finding some basis for disqualification, and thus a new trial. Tanner v. United States, 483 U.S. 107, 120, 107 S.Ct. 2739, 2747-48, 97 L.Ed.2d 90 (1987). The Supreme Court recognized in Tanner that, while "postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior, it is not at all clear, however, that the jury system could survive such efforts to perfect it." Id.

While bringing a juror in to be questioned may be an easy course for a court to take when confronted with this situation, the above-cited cases make it clear that this is not the first avenue that should be taken. This is especially true when the Government possesses evidence that the claims are not newly discovered, as is true in the matter at hand.

Therefore, by Order dated April 11, 1995, this Court ordered Defendant to file further evidence to support his allegation that this was newly discovered evidence.² By Order dated May 12, 1995, this Court found that, based on Defendant's filings, he failed to establish that the evidence was discovered after the conclusion of his trial, and thus scheduled a hearing at which Defendant would be given the opportunity to establish that the evidence concerning Juror 229 was newly discovered. The hearing occurred on June 5, 6, and 15, 1995.

Defendant argues that the hearing ordered by the Court was improper because the defense does not have a duty of due diligence. 06/05/95 N.T. at 7-8. For some unknown reason, Defendant interpreted his duty of due diligence as requiring his counsel to "go out and conduct an investigation into the background of jurors." Id. The law is clear that to be successful on a motion such as that filed by Defendant, it must be established that the failure to discover the evidence at an earlier time must not be the result of a lack of diligence on the defendant's part. United States v. McKinney, 952 F.2d 333 (9th Cir.1991); United States v. Bolinger, 837 F.2d 436, 438-439 (11th Cir. 1988); United States v. Jones, 597 F.2d 485, 488 (5th Cir.1979). Moreover, the duty of due diligence does not require that a defendant or his counsel "conduct an investigation into the background of jurors"³, but rather it requires a defendant or his counsel to investigate any matters brought to their attention concerning a juror, or at the very least to inform the court when information concerning juror misconduct is learned. Id.; United States v. Diaz-Albertini, 772 F.2d 654, 657 (10th Cir.1985).

Furthermore, the hearing was held in order to give Defendant yet another opportunity to present evidence that the information concerning Juror 229 was indeed newly discovered evidence. 06/05/95 N.T. at 7-9. The only evidence previously presented to the Court pertaining to this matter were the affidavits of Mr. Phillips, which were vague and only stated the general conclusion that counsel for Defendant did not learn of this information during trial. This evidence was insufficient for this Court to find that this information was newly discovered. The affidavits neither revealed the source of knowledge concerning the claims about Juror 229, nor stated the factual circumstances under which the source learned of this information. Moreover, the affidavits did not disclose the manner in which the information was revealed to the "defense team." In fact, Defendant's Motion did not even contain an affidavit from the source of the information, Defendant himself, or his other attorney concerning how and when this knowledge about Juror 229 was obtained. As such, a hearing was necessary to allow Defendant to show that the evidence was newly discovered and that the "defense team" acted with due diligence.

Defendant's...