US v. Piccarreto, Cr. No. 87-177L.

• Decision Date: 12 June 1989
• Docket Number: Cr. No. 87-177L.
• Citation: 718 F. Supp. 1088
• Parties: UNITED STATES of America, Plaintiff, v. Loren PICCARRETO, Joseph Geniola a/k/a "Joe G", Joseph LoDolce a/k/a "Joe Lo" Defendants.
• Court: U.S. District Court — Western District of New York

718 F. Supp. 1088

UNITED STATES of America, Plaintiff, v. Loren PICCARRETO, Joseph Geniola a/k/a "Joe G", Joseph LoDolce a/k/a "Joe Lo" Defendants.

Cr. No. 87-177L.

United States District Court, W.D. New York.

June 12, 1989.

Anthony Bruce and Gregory West, Sp. Attys., Rochester, N.Y., for plaintiff.

Harold Boreanaz, Buffalo, N.Y., Anthony Leonardo, Jr., William A. Muoio, and Richard A. Miller, Rochester, N.Y., for defendants.

LARIMER, District Judge.

Defendants filed written motions for a new trial, Fed.R.Crim.P. 33, or in the alternative, for a hearing concerning certain alleged juror misconduct. Defendant Joseph LoDolce filed a written motion on April 27, 1989 and defendants Joseph Geniola and Loren Piccarreto sent written letter-memoranda to the Court which were also filed on April 27, 1989. The Government, by memorandum filed May 2, 1989, opposed the motions.

On May 9, 1989, defendant LoDolce advised the Court that he was discharging attorney William Muoio and on that day I entered an order confirming that fact. LoDolce obtained new counsel, Richard A. Miller, Esq., who entered his appearance on May 16, 1989. The Court granted Miller and other counsel until June 2, 1989 within which to submit additional papers on the motions.

On June 9, 1989, LoDolce advised the Court that he wanted to withdraw the motion for a new trial filed by his former attorney because he did not want a new trial. The Court granted that motion. This decision deals with the motions for a new trial or for a hearing filed by defendants Geniola and Piccarreto.

Based on my review of the evidence submitted on these motions, my conversations with the jurors, my assessment concerning their credibility, and my observation of the jury's requests during deliberations, I am convinced that there is no basis to overturn the verdict or to conduct further inquiry.

We expect much from jurors in a case of this length and complexity. The jurors were compelled to abandon their normal routine and employment and serve for over two months. Now their deliberations have been subjected to public scrutiny. In my view, this jury worked diligently, conscientiously and honorably to arrive at a verdict. In my view, there is no basis to overturn that considered judgment.

PROCEDURAL BACKGROUND

Trial in this case commenced on October 31, 1988 before a jury and six alternate jurors and continued for two months until December 20, 1988 when the jury retired to deliberate. The jury deliberated for seven days and returned a verdict on December 29, 1988.

During the course of deliberations the jury sent out approximately thirty-nine separate notes requesting additional instructions, the reading of testimony and the playing of tapes received in evidence. Specifically, the jury requested testimony be read back on five separate occasions; they requested that tapes be replayed approximately fourteen times and they requested instructions on various legal matters approximately thirteen times.

On March 3, 1989, just prior to sentencing and over two months after the verdict, the Court received a seven-page handwritten letter (Exhibit 1) from one of the alternate jurors, denominated here as Juror No. 13. (To protect the identity and privacy of the jurors, the Court has established a number code Exhibit 9 to identify the jurors.)

Juror No. 13 stated in the first sentence that the letter was written "on behalf of Mr. Joseph LoDolce." The juror set forth his¹ view of some of the evidence and his opinion that LoDolce should have been acquitted of the charges. The bulk of the letter related to the juror's protestations concerning LoDolce's innocence.

At the end of the letter, the juror noted that one of the other jurors, Juror No. 24, had "discussed the trial" with other jurors during the course of the trial and that Juror 24 told him during the trial that Juror 24 "knew they did it and that we would just have to sit through the trial until the end."

In order to establish the authenticity of the letter, the circumstances surrounding its issuance and to explore the matters relating to juror conduct, I questioned Juror No. 13 in my chambers on the record on March 8, 1989.

At that meeting, I discovered that the juror had spoken with William Muoio, Esq., counsel for LoDolce, approximately five times on the telephone and once in person after the verdict and prior to March 3, 1989 when I received the juror's letter. The juror advised the Court that he was upset about the verdict and he initiated the call to Muoio. The juror told Muoio that he was not happy with the verdict and asked "if there's anything I can do to help." (Tr. March 8, 1989, p. 15). Muoio advised the juror to write to the Court with his concerns.

The juror's letter reflects his great interest and concern — not for all three defendants — but only for Joseph LoDolce. The letter concludes with the statement that "my mind will not rest until I feel I have tried everything that I could to help this man." (Exhibit 1, p. 7).

The next day, March 9, 1989, I met with all counsel and advised them about the letter and my meeting with Juror No. 13. I told all counsel that I would provide them with unredacted copies of the letter and the transcript of my conversation with Juror No. 13 and would await counsels' suggestions as to what should be done. (Tr. March 9, 1989, pp. 4-5). I directed counsel not to publicly discuss the matter or contact any juror until further order of the Court.

Between March 9 and April 13, 1989, the Court interviewed three other jurors and met with counsel on three other occasions to discuss the matter. Especially at the meeting of April 13, 1989, I discussed at length my opinion that there was not such grave misconduct or juror bias to warrant a new trial.

Counsel were given an opportunity to make written applications concerning the matter and these motions followed.

DISCUSSION

The trial court has wide discretion in determining how to pursue a post-verdict jury inquiry. United States v. Calbas, 821 F.2d 887, 896 (2d Cir.1987); United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983).

Throughout this trial, there has been extensive publicity which continues unabated during the post-verdict phase. In view of Fed.R.Evid. 606(b), and to protect the jurors from being harassed and intimidated, I felt it necessary to see that all post-trial investigation of jurors be conducted under my direct supervision. See United States v. Moten, 582 F.2d 654, 665 (2d Cir.1978), citing, Miller v. United States, 403 F.2d 77, 82-83 (2d Cir.1968). Counsel was advised of the Court's intentions at all stages of the proceedings and all counsel were allowed to make suggestions and to submit questions to the Court for consideration when questioning jurors. The Court believes very strongly that this proceeding should not become an adversarial proceeding which intrudes into the jury's deliberations. See Calbas, 821 F.2d at 896.

Courts should be reluctant to "haul jurors in" after they have rendered a verdict and probe for potential instances of bias, misconduct or extraneous influences. These unnecessary post-verdict inquiries may lead to "evil consequences: subjecting juries to harassment, inhibiting jury room deliberation, burdening courts with meritless applications, increasing temptations for jury tampering and creating uncertainty in jury verdicts." United States v. Ianniello, 866 F.2d 540, 543 (2d Cir.1989).

At the outset, all counsel conceded — as they must — that a post-verdict inquiry into the validity of a jury verdict is drastically limited because of the scope of Rule 606(b). That rule prohibits any juror from testifying as to "any matter or statement" occurring during the course of the jury's deliberations, or to "the effect of anything upon that juror's mind or emotions as influencing his verdict" or concerning the juror's "mental processes." The juror may only testify as to whether "extraneous prejudicial information" was improperly brought to the juror's attention.

Rule 606(b) embodies the longstanding common law rule prohibiting the admission of juror testimony to impeach a jury verdict except where there is an allegation that there was an "extraneous influence" on the jury. Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 2745-46, 97 L.Ed.2d 90 (1987).

This rule is supported by substantial policy considerations, including the need to assure full and frank discussion in the privacy of the jury room, to prevent the harassment of jurors by losing parties, and to preserve the community's trust in a system that relies on the decisions of lay people. Tanner, 107 S.Ct. at 2749-50.

In Tanner the Supreme Court discussed the real danger in allowing extensive post-verdict inquiries into the bases for the jury's verdict.

"it is not at all clear, however, that the jury system could survive such efforts to perfect it. Allegations of juror misconduct, incompetency, or inattentiveness, raised for the first time days, weeks, or months after the verdict seriously disrupt the finality of the process.... Moreover, full and frank discussion in the jury room, jurors' willingness to return an unpopular verdict, and the community trust in a system that relies on the decision of laypeople would all be undermined by a barrage of post verdict scrutiny of juror conduct.

Tanner, 107 S.Ct. at 2747-48.

Therefore, Rule 606(b), as it has been interpreted, prevents any inquiry into or critique of the jury's deliberative process unless there is evidence of some extraneous prejudicial information that was put before the jury.

It is clear that the case before me does not involve a situation where "extraneous" information was put before the jury. There is no evidence of that.

Mr. Muoio's motion papers refer (p. 4) to the fact that when he met privately with Juror 13 in January 1989, the juror claimed that Juror 24 had uttered derogatory ethnic remarks....