The opinion of the court was delivered by: SHAW
This is a motion for a new trial pursuant to Rule 33. The defendant, Anthony Provenzano, was charged by grand jury indictment on November 15, 1960 with violation of 18 U.S.C. 1951. Trial by jury began on May 23, 1963 and was concluded on June 11, 1963 with a jury verdict of guilty. Defendant appealed and his conviction was affirmed. U.S. v. Provenzano, 334 F.2d 678 (3rd Cir. 1964). Cert. denied, 379 U.S. 947, 85 S. Ct. 440, 13 L. Ed. 2d 544. The mandate of the United States Court of Appeals was filed with the Clerk of this Court on December 31, 1964.
On January 4, 1965 defendant filed Notice of Motion in this court pursuant to Rule 33 seeking an order granting a new trial. On January 18, 1965 an amended Notice of Motion was filed. The relief sought is grounded upon allegations that a juror, Stephen J. Cassidy, Sr., was prejudiced against the defendant, Anthony Provenzano, and had failed to disclose the existence of such prejudice during examination on the voir dire. In connection with his application for a new trial, defendant also seeks to obtain an order of this court directing that inquiry be made by the United States Attorney as to the existence of additional evidence and information which might be material to the issue of defendant's guilt.
Nineteen affidavits were filed by defendant in support of his motion. Three of these affiants
subsequently furnished affidavits to the Government in which they retracted statements made in the affidavits filed by defendant with denial that such statements were made under oath. Eleven affidavits were filed by the Government in opposition to the motion including those of the three affiants who had retracted previous statements. Upon examination of the moving papers, the affidavits of the defendant and of the Government, the Court decided to hear the oral testimony of the affiants with direction that investigators employed on behalf of Provenzano be available for such inquiry as the Court deemed appropriate to determine the nature and scope of the investigation which had been undertaken. Pursuant thereto hearing was held.
At the time of the trial and for many years prior thereto the juror, Mr. Cassidy, was an employee of the Ford Motor Company and had been working at its plant in Mahwah, New Jersey since the time it was located there. He is a member of Local 906 UAW and has held various offices in the union. He was employed by the company as a cycle checker and, in connection with his employment, had occasion to visit the LCL dock (less than carload lot) where freight was handled. The dock was described as an area approximately 100 yards in length and 40 feet in width and would accommodate 18 trucks. There was an enclosed office located on the dock covering an area of approximately 20 feet X 30 feet. Within this enclosure several of the Ford Motor Company employees who are members of Local 906 have desks in close proximity to a desk occupied by Mr. Charles Giannone. Mr. Giannone had worked as a 'switcher' and was a member of the Teamsters Union Local 560, of which Mr. Provenzano has been and still is president.
Subsequent to his employment as a 'switcher', Mr. Giannone acquired an interest in the C & L Cartage Company and has conducted the business of that company on the same LCL dock. He still retains his membership in Teamsters Local 560.
It was on this LCL dock, both in the enclosed and outer area, where Mr. Giannone testified that he had from 200 to 250 arguments with Mr. Cassidy over a period of years prior to the Provenzano trial in which Mr. Cassidy expressed violent prejudice against Mr. Provenzano personally, the Teamsters and Mr. Hoffa. These arguments were alleged to have been loud and heated and to have taken place in the presence of a number of other employees of the Ford Motor Company who worked on the dock.
Mr. Bladen had held office in Local 906 UAW from time to time. He was president of this union while the Provenzano trial was in progress. At the present time he is employed as an international servicing representative of UAW working out of Detroit, Michigan. He stated that he had heard Mr. Cassidy express himself on approximately 100 occasions violently condemning the Teamsters, Provenzano and Mr. Hoffa.
As indicated above, the principal witnesses as to the volume of vituperative statements by Mr. Cassidy condemning Mr. Provenzano, Mr. Hoffa and the Teamsters union were Mr. Giannone and Mr. Bladen. According to the testimony of Mr. Giannone, Cassidy, among other things, characterized Provenzano as a 'racketeer', a 'gangster', a 'bum' and a 'bad labor leader.' In his testimony he stated, 'You name it. He called him.' This witness also testified that from time to time Mr. Cassidy would exhibit newspaper clippings and other literature containing derogatory comments about Mr. Provenzano, Mr. Hoffa and the Teamsters. Mr. Bladen testified that on the many occasions when he heard Mr. Cassidy express himself on the subject of the Teamsters union, he would refer to Mr. Provenzano, Mr. Hoffa and the Teamsters as 'crooks', 'racketeers' and 'gangsters.' Other epithets couched in obscene language were also included in the alleged expressions of Mr. Cassidy's opinion of Mr. Provenzano, Mr. Hoffa and the Teamsters.
If the testimony of these two witnesses is to be believed, it would follow that Mr. Cassidy suffered from an obsession on the subject of Mr. Hoffa, the Teamsters and Mr. Provenzano which bordered upon, if it did not amount to, hatred. He would, as the evidence discloses, be completely out of character on this one particular subject. He had no acquaintance with Mr. Provenzano and every witness who made any reference to his character or disposition described him as a quiet, mild-mannered, retiring man who was not inclined to be talkative or argumentative. There was also evidence that he was not inclined by disposition to be abusive or use obscene language.
In order to evaluate the probative value of the testimony of Mr. Bladen and Mr. Giannone, it is necessary to look to the sequence of events following the Provenzano trial, the framework of investigation out of which this evidence emerged, the motives that may have influenced it, and the degree to which there is credible corroboration.
It appeared from the affidavits filed and further developed at the hearing that a very extensive investigation had been conducted over a considerable period of time to discover evidence in support of a motion for a new trial. One of the investigators, Mr. Neidorf, testified that he had been employed to initiate an investigation as early as July of 1963 and that he had been conducting investigation intermittently since that month. The following excerpts from his testimony during the course of interrogation by the Court are quoted:
'Q. Mr. Neidorf, are you acquainted generally with the nature of the proceeding that is before the Court on a motion that was filed seeking a new trial on the ground of prejudice of a juror?
'Q. Mr. Neidorf, in connection with that, were you employed to conduct any investigation?
'Q. Can you tell the Court when you were first employed to initiate an investigation in this matter?
'A. Intermittently and not continuously by any means.'
He stated, however, in connection with alleged prejudice on the part of the juror, Cassidy, that he had only interviewed one witness, Mr. Charles Giannone, and that this interview took place on February 17, 1964. Upon further interrogation, it was developed that he had also interviewed the husband of another juror and had interviewed approximately 40 to 50 persons to investigate the background of a third juror.
Another investigator, James Scanzo, testified that he was employed on October 23, 1964 to conduct an investigation for the defendant. He interviewed fellow employees of the juror, Stephen Cassidy, and also conducted investigation in the neighborhood where Mr. Cassidy resided. He estimated the number of persons that he interviewed to be approximately 35 to 40 people. When it developed by interview that a person seemed to have knowledge of prejudice on the part of Mr. Cassidy and was willing to cooperate, arrangements were made for that person to visit the office of the defendant's attorney in New York City where further interview was conducted and affidavits prepared. Assistance in the conduct of this investigation was furnished by Mr. Giannone, Mr. Bladen and Mr. DeMarco. Mr. DeMarco holds the office of vice-president of UAW Local 906. He testified on behalf of the Government.
The affidavit of Henry G. Singer, trial and appellate counsel for Provenzano, was filed in support of this motion. He states in Paragraph 4:
'Towards the end of 1963 and during the early months of 1964, while the appeal in this case was pending before the United States Court of Appeals for the Third Circuit, I had several discussions with the defendant concerning some information furnished by a Teamster who was a member of the defendant's union, indicating possible prejudice on the part of the juror Cassidy against the defendant. As I recall, however, neither the informant nor the investigator whom we used, Leon Neidorf, was able to obtain corroboration of the information, and there did not seem to me to be any sufficient basis for initiating a motion for a new trial.' (Emphasis supplied)
The affidavit of Hyman L. Zoloto, present counsel, was also filed. He states in Paragraph 2 of his affidavit:
'My firm was retained by the defendant Anthony Provenzano in the latter part of July 1964 to represent him in connection with a petition for a writ of certiorari in this case to the United States Supreme Court. I thereafter had occasion early in August 1964 to meet with Leon Neidorf, an investigator for the defendant. Mr. Neidorf told me that he had interviewed one Charles Giannone, who was a member of the defendant's Teamsters Local 560, and that Giannone had stated that he had had many arguments with one of the jurors in this case, Stephen Cassidy, prior to the trial, in which Cassidy had made derogatory statements about the defendant. Mr. Neidorf further told me that Giannone could not furnish any corroboration of his statements, and that Giannone was a loyal supporter of the defendant. It was my opinion that Giannone's statements alone, without further corroboration, would not be a sufficient basis for proceeding with a motion for a new trial, and I was informed that Henry G. Singer, the defendant's trial attorney herein, had expressed a similar opinion.' (Emphasis supplied)
Mr. Giannone stated his age to be 29 and that he was in excellent physical condition. His appearance on the stand confirmed this. Mr. Cassidy's age was estimated at 50 and he was described as a frail man.
According to Mr. Giannone's testimony, Mr. Cassidy would constantly taunt and torment him about the Teamsters and on one occasion Giannone threatened to 'deck him.' He explained this expression by saying he intended to hit him. There was also testimony by Mr. Giannone that when he, Giannone, became angry, Mr. Cassidy would walk away. Mr. Giannone was generally described as aggressive, extremely argumentative and not inclined to have any patience with anyone who criticized Mr. Hoffa, the Teamsters or his friend, Mr. Provenzano, with whom he was personally acquainted. In fact, one witness, Stanley Bloom, described him as an 'argument center' and there was testimony to the effect that members of Local 906 UAW would 'needle him' on the subject of the Teamsters in order to get him aroused.
It is urged on behalf of the defendant on the basis of Mr. Giannone's testimony that Mr. Cassidy, a mild-mannered, retiring man not inclined to be talkative or argumentative, would come down to check on incoming freight that might be on Giannone's trailers two or three times a week and in each instance would provoke an argument by a most abusive characterization of Provenzano, the Teamsters and Mr. Hoffa. According to Mr. Giannone, this occurred two or three times a week over the period from 1959 until the time of the Provenzano trial in May of 1963. If believed, it would amount to constant and deliberate invitation of the wrath of Mr. Giannone up to the point of physical conflict.
Mr. Giannone continued his work in the LCL office on the dock during the period while the Provenzano trial was in progress. As far as can be determined from his testimony, he did not note the absence of Mr. Cassidy over that three week period and according to his testimony, he was not aware of the fact that Mr. Cassidy had been serving on the Provenzano jury during the trial.
There is evidence from which it may be inferred that the fact of Mr. Cassidy's jury service was known among members of Local 906 UAW working at the Ford plant while the trial was in progress. The witness, Orrie Helms, a friend of Mr. Giannone's, who testified on behalf of the defendant stated that he knew Mr. Giannone for at least eight years. He stated during the course of his testimony:
'Court: * * *. Did you know during the time of the Provenzano trial, and during the course of it and before the end of it, that Mr. Cassidy was serving as a juror?
'Witness: Well, I knew it, yes, because I knew from, you know, like people was talking about Cassidy was on this Provenzano jury.
'Court: Did these conversations occur when the trial was in progress?
'Witness: I did hear it once or maybe twice. I don't know, maybe three times. I did hear that Steve Cassidy was on the jury.'
There is also other evidence from which the inference may be drawn that it was generally known among personnel at the Ford Motor Company plant, acquainted with Mr. Cassidy, that he was absent from work because of jury service on the Provenzano jury. Mr. Giannone testified that he did not become aware of this fact until after the trial. It was then, according to his testimony, that he had his final violent argument with Cassidy because he had served on the jury and had voted for the conviction of Mr. Provenzano. The substance of Mr. Giannone's version of this argument is that he directed angry criticism against Mr. Cassidy because he did not disqualify himself from service on the jury. The witness, Mr. Bloom, foreman of the LCL dock testified that he overheard this argument and that, among other things, Giannone said to Cassidy, 'You are a hell of a union man to convict Tony Pro.'
'Q. When you learned he was a juror in the case did you communicate your knowledge about Mr. Cassidy's beliefs to Mr. Provenzano or anyone in the Teamster Local 560?
'A. On November or December of '63.
'Q. November or December '63?
'Q. Five or six months after the trial was over.
'Q. Prior to November or December of '63 did you ever -- you knew Mr. Provenzano personally, didn't you?
'Q. Did you ever go to Mr. Provenzano and tell him about what you knew of Mr. Cassidy prior to November or December of '63?
'Q. Whom did you speak with in connection with the Teamster Local 560 to communicate these thoughts?
'Q. And under what circumstances did you meet Mr. Briguglio? Where did you meet him?
'A. I went down -- I didn't go down for that purpose. I went down for the purpose of a union problem, whatever the problem was at that time.
'Q. And this came up later?
'A. As we were talking about the Provenzano case, yes.
'Q. Almost incidentally you mentioned to Mr. Briguglio what you knew about Mr. Cassidy?
According to the affidavit filed by Mr. Briguglio he is a business agent of Local 560. Apparently the information furnished to him by Mr. Giannone during November or December of 1963 did not excite immediate attention despite the fact that investigation had been initiated by retention of the investigator, Mr. Neidorf, as early as July, 1963. According to Briguglio's affidavit, Mr. Giannone told him that he had met with Leon Neidorf, Provenzano's investigator, some time in the latter part of February or early March, 1964. Mr. Giannone's testimony on this is quoted as follows:
'Q. After you met with Mr. Briguglio and advised him of your knowledge of Mr. Cassidy's supposed bias, what happened next? What did Mr. Briguglio say to you?
'A. He asked me if I would be willing to tell my story to an investigator and I said I would.
'A. In February of '64 a Mr. Neidorf came to me.
Reference is made again to Paragraph 4 of the affidavit of Henry G. Singer, trial and appellate counsel for Provenzano. His statement does not indicate that he was particularly impressed with whatever Mr. Neidorf learned from his interview with Mr. Giannone. Mr. Singer refers to some information '* * * indicating possible prejudice on the part of the juror Cassidy against the defendant.' (Emphasis supplied) This appraisal of the information furnished by Mr. Giannone during February, 1964 does not indicate that Mr. Singer was then apprised of testimony which Mr. Giannone could offer such as was adduced at this hearing.
Thereafter we find another substantial lapse of time before anything further was done. It was in the Fall of 1964 that Mr. Giannone received a call from Mr. Briguglio as a result of which Mr. Giannone went to Mr. Zoloto's office in New York.
After the Notice of Motion for a new trial was filed agents of the Federal Bureau of Investigation attempted to interrogate Mr. Giannone as to what he knew about the Cassidy matter. He admitted that he refused to discuss it and also admitted that he had told the agents that he was doing so upon advice. When questioned during ...