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UNITED STATES v. GROSS

February 23, 1978

UNITED STATES of America, Plaintiff,
v.
Nelson G. GROSS, Defendant



The opinion of the court was delivered by: WHIPPLE

 This matter is before the Court on defendant's motion for a new trial pursuant to Rule 33, Fed.R.Crim.P., or alternatively, for an order setting aside the verdict by granting defendant's petition for a Writ of Error Coram Nobis. Concomitantly, the defendant seeks the right to investigate and interview the members of the Gross jury, and to have this Court conduct a full evidentiary hearing into alleged juror misconduct during the pendency of the trial. Defendant's application is based almost entirely on the allegations of one Leon H. Stacey, a former Deputy United States Marshal. This Court, having had the benefit of argument on the cause, as well as having carefully considered the various legal memoranda submitted by the parties, and reviewing the testimony presented, is of the opinion that defendant's claim for relief must be denied, as defendant has shown no basis in fact or law to support granting the relief sought.

 A STATEMENT OF THE FACTS UNDERLYING THIS CLAIM FOR RELIEF

 On March 29, 1974, (following a four week trial), a jury of twelve men and women returned a verdict of guilty to all counts of the five count indictment against Nelson Gross. The defendant was found guilty of conspiracy to defraud the United States, aiding and assisting the filing of a false income tax return, obstruction of justice, and subornation of perjury. United States v. Gross, 375 F. Supp. 971 (D.N.J.1974), aff'd, 511 F.2d 910 (3rd Cir.), cert. denied, 423 U.S. 924, 96 S. Ct. 266, 46 L. Ed. 2d 249 (1975). Due to the highly publicized nature of the case, the jury had been sequestered during the entire pendency of the trial. *fn1"

 In June of 1974, the defendant was sentenced pursuant to 18 U.S.C. § 4208(a)(2) to a term of imprisonment of two years, and was fined an aggregate of $10,000. United States v. Gross, supra.

 In November of 1975, the defendant filed a motion pursuant to Rule 35, Fed.R.Crim.P., seeking a reduction of the sentence theretofore imposed. By order of this Court filed May 13, 1976, defendant's motion was denied. Subsequently, on June 10, 1976, he renewed his Rule 35 motion, and sought alternative relief pursuant to 28 U.S.C. § 2255, claiming that the original sentence was illegal. On September 23, 1976, this Court reassessed that portion of Mr. Gross' sentence involving incarceration and reduced the term of imprisonment to one year and one day.

 In conformity with present Parole Guidelines, the defendant was released from federal custody on December 10, 1976, having served five months of his sentence. On June 1, 1977, Mr. Gross' period of supervision on parole was terminated.

 FACTUAL BASES FOR THE PRESENT MOTION

 Nelson Gross alleges that he first became aware of purported juror misconduct during the pendency of his trial when he was contacted by former Deputy Marshal Leon Stacey. A meeting was subsequently arranged between Nelson Gross, his father, Mr. Albert Gross, and Mr. Stacey, at which time the substance of the allegations was developed. The motion presently under consideration is a direct result of the meeting between the Gross' and Mr. Stacey.

 The affidavit of former Deputy Marshal Leon Stacey was submitted in support of the motion for a new trial. Mr. Stacey was employed by the United States Marshal Service from 1971 through 1976, at which time he tendered his resignation. Throughout the course of his employment as a Deputy Marshal, Mr. Stacey was assigned to the Newark, New Jersey office.

 Mr. Stacey alleges that during the first week of the Gross trial, he was assigned to guard the sequestered jurors, and that he continued on this duty for approximately three weeks thereafter. (Stacey aff., para. 4). Mr. Stacey contends that he was at the duty site *fn2" from 7:00 a.m. to 7:00 p.m., seven days a week. It was during this assignment at the Coachman Inn that Mr. Stacey purportedly developed a close personal relationship with one of the female jurors. *fn3" The affiant further alleged, that in addition to private trysts with the juror at the motel site, the relationship was also fostered during frequent court house rendezvous during the last ten days of the Gross trial. (Stacey aff., para. 8).

 Lastly, Mr. Stacey maintained that Deputy Marshals Cosmo Alagna and Samuel Cicchino also participated in these court house and motel meetings, as they had become friendly with another female juror serving on the Gross trial. The affiant states that the relationships developed during the trial continued on at least two post-trial occasions. In support of this allegation, Mr. Stacey alleges that he hosted a Saturday afternoon party with the two female jurors and Deputy Marshal Cicchino at his apartment in Carteret, New Jersey. The illicit relations alluded to in Mr. Stacey's affidavit purportedly occurred at this time. *fn4"

 The motion presently before this Court was filed by Nelson Gross in sole reliance on the allegations of Mr. Stacey as recounted during a motel meeting between Leon Stacey, Nelson Gross and Albert Gross.

 At the initial hearing on the cause, *fn5" the government stated that in order to determine the truth of the allegations upon which this motion is based, it was amenable to a limited hearing, wherein Mr. Stacey would be called to testify. However, at that time, the government specifically reserved its right to challenge the jurisdictional basis of the proceeding. *fn6" Recognizing its inherent duty to protect and uphold the integrity of the judicial process, and fully aware of the gravity and potential import of Mr. Stacey's allegations, this Court determined that an in camera proceeding was required. However, the Court ruled that this hearing would initially be limited to a judicial inquiry into the veracity of Mr. Stacey's allegations.

 Following a complete examination of the affiant, Leon Stacey, the government moved to dismiss, maintaining that this Court lacks the requisite jurisdiction to grant the requested relief. Alternatively, the government seeks dismissal on the grounds that there is no credible evidence to justify further proceedings in this matter. As the government's motion is directly related to the substance of Mr. Gross' motion for new trial, the Court's ruling is equally applicable to all motions pending before it.

 ALTHOUGH NOT ALL AVENUES OF REVIEW ARE AVAILABLE TO THIS DEFENDANT, THIS COURT DOES HAVE JURISDICTION OVER THE MATTER

 A Petition for a Writ of Error Coram Nobis Is a Proper Procedure to Obtain the Requested Relief

 The Writ of Error Coram Nobis was designed to provide a vehicle whereby the courts can rectify a potential injustice caused by an error in fact which rendered the initial proceeding irregular and invalid. United States v. Cariola, 323 F.2d 180, 184 (3d Cir. 1963). In practical effect, the writ is rarely utilized in federal courts and the burden rests on the petitioner to show that a factual error existed such that, if known, would likely have achieved a contrary result. However, the Supreme Court has determined that by virtue of the all writs statute, 28 U.S.C. § 1651, the federal courts are empowered with the requisite jurisdiction to grant relief in the nature of coram nobis. United States v. Morgan, 346 U.S. 502, 511, 74 S. Ct. 247, 98 L. Ed. 248 (1954).

 In the instant case, Mr. Nelson Gross is no longer in federal custody. Consequently, he is unable to invoke the provisions of 28 U.S.C. § 2255. Parker v. Ellis, 362 U.S. 574, 80 S. Ct. 909, 4 L. Ed. 2d 963 (1960). Thus, when the petitioner is no longer incarcerated, the proper vehicle to attack an improper conviction is the writ of error coram nobis. United States v. Russo, 358 F. Supp. 436 (D.N.J.1973); United States v. National Dairy Products Corp., 313 F. Supp. 534 (W.D.Mo.1970).

 In order to establish a right to coram nobis relief, the defendant must allege, on the face of the petition, facts sufficient to show that an error of a fundamental nature existed, which factual error rendered the prior proceeding irregular or invalid. Additionally, the defendant bears the burden of showing that coram nobis relief is required in the interests of justice. Tinkoff v. United States, 129 F.2d 21, 23 (7th Cir. 1942); United States v. Russo, supra. Successful petitions for issuance of a writ of error coram nobis have involved such fundamental defects as deprivation of counsel and the inability of a defendant to exercise his fifth amendment privilege against self incrimination. United States v. Morgan, supra; United States v. Russo, supra.

 If true, the allegations upon which the present motion is found present factual matters which conceivably may have affected the outcome of the trial. Therefore, it is the considered opinion of this Court that the alleged misconduct is of such a grave and fundamental nature that the initial proceeding may have been tainted. In arriving at this decision, this Court is mindful of a Supreme Court decision which held that juror misconduct is not the type of fundamental error which necessitates issuance of the writ. United States v. Mayer, 235 U.S. 55, 35 S. Ct. 16, 59 L. Ed. 129 (1914). *fn7" However, Mayer is distinguishable in that it dealt with a situation wherein a juror allegedly lied and concealed a bias against the defendant during the course of voir dire examination. By contrast, the instant case involves possible prejudicial communications and contact with an officer of the Court. Accordingly, Mayer is not controlling, and this Court is empowered with the requisite jurisdiction to determine whether the factual allegations warrant issuance of the writ.

 This Court is Jurisdictionally Barred From Providing the Relief Sought Pursuant to Rule 33, ...


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