ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (Crim. No. 73-00324)
Before Seitz, Chief Judge, Adams and Weis, Circuit Judges.
Nelson Gross appeals for the second time the district court's denial of a writ of coram nobis. In the first appeal, we vacated the order of the trial court and remanded for a full evidentiary hearing on Gross's allegations of misconduct on the part of government marshals in their dealings with a sequestered jury.*fn1 After an extensive hearing the district judge found that a deputy marshal had acted improperly, but that his behavior was neither of such character nor of such magnitude as to justify issuance of the writ. We now affirm.
The purported evidence of improprieties was discovered more than two years after the affirmance of Gross's conviction*fn2 and after his sentence had been served and his parole supervision terminated.*fn3 Consequently, relief under Fed.R.Crim.P. 33 or under habeas corpus, 28 U.S.C. § 2255, was not available.
The bases for the petition for writ of coram nobis were statements in an affidavit of Leon Stacey, a former Deputy United States Marshal. Stacey alleged that, while assigned to guard the sequestered jurors, he developed during the first week of the trial a romantic involvement with one of the female jurors which continued until shortly after the trial ended. He further alleged that in the course of his "romancing" he sought to influence her verdict by telling her that the defendant would, if convicted, receive no more than a fine. Two other marshals were claimed to have competed for the affections of another juror and to have attempted similar influence.
At the first hearing on the petition, the district court heard testimony in camera from Stacey, from the current marshal, and from the stenographer employed in preparing the affidavit. The court determined that the manner in which the affidavit was prepared raised doubts as to its credibility,*fn4 that Stacey's motives were suspect,*fn5 and "that all allegations of misconduct during the pendency of the trial (were) false."*fn6
On the first appeal we concluded that a more extensive hearing was necessary because the district court should not have assumed that once it had "discredit(ed) Stacey's allegations regarding frequent instances of prolonged romantic encounters between himself and a female juror, similar "trysts' between Marshal Service officers and another female juror, and instances in which he attempted to influence directly the juror's deliberations on Gross's guilt or innocence, there was no necessity for further judicial inquiry into this case." We held that "inasmuch as there was other evidence offered here suggesting romantic involvement between sequestered jurors and the officers of the court assigned to supervise their sequestration, a full evidentiary hearing on the issue of juror prejudice was in order." United States v. Gross, No. 78-1360, slip op. at 5 (3d Cir. Nov. 6, 1978), order reported at 558 F.2d 824.
At the hearing held pursuant to our remand, testimony was adduced from sixteen witnesses, including five jurors, two deputy marshals, the chief deputy marshal, the former marshal, a deputy clerk who had been a matron assigned to the jury, two FBI agents who had participated in an investigation of the Marshal's office, and four other witnesses. Each relevant witness denied that he or she had heard or observed any discussions relating to the Gross trial between any deputy marshal and any juror.
After hearing much contradictory testimony the trial judge concluded that Stacey's story was substantially fabricated, although there was at least this kernel of truth:
The forelady of the Gross jury testified that Stacey had annoyed certain female members of the jury. A matron assigned to the jury testified that Stacey mentioned his romantic interest in a certain juror.
The forelady believed the matter had been reported to the Trial Judge and that Stacey had been removed on account of his behavior. The matron testified that she reported Stacey to the United States Marshal. In fact nothing was reported to the Trial Judge, however, several witnesses confirmed that Stacey had been reported to the Marshal. The Marshal denied knowing about it, while several Deputy Marshals testified that they heard him verbally order Stacey off the Gross jury.
Because the trial judge is completely competent to sift through testimony and make credibility determinations, and because his findings are not clearly erroneous, we decline the petitioner's invitation to make our own findings of fact. The legal question we must therefore decide is whether the behavior found to have occurred requires the conclusion that Gross should have been granted the writ of coram nobis. To focus this legal issue more clearly, it is whether the annoyance of some jurors by a deputy marshal and his expression of romantic interest in a specific juror is a sufficient taint on the proceedings to require coram nobis relief.
The interest in finality of judgments dictates that the standard for a successful collateral attack on a conviction be more stringent than the standard applicable on a direct appeal. Behavior that might clearly require a mistrial if brought to the district court's attention at trial, or a retrial ...