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June 3, 1987

United States of America, Plaintiff
Giacomo Dinorscio, Gerald Cohen, Manuel Monteiro, Gerald De Luca, Thomas Marino, Dick Pearson, John Sinico, Frank Suppa, Vincent Di Pasquale and Anthony Truglia, Defendants

The opinion of the court was delivered by: BARRY


 It is an unhappy fact of life, but fact it be, that motions for new trials pressing juror irregularities, such as are now before me, are being brought with increasing frequency in the federal courts.

 Without pausing to speculate as to the reasons underlying that fact, it is at least fair to say that disappointed defendants serving lengthy terms of incarceration will quite understandably use every weapon at their disposal to set aside their convictions. *fn1" One of those weapons, these defendants appear to believe, is case law which they read to mandate that at their say-so - without reference to the quality or lack thereof of the purported irregularity; without reference to the circumstances of how that irregularity came to the court, and from whom; and without reference to the trial record - they have the right to a hearing and quite probably to a new trial.

 But it is settled law that the decision as to what is prejudicial to a fair trial when issues of juror irregularities are raised is a matter that must, to a large extent, be left to the discretion of the trial judge. See, e.g., Mattox v. United States, 146 U.S. 140, 147, 36 L. Ed. 917, 13 S. Ct. 50 (1892). That discretion comprehends not only the ultimate determination of prejudice, but also the preliminary decision as to the nature and scope of hearings, if any, to be conducted on such issues. Government of the Virgin Islands v. Dowling, 814 F.2d 134, 137 (3d Cir. 1987); Tillman v. United States, 406 F.2d 930, 938 (5th Cir.), remanded on other grounds, 395 U.S. 830, 23 L. Ed. 2d 742, 89 S. Ct. 2143 (1969).

 Courts are and should be hesitant to haul jurors in after they have reached a verdict in order to probe for potential instances of bias, misconduct or extraneous influences. As the Court of Appeals for the Second Circuit explained in United States v. Moten, 582 F.2d 654, 666-67 (2d Cir. 1978), and again in United States v. Sun Myung Moon, 718 F.2d 1210, 1234 (2d Cir. 1983) cert. denied, 466 U.S. 971, 80 L. Ed. 2d 818, 104 S. Ct. 2344 (1984), a trial court is required to hold a post-trial hearing only when reasonable grounds for investigation exist. Reasonable grounds are present when there is clear, strong, substantial and incontrovertible evidence that a specific, nonspeculative impropriety has occurred which could have prejudiced the trial of a defendant. King v. United States, 576 F.2d 432, 438 (2d Cir.), cert. denied, 439 U.S. 850, 58 L. Ed. 2d 154, 99 S. Ct. 155 (1978).

 "It is perfectly plain that the jury room must be kept free of evidence not received during trial, and that its presence, if prejudicial, will vitiate the verdict." Government of the Virgin Islands v. Joseph, 685 F.2d 857, 863 (3d Cir. 1982), quoting Dallago v. United States, 138 U.S. App. D.C. 276, 427 F.2d 546, 553 (D.C. Cir. 1969) (footnotes and citations omitted) (emphasis supplied). If there is reason to believe that jurors have been exposed to prejudicial information, the trial judge is obliged to investigate the effect of that exposure on the outcome of the trial. United States v. Vento, 533 F.2d 838, 869 (3d Cir. 1976). In Dowling, supra, 814 F.2d at 139, while addressing the trial court's failure to adequately evaluate potential prejudice during trial, the Court of Appeals for the Third Circuit stated that "in every case where the trial court learns that a member or members of the jury may have received extra-record information with a potential for substantial prejudice, the trial court must determine whether the members of the jury have been prejudiced." (emphasis supplied).

 There is, however, no obligation for the judge to conduct an investigation where no foundation has been established. United States v. Vento, supra, 533 F.2d at 869-70. Stated somewhat differently, it is clear that a hearing is not held to afford a convicted defendant the opportunity to conduct a fishing expedition. United States v. Moten, supra, 582 F.2d at 667.

 What also becomes clear from an analysis of the host of cases that address juror irregularities is that extreme care must be taken in assessing the precedential value of particular holdings and of apparently pertinent language contained therein. The considerations found controlling in one case involving an infiltration of extra record facts concerning a defendant on trial are not necessarily controlling in another case involving such infiltration. And the considerations found controlling in cases involving coercion of jurors either by fellow jurors or by third parties are not necessarily compelling, or, indeed, even applicable in a case, as here, where no such allegations are made. As the Court of Appeals for the Third Circuit has regularly noted, the citation of apparently pertinent language does not rise to the level of black letter law. United States v. Berrigan, 482 F.2d 171, 174 (3d Cir. 1973); United States v. Malinowski, 472 F.2d 850, 854, n.4, (3d Cir.), cert. denied, 411 U.S. 970, 36 L. Ed. 2d 693, 93 S. Ct. 2164 (1973). And although the circumstances in the decided cases are instructive, the circumstances of each case are sui generis.

 A more careful analysis of the facts and the law than the defendants are willing to undertake is required. Analysis of all that is before me - how this application came to be, what it came to say, and how it must be viewed in light of the record of this case and controlling legal principles applicable to juror irregularities - leads irresistibly to the plain and simple conclusion that defendants' motion for a new trial should be denied, and denied without a hearing. Indeed, to rule that even a hearing is required on the paltry submission made to me would render nugatory the sound policy of protecting jurors from post verdict harassment and inquiry and would encourage, in other cases, attempts to tamper with jury verdicts.

 The suspect nature of this application is first evidenced by the event which allegedly triggered the defense investigation into one juror and the cast of characters who participated thereafter. *fn2" According to paragraph 4 of the motion for a new trial, on November 17th, 1986, one Donna Nave, a friend of defendant Cohen's wife, accompanied Mrs. Cohen to the sentencing of defendants DiNorscio and Cohen. Ms. Nave on that date "recognized [the juror's] name", an incredible assertion given that no juror's name was mentioned at sentencing. Ms. Nave, paragraph 4 continues, knows the juror's daughter, who told Ms. Nave that her mother "was" a juror in federal court in Newark. It was thereafter "determined" that one James Papeika lives in a two family house on the floor above the juror, and an "investigation" was undertaken.

 Evidence of the suspect nature of this application continues to mount as one takes a look at the source of the purported jury influence, a revealing step often considered in evaluating possible prejudice. United States v. Armstrong, 654 F.2d 1328, 1332-33 (9th Cir. 1981), cert. denied, 454 U.S. 1157, 71 L. Ed. 2d 315, 102 S. Ct. 1032 (1982); see also United States v. Jones, 707 F.2d 1169, 1173 (10th Cir.), cert. denied, 464 U.S. 859, 78 L. Ed. 2d 163, 104 S. Ct. 184 (1983); United States v. Hendrix, 549 F.2d 1225, 1227-28 (9th Cir.), cert. denied, 434 U.S. 818, 54 L. Ed. 2d 74, 98 S. Ct. 58 (1977).

 Papeika responded that he had had "a little conversation" with the juror. Id. at 6. Asked by Policastro if he would be willing to tell this to DiNorscio's attorney, Papeika said that he would think about it but did not know if he wanted to get involved. Id. He later met with counsel for DiNorscio and Cohen, had a "conversation", and agreed to meet again at which time he would give a formal statement. It is that statement, presented in Q and A format, with questions framed and posed by ...

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