The opinion of the court was delivered by: GERRY
This unique case arises from the aftermath of a complex, multidefendant prosecution involving conspiracy to distribute and possession with intent to distribute cocaine under 21 U.S.C. § 846. From an original indictment naming fifty defendants, seven ultimately chose not to plead guilty and were tried together in this court. After a protracted trial, the jury returned a verdict convicting five of the seven defendants, and finding one not guilty. As to the seventh defendant, George Pepe, the jury was unable to reach a decision. The court then granted a mistrial as to that defendant.
Several weeks after the trial, some of the convicted defendants filed motions alleging that Pepe had engaged in improper communications with one of the jurors in the trial, a woman named Patricia Hand. In response to these motions the court conducted an evidentiary hearing during which Hand, numerous jurors, and others testified. The court did not at that time permit the questioning of jurors regarding events within the jury deliberation room. From the testimony at the hearing, it became clear that there had indeed been contact between defendant Pepe and juror Hand at or about the time the jury was deliberating.
According to one witness at the hearing, Cathy Helen Mary Becker, a waitress at a restaurant near the courthouse, Hand had engaged her in conversation one day in the restaurant about one of the defendants in the trial. This defendant turned out to be George Pepe. Becker testified that Hand had given Becker a note, asking her to deliver it to Pepe. The note, according to Becker, said "something to the effect that I'm in your corner and I'm rooting for you," and contained Hand's telephone number. (Tr. at 239). After mistakenly attempting to deliver the note to one of the other defendants, Becker said, she finally gave the note to Pepe when he came into the restaurant and identified himself to her.
The next step in this affair occurred when Pepe placed flowers in the door handle of Hand's gray Saab (although she usually drove a red Porsche to court), which was parked in a lot near the courthouse. As is polite when leaving flowers for a lady, there was also a note with the words "a friend" tastefully inscribed. The flowers were followed by an evening telephone call from Pepe to Hand during which, Hand testified, Pepe asked her "how he was doing," (Tr. at 62) and asked if he could meet Hand somewhere. (Tr. at 64). Hand stated she refused to meet with Pepe.
In addition to the above, Hand also testified that she was not the one to first make contact with Pepe, but that she only asked Becker to deliver a note to Pepe after Pepe had left the flowers on her car. She further testified that she attempted to pass another note to Pepe through Becker after the telephone call, telling Pepe that she was scared. Becker testified that she never delivered this note. Hand also stated that she never discussed her communications with Pepe with any of the other jurors.
As a result of the testimony at the hearing, we vacated the verdicts of those defendants who so moved and granted their motions for a new trial. Since that time all of these defendants entered pleas of guilty to these or to related charges.
Pepe was subsequently indicted by a federal grand jury on two counts each of unduly influencing a petit juror under 18 U.S.C. § 1503, and aiding and abetting the same under 18 U.S.C. § 2. The government now moves under Rule 19(B) of the General Rules of the United States District Court for the District of New Jersey (hereinafter the "Local Rules") for permission to conduct more probing interviews of selected jurors regarding their deliberations during the Militello trial as well as the activities of Hand during those deliberations, with an eye to determining whether any of the jurors should be called as witnesses in Pepe's new trial for influencing a juror. That trial has been assigned to another federal judge who has scheduled it for November 18, 1987.
EX-JUROR INTERVIEWS UNDER THE LOCAL RULE
Local Rule 19(B) provides that
no attorney or party to an action shall personally or through any investigator or other person acting for such attorney or party, directly or indirectly interview, examine or question any juror, relative, friend or associate thereof during the pendency of the trial or with respect to the deliberations or verdict of the jury in any action, except on leave of Court granted upon good cause shown.
As is clear from a reading of the rule, it does not on its face prohibit the questioning of jurors with respect to their deliberations or verdict; it rather permits such questioning with leave of the court. Nevertheless, the requirement of good cause shown is a necessary screen to the granting of such leave since the matter of questioning jurors about their deliberations is a sensitive one. "The prevention of fishing expeditions in search of information with which to impeach jury verdicts" is the principal purpose of such a rule. United States v. Davila, 704 F.2d 749, 754 (5th Cir. 1983) (commenting on a Western District of Texas local rule very similar to the one involved here). This type of a rule is a codification of the historical practice in federal courts in which post-verdict interviews are usually allowed only where there is some showing of illegal or prejudicial intrusion into the jury process. Id., citations omitted, see also United States v. Varela-Andujo, 746 F.2d 1046, 1049 (5th Cir. 1984). A high threshold for such interviews is maintained to avoid harassment of jurors, preserve the finality of judgments, discourage meritless applications for post-verdict hearings, reduce the likelihood of and temptation for jury tamperings, as well as other concerns. See, e.g., Sullivan v. Fogg, 613 F.2d 465, 467 (2d Cir. 1980).
Given this appropriate reluctance on the part of the federal courts to permit post-verdict juror interviews, such interviews are nevertheless appropriate where there are reasonable grounds to believe that there has been jury tampering. A showing of such grounds "will trigger a post-verdict exploration of the 'entire picture.'" Id., citing Remmer v. United States, 350 U.S. 377, 379, 100 L. Ed. 435, 76 S. Ct. 425 (Remmer II 1956); second citation omitted. The government, in this light, asks for leave to interview certain select jurors about Hand's conduct in the jury deliberation room. Furthermore, the United States Attorney wishes to inquire into the numerical breakdown of the votes the jury cast regarding Pepe's verdict. This inquiry would include the number and timing of votes taken on Pepe's verdict, but would not, with the exception of Hand, probe into who voted what way. Due to the unique circumstances comprising the matter before us, and based on our belief that allowing ...