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United States v. Fiorilla

argued: April 14, 1988.

UNITED STATES OF AMERICA, APPELLEE
v.
JOHN FIORILLA, APPELLANT AT NO. 87-5445 UNITED STATES OF AMERICA, APPELLEE V. MARY FIORILLA, APPELLANT AT NO. 87-5446



Appeal from the United States District Court for the District of New Jersey, D.C. Criminal Nos. 86-00291-01 and 86-00291-02.

Hutchinson, Scirica and Rosenn, Circuit Judges.

Author: Hutchinson

HUTCHINSON, Circuit Judge.

Defendant-appellants John and Mary Fiorilla (the Fiorillas) appeal from judgments of sentence imposed after a jury found them guilty of violating 8 U.S.C.A. § 1324 (West Supp. 1988), 18 U.S.C.A. § 371 (West 1966) and 18 U.S.C.A. § 1001 (West 1976).*fn1 We have jurisdiction over this appeal from a final order of the district court. 28 U.S.C.A. § 1291 (West Supp. 1988). Appellants contend that the district court erred in failing to grant their request for a new trial when a poll taken following the announcement of the purportedly unanimous verdict revealed a dissident within the jury. The trial judge ordered the jurors to continue their deliberations. They did and returned unanimous verdicts. Because the trial judge properly determined that the inadvertent disclosure of the venire's division did not coerce the recalcitrant juror, we believe he had discretion to order the verdict recorded. On this record that discretion was not abused. We will therefore affirm the judgments of sentence.*fn2

The Fiorillas had been indicted along with three co-defendants on one count of conspiracy to harbor illegal aliens, 18 U.S.C.A. § 371, and nine substantive counts of harboring illegal aliens, 18 U.S.C.A. §§ 2 and 3124. The Fiorillas were also charged with two counts of false statements to the United States Labor Department and the Immigration and Naturalization Service in violation of 18 U.S.C.A. §§ 2 and 1001. After the trial, the jury informed the court that it had reached a verdict, returned to the courtroom and delivered its decision. John and Mary Fiorilla were found guilty on all counts with which they had been charged under the jury foreman's original announcement of the collective verdict. Thomas Fiorilla, Frances Scullion and Charles Hirschkind were also on trial with appellants John and Mary Fiorilla for charges stemming from the employment of aliens at appellants' nursing homes. Thomas Fiorilla was found not guilty on counts one through four and guilty on counts five through thirteen. Frances Scullion was found guilty on count one and counts five through thirteen and not guilty on counts two through four. Charles Hirschkind was found not guilty on all counts. Counsel for John Fiorilla then asked to poll the jury.

The individual jurors were first asked whether they concurred in the verdict as it related to John Fiorilla. Jurors one through nine agreed with the reported verdict. With juror number ten, this colloquy ensued:

THE COURT: Mr. Fonseca, do you agree or disagree with the verdict against John Fiorilla as I have just reported it?

JUROR NO. 10: I disagree.

THE COURT: You disagree with the verdict as reported?

JUROR NO. 10: Yes.

THE COURT: Did I report it inaccurately?

JUROR NO. 10: Yes.

THE COURT: Let me reiterate what was stated here. As I told you, your verdict in this case had to be 12 nothing. Correct?

In other words, the report of the jury here on this verdict sheet was that the jury had found Mr. John Fiorilla unanimously guilty on all counts with which he was charged. Now, what I am asking you is do you ...


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