UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
March 30, 1994
UNITED STATES OF AMERICA, Plaintiff
RICHARD O. BERTOLI, Defendant.
[EDITOR'S NOTE: PART 2 OF 3. THIS DOCUMENT HAS BEEN SPLIT INTO MULTIPLE PARTS ON LEXIS TO ACCOMMODATE ITS LARGE SIZE. EACH PART CONTAINS THE SAME LEXIS CITE.]
7. Motions for a Mistrial
On 29 June 1993, Bertoli moved for a mistrial based on certain comments, outside of the presence of the jury, to Bertoli (the "29 June Motion for Mistrial"). See Trial Transcript at 2680. The motion was denied. See id. at 2681. In the 2 July 1993 Letter, Bertoli summarized these comments as follows: "The court has told the parties in no uncertain terms that it believes Eisenberg to be a credible witness -- a statement which unmistakably evidences the court's view that it believes the undersigned to be guilty." 2 July 1993 Letter at 1.
"The decision whether to grant a mistrial is within the sound discretion of the trial court. . . ." United States v. Saldarriaga, 987 F.2d 1526, 1531 (11th Cir. 1993); see United States v. Clair, 934 F.2d 943, 945 (8th Cir. 1991); United States v. Rocha, 916 F.2d 219, 234 (5th Cir. 1990), cert. denied sub nom., Hinojosa v. United States,500 U.S. 934, 111 S. Ct. 2057, 114 L. Ed. 2d 462 (1991); United States v. Crosley, 634 F. Supp. 28, 32 (E.D.Pa. 1985), aff'd mem., 787 F.2d 584 (3d Cir. 1986). "The single most important factor in making [this] determination is the extent to which the defendant has been prejudiced." United States v. Tarantino, 269 U.S. App. D.C. 398, 846 F.2d 1384, 1413 (D.C.Cir.), cert. denied, 488 U.S. 867, 102 L. Ed. 2d 143, 109 S. Ct. 174 (1988); see United States v. Moore, 917 F.2d 215, 220 (6th Cir. 1990), cert. denied, 499 U.S. 963, 113 L. Ed. 2d 654, 111 S. Ct. 1590 (1991); United States v. Vastola, 899 F.2d 211, 235 (3d Cir.), vacated on other grounds, 497 U.S. 1001 (1990); Brown v. Doe, 803 F. Supp. 932, 942 (S.D.N.Y. 1992).
As an initial matter, Bertoli's characterization of the comments upon which he based the 29 June Motion for Mistrial was incorrect. The Trial Transcript reads:
BERTOLI: Your honor, it's my contention that Leo Eisenberg cut a deal, created a story to come up with a family package to get his two sons off the hook and himself. . . .
COURT: Let's assume all of what you say is correct. The underlying conduct is irrelevant. It has nothing to do with it. If he was trying to lie and, frankly, the story he related here is so internally consistent, so consistent with everybody else's testimony that your argument really does not strike a true note here, but that's for the jury to make up their mind. If I was the finder of fact, I would reject it out of hand. All the documents support him, as the documents support [Government witness Louis] Foti [("Foti")].
Id. at 2608 (emphasis added).
This comment merely observed that Eisenberg's testimony was internally consistent and consistent with that of other witnesses. See id. at 2946. The comment did not suggest Bertoli was guilty. It was merely stated that, given the internal consistency of Eisenberg's testimony, the court would reject the argument then offered by Bertoli on that point. In fact, as the record reflects, it was specifically explained to Bertoli: "The only view I have is that you're presumed innocent. I have [so] instructed the jury and I've operated that way." Id. at 2946-47.
There was no basis for a mistrial in light of these comments. The comments and any subsequent discussion regarding the comments were made outside of the presence of the jury. As Bertoli was reminded on more than one occasion, fact finding and credibility determinations were the province of the jury, who remained unaware of the comment to which Bertoli objected.
See id. at 2608, 2681-82. Moreover, the jury was instructed at both the beginning and the end of the case that Bertoli was to be presumed innocent, see id. at 6729-30, 6809, that the jury was the sole judge of the facts, see id. at 280, 282-83, 6721, 6723-25, 6732, 6805, and that the court maintained no position in the case. See id. at 277, 6719, 6732, 6734-35. Because Bertoli suffered no prejudice as a result of the comments he cited, and because his argument was factually baseless, his 29 June Motion for Mistrial was denied. See Tarantino, 846 F.2d at 1413.
Bertoli again moved for a mistrial on 6 July 1993 (the "6 July Motion for Mistrial"). The basis for this motion was also a comment made at sidebar, outside the presence of the jury. Bertoli made specific referenceto an exchange which followed certain improper comments made by Bertoli during his cross-examination of Eisenberg. Bertoli concluded his cross-examination of Eisenberg with a sarcastic, testimonial question regarding Eisenberg's criminal history. See Trial Transcript at 3152 ("Bottom line, Mr. Eisenberg, you say you're a stand-up guy and you haven't spent a day in jail, have you?"). Bertoli then sarcastically stated: "I have no further use for this witness, your honor." Id. at 3153.
Following the Government's objection to these comments, a sidebar conference was convened. The conference took place at the side of the bench farthest from the jury. The jury's view of the parties was blocked by the bench, and the court's back was to the jury box. In a firm, low voice, Bertoli was admonished about the impropriety of offering testimony while questioning a witness:
The last two comments are way out of line. I have been cautioning you constantly. . . . You have abused your right of cross-examination. Don't do it again. I've given you another warning. You're totally out of line. . . .
Your sarcasm -- all that's meant to do is to try to testify. You want to testify, you take the stand. You do not have the right to do that [while questioning another witness]. You're acting as an attorney. . . .
Id. at 3154.
Following a recess, Bertoli moved for a mistrial. Bertoli argued: "At the sidebar, his Honor impacted on my Sixth [sic ] Amendment
right to testify or not to testify because you were loud enough to be heard, not only at this table, but back in the rear. Clearly the jury must have heard that."
Id. at 3156. Bertoli's motion, being meritless, was denied. Id.
Bertoli's motion was baseless as a factual matter. As indicated, the comments of which Bertoli complained were made at sidebar, well out of the range of the jury's hearing. The denial of Bertoli's 6 July Motion for Mistrial was based on the factual finding that the jury could not possibly have heard the comments cited by Bertoli.
Bertoli has introduced no reason to revisit that factual finding. Because Bertoli could not have been prejudiced by the comments of which he complained, his 6 July Motion for Mistrial was properly denied.
See Tarantino, 846 F.2d at 1413.
8. Objection to Admission of Cayman Islands Documents After Beginning of Trial
During trial, Bertoli objected to the admission, pursuant to 18 U.S.C. § 3505, of certain immigration records received from the Cayman Islands Government after the beginning of the trial. See Trial Transcript at 4772, 4788. In so doing, Bertoli relied on the unpublished decision in United States v. Marcos, No. 87 Cr. 598 (JFK), 1990 U.S. Dist. LEXIS 3280 (S.D.N.Y. 27 March 1990). Bertoli's objection was without merit.
Section 3505 provides that a party intending to offer foreign records must provide written notice of the intention "at the arraignment or as soon after the arraignment as practicable." 18 U.S.C. § 3505. Moreover, as previously discussed, section 3505 requires that a motion opposing the introduction into evidence of foreign documents "shall be made by the opposing party and determined by the Court before trial." Id.
In Marcos, the court held, pursuant to section 3505, that foreign documents could not be submitted following the commencement of trial. See Marcos, 1990 U.S. Dist. LEXIS 3280, at **17-18. The Marcos court reasoned that, because section 3505 required that a motion to exclude documents under section 3505, as well as a ruling on that motion, be made prior to trial, section 3505 "plainly foreclosed" the introduction of documents pursuant to section 3505 after trial had commenced. Id.
Contrary to the explanation in Marcos, section 3505 does not explicitly require that only documents provided prior to trial are admissible under section 3505. Instead, section 3505 provides a flexible rule, allowing the documents to be produced "as soon after the arraignment as practicable." 18 U.S.C. § 3505(b). In this case, because the immigration records in question were not provided to the Government by the Cayman Islands Government until after trial had commenced, the Government produced the documents to Bertoli as soon as "practicable" under the circumstances, in compliance with Section 3505(b).
Neither the rationale of Marcos nor Bertoli provided a convincing reason for excluding evidence which was otherwise relevant and reliable simply because the Government received that evidence, through no fault of its own, after trial had commenced. The Marcos reasoning appears to impose a restriction on the operation of section 3505 that simply is not present in the statute. To the extent section 3505(b) requires a motion opposing the admission of foreign documents pursuant to section 3505 be made and decided prior to trial, the more reasonable, consistent and fair interpretation of that language is to require that such a motion and ruling be made when, contrary to this situation, the parties have notice of the foreign documents prior to trial. Indeed, as already discussed, section 3505 "was not intended to add technical roadblocks to the admission of foreign records, but, rather, to streamline the admission of such records." United States v. Strickland, 935 F.2d 822, 831 (7th Cir. 1991), cert. denied, U.S. , 112 S. Ct. 884, 116 L. Ed. 2d 787 (1992).
9. Objections to the Government's Use of Summary Charts and Demonstrative Charts
Both during the pretrial Rule 104 Hearing and at trial, Bertoli objected to the Government's use of charts to summarize and simplify certain complex issues in the case. The charts introduced by the Government fell into two categories -- summary charts and demonstrative charts. Summary charts are admissible at trial, pursuant to Fed. R. Evid. 1006, to summarize voluminous documents, which need not have been previously admitted into evidence, because in-court review of those documents would be inconvenient or impracticable. Demonstrative charts, on the other hand, are allowed under Fed. R. Evid. 611(a) to summarize or otherwise aid the jury's understanding of complex documents or testimony which have already been admitted into evidence. Bertoli objected to the Government's use of both summary charts and demonstrative charts.
a. Summary Charts
Fed. R. Evid. 1006 allows a party to prove the contents of voluminous writings which cannot be examined in court without inconvenience by presenting evidence of the contents of those documents in the form of charts, summaries or calculations. See Pelullo, 964 F.2d 193, 204; see also Martin v. Funtime, Inc., 963 F.2d 110, 115-16 (6th Cir. 1992); Harris Mkt. Research v. Marshall Mktg. & Communications, Inc., 948 F.2d 1518, 1525 (10th Cir. 1991); United States v. Evans, 910 F.2d 790, 800 (11th Cir. 1990), aff'd, U.S. , 112 S. Ct. 1881, 119 L. Ed. 2d 57 (1992). Specifically, Rule 1006 states:
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at [a] reasonable time and place. The court may order that they be produced in court.
Fed. R. Evid. 1006.
The language of Rule 1006
recognizes that it often takes a great deal of court time to introduce a legion of documents to establish a single point. As the Advisory Committee notes indicate, it would be a grueling waste of time to examine all of the underlying evidence in court, and hence charts and summaries are permitted within the court's discretion.
United States v. Strissel, 920 F.2d 1162, 1163-64 (4th Cir. 1990). In addition, courts "cannot rationally expect an average jury to compile summaries and to create sophisticated flow charts to reveal patterns that provide important inferences about the defendants' guilt." United States v. Duncan, 919 F.2d 981, 988 (5th Cir. 1990), cert. denied, 500 U.S. 926, 114 L. Ed. 2d 121, 111 S. Ct. 2036, 111 S. Ct. 2036, 114 L. Ed. 2d 121 (1991).
Rule 1006 does not require "that it be literally impossible to examine all the underlying records [before a summary chart may be utilized], but only that in-court examination would be an inconvenience." United States v. Possick, 849 F.2d 332, 339 (8th Cir. 1988); see United States v. Briscoe, 896 F.2d 1476, 1495 (7th Cir.), cert. denied sub nom., Usman v. United States, 498 U.S. 863, 112 L. Ed. 2d 137, 111 S. Ct. 173 (1990); United States v. Stephens, 779 F.2d 232, 239 (5th Cir. 1985); United States v. Jennings, 724 F.2d 436, 441-42 (5th Cir.), cert. denied, 467 U.S. 1227, 81 L. Ed. 2d 877, 104 S. Ct. 2682 (1984); United States v. Scales, 594 F.2d 558, 562 (6th Cir.), cert. denied, 441 U.S. 946, 60 L. Ed. 2d 1049, 99 S. Ct. 2168 (1979). For example,
where a fact could be ascertained only by the inspection of a large number of documents made up of very numerous detailed statements [,] . . . it is obvious that it would often be practically out of the question to . . . require the production of the entire mass of documents and entries to be perused by the jury or read aloud to them.
4 Wigmore, Evidence § 1230 at 535 (1972) (emphasis in original); see also Fagiola v. National Gypsum Co., 906 F.2d 53, 57 (2d Cir. 1990); Jennings, 724 F.2d at 441-42.
One of the most significant aspects of Rule 1006 is that there is no prerequisite that the underlying documents have been submitted into evidence.
See Strissel, 920 F.2d at 1163-64; United States v. Meyers, 847 F.2d 1408, 1412 (9th Cir. 1988); United States v. Clements, 588 F.2d 1030, 1039 (5th Cir.), cert. denied, 440 U.S. 982 (1979). As long as summary charts meet the following requirements, they are admissible: (1) the underlying documents must be admissible, even if they are never admitted; (2) the underlying documents must be too voluminous for convenient in-court review; (3) the charts must accurately summarize the underlying documents; (4) the summary charts and the underlying documents must have been made available at a reasonable time and place for inspection by the opposing side; and (5) the person who prepared the charts must have been made available for cross examination. See Pelullo, 964 F.2d 193, 204; Stich, 730 F.2d 115, 119; see also United States v. Nivica, 887 F.2d 1110, 1125 (1st Cir. 1989), cert. denied, 494 U.S. 1005, 108 L. Ed. 2d 477, 110 S. Ct. 1300 (1990); Davis & Cox v. Summa Corp., 751 F.2d 1507, 1516 (9th Cir. 1985).
Once it is determined the charts have met the above-listed requirements, their admission is committed to the discretion of the trial court. United States v. Paulino, 935 F.2d 739, 753 (6th Cir.), cert. denied, U.S. , 112 S. Ct. 323 (1991); see Nivica, 887 F.2d at 1126; United States v. Norton, 867 F.2d 1354, 1362 (11th Cir.), cert. denied, 491 U.S. 907, 105 L. Ed. 2d 701, 109 S. Ct. 3192 (1989). Upon being found admissible under Rule 1006, the summary charts are considered evidence. Winn, 948 F.2d at 158; United States v. Smyth, 556 F.2d 1179, 1184, reh'g denied, 557 F.2d 823 (5th Cir.), cert. denied, 434 U.S. 862, 54 L. Ed. 2d 135, 98 S. Ct. 190 (1977); see Osum, 943 F.2d at 1405 n.9; Gomez v. Great Lakes Steel Div., Nat'l Steel Corp., 803 F.2d 250, 257 (6th Cir. 1986). Indeed, where the chart summarizes data not in evidence, the chart is the only evidence available for the jury's consideration of the matters set forth therein.
The summary charts used by the Government in the instant case were introduced through Fuentes (the "Fuentes Summary Charts"), who was assigned by the NASD to work with the Government preparing charts depicting the fraudulent trading schemes. Trial Transcript at 1205-06. The Fuentes Summary Charts, for the most part, summarized information regarding the LCI Scheme, the Toxic Waste Scheme and the High Tech Scheme. They consisted of four categories of charts: (1) charts listing the names of customers who purchased units in the LCI IPO, the Toxic Waste IPO and the High Tech IPO and the quantity of units they purchased, (2) charts depicting trading by individual accounts in the securities of LCI, Toxic Waste, High Tech, Nature's Bounty, Solar Age and Cinematronics (the "Individual Charts"), (3) daily trading charts showing trading at Monarch in the securities of LCI, Toxic Waste and High Tech in the first few days after the closing dates of their respective IPOs and (4) graphs showing the highest sale prices paid at Monarch for the securities of LCI, Toxic Waste, High Tech, Nature's Bounty and Solar Age. Id. at 1211-25; Rule 104 Hearing Transcript at 443-52.
The Fuentes Summary Charts were prepared using information gathered from various Monarch trading documents including, order tickets, the purchase and sales blotter, customer confirmations, broker-dealer confirmations, monthly account statements, customer ledger sheets, stock transfer sheets and the stock delivery and receipt blotter. Id. The underlying Monarch trading records were voluminous; in-court examination during the trial would have been impracticable and inconvenient. The admissibility of those underlying documents was considered at the Rule 104 Hearing.
During the course of the Rule 104 Hearing, the Government called Fuentes
to introduce and describe the Fuentes Summary Charts. Rule 104 Hearing Transcript at 438. The purpose of the pretrial introduction of the charts was to determine the admissibility of the underlying documents, many of which were not introduced at trial, and to give Bertoli the opportunity to raise any objections regarding the accuracy of the charts.
In her testimony, Fuentes explained, seriatim, how the charts were prepared and described the underlying materials used in their preparation. Id. at 443-508. She testified the charts accurately summarized the underlying documents upon which they were based and described the methods by which she had satisfied herself of that accuracy. Part way through that exercise, Bertoli was asked by the Government
to stipulate that the [Fuentes Summary Charts] fairly and accurately represent the backup materials used to prepare them and that the figures shown in the summary trading sections of the charts are accurate.
Id. at 509. Bertoli so stipulated.
When Bertoli was asked whether he had any objections concerning the Fuentes Summary Charts, Bertoli replied:
With respect to the posting accuracy of the charts I take no exception. With respect to the underlying documentation, my objection would be continuing. It's my belief that the underlying documentation with respect to Monarch . . . is not accurate, so the basic documents themselves are unreliable.
Id. ; see also id. at 525 (objection, pursuant to Fed. R. Evid. 404(b), to Fuentes Summary Charts which concerned Nature's Bounty). Bertoli also objected that one particular chart was not based on voluminous documents. Id. at 510. In response, the Government explained:
What we have done is taken all these charts and put all the information on one huge chart, all the trading records of [the] accounts. . . . It's clear that when you take the records all together, they're voluminous. We've simply broken them down in different charts.
At the conclusion of direct questioning of Fuentes by the Government during the Rule 104 Hearing, Bertoli cross examined her about the charts. Id. at 519-20. Primarily, Bertoli's questions went to the accuracy of the underlying documents. However, he was instructed to limit his questions, for purposes of the Rule 104 Hearing, to the charts.
The Fuentes Summary Charts met all of the requirements of Rule 1006. First, the underlying documents were found to be admissible underthe business records exception and the public records exception, pursuant to Fed. R. Evid. 803(6) and (8). Rule 104 Hearing Transcript at 430, 436-37. Second, the Monarch trading documents which formed the bases for the charts were voluminous, and in-court examination of those documents by the jury would have created substantial inconvenience and delay. Third, Bertoli agreed that the Fuentes Summary Charts accurately reflected the underlying documents. Id. at 510. Fourth, the Fuentes Summary Charts and the underlying documents were made available to Bertoli in advance of the Rule 104 Hearing for his inspection. See id. at 509. Fifth, Fuentes, the person who prepared the charts, was made available to Bertoli for cross examination both at the Rule 104 Hearing and at trial. See id. at 519-20; Trial Transcript at 1354-71, 1383-1475. Accordingly, the Fuentes Summary Charts were admissible under Rule 1006. See Pelullo, 964 F.2d at 204; Stitch, 730 F.2d at 119; Nivica, 887 F.2d at 1125.
b. Demonstrative Charts
Compilations or charts which are used only to summarize or organize testimony or documents which have themselves been admitted into evidence are distinguished from those used as evidence pursuant to Rule 1006. Where the summaries or charts are "pedagogical devices 'more akin to argument than evidence' [because] they organize the jury's examination of testimony and documents already admitted into evidence," they do not come within Rule 1006. Paulino, 935 F.2d at 753. These pedagogical devices, unlike Rule 1006 summaries, are not evidence, but only a party's organization of the evidence already presented. The difference between Rule 1006 summary charts and demonstrative charts has been explained as follows:
There is a distinction between a Rule 1006 summary and a so-called "pedagogical" summary. The former is admitted as substantive evidence, without requiring that the underlying documents themselves be in evidence; the latter is simply a demonstrative aid which undertakes to summarize or organize other evidence already admitted. . . . [A] pedagogical summary can itself be admitted into evidence where the trier of fact will find it helpful and will not be unduly influenced thereby.
White Indus. v. Cessna Aircraft Co., 611 F. Supp. 1049, 1069-70 (W.D.Mo. 1985); see United States v. Pinto, 850 F.2d 927, 935 (2d Cir.), cert. denied sub nom., Vence v. United States, 488 U.S. 867, 102 L. Ed. 2d 143, 109 S. Ct. 174 (1988); Possick, 849 F.2d at 339; United States v. Gardner, 611 F.2d 770, 776 (9th Cir. 1980); Scales, 594 F.2d at 563-64; Smyth, 556 F.2d at 1182-84; accord United States v. Goichman, 407 F. Supp. 980, 998 (E.D.Pa.), aff'd, 547 F.2d 778 (3d Cir. 1976); Bader Coal Co. v. Quemahoning Coal Co., 14 F.2d 743, 747 (3d Cir. 1926).
Rule 611(a), which permits trial judges to make common-sense determinations as to how the trial should be run, allows the introduction of demonstrative summaries and charts. Specifically, Rule 611(a) provides:
Control by Court: The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
Fed. R. Evid. 611(a). As discussed in the Advisory Committee's Note to Rule 611, the rule covers such matters as the presentation of evidence, the use of demonstrative evidence and "the many other questions arising during the course of a trial which can be solved only by the judge's common sense and fairness in view of the particular circumstances." Fed. R. Evid. 611 Advisory Committee's Note. Demonstrative evidence "is universally offered and submitted as an aid to understanding." Fed. R. Evid. 401 Advisory Committee's Note.
The use of demonstrative charts to "aid the jury's comprehension is well within the court's discretion." Possick, 849 F.2d at 339; Paulino, 935 F.2d at 753; Gardner, 611 F.2d at 776. However, when Rule 611 charts are used, it is required the charts be accompanied by an instruction from the court which "informs the jury of the summary's purpose and that it does not constitute evidence." Paulino, 935 F.2d at 753; see Holland v. United States, 348 U.S. 121, 128, 99 L. Ed. 150, 75 S. Ct. 127 (1954), reh'g denied, 348 U.S. 932, 99 L. Ed. 731, 75 S. Ct. 334 (1955); Scales, 594 F.2d at 561-62.
In the instant case, the demonstrative charts presented by the Government were introduced at trial by Fuentes (the "Fuentes Demonstrative Charts") and Special Agent Ford (the "Ford Demonstrative Charts"). Trial Transcript at 1224-43, 4854-4945, 4965-89. The Fuentes Demonstrative Charts included: (1) charts summarizing the research reports prepared by Cannistraro for Wood Gundy on Toxic Waste, High Tech, Nature's Bounty and Solar Age (the "Wood Gundy Reports"); (2) charts combining information from the Individual Charts and the Wood Gundy Reports; and (3) charts illustrating Wood Gundy sales of the common stock of Toxic Waste, High Tech, Nature's Bounty and Solar Age to various Wood Gundy customers. Id. at 1224-43. The Fuentes Demonstrative Charts were based on evidence previously admitted at trial; each of the charts listed on its face the Government exhibits on it was based.
The Ford Demonstrative Charts
were all part of the 7000 series of Government exhibits, specifically exhibit numbers 7000-7029. They were flow charts illustrating the movement of money into and out of the Cayman Islands accounts in connection with trading in the securities of LCI, Toxic Waste, High Tech, Nature's Bounty and Mega Energy. Trial Transcript at 4854-4945, 4965-89. The Ford Demonstrative Charts also summarized documents and testimony which had been previously introduced into evidence. The charts were organized so that each listed its sources and was presented together with its underlying documents. See id. at 4854. Special Agent Ford testified about what the charts were meant to summarize and explained how the charts made use of the previously admitted evidence.
c. Admission of Charts
During the trial, on 10 June 1993, Fuentes was called to testify regarding the Fuentes Summary Charts and the Fuentes Demonstrative Charts. At the conclusion of her direct testimony, the Government submitted "Government Exhibit A," a list of the charts prepared by Fuentes. Trial Transcript at 1243. The charts listed on Government Exhibit A were admitted; the jury was given the following instruction regarding the difference between summary charts and demonstrative charts:
The sources for the information on the demonstrative charts are noted right on the notes [on the bottom of the chart]. . . . That will give you an indication they're demonstrative charts as I use that term.
Th[e demonstrative] charts are shown to you . . . in order to make the other evidence in this case more meaningful and aid you in considering all the evidence, all the underlying data.
The information on these demonstrative charts is based upon other exhibits which are in evidence and upon testimony presented during the course of this case. . . .
These demonstrative charts . . . are no better than the testimony or the documents upon which they are based and . . . the charts themselves are not independent evidence. . . .
It's for you to decide whether the demonstrative charts correctly present the evidence ontained in the testimony and exhibits upon which they are based. . . .
Summary charts don't have sources listed, they are offered into evidence in lieu of underlying documents. The summary charts are based upon the principle that the underlying documents are so voluminous that these summary charts are just that, summaries of underlying documentation.
The Rules of Evidence permit the presentation of such summary charts in order to save time and to simplify your task of considering all of the exhibits that have been admitted into evidence. . . .
These summary charts are themselves evidence and you should consider these summary charts as you would any other evidence and give them such weight as you determine they deserve.
Id. at 1249-51.
At that time, Bertoli objected, pursuant to Rule 404(b) and 403, to the charts marked within exhibit series 200 and 1300.
Id. Those exhibit series dealt with the trading schemes involving Nature's Bounty and Solar Age. Bertoli also renewed his objections raised during the pretrial Rule 104 Hearing regarding the Fuentes Summary Charts. Id. at 1249. Bertoli's objections were overruled. Id. He then cross examined Fuentes at length as to the preparation of the charts and attempted to point out inaccuracies in those charts. See id. at 1354-71, 1383-1475.
At a later point in the trial, on 22 July 1993, at a hearing outside the presence of the jury, some of the Ford Demonstrative Charts, specifically exhibit numbers 7022-7029, were discussed. Bertoli objected to the use of those charts for a variety of reasons: (1) he contended one chart, Government exhibit 7028, was argumentative and "highly prejudicial" in violation of Fed. R. Evid. 403, Trial Transcript at 4980-81; (2) he argued that another chart, Government exhibit 7026, neither summarized multiple documents nor was based on issues which were "confusing" or in need of summarization, id. at 4967; (3) he argued that another chart, Government exhibit 7024, violated Fed. R. Evid. 3505 and 403, Trial Transcript at 4968; and (4) he objected to several charts, Government exhibits 7024, 7022 and 7025, on the ground that the underlying facts were in dispute. See id. at 4968, 4983, 4984. Each of the objections was overruled. Id. at 4967, 4969, 4982, 4983, 4984, 4985. When the Government concluded its direct examination of Special Agent Ford, Bertoli cross examined Special Agent Ford about the Ford Demonstrative Charts and attempted to point out inaccuracies in the charts. Id. at 4945-58, 4997-5007, 5016.
Given the complexity of the facts in the case and the volume of documents and exhibits used to illustrate the fraudulent trading schemes, the charts, which summarized trading activities and cash flows, were tools likely to aid the jury in comprehending the case. In-court examination of all the underlying documents would have been burdensome, time-consuming and confusing without the aid of the charts.
The use of the charts in this case was accompanied by the necessary safeguards. The charts were introduced by persons familiar with the underlying documents and how the charts were prepared. Because charts may be introduced either through a person who prepared the chart or a person who has reviewed the underlying documents and confirmed the accuracy of the chart, both Fuentes and Special Agent Ford were proper chart witnesses. See United States v. Caswell, 825 F.2d 1228, 1235-36 (8th Cir. 1987); United States v. Lemire, 232 U.S. App. D.C. 100, 720 F.2d 1327, 1349 (D.C. Cir.), cert. denied, 467 U.S. 1226, 81 L. Ed. 2d 874, 104 S. Ct. 2678 (1983); Scales, 594 F.2d at 563. Furthermore, Bertoli had ample opportunity to point out any inaccuracies reflected in the charts during his cross examination of Fuentes and Special Agent Ford, who he questioned at length about the underlying documents. See Rule 104 Hearing Transcript at 519-20; Trial Transcript at 1354-71, 1383-1475, 3806-14, 4994-58, 4997-5007, 5016. The jury, therefore, was presented with evidence from both sides and was well-equipped to draw its own conclusions as to whether the information summarized in the charts was accurate.
In light of the above-described safeguards, Bertoli's objections to the use of the summary and demonstrative charts were without merit. In general, his objections concerned the accuracy and admissibility
of the underlying documents and did not address the charts themselves.
See Trial Transcript at at 1244-45, 4968, 4983-85; Rule 104 Hearing Transcript at 509-10, 525.
The objections based on the assertion that the underlying documents were inaccurate, see Trial Transcript at 4968, 4983-85; Rule 104 Hearing Transcript at 509-501, were not grounds for disallowing the charts. Charts may summarize records that the opposing side claims are inaccurate or incomplete. As the court in Evans stated: "In an adversarial proceeding, it is not unusual for testimony offered by one side to be contradicted by testimony by the opposing side." 910 F.2d at 800. In such cases, the charts are nevertheless permissible as long as the other requirements are met and the charts are made available to the other side so that a proper cross examination can be developed. In re Richardson-Merrell, Inc. "Bendectin" Prod. Liability Litig., 624 F. Supp. 1212, 1224-26 (S.D.Ohio 1985), aff'd, 857 F.2d 290 (6th Cir. 1988), cert. denied sub nom., Hoffman v. Merrell Dow Pharmaceuticals, Inc., 488 U.S. 1006, 102 L. Ed. 2d 779, 109 S. Ct. 788 (1989); see Strissel, 920 F.2d at 1164; Nivica, 887 F.2d at 1125-26; United States v. Porter, 821 F.2d 968, 974-75 (4th Cir. 1987), cert. denied, 485 U.S. 934, 99 L. Ed. 2d 269, 108 S. Ct. 1108 (1988); United States v. Driver, 798 F.2d 248, 253 (7th Cir. 1986); see also Fagiola, 906 F.2d at 57-58. The ability to cross examine "'alleviates any danger of inaccuracy or unfair characterization.'" Paulino, 935 F.2d at 753 (citation omitted). Accordingly, any complaints Bertoli had with regard to the accuracy of the information reflected in the charts should have been and was addressed during his cross examination of Fuentes and Special Agent Ford.
Bertoli also contended that a particular Ford Demonstrative Chart, Government exhibit 7028, was based on Government inferences and assumptions about the case rather than undisputed facts. Trial Transcript at 4980-81. That objection was also not a ground for disallowing the use of that chart. The fact that certain conclusions reflected by a summary chart are based on assumptions or inferences made by the party introducing the chart does not render the chart inadmissible. See United States v. Radseck, 718 F.2d 233, 237-38 (7th Cir. 1983), cert. denied, 465 U.S. 1029, 79 L. Ed. 2d 693, 104 S. Ct. 1291 (1984). Such assumptions are allowed where they are supported by the underlying documents. See id. ; Norton, 867 F.2d at 1362; Jennings, 724 F.2d at 441-42. "'The essential requirement is not that the charts be free from reliance on any assumptions, but rather that these assumptions be supported by evidence in the record.'" Jennings, 724 F.2d at 442 (citation omitted); see Norton, 867 F.2d at 1363. The trial court is charged with the discretion to determine whether the chart is unduly argumentative. Possick, 849 F.2d at 339; Driver, 798 F.2d at 253. In the instant case, it was determined that the chart was not argumentative; any inferences made in the chart were supported by the evidence. See Trial Transcript at 4982.
10. Objections to Evidence of Other Acts: Rule 404(b)
During the proceedings, Bertoli made several objections to 'other act' evidence proffered by the Government. This evidence related to prior misconduct by Bertoli which was not charged in the Redacted Second Superseding Indictment.
Rule 404(b) of the Federal Rules of Evidence provides in relevant part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. . . .
As indicated by its language, Rule 404(b) concerns evidence of "other crimes, wrongs or acts." Id. (emphasis added). Evidence of prior acts which are part and parcel of the charged conduct is not covered by Rule 404(b). As the Second Circuit has stated:
Evidence of uncharged criminal activity is not considered "other crimes" evidence under Fed.R.Evid. 404(b) if it "arose out of the same transaction or series of transactions as the charged offense, if it is inextricably intertwined with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime on trial."
United States v. Towne, 870 F.2d 880, 886 (2d Cir.) (quoting United States v. Weeks, 716 F.2d 830, 832 (11th Cir. 1983)), cert. denied, 490 U.S. 1101 (1989); see United States v. Blyden, 964 F.2d 1375, 1378 (3d Cir. 1992) ("Rule 404(b) presupposes the existence of other crimes. When evidence of another crime is necessary to establish an element of the offense being tried, there is no 'other crime.'" (emphasis in original)); United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990) (acts "inextricably intertwined" with charged conduct not barred by Rule 404(b)); United States v. Brownlee, 890 F.2d 1036, 1039 (8th Cir. 1989) (same); United States v. Foster, 889 F.2d 1049, 1053 (11th Cir. 1989) ("Evidence that forms integral and natural part of the witness's accounts of the circumstances surrounding the offenses for which the defendant was indicted is admissible even if it tends to reflect negatively on the defendant's character.").
Where, as here, the crime charged requires the establishment of the defendant's continuing pattern of criminal activity,
other acts which are part of the pattern may be used to prove the existence of the pattern without invoking the restrictions of Rule 404(b). In United States v. Gonzalez, 921 F.2d 1530 (11th Cir.), cert. denied, U.S. , 112 S. Ct. 178, 116 L. ed. 2d 140 (1991), the court addressed the objection of a RICO defendant to the admission of evidence of prior crimes not listed as predicate acts in the indictment. The Circuit held that the prior acts "were clearly admissible nonetheless," and did not refer to Rule 404(b)'s restrictions:
In addition to predicate crimes, a RICO conspiracy charge requires proof of an enterprise, of the continuity of racketeering activity, and of the defendant's knowledge of, agreement to, and participation in the conspiracy. [The prior acts], while not to be used as RICO predicates, are clearly relevant and admissible in proving RICO's other elements.
921 F.2d at 1547; see United States v. Kaplan, 886 F.2d 536, 544 (2d Cir. 1989) (prior uncharged acts of racketeering admissible to prove continuity of racketeering activity in RICO case), cert. denied, 493 U.S. 1076, 107 L. Ed. 2d 1033, 110 S. Ct. 1127 (1990); United States v. Perholtz, 268 U.S. App. D.C. 347, 842 F.2d 343, 359 (D.C.Cir.) (Evidence of racketeering schemes not included in RICO charge were admissible "to prove the association-in-fact had a continuity of structure and personnel in order to establish the existence of an enterprise"; Rule 404(b) issue expressly not reached), cert. denied, 488 U.S. 821, 102 L. Ed. 2d 42, 109 S. Ct. 65 (1988); United States v. Finestone, 816 F.2d 583, 587 (11th Cir.) (Unindicted prior acts "were admissible to prove a pattern of racketeering activity and overt acts, elements of the . . . RICO conspiracy. Furthermore, those events were admissible to prove the membership and participation in the RICO conspiracy. . . ."), cert. denied, 484 U.S. 948, 98 L. Ed. 2d 365, 108 S. Ct. 338 (1987), reh'g denied, 485 U.S. 972, 99 L. Ed. 2d 449, 108 S. Ct. 1252 (1988); United States v. Neapolitan, 791 F.2d 489, 501 (7th Cir.) (Unindicted acts "would be admissible as circumstantial evidence that [defendant] was a member of a conspiracy."), cert. denied, 479 U.S. 940, 93 L. Ed. 2d 372, 107 S. Ct. 422 (1986); see also Carter v. Hewitt, 617 F.2d 961, 967 (3d Cir. 1980) (Prior false complaints were admissible because they "prove the plans [to file false complaints] directly and not inferentially [and therefore], they fall outside the scope of Rule 404. The [complaints] are not evidence of other acts used as indirect proof of a plan, but direct evidence of the existence of the plan itself.").
Even where evidence of other acts is not inextricably intertwined with the charged conduct, such evidence may yet be admissible under Rule 404(b) "if it is logically relevant . . . to any other issue than the defendant's propensity to commit the [charged] crime." United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992). Rule 404(b) "is inclusive, not exclusive, and emphasizes admissibility." Id. ; see Government of Virgin Islands v. Edwards, 903 F.2d 267, 270 (3d Cir. 1990); United States v. Scarfo, 850 F.2d 1015, 1019 (3d Cir.), cert. denied, 488 U.S. 910, 102 L. Ed. 2d 251, 109 S. Ct. 263 (1988).
The Supreme Court and the Third Circuit have recognized four requirements for the admission of other act evidence under Rule 404(b):
(1) the evidence must have a proper purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must outweigh its prejudicial effect under Rule 403; and (4) the court must charge the jury to consider the evidence only for the limited purpose for which it is admitted.
Sampson, 980 F.2d at 886; see Huddleston v. United States, 485 U.S. 681, 691, 99 L. Ed. 2d 771, 108 S. Ct. 1496 (1988); United States v. McGlory, 968 F.2d 309, 338 (3d Cir. 1992), cert. denied, U.S. , 113 S. Ct. 1388, 122 L. Ed. 2d 763 (1993); Government of Virgin Islands v. Pinney, 967 F.2d 912, 914 (3d Cir. 1992).
'Proper purposes' under Rule 404(b) include proving "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b); see Sampson, 980 F.2d at 887. "The possible uses of 'other crimes' evidence listed in Rule 404(b) 'are not the only proper ones.'" McGlory, 968 F.2d at 338 (quoting Scarfo, 850 F.2d 1015). "Other crime evidence is admissible if offered for [any] proper purpose apart from showing that the defendant is a person of criminal character." Pinney, 967 F.2d 912, 914.
In a RICO or other type of fraud case, evidence of unindicted acts similar to or in furtherance of those charged will often be admissible under Rule 404(b) to prove the defendant's motive, intent or absence of mistake. See United States v. Scop, 940 F.2d 1004, 1008 (7th Cir. 1991) (In securities fraud action, evidence of unindicted acts of securities fraud may be properly be used to prove a defendant's "intent, opportunity, or plan to engage in the [securities fraud] or . . . relationship with another defendant."); United States v. Johnson, 893 F.2d 451, 453 (1st Cir. 1990) (unindicted acts of tax fraud admissible in tax fraud prosecution to show intent, absence of mistake); United States v. Traitz, 871 F.2d 368, 389 (3d Cir.) (unindicted acts of violence admissible in RICO extortion case to show "shared tradition of violence," "symbiotic relationship" between defendants and "the background of the charges, the parties' familiarity with one another and their concert of action"), cert. denied, 493 U.S. 821, 107 L. Ed. 2d 44, 110 S. Ct. 78 (1989); United States v. Rivera-Medina, 845 F.2d 12, 15-16 (1st Cir.) (evidence of extortion scheme identical to one charged in indictment, with close temporal proximity and same co-conspirators, was admissible to "prove absence of mistake, knowledge and intent"), cert. denied, 488 U.S. 862 (1988); United States v. Davis, 576 F.2d 1065, 1067-68 (3d Cir. 1978) (evidence of unindicted acts of racketeering admissible in RICO case to prove intent or motive), cert. denied, 439 U.S. 836, 58 L. Ed. 2d 132, 99 S. Ct. 119 (1978).
"Courts have long held that evidence of financial difficulties, [such as a personal bankruptcy filing or financial reports,] is admissible in fraud prosecutions to demonstrate knowledge, motive, intent, design and absence of mistake." United States v. Metallo, 908 F.2d 795, 798, reh'g denied en banc, 917 F.2d 570 (11th Cir. 1990), cert. denied, U.S. , 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992); see United States v. Bonnett, 877 F.2d 1450, 1461 (10th Cir. 1989) (in bank fraud case, evidence that defendant frequently had insufficient funds to cover checks in bank account and that defendant was at legal lending limit at various banks was admissible to show "a pattern, practice, and method of obtaining the illegal use of bank funds for his own gain"); United States v. Whaley, 786 F.2d 1229, 1233 (4th Cir. 1986); United States v. Pichnarcik, 427 F.2d 1290, 1291 (9th Cir. 1970).
As stated, if the proffered 'other act' evidence is relevant and has a proper purpose under Rule 404(b), the evidence will be admissible if its probative value is not substantially outweighed by the danger of unfair prejudice.
See Huddleston, 485 U.S. at 691; Sampson, 980 F.2d at 886. A relevant example of this balancing test is provided by Scop, 940 F.2d 1004. In Scop, the defendants were indicted for several counts of securities fraud. Specifically, the defendants were charged with the manipulation of the prices of certain stocks listed in the indictment. See id. at 1008. At trial, the Government proffered evidence that the defendants had manipulated the prices of other stocks not named in the indictment. Id. The district court admitted the evidence under Rule 404(b); upon conviction, the defendants appealed.
On appeal, the defendants argued the 'other act' evidence should not have been admitted under Rule 404(b) because "the probative value of this evidence was substantially outweighed by the danger of unfair prejudice." Id. at 1009. The Seventh Circuit rejected the defendants' argument:
The evidence regarding [the manipulation of other stocks] was highly probative because it revealed a common and indeed inseparable scheme. The defendants traded in the [non- named securities] at the same time they allegedly carried out the fraudulent . . . trades [named in the indictment]. They victimized some of the same investors in manipulating the [named and unnamed] stocks. The defendants used identical methods of price manipulation with respect to the stock in each company. . . . The evidence about the manipulation of [the stocks not named in the indictment] was properly used to reveal the common pattern of a crime that is not commonplace.
Some of the evidence was also critical to the jury's understanding of the relationship between the defendants. . . . Other acts evidence is admissible to complete the story of defendants' familiarity or relationship. Here the evidence was helpful and even necessary to round out the jury's understanding of the conspirators' debts and attachments to one another.
The evidence also was not unduly prejudicial. It concerned truly similar criminal activities rather than inflammatory criminal acts. Though undoubtedly much evidence at trial concerned [the unnamed stocks], there was no shortage of evidence regarding [the defendants'] use of nominee accounts, for example, to buy [the named stocks].
Id. at 1009. The Circuit concluded that the 'other act' evidence was properly admitted by the district court. See id. ; see also United States v. Eufrasio, 935 F.2d 553, 573 (3d Cir.) ("The uncharged Mafia crimes evidence admitted in this case went to prove important elements of the RICO counts charged . . .: the existence and nature of the [criminal] enterprise and conspiracy, acts undertaken in furtherance of it, and [defendants'] knowing association with it. . . . Thus, the relevance of the uncharged crimes evidence to the government's case against [defendants] was substantial, certainly enough to offset its potential to cause prejudice for [defendants]."), cert. denied sub nom., Idone v. United States, 116 L. Ed. 2d 280, U.S. , 112 S. Ct. 340 (1991); Rivera-Medina, 845 F.2d at 16 (in extortion case, tendency of evidence of prior extortion scheme "to prove absence of mistake, knowledge and intent clearly exceeds its admittedly prejudicial impact"); Perholtz, 842 F.2d at 358 (script made in furtherance of RICO scheme was more probative than prejudicial because script was "closely tied to the crimes charged and only indirectly suggests distinct offenses").
The fourth and final requirement for the admission of other act evidence is that "the court must charge the jury to consider the evidence only for the limited purpose for which it was admitted." Sampson, 980 F.2d at 886; see Huddleston, 485 U.S. at 691-92. However, "it is not error for a trial court to fail to [so] instruct the jury . . . in the absence of a proper request by counsel." United States v. Record, 873 F.2d 1363, 1376 (10th Cir. 1989); see United States v. Barbee, 968 F.2d 1026, 1032 (10th Cir. 1992) ("Absent an appropriate objection [to jury charge during trial], we review the record only for plain error"); Jordan v. Clayton Brokerage Co. of St. Louis, Inc., 861 F.2d 172, 177 (8th Cir. 1988) ("We cannot say that the trial court's failure to give, sua sponte, a cautionary instruction during the course of the proceedings constituted an abuse of discretion."), vacated on other grounds, 499 U.S. 914 (1991). Moreover, the time during trial at which to give the limiting instructions is within the discretion of the trial court. See Murray v. Superintendent, Kentucky State Penitentiary, 651 F.2d 451, 454 (6th Cir. 1981).
Additionally, in criminal proceedings, Rule 404(b) requires that the prosecution "shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any ('other act') evidence it intends to introduce at trial." Fed.R.Evid. 404(b).
In the instant case, the Government sought to admit evidence of several prior acts not listed in the Redacted Second Superseding Indictment. Because Bertoli was convicted only on Counts Three and Six of the Redacted Second Superseding Indictment, only those 'other act' proffers made in support of those counts will be addressed in this opinion.
a. The 1977 Suit by Executive Securities Against Bertoli and Bertoli's Filing for Bankruptcy
In 1977, Executive Securities Corp. ("Executive Securities")
filed suit against Bertoli in the United States District Court for the Southern District of New York, seeking approximately $ 2.9 million in damages (the "SIPC Suit"). Trial Transcript at 675-79. In 1982, the complaint in the SIPC Suit was amended to add Securities Investor Protection Corporation ("SIPC")
as a plaintiff. Id. at 679. At trial in the instant matter, the Government sought to introduce certain documents evidencing the existence of the SIPC Suit.
Id. at 678, 680, 682.
The Government explained that the existence of this large potential liability was "relevant to show one of Bertoli's motives for not owning stock in his own name, for using secret Cayman Islands accounts, for attempting to prevent the Government from obtaining evidence of those Cayman Islands accounts, and for destroying Cayman Islands records." Government's 21 May 1993 Brief at 5. Bertoli objected to the introduction of such evidence under Rule 404(b). Trial Transcript at 678, 680, 682.
On or about 11 October 1983, Bertoli filed for personal bankruptcy protection under chapter 11 of the United States Bankruptcy Code, 11 U.S.C. §§ 1101, et seq., in the United States Bankruptcy Court (the "Bankruptcy Court") for the District of New Jersey (the "Bankruptcy Petition"). Trial Transcript at 682. At trial, the Government sought to introduce various filings made by Bertoli in relation to the Bankruptcy Petition, which filings the Government argued failed to list certain of Bertoli's assets (the "Bankruptcy Filings"). See Government's 21 May 1993 Brief at 2; Trial Transcript at 697, 735, 914-15. The Government argued this evidence was probative of Bertoli's motive to obstruct justice and participate in the charged racketeering activity:
If Bertoli had traded openly in his own name and had made money, . . . he would not have been able to file for bankruptcy and would have been vulnerable to the [almost] three million dollar claim made in the SIPC Suit. Thus, Bertoli used nominee and secret accounts to shield his true assets, thereby allowing him to file for bankruptcy and stay the SIPC Suit.
The Bankruptcy [Petition] and financial statements subsequently filed in the bankruptcy action are relevant to show one of Bertoli's motives for attempting to prevent the Government from obtaining evidence of Bertoli's Cayman Islands accounts and for destroying records in the Cayman Islands. In both the original Bankruptcy Petition and the financial statements, Bertoli was required to set forth all his assets. Bertoli, however, failed to disclose in the petition and subsequent financial statements various accounts in the Cayman Islands. As noted above, one of Bertoli's motives for concealing these accounts was to shield his assets from the SIPC suit. . . . Such evidence could also have supported bankruptcy fraud, tax fraud, and perjury or false statement charges against Bertoli. Thus, Bertoli's attempts to prevent the Government from obtaining evidence of his accounts in the Cayman Islands and his destruction of Cayman Islands documents served to conceal the fraudulent nature of the Bankruptcy Petition and his subsequent financial statements.
Government's 21 May 1993 Brief at 5-6. Bertoli objected to this evidence under Rule 404(b). Trial Transcript at 697, 735.
Evidence relating to the SIPC Suit, the Bankruptcy Petition and the Bankruptcy Filings was admitted into evidence. It was recognized that the evidence relating to these events may not in fact have been evidence of "other crimes, wrongs or acts," within the meaning of Rule 404(b). It was noted: "There is a substantial basis to argue that this evidence is intertwined inextricably with the other aspects of the [Redacted Second Superseding Indictment] and a strong argument can [therefore] be made under that aspect that it is not [Rule] 404(b) evidence, but essential evidence." Trial Transcript at 708
The SIPC Suit, the Bankruptcy Petition and the Bankruptcy Filings formed essential background information for the allegations of racketeering activity contained in Counts One and Two. As stated by the Government, these events were necessary in explaining Bertoli's motivation for engaging in the charged racketeering activity. See Government's 21 May 1993 Brief at 5-6. Moreover, these events helped to form the context and manner in which Bertoli obstructed justice, as alleged in Counts One, Three, Four, Five and Six. See Id. at 6. Evidence relating to the SIPC Suit, the Bankruptcy Petition and the Bankruptcy Filings "arose out of the same transaction or series of transactions as the charged offense, [and was] necessary to complete the story of the crime on trial." Towne, 870 F.2d at 886. Accordingly, such evidence was not 'other act' evidence and could not be barred by Rule 404(b). Id. ; see Blyden, 964 F.2d at 1378.
Even if evidence of the SIPC Suit, the Bankruptcy Petition and the Bankruptcy Filings were considered 'other act' evidence, and Rule 404(b) were applicable, such evidence was admissible under Rule 404(b)'s inclusion guidelines.
As noted at trial, evidence relating to the SIPC Suit and the Bankruptcy Petition was "offered for a purpose other than to prove propensity or other than character purpose. They do have a proper basis." Trial Transcript at 707; see Sampson, 980 F.2d at 886.
As stated, the SIPC Suit and Bankruptcy Petition were relevant to prove Bertoli's motive and intent to engage in the racketeering activity alleged in Counts One and Two and the obstruction of justice alleged in Counts One, Three, Four, Five and Six. See Huddleston, 485 U.S. at 691 (other act evidence may be properly used to prove motive or intent). Moreover, this evidence was relevant to prove Bertoli's overarching plan and design of racketeering activity and obstruction of justice. See Scop, 940 F.2d at 1008; Traitz, 871 F.2d at 389 (unindicted acts admissible in RICO case to show "background of the charges, the parties' familiarity with one another and their concert of action").
As indicated during the proceedings in this case, the existence of the SIPC Suit and the Bankruptcy Petition:
goes . . . to the . . . reason or motive [Bertoli] would try to conceal documents or impede the Government in getting evidence concerning frauds, Monarch or any other frauds in this case or, indeed, bankruptcy fraud.
28 May 1993 Tr. at 43. It was further explained:
Obviously, the [SIPC Suit] with the approximately $ 3 million in contingent liability provides the motive to hide assets. The [evidence of the ] Bankruptcy Filings is obvious with regard to motive.
It also goes to the intent as to why certain conduct was carried out and they're both helpful.
The fact of the matter is the jury can clearly find that this [SIPC Suit] was filed, that these other documents were filed as were the Bankruptcy [Filings]. The evidence in both these categories demonstrates the reason why there would be ongoing efforts with regard to the schemes and conduct charged in the indictment.
Trial Transcript at 707-08.
The Bankruptcy Filings were particularly relevant to the Government's case, as they evidenced under-reported assets, and therefore evidenced further fraudulent conduct on Bertoli's part. As stated, unindicted acts of fraud related to those charged in the indictment are relevant to prove the existence of a plan or scheme of fraudulent or racketeering activity. See Scop, 940 F.2d at 1008; Traitz, 871 F.2d at 389. Moreover, the Bankruptcy Petition, evidencing as it does Bertoli's financial difficulties, was relevant "to demonstrate knowledge, motive, intent, design and absence of mistake." Metallo, 908 F.2d at 798. As was observed at trial:
With regard to these bankruptcy documents, they're entirely appropriate under (Rule) 404(b). . . .
They demonstrate the motive or the reason with regard to hiding assets, transferring documents -- transferring funds, to demonstrate benefit to Mr. Bertoli. It shows that he's -- some of them show that he's more than an agent.
With regard to the monthly [Bankruptcy] Filings, [the relevance] is obvious with regard to the minimization of assets and the hiding of assets.
Trial Transcript at 916.
The probative value of the evidence concerning the SIPC Suit, the Bankruptcy Petition and the Bankruptcy Filings outweighed any potential undue prejudicial effect this evidence might have had. As recognized at trial:
The 403 Balancing is obvious. As I said, there is a genuine need for this evidence. The chance that there would be improper use by the jury is remote, at best, when evaluating this and considering the impact on the jury, [the purpose of the evidence is] obvious. . . . It's not inflammatory. Clearly, the probative value does . . . substantially outweigh any prejudice. The confusion or waste of time issue is clearly not something of substance with regard to this testimony.
Keeping in mind that all relevant evidence is prejudicial, this is not unduly prejudicial. It seems to me that as I pointed out, it's not inflammatory and the acts do have a clear relevance. There is no necessity that the jury pursue any extended or complex chain of inferences in order to arrive at what the Government is seeking to prove here. The evidence is certainly sufficient to support a finding with regard to the 404(b) conduct.
Trial Transcript at 708; see Scop, 940 F.2d at 1009; Eufrasio, 935 F.2d at 573; Rivera-Medina, 845 F.2d at 16. Moreover, the likelihood of undue prejudice from evidence of the SIPC Suit was particularly slight in light of the Government's agreement to stipulate that Bertoli contested the SIPC Suit. See Trial Transcript at 556.
Finally, any potential for improper use of the evidence of the SIPC Suit, the Bankruptcy Petition and Bankruptcy Filings was curbed by appropriate limiting instructions to the jury. See Sampson, 980 F.2d at 886. These instructions were given at Bertoli's request when certain documents relating to the SIPC Suit, the Bankruptcy Petition and the Bankruptcy Filings were offered into evidence.
See Murray, 651 F.2d at 454 (time during trial during which to give limiting instruction is within discretion of trial judge). It was stated:
As you'll recall yesterday, I admitted into evidence a series of documents, . . . together with the additional documents this morning.
The documents yesterday concern the [SIPC Suit], [and] one document concerned [the] Bankruptcy [Petition]. The documents today concern [the] Bankruptcy [Petition].
I want you to understand that the Government has offered this evidence or will be offering other evidence, indeed, by which the Government will attempt to prove that on different occasions Mr. Bertoli engaged in conduct similar to the charges in the indictment.
In that connection, I point out to you, Mr. Bertoli is not on trial for committing these other acts which are not charged in the indictment. Accordingly, you may not consider this evidence of other acts as substitute for proof that the defendant, Mr. Bertoli, committed the crimes charged in the indictment. Nor may you consider this evidence as proof that Mr. Bertoli has a criminal personality or bad character.
The evidence of other acts has been admitted, and if others are offered may be admitted, for a much more limited purpose. You may consider this evidence only for the limited purpose.
If you determine that the defendant committed the other acts as these documents are concerned with and the testimony is concerned with, then you may but need not consider this evidence for other purposes such as proof of Mr. Bertoli's motive or intent or plan, knowledge, identity, absence of mistake or other related matters to the indictment.
Now, this evidence of other acts -- and I'll use that term, sort of a generic term -- may not be used by you for any other purpose. You may not use this evidence to conclude that if or because the defendant committed other acts, he must also have committed the acts charged in the indictment. It's not to be used for that purpose and would be inappropriate. You would be violating your duty if you did use it for that purpose. This is just used to demonstrate motive, intent, plan, knowledge, et cetera.
Trial Transcript at 735-737 (emphasis added). These instructions insured that the jury would not use the evidence relating to the SIPC Suit, the Bankruptcy Petition and the Bankruptcy Filings in a manner prohibited by Rule 404(b).
b. The SEC Investigation and the SEC Action
In or about January 1983, the SEC commenced the SEC Investigation into fraudulent and manipulative trading in LCI securities. In or about March 1983, the SEC Investigation was expanded to inquire into fraudulent and manipulative trading in Toxic Waste securities. In June 1983, in connection with the SEC Investigation, the SEC began subpoenaing documents and taking sworn testimony. Trial Transcript at 1194.
On 9 September 1985, as a result of the SEC Investigation, the SEC filed the SEC Action against Bertoli, Cannistraro, Eisenberg, Monarch and a former Monarch broker, Cloyes. Trial Transcript at 1197-98. The SEC Action alleged certain manipulative and fraudulent conduct on the part of these defendants in connection with the trading of LCI and Toxic Waste securities. Trial Transcript at 1198. In the SEC Action, the SEC sought a permanent injunction and other equitable relief. Id.
At trial, the Government sought to introduce into evidence certain documents relating to the SEC Investigation and to the SEC Action, including the complaint in the SEC Action (the "SEC Complaint"). Trial Transcript at 927, 1189. Bertoli objected to the introduction of the SEC Complaint on Rule 404(b) grounds. Trial Transcript at 927.
The SEC Complaint was admitted into evidence because it was not in fact 'other act' evidence under Rule 404(b). Trial Transcript at 929, 1192. As stated, Count Three of the Redacted Second Superseding Indictment charged, inter alia, that Bertoli was involved in a conspiracy to obstruct both the SEC Investigation and the SEC Action. See Redacted Second Superseding Indictment, Count Three, P 14. As indicated at trial, the SEC Complaint was evidence of the SEC Action and as such was direct evidence relating to Count Three. Trial Transcript at 929. It was, therefore, not 'other act' evidence within the meaning of Rule 404(b). See Towne, 870 F.2d at 886. Accordingly, Rule 404(b) could not operate to exclude the SEC Complaint, or any other evidence relating to the SEC Action or SEC Investigation.
c. The SEC's 1979 Bar of Bertoli from Association with Broker-Dealers
In July 1975, the SEC brought administrative proceedings against Bertoli in connection with his activities at Executive Securities (the "1975 SEC Proceedings"). During the 1975 SEC Proceedings, the SEC alleged Bertoli and another employee of Executive Securities had violated anti-fraud provisions of the Federal securities laws. On 25 September 1979, the SEC ordered that Bertoli be "barred from association with any broker or dealer [(the "SEC Bar")]. . . ." Trial Transcript at 616.
The existence of the SEC Bar was relevant to and probative of Bertoli's motive to unlawfully conceal his role at Monarch and High Tech. Moreover, the existence of the SEC Bar was probative of Bertoli's motive to obstruct the SEC Investigation and the SEC Action, as charged in Count Three of the Redacted Second Superseding Indictment. Accordingly, the Government sought to offer evidence of the existence of the SEC Bar into evidence at trial.
Bertoli at first indicated his opposition to the introduction of evidence of the SEC Bar, but later stipulated to its admissibility. Trial Transcript at 503, 615.
Bertoli did not request a limiting instruction relating specifically to the SEC Bar either when the SEC Bar was introduced or at any other time during trial. See Trial Transcript at 615 (SEC Bar admitted into evidence, no 404(b) limiting instruction requested); Record, 873 F.2d at 1376 (court not obligated to give limiting instruction absent request by defendant). In any event, the 404(b) limiting instruction given during the jury charge encompassed the use of the SEC Bar; this instruction related to all 'other act' evidence introduced by the Government. See Trial Transcript at 6719-20.
d. Other 404(b) Evidence
Bertoli objected to the introduction of certain other evidence which he contended constituted prohibited 'other act' evidence under Rule 404(b). Although these items do not relate to Counts Three and Six, they will be discussed briefly:
i. Unindicted Stock Manipulation Schemes
The Government sought to introduce evidence of two stock manipulation schemes in which Bertoli was involved, but which were not listed in Count One of the Redacted Second Superseding Indictment. These schemes related to the securities of Nature's Bounty (the "Nature's Bounty Scheme") and Solar Age (the "Solar Age Scheme") (collectively, the "Unindicted Schemes"). See Brief of Government, dated 28 May 1993 (the "Government's 28 May 1993 Brief") at 2. Bertoli objected under Rule 404(b) to the introduction of any evidence relating to these unindicted stock manipulation schemes. See, e.g., Trial Transcript at 875, 1076.
Evidence of the Unindicted Schemes was admitted over the objection by Bertoli. As recognized at trial, this evidence was not 'other act' evidence within the meaning of Rule 404(b). The Unindicted Schemes provided essential background information to the indicted racketeering schemes. See Trial Transcript at 916-17; Towne, 870 F.2d at 886. Moreover, the Unindicted Schemes provided direct evidence of the existence of "an enterprise, of the continuity of racketeering activity, and of [Bertoli's] knowledge of, agreement to, and participation in the conspiracy." Gonzalez, 921 F.2d at 1530. All of these were elements of the RICO and RICO conspiracy charges contained in Counts One and Two. See 18 U.S.C. § 1962; Reves, U.S. at , 113 S. Ct. at 1169-70; Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1165 (3d Cir. 1989). Because the evidence of the Unindicted Schemes was direct evidence of elements of the Government's case, such evidence was not 'other act' evidence, and as such could not be excluded under Rule 404(b). See Blyden, 964 F.2d at 1378.
Even if analyzed under Rule 404(b), however, evidence of the Unindicted Schemes was admissible.
The Unindicted Schemes were acts of fraud and racketeering similar to those charged and were relevant to prove Bertoli's motive, intent and plan to engage in the racketeering activity charged in Counts One and Two. See Scop, 940 F.2d at 1008; Traitz, 871 F.2d at 389. As indicated at trial:
In addition to demonstrating the background, it assists in understanding the overall intent and action that went on here, demonstrates the awareness of Mr. Bertoli that the conduct he engaged in was not otherwise innocent, it goes to proof of an essential element of the offense, demonstrating knowledge.
It's clearly relevant to an issue other than Mr. Bertoli's character. It is clearly classified as a similar wrong. It fits in the same pattern with regard to [the] RICO counts and the conduct with regard to Monarch and as far as Mr. Bertoli's participation in that conduct, it's relevant to that.
. . .
Clearly based upon the information provided, the jury can find that these events did occur and as I indicated, these appear to be logically relevant to the essence of the indictment.
Trial Transcript at 917.
The probative value of the Unindicted Schemes far outweighed any possible undue prejudicial effect. Specifically, because the Unindicted Schemes were similar in nature to the indicted schemes, there was little possibility that the jury would believe the Unindicted Schemes constituted separate and distinct criminal acts for which Bertoli was on trial. See Scop, 940 F.2d at 1008 ("Though undoubtedly much evidence at trial concerned [the unnamed stocks], there was no shortage of evidence regarding [the defendants') use of nominee accounts, for example, to buy [the named stocks].").
Finally, any potential for undue prejudice resulting from the admission of evidence of the Unindicted Schemes was minimized by limiting instructions given to the jury. See Sampson, 980 F.2d at 886. At trial it was stated:
Ladies and gentlemen, with regard to this evidence on Nature's Bounty and Solar Age, I again remind you that defendant is not on trial for committing the acts concerning these two entities or involved with these two entities.
He's not on trial for anything that's not included in the indictment. You may not consider that evidence that's referred to, either testimonially or in the documents themselves, as a substitute for proof that defendant committed the crimes charged in the indictment. Nor, as I indicated to you in the past, [are you] to consider this . . . evidence as proof that the defendant has a criminal personality or a bad character.
The evidence of these so-called other bad acts is admitted for a more limited purpose and can be used only for this limited purpose. That is, it may be considered for motive or intent, plan or knowledge, identity, absence of mistake as is related to the charges in the indictment. You may not consider the evidence for any other purpose.
Trial Transcript at 1077.
Because the guidelines for admissibility under Rule 404(b) had been met, the evidence relating to the Unindicted Schemes was admitted. See Sampson, 980 F.2d at 886.
ii. The Government's Chart Evidence
As stated, the Government introduced various Demonstrative Charts and Summary Charts, outlining the transactions involved in the charged racketeering schemes, pursuant to Federal Rules of Evidence 611(a) and 1006. See supra, at 167. As also stated, Bertoli objected to the introduction of these charts as inappropriate under the rules for admission of summary evidence.
Id. Bertoli also objected to certain of these charts on the ground that some of the documents upon which the charts were based violated Rule 404(b). Trial Transcript at 1248. Specifically, Bertoli contended those documents relating to the Nature's Bounty Scheme and the Solar Age Scheme were 'other act' evidence prohibited by Rule 404(b). Id. Bertoli, therefore, argued that the Demonstrative Charts and Summary Charts based on evidence of the Unindicted Schemes were similarly inadmissible.
As explained, evidence relating to the Nature's Bounty Scheme and the Solar Age Scheme was not 'other act' evidence excludable under Rule 404(b). See supra, at 208. Moreover, also as explained, evidence of the Unindicted Schemes was admissible even as 'other act' evidence under Rule 404(b). See supra, at 209. Because Rule 404(b) did not bar admission of evidence of the Unindicted Schemes, it did not bar admission of the Demonstrative Charts and Summary Charts which were based on evidence of the Unindicted Schemes. See Pelullo, 964 F.2d 193, 204 (Summary charts based on admissible evidence are admissible under Rule 1006.); Paulino, 935 F.2d at 753 (demonstrative charts describing evidence properly admitted during trial are admissible under Rule 611(a)).
iii. Berco Trust Financial Statements and Corporate Records
At trial, the Government also sought to introduce certain financial statements and corporate records of Berco Trust, dated from about 1981 to about 1987 (the "Berco Trust Documents"). See Trial Transcript at 746-47. These documents were authenticated by the Government pursuant to 18 U.S.C. § 3505. Id. Bertoli objected to the admission of the Berco Trust Documents under Rule 404(b). Id. at 747.
The Berco Trust Documents were admitted over Bertoli's objection because they were not 'other act' evidence excludable under Rule 404(b). The Berco Trust Documents were direct and substantive evidence of the racketeering activity charged in Counts One and Two. Specifically, the Berco Trust Documents were offered by the Government on the ground that bank accounts in the name of Berco Trust contained, in part, the proceeds of Bertoli's manipulative trading schemes. See supra note 35. Because the Berco Trust Documents were direct evidence of indicted criminal activity, they were not 'other act' evidence, and as such were not within the scope of Rule 404(b).
See Towne, 870 F.2d at 886.
iv. The Swiss Bank Documents
At trial, the Government sought to introduce certain documents showing cash disbursements from Bertoli's account at Swiss Bank to Euro Bank and to Bertoli himself (the "Swiss Bank Documents"). Trial Transcript at 747, 751. These documents were also authenticated pursuant to 18 U.S.C. § 3505. Bertoli objected to the introduction of the Swiss Bank Documents on Rule 404(b) grounds. Trial Transcript at 747, 751.
The Swiss Bank Documents were admitted over Bertoli's objection because they did not constitute 'other act' evidence under Rule 404(b). Trial Transcript at 747, 751. The Swiss Bank Documents were direct and substantive evidence of transactions made in furtherance of the racketeering activity charged in Counts One and Two. As such, the Swiss Bank Documents did not constitute 'other act' evidence under Rule 404(b), and could not be excluded under that rule.
See Towne, 870 F.2d at 886.
11. Objection to Special Verdict Sheet
Prior to jury deliberations, Bertoli objected to the submission of special verdict interrogatories to the jury as part of the verdict sheet. See Trial Transcript at 6807, 6812-36. Bertoli argued that (1) special verdict interrogatories are disfavored in this Circuit, (2) such interrogatories were inappropriate because they would cause the jury "to focus on specific predicates as the most important issue in the case, to the exclusion of the court's other instructions" and (3) such interrogatories would be confusing. Id. at 6814.
Special interrogatories are disfavored in criminal cases. United States v. Riccobene, 709 F.2d 214, 228 n.19 (3d Cir.), cert. denied sub nom., Ciancaglini v. United States, 464 U.S. 849, 78 L. Ed. 2d 145, 104 S. Ct. 157 (1983); United States v. Palmeri, 630 F.2d 192, 202 (3d Cir. 1980), cert. denied, 450 U.S. 967, 67 L. Ed. 2d 616, 101 S. Ct. 1484 (1981); see also United States v. McNeese, 901 F.2d 585, 605 (7th Cir. 1990). This disfavor "results from interrogatories that lead the jury in a step-by-step progression to a verdict of guilty." Palmeri, 630 F.2d at 202 (citing United States v. Frezzo Bros., Inc., 602 F.2d 1123, 1129 (3d Cir. 1979), cert. denied, 444 U.S. 1074, 62 L. Ed. 2d 756, 100 S. Ct. 1020 (1980); United States v. Spock, 416 F.2d 165, 182 (1st Cir. 1969)); see also Riccobene, 709 F.2d at 228 n.19 (fear of special interrogatories is that they "may unduly sway the jury in its decision regarding the defendant's guilt or innocence").
The Circuit, nevertheless, has not established a per se rule against special interrogatories. Palmeri, 630 F.2d at 202. When the concern that special interrogatories will be unduly suggestive and provide a roadmap to conviction is absent, courts have permitted special interrogatories to be submitted to the jury. See, e.g., United States v. Pungitore, 910 F.2d 1084, 1136 n.1 (3d Cir. 1990), cert. denied sub nom., Scarfo v. United States, 500 U.S. 915, 111 S. Ct. 2009, 114 L. Ed. 2d 98, 111 S. Ct. 2010, 111 S. Ct. 2011 (1991); Riccobene, 709 F.2d at 228 n.19; Palmeri, 630 F.2d at 202.
In this case, the special verdict sheet was presented to the jury as follows. The two-page verdict sheet (the "Verdict Sheet") listed Count One through Count Seven, with a space next to each for the jury to check "guilty" or "not guilty." In addition, sealed in a separate envelope, was a four page appendix (the "Verdict Sheet Appendix") which listed the predicate acts as alleged in the Redacted Second Superseding Indictment, with a space next to each for the jury to check "proved" or "not proved."
The jury was given the following instructions with regard to the Verdict Sheet and Verdict Sheet Appendix:
The verdict sheet is in two parts, page one and two and then there is an appendix, pages one, two, three and four.
You're not to use the appendix unless and until you've determined beyond a reasonable doubt to count one, [that] the defendant is guilty to count one. If you find the defendant not guilty as to count one, you leave the appendix in the envelop and you don't use it.
If you find the defendant guilty as to count one, then you'll use the appendix and answer the inquiries that are on there. That's not to be used unless and until there is a finding as to count one.
The entire verdict sheet . . . [is] merely a physical vehicle to assist you in returning your verdict. There's no message there. It is not evidence. That's all it is to be used for.
I again stress, before you go to what I'll call the appendix, you must answer question one. If you find the defendant guilty beyond a reasonable doubt, check off guilty and go to the appendix and respond to those questions. If you find him not guilty, you leave the appendix in the envelope and go on with deliberations. . . .
You only use the appendix when you resolve count one and only if you resolve it with a finding of guilty beyond a reasonable doubt.
Trial Transcript at 6838-39.
There was no danger that the special interrogatories submitted to the jury would be unduly suggestive and provide a roadmap to conviction. The jury was instructed three times that it could not look at or consider the Verdict Sheet Appendix, listing the alleged predicate acts, until it had reached a verdict of guilty beyond a reasonable doubt with regard to Count One. Accordingly, the Verdict Sheet Appendix could in no way influence the jury's verdict with regard to Count One. See Palmeri, 630 F.2d at 203; see also Riccobene, 709 F.2d at 228 (no danger where jury presented with special interrogatories after verdict returned). Any danger of undue suggestiveness was also quelled by placing the Verdict Sheet Appendix in a sealed envelope, which, in fact was never unsealed by the jury.
In addition, as pointed out in the Trial Transcript, the interrogatories used in the Verdict Sheet Appendix were not interrogatories as the term is ordinarily used. See Trial Transcript at 6815. "Usually interrogatories are sentences, asking certain things." Id. In contrast, the special interrogatories in this case contained neither descriptive nor extraneous language nor any reformulation of the jury charge. They merely listed the racketeering act, by name and number as described in the Redacted Second Superseding Indictment, and required the jury to check "proven" or "not proven" in the space next to the racketeering act.
Use of such an unadorned list was not improperly suggestive. Palmeri, 630 F.2d at 203.
Finally, because this was a RICO case, use of the Verdict Sheet Appendix was necessary to indicate, for the purposes of a potential appeal, which predicate acts the jury had found to be proven so as to satisfy the RICO statute's pattern of racketeering requirement. See Riccobene, 709 F.2d at 214 n.19 (citing Note, RICO and the Predicate Offenses, 58 Notre Dame L. Rev. 382, 407-08 (1982)); see also 18 U.S.C. § 1962(c).
Under Section 1962(c), a pattern of racketeering is established by proof that the defendant committed two or more predicate offenses. See 18 U.S.C. § 1962(c). However, under United States v. Brown, 583 F.2d 659 (3d Cir. 1978), cert. denied sub nom., Greenblatt v. United States, 440 U.S. 909, 59 L. Ed. 2d 456, 99 S. Ct. 1217, reh'g denied, 441 U.S. 917, 60 L. Ed. 2d 389, 99 S. Ct. 2019 (1979), if a defendant is charged with multiple predicate offenses -- as in this case -- and the Circuit cannot determine which specific offenses the jury relied upon in reaching its verdict, the evidence must be sufficient to prove all of those offenses. Id. at 669-70; see also Riccobene, 709 F.2d at 227. In other words, if, on appeal, the Circuit finds insufficient evidence to support one of the predicate offenses and cannot determine which of the multiple predicate offenses the jury found to be proven, the RICO conviction must be reversed for failure to satisfy the RICO pattern requirement. See Brown, 583 F.2d at 669-70. This being the case, use of the Verdict Sheet Appendix and special predicate act interrogatories in this case were necessary, as well as appropriate.
12. Objection to Hard Copy of Jury Charges and Hard Copy of Trial Transcript Being Submitted to Deliberating Jury
On numerous occasions during deliberations, the jury requested the testimony of certain witnesses. See Trial Transcript at 6844, 6885, 6887, 6899, 6913. Rather than re-read the testimony back to the jury, hard copies of the Trial Transcript were sent into the jury room. See id. at 6844-46, 6885-86, 6890, 6899, 6913. On each occasion, counsel for Bertoli objected to this practice on the ground that the Trial Transcript was not an exhibit.
See id. at 6845-46, 6885-86, 6889, 6899, 6913.
Similarly, on 12 August 1993, the jury requested a copy of the jury charge. See id. at 6856. Counsel for Bertoli objected to submission of a hard copy of the charges being submitted to the jury for the following reasons:
My own view is that if the jury has specific questions about the law, they should get reinstructed, but I don't agree to sending the whole charge in. . . . It's not an exhibit. Another thing, there is a danger that one juror's going to read it and tell the other jurors what's in it rather than everybody hearing it and rereading it at the same time.
Id. at 6856-57. A hard copy of the jury charge was given to the jury over the objection of Bertoli. See id. at 6857-59, 6874.
Both of Bertoli's objections were without merit. First, with regard to providing the jury with hard copies of Trial Transcripts, "the furnishing of transcripts to a jury is generally well within [a trial] court's discretion." United States v. Betancourt, 838 F.2d 168, 175 (6th Cir.), cert. denied sub nom., Cubillos v. United States, 486 U.S. 1013, 100 L. Ed. 2d 210, 108 S. Ct. 1748 (1988); see United States v. Lujan, 936 F.2d 406, 411 (9th Cir. 1991) (providing trial transcript to jury was not an abuse of discretion); accord United States v. Nolan, 700 F.2d 479, 486 (9th Cir.), cert. denied, 462 U.S. 1123, 77 L. Ed. 2d 1354, 103 S. Ct. 3095 (1983); United States v. Patterson, 644 F.2d 890, 898 (1st Cir. 1981); United States v. Pollak, 474 F.2d 828, 832 (2d Cir. 1973); see also United States v. Zarintash, 736 F.2d 66, 69-70 (3d Cir. 1984) ("trial court has broad discretion in deciding whether to accede to a jury's request for a reading of testimony"); United States v. Wright- Barker, 784 F.2d 161, 174 (3d Cir. 1986) (same); United States v. Chrzanowski, 502 F.2d 573, 577 (3d Cir. 1974) (same); United States v. Rabb, 453 F.2d 1012, 1013-14 (3d Cir. 1971) (same).
While some courts have stated that the re-reading of testimony during a jury's deliberations is generally "disfavored because of the emphasis it places on specific testimony and the delay it causes in the trial," see Nolan, 700 F.2d at 486; accord Patterson, 644 F.2d at 898, those same courts have indicated that the decision must consider "the particular facts and circumstances of the case." United States v. Sacco, 869 F.2d 499, 501 (9th Cir. 1989). Indeed, the Third Circuit has taken an even stronger position and has stated:
Discretion is based upon a limited, twofold rationale: first, that requests to read testimony may slow the trial where the requested testimony is lengthy; second, that reading only a portion of the testimony may cause the jury to give that portion undue emphasis. Thus. . . a trial judge abuses his discretion where the refusal to read requested testimony is not supported by one of these reasons.
Zarintash, 736 F.2d at 70 (citing Rabb, 453 F.2d 1012, 1013-14) (emphasis added); accord Wright-Barker, 784 F.2d 161, 174.
In this case, as an initial matter, Bertoli did not object to the re-reading of testimony to the jury but, instead, merely objected to submission of a hard copy of the Trial Transcript to the jury. See Trial Transcript at 6845-46 (counsel for Bertoli stated "if the jury wants a read back, that's fine"); see also id. at 6885-86, 6889, 6899, 6913. As the Circuit has indicated, this distinction is irrelevant. See Zarintash, 736 F.2d at 70 (explaining that distinction between request by jury to "see" testimony and one to "rehear" testimony characterized as "a distinction of form, not substance").
Indeed, on appropriate occasions, the Circuit has required that a copy of the trial transcript be provided when requested by a jury. See, e.g., id. at 70-71.
The facts and circumstances of this case, moreover, indicate that the dangers of re-reading testimony to the jury were not present and that failure to provide the jury with the requested testimony would have constituted an abuse of discretion under Zarintash. Given that the jury requested and received the testimony of eleven separate witnesses, see id. at 6844-46 (one witness), 6885-86, 6890 (six witnesses), 6899 (one witness), 6913 (three witnesses), no undue emphasis was placed on the testimony of any single witness.
Because the jury was presented with the entire testimony of each witness, there was no danger that a specific portion of a witness' testimony would be inadvertently omitted or selectively emphasized in a read-back.
Finally, providing the jury with copies of the Trial Transcript conserved time in comparison to re-reading that testimony aloud to the jury.
Accordingly, presentation of the Trial Transcript to the jury was both appropriate and necessary.
With regard to submission to the jury of a written copy of the jury charges, here too "courts have wide discretion to submit the test of the charge to the jury." United States v. Delano, 825 F. Supp. 534, 546 (W.D.N.Y. 1993); see also United States v. Parent, 954 F.2d 23, 24 n.1 (1st Cir. 1992); United States v. Henry, 878 F.2d 937, 940 (6th Cir. 1989) (decision to send in written instructions was "proper exercise of the court's discretion") (citing United States v. Acosta, 763 F.2d 671, 677 (5th Cir.), cert. denied, 474 U.S. 863 (1985)).
As the Delano court recently observed:
As litigation grows increasingly complex, the jury often may be helped in their deliberations by having a copy of the instructions on a certain point be repeated. The trial judge has wide discretion as to whether he [or she] will submit a copy of his [or her] instructions to the jury.
825 F. Supp. at 546 (citing United States v. Standard Oil Co., 316 F.2d 884, 896 (7th Cir. 1963)); see also United States v. Watson, 669 F.2d 1374, 1386 (11th Cir. 1982) ("under appropriate circumstances, the use of . . . a written charge could well aid juror comprehension, as well as expedite the proceedings").
In Delano, moreover, the court recognized that four factors, virtually identical to the factors in this case, supported submission of a written copy of the jury charges to the deliberating jury. The Delano court explained: " the trial lasted almost three months;  the jury charge lasted over three hours;  the over 300 pages of charge encompassed instructions on ten counts, including the complex law of RICO and RICO conspiracy; and  because some of the racketeering acts under RICO and RICO conspiracy involved the same charges as other counts in the indictment, the jury charge simply referenced instructions previously given, rather than repeating them." 825 F. Supp. at 547.
The Delano court also observed that the manner and form of presentation guarded against any potential prejudice to the defendant. Id. An unmarked copy of the jury charge was submitted to the jury and, prior to turning over the written copy, the jury was instructed that (1) they were to apply these instructions to the facts as they determined them and (2) they were to read the instructions as a whole and not single out any instruction as alone stating the law. Id.
In this case, not only was submission of a written copy of the jury charge to the deliberating jury within the court's discretion, but the facts and circumstances of this case made such submission particularly appropriate. Like Delano, this case lasted approximately three months and had a charge to the jury which lasted more than three hours and encompassed seven counts, including the complex law of RICO and RICO conspiracy. See Trial Transcript at 6718-806.
Also as in Delano, the presentation of the jury charge was done in a manner designed to eliminate any potential prejudice. The jury was presented with a plain unmarked copy of the portion of the Trial Transcript containing the jury charge. Moreover, the jury was instructed in the preface to the jury charge, as well as when the transcript was sent in to the jury room, that they were to "accept and apply the law for this case as it is given . . . in this charge" and that they "shall take these instructions as a whole package . . . [and] not pick out any particular instruction and place undue emphasis on it." Trial Transcript at 6718. Accordingly, submission of a written copy of the jury charge was neither improper nor objectionable.
13. Objection to Submission of Jury Books to Jury
During deliberation, the jury also requested the jury books used at trial. Trial Transcript at 6854, 6869. These jury books contained documentary evidence used by the parties at trial. All of the documents in the Government's jury books (the "Government Jury Books") were admitted into evidence at trial.
Id. at 6856. The jury books used by Bertoli (the "Bertoli Jury Books") contained documents which were not introduced into evidence at trial (the "Non-Admitted Documents"). Id. at 6862.
It was determined that the documents in the jury books which were admitted into evidence at trial would be submitted to the jury, but the Non-Admitted Documents would be excised from the jury books before submission. Id. at 6874. Bertoli objected to the admission of the Government Jury Books and to the exclusion of the Non-Admitted Documents from the Bertoli Jury Books.
Id. at 6871.
Bertoli's objections were without merit. First, the Government Jury Books were properly submitted to the jury. "Once exhibits are properly admitted into evidence, it is within the sound discretion of the trial court to allow them to be sent into the jury room." United States v. Foster, 815 F.2d 1200, 1202 (8th Cir. 1987); see United States v. Aragon, 983 F.2d 1306, 1309 (4th Cir. 1993); United States v. Scaife, 749 F.2d 338, 347 (6th Cir. 1984). Absent clear prejudice, "[j]urors are generally entitled to examine documents properly admitted in evidence." United States v. De Coito, 764 F.2d 690, 695 (9th Cir. 1985); see Aragon, 983 F.2d at 1309 (Submission of properly admitted evidence to jury cannot be challenged "absent clear prejudice. . . ."); United States v. De Hernandez, 745 F.2d 1305, 1308 (10th Cir. 1984) ("The trial court may send all or part of the exhibits admitted into evidence before or after it has begun deliberations."); United States v. Gordon, 685 F. Supp. 106, 107 (E.D.Pa. 1988) (no error to submit to jury evidence admitted without objection of defendant).
As indicated, each document contained in the Government Jury Books was properly admitted into evidence at trial; Bertoli does not argue otherwise. Bertoli did not, in fact, object to the jury's use of the Government Jury Books during trial. The Government Jury Books were merely a compilation of properly admitted evidence. The jury was entitled, and in fact obligated, to view all the evidence introduced at trial. It was, therefore, proper to submit the Government Jury Books to the jury.
See Pinto, 850 F.2d at 927 ("We find no error in the court's decision to allow the properly admitted summary charts into the jury room during deliberations."); Scales, 594 F.2d at 564 n.3 (same).
Bertoli argues the Government Jury Books were "selectively assembled" in an order meant to argue the Government's case, and therefore should not have been submitted to the jury. 19 January 1994 Bertoli Brief at 36; see id. at 37. Contrary to Bertoli's suggestion, however, the documents in the Government Jury Books were arranged in the order in which they were admitted into evidence. This order was the same order in which the documents were presented to the jury at trial; Bertoli did not object to the arrangement of the Government Jury Books during trial. Accordingly, the submission of the Government Jury Books to the jury in this order was not prejudicial to Bertoli. Absent a showing of clear prejudice, Bertoli cannot challenge the submission of the Government Jury Books to the jury. See Aragon, 983 F.2d at 1309.
As stated, Bertoli further argues it was error to excise the Non-Admitted Documents from the Bertoli Jury Books before submitting the latter to the jury. See 19 Jan. 1994 Bertoli Brief at 36. This argument is also without merit. "A jury is bound to decide a case purely on the law and the evidence; it is therefore error for a jury to rely on items not admitted into evidence to reach its verdict." United States v. Hans, 738 F.2d 88, 92 (3d Cir. 1984); see Government of Virgin Islands v. Joseph, 685 F.2d 857, 863-64 (3d Cir. 1982). Therefore, evidence not properly admitted during trial may not be submitted to the jury during deliberations.
See United States v. Casoni, 950 F.2d 893, 914 (3d Cir. 1991).
In the instant case, as stated, the Non-Admitted Documents were not in evidence. At most, these documents were argument. As such, the Non-Admitted Documents could not be submitted to the jury along with the Bertoli Jury Books. See Casoni, 950 F.2d at 914. The Non-Admitted documents were, therefore, properly excised from the Bertoli Jury Books.
14. Objection to Subsequent Charges to Jury
As already discussed, on two occasions during the deliberations, the jury indicated it was deadlocked and additional instructions were given. On the first occasion, the jury wrote: "Judge Lechner, after careful deliberation and consideration we have only reached a unanimous agreement on two counts of the indictment. At this point we are unable to reach agreement on any of the other counts remaining." Id. at 6906. In response, the following instruction was given:
COURT: . . . . As I pointed out in my charge to you, you have an obligation to deliberate with a view toward reaching an agreement in this case, and I also point out to you that you should not hesitate to reexamine your own views and your own positions if you can do so without doing violence to your individual judgment.
I'm going to recess for the evening and we'll begin tomorrow morning recommencing deliberations. Now I point out to you that, obviously, at this point your deliberations aren't to end. We'll pick them up tomorrow morning.
Remember the idea of a jury system. Its where twelve people sit down and deliberate and talk about whatever differences there may be and the evidence, viewpoints and discuss the case with a view towards reaching an agreement.
I again stress that you have that obligation and you have the option to change you opinion, whatever that opinion may be, but I stress you should not do so merely for the purpose of returning a verdict. Your purpose here is to be a judge of the facts, individually and collectively. That's your obligation.
Trial Transcript at 6907 (emphasis added). Counsel for Bertoli objected to this instruction on the grounds that (1) it was a modified Allen charge, see Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896), and (2) the parties were not heard on what the supplemental charge would be prior to its presentation to the jury. Id. at 6908. A motion for a mistrial on these grounds was then denied. Id.
The following morning, prior to deliberations, the jury was again instructed as follows:
COURT: Ladies and gentlemen, we're going to recommence the deliberations this morning. I want to point out to you, as I indicated in the past, it's your duty as jurors to consult with one another, deliberate with a view toward reaching an agreement if you can do so without doing violence to your individual judgment.
Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence, all of the evidence in the case. Do so with the other members of the jury.
In the course of your deliberations, do not hesitate to reexamine your own views and change your own opinion if you're convinced its erroneous, but do not, do not surrender your honest conviction because of the opinion of the other members of the jury or for the mere purpose of returning a verdict.
As I've pointed out to you, you are not partisans, you are judges of the facts. As I've also pointed out to you, you are not to select any one or even a few of the jury charges I have given to you and place undue emphasis on it or them. You are to consider the jury charges as a whole package during your deliberations.
I'm going to ask that you return to the jury room and recommence your deliberations. Thank you.
Id. at 6910-11 (emphasis added). Counsel for Bertoli renewed the objection made on the prior day. Id. at 6911.
On the second occasion that the jury indicated it was deadlocked, the note read:
Judge Lechner, it is at this point that we ask for some guidance. We have reread your charge to us very carefully and have taken your additional advice very seriously.
However, after completely examining and taking notes on every act included in each count, we have concluded with an 11, one vote on the majority of them. This places us in a standstill as to how we can proceed from here to arrive at unanimous verdicts while still being fair and impartial.
We would like you to know that we have reached agreement on three counts of the indictment, but want to know if you can give us further instructions or suggestions on where to go from here.
Thank you for your patience and cooperation, the jury."
Id. at 6921.
In response to the second communication from the jury, essentially the same supplemental instruction was given:
COURT: . . . . You asked for further instruction and I will give it to you. I point out to you that you have to use your good, common sense and that fairness and impartiality is the hallmark of an American jury and that's what you have sworn [to uphold], fairness and impartiality.
As you've indicated in this note, you very carefully reviewed the charge I've given to you and you have the obligation to review all of the evidence and consider all of the evidence that was presented to you during the course of the trial.
As I mentioned, it is your duty as jurors to consult with one another and to deliberate with a view toward reaching an agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence in the case with the other members of the jury.
In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced its erroneous, but do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of the other members of the jury or for the mere purpose of returning a verdict.
I stress to you that you are not partisans. You are judges, judges of the facts in the case. You are to use your good, common sense in being fair and impartial in this case.
As I also mentioned to you the other day, you are not to select any one or even a few of the instructions and place undue emphasis on that one or the few of the instructions. You are to take the instructions as a whole package and apply those instructions, that is the law to the facts as you find the facts to be.
Now, I ask that you retire to the jury room and recommence your deliberations. Thank you.
Id. at 6922-23 (emphasis added). There was no objection to this final instruction.
The objections of Bertoli to the supplemental charges were without merit. First, the charges given in no way resembled an Allen charge. An Allen charge is a "device to generate verdicts, and thus eliminate hung juries." United States v. Fioravanti, 412 F.2d 407, 416 (3d Cir.), cert. denied sub nom., Panaccione v. United States, 396 U.S. 837, 24 L. Ed. 2d 88, 90 S. Ct. 97 (1969). An Allen charge essentially instructs a juror "to distrust his own judgment if he [or she] finds a large majority of jurors taking a view different from his [or her]." Id. at 420. In the Third Circuit, the giving of an Allen charge is "normally reversible error." Id. ; accord United States v. Graham, 758 F.2d 879, 883 (3d Cir.), cert. denied, 474 U.S. 901, 88 L. Ed. 2d 227, 106 S. Ct. 227 (1985).
In lieu of an Allen charge, the Circuit has suggested that, "if there is any disposition to instruct jurors to consult with others in the deliberative process," trial judges should use the following charge:
It is your duty, as jurors, to consult with one another, and to deliberate with a view toward reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views, and change your opinion, if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
Fioravanti, 412 F.2d at 420 n.32 (quoting Mathes & Devitt, Federal Jury Practice and Instructions P 79.01 (1965)).
The supplemental instructions in this case, unlike an Allen charge, in no way instructed the jurors to distrust their own judgment in the face of a disagreeing majority. In fact, as is evident from a reading of the supplemental instructions in this case, those instructions deliberately tracked the language suggested by the Circuit in Fioravanti. Jurors were instructed to deliberate with a view toward reaching an agreement, only if they "could do so without violence to [their] individual judgment." Trial Transcript at 6907, 6910-11, 6922-23; see Fioravanti, 412 F.2d at 420 n.32. In addition, jurors were specifically cautioned not to surrender their individual judgments "solely because of the opinion of the other members of the jury or for the mere purpose of returning a verdict." Id. at 6907, 6910-11, 6922-23. Accordingly, Bertoli's characterization of the supplemental instruction as an Allen charge was erroneous.
With regard to the objection that the parties should have been heard on the contents of the supplemental instructions prior to the giving of those instructions to the jury, Bertoli provided no support for this position. Indeed, given that the supplemental instructions provided to the jury tracked an instruction already approved by the Circuit, this objection had no merit. See United States v. United States Gypsum Co., 550 F.2d 115, 131 n.4 (3d Cir. 1977) (re-affirming that charge outlined in Fioravanti was proper supplemental charge to jury), aff'd, 438 U.S. 422, 57 L. Ed. 2d 854, 98 S. Ct. 2864 (1978).
E. Pre-Trial and Trial Motions and Objections by Government
1. Motion to Preclude Bertoli From Presenting a Defense Based on Selective or Vindictive Prosecution or Governmental Misconduct
On 21 May 1993, the Government moved to preclude Bertoli from presenting a defense based upon selective or vindictive prosecution or on Governmental misconduct.
See Government First Preclusion Brief at 3-6. According to the Government, these were not proper issues for the jury to consider and, moreover, the court had already ruled on these questions. Id.
Case law definitively establishes that questions of vindictive prosecution and Government misconduct are not proper questions for the jury to consider. With regard to vindictive or selective prosecution, the Circuit stated twenty years ago in United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973):
Appellants sought to introduce evidence of discriminatory prosecution to the jury. . . . Appellants' argument misconceives the proper division of responsibility between judge and jury in a Federal criminal proceeding. By both tradition and constitutional mandate the jury is given the responsibility of determining guilt or innocence according to instructions of law given by the court. The question of discriminatory prosecution relates not to the guilt or innocence of appellants, but rather addresses itself to a constitutional defect in the institution of the prosecution. [Fed. R. Crim. P.] 12(b)(2) provides: "Defenses and objections based on defects in the institution of the prosecution . . . may be raised only by motion before trial." Rule 12(b)(4) provides: "An issue of fact shall be tried by the jury if a jury trial is required under the Constitution or an act of Congress. All other issues of fact shall be determined by the court. . . ."
Id. at 174-75; see United States v. Napper, 553 F. Supp. 231, 232 (E.D.N.Y. 1982) ("defendant does not have the right to present a selective prosecution claim to a jury").
Case law also establishes that the issue of whether the Government's misconduct is so outrageous as to require dismissal of an indictment is a question within the sole province of the court. The Circuit stated in United States v. Engler, 806 F.2d 425 (3d Cir. 1986): "The question whether governmental conduct was so outrageous as to constitute a violation of due process is a question of law to be determined by the court, not the jury." Id. at 430 (citing United States v. Salazar, 720 F.2d 1482, 1488 (10th Cir. 1983), cert. denied, 469 U.S. 1110, 83 L. Ed. 2d 783, 105 S. Ct. 789 (1985); United States v. Prairie, 572 F.2d 1316, 1319 (9th Cir. 1978); United States v. Russell, 411 U.S. 423, 441, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973) (Stewart, J. dissenting)), cert. denied, 481 U.S. 1019 (1987).
In April 1992, prior to trial, Bertoli moved to dismiss the Second Superseding Indictment on a number of grounds, including prosecutorial misconduct, pre-indictment delay, selective prosecution and vindictive prosecution. See Cannistraro, 800 F. Supp. 30, 48-65. These arguments were considered at length and were rejected. See id.
Both the Supreme Court and the Third Circuit have indicated that trial courts have an obligation to prevent arguments regarding Government conduct or motives from "going 'out of bounds.'" See United States v. Young, 470 U.S. 1, 13, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985) (citation omitted); see also Pungitore, 910 F.2d at 1127 (urging close supervision by district court of defense claims of prosecutorial misconduct).
There was no reason to allow Bertoli to present evidence of selective or vindictive prosecution or of prosecutorial misconduct to the jury because such evidence, if it existed, could not properly be considered by the jury. Engler, 806 F.2d at 430; Berrigan, 482 F.2d at 174-75; see also Salazar, 720 F.2d at 1488; Prairie, 572 F.2d at 1319; Napper, 553 F. Supp. at 232. Moreover, Bertoli's arguments with regard to selective or vindictive prosecution and Government misconduct had already been considered and rejected, see Cannistraro, 800 F. Supp. 30, 48-51, 59-65, and, therefore, were properly excluded. See Young, 470 U.S. at 13; Pungitore, 910 F.2d at 1127.
Significantly, Bertoli offered no compelling authority to support the denial of the Government's motion to preclude. While Bertoli cited legal authority, see 26 May 1993 Bertoli Preclusion Brief at 1-2, that authority, at best, supported only Bertoli's right to present a defense generally. See id. (citing In re Oliver, 333 U.S. 257, 273, 92 L. Ed. 682, 68 S. Ct. 499 (1948); Chambers v. Mississippi, 410 U.S. 284, 294, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973); Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974)). Bertoli's authority did not specifically address his asserted right to present a defense based on vindictive or selective prosecution or on Government misconduct.
Accordingly, the Government motion to preclude Bertoli from presenting a defense or any evidence based on selective or vindictive prosecution or on Government misconduct was granted on 28 May 1993. See 28 May 1993 Tr. at 21.
Bertoli appears to argue evidence of prosecutorial motive was admissible under Fed.R.Evid. 404(b). See Supplemental Memorandum of Law in Support of Motion for Bail Pending Appeal, dated 19 January 1994 (the "19 Jan. 1994 Bertoli Brief"), at 8. Rule 404(b) provides for the admissibility of 'prior bad act' evidence to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b); see Huddleston, 485 U.S. at 691. However, in order to be admissible under Rule 404(b), evidence must be "relevant," as that term is defined by Fed.R.Evid. 401.
See Huddleston, 485 U.S. at 691; Sampson, 980 F.2d at 886.
Under Rule 401:
"Relevant evidence" means any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Fed.R.Evid. 401 (emphasis added). As stated, the issue of prosecutorial misconduct could not be submitted to the jury, and was therefore properly resolved by the court before trial. See supra, at 237-38. Because the issue of prosecutorial motive was not proper for submission to the jury, evidence relating to prosecutorial motive was not "of consequence to the determination of the action." Id. Such evidence, being irrelevant under Rule 401, was not admissible under Rule 404(b). See Huddleston, 485 U.S. at 691.
Bertoli argues evidence of prosecutorial motive would have been relevant to the impeachment of Government witnesses as evidence of their motive to lie. Bertoli states he "intended to argue . . . that the Government influenced unfairly the testimony of certain witnesses.
Anticipating the need to explain to the jurors why the Government would desire to so influence the witnesses, Bertoli intended to introduce evidence of Government motive. . . ." 15 December 1993 Bertoli Letter at 3 (emphasis in original).
Contrary to Bertoli's assertion, any marginal relevance of prosecutorial motive to impeachment issues did not render evidence thereof admissible. Even if such evidence were "relevant" under Rule 401, it was excludable under Fed.R.Evid. 403. Rule 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Fed. R. Evid. 403.
In the instant case, evidence of prosecutorial motive was not indicative of the credibility of Government witnesses. At most, such evidence was indicative of the Government's motive to induce witnesses to lie while testifying. Even if Bertoli did establish improper prosecutorial motive, it would not necessarily follow that the Government's witnesses had lied. The probative value of evidence of prosecutorial motive, even under the theory advanced by Bertoli, was slight at best.
Allowing Bertoli to introduce evidence of prosecutorial motive would, as the Government points out, have caused the case to devolve "into a mini-trial of the Government's alleged motives and misconduct." Government's Memorandum of Law in Opposition to Defendant Bertoli's Anticipated Motion for Bail Pending Appeal, dated 14 February 1994 (the "14 Feb. 1994 Government Brief"), at 6. The authenticity and probative value of each document submitted by Bertoli would have been open to attack by the Government, as would the credibility of any witnesses called by Bertoli. For these reasons, courts have exercised their discretion under Rule 403 to exclude evidence of prosecutorial motive where it was offered to attack the credibility of Government witnesses. See United States v. Renfro, 620 F.2d 497, 500-01 (5th Cir.) (evidence of FBI agent's bias properly excluded under Rule 403 where basis of relevance was allegation that agent had offered immunity to witnesses in exchange for testimony), cert. denied, 449 U.S. 921, 66 L. Ed. 2d 149, 101 S. Ct. 321 (1980); United States v. Johnson, 605 F.2d 1025, 1030 (7th Cir. 1979) (evidence indicating "indictment was a political instrument" properly excluded under Rule 403 because admission would have "permitted excursions into extraneous and collateral matters"), cert. denied, 444 U.S. 1033, 62 L. Ed. 2d 670, 100 S. Ct. 706 (1980).
"When the trial court excludes evidence tending to impeach a witness, it has not abused its discretion as long as the jury has in its possession sufficient information to appraise the biases and motivations of the witness." United States v. Parker, 991 F.2d 1493, 1497 (9th Cir.), cert. denied, U.S. , 114 S. Ct. 121 (1993); see United States v. Lopez, 885 F.2d 1428, 1438 (9th Cir. 1989) (same), cert. denied, 493 U.S. 1032, 107 L. Ed. 2d 765, 110 S. Ct. 748 (1990); Renfro, 620 F.2d at 501 (exclusion of impeachment evidence proper where bias was established by other sources).
In the instant case, Bertoli was able, during cross-examination of Eisenberg and Foster, to fully develop his theory that these witnesses were lying to please the Government.
Bertoli was able to introduce evidence of the plea agreements that existed between these witnesses and the Government, as well as evidence of inconsistencies in statements made by the witnesses. The jury, therefore, had adequate information regarding Bertoli's theory of witness bias. In light of this fact, and the scant probative value of evidence relating to prosecutorial motive, evidence regarding prosecutorial motive was properly excluded under Rule 403.
Bertoli further argues evidence of prosecutorial motive should have been admitted because the Government was permitted to present evidence concerning Bertoli's motive to commit the charged offenses.
19 Jan. 1994 Bertoli Brief at 8-11. However, the admission of evidence regarding Bertoli's motive has no bearing on the admissibility of evidence regarding prosecutorial motive. Admission of evidence is not a reciprocal exercise. The admission of prior bad act evidence offered by the Government does not require that the defense be allowed to present evidence which is violative of the Federal Rules of Evidence. Rather, the admissibility of each offer of evidence is to be evaluated independently under the Federal Rules of Evidence and the relevant case law.
In the instant case, the 'other bad act' evidence offered by the Government was admissible to prove Bertoli's motive and intent under Rule 404(b). Because Bertoli's intent was a crucial element of the charges against him, evidence relating his motive, intent and absence of mistake were relevant under Rule 401. See supra, at 190. Under the same principles, evidence relating to prosecutorial motive was irrelevant, and, if arguably relevant, so marginally relevant as to be inadmissible under Rule 403, if not Rule 402.
2. Motion to Quash Bertoli's Subpoena of Government's Case Agent
During trial, on 28 July 1993, the Government advised the court of Bertoli's intention to serve a subpoena on Special Agent Michael Cahill ("Special Agent Cahill"), the FBI's case agent in charge of the investigation of Bertoli (the "Cahill Subpoena").
Trial Transcript at 5388. Pursuant to 28 C.F.R. § 16.23(c), which governs the procedures to be followed in subpoenaing agents of the FBI, Bertoli was required to provide the Government with "an affidavit, or, if that is not feasible, a statement . . . setting forth a summary of the testimony sought. . . ." 28 C.F.R. § 16.23(c). Though Bertoli had not provided the Government with such an affidavit or statement, a proffer of relevance was invited. Trial Transcript at 5393.
Bertoli's counsel responded:
There are several areas I'll question [Special] Agent Cahill about, one of which concerns his interviewing of particular witnesses and whether or not those interviews concerned any undue suggestion to those witnesses.
Bertoli made additional proffers on 29 July 1993. Outside of the presence of the jury, Bertoli's counsel first stated he required the testimony of Special Agent Cahill "to show that he was present, either alone or with others, during many interviews with several of the cooperating witnesses who were called by the Government." Id. at 5511. Counsel for Bertoli explained:
It's the defense position that in those interviews, [Special Agent] Cahill influenced their testimony, thereby inducing, obviously by using the word "inducing," I'm not suggesting a monetary bribe or anything like that, but thereby inducing those witnesses to testify in a way contrary to the facts. . . ."
When Bertoli's counsel was asked to provide specifics concerning the type of 'inducement' to which he was alluding, he stated:
There are ways to suggest to a witness that certain testimony is desired and it's not necessarily subornation of perjury or obstruction of justice, but an investigator, an FBI agent, even an attorney, who may not be intending to suborn perjury, who may not be intending to obstruct justice, by doing certain things or acting in a certain way, he telegraphs to a potential witness the answers he hopes to get.
Id. at 5512.
Bertoli's counsel was again informed that this was too vague a proffer as to what Special Agent Cahill did to induce Government witnesses to testify untruthfully. Id. at 5513. Bertoli's counsel then responded that it was his "belief" that "in either [Special Agent] Cahill's office or in an office adjacent to [Special Agent] Cahill's, where some of the interviews [with Government witnesses] were conducted, [there were] either two or three pictures on the wall of . . . Bertoli . . . and that there is a very suggestive sign on the way as well that's connected to this case." Id. at 5515.
Bertoli's counsel later clarified that the pictures and signs he referred to were, he believed, in an office adjacent to Special Agent Cahill's office (the "Adjacent Office"). Id. Bertoli's counsel further stated he "believed" certain interviews with Government witnesses were conducted in the Adjacent Office. Id. at 5516. Bertoli's attorney stated the "suggestive sign" to which he had referred was "not specifically concerning Bertoli."
Id. Bertoli's counsel then stated he did not know whether Special Agent Cahill had maneuvered any Government witnesses into the Adjacent Office, or whether Special Agent Cahill placed the pictures or the sign in the Adjacent Office. Id. at 5518, 5522.
When asked if there was anything else he wished to proffer with regard to Special Agent Cahill's testimony, Bertoli's counsel stated:
I'd like to ask [Special Agent] Cahill about his conversations with and interviews with Mr. Foti,
the numbers of times he spoke with Mr. Foti, the subject matter of their conversations. I'd like to learn how it is that . . . Foti testified as he did and the history of his cooperation with the Government. . . . I'd like to know what was discussed with . . . Foti by either [Special] Agent Cahill or others who [Special Agent] Cahill may identify so that a witness like Foti might come in believing that if he implicates . . . Bertoli, it will help him at the time that he is sentenced. . . . If your Honor is suggesting that well, it's a fishing expedition, it is true. . . .
Id. at 5523.
Upon being informed this proffer was also vague, Bertoli's counsel stated: "I want to put [Special Agent] Cahill on to show how it is that Foti's testimony may have been influenced in a way that resulted in untruthful testimony." Id. at 5525. When asked to provide a proffer as to Special Agent Cahill's improper influence on Foti, Bertoli's attorney referred only to Foti's agreement to cooperate with the Government and his testimony against Bertoli. Id.
Bertoli's counsel then made a third proffer with regard to Special Agent Cahill's testimony. Bertoli's counsel stated he believed Special Agent Cahill had improperly influenced the testimony of Foster. As the basis for this belief, Bertoli's counsel pointed only to the fact that Foster "did not become an active cooperator against . . . Bertoli until long after his initial interviews with the Government and just prior to trial."
Id. at 5530. Bertoli's counsel stated he wished to "explore the genesis of . . . Foster's recollection concerning [his testimony against Bertoli]." Id.
Bertoli's counsel then argued that the vagueness of his proffers should be excused because he did not interview Special Agent Cahill. Bertoli's counsel stated:
There are times during the presentment of a defense case here, unfortunately, you have to call a witness based on certain other facts which may create a reasonable inference, but don't provide the kind of hard evidence that would have been provided had I been able to interview a [Special Agent] Cahill or other people.
Id. at 5531-32.
The Government argued the proffers of Bertoli's counsel did not establish a good faith basis on which to question Special Agent Cahill on the matters cited. Id. at 5531. The Government further argued that calling Special Agent Cahill for such purposes should be barred under Fed.R.Evid. 403 and 608(b). Id. at 5524, 5529. Upon consideration of the parties' arguments, the Cahill Subpoena was quashed. Id. at 5531.
In connection with his motion for bail pending appeal, Bertoli argues the quashal of the Cahill Subpoena constituted a violation of his right to compulsory process and, therefore, of his right to present a defense. See 19 Jan. 1994 Bertoli Brief at 20.
The Sixth Amendment provides, in relevant part: "In all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor." U.S.Const. Amend. 6. "The Supreme Court has extended the Compulsory Process Clauseto cover a criminal defendant's right to present witnesses or evidence in his defense, 'even though [such a right] is not expressly described in so many words.'"
Mills, 956 F.2d 443, 445 (quoting Taylor v. Illinois, 484 U.S. 400, 409, 98 L. Ed. 2d 798, 108 S. Ct. 646, reh'g denied, 485 U.S. 983, 99 L. Ed. 2d 494, 108 S. Ct. 1283 (1988)).
"Like many other constitutional rights, the right to call witnesses is not absolute." Roussell v. Jeane, 842 F.2d 1512, 1517 (5th Cir. 1988); see United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 73 L. Ed. 2d 1193, 102 S. Ct. 3440 (1982); Mills, 956 F.2d at 446. "The right to present relevant testimony . . . 'may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.'" Rock v. Arkansas, 483 U.S. 44, 55, 97 L. Ed. 2d 37, 107 S. Ct. 2704 (1987) (quoting Chambers, 410 U.S. at 295); see Buie v. Sullivan, 923 F.2d 10, 11 (2d Cir. 1990) ("The right to present a defense, and its concomitant right to compulsory process, are not unqualified; they are subject to 'countervailing public interests,' such as the state's responsibility for arresting and prosecuting suspected criminals.").
For example, "[a] defendant's right to call witnesses . . . must comply with established rules of evidence." Person v. Meachum, 772 F. Supp. 69, 75 (D.Conn. 1991), aff'd mem., 962 F.2d 1 (2d Cir.), cert. denied, U.S. , 113 S. Ct. 69 (1992); see Taylor, 484 U.S. at 410 ("The accused does not have an unfettered right to offer testimony that is incompetent, privileged or otherwise inadmissible under standard rules of evidence."); Chambers, 410 U.S. at 302; United States v. Davis, 772 F.2d 1339, 1348 (7th Cir.) ("The Sixth Amendment does not make otherwise irrelevant evidence admissible."), cert. denied, 474 U.S. 1036, 88 L. Ed. 2d 581, 106 S. Ct. 603 (1985). The right to compulsory process is also limited by the "legitimate interest in efficient trials." Kaltenbach v. Breaux, 690 F. Supp. 1551, 1555 (W.D.La.), cert. denied sub nom., Kaltenbach v. Stalder, 488 U.S. 930, 102 L. Ed. 2d 336, 109 S. Ct. 318 (1988); see Taylor, 484 U.S. at 411 ("The State's interest in the orderly conduct of a criminal trial is sufficient to justify the imposition and enforcement of firm . . . rules relating to the . . . presentation of evidence."); Jordan v. Ducharme, 983 F.2d 933, 938 (9th Cir.), cert. denied, 126 L. Ed. 2d 172, U.S. , 114 S. Ct. 216 (1993).
"A mere showing by the accused that some relevant evidence was excluded is insufficient [to establish a violation of the right to compulsory process]; the accused must demonstrate that the testimony would have been both material and favorable to his defense." United States v. Cruz-Jiminez, 977 F.2d 95, 100 (3d Cir. 1992) (citation omitted); see Valenzuela-Bernal, 458 U.S. at 867; Mills, 956 F.2d at 446. "Evidence is material only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact." Cruz-Jiminez, 977 F.2d at 100; see Valenzuela-Bernal, 458 U.S. at 867; Mills, 956 F.2d at 446. The accused must further demonstrate "the deprivation was arbitrary or disproportionate to any legitimate evidentiary or procedural purposes." Cruz-Jiminez, 977 F.2d at 100; see Mills, 956 F.2d at 446.
The right of compulsory process does not, therefore, entitle a defendant to subpoena witnesses whose testimony would be "collateral, rather than material, to the issues in the case." United States v. Scopo, 861 F.2d 339, 345 (2d Cir. 1988) ("If the court could properly have excluded proffered testimony on the ground that the evidence was collateral, its refusal to subpoena witnesses who were to give that testimony cannot be deemed error."), cert. denied, 490 U.S. 1048, 104 L. Ed. 2d 426, 109 S. Ct. 1957 (1989); see United States v. North, 285 U.S. App. D.C. 343, 910 F.2d 843, 890-91 (subpoena properly quashed where testimony sought would have been "unhelpful" to defense), modified in part on other grounds, 920 F.2d 940 (D.C.Cir. 1990), cert. denied, U.S. , 111 S. Ct. 2235 (1991); United States v. Campbell, 874 F.2d 838, 850-51 (1st Cir. 1989) (no error in quashal of subpoena of Government informant where "his testimony could add nothing relevant and material to [the] defense"); United States ex rel. Ashford v. Director, Illinois Dep't of Corrections, 871 F.2d 680, 687 (7th Cir. 1989) (trial court's refusal to allow defense to call prosecutor as witness was not error where "excluded testimony was not exculpatory"); cf. Gay v. Petsock, 917 F.2d 768, 772-73 (3d Cir. 1990) (holding, in civil context, that subpoena may properly be denied where the proffered testimony would be inadmissible under Fed.R.Evid. 403).
Accordingly, "a defendant may compel the attendance of a witness only if he can 'make some plausible showing of how their testimony would [be] both material and favorable to his defense.'" Campbell, 874 F.2d at 851 (quoting Valenzuela-Bernal, 458 U.S. at 867). "When the record is devoid of such factual proof, a court is within its discretion in denying defense requests for the presentation of [that witness]." United States v. Tanner, 941 F.2d 574, 586 (7th Cir. 1991), cert. denied, U.S. , 112 S. Ct. 1190 (1992). "Determinations of relevance and materiality [in this context] are entrusted to the sound discretion of the trial judge." United States v. Caming, 968 F.2d 232, 238 (2d Cir.), cert. denied, 121 L. Ed. 2d 339, U.S. , 113 S. Ct. 416 (1992); see United States v. Weisman, 858 F.2d 389, 392, reh'q denied en banc, 1988 U.S. App. LEXIS 15,951 (8th Cir. 1988), cert. denied, 489 U.S. 1071 (1989); United States v. Ebner, 782 F.2d 1120, 1126 (2d Cir. 1986).
A defendant does not establish the materiality of a witness's testimony by a proffer which raises "only speculation concerning the possible testimony" of the witness. Tanner, 941 F.2d at 585. "Moreover, that a defendant may not be able to detail the lost testimony because he was unable to interview witnesses does not relieve him of the duty to make some showing of materiality." Campbell v. Klevenhagen, 760 F. Supp. 1206, 1214 (S.D.Tex. 1991); see Valenzuela-Bernal, 458 U.S. at 873 (deportation of witness by Government, so that defendant was deprived of opportunity to interview witnesses, does not relieve defendant of requirement of showing materiality of witnesses' testimony). The right to compulsory process "does not conceive the right to grant investigative services or to enforce interviews with defense counsel under the guise of a trial subpoena. . . ." Campbell, 760 F. Supp. at 1214.
A witness's testimony will not be material where the witness has no personal knowledge of the facts to which he or she is intended to testify. See Caming, 968 F.2d at 238 (subpoena properly quashed where witness "'knew nothing about the underlying transactions' [and] had 'no personal knowledge of any of the underlying facts"); Tanner, 941 F.2d at 585 (no violation of right to compulsory process where "the potential witness could not have provided personal observations concerning relevant and material evidence").
A witness's testimony, moreover, will not be material where it would merely be cumulative or repetitive of other evidence in the case. See Weisman, 858 F.2d at 392 ("The record sufficiently supports the District Court's denial of [defendant's] request for subpoenaing the two witnesses, because their testimony would have been repetitive and cumulative."); Roussell, 842 F.2d at 1516 ("[A] defendant is not entitled [by his right of compulsory process] to burden the proceedings with cumulative testimony."); see also Valenzuela-Bernal, 458 U.S. at 873 ("Sanctions may be imposed on the Government for deporting witnesses only if the criminal defendant makes a plausible showing that the testimony of the deported witnesses would have been material . . . in ways not merely cumulative to the testimony of available witnesses."); Perry v. Lockhart, 871 F.2d 1384, 1388 (8th Cir.) (trial court's refusal to subpoena witness did not violate right to compulsory process where witness's testimony was weaker repetition of other testimony in case), cert. denied, 493 U.S. 959, 107 L. Ed. 2d 363, 110 S. Ct. 378 (1989).
Similarly, testimony is not material where it would not "materially differ from that which [the defendant] had the opportunity to elicit" at trial. Claudio v. Scully, 982 F.2d 798, 806 (2d Cir. 1992), cert. denied, 124 L. Ed. 2d 256, U.S. , 113 S. Ct. 2347 (1993); see Buie, 923 F.2d at 11 (Compulsory Process Clause not violated unless excluded evidence was "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means").
Applying these principles to the facts at bar, it is apparent the quashal of the Cahill Subpoena was proper and did not violate Bertoli's right to compulsory process or to present a defense. Bertoli's counsel himself stated the Cahill Subpoena was "a fishing expedition." Trial Transcript at 5523. As stated, the right of compulsory process is not to be used as a guise for a discovery device. See Campbell, 760 F. Supp. at 1214.
Bertoli's counsel stated he sought to subpoena Special Agent Cahill to prove he induced Government witnesses to testify "in a way contrary to the facts." Trial Transcript at 5511. Bertoli's counsel did little, however, to substantiate these vague allegations. Bertoli's counsel stated he "believed" certain pictures of Bertoli and a "suggestive sign" were placed in the Adjacent Office. Id. at 5515. However, Bertoli's counsel himself conceded the sign was "not specifically concerning Bertoli." Id. at 5516. There was significant doubt, therefore, that Special Agent Cahill's testimony regarding the pictures and the sign would have been material to Bertoli's case. See Scopo, 861 F.2d at 345.
Any indication that such testimony would have been material was rank speculation on the part of Bertoli's counsel. Bertoli's counsel was unable to detail the substance of the sign or the way in which it was "suggestive." Bertoli's counsel was able to offer no more than his "belief" that interviews with Government witnesses had even taken place in the Adjacent Office; he offered no facts regarding the way in which any witnesses were biased by the pictures or the sign. Trial Transcript at 5516. Moreover, Bertoli's counsel could not state whether Special Agent Cahill had any personal knowledge regarding the existence or substance of the pictures or sign. Id. at 5518, 5522 (Bertoli's counsel stated he did not know whether Special Agent Cahill had maneuvered any Government witnesses into the Adjacent Office or whether he had placed the pictures or sign in the office). Bertoli's attorney could not, therefore, make the required showing that Special Agent Cahill could have "provided personal observations concerning relevant and material evidence." Tanner, 941 F.2d at 585. Because Bertoli's proffer regarding the pictures and sign involved "only speculation concerning the possible testimony" of Special Agent Cahill, that proffer did not establish the materiality of Special Agent Cahill's testimony. Id.
Bertoli had adequate opportunity to develop his 'inducement' theory during his cross-examination of the Government's witnesses. During his proffer, Bertoli's counsel identified three Government witnesses whom he "believed" Special Agent Cahill had improperly influenced during interviews. These were Bynum Vickory ("Vickory"), Norman L. Vance ("Vance") and John Kevorkian ("Kevorkian"). Trial Transcript at 5512. Bertoli was given considerable leeway in his cross-examination of these witnesses and was able to do so extensively and thoroughly.
During Bertoli's cross-examination of Vickory, he questioned Vickory extensively concerning his interviews with the Government. Vickory was, in fact, asked whether the Government showed him any photographs of Bertoli. Id. at 3288. Vickory answered: "No, they did not." Id.
Bertoli also thoroughly questioned Vance on the subject of his meetings with Special Agent Cahill. Id. at 4012-15. During his cross-examination of Vance, Bertoli was able to explore in depth the issues of the conversations between Special Agent Cahill and Vance and the documents shown to Vance by Special Agent Cahill and other Government agents. Id. at 4012. Vance did not indicate any inducement of the type referred to by Bertoli's attorney in his proffer.
Bertoli's cross-examination of Kevorkian was equally thorough. Bertoli questioned Kevorkian extensively regarding the length and content of his interviews with the Government. Id. at 4101. Bertoli obtained an admission from Kevorkian that the Government "went over the questions and answers that [Kevorkian] testified to." Id. Kevorkian, like Vickory and Vance, gave no indication that an agent of the Government had induced false testimony.
Ostensibly, these witnesses' impressions regarding the Government's influence over their testimony were far more relevant and material than those of Special Agent Cahill; it is the state of mind of the Government's witnesses that was material to Bertoli's defense and not that of Special Agent Cahill. Because the information sought from Special Agent Cahill was obtainable from these other witnesses, the Cahill Subpoena was not necessary to preserve Bertoli's right of compulsory process. See Buie, 923 F.2d at 11.
It appears Bertoli sought the testimony of Special Agent Cahill for the purposes of putting the Government's conduct on trial and diverting attention from his own conduct. As stated, the issue of prosecutorial motive or misconduct was an improper one for the jury to consider. See supra, at 237. Because Special Agent Cahill's testimony regarding the pictures and sign would have been of slight, if any, probative value and would have caused substantial "confusion of the issues, . . . undue delay [and] waste of time," it was inadmissible pursuant to Fed.R.Evid. 403.
Bertoli argues Special Agent Cahill's testimony was relevant to prove the "bias" of certain witnesses. 19 Jan. 1994 Bertoli Brief at 22, 24. "The district court, however, retains discretion to impose reasonable limits on defense counsel's inquiry into the potential bias of a Government witness where there is a concern about the harassment, prejudice, confusion of the issue, the witnesses' safety, or interrogation that is repetitive or only marginally relevant." United States v. Beros, 833 F.2d 455, 465 (3d Cir. 1987). In the instant circumstances, this discretion was properly exercised.
During his proffer, as stated, Bertoli's attorney also asserted Special Agent Cahill's testimony was necessary to show the testimony of Foti was improperly influenced by Special Agent Cahill. As with his first proffer, the assertions of Bertoli's attorney regarding Special Agent Cahill's influence over Foti were vague and speculative. Bertoli's counsel was unable to state or suggest the manner in which Special Agent Cahill had influenced Foti's testimony. Rather, Bertoli's counsel stated he would "like to learn" how Foti was influenced and would "like to know what was discussed with . . . Foti" by Special Agent Cahill. Trial Transcript at 5523. The right of compulsory process is not the proper vehicle for an inquiry which was conceded by Bertoli's attorney to be a "fishing expedition." Id. at 5523; see Tanner, 941 F.2d at 585; Campbell, 760 F. Supp. at 1214.
Bertoli's counsel stated he wished to question Special Agent Cahill concerning the details of the Government's cooperation agreement with Foti. See Trial Transcript at 5525. However, Bertoli's counsel could only speculate as to whether Special Agent Cahill had personal knowledge regarding this agreement and whether such knowledge would be helpful to Bertoli. Id. at 5523. It appears, in fact, that any information regarding the agreements between Foti and the Government was collateral, and not material, to Bertoli's case. As indicated, Foti's cooperation agreements were with the New York U.S. Attorney and the Utah U.S. Attorney, not with the New Jersey U.S. Attorney. See id. at 5529. Foti did not have an agreement with the office prosecuting Bertoli. Id. Therefore, Foti's cooperation agreements had little, if any, bearing on the veracity of his testimony in the instant proceedings.
Foti, moreover, was extensively cross-examined regarding his cooperation agreements with the Government. Bertoli's cross-examination of Foti spanned most of a day of trial and filled 98 pages of the Trial Transcript. During this time, Foti testified in great detail concerning his cooperation agreements and discussions with the Government. See Trial Transcript at 1573-1605. Foti's two plea agreements with the New York U.S. Attorney were introduced and received into evidence. Id. at 1597-98. Bertoli's counsel offered no basis to believe Special Agent Cahill's testimony would have varied from this evidence. In light of the extensive evidence in the record concerning Foti's agreements and discussions with the Government, any testimony by Special Agent Cahill regarding such agreements and discussions would have been cumulative and repetitive. See Weisman, 858 F.2d at 392.
Because Special Agent Cahill's testimony regarding the Government's cooperation agreements with Foti would have been of marginal probative value and would have caused "undue delay, waste of time [and] needless presentation of cumulative evidence," such testimony was inadmissible under Fed.R.Evid. 403. This is so even though Bertoli argues such testimony was offered in support of proving "bias" on the part of Foti. See Beros, 833 F.2d at 455.
Bertoli's counsel also argued Special Agent Cahill's testimony was necessary to prove Special Agent Cahill had improperly influenced the testimony of Foster. Trial Transcript at 5530. However, as support for this argument, Bertoli's counsel could offer only baseless speculation that Special Agent Cahill had influenced Foster's testimony. Specifically, Bertoli's counsel based his belief that Special Agent Cahill had influenced Foster solely on the late date upon which Foster "became an active cooperator against . . . Bertoli. . . ." Trial Transcript at 5530.
The mere fact that Foster decided to cooperate with the Government "just prior to trial" clearly does not establish a good faith basis for asserting Special Agent Cahill had improperly influenced Foster to testify. Id. Bertoli's attorney in effect conceded he was using the Cahill Subpoena as a discovery device when he stated he wished to "explore" the issue of Special Agent Cahill's influence over Foster. Id. As indicated, the right of compulsory process is not properly used as an "investigative service or to enforce interviews with defense counsel. . . ." Campbell, 760 F. Supp. at 1214.
Foster, moreover, was extensively cross-examined regarding his arrangement with the Government and his discussions with Special Agent Cahill. Foster admitted his cooperation with the Government in Bertoli's case would entitle him to a reduction in his sentence pursuant to Fed.R.Crim.P. 35(b).
Trial Transcript at 4757. Foster further testified in depth regarding the contents of his conversations with Special Agent Cahill; no improper influence was even suggested. Id. at 4758-68. It was, in fact, revealed that most of Foster's requests for incentives to cooperate were rejected by Special Agent Cahill. Id. at 4761 (Foster: "Subsequent to that first meeting, I discussed certain things with [Agent] Cahill and most of the things I asked was [sic ] refused.").
Foster also fully explained why he had refrained from disclosing Ebanks' destruction of records until July 1993. Foster stated he withheld the information to protect Ebanks and to ensure he would obtain a reduced sentence from the disclosure of this information. Id. at 4764. In spite of extensive cross-examination on the subject by Bertoli, including some highly suggestive questions, Foster's testimony did not contain the slightest indication that Special Agent Cahill had improperly influenced him to testify. Id. at 4764-68. During his proffer, Bertoli's counsel offered no reason to suggest Special Agent Cahill's testimony regarding his conversations with Foster would differ from Foster's extensive testimony on the subject.
As stated, there was no indication Special Agent Cahill's testimony concerning his discussions with Foster would be probative of Foster's asserted "bias" or of any other issue relevant to Bertoli's defense. In light of this fact, and because such testimony would be cumulative and repetitive, Special Agent Cahill's testimony on this subject was inadmissible. See Fed.R.Evid. 403; Beros, 833 F.2d at 465.
The testimony of Special Agent Cahill would not have been material to Bertoli's case. See Campbell, 874 F.2d at 851. Any suggestions to the contrary made by Bertoli's counsel consisted purely of speculation.
See Tanner, 941 F.2d at 585. Finally, Special Agent Cahill's testimony, as preferred by Bertoli's attorney, would have been inadmissible under Fed.R.Evid. 403. Under these circumstances, Bertoli was not entitled by his right of compulsory process to subpoena Special Agent Cahill; the Cahill Subpoena was properly quashed.
3. Motion to Preclude Bertoli From Presenting Any Evidence That Charges Were Dismissed in This Case
On 24 March 1993, the Government moved to preclude Bertoli from presenting any evidence that charges were dismissed in this case.
Government Second Preclusion Brief at 1-3. According to the Government, "such evidence [was] not relevant to the charges for which Bertoli [stood] trial" and was inadmissible under Fed. R. Evid. 401. Government Second Preclusion Brief at 1-2.
Fed. R. Evid. 402 provides that "evidence which is not relevant is inadmissible." Id. Relevant evidence is defined by Fed. R. Evid. 401 as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Id.
As the Government argued, and as Bertoli failed to contradict, the only relevant evidence in this case was that evidence which related to the charges for which Bertoli was tried. The fact that the Government chose to dismiss certain charges against Bertoli was of no consequence because it did not make the existence of any relevant fact more or less probable.
The Government argued that there appeared to be no case law dealing with this particular situation. See Government Second Preclusion Brief at 2. Nevertheless, as the Government pointed out, the standard practice during a jury charge is to instruct the jury to disregard any dismissed charges and evidence pertaining to those charges. See id. at 2-3 (citing Sand, Siffert, Modern Federal Jury Instructions P 2.01, at 2-41). Accordingly, there was no reason to allow Bertoli to submit evidence on this issue.
The motion to preclude Bertoli from submitting evidence that charges were dismissed in this case was granted on 28 May 1993. See 28 May 1993 Tr. at 21.
4. Motion to Preclude Bertoli From Introducing Evidence That Certain Government Witnesses Used Narcotics or Alcohol
On 13 July 1993, the Government sought to preclude Bertoli from questioning witness Kevorkian about prior narcotics and alcohol use.
See Trial Transcript at 3875-77. In the 12 July 1993 Government Letter, the Government indicated Kevorkian had been involved in the following instances of drug and alcohol use:
(1) On 22 May 1984, Kevorkian pleaded guilty in Suffolk County, New York to operating a vehicle while impaired by alcohol and operating a vehicle while impaired by drugs; Kevorkian was fined $ 250.00 on the first charge and sentenced to three years probation on the second charge;
(2) On 19 December 1984, Kevorkian pleaded guilty in Nassau County, New York to operating a motor vehicle under the influence of drugs, operating a vehicle while his driver's license was suspended and operating a motor vehicle under the influence of drugs; Kevorkian was fined a total of $ 900.00 and was incarcerated for eight months;
(3) From the early 1980s to 1986 or 1987, Kevorkian used cocaine four to five times monthly, but never while working at the trading desk at G.K. Scott;
(4) From 1980 to 1984, Kevorkian used prescription quaaludes (not illegally) three to four times weekly, but never while working on the trading desk of G.K. Scott.
12 July 1993 Government Letter at 1-2.
Fed. R. Evid. 608(b) provides in pertinent part:
Specific instances of conduct of a witness, for the purpose of attacking . . . the witness' credibility, other than conviction of a crime as provided in rule 609, may not be proved by extrinsic evidence.
The Third Circuit has construed Rule 608(b) "as requiring the exclusion of extrinsic impeachment evidence concerning a witness' prior instances of conduct." United States v. McNeill, 887 F.2d 448, 453 (3d Cir. 1989), cert. denied, 493 U.S. 1087, 107 L. Ed. 2d 1055, 110 S. Ct. 1152 (1990); see also United States v. Agnes, 753 F.2d 293, 304-05 (3d Cir. 1985); United States v. Herman, 589 F.2d 1191, 1196-97 (3d Cir. 1978), cert. denied, 441 U.S. 913, 60 L. Ed. 2d 386, 99 S. Ct. 2014 (1979).
Rule 608(b) has its exceptions:
[Specific instances of conduct] may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness. . . .
Fed. R. Evid. 608(b). As the Circuit has cautioned, however, "there may be cross-examination only if the trial court determines that the conduct is probative of a witness's truthfulness or untruthfulness." McNeill, 887 F.2d at 453. Such a determination is within the discretion of the trial court. Id.
As a general rule, prior drug use is not probative of a witness's truthfulness or untruthfulness. See United States v. Sellers, 906 F.2d 597, 602 (11th Cir. 1990); United States v. McDonald, 905 F.2d 871, 875 (5th Cir.), cert. denied, 498 U.S. 1002, 112 L. Ed. 2d 572, 111 S. Ct. 566 (1990); United States v. Rubin, 733 F.2d 837, 841-42 (11th Cir. 1984). Exceptions to this rule exist under two circumstances.
First, an exception exists when the drug use occurred while the witness was in a cooperative relationship with the Government and the Government was contemplating prosecution for that use or at least was aware of the drug use. See United States v. Atherton, 936 F.2d 728, 733 (2d Cir. 1991), cert. denied, U.S. , 112 S. Ct. 1187 (1992); United States v. Capozzi, 883 F.2d 608, 616, reh'g denied en banc, 1989 U.S. App. LEXIS 15,565 (8th Cir. 1989), cert. denied, 495 U.S. 918 (1990); United States v. Noti, 731 F.2d 610, 612-23 (9th Cir. 1984).
Second, an exception exists when the drug use occurred during "relevant periods of trial and the transaction charged in the indictment," thereby affecting the witness' ability to perceive the underlying events and to testify lucidly at trial. See Sellers, 906 F.2d at 602; see also Jarrett v. United States, 822 F.2d 1438, 1446 (7th Cir. 1987).
Nothing in the record in this case supported allowing Bertoli to inquire into the former drug and alcohol use of Kevorkian. For instance, at trial, Bertoli conceded that the alcohol-related incidents involving Kevorkian were not relevant to the issues in the case. See Trial Transcript at 3875-76. Bertoli also conceded that, because Kevorkian's drug-related offenses resulted in misdemeanor convictions, evidence thereof was not admissible pursuant to Fed. R. Evid. 609.
See Trial Transcript at 3876.
With regard to Kevorkian's use of cocaine and quaaludes, Bertoli was permitted to voir dire Kevorkian, outside of the presence of the jury, prior to his testimony. See id. at 4040-41. The Trial Transcript reveals the following voir dire :
BERTOLI: I'm going to ask you a few preliminary questions. It's been represented to me that on the average you used cocaine four to five times a month in the early 80s, ending approximately 1987. . . . Is that correct?
KEVORKIAN: That's correct.
BERTOLI: It's also been represented to me that you never used it while working on the trading desk of G.K. Scott. Is that correct?
KEVORKIAN: That is correct.
BERTOLI: Have you used any sort of drug within the past week?
BERTOLI: And with regard to quaaludes, from approximately 1980 to 1984, it's been represented that you used those three to four times a week. Is that correct?
BERTOLI: Is it correct that you did not use those while at the trading desk at G.K. Scott?
KEVORKIAN: That's correct.
COURT: Anything further, Mr. Bertoli?
The voir dire of Kevorkian confirmed that which had already been represented by the Government -- specifically, Kevorkian had not used cocaine or guaaludes while on the job at G.K. Scott or within his recent history. See 14 June 1993 Government Letter at 4; 12 July 1993 Government Letter at 2-3. Accordingly, there was nothing to indicate impairment of Kevorkian's ability to perceive underlying events or to testify lucidly at trial. Based upon this voir dire, as well as on the case law discussed above, it was concluded that cross examination regarding Kevorkian's drug use was prohibited. See Trial Transcript at 4041. Bertoli eventually concurred in this ruling. See id.
F. Post-Trial Proceedings
1. Bertoli's Motions for a New Trial Based on Allegations of Juror Misconduct During Trial
Bertoli twice moved for a new trial on the basis of alleged juror misconduct during trial. The first motion was made during the trial, see Trial Transcript at 6765, and the second was a post-trial motion based on purported new evidence.
Both motions were based on the following incident.
On 10 August 1993, after a ten-week trial, Bertoli and the Government completed their closing arguments. At the close of summations, court recessed for the day with the following instruction to the jury:
As I cautioned you yesterday, I indicated you should not discuss or deliberate [on] this matter. Although you heard the summations of the attorneys, you've not had the benefit of my charge and I direct that you should not begin deliberations in any way until you've had the benefit of my charge and you're all together in the juryroom.
Trial Transcript at 6704-05.
The next day, 11 August 1993, the charge was given to the jury. Part way through the jury charge, a fifteen minute recess was taken. Id. at 6759. Before recessing the jury, the jury was instructed: "You are not, and I underscore, you are not to begin any deliberations. I've not completed my charge." Id. During the recess, one of the jurors ("Juror Six")
communicated to the court that an alternate juror, in apparent disregard of repeated instructions to the contrary, had mentioned something to her about the case. Id. at 6760. So as not to elicit a discussion of jury deliberations,
Juror Six was immediately instructed not to relate the substance of what was said by the alternate and told to wait in the juryroom. Id.
Outside the presence of the jury, counsel for both sides were told what had happened. Id.
THE COURT: As I was walking out, one of the jurors mentioned to me that an alternate mentioned something to her about the case. I said I don't want to know about it.
I asked her whether it affected her in any way and she said no.
She said that a few of the other jurors have mentioned something about the case and she did not want to know about it.
I'll call her out here. I'm going to ask her not to go into the substance of it, but ask her if more than one person mentioned something to her [and] if it affected her ability to be fair and impartial. And I'm going to find out who mentioned something to her, if they expressed any opinion one way or another, without her revealing what the opinions were. If they did, I'm going to excuse those jurors.
Id. There was no objection to this proposed course of action.
Juror Six was called into the courtroom and asked whether what she had been told by the alternate had affected her ability to be fair and impartial. Id. at 6760-61. Juror Six responded: "I do not think so. In fact, I'm sure it has not." Id. at 6761. The court, again making clear Juror Six was not to relate the substance of what she had been told, asked Juror Six to name the alternate who had made the statement. Id. Juror Six answered, "Number 13." Id. When asked whether anyone else had mentioned the case, Juror Six answered that alternate jurors numbers fourteen and fifteen had also made statements to her. Id. Juror Six was then instructed to "go back in the juryroom and do not mention . . . this to anybody." Id.
After Juror Six had returned to the juryroom, alternate jurors numbers thirteen, fourteen and fifteen (collectively, the "Alternate Jurors")
were called into the courtroom one at a time and individually questioned about what had happened. Each Alternate Juror was asked whether he or she had spoken to anyone other than Juror Six about the case. Id. at 6762-65. The Alternate Jurors answered that they had not made statements about the case to anyone other than Juror Six. At the conclusion of questioning, each of the Alternate Jurors was excused from the case. Id. at 6763-65.
After the Alternate Jurors had been excused, counsel for Bertoli stated: "Based on all this, we would make a mistrial motion and also ask alternatively that other jurors be asked similar questions and alternatively, that [Juror Six] be excused." Id. at 6765. The court denied the motions, stating:
[Juror Six] has expressed to me her ability to be fair and impartial and I'm satisfied she can be . . . that.
There is no outside influence that occurred here. . . . I'm doing this in an abundance of caution. . . .
I've instructed her, as you heard, not to reveal what the comments were [and] I've instructed [the Alternate Jurors to be excused as alternates. They're not even deliberating jurors at this point because nobody's become disabled or sick.
Counsel for Bertoli then stated he wanted additional questioning of the Alternate Jurors and Juror Six so as to be better able to "assess whether or not the comments could have an influence on Juror Six. . . ." Id. at 6816. In response, the court stated it would "in camera ask each of them what they said and seal it, so the Circuit has it." Id. at 6817. Significantly, neither Bertoli nor his counsel objected to the course of action proposed by the court. Nor did Bertoli or his counsel request to be present during the in camera questioning of the jurors.
During the next recess, Juror Six and the Alternate Jurors were called into chambers individually to again discuss what had happened. Counsel were not present during this discussion, but the interviews were transcribed. See Trial Transcript at 6821-33. The transcript of those discussions was set aside.
First, alternate juror number thirteen ("Alternate Juror Thirteen") was called into chambers. Alternate Juror Thirteen was asked whether he had expressed an opinion of guilt or innocence to Juror Six. Id. at 6821. He denied he had made any statement about the case to Juror Six or anyone else. Id. Alternate Juror Thirteen was visibly upset and expressed his concern about being excused from the case.
See Id. at 6921-22, 6824-25. Alternate Juror Thirteen contended it was Juror Six who had made a statement to him about the case rather than the other way around. Id. at 6823.
The two remaining Alternate Jurors were then called into chambers one at a time and questioned again about the incident. Id. at 6826. When asked whether anyone had made any statements to them about guilt or innocence in this case, they each responded, "No." Id.
Next, Juror Six was called into chambers and questioned. She again assured the court she remained fair and impartial. Id. at 6826-27. Juror Six also stated none of the jury members had begun deliberations. Id. She was then sent back to the jury room.
After questioning all four jurors for the second time, the following findings were made:
I'm satisfied at this point that [the Alternate Jurors] don't have any feeling of guilt or innocence.
I'm satisfied that [Juror Six] has not prejudged the case, has not deliberated, has not done anything improper. . . .
I'm further satisfied that at best, if there's been any comment, it may have been sporadic comments on individual witnesses or individual presentation of the evidence. . . .
I'm satisfied beyond [any] doubt the jury has not begun deliberations.
I'm satisfied beyond any doubt no one in that juryroom has made any determination as to guilt or innocence.
Id. at 6827-28.
It was determined the accusation by Alternate Juror Thirteen that Juror Six had formed a premature opinion and made a comment about the case was not credible. The determination was based on the evaluation of the demeanor and credibility of all four jurors upon questioning and from general observation of the jury throughout the ten-week trial. The fact that Alternate Juror Thirteen appeared visibly upset about being excused and blamed Juror Six for what had happened was also taken into consideration.
THE COURT: [Alternate Juror Thirteen] was clearly upset this morning and it seemed . . . that he was venting his anger because he assumed that [Juror Six] was accusing him of doing something wrong. . . .
* * *
I'm . . . satisfied that [Alternate Juror Thirteen] was really upset with [Juror Six], . . . and I'm satisfied that the comments he attributed to [Juror Six] are inaccurate. I thing [his] comments [are] more out of pique than out of accuracy.
Id. at 6831, 6827-28. Juror Six, on the other hand, "was cool, calm and deliberate in her response. . . ." Id. at 6830. In addition, Juror Six's version of what had happened was corroborated by the other two Alternate Jurors who "were very strong in their statement that [Juror Six] did not say anything to them."
Id. at 6832; see also id. at 6831-33.
It was determined, based on the observation of Juror Six throughout the ten-week trial, that the statement Alternate Juror Thirteen sought to attribute to Juror Six was wholly out of character for her.
THE COURT: The language [Alternate Juror Thirteen] attributes to [Juror Six] just does not fit. I have had the opportunity to conduct a jury selection in which she was involved and I've had the opportunity to see her on a daily basis for the last two months. . . . Although I've not had any discussion with her, I am satisfied she is not the type of person who would use the language [Alternate Juror Thirteen] quotes her as using. It just does not fit.
Id. at 6833.
It was also noted that, given the dedication demonstrated by the jury throughout the case, if Juror Six had made any statements about guilt or innocence, one of the other jurors certainly would have reported it. Id. at 6831-32; see also id. at 6829-30. Accordingly, it was determined there was no need to excuse Juror Six despite the fact that excusing her would be an "easy answer" because there were "plenty of [alternate] jurors to replace her," even after excusing the three Alternate Jurors. Id. at 6830.
THE COURT: I am . . . satisfied beyond any doubt that [Juror Six] is a fair, impartial juror. There would be no reason . . . to replace her.
After the recess, the court discussed with counsel matters generally concerning the instruction to the jury. See Trial Transcript at 6832-37. At no time during that discussion did either Bertoli or his counsel object to the in camera interview of the jurors during the recess. In fact, there was no objection raised with regard to the in camera proceedings until Bertoli filed his post-trial motion for a new trial.
Upon concluding the discussion with counsel, the court resumed charging the jury, first informing them the Alternate Jurors had been excused and instructing that the jury was "not to speculate as to the reason [that] occurred." Id. at 6768. Jury deliberations began that same day, 11 August 1993.
On 24 August 1993, after ten days of deliberations, as mentioned, the jury acquitted Bertoli on five of the seven counts on which he was indicted and found him guilty of one count of conspiracy to obstruct justice in violation of 18 U.S.C. § 371 and one count of obstruction of justice in violation of 18 U.S.C. §§ 1503 and 1502.
During a telephone conference on 17 December 1993, counsel for Bertoli requested that the Trial Transcript be released to him for purposes of appeal. The request was granted.
The motion by Bertoli for a new trial is brought pursuant to Fed. R. Crim. P. 33 and based on newly discovered evidence. Rule 33 provides:
The court on motion of defendant may grant a new trial to that defendant if required in the interest of justice. . . . A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment. . . . A motion for a new trial based on any other grounds shall be made within 7 days after verdict or finding of guilty or within such further time as the court may fix during the 7-day period.
Fed. R. Crim. P. 33.
"'A motion for a new trial is addressed to the trial judge's discretion. . . .'" United States v. Console, 13 F.3d 641, 665 (3d Cir. 1993) (quoting Government of the Virgin Islands v. Lima, 774 F.2d 1245, 1250 (3d Cir. 1985)). The power to grant a new trial should be exercised sparingly. United States v. Clemons, 658 F. Supp. 1116, 1119 (W.D.Pa. 1987), aff'd, 843 F.2d 741 (3d Cir.), cert. denied, 488 U.S. 835, 102 L. Ed. 2d 73, 109 S. Ct. 97 (1988).
In considering a motion for a new trial, in addition to determining whether there was error, a court must determine whether the defendant suffered "substantial prejudice" from the alleged error. See Gilsenan, 949 F.2d at 95; Government of the Virgin Islands v. Dowling, 814 F.2d 134, 139 (3d Cir. 1987); United States v. Jones, 542 F.2d 186, 211 (4th Cir.), cert. denied, 426 U.S. 922 (1976); United States v. Armocida, 515 F.2d 29, 49 (3d Cir.), cert. denied, 423 U.S. 858 (1975); United States D'Andrea, 495 F.2d 1170, 1172-73 (3d Cir.), cert. denied, 419 U.S. 855 (1974). Only where there is a reasonable probability that trial error could have had a substantial impact on the jury's decision must a court grant a new trial. Government of Virgin Islands v. Bedford, 671 F.2d 758, 762 (3d Cir. 1982); United States v. Bevans, 728 F. Supp. 340, 343 (E.D.Pa.), aff'd, 914 F.2d 244 (3d Cir. 1990); United States v. Clark, 617 F. Supp. 693, 694 (E.D.Pa. 1985), aff'd, 791 F.2d 922 (3d Cir. 1986).
Where a motion for a new trial is based on "newly discovered evidence, great caution should be used by the trial court. United States v. Persinger, 587 F. Supp. 899, 901 (W.D.Pa. 1984). In determining whether a new trial should be granted on the basis of newly discovered evidence, a movant must establish the following five factors:
(1) The evidence was discovered since the trial;
(2) The late emergence of the evidence is not due to a lack of diligence on the part of defendants;
(3) The evidence is not merely cumulative or impeaching;
(4) The evidence is material to the issues involved at trial; and
(5) The evidence is of such a nature that it would probably produce an acquittal upon retrial.
United States v. Adams, 759 F.2d 1099, 1108 (3d Cir. 1985), cert. denied sub nom. Alongi v. United States, 474 U.S. 906, 88 L. Ed. 2d 236, 106 S. Ct. 275 (1986); United States v. Messerlian, 633 F. Supp. 1493, 1504 (D.N.J. 1986). Failure to establish any one of the five elements is "fatal" to a Rule 33 motion. Messerlian, 633 F. Supp. at 1504 n.16.
The new evidence offered by Bertoli in the instant case is the portion of the Trial Transcript which includes the in camera interview of the Alternate Jurors and Juror Six. It must be determined whether this "new evidence" satisfies all five elements set forth above.
Although the parties knew, at the time, the proceedings were being transcribed, Bertoli received a copy of the transcript only after his counsel requested it during a telephone conference with the court on 17 December 1993. However, as discussed infra, Bertoli has not established that the events transcribed therein are "of such a nature that it would probably produce an acquittal upon retrial." See Messerlian, 633 F. Supp. at 1504. Therefore, Bertoli has failed to establish one of the necessary elements for a new trial based on new evidence. Nevertheless, for purposes of this portion of the opinion, the transcript of the in-chambers interview will be regarded as "new evidence."
a. Jury Misconduct as a Basis for Granting a New Trial
Bertoli argues: "The [Trial Transcript], read together with the other facts surrounding the allegations that one or more jurors violated their oaths by expressing opinions regarding the case prior to the commencement of deliberations, demonstrates that Mr. Bertoli's constitutional and statutory rights have been violated." Bertoli New Trial Brief at 1-2. It is further argued that the actions taken by the court in response to learning that an alternate juror may have expressed an opinion as to guilt or innocence was "insufficient to assess the nature and extent of the misconduct." Id. at 2.
Bertoli further argues the inquiry conducted of the Alternate Jurors and Juror Six was inadequate. Id. at 9-14. His argument depends entirely on United States v. Resko, 3 F.3d 684 (3d Cir. 1993), a case which was decided on 24 August 1993, approximatelytwo weeks after the incident in the instant case. See Bertoli New Trial Brief at 9-14. As discussed below, the handling of the incident in this case fully comported with the requirements in Resko.
It is a generally accepted principle of trial administration that jurors must not engage in discussions of a case before they have heard both the evidence and the instruction by the court as to the law and have begun deliberating as a collective body. Id. at 688. Accordingly, trial judges traditionally admonish juries not to discuss the case with other members of the jury before the conclusion of the trial. Id. at 689.
The Third Circuit has articulated several reasons for the general rule against premature deliberations. First, because the prosecution presents its case first, any discussions which occur early in the case are more likely to be unfavorable to the defendant. Id. Second, the Circuit observed that once a juror expresses his or her view in the presence of the other jurors, "he or she is likely to continue to adhere to that opinion and to pay greater attention to evidence presented that comports with that opinion." Id. Third, premature deliberations thwart the goal of the jury system as a collective, deliberative process. Id. Fourth, opinions resulting from premature deliberations are formed without the benefit of the court's legal instruction. Id. at 689-90. c
Despite the possibility of prejudice, not every instance of premature deliberations requires a new trial. "The Constitution 'does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.'" Rushen v. Spain, 464 U.S. 114, 118, 78 L. Ed. 2d 267, 104 S. Ct. 453 (1983) (quoting Smith v. Phillips, 455 U.S. 209, 217, 71 L. Ed. 2d 78, 102 S. Ct. 940 (1982)); see United States v. Caldwell, 776 F.2d 989, 996 (11th Cir. 1985); United States v. Aiello, 771 F.2d 621, 629 (2d Cir. 1985); United States v. Watchmaker, 761 F.2d 1459, 1466, reh'g denied, 766 F.2d 1493 (11th Cir. 1985). Rather "the test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial." United States v. Klee, 494 F.2d 394, 396 (9th Cir.), cert. denied, 419 U.S. 835, 42 L. Ed. 2d 61, 95 S. Ct. 62 (1974); see United States v. Clapps, 732 F.2d 1148, 1152 (3d Cir.), cert. denied, 469 U.S. 1085, 83 L. Ed. 2d 699, 105 S. Ct. 589 (1984); United States v. Provenzano, 620 F.2d 985, 997 (3d Cir.), cert. denied, 449 U.S. 899, 66 L. Ed. 2d 129, 101 S. Ct. 267 (1980).
In guarding against prejudice to the defendant, the Third Circuit has described the following obligations of a trial court which has discovered possible jury misconduct:
When jury misconduct (including improper intra-jury influences) has been alleged, the district court should: ascertain whether the misconduct actually occurred; if it did, determine whether it was prejudicial; and if there are no grounds for a new trial, specify the reasons it decided that misconduct did not occur, or occurred but was not prejudicial.
Resko, 3 F.3d 684, 691. In meeting those obligations, however, trial courts have broad discretion in choosing what measures to take. Id. at 690; Dowling, 814 F.2d at 137-38; see Console, 13 F.3d at 667, 669; Waldorf v. Shuta, 3 F.3d 705, 710 (3d Cir. 1993). "That discretion extends even to the initial decision of whether to interrogate the jurors." United States v. Yonn, 702 F.2d 1341, 1345 (11th Cir.), cert. denied sub nom. Weeks v. United States, 464 U.S. 917, 78 L. Ed. 2d 261, 104 S. Ct. 283 (1983).
The degree of discretion is especially broad when "'the alleged prejudice results from statements made by the jurors themselves, and not from media publicity or other outside influences.'"
United States v. Thornton, 1 F.3d 149, 155 (3d Cir.) (citation omitted), cert. denied U.S. , 114 S. Ct. 483 (1993). Such broad discretion is permitted because
"the trial court is obviously in a better position (than the appellate court) to observe the impact of premature jury discussions of guilt, and to make a considered judgment as to the effectiveness of a cautionary instruction." Moreover, the trial court is in a superior position to observe the "mood at trial and the predilections of the jury."
Resko, 3 F.3d at 690 (quoting United States v. Pantone, 609 F.2d 675, 679 (3d Cir. 1979); Chiantese, 582 F.2d 974, 980); see Thornton, 1 F.3d at 155; Klee, 494 F.2d at 396.
"Experience teaches that trial judges typically, and quite properly, act independently, at least initially, to investigate and address alleged juror bias or misconduct." United States v. Santiago, 977 F.2d 517, 522 (10th Cir. 1992). Accordingly, the trial court must "decide upon the appropriate course to take in view of [its] personal observations of the jurors and parties." Aiello, 771 F.2d at 629; see United States v. Phillips, 664 F.2d 971, 998-999 (5th Cir. 1981), cert. denied, 457 U.S. 1136 (1982); United States v. Bufalino, 576 F.2d 446, 451-52 (2d Cir.), cert. denied, 439 U.S. 928, 58 L. Ed. 2d 321, 99 S. Ct. 314 (1978).
In Resko, the Third Circuit was faced with the problem of intra-jury influence. In that case, the trial court learned, on the seventh day of a nine day trial, that the jurors, in disregard of the court's admonition, had been discussing the case amongst themselves. The court responded by distributing a two-part questionnaire asking each juror (1) whether he or she had discussed the case with other jurors and, if so, (2) whether those discussions had resulted in the juror forming an opinion as to the guilt or innocence of the defendant. After the questionnaire was distributed, the jury was left alone in the courtroom to fill in their answers. All of the jurors admitted they had discussed the case but denied they had formed any opinion as a result.
In light of the jury's positive answers to question number one, the defendants requested that each juror be questioned individually in more detail as to precisely what had occurred and the extent of any prejudice. The court denied the defendants' request. The court then concluded, solely on the basis of the jury's written answers to the questionnaire, that the defendants had suffered no prejudice as a result of the jury's misconduct. The trial was resumed and the defendant was convicted.
On appeal, the Circuit found the trial court had erred by refusing to conduct a more detailed inquiry into the jury's misconduct. The Circuit found that by relying exclusively on the written statements of the jurors that they had not been influenced by the discussions, the court "effectively ceded to the jury its responsibility for determining whether or not the defendants would be prejudiced by the juror's misconduct." Id. at 691. The Circuit further questioned the reliability of the questionnaire because of the way it had been administered. "The jurors were together when filling out the questionnaires and no court personnel were present at that time. Consequently, there was a potential for collaboration among the jurors. . . ." Id.
It was held that the trial court did not have enough information upon which to deny the defendants' motion for a mistrial and should have individually questioned each of the jurors about what had happened. Moreover, the absence of any information in the record concerning the discussions left the Circuit unable to evaluate the discussions with regard to their prejudice to the defendants. Id.
In remanding the case to the district court for a new trial, the Circuit expressly limited its holding to the particular circumstances of that case. Id. at 695.
In the instant case, it was learned, after the close of all the evidence, after completion of summations and after the court had begun instructing the jury as to the applicable law, that certain jurors may have engaged in a premature discussion of the case. Immediately upon learning of the problem, each of the jurors involved in the incident was individually questioned. The actions taken complied with the obligations set forth in Resko, 3 F.3d at 691.
The court first questioned Juror Six, in the presence of Bertoli and counsel, to determine whether any misconduct occurred. Juror Six stated she had heard remarks made by the Alternate Jurors regarding the case. Juror Six was then questioned regarding her ability to continue as a fair and impartial juror in the case; Juror Six assured the court she remained impartial. Next, the Alternate Jurors were questioned in the presence of Bertoli and counsel to determine whether any other members of the jury had been exposed to any remarks about the case. The Alternate Jurors responded they had not made statements about the case to any jurors other than Juror Six. Accordingly, the court and the parties learned the nature and extent of the problem and the identity of the jurors involved.
From the information gathered through the in-court questioning, it was determined that only the four jurors were involved. It was further determined there was no need to declare a mistrial because the only deliberating juror involved in the incident satisfactorily assured the court her impartiality was not affected. Therefore, the extent of the problem was ascertained, it was determined no prejudice to the defendant had occurred and reasons were given for that determination. The court thus complied with the three obligations set forth in Resko.
In addition, upon the request of Bertoli's counsel to develop the record more fully, the court conducted further questioning of the jurors in chambers. The jurors who were questioned in chambers were told their statements, although they were being transcribed, would not be made part of the public record, thus encouraging the jurors to speak openly about what had occurred.
Therefore, unlike the situation in Resko, the decision in this case not to declare a mistrial was based on complete information obtained through questioning the jurors involved both in the courtroom and in chambers. There was no need in the instant case to question all of the jurors because, unlike Resko, there was no evidence any other jury member had been exposed to any inappropriate statements.
Bertoli criticizes the actions taken by the court and asserts alternative courses of actions should have been taken. See Bertoli New Trial Brief at 11-14; Trial Transcript at 6765. Specifically, it is argued that (1) the entire jury panel should have been questioned regarding the incident, (2) Juror Six should have been confronted with the accusation of Alternate Juror Thirteen that she made remarks about the case and (3) Juror Six should have been excused. Id. None of those proposed courses of action was required or appropriate in the instant case.
There is no requirement that a trial court interview every member of the jury upon learning of possible jury misconduct. If the court knows which jurors are involved in the misconduct, questioning only those jurors is sufficient. See Caldwell, 776 F.2d at 997-98; see, e.g., United States v. Gagnon, 470 U.S. 522, 84 L. Ed. 2d 486, 105 S. Ct. 1482 (1985); United States v. Brantley, 733 F.2d 1429 (11th Cir. 1984), cert. denied, 470 U.S. 1006, 84 L. Ed. 2d 383, 105 S. Ct. 1362 (1985); United States v. Kelly, 749 F.2d 1541, 1551-52 (11th Cir.), cert. denied, 472 U.S. 1029, 87 L. Ed. 2d 636, 105 S. Ct. 3506 (1985); United States v. Sedigh, 658 F.2d 1010, 1013-14 (5th Cir. 1981), cert. denied, 455 U.S. 921, 71 L. Ed. 2d 462, 102 S. Ct. 1279 (1982); United States v. Brown, 571 F.2d 980, 990-91 (6th Cir. 1978).
The extensiveness of the court's investigation depends upon the nature and credibility of the allegations.
At one end of the spectrum the cases focus on the certainty some impropriety has occurred. The more speculative or unsubstantiated the allegation of misconduct, the less the burden to investigate. At the other end of the continuum lies the seriousness of the potential jury contamination, especially where alleged extrinsic influence is involved, the heavier the burden to investigate.
Caldwell, 776 F.2d at 998 (citations omitted); see Aiello, 771 F.2d at 629; Sedigh, 658 F.2d at 1014 ("trial court's duty in deciding a motion for a new trial when jury misconduct is alleged must be judged on the peculiar facts and circumstances of each case").
An additional concern, in determining whether it is necessary to question the entire jury, is the possibility such questioning will place undue emphasis on the incident.
"The court must balance the probable harm resulting from the emphasis such action would place upon the misconduct and the disruption involved in conducting a hearing against the likely extent and gravity of the prejudice generated by that misconduct."
Thornton, 1 F.3d at 156 (quoting Chiantese, 582 F.2d 974, 980); see Brown, 571 F.2d at 990-91 (where court's interrogation of entire jury regarding one juror's exposure to outside communication could prejudice the jury, it was held: "A district judge must have the discretion to decline to interrogate the jurors in this situation.").
A further problem which may result from questioning the entire jury is that such questioning
has a great potential to pollute the jury as a deliberative body through the introduction of bias and the alienation of sitting jurors. The questioning and defending that takes place in such a proceeding can lead jurors to come to dislike counsel for one side, and sometimes to dislike each other.
United States v. Simone, 14 F.3d 833, 839 (3d Cir. 1994); see United States v. Edwards, 823 F.2d 111, 116-17, reh'g denied, 828 F.2d 772 (5th Cir. 1987), cert. denied, 485 U.S. 934, 99 L. Ed. 2d 270, 108 S. Ct. 1109 (1988).
There is nothing in the record in the instant case which supported the need for questioning the entire jury. Upon questioning Juror Six and the Alternate Jurors, it was learned that the incident was confined to those four. There was no indication or basis to infer any other members of the jury were involved or even aware of what had happened. The limited extent of the incident when weighed against the possible disruption of the jury and undue emphasis on the incident by questioning every member, weighed in favor of the action taken. See Thornton, 1 F.3d at 156; see also Simone, 14 F.3d at 839; Edwards, 823 F.2d at 116-17.
The assertion that Juror Six should have been "confronted" with Alternate Juror Thirteen's accusation that she had made statements regarding Bertoli's guilt or innocence, Bertoli New Trial Brief at 12, is without merit. Such a confrontation was unnecessary given the determination by the court that the accusation by Alternate Juror Thirteen was not credible. See Kelly, 749 F.2d at 1551-52; see also Caldwell, 776 F.2d at 998.
In Kelly, the defendants contended on appeal that the trial court had erred by refusing to question the jury regarding an allegation of bias. 749 F.2d at 1551. Toward the end of the trial, there was a report that several of the jurors were possibly biased. After questioning the person who reported the bias, the court refused to interrogate the jury because it found the report to be "incredible" and not worthy of belief. Id. at 1551-52. On appeal, the refusal of the trial court to question the entire panel on the basis of a report it found incredible was upheld. The Eleventh Circuit determined that because the trial court found the statements of the reporting juror to be incredible, the court had not abused its discretion in refusing to question the other jury members. Id. at 1552.
In addition, confronting Juror Six with the accusations of Alternate Juror Thirteen would have placed in her head a statement of Bertoli's guilt. That could have been prejudicial to Bertoli.
It is further asserted Juror Six should have been excused from deliberations.
Bertoli New Trial Brief at 27-28. Excusing Juror Six, however, was unnecessary because it was determined, based on the responses to direct questioning and observations of the jurors, that Juror Six had not made any statement regarding guilt or innocence and continued to be fair and impartial. Trial Transcript at 6827-28, 6830. The determination of a trial court as to whether a juror should be disqualified is entitled to a "high measure of deference." Rushen, 464 U.S. at 128; see Patton v. Yount, 467 U.S. 1025, 1037 n.12, 81 L. Ed. 2d 847, 104 S. Ct. 2885 (1984); Clapps, 732 F.2d at 1152; Aiello, 771 F.2d at 630; Bufalino, 576 F.2d at 451. Bertoli has offered nothing to overcome the deference accorded to the decision not to excuse Juror Six.
The exposure of Juror Six to any premature opinions did not automatically warrant excusing her from the jury. So long as it is determined that the juror can render a verdict based on the evidence presented in court and is in fact fair and impartial, a defendant is not prejudiced by the inclusion of that juror. See Dobbert v. Florida, 432 U.S. 282, 302, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977); Murphy, 421 U.S. 794, 800, 44 L. Ed. 2d 589, 95 S. Ct. 2031; Irvin, 366 U.S. 717, 722-23, 6 L. Ed. 2d 751, 81 S. Ct. 1639.
One may not know or altogether understand the imponderables which cause one to think what he [or she] thinks, but surely one who is trying as an honest man [or woman] to live up to the sanctity of his [or her] oath [as a juror] is well qualified to say whether he [or she] has an unbiased mind in a certain matter.
Dennis v. United States, 339 U.S. 162, 171, 94 L. Ed. 734, 70 S. Ct. 519 (1950); see Smith v. Phillips, 455 U.S. 209, 217 n.7, 71 L. Ed. 2d 78, 102 S. Ct. 940 (1982); Aiello, 771 F.2d at 630.
In this case, Juror Six did more than merely state her ability to be fair and impartial. The observation of the conduct and demeanor of the Juror during questioning regarding this incident and throughout the ten-week trial, led to the conclusion that she was credible and her statements were in fact accurate.
after the presentation of evidence but before closing arguments, a juror reported that some of the other jurors had been discussing the case. See 732 F.2d at 1152. The court, upon learning of this and upon the defendant's motion for a mistrial, conducted a voir dire examination of the jury. Id. As a result of the voir dire, the court excused the two jurors who were identified as the persons who had made the remarks and replaced them with alternates. Id. The court, however, did not excuse the jurors who heard the remarks because it was satisfied by their statements that their impartiality had not been affected by the remarks they had heard. Accordingly, the court denied the defendant's motion for a mistrial.
The Circuit affirmed the decision of the district court because the defendant failed to show the "likelihood of actual prejudice" arising from the incident. Id. Although the defendant argued the entire jury had been tainted and biased by the remarks, there was no evidence that was the case; particularly in light of the statements by the remaining jury members that they remained impartial. Id.
To prevail on his motion for a mistrial in the instant case, Bertoli has the burden of showing the "'likelihood of actual prejudice.'" Clapps, 732 F.2d at 1152 (citation omitted).
The actions taken in this case adequately dealt with any potential prejudice arising from the comments made by the Alternate Jurors. Juror Six, who heard the remarks, was questioned about the affect of those remarks on her ability to fairly deliberate; her response and the observation of her demeanor and credibility during the investigation established that she had not been influenced by what she had heard. Each of the Alternate Jurors who were identified as making the remarks was individually questioned. It was determined they had not discussed the case with any of the other jurors. It was also determined that the Alternate Jurors had not formed any opinion as to guilt or innocence. Nevertheless, as an additional precaution against any potential prejudice, the Alternate Jurors were then excused.
None of the factors recognized by the Third Circuit in Resko as creating a likelihood of prejudice is present in the instant case. The incident occurred after the close of all the evidence, after the summations and after the instruction to the jury had begun. See Trial Transcript at 6729. Accordingly, there was no likelihood any prematurely formed opinions were violative of the rationale in Resko. Resko, 3 F.3d 684, 689-90. There was also no danger any of the deliberating jurors would feel bound to adhere to any "publicly expressed viewpoint," see id. at 689, because the Alternate Jurors who were identified as making remarks about the case explained they had not made comments to anyone other than Juror Six. Trial Transcript at 6762-65. As well, the Alternate Jurors were excused from further participation in the case without ever engaging in deliberations. Juror Six who reported the misconduct was found to be fair and impartial and not affected by the incident and was further found not to have expressed any viewpoint to the jury. Moreover, she was instructed not to repeat the remarks she had heard. Trial Transcript at 6761.
The fact the jury deliberated for ten days and delivered a verdict which acquitted Bertoli of the most significant charges, indicates the jury's deliberations were careful, serious and fair. In Aiello, the Second Circuit took note of the following in affirming the finding by the trial court that the defendant had not been prejudiced by jury misconduct.
The accuracy of the district judge's finding about the ability of the jury to render an impartial verdict is confirmed by the care which the jury took in its deliberations; over a period of four days it requested multiple readbacks of testimony and then determined that some defendants should be acquitted altogether, that others should be acquitted on some charges, and that others were guilty of all crimes charged.
771 F.2d at 631; see United States v. Piccarreto, 718 F. Supp. 1088, 1093 (W.D.N.Y. 1989) (no prejudice where defendant was acquitted of most serious RICO charges).
b. Right of Defendants to Be Present During Court's Interview of Juror for Misconduct
It is argued that the ex parte interview of the Alternate Jurors and Juror Six violated Bertoli's Fifth Amendment right to be present at a critical stage of the trial, his Sixth Amendment right to effective assistance of counsel and his right to be present at every stage of trial pursuant to Fed. R. Crim. P. 43. Bertoli New Trial Brief at 14-28.
i. Fifth Amendment Right to be Present
In Gagnon, 470 U.S. 522, 84 L. Ed. 2d 486, 105 S. Ct. 1482, the Supreme Court rejected the argument that defendants had a constitutional right to be present during an in camera interview of jurors by the trial court.
"The mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right. The defense has no constitutional right to be present at every interaction between a judge and a juror. . . ."
Id. at 526 (citing Rushen, 464 U.S. 114, 125-26 (Stevens, J., concurring)). As the Tenth Circuit stated in Santiago, 977 F.2d 517: "While it is crucial in any trial to assure that jurors will render unbiased verdicts, a judge's in camera examination of a juror for possible bias is not so critical a trial function that a defendant's presence to exert a psychological influence is constitutionally mandated." Id. at 523 n.6.
In Gagnon, the bailiff informed the trial court that one of the jurors had expressed concern after he noticed one of the four defendants making sketches of the jury during the trial. 470 U.S. at 523. The bailiff conveyed this information to the court in the presence of counsel for the defendants and the Government. Id. Counsel for the defendant who had made the sketches suggested that the court question the juror who had expressed concern to ascertain whether the juror had been prejudiced against his client. Id. The court stated it would question the juror in chambers and determine whether there was any prejudice. No objection was made by the counsel for any of the defendants and none of the defendants requested to be present during questioning. Id. Counsel for the defendant who made the sketches was present during the questioning. Id. at 523-24.
The juror who expressed concern stated during questioning that another juror had noticed the sketching and had made a comment to him but none of the other jurors seemed to have noticed. Id. at 523. The juror then stated his willingness to continue as an impartial juror. Id. The defense counsel asked two questions of the juror and stated he was satisfied there was no prejudice. A transcript of the in camera proceedings was later provided to all the parties. Id. No objections were made as to the in camera proceedings.
After the jury returned guilty verdicts, all four defendants filed motions for a new trial on the ground their right to an impartial jury and their rights under Rule 43 and the Due Process Clause of the Fifth Amendment had been violated by the court's in camera discussion with the juror. Id. at 524-25. The Ninth Circuit reversed all four convictions, holding that all four defendants had a right to be present during the in camera questioning of the juror. Id. at 525. The Ninth Circuit further found the harmless-error-rule could not excuse the error. The Supreme Court reversed the Circuit, stating:
The encounter between the judge, the juror, and [one of the defendant's] lawyer was a short interlude in a complex trial; the conference was not the sort of event which every defendant had a right to personally attend under the Fifth Amendment.
Id. at 527; see Aiello, 771 F.2d at 621.
In the instant case, the in camera interview of the jurors was similarly a "short interlude in a complex trial" and, therefore, "was not the sort of event which" Bertoli had any constitutional right to attend. And, significantly, there was neither an objection to the procedure nor a request to be present on the part of Bertoli.
ii. Right to be Present Pursuant to Rule 43
Rule 43 of the Fed. R. Crim. P. provides:
(a) The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impanelling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.
Fed. R. Crim. P. 43(a).
An in-chambers conference with a juror is not expressly exempted from Rule 43. See Fed. R. Crim. P. 43(b) and (c); Brown, 571 F.2d at 985-86. "Although Rule 43(a) does have its constitutional underpinning, the right of presence stated in the Rule is more far-reaching than the right of presence protected by the Constitution." Brown, 571 F.2d at 986.
It is within the court's discretion to proceed with in camera interviews of jurors without the presence of defendants and their counsel. Santiago, 977 F.2d at 522; see Gagnon, 470 U.S. 522 at 527, 84 L. Ed. 2d 486, 105 S. Ct. 1482; Aiello, 771 F.2d at 630; United States v. Williams, 737 F.2d 594, 612 (7th Cir. 1984), cert. denied, 470 U.S. 1003, 84 L. Ed. 2d 377, 105 S. Ct. 1354, 105 S. Ct. 1355 (1985); United States v. Buchanan, 633 F.2d 423, 427 (5th Cir. 1980), cert. denied, 451 U.S. 912, 68 L. Ed. 2d 301, 101 S. Ct. 1984 (1981); Jones, 542 F.2d at 211. "The trial judge, aided by his personal observation and appraisal of all persons concerned, may choose a private inquiry in the more relaxed atmosphere of [chambers]." Aiello, 771 F.2d at 629.
Such discretion is necessary given the nature of trial proceedings. As stated by the Supreme Court:
There is scarcely a lengthy trial in which one or more jurors does not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial. The lower Federal court's conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores these day-to-day realities of courtroom life and undermines society's interest in the administration of criminal justice.
Rushen, 464 U.S. at 118-19.
In United States v. Marrero, 904 F.2d 251 (5th Cir.), cert. denied, 498 U.S. 1000, 112 L. Ed. 2d 567, 111 S. Ct. 561 (1990), the defendant moved for a new trial on the ground of jury misconduct and requested a hearing on the issue. Id. at 261. After the verdict had been entered, the defendant obtained the affidavits of two jurors which stated that (1) a juror had made a statement in the presence of the other jurors that the defendant was guilty and (2) a juror had said during the deliberations that the "majority rule" controlled their verdict such that they had to vote with the majority. Id. On the basis of the two affidavits, the defendant moved for a new trial. The Government submitted the affidavits of two other jurors which refuted the jurors' statements contained in the affidavits submitted by the defendant. Id. In response, the trial court conducted an ex parte in camera interview of the four jurors who had signed the affidavits; the court then sealed the record of the interview. Id. The defendant's motion to open the sealed record for purposes of her appeal was denied. Id.
The Fifth Circuit rejected the defendant's claims of jury bias after reviewing the record of the court's interview with the jurors and the affidavits of the jurors. The court stated:
The record reveals that the district court was essentially faced with making a credibility determination based on the conflicting testimony given by the jurors, the district court concluded that the allegations of juror bias were incredible. Since the district court is best suited to make this type of credibility determination, we are constrained to leave undisturbed the district court's conclusions.
Id. at 261-62. In affirming the district court denial of the defendant's motion for a new trial, the Fifth Circuit had no criticism of the ex parte questioning of the jurors. See id.
The failure of either Bertoli or his counsel to request that Bertoli be present during the in camera interview of the jurors, moreover, constituted a waiver of any right Bertoli had under Rule 43. See Gagnon, 470 U.S. at 527-29; Brown, 571 F.2d at 987. At no time did Bertoli or his counsel suggest that Bertoli or counsel should be present during the in camera questioning which was conducted at the request of Bertoli's counsel.
the Supreme Court determined the defendants had waived any right they had to be present during the in camera questioning of a juror.
The record shows . . . the District Judge, in open court, announced her intention to speak to the juror in chambers, and then called a recess. The in camera discussion took place during the recess, and trial resumed shortly thereafter. . . . [The defendants] neither then nor later in the course of the trial asserted any Rule 43 rights they could have had to attend this conference. [The defendants] did not request to attend the conference at any time. No objections of any sort were lodged, either before or after the conference.
470 U.S. at 527-28. The Court found that this behavior was enough to constitute a waiver of any right the defendants had pursuant to Rule 43 to be present during the in camera questioning of a juror.
Failure by a criminal defendant to invoke his right to be present under Federal Rule of Criminal Procedure 43 at a conference which he knows is taking place between the judge and a juror in chambers constitutes a valid waiver of that right.
Id. at 529.
"The district court need not get an express 'on the record' waiver from the defendant from every trial conference which a defendant may have a right to attend." Id. ; see, e.g., United States v. Washington, 227 U.S. App. D.C. 184, 705 F.2d 489, 496-98 (D.C. Cir. 1983); United States v. Provenzano, 620 F.2d 985, 997-98 (3d Cir.), cert. denied, 449 U.S. 899, 66 L. Ed. 2d 129, 101 S. Ct. 267 (1980); Bufalino, 576 F.2d at 450-51.
In Jones, 542 F.2d 186, the defendants moved for a new trial, alleging the trial court had erred in its handling of allegations of juror misconduct. When the allegations of jury misconduct were brought to the attention of the trial court, counsel for defendants suggested that the trial court "either [conduct] an in camera conference . . . or that [the juror] be brought to the bench, or in [the judge's] chambers, something of that nature, and questioned by all counsel and the Court." Id. Despite counsel's request to be present during questioning, the court conducted ex parte in camera interviews of each of the jurors. Before questioning the jurors, the trial court informed counsel of its intended course of action; there were no objections. Id. Upon the conclusion of its in camera questioning, the trial court determined a new trial was not necessary.
In affirming the decision and procedure of the trial court, the Fourth Circuit stated:
Even had counsel for the defendants not suggested and, by implication at least, agreed to the procedure followed by the trial court, the very fact that counsel for the defendants knew of the procedure, and neither before nor after the examinations were completed, objected would amount under the authorities to a waiver of any claim of error in regard to the in camera examination in the absence of a showing of prejudice.
Id. at 213; see United States v. Larkin, 417 F.2d 617, 619 (1st Cir. 1969), cert. denied, 397 U.S. 1027, 25 L. Ed. 2d 536, 90 S. Ct. 1271 (1970); United States v. Doe, 513 F.2d 709, 710 n.1 (1st Cir. 1971); United States v. Jorgenson, 451 F.2d 516, 521 (10th Cir. 1971), cert. denied, 405 U.S. 922, 30 L. Ed. 2d 793, 92 S. Ct. 959 (1972).
In the instant case, counsel for Bertoli requested that further questioning of the Alternate Jurors and Juror Six be conducted to determine the nature of the discussions. Trial Transcript at 6816. In response to the request of counsel, the court stated to the parties its intention to question those jurors in chambers and that the record of that interview would be sealed. Id. As in Gagnon and Jones, neither the defendant nor defendant's counsel objected or asked to be present during the in camera interview. See Trial Transcript at 6816. Accordingly, Bertoli waived any right he had under Rule 43 to be present. See Larkin, 417 F.2d at 619; Doe, 513 F.2d at 710 n.1; Jorgenson, 451 F.2d at 521.
Even if Bertoli had a right under Rule 43 to be present during the in camera interviews of the jurors, his absence is not a basis for a new trial without a demonstration of prejudice.
An alleged deprivation of a defendant's right under Fed. R. Crim. P. 43 to be present during trial proceedings ordinarily is subject to the harmless error rule and will not constitute reversible error absent a showing of clear prejudice to the absent defendant.
Santiago, 977 F.2d at 521 n.5. A defendant must show actual prejudice resulting from an ex parte contact to receive a new rial. See Rushen, 474 U.S. at 130 n.8 (Stevens, J., concurring); Smith, 455 U.S. at 217; United States v. Birges, 723 F.2d 666, 671 (9th Cir), cert. denied, 466 U.S. 943, 80 L. Ed. 2d 472, 104 S. Ct. 1926 (1984); see also United States v. Madrid, 842 F.2d 1090, 1093 (9th Cir.), cert. denied sub nom. Madamba v. United States, 488 U.S. 912, 102 L. Ed. 2d 256, 109 S. Ct. 269 (1988).
Furthermore, a defendant's absence during questioning of a juror by a court can be more advantageous than prejudicial to the defendant. As stated by the Eleventh Circuit in Caldwell :
[There is] perhaps . . . some benefit, to be gained by the defendants absence during the questioning of [the] juror. . . . Had the [defendant] actually been present and had counsel taken an active role in the questioning, it would have put the juror and the defendant in an adversarial posture, which could have an adverse affect on the juror.
776 F.2d at 997; see Gagnon, 470 U.S. at 527; Santiago, 977 F.2d at 522-23; Yonn, 702 F.2d at 1345-46; see also Simone, 14 F.3d at 839.
In Yonn, the Eleventh Circuit did not find the defendant had been prejudiced by the ex parte interviews by the court of the jury based on the following description of the interview.
[The trial judge] began by assuring the jurors that the inquiry was merely a necessary precaution and did not result from any impropriety on their part. The judge scrupulously refrained from intimating any opinion on the comment; he merely observed that the remark was a possible violation of his instructions. He obtained the pledges of those jurors how had overheard the remarks that the comment had not interfered with their ability to render a fair and impartial verdict. . . . There is no suggestion that the judge's communications with, or his questions of the jurors . . . prejudiced the defendants. Moreover, when the trial resumed, the court instructed the jury to disregard their earlier conversation, and again reminded them of their duty to base the verdict only on the evidence, the arguments, and the court's instructions.
702 F.2d at 1345.
As in Yonn, there was nothing which occurred in the instant case during the in camera interview of the jurors that could have prejudiced Bertoli. In the instant case, there was nothing Bertoli could have accomplished through his presence during the in camera interviews of the jurors. The investigation of juror misconduct lies wholly within the discretion of the trial court. See Caldwell, 776 F.2d at 997; see also Console, 13 F.3d at 667, slip op. at 39, 44; Resko, 3 F.3d at 690. As discussed, the trial court, "given [its] superior vantage position," must determine whether the jurors are credible and whether anything that occurred resulted in prejudice to the defendant. See Santiago, 977 F.2d at 522; Caldwell, 776 F.2d at 999-1000.
iii. Right to Have Counsel Present
There is no right of defendants to have their counsel present during a court's questioning of a juror to determine bias. See, e.g., Marrero, 904 F.2d at 261-62.
Even courts which have stated a preference for having counsel present during in camera interviews of jurors have found that ex parte interviews do not create a basis for ordering a new trial in the absence of prejudice, particularly where a record was made of the conference. See Aiello, 771 F.2d at 629-30; Yonn, 702 F.2d at 1345; United States v. Dumas, 658 F.2d 411, 414 (5th Cir. 1981), cert. denied, 455 U.S. 990, 71 L. Ed. 2d 850, 102 S. Ct. 1615 (1982); United States v. Dominguez, 615 F.2d 1093, 1096 n.5 (5th Cir. 1980). "Transcribing the in camera interview for the record helps to minimize the possibility of prejudice." Yonn, 702 F.2d at 1345.
In the instant case, Bertoli was not prejudiced by the absence of his counsel. Counsel were given the opportunity to offer input as to how to proceed with regard to the information learned from Juror Six. See Trial Transcript at 6760. Also, the initial questioning was conducted in open court in the presence of counsel. See id. at 6760-65. Once the initial questioning was concluded, counsel had a second opportunity to make suggestions as to how to proceed. Id. at 6765. In fact, the in camera interview was conducted at the request of counsel for Bertoli. Id. at 6816. In response to counsel's request, the court stated its intention to conduct further questioning of the jurors in chambers. Id. at 6817. There was no objection by Bertoli or his counsel to that proposed course of action.
There was nothing counsel could have accomplished through his presence during the in camera interview. As discussed, it was the sole duty of the court to decide the credibility of the jurors and make a determination as to whether the incident resulted in any prejudice to Bertoli. See supra, at 288-90. Accordingly, Bertoli was not prejudiced by the absence of his counsel during the interview. The possibility of prejudice was further minimized by the record of the proceedings contained in the Trial Transcript. See Aiello, 771 F.2d at 629-30; Yonn, 702 F.2d at 1345; Dumas, 658 F.2d at 414; Dominguez, 615 F.2d at 1096 n.5.
c. The Riepe Letter
On 7 March 1994, Bertoli submitted new evidence which he contends warrants a further hearing on the issue of Juror Six's asserted misconduct.
This new evidence consists of a letter from John Riepe ("Riepe") to Levitt, dated 4 March 1994 (the "Riepe Letter"). In the Riepe Letter, Riepe purports to be "engaged in a literary project focusing on the emotional impact courtroom proceedings have on jurors, and the way in which they reach decisions or verdicts." Riepe Letter, attached to Levitt Aff. as Exhibit E, at 1.
Riepe states that, in connection with this "literary project," he pursued and interviewed at least one juror in Bertoli's case ("Juror Two").
Attached to the Riepe Letter are notes of an interview between Riepe and Juror Two, held 1 February 1994 (the "Riepe Notes").
It is the Riepe Notes which Bertoli relies upon in requesting a further hearing into Juror Six's asserted misconduct. See 7 March 1994 Bertoli Brief at 8, 16.
According to the Riepe Notes, Juror Two disclosed to Riepe several details concerning the private deliberations of the jury in this case. Bertoli makes specific reference to the following passages:
In the beginning, we all felt that Bertoli was clean. After a while, I (and others) felt that Bertoli had to be a little dirty to be involved in all this, but not to the extent that the Government had proved in their case. There was one woman ([Juror Six]) who insisted that he was dirty and guilty from the very beginning. I don't know why the Government was so intent on putting this guy away when the witnesses for the Government seemed to be far guiltier than he was. But this woman ([Juror Six]) didn't like him from the beginning. And there were times during the trial when I felt that [Juror Six] wasn't even listening. On occasion, there were multiple jurors sleeping. [Juror Six] was one of the ones who slept.
I got upset with [Juror Six]. We were repeatedly voting without conclusion and I thought the judge would think that we were brain-dead because we couldn't reach a decision. . . .
(Juror Six) had three people thrown off the jury because she said they tried to influence the rest of us. She went to the judge to tell him that these jurors were saying that this man was innocent, and were prejudicial [sic ], while she herself had been saying he was guilty from the beginning. She was pretty much guilty of all the things she said they were guilty of -- but she went to the judge first. The judge said he believed the statements of the accused jurors but released them for the sake of the court. The other jurors in the courtroom didn't even know what was going on. If the judge was going to disqualify these jurors, he should have disqualified [Juror Six] as well.
[Juror Six] was a very dramatic person. She had to be the center of attention. She claimed she was taking medication for sugar and made a big production of everything. Some or us were under the impression that she was dragging out the trial for the $ 40 per day, and because she probably had nothing else to do.
Riepe Notes at 2-3.
Bertoli argues the comments of Juror Two, as described in the Riepe Notes, indicate misconduct on the part of Juror Six in that she "repeatedly expressed opinions regarding . . . Bertoli's guilt to other jurors during the trial." 7 March 1994 Bertoli Brief at 16. Bertoli aruges argues, therefore, that the Riepe Notes warrant a new trial or, in the alternative, "a hearing at which all knowledgeable persons should be called upon to testify." 7 March 1994 Bertoli Brief at 16.
Impeachment of the Verdict: Rule 606(b)
Federal Rule of Evidence 606(b) provides, in full:
Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
Fed.R.Evid. 606(b) (emphasis added).
As the Supreme Court has noted, Rule 606(b) "is grounded in the common-law rule against admission of jury testimony to impeach a verdict and the exception for juror testimony relating to extraneous influences." Tanner, 483 U.S. at 121. The rule recognizes that a jury's verdict may not be impeached by a juror's testimony as to "'internal' rather than 'external' matters." Id. at 118.
Elaborating on this distinction, the Court has explained that, under Rule 606(b), a juror can
testify as to the influence of extraneous prejudicial information brought to the jury's attention (e.g. a radio newscast or a newspaper account) or an outside influence which improperly had been brought to bear upon a juror (e.g. a threat to the safety of a member of his family), but he [can] not testify as to other irregularities which occurred in the jury room.
Id. at 123 (quoting H.R.Rep. No. 93-650 at 9-10 (1973)) (emphasis added); see United States v. Black, 269 U.S. App. D.C. 128, 843 F.2d 1456, 1464 n.7 (D.C.Cir. 1988) (Under rationale of Tanner and Rule 606(b), a juror's affidavit or testimony "is incompetent to impeach the verdict for internal error; juror affidavits [or testimony] may only be used for the narrow purpose of showing 'extraneous influence,' such as prejudicial publicity."); Government of the Virgin Islands v. Nicholas, 759 F.2d 1073, 1080 (3d Cir. 1985) (adopting identical reading of Rule 606(b) on rationale that "it is obvious that the drafters of the rule were primarily concerned with jury tampering or improper communications to the jury . . .").