United States v. Bianchini

759 F. Supp. 1081, 1991 U.S. Dist. LEXIS 3627, 1991 WL 37682
CourtDistrict Court, D. Vermont
DecidedMarch 18, 1991
DocketCr. No. 90-18-01
StatusPublished
Cited by2 cases

This text of 759 F. Supp. 1081 (United States v. Bianchini) is published on Counsel Stack Legal Research, covering District Court, D. Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bianchini, 759 F. Supp. 1081, 1991 U.S. Dist. LEXIS 3627, 1991 WL 37682 (D. Vt. 1991).

Opinion

OPINION AND ORDER

BILLINGS, Chief Judge.

7. Introduction

Before the court are defendant’s motions (1) for a new trial; (2) for disclosure, to interview jurors, and for a hearing on extraneous influences on the jury verdict; and (3) for judgment of acquittal. The government has opposed all of the motions. For the reasons herein stated, defendant’s motions are DENIED.

II. Background

A. The Jury Tampering Incident

Defendant David Bianchini was convicted of violating various federal drug laws after a jury trial lasting from November 13-26, 1990. During the trial, certain unusual and troubling events occurred that form the primary basis for defendant's motions.

On Monday, November 18th, prior to the convening of court, Juror No. 1 informed the court that he had been telephoned the preceding day by a person offering him $5000 to see to it that there was a hung jury in the case. The juror, Arthur Tenner, approached the court at approximately 8:45 a.m. with this information. Mr. Tenner had not yet seen any of the other jurors that morning.

The court instructed Mr. Tenner that it would continue with the trial and that he was not to discuss the incident with anyone, particularly with any members of the jury. The court then notified the Federal Bureau of Investigation which in turn notified the Acting United States Attorney.

During the lunch recess that day, the court spoke to Mr. Tenner further and instructed him again that he was not to discuss the incident or the case with anyone. So that other jurors would not notice anything was amiss, the court had the deputy [1083]*1083clerk escort juror Tenner into chambers through a back entrance after the other jurors had gone to lunch.

The court conducted full trial days on November 18th and 19th, with juror Tenner continuing to sit pursuant to his instructions. The court recessed for the Thanksgiving holiday at noon on Wednesday, November 20th. The parties were not informed of the events that had transpired during these two and a half days of trial.

After recessing, the court conducted an in camera hearing without counsel. In the first part of that hearing, Acting United States Attorney Charles Caruso was present. The court stated for the record the events that had transpired. U.S. Attorney Caruso stated that he had been informed by the F.B.I. of the attempted jury tampering. He presented the court with some cases that he suggested would allow the court to continue with the trial while at the same time giving the government an opportunity to investigate potential jury tampering in violation of 18 U.S.C. §§ 401 and 1503. He informed the court that he had not told the Assistant U.S. Attorney handling the case about the events that had transpired so that trial counsel for both the defendant and the government would be in the same posture. The court then excused U.S. Attorney Caruso.

In the second part of the hearing, the court had the deputy clerk escort juror Tenner into chambers, again through a back entrance. The court instructed juror Tenner to state for the record what had occurred. After he did so, the court asked Mr. Tenner whether he had followed the court’s instructions not to discuss the case with anyone during the preceding two and a half days. Mr. Tenner stated that he had discussed the events with no one other than his mother with whom he lived. The court asked Mr. Tenner whether he thought that he could remain an impartial juror after what had happened and Mr. Tenner said that he did not think that he could.

Based upon Mr. Tenner’s statements, the court found that a bribery attempt of the juror had been made; that Mr. Tenner had followed the court’s instructions not to discuss the incident with anyone (except his mother); and that he could not continue to sit as an impartial juror. The court then dismissed Mr. Tenner as a juror and indicated that it would seat an alternate juror the following Monday. The court noted during the hearing that it had followed procedures and exercised discretion in reliance on United States v. Aiello, 771 F.2d 621 (2d Cir.1985), United States v. Moten, 564 F.2d 620 (2d Cir.), cert. denied, 434 U.S. 959, 98 S.Ct. 489, 54 L.Ed.2d 318 (1977), United States v. Floyd, 496 F.2d 982 (2d Cir.), cert. denied, 419 U.S. 1069, 95 S.Ct. 654, 42 L.Ed.2d 664 (1974), and United States v. Miller, 381 F.2d 529 (2d Cir. 1967), cert. denied, 392 U.S. 929, 88 S.Ct. 2273, 20 L.Ed.2d 1387 (1968).

During the weekend of November 24th-25th, Mr. Tenner received a note threatening his life that was implicitly connected to his having informed the court of the bribery attempt.

On Monday morning, November 26th, the court in chambers informed counsel of the events of the preceding week and that it intended to voir dire the remaining jurors. Then, in open court, the court inquired of the remaining jurors whether anyone had had discussions with juror Tenner or any other person about the case. Two jurors stated that they had had conversations with Mr. Tenner.

The two jurors were questioned individually in chambers with counsel present. They both stated that Mr. Tenner had made disparaging remarks to them about the insanity defense being put forward by defendant but that they had terminated the conversations immediately. The court inquired of the jurors whether they felt that they could continue to sit impartially and they both stated that they thought that they could. The court found that the two jurors were qualified to remain on the jury.

B. The Insanity Charge

With respect to his insanity defense, defendant sought a jury instruction that under 18 U.S.C. §§ 4243 and 4247(d), a defendant who is found not guilty by reason of insanity is committed for observation and is [1084]*1084given a hearing regarding continued commitment. Defendant based his argument on United States v. Neavill, 868 F.2d 1000, 1002-05 (8th Cir.1989), reh’g granted, 877 F.2d 1394 (8th Cir.1989), a case in which the court concluded that Congress intended to allow such an instruction. Based upon the absence of such a requirement in the Second Circuit, as well as upon the rule that punishment is not the concern of the jury, this court declined to give such an instruction.

Further, the court included in its legal insanity instruction the following:

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Bluebook (online)
759 F. Supp. 1081, 1991 U.S. Dist. LEXIS 3627, 1991 WL 37682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bianchini-vtd-1991.