United States v. Salerno

698 F. Supp. 1109, 1988 U.S. Dist. LEXIS 11776, 1988 WL 112611
CourtDistrict Court, S.D. New York
DecidedOctober 12, 1988
DocketNo. 86 Cr. 245 (MJL)
StatusPublished
Cited by4 cases

This text of 698 F. Supp. 1109 (United States v. Salerno) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Salerno, 698 F. Supp. 1109, 1988 U.S. Dist. LEXIS 11776, 1988 WL 112611 (S.D.N.Y. 1988).

Opinion

MEMORANDUM OPINION AND ORDER

LOWE, District Judge.

Defendant Anthony Salerno moves for a new trial and for the recusal of this Court in connection with the determination of the same motion. The other convicted defendants have joined or are deemed to have joined in the motion. For the reasons set forth below, we find that the evidence submitted by the defendants in support of their motion lacks sufficient reliability, clarity, and strength to warrant further inquiry. Furthermore, the defendants have failed to show that the alleged events giving rise to their motion caused them prejudice. We thus deny the motion without a hearing and determine that recusal is not warranted.1

BACKGROUND

This motion for a new trial and for recu-sal of the trial judge was initially filed on behalf of defendant Anthony Salerno by Anthony Cardinale, Esq. We note that Mr. Cardinale originally filed a Notice of Appearance but was absent during almost all of the trial. The motion is based on allegations that the court and a deputy marshal interfered with the deliberations of the jury and argues that as a result, both a hearing to examine the merits of the allegations and a new trial are necessary. Specifically the motion asserts that: (1) the court went to the jury room during deliberations and gave a coercive instruction without the knowledge or consent of the parties; (2) a deputy marshal forced the jury to hurry to a verdict by advising them that they would have to listen to 100 tapes; (3) the court told the forelady, during the deliberations on forfeiture, that the jury could not hang; and (4) the verdict was the result of compromise.2

In support of this motion, we are presented with post-verdict statements from three jurors. Cardinale’s original argument in support of this motion states that a “private investigator” who was “independently retained by some of the defendants in this case” had collected the statements and turned them over to him. Cardinale Affidavit, ¶ 4. Cardinale maintains that neither he nor any other counsel was involved in conduct condemned by the Second Circuit. Indeed, as Cardinale notes, the Court of Appeals has said:

[CJomplicity by counsel in a planned, systematic, broad-scale, posttrial inquisition of the jurors by a private investigator or investigators is reprehensible, to say the least.

United States v. Brasco, 516 F.2d 816, 819 n. 4 (2d Cir.1975), cert. denied, 423 U.S. 860, 96 S.Ct. 116, 46 L.Ed.2d 88 (1975).

However, Cardinale’s affidavit neglects to note that he, all defense counsel, the defendants, and their agents were also barred from contacting jurors by direct order of this Court. The jury was not made completely anonymous despite concerns regarding the potential for jury tampering. [1111]*1111Rather, the court sought to protect the jurors by sealing certain identifying information and by making it clear, in the presence of defense counsel and defendants, that there was to be absolutely no contact with the jurors by anyone involved with the trial without the court’s permission. Trial Transcript (hereinafter “Tr.”) at 50.

Cardinale’s original submission on this motion failed to identify the private investigator who provided him with the jurors’ statements. The government’s answering letter surmised that Raymond P. Glynn, an investigator employed by Salerno throughout the trial, was responsible for collecting the jurors’ statements and violating our direct orders. Cardinale’s reply submission included a three-sentence affidavit of Raymond P. Glynn which states that he did in fact collect the statements. This Court has no independent recollection of whether Mr. Glynn was present in Court at the time the order was issued forbidding such activities.

The government would have this court conduct an investigation to determine the identity of all who violated the orders we made in the empaneling of the jury. We decline to do so. We are certainly concerned by the questions left unanswered by the Cardinale affidavit. However, we note that an investigation into the possible violations of 18 U.S.C. §§ 401, 402, and, perhaps, 1001 and 371 can be conducted after sentence by the United States Attorney and a grand jury.

DISCUSSION

The first question presented by the Car-dinale motion is whether it is necessary to have a hearing on the allegations of improper contact between the Court, the deputy marshal, and any one or more jurors. The teaching of the appellate courts is that such hearings are to be avoided whenever possible. See, e.g., United States v. Moon, 718 F.2d 1210 (2d Cir.1983), cert. denied, 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984).

The doctrine which guides us in resolving this question is that jurors should be prevented from impeaching their own verdicts. This doctrine is well established and supported by several cogent rationales. For example, jurors are to be protected from being “harassed and beset by the defeated party in an effort to secure ... evidence of facts which might establish misconduct sufficient to set aside a verdict.” McDonald v. Pless, 238 U.S. 264, 267, 35 S.Ct. 783, 784, 59 L.Ed. 1300 (1915). To hold otherwise would be to make “what was intended to be a private deliberation, the constant subject of public investigation — to the destruction of all frankness and freedom of discussion and conference.” Id. at 267-68, 35 S.Ct. at 784-85.

In addition, permitting jurors to freely attack their verdicts would undermine the finality of verdicts, threatening the viability of the jury in our legal system and forcing judges to act, in the words of Learned Hand, as “Penelopes, forever engaged in unravelling the webs they wove.” Jorgensen v. York Ice Mach. Corp., 160 F.2d 432, 435 (2d Cir.), cert. denied, 332 U.S. 764, 68 S.Ct. 69, 92 L.Ed. 349 (1947). As the Second Circuit has stated, “jurors themselves ought not be subjected to harassment; the courts ought not be burdened with large numbers of applications mostly without real merit; the chances and temptations for tampering ought not be increased; verdicts ought not be made so uncertain.” United States v. Dioguardi, 492 F.2d 70, 79-80 (2d Cir.) (quoting U.S. v. Crosby, 294 F.2d 928, 950 (2d Cir.1961), cert. denied, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962)), cert. denied, 419 U.S. 873, 95 S.Ct. 134, 42 L.Ed.2d 112 (1974). Indeed, a central purpose of the rule is “the prevention of fraud by individual jurors who could remain silent during deliberations and later assert that they were influenced by improper considerations.” U.S. v. Eagle, 539 F.2d 1166, 1170 (8th Cir.1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1146, 51 L.Ed.2d 563 (1977).

The determination of the need for a hearing to investigate allegations that raise issues of jury-related irregularities lies within the discretion of the trial judge.

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Related

United States v. Salerno
937 F.2d 797 (Second Circuit, 1991)
United States v. Ianniello
740 F. Supp. 171 (S.D. New York, 1990)
United States v. Matthew Ianniello
866 F.2d 540 (Second Circuit, 1989)

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Bluebook (online)
698 F. Supp. 1109, 1988 U.S. Dist. LEXIS 11776, 1988 WL 112611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-salerno-nysd-1988.