The opinion of the court was delivered by: ANN CLAIRE WILLIAMS
MEMORANDUM OPINION AND ORDER
On March 10, 1992, defendant Rocco Ernest Infelise was found guilty on Counts 1-2, 6-7, 12-17, and 33-42 of the indictment.
Defendant Salvatore DeLaurentis was found guilty on Counts 1, 2, 7, 8, 19, 20-24, and 33-42, and not guilty on Count 3. Specifically, in Count 1, DeLaurentis was found guilty of all the charged racketeering acts and unlawful debts except Racketeering Act 17(a) which charged DeLaurentis with conspiring to murder Hal Smith. The jury found DeLaurentis not guilty of that racketeering act. However, DeLaurentis was convicted on Count 8 which charged him with conspiring to murder the same Hal Smith for the purpose of maintaining the business of the Ferriola Street Crew, an enterprise engaged in racketeering activity.
Jury selection began in this case on October 23, 1991 and closing arguments were completed on Monday, March 2, 1992. The jury was instructed on the same day and began deliberating on Tuesday, March 3, 1992. Late Monday afternoon, March 9, 1992, the jury sent a note to this court stating that they "had reached a verdict on a number of counts" but that there were "a few counts that we can't come to a unaimious [sic] verdict on." On the morning of Tuesday, March 10, 1992, after conferring with counsel, the court read the Silvern instruction and instructed the jury to continue its deliberations.
Approximately 20 minutes after returning to the jury room, the jury sent out another note stating that they were deadlocked and could not reach a verdict with respect to certain counts. With the agreement of counsel, the court asked each juror whether a verdict could be reached with further deliberations. Each juror responded that a verdict could not be reached.
After a short recess, the court read the jury's verdict in open court and the verdict forms were given to the defense attorneys for review. Before the jurors were polled, defense counsel requested a recess to discuss the verdict forms. When the proceedings were reconvened, DeLaurentis' attorney, Mr. Bruce Cutler, requested a side bar with the court. At side bar, Mr. Cutler noted that the jurors found that DeLaurentis had "not agreed" to conspiring to murder Hal Smith as a racketeering act as charged in Racketeering Act 17(a), but "guilty" of conspiring to kill Hal Smith as charged in Count 8. Mr. Cutler asked the court to question the jury to see if an error was made in marking the verdict form. At a lengthy sidebar conference, government and defense counsel discussed how the court could pose a question without suggesting that the jury had in fact made a mistake. Some of the pertinent discussion follows:
Mr. Cutler: In other words, Judge, you can say, "Now, as to Count 8, which is the conspiracy to murder Al [sic] Smith, we have guilty. Is that your vote?" You can do it like that, a prophylactic measure, so I'd know.
Mr. Mars: I guess my concern is, if that is the only one we draw their attention on, they could say everybody is happy on all but this, and that you're questioning their judgment on this particular one.
Mr. Simone: That is not particularly true. We're not happy with the verdicts.
Mr. Cutler: You can come out and say, "I see you found 17(a) not agreed and guilty on Count 8 regarding conspiracy, regarding the murder of Al [sic] Smith, is that your verdict?"
The Court: Well, I was thinking of a better way, and a way to get around it in a different way would be, "Ladies and gentlemen, we just want to verify the counts on which you hung," and I'm just trying to think of a way to finesse it.
Mr. Simone: I don't like that at all, Judge. I think the polling would be as to the counts which were decided either way.
The Court: The only way you could do it is to send them back and say the -- see, I don't know how the jury would read this. I just can't think of a way to say, "Ladies and gentlemen, check the verdict form and make sure you did it right."
Mr. Cutler: No, I know, but, your Honor, Count 8 -
The Court: I know, I say it and read it. . . . I know of the inconsistency. There is no way to make an inquiry without tampering with their process.
Do you have a way, Mr. Tuite?
The Court: I can't say, "Let's verify your verdict." I can't say, "You made a mistake when I sent it back." I don't think it's proper to highlight those counts. . . .
Mr. Mars: I think we have to live with it. It's checked.
The Court: I am open to suggestions. Of course, things can happen on the flip side. . . . I don't know if that is going to be a reconsideration, them thinking that maybe they should reconsider it because I read them together. I have a real problem with that.
Mr. Mars: The signal they would get is that there is something wrong with what they did and something needs to be changed.
The Court: Exactly. I can't think of a way, Mr. Cutler, to do it. I appreciate the position. I assume you will say there is inconsistency, but I cannot do anything with the jury. I think it would be an invasive procedure, and I can't think of a way to do it retroactive.
Mr. Cutler: What I'm really left with is to make a post-verdict motion, so to speak, to the Court.
The Court: Yes. I can't see any way not to highlight it. If I do it on DeLaurentis, then that highlights that count. And he's not the only one, because Infelise --
Mr. Simone: He's the only one found guilty of the Smith conspiracy.
Mr. Simone: I understand what you're saying. I mean, you know, just putting it out, I don't know.
The Court: I appreciate the situation, but I can't see a way.
Mr. Simone: Are you going to do your regular poll, then? They must know now there is something with the verdict.
The Court: I am going to do the regular poll because I cannot think of another way to do it that would not prejudice everybody.
Mr. Cutler: I can't either.
Mr. Cutler: Are we going to do the ...