reached. For example, DeLaurentis' verdict form, in pertinent part, read:
I. We, the jury, find defendant SALVATORE DELAURENTIS:
as charged in Count One.
II. If you conclude that defendant SALVATORE DELAURENTIS is guilty as charged in Count One, complete the following:
17(a). In making our finding, we find defendant SALVATORE DELAURENTIS agreed, did not agree to the Conspiracy to Murder Hal Smith as alleged in Racketeering Act 17(a).
With respect to Count 8, DeLaurentis' verdict form read:
We, the jury, find defendant SALVATORE DELAURENTIS:
This court has never experienced any problems with verdict forms. Unfortunately, in this rare instance, the more extensive verdict forms did not prevent an apparent inconsistency. Now that doubts about the accuracy of the verdict on Count 8 have arisen, DeLaurentis argues that the court's decision not to question the jury regarding this discrepancy on the day it was discovered is grounds for a mistrial.
To resolve this issue, the court turns to the suggestions made by counsel at the sidebar conference. When this issue arose, the court recognized that framing any potential question properly was crucial in this case. Other than his suggestions that the court ask, "Now, as to Count 8, which is the conspiracy to murder Al [sic] Smith, we have guilty. Is that your vote?" and "I can 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?" (Tr. 6-8, March 10, 1992, 2:10 p.m.), Mr. Cutler had no other ideas. Mr. Tuite, defendant Infelise's attorney, did not offer any suggestions for a proper question. AUSA Mars and Mr. Simone, defendant Bellavia's attorney, objected to any inquiry of the jury. All the proposed questions considered by the court at the sidebar had the potential of suggesting to the jury that there was an error regarding the verdict.
Questioning the jury also ran the risk of raising questions about the jury's inability to reach a verdict against the other defendants on that count.
In addition, the court and counsel were well aware that the verdict in this case would receive significant media attention and the jury was to return the next day to hear the forfeiture case against defendants Infelise and DeLaurentis. It was particularly important not to second guess the jury's verdict when they would be deliberating on another verdict in the case on the next day. It is difficult to predict what impact questioning the jurors regarding their verdict on Count 8 could have had on their deliberations on the forfeiture case.
Furthermore, the potential questions considered by the court and counsel at the sidebar conference could also have been interpreted by the jury as pressure to reach a verdict. After a 4 1/2 month trial and deliberating for approximately one week, the jury wrote a note indicating that they were hung on various counts, and were read the Silvern instruction a second time. Twenty minutes after reading Silvern, the jury wrote a second note saying they were deadlocked and could not reach a verdict with respect to certain counts. The jury was then brought into open court and each juror was questioned individually on whether a verdict could be reached with further deliberations. They all answered that further deliberations would not be helpful. Given all of these circumstances, the jury's verdict was clearly a very sensitive issue and even a neutral sounding question could have been suggestive.
However, DeLaurentis argues that where there is the appearance of any uncertainty or contingency in a jury's verdict, as here, "it is the duty of the trial judge to resolve that doubt." United States v. Morris, 612 F.2d 483, 489 (10th Cir. 1979). The Morris court further explained:
Whereupon a poll one or more jurors express some uncertainty as to the verdict, the trial judge is vested with discretion under F. R. Crim. P. 31(d), to direct the jury to retire for further deliberations or to discharge the jury. (Citation omitted). Although not expressly so stated in the rule, the power to repoll the jury is also among the judge's discretionary powers. This power is most helpful where, for instance, the jury has been confused by multiple parties or counts. (Citations omitted).
Id. Unlike Morris where, when polled, the foreman stated that the verdict read by the court was not his verdict, in this case, no juror expressed any uncertainty regarding the verdict when polled. The only indication that there may have been a problem with the verdict was the fact that the verdicts for Racketeering Act 17(a) and Count 8 were inconsistent. However, as previously noted, consistent verdicts are not required. See United States v. Beck, 615 F.2d at 448 (citing Hamling, 418 U.S. at 101). Since no juror indicated during the polling that an error had been made with respect to the verdicts, polling the jury was not necessary under Morris. As explained in Morris, the question of repolling the jury was a matter for the court's discretion. 612 F.2d at 489. Given all the circumstances of this case, this court's decision not to repoll the jury on the date of the verdict was reasonable.
Finally, the court turns to the jurors' responses during the limited voir dire on March 17 and 19, 1992. Under Rule 606(b), juror interviews can be conducted to resolve doubts regarding the accuracy of the verdict announced, but not to question the process by which the verdict was reached. McCullough, 937 F.2d at 1171. This court, being acutely aware of Rule 606(b)'s mandate and the importance of not infringing upon the deliberative process, exercised care in conducting the limited voir dire.
In Attridge v. Cencorp Division of Dover Technologies Int'l, Inc., 836 F.2d 113, 117 (2d Cir. 1987), the Second Circuit explained that the permissibility of juror testimony regarding the accuracy of a verdict depends upon the purpose for which it was offered. The court approved the voir dire of a jury regarding the accuracy of their verdict because the judge's inquiry was "designed to ascertain what the jury decided and not why they did so." Id. In that case, the judge limited his inquiry to one question: "What was your understanding as to what the verdict was; what was the jury verdict?" The Second Circuit concluded that such interviews were appropriate because "[they] were intended to resolve doubts regarding the accuracy of the verdict announced, and not to question the process by which those verdicts were reached." Id.
The Seventh Circuit, in Haugh v. Jones & Laughlin Steel Corp., 949 F.2d 914 (7th Cir. 1991), has also approved limited inquiries into the effect of extraneous influences on a jury's verdict. In Haugh, a federal marshal allegedly warned certain jurors that there was no such thing as a hung jury and they would be kept in custody for as long as it took them to reach a verdict. After the jury rendered a verdict, the foreman wrote a letter to the court regarding the marshal's actions. In response, the trial court held a hearing where each juror and the marshal were questioned. Id. at 916. In reviewing the appropriateness of the court's questioning, the Seventh Circuit stated:
Rule 606(b) of the evidence rules, far from giving a judge carte blanche in questioning a jury about its verdict, forbids him to inquire into the jurors' beliefs, opinions, discussions, grounds, etc. save as necessary to determine the existence and content of any unauthorized communication made to the jury. The proper procedure therefore is for the judge to limit the questions asked the jurors to whether the communication was made and what it contained, and then, having determined that the communication took place and what exactly it said, to determine - without asking the jurors anything further and emphatically without asking them what role the communication played in their thoughts or discussion - whether there is a reasonable possibility that the communication altered their verdict.
Id. at 917; see United States v. Fozo, 904 F.2d 1166, 1171 (7th Cir. 1990); United States v. Schwartz, 787 F.2d 257, 261 (7th Cir. 1986).
Keeping Attridge and Haugh in mind, it is clear that the procedures followed by this court did not intrude into jurors' beliefs, opinions, and discussions. This court, with the agreement of counsel, only asked the jurors if they voted guilty on Count 8 and if they answered no, this court asked if the jury reached a unanimous verdict regarding that count. If the jurors answered yes, the court asked what was that verdict. Since this court limited its questions to only obtain information necessary to verify the accuracy of the jury's verdict against DeLaurentis on Count 8, the questioning conducted by this court fell within the confines of Rule 606(b).
Based upon this court's limited inquiry, the following responses were elicited: (1) three jurors stated that the guilty verdict on Count 8 was correct and that this vote had been unanimous, (2) three jurors indicated that the verdict was not guilty and that this vote had been unanimous, (3) one juror explained that he voted guilty, but the jury's vote was not unanimous, and (4) five jurors stated either that no vote on Count 8 was taken or that could not recollect a vote being taken. In sum, 9 of the 12 jurors indicated that some error was made in rendering their verdict.
This court recognizes that the sparse case law addressing the application of Rule 606(b) suggests that a verdict can only be vacated if the jury unanimously indicates that an error was made in rendering its verdict. This court's decision would have been much simpler had all 12 jurors agreed on what the verdict was on Count 8. See McCullough, 937 F.2d at 1171. However, a close look at the facts presented here persuades this court that unanimous agreement is not required in this case.
The jurors in this case were questioned two weeks after deliberations began and 8-10 days after the original verdict was returned. They did not have the benefit of reviewing any notes they took during the 4 1/2 month trial to refresh their recollection. They did not have all of the trial transcripts, exhibits, or jury instructions which were in the jury room during their deliberations. Finally, they did not have any notes they may have taken during deliberations. Therefore, it is not surprising that a few jurors had trouble recalling the exact results of their deliberations or that there were different recollections of their decision on Count 8. The fact that nine jurors, or 3/4 of the jurors, said that some error was made and three said there was no error merely highlights the problems of inquiring into the accuracy of a verdict and trying to recreate the deliberative process in a multiple defendant and multiple count indictment. To hold that a unanimous determination by the jury that an error was made is required to vacate a verdict is not warranted given all of the facts considered here.
After an examination of the three factors discussed above, this court is convinced that an error was made with respect to the jury's verdict against DeLaurentis on Count 8. Not only was the verdict inconsistent with the jury's verdict against DeLaurentis on Racketeering Act 17(a), but it was inconsistent with the jury's inability to reach a verdict on Count 8 with respect to defendants Infelise, Marino, Bellavia, and Salerno. And the majority of the jurors consistently stated that an error was made on DeLaurentis' verdict form. In light of this evidence, this court finds that the verdict published in open court on March 10, 1992 was not the "true verdict or no verdict was reached at all." See Young, 163 F.2d at 189.
Furthermore, this decision does not violate the language or the intent of Rule 606(b) since this court confined its inquiry to avoid intruding upon the thought processes of the jury.
This court did not elicit any responses during the course of the limited voir dire which would jeopardize the integrity of the deliberation process. Moreover, since this ruling is confined to the specific facts of this case, this court is confident that this decision in no way opens the door for this kind of inquiry in routine cases. The circumstances surrounding this case are highly unusual given the particularly complex nature of the charges in this multiple count trial of five defendants. This court strongly believes that such an extreme measure as vacating a verdict should not be considered under anything but unusual circumstances. To apply this court's ruling to anything but the most extreme examples would surely and wrongfully threaten the deliberative process.
Finally, for similar reasons, this court's ruling in no way threatens the integrity of the rest of the verdicts against DeLaurentis or the other defendants in this case since it is confined to Count 8 as it applies to DeLaurentis. Significantly, when questioned by the court regarding their verdict with respect to Count 8, no juror gave any indication that there was a problem with any other charge against any defendant in this case. The jurors consistently indicated that the only error made was with respect to the verdict rendered on Count 8. This point is important for two reasons. First, on several occasions during the trial, the jurors spoke candidly with the court on the record in-chambers. Generally, these sessions were prompted by jurors sending notes to the court regarding individual problems they were experiencing. Jurors also spoke openly with the court on the few occasions when this court was required to conduct limited voir dires on the record in-chambers regarding sensitive jury issues. This court is confident from the jurors' responses on those earlier occasions that they felt comfortable with the process used by the court and that the questions were answered in an honest and open manner.
Second, although the court made every effort to limit the voir dire regarding Count 8, when individually questioned about their verdict on this count, various jurors attempted to and did volunteer additional information regarding their deliberations. However, none of the jurors, including Juror 25, suggested that an error had been made with respect to the verdict on any other count. The court is confident that any other problems regarding deliberations or the verdicts would have been raised in that session.
For the reasons stated above, this court denies Infelise's motion to interview jurors and DeLaurentis' post trial motion regarding juror written communication. This court grants DeLaurentis' motion to vacate the guilty verdict against him on Count 8 and declare a mistrial.
Ann Claire Williams, Judge
United States District Court
Dated: DEC 30 1992