206 F. Supp. 949 | D. Mass. | 1962
This matter came before the Court for a hearing on Ground One of plaintiff’s motion to vacate judgment and for a new trial, namely, that “on the basis of the affidavit of Jacob S. Kamborian attached hereto, it appears probable that the defendant improperly influenced the jury verdict,” and for argument of counsel as to the remaining grounds set out in the motion.
Plaintiff called six witnesses in a vain attempt to elicit some evidence in support of the charge of jury-tampering. The first two witnesses Thomas D. Welch and Ralph M. Cars on, Esq., were interrogated only with reference to a prior mistrial which resulted in the discharge of a completely different jury. That incident was not relevant in any way to the charge of improperly influencing the jury which returned the verdict plaintiff now seeks to set aside.
Plaintiff called its president and principal owner, Jacob S. Kamborian, whose affidavit was filed in support of the motion. Mr. Kamborian admitted that he had no knowledge of the contents of any alleged conversation between Herbert Pfaff, an employee of defendant, and John J. Zani, a member of the jury. Nothing in his testimony substantiated in any degree whatsoever plaintiff’s claim that defendant improperly influenced the jury verdict.
Plaintiff also called one Webb White, a partner in the brokerage firm of A. C. Allyn Company, employer of juror John J. Zani. Nothing in Mr. White’s testimony tended to indicate any improper activity whatsoever on the part of the defendant.
Finally, plaintiff called juror Zani and defendant’s employee Pfaff. Pfaff testified that for several years he had maintained a “margin” account with A. C.
Zani corroborated Pfaff’s testimony as to the reason for Pfaff’s visit to the Allyn Company office, as to his reasonable exasperation at Babb’s failure to effect the change that he had requested in his account several weeks earlier, and as to the fact that there was no discussion whatsoever of the pending case.
Both Zani and Pfaff impressed me as credible witnesses. I believe their testimony to the effect that there was no mention or discussion of or reference of any nature to the case involved herein by either of them. I give additional weight to this identity of testimony because of the fact that all witnesses were sequestered prior to the commencement of the hearing, other than counsel.
In summary, as to Ground One of plaintiff’s motion, I find and rule that the statement contained therein, that “it appears probable that the defendant improperly influenced the jury verdict,” is a' reckless accusation by plaintiff against defendant, charging defendant with the commission of a Federal crime,, which charge is completely groundless and without foundation on the record of this case. I further find and rule that there has been a total failure by plaintiff to adduce any credible evidence reasonably tending even to suggest, much less prove; that defendant or anyone acting on defendant’s behalf improperly influenced any juror, any jurors, or the jury verdict entered herein.
With regard to paragraphs 2 through 34 of plaintiff’s motion, apart from the obvious observation that plaintiff neither argued nor briefed the vast majority of them, they are not proper grounds to support this motion, since almost all of these paragraphs refer to matters which either have been briefed and argued previously —in fact, many of them have been briefed and re-briefed several times in the-course of the trial — or they refer to matters to which plaintiff took no exception-during the course of the trial and now-seeks to raise for the first time.
The sole exception to the foregoing paragraph is plaintiff’s claim of inconsistency of the answers of the jury to the special questions posed pursuant to the provisions of Fed.Rules Civ.Proc. Rule 49, 28 U.S.C.A. I am of the opinion that there is no merit to any of plaintiff’s claims of inconsistency between, the various answers, and I believe that, the evidence warranted a finding that while the defendant maintained a general, monopoly in the shoe machinery industry during the years in question, a jury could, and did, properly find that the defendant did not have a monopoly in the-particular segment of the shoe machinery-business, side and toe lasting, in which, the plaintiff enjoyed such a marked degree of success.
With regard to plaintiff’s contention, that the decree and findings in the Government case should have been allowed in, evidence despite the time lag between, the two cases, suffice it to- say that the most that would have been established by the decree and findings in the Govern — .
The remaining grounds of plaintiff’s motion are adequately disposed of by defendant’s memorandum in opposition to the allowance of this motion and I will not prolong this memorandum by examining them se?-iatim where plaintiff has not briefed or argued them.
The motion to vacate judgment and for a new trial is denied.