United States v. Frank Moten

reaching jurors.” possibility of one of the FRIENDLY, Before SMITH and MES- told Doe the district that his client’s KILL, Judges. Circuit original response this news had been “inappropriate,” and he said that he had MESKILL, Judge: Circuit his told client “in no terms go uncertain This appeal, which arises as a result back and tell Brightman you Bernie of major efforts narcotics trafficker part want no of this at all.” second trial, important ques- secure a new raises Friday, September incident had on occurred tions regarding the extent to which a con- 17,1976. After court recessed about 1:00 victed defendant must allowed to inves- P.M., Doe, sister Intersimone and his Viola tigate suspected misconduct members Intersimone,2 to 299 Broadway, went the jury guilty. that found Appellant him courthouse, short distance from the federal Frank origin Moten’s claims have their brother-in-law, where Intersimone’s Antho of jury corruption incident that has Sutera, ny law has a office. Because of her twice occupied before the attention of this elevators, riding fear of Viola Intersi Court. Subpoena In re Grand Jury Served mone waited downstairs. she While was Upon Doe, (2d 1977); 551 F.2d 899 waiting outside a Duane Reade discount Moten, States v. 564 F.2d 620 store, drug juror approached Keno her and asked whether she Intersimone’s wife. 5,1976, April On an indictment was filed She answered that she was sister. in the Southern of New District York. It message then said he had a for Intersimone. charged individuals, counts, in 40 with protested Viola they Intersimone various violations of federal narcotics talking, should not be but Keno neverthe laws. charged engaging Moten was with less told her to her to meet tell brother him a continuing enterprise, criminal with con- during on the following Monday lunch. spiracy, and with 4 reported individual substantive She this encounter Mr. Sutera offenses. co-conspirators Doe, Moten’s included and he conveyed story to who Bright- Sebastian Intersimone and Bernard informed Beller man. began respect Monday Trial with 22 de- of this minutes con morning. August Judge sealed, fendants on before sultation were their con ordered but Moten, jury. Richard and a su- substantially Owen See were tents disclosed pra, Doe, supra. F.2d at 622 n.2. opinion They of this Court commonly lawyer’s goes We will continue to honor re- 2. Miss Intersimone the nick- quest Doe, “Yola,” pseudonym. parties uniformly that we use this See name which the have supra, 551 F.2d at 900 to be a n.l. assumed shortened form for “Yolanda.” however, spelled grand jury, Before the she her name “Viola.” juror have in mind to ask each I were over turned follows, each to tell permission roughly alternate lawyers Intersimone’s gen- jury juror I instructed they appear had now judge, of the district of the trial beginning at the Appendix. erally of Moten’s part unsealed as about the case. speak one were incidents, these Upon being informed of the case to discuss They were not Viola Intersi judge examined the district anybody else. or with amongst themselves what he confirmed mone in camera. She two to ask prelude with that as And is unclear already been told. questions. or Beller was whether Doe the record One, anyone spoken questioned next Judge Owen present. speak try particular [sic] done in This was also Keno under oath. the case juror about particular with that Doe, camera, the record shows way all. present. Intersimone were Beller and Viola Two, spo- fact whether the has in replaced discharged Keno and The court any way as to in ken amonst itself [sic] alternate, a which this him decision with the that is before it. the merits of case fully to be twice before held Court has Now, 901; suggestions I counsel invite Doe, Mo supra, 551 F.2d at justified. they disapprove before me as to whether Although the ten, 629. supra, of mind or of the procedure the I have in examinations of the in camera minutes ask, keeping in questions propose two I to been or have Keno and Viola Intersimone to ask duty I a obviously mind have been sealed, them have portions of dered my to has come something, given what Post, 4, Feb. the N.Y. quoted press. attention, go so far but I do not wish to are before Court They at 8. to make asking questions the appeal. on consideration juror any suggestion an affirmative to discharged, the district Keno was After anything has afoot from de- been and made judge the courtroom returned to else, anyone fendants or counsel or coun- all defense following statement to the might they the well draw that’s inference jury: the presence sel out of the deep. gets if one too Now, beginning The Court: he judge explained that had The district atten- morning brought my was to it had inter- testimony Keno and taken attempt by a possible that there was the defendants. viewed relative of one of in this juror to a defendant approach by the The was not identified defendant message get case defendant. told that judge. were also Counsel hearing on that sub- I held have a brief had dis- judge had asked Keno whether entirely ject and have confirmed juror any other these matters with cussed occurred, al- possible that that have had that he not. by and been had told finding to that effect. I though make varied. were responses The counsel It is Juror juror. I have excused pro- agreed with the district Some my atten- brought No. 10. was also any objected to the use posal. Others rather, brought was tion, information suggested that the and proceedings in this my that one defendant attention individually but be done voir should dire in this defendant case to another spoke proposed present. Some with all counsel reaching a possibility about the case en masse. voir be conducted dire Now, I premise propose juror. in that dire be no voir thought there should Others remaining inquire on each of [sic] a dismissal lawyer sought One at all. alternate, separately jurors, regular and on the prejudice the indictment with counsel, to without my robing room with- excused ground juror that a had been the record —to do this on ascertain —I will participation. out his information is any ascertain whether September During afternoon of suggested forthcoming that would an in conducted judge the district have received. this information that I offenses. The to reach a of each the man- failed verdict camera voir dire except that at proposed, ner he had respect charges, as to the other him with lawyer one he reversed the suggestion of subsequently were on dismissed questions. order read of the two government’s motion. Moten was sen- voir dire defense minutes 21,1977, to January aggregate tenced on counsel, objections there were no years imprisonment, of 25 6by followed suggestions for further questioning. years parole, $50,000 special fine. minutes reflect three remarks that are conviction, those along His of 12 code- worthy here. of mention Juror number appealed, was fendants who affirmed when asked whether had been Moten, September Court themselves, discussing merits re- among supra. serving his sentence. now sponded, talking “No. We have been about appeal pending before this While his something else.” number when Juror Court, in district court Moten filed a motion asked to her anyone spoken had “pursuant Brady Maryland, “No, speak replied, attempted to to her not 215] [83 court, really, nobody not you around Rule Federal Rules of Criminal Proce- know, really.” The district then (1) any sought dure.” He information asked, you say really’, “And when ‘not I government’s possession that tended to you nobody take it spoken mean juror, show that Keno acted with another answered, “No, you?” no.” She Juror (2) any information that Keno dis- anyone number when asked whether any cussed with efforts said, case, tried to to him talk defendants, (3) any contact in- “No, sir, not to me.” learned, any juror formation 20, 1976, September Also on the govern- prior verdict, (a) to the Keno had been ment separate investigation commenced a arrested, (b) Keno to contact tried a defend- possible jury into tampering. The minutes ant, (c) anyone Keno, (4) tried to contact of the grand jury testimony taken that unsealing the of the in cam- afternoon public, have not been made and a era examinations of and Viola Keno Intersi- complaint upon criminal which Keno was mone, (5) discovery complaint and arrested this in connection with matter re- other court documents filed connection mains seal. under Both are before this Keno, with and prosecution per- of Court appeal. for consideration of Doe jurors. mission to interview testify was eventually subpoenaed to before grand 19, 1977, sentencing At the time of on Intersimone’s jury January but he 31, 1977, on testify, January judge refused to grounds attorney- the district con- client privilege, by about sidered a motion Intersimone similar to what Intersimone told him discovery conversation with Moten’s. He denied of sealed ma- Brightman. Judge rejected Pierce Doe’s protect terials in order the ongoing claim of privilege contempt. and held him in grand jury investigation the Keno mat- This Court affirmed that decision on March' judge ter. The a request also denied for 17,. Doe, supra. testified Doe before names and addresses of al- the grand jury on March 1977. The ternates, which were sought purpose minutes of his testimony are also before of investigating any member Court, copy an affidavit the jury other than was tainted. The submitted in camera in connection with the judge discovery denied this latter on the Doe by II, John Flannery, matter P. grounds (A) no evidence that there was Attorney Assistant in charge United States tainted, juror (B) other had been grand jury investigation. during voir dire had trial was he conducted jurors, adequate investigation

Moten’s trial concluded on November (C) questioning when the verdicts further returned guilty against 17 defendants. Moten amount All was to harassment. defendants conspiracy convicted of expressly prohibited talking substantive were from was keeping them sealed to Moten ful court authoriza- prior without any jurors investiga- ongoing tion. tion. judge 24, 1977, the district March On judge filed a the district July On with Moten’s argument in connection heard re denying the Memorandum and Order sub- Of the documents motion. and, discovery implicit maining motions for court, merit com- only two mitted to the a new trial. Rule motion for ly Moten’s first is an affidavit ment here. The discovery of sealed denying The reason following state- Doe which contained prosecution to the Keno relating materials ment: nothing judge contained was Daniel prosecutor informed the I had helpful to Moten. The thought would be Intersimone, that, to Ms. according Beller to interview denying permission reasons for not alone at the juror 10 was number (I) was jurors were that: it, I spoke to As understood time he her. evidentiary showing was that Moten’s view juror, speaking been with another had (II) defend inadequate, said the Intersimone, juror to to Ms. left that talk had, right effect, waived the to have ants juror and rejoined that other and then thorough a more interview him conduct together. area Mr. Beller both left the which was conducted at trial than that the iden- quite was anxious to determine failing request during an interview such rea- for obvious tity trial, (III) judge apparently believed sons, inquired and I of Ms. Intersimone jurors by post-trial that a interview felt she on his behalf. Ms. Intersimone for he cited improper, counsel would be juror had positively say could Brasco, Keno, that it but she believed been (2d Cir.), n.4 cert. jurors, either Hispanic was one of the (1975), in which this pressed number or number 8. When systematic, “planned, criticized a Court decided she me, finally Ms. Intersimone broad-scale, jur posttrial inquisition of the per- identify the positively unable to .” . . . private investigator ors Keno and rather son who been with person, said wrong she identify than DISCUSSION I person. the other identify she could not provides Amendment The Sixth “[i]n by telephone Beller reported this to Mr. shall prosecutions, the accused all criminal dropped. there the matter was and trial, by an right a . . enjoy the to . from Isabelle The second is affidavit .” jury . . In Remmer v. impartial . Blau, in which jury, of the forewoman States, 227, 229, 347 U.S. United jurors 2 8 and Keno she stated that and 450, 451, (1954) I], 98 L.Ed. [Remmer together had lunch and often said, Supreme Court the court “rapport.” Also before enjoyed case, commu- any private In a criminal time motion Intersi- new nication, contact, directly tampering, or jurors. mone to interview Intersimone indirectly, juror during trial or with appeared he recently lawyer, fired his so pending before the about the matter pro se. reasons, is, presump- for obvious deemed proceedings During the course of pur- in tively prejudicial, if made 24th, denied the ex- government March the court suance known rules of the kind istence of information of the the instructions and directions (2) (3) (1), in trial, Moten items sought full during court made longer in- These matters are knowledge parties. presump- above. judge de- conclusive, district the burden volved the case. The is not request for the un- open heavily upon court the the Government nied rests establish, hearing of notice to and examination after sealing of the defendant, with the grounds that such contact Keno and Viola Intersimone on defendant. to the use- was harmless would be nothing in the materials States, grounds exist able undertake such an See also Mattox U.S. 140, 149-50, (1892). S.Ct. 36 L.Ed. investigation. The district conducted States, trial, during Miller v. investigation a limited 1968), stated, this (2d n.11 Court conducted an in itself has directly applicable is language that jury. It vestigation grand before the case, that very irregularity that a oc clear serious case, here, of this

Where, explored during the trial the incident was curred as picture the trial “the entire jury, before to the under circumstances submission ability appraisal explored.” initial of the Remmer v. United should light States, to render a fair verdict objective II]; facts should stand unless 100 L.Ed. 435 see [Remmer unreasonable, manifestly as the Federal Practice & Procedure: Wright, Remmer, significant thought Court or (1969); Criminal at 491-92 cf. United § objective new facts are developed. Persico, F.Supp. 1083-84 (E.D.N.Y.), aff’d, 467 F.2d 485 prior decisions of Court in 1972), cert. conclusively Doe and Moten establish 1360, 35 (1973). explora This L.Ed.2d 613 Judge appraisal” Owen’s “initial was not merely tion should be done not to the Therefore, “manifestly unreasonable.” Mo- satisfaction, government’s or to the satis ten would be entitled to a new trial if judge, faction of the but also to he showing “significant can make a new satisfaction of the defendant. is true objective facts” which tend to strongly permitted that the not be defendant should prove that Keno one affair tainted or trample important on other interests jurors. more of the clear that It is jury proceed the secrecy grand such as date, Moten has made no such ings right petit to be free Instead, and he argue does not that he has. harassment, is also true but it that a he he argues right has a to learn “old right defendant a constitutional to a facts” that have been so that he denied him by an impartial jury. Although, so far how, whether, go can determine appears developed date, from the facts necessary new developing the facts to war trial, Moten received such a the entire rant Keno a new trial. yet explored. Many ques affair has to be discovery seeks in three different unanswered, remain tions and there is no First, areas. he seeks of the in disclosure investigation reason limit Moten’s of that camera examinations of Viola Keno and affair unless it some Second, Intersimone. he seeks disclosure all, “[sjunlight other interest. After said grand jury relating govern- materials to the L. best of disinfectants.” Bran ment’s affair. déis, Money (1933). People’s Other Third, permission jur- seeks to interview objective ors. The is each of these the any juror

same —to discover whether other I. AND THE KENO VIOLA INTERSI- than Keno was tainted —but the issues MONE EXAMINATION raised are each different. occurs at something Whenever a trial may types impartiality that tend to affect the discussing

Before the three Moten, jury, one or more both discovery sought by important members of the sides it is object learning to clarify proceed everything the have a vital interest in instant ings. is to Although appeal this is an from the there know about the matter. The motion, denial of grounded upon Moten’s Rule 33 the real of the accused interest is the relief right impartial denied was access to materials that Amendment to an Sixth concern government the Keno affair and which are ar The jury. interest of the is guably necessary in only order to determine not with having based on its concern whether any grounds responsi- exist for a motion for on its impartial jury, but also a new trial. jury tamper- There is no doubt that reason- bility investigate possible forever. ongo not The defendant’s sides also have does 1503. Both ing. U.S.C. § the truth has at replacing any learning interest in whole and isolating an interest in govern- the affected, equal all times been that of so that the trial may who be ment, his 43(a); mis- access to need for a see Fed.R.Crim.P. continue without the can government the parties materials has Although the interests trial. delayed been they may merely not from the outset has principle, be in may consistent accused, for more needs of the necessarily in because the immediate be so fact. time the prime suspect government. There comes a when example, probably will in the keeping investi- interest exami- government’s jury tampering government’s in the Therefore, longer be said to be will not nation secret can gation. government the sufficiently “compelling” outweigh to what it the privy want the accused to be knowing hap- in what investigation. learns in the course of its defendant’s interest displace pre- the learning pened The interest of the whole truth his trial continuing proceedings. sumption against with the in camera may conflict interest the Obviously, the trial. if the members of deny Mo- The district decision depth possi- are in about a questioned part in on the discovery ten was based incident, they may be- jury tampering ble the in camera apparent assumption that if cannot so that the accused prejudiced come trial, during the proper were examinations trial. obtain fair in camera proper then it is to seal the indefinitely. so. This not proceedings reconciling The initial burden jus- proceedings in have been When the upon interests rests competing these ongoing the need tified judge, particu will be and this burden investigation, secrecy the be main- here, where, many defend larly heavy as only long pro- as tained so inter ants are and their individual involved long pro- investigation. tect the As the case, are ests in conflict. the instant ceedings sealed, government remain judge weighed district them concluded continuing justifying bears a burden of preventing a interest in public nothing need for There is secrecy. interest government’s mistrial and the the conclusion support record that would investigation required that pursuing its presently able Intersi of Keno and Viola examinations burden, nothing sustain there This Court mone be conducted in camera. status of present the record to indicate the presump is a recently has said that there Indeed, think investigation. the Keno against proceed the use of in camera time quite enough there been “[t]hey justified ings can “ongoing” investigation completed. to be state interests.” by compelling and allowed Directing Tay Jury Subpoena In Re Grand judge’s decision was also The district Appear Testify, lor to part apparent belief that based on are We satisfied to come for burden defendant met, Taylor and that standard was proof with that the in camera materi ward competing judge’s balancing complicity an help prove als interests was correct.3 juror. This is the test. obtaining dis However, interest the defendant the interest of accused learning adequately whole does not end closure is established when story trial, Gladden, proceedings see, appears (1) the in camera g., e. Parker (2) infor during occurred his trial and is rele discovered two in the materials (improper jury influence on mation contained object inquiry. of his years jury verdict), govern- legitimate and the vant to a after Here, occurred at proceedings the ongoing in its in camera ment’s interest extent, 629, propriety Moten, rejected To the supra, sel. that the use In 564 F.2d at we argument procedures to in camera is law of case. error now the the was reversible participation without of coun- excuse Keno 662 trial; object (1966); Pittsburgh inquiry of his 973 Plate Glass Co. v.

Moten’s —to to the jury States, 395, 400, learn full extent United 360 79 U.S. S.Ct. by 1237, convicted him was affected the Keno (1959); 3 L.Ed.2d 1323 United States one; a legitimate Co., affair —is and there is no 677, 683, v. Procter & Gamble 356 U.S. doubt the statements of Keno and 983, (1958). 78 2 1077 See S.Ct. L.Ed.2d are Viola Intersimone relevant in- also v. Socony-Vacuum United States Oil It quiry. is immaterial 234, 811, Co., 150, 310 60 84 L.Ed. U.S. S.Ct. judge, after an camera examination 489, (1940); Biaggi, 1129 478 F.2d re materials, agrees the in camera with the (2d 1973); City 491-92 Atlantic Cir. Electric government no contain facts that Co., 431, Co. B. 434 v. A. Chance 313 F.2d help Supreme the defendant. The (2d 1963). Although Cir. this standard has repeatedly judicial disapproved Court extent, been eroded to see Baker v. some speculation whether in camera mate- Corp., (2d United Steel States 1074 rials would be to the useful defense. Com- 1974); Youngblood, States United States, pare Alderman v. United 394 U.S. 365, (grand 1967) jury 369 F.2d 961, (1969) S.Ct. L.Ed.2d 176 witness, testimony of trial on adverse same (records of illegal wiretaps), Dennis v. Unit- (cid:127) subject testimony, as trial be should dis- States, 855, 873-75, ed U.S. closed without particularized 1840, (grand 973 (1966) jury L.Ed.2d need); Wright, Federal Practice & Proce- testimony witnesses), of trial and Jencks v. 106, (1969), dure: Criminal 172-74 § States, 669, United 77 S.Ct. find need to reexamine it here. (1957) (F.B.I. 1 L.Ed.2d 1103 reports presently developed The record as is by witnesses), submitted trial with Rosen- inadequate to determine whether Moten is States, berg U.S. grand jury entitled disclosure materi (1959) (5 4to als. The most important ques unanswered decision; non-disclosure of documents con- grand jury investigation is whether the taining already possession information grand jury remains active. While investi error). defense held to be harmless If the gation active, variety are a of rea there relevant, materials are the district secrecy: sons for estimation of lack of helpfulness their does (1) prevent escape To those whose justify withholding them from de- may (2) indictment contemplated; fense. grand insure utmost freedom deliberations, its prevent and to II. GRAND JURY MATERIALS persons subject to indictment or their issues raised Moten’s request from importuning grand jur- friends discovery grand jury materials are ors; (3) prevent subornation of perjury different from request those raised or tampering may witnesses who for the in camera There examinations. is a testify grand jury before later presumption against proceedings, it; appear of those indicted and the burden (4) encourage free and untrammeled justify the secrecy. need for The situation by persons disclosures who have informa- respect grand reversed with jury mate respect tion with to the commission of rials. jury proceedings Grand are tradition crimes; innocent ac- ally conducted in secret. See Fed.R.Crim.P. who disclosure cused is exonerated from 6(e). The secrecy not absolute. of the fact that he has been under inves- judicial breached “in connection with tigation, expense and from the of stand- id., proceeding,” proceeding such Moten’s ing trial probability where there was no However, to obtain a new trial. burden guilt. is on party seeking disclosure show a “particularized outweighs v. Amazon Industrial need” that Chemi- States, need (D.Md.1931), cal secrecy. Corp., Dennis v. United quoted v. Procter & United States Gam-

663 question yet additional to be n.6, An has 78 Co., supra, U.S. at 681-82 ble 356 986, v. 983, States quoting United showing par- S.Ct. of explored relates Moten’s 1954). Rose, 617, (3d Cir. 628-29 showing is sufficient- His ticularized need. if the strong These so reasons are he has particularized in the sense that ly affair investigation of the Keno grand jury inquiry and he specific focused on a area may obtain disclo is still Moten not active argu- that are specify able to materials is 830, Bonanno, 834 re F.2d sure. 344 See inquiry. His focus is ably relevant to that us, the record before On any juror other question however, possible it is to make not specific Keno was tainted. The mate- than investigation necessary determination. he seeks are the minutes of testi- rials pursuing Moten may may be over or it Keno, Viola Intersimone Doe mony true, then major suspect. If the latter is affair, the affidavit of regarding the certainly progress not entitled is Attorney Flannery, Assistant true, is then most of reports. If the former complaint. and the Keno Whether has secrecy policies underlying the need these materials is a sufficient “need” of Generally, only no longer present. are Supreme question. The more difficult of an reason that survives conclusion concept “need” in Court has invoked the encouragement is of dis one, which, knowledge like this deal of crime. contexts closures those Wright, Practice & Procedure: g., See Federal E. privilege against with a disclosure. 106, (1969). This in Criminal at 170-74 509, 495, § 67 Taylor, Hickman U.S. v. 329 one, important terest case is 385, (attorney (1947) 91 L.Ed. 451 S.Ct. secrecy has held this Circuit ever Hayes, 408 product); Branzburg v. work breached, grand jury must be even 2646, U.S. being only protect when this is the interest J., concurring) (confidential (Powell, ed, particularized need showing unless a Sears, source). v. news See also NLRB of a made, except has in the case been n.16, Co., Roebuck & U.S. testify trial. grand witness who at (1975). Exactly supra, 379 Youngblood, United States v. See requirement of a what meant recog also F.2d at where the Court showing “necessity” of “need” is unclear. particularized need standard nized that ability of Presumably, it refers to the does limit of the district the discretion the infor- party seeking disclosure obtain courts to order when a lesser disclosure mation from sources other than he seeks showing has been made. If a Thus, it would seem protected source. made, particularized need been disclo proportion need party’s varies grand jury sure unless the should occur degree has to other sources of access he sufficiently investigation remains active However, the he seeks. information prejudice disclosure of materials legitimate government, should not one interest determination of “need” fact on remand. which must be determined imposes on the which unreasonable burdens Socony-Vacuum v. Oil See United States courts, Sarbaugh, see of Illinois State Co., at 60 S.Ct. at 849 supra, U.S. 1977), (7th which re- (“after grand jury’s functions are end perform tasks for quires them to ed, wholly where the proper disclosure ill-suited, they are Dennis v. United see it."). This justice require ends reflects States, at supra, disclosure, “the realization growing (“In enough adversary system, our suppression, relevant materi rather than judges judge. The determination ordinarily promotes proper als adminis to the defense can what be useful justice.” Dennis tration of criminal properly effectively be made States, supra, omitted)). (footnote advocate.” Thus, a remand is S.Ct. at mind, Bearing these considerations inves grand jury whether the determine sufficient shown a think that Moten has tigation remains active. 664 grand testimony jury

need for the of Keno III. INTERVIEW OF JURORS and Viola Intersimone. Inasmuch as these application permission Moten’s immediately were the individuals involved post-trial a re conduct interview of affair, exploration an of the entire quires impor the court to balance several picture requires access their versions of conflicting tant but interests. the one On might argued the facts. hand, functioning the proper jury only grand jury minutes should be disclosed system requires protect jur that the courts necessary to the extent to reveal informa- being ors from “harassed beset learn tion that Moten is unable to from in an party defeated effort to secure from inspecting the camera examinations or might them evidence of facts which estab personal from interviews with Keno and lish aside misconduct sufficient set However, approach Viola this Pless, Intersimone. verdict.” McDonald v. 238 U.S. unnecessarily burden the courts with (1915); 59 L.Ed. 35 S.Ct. 1300 scouring grand jury Crosby, the task of minutes see 1961), denied, in camera for details that were not other- cert. short, (1962). grand wise In addi jury disclosed. if the tion, active, post-trial inquiry certain limits on into longer is no think jury verdicts are in the interest Moten’s showing of need is sufficient at finality judges Penelopes, of lest “become generalized least to override the need for engaged unravelling forever the webs grand jury secrecy and to shift the burden Jorgensen wove.” York Ice Machin specify portions to the Corp., ery (2d Cir.), cert. minutes, grand jury any, if must 92 L.Ed. U.S. remain legiti- secret in order to (1947). hand, On other the defend government. mate of interest On the right ant has a impartial an hand, other Moten’s is not suffi- jury, unprejudiced influence, by extraneous cient to justify grand of jury disclosure J, supra, and when reasonable Remmer. testimony Doe of or the affidavit of Assist- grounds jury exist to believe that may Attorney ant Flannery. United States influence, have been exposed to such only relevant information contained in “the entire picture explored,” should be grand Doe’s jury testimony consists aof II, Remmer supra, second-hand account Viola Intersimone's Often, explora only way version of the Keno affair. The rele- accomplished asking can be is by vant Flannery information contained See, g., it. e. United States v. affidavit third-hand account of the Winters, F.Supp. (N.D.Ind.1977). thing. same Because will have ac- cess to Viola Intersimone’s first-hand ver- The Federal Rules Evidence at sion, possession and because Moten has tempt conflicting reconcile these inter an affidavit from Doe which contains his 606(b) ests. Rule bars testify version, second-hand it cannot be said that ing “as to any matter or statement occur Moten needs access to Doe’s testimony or ring during the course of the jury’s deliber Flannery’s The only remaining affidavit. or upon ations to the effect of anything matter relating grand jury investiga- juror’s mind or emotions tion Keno to be considered is the sealed . .” Advisory Committee Note complaint on which Keno has been arrested. explains that exclusionary is de- rule We are why at a loss to understand this has signed deliberation, promote “freedom been kept Nevertheless, secret. because it verdicts, stability finality pro- contains no information would not be jurors against annoyance tection and em- disclosed inspection of exclusionary barrassment.” The rule is not grand examinations or jury testimony absolute, however, yields to the need Intersimone, Keno and Viola remain testimony where situations under seal. potential is a there reduced for harassment investigations jur- all jurors, “Whether such as when embarrassment concerning objective facts judicial evidence ors need be under control from the Thus, sought. testimony rule admits Bar As- onset debatable. The American concerning prejudicial “whether extraneous Responsibil- of sociation’s Code Professional brought to the improperly information was ity permits investigations without court su- any outside in- jury’s attention or whether pervision suggests be con- brought improperly fluence was to bear circumspection and re- ducted ‘with ” upon juror.” v. any See Mattox United ¶ 606[03], straint.’ 3 Weinstein’s Evidence 140, 148-49, States, (1969). (1976), citing at 606-27 7-30 EC (1892). 52-53, generally 36 L.Ed. 917 See Relating to the Ad- The ABA’s Standards Hockridge, 573 F.2d 752 suggest United States v. Justice no- ministration of Criminal (2d Cir. to and the court: opposing tice counsel verdict, lawyer the should not After post-trial to in relating The rules concerning an adverse make comments jurors well-developed terviewing of are less questions juror of a for the verdict or ask of relating than rules to the admission the purpose'of harassing embarrassing testimony impeach to a ver juror in order way will to influ- tend Nevertheless, many inter dict. of the same jury service. If judgment ence in future situations, so implicated ests in both are to be- lawyer ground reasonable appropriate is to balancing the same sort of subject lieve be to verdict both. An factor which must be additional legal challenge, may properly, if one which is seldom a considered here is course, prohibits statute or rule such com- of formulation of matter concern jurors pur- municate with limited for that nature is such evidentiary rules. Human pose, opposing notice counsel and upon jurors, feeling instead of ha some the court. interviewing, might by post-trial rassed (1971). 7.3(c) in The Defense Al- enjoy it, when it Function particularly § rather though this Court the invita- provides has declined volves the disclosure of secrets “to govern formulate express misgivings guidelines opportunity to interrogation danger subject post-verdict entire exists lingering doubts. A serious Miller, we that, jurors,” supra, F.2d supervision by in the absence have commented in dictum that court, especially who jurors, those some the verdict or were unenthusiastic sys- complicity by planned, counsel against jurors, have fellow grievances tematic, broadscale, inquisition posttrial imagining hap led sinister would be into investigator or jurors private simply not occur or into penings which did say investigators reprehensible, inadmissible, which, things although saying dress in- least. . . . a full [WJhere papers would be included motion quiry of this sort was intended to public confi only would serve to decrease launched, post-trial question- “. . . Thus, supervision is de dence verdicts. ing jurors un- only must conducted protect jurors from sirable not der the strict and control supervision in harassment but also insure that court, those restricted inquiry quiry range beyond subjects on does not rele- as both matters found the court permitted testify which a would be proper.” vant and 606(b). under Rule Brasco, F.2d States (2d Cir.), It well this Circuit that n.4 cert. established in jurors protected (1975), quoting, 385 in order to are insure (S.D.N.Y.1974). On harassment, judge F.Supp. has the 970 n.5 a district unnecessary for us to duty, case power, sometimes the to order facts it is to which join the over extent post-trial that all debate interviewing must be supervision. post-verdict shall be under his Miller minimum, States, subject judicial control. At (2d F.2d 81-82 Cir. however, opposing think notice to coun- was correct at time of Intersimone’s given and the court should be in all sel taking sentencing in control of the investi Moreover, always eases. lies within the gation require ques insofar it will judge to take full province of the district tioning jurors, denying he erred in com when it is first control matter pletely permission Moten’s motion attention, brought and it was certain- to his inquiry. conduct some form There ly proper for the to have done district ample heart support propriety of a here. so ing in cases like one. See United power exercising v. Camporeale, jury, must bear in Howard, 1975); United States v. investiga that he supervising mind 1975); (5th Paz v. United object proceeding of the is to tion. States, 740, 1972), (5th 462 F.2d 745-46 Cir. the truth to be discovered with the permit remand, 662, denied, after F.2d 414 473 cert. possible harm to other interests. least 820, 47, (1973); U.S. 94 38 S.Ct. L.Ed.2d 52 showing warranting When there has been a McMann, rel. United States ex Owen v. 435 barring all investigation, interviewing, 813, 1970), denied, F.2d (2d 815 Cir. cert. 402 court, supervision under is im even 906, 1373, U.S. 91 28 646 S.Ct. L.Ed.2d even in Miller proper. We note that fur (1971); Ryan States, U.S.App. v. 89 United inquiry ther 403 F.2d was not foreclosed. 328, 330, 779, (1951), D.C. 191 F.2d 781 cert. cases, complete may at some bar denied, 928, 368, 342 72 96 L.Ed. U.S. S.Ct. example appropriate. given An in Pro Winters, (1952); 691 v. United States 434 “a publicized fessor Moore’s Treatise is case 1181, F.Supp. (N.D.Ind.1977); 1183 United likely and is hung ends in a Brasco, supra, States v. 385 969- F.Supp. at case, “the trial judge be retried.” In such a n.5; 70 Rocks, v. F.Supp. United 339 States should instruct not to disclose the 249, (E.D.Va.1972); Smith, 253-55 Radel v. deliberation, jeopardize the fairness lest it F.Supp. 585, 265 586 (D.Conn.1967); cf. 8A second trial.” Moore’s Federal Persico, 1077, United F.Supp. States v. 339 [b], ¶ Practice —Criminal Rules at 31.08[1] (E.D.N.Y.), aff’d, (2d 1083-84 467 F.2d 485 (2d example 31-58 n.13 Another ed. 1972), denied, 946, Cir. cert. 410 93 U.S. Dioguardi, our own v. United 492 States 1360, (1973). S.Ct. 35 613 L.Ed.2d denied, (2d Cir.), 873, 70 419 F.2d cert. U.S. We are of many aware other decisions 134, (1974). 95 S.Ct. 42 L.Ed.2d 112 There rejected have motions for post-trial we refused to a district order jurors. interviews of King v. United inquire competence into the mental of a States, 432, (2d 1978) 576 F.2d 438 Cir. juror. explained “only strong We evi (“frail and ambiguous showing”); dence that United likely it is suf 1166, States v. Eagle, (8th F.2d incompetence fered from such 539 1170-71 during jury 1976), denied, Cir. 1110, justify inquiry service will into whether cert. 429 97 U.S. 1146, such did S.Ct. incompetence (1977) (no in fact exist.” 492 51 L.Ed.2d 563 specific opinion allegations explains improper acts); F.2d 78. As the United length, Franks, 25, (6th in States v. this strict standard 511 F.2d 37-38 protect jurors Cir.), order to from the substantial denied, 1042, cert. 422 U.S. 95 S.Ct. potential danger 2654, inherent in harassment (1975) 45 693 (deferring L.Ed.2d permitting inquiry such an on a lesser trial discretion); court v. States showing. Dye, 1226, (6th 1974), 508 F.2d 1232 denied, 1395, 974, cert. 420 U.S. 95 43 S.Ct. Although the instant case is an unusual (no made; (1975) L.Ed.2d 653 motion limit one, it is way not unusual in a that would conducted); ed voir dire v. 457 Cupp, Smith suggest barring jurors. inquiry On 1098, Cir.), F.2d (9th denied, 1100 cert. 409 contrary, because a is unusual series 880, 208, U.S. 93 (1972) S.Ct. 34 L.Ed.2d 135 of events support occurred at (no specific misconduct); claim reasonable suspicion jury may have corrupted. Stevedoring Corp., been inquiry certainly An v. States Allied denied, Cir.), U.S. Thus, 104, (2d cert. 358 warranted. 105-06 while immediately someone talking to (1958) (no had been S.Ct. her, well approached before he where movants “adequate grounds” shown In the cir- inquiry. further sought have differing merely that basis for speculated cumstances, that there was it cannot be said might have been treatment of codefendants Johnson intelligent waiver. knowing Hall, 424 improper); United v. Zerbst, v. U.S. aff’d, F.Supp. (W.D.Okl.1975), 538-40 (1938). Compare United States L.Ed. 1461 denied, (10th Cir.), 536 F.2d 313 cert. 1978), Bufalino, v. 50 L.Ed.2d 285 kept from none of the facts were where (no specific allegation impropriety); Ca counsel. pella Baumgartner, 59 F.R.D. (S.D.Fla.1973) (basis specu request REMAND have might lation that oc impropriety This case must be limited remanded for curred). generally United States v. See proceedings each respect (5th Cir.), rev’d McKinney, 429 F.2d 1019 types discovery three sought. The in (1970), cert. rehearing, 434 F.2d 831 must examinations be disclosed un 922, 91 less can show need Driscoll, (1971); United States more prompt completion time for a of an (S.D.N.Y.1967) (discussing ethi F.Supp. 333 ongoing investigation. If this can be considerations). cal Each of these cases shown, judge may delay the district disclo merely unexceptional propo stands for the sure for a The judge reasonable time. sition that a convicted defendant should not in compelling should bear mind that be to the time of a district allowed waste justify interest can nondisclosure judge jurors merely or inconvenience to government ample has had time to conclude fishing conduct None in expedition. investigation. its application Moten’s for consistent with our view that where reason grand jury disclosure of materials must be exist, grounds able for reevaluated in light the considerations explored. matter should be Although in opinion. discussed this and the government argues, The showing has to not made sufficient war agreed, that appears to have judge district materials, rant disclosure of some show ask for a to the failure of defendants ing respect testimony of to the Keno jurors during more voir dire intensive sufficient, in the Intersimone is absence the right a waiver of operated the trial govern some further This investigation now. ar to seek a new ment, justify grand jury disclosure if language found Unit gument is based on concluded or if investigation has been it lies Gersh, dormant, subject being ed reopened only if Cir.), up. Finally, cert. new facts turn an in should (1964), quiry jurors must be We permitted. we leave district sound discretion if would be a waiver warned that there questioning whether he conduct should prejudicial known of a outside counsel had personally or whether it should done deliberat before the finished influence scope questioning else. someone The mute, gam ing, nevertheless stood “but had defined, appropriately should be it holding bling acquittal while this on an permit adequate should be the entire inapplicable reserve.” issue in Gersh picture Also, explored. to be government here because the time the co-defend advisable make all Moten’s sought should have suggests that counsel parties ants matter the inves so that denied had been inquiry, further counsel tigation quickly can be and effi concluded If examinations. access to the single in a ciently proceeding.4 known, that Viola example, counsel had Reversed and remanded. Keno the court told Intersimone explored fur- need not be claim. The matter carefully Moten’s con- considered We have publicity during questioning jurors prejudicial alleged unless ther regarding tention judge The district merit. to allow it. without district chooses it to be and we find disposed of this explored and adequately judge less inquiry jurors. drastic than Appeliee Rehearing On Petition No such were suggested alternatives when PER CURIAM: argued. case was briefed and How- ever, government the alternative which the for a government petitioned The merit, has belatedly proposed has and the rehearing argues that al- this case. a modified may follow version apply our though purports decision if he wishes. following. We authorize the Dioguardi such as standards set in cases inquiry may initially The be limited to call- showing in this case fails to King Keno, ing Ms. Intersimone Doe. If government satisfy those standards. companion, Keno then identifies his an in- alternative to suggests a less drastic also quiry jurors may become unneces- required. jurors originally we inquiry sary. Similarly, says if Ms. Intersimone unpersuaded by argument, We are first that her pres- earlier statements about the second, and our but there is merit to the false, ence of another individual were then modified, bewill directions for the remand the trial have to decide wheth- accordingly. er him, Intersimone’s prior statements to for our conclusion an in- The basis the grand jury Doe, standing alone, and to rests almost quiry of is warranted If, justify further inquiry. expect, as we First, undisputed entirely on two facts. person denies that another was Keno, jurors, en- original one of present or refuses testify, and if Intersi- gaged improper conduct. It unknown mone adheres to her story that another approach the idea to the defend- person present, then the limited inquiry whether, qr originated ants with him as the originally required must asserts, juror misconduct “[t]he be undertaken. solely by prompted this case was defend- petition for rehearing by panel corrupt tamper with the ants’ efforts denied. corruption jury.” But it is clear that the Second, corrup- was when Keno’s present. light, the time he first came to few

approached Ms. Intersimone a blocks after recessed

from the courthouse court September Friday, after noon on

shortly circumstances,

he Given was not alone. person

it entirely possible was, juror.

was a If he the inference that a powerful involved is one. Cf. Gainey,

United States v. (1965) (upholding L.Ed.2d America, UNITED STATES of authorizing statutory provisions inference Plaintiff-Appellee, guilt substantive offenses unex- plained presence illegal site of activity). Sandy CHECK, Defendant-Appellant. issue, remembered, it must presently whether defendant is able to No. Docket 77-1208. prove rather, it is conclusively; his case United States Court Appeals, sufficiently strong Second Circuit. discover warrant an Argued July 22, 1977. light, truth. Considered is our undisputed justify July view fur- Decided that the facts ther inquiry. original faults our deci- explore

sion alternatives for its failure

Case Details

Case Name: United States v. Frank Moten

Court Name: Court of Appeals for the Second Circuit

Date Published: Sep 29, 1978

Citation: 582 F.2d 654

Docket Number: 489, Docket 77-1324

Court Abbreviation: 2d Cir.