*1 key federal tory, it seems clear that other in which the defendants ing the manner in this case claims asserted the Council Adju- hospitals. individual member treated proceedings. not be raised in those likely require claims would dication of such noted, complaint also as- previously As discovery, hospitals provide that member concerning serts claims discrimination employ- testimony by officers and and trial awarding pub- zoning matters and hospitals might be needed of member ees contracts, lic but neither the district court Nevertheless, participation since as well. explained have nor the defendants how injured party” would [allegedly] “each entertain state boards of assessments could ground for necessary, we see no not be such claims. Thus abstention was standing. denying associational proper in this case. the order of the district We will vacate III. complaint, dismissing and we will ground for dis As an alternative Although proceedings. remand for further missal, that absten the district court held urged us to affirm the the defendants have required County under Middlesex tion was ground that district court’s decision on the Bar v. Garden State Ethics Committee complaint any fails to state claim on Association, grew supra, a decision that may granted, we decline to which relief including line of abstention cases out of a question, reach this which the district court Harris, Younger v. 401 U.S. 91 S.Ct. yet Nothing in our has not addressed. (1971). Under the ab 27 L.Ed.2d interpreted express opinion should be cases, developed in doctrine these stention any question this or on the truth of view on (1) “only if there are proper abstention allegations. the Council’s judicial that are ongoing proceedings state (2) nature; proceedings impli the state interests; (3) the important state
cate adequate op afford an proceedings
state federal claims.”
portunity to raise Schall (3d Cir.1989). Joyce, v. of America UNITED STATES case, third apparent In this it is v. met,4 and thus we need requirement is not Ralph Thomas GILSENAN requirements. consider the other Cicalese, Appellants. “any The district court stated 91-5166, Nos. 91-5167. challenges to defendants’ ad constitutional Appeals, United States Court of taxing system” of its could be ministration Circuit. Third the state fully proceedings raised in before But even assum boards of assessment.”5 Argued Sept. 1991. hospital tax ing any member whose Decided Nov. 1991. challenged by a defendant in exemption is Rehearing Denied Dec. proceedings a board of assessment before adequate opportunity in would have an proceedings raise the claim that
those challenge retaliatory or discrimina- 4. We review the district court’s decision to ab- Board of Assessment and Revision in Counties 5453.701, Joyce, Class), Schall v. (ap- stain for abuse of discretion. of the Third 5453.702 §§ F.2d at 106. peal to Board of Assessment Revision through Eighth the Fourth Taxes in Counties of statute, Pennsylvania taxpayers may ap- 5. Under Thereafter, Classes). taxpayer may appeal appropriate peal a local tax assessment to the appropriate from the decision of the board to local assessment board. 72 Pa.Cons.Stat.Ann. § state court. 72 Pa.Cons.Stat.Ann. 5020-518.1 (1991). (appeal See also 5341.14 § § 5020-511 (1991). See, e.g., Apartments Filbern Manor to Board of Revision of Taxes in Counties of Appeals, Board Assessment 138 Pa.Cmwlth. Class), (appeal Prop- First erty to Board of § 5452.10 A.2d Assessment, Appeals, Coun- and Review in Class), (appeal § ties of the Second *2 (argued), Goldstein, Till, Till
Peter W. Reiken, Newark, N.J., appellant Lite & for Gilsenan. Critchley (argued), Orange,
Michael West N.J., appellant Cicalese. Chertoff, Atty., B. Michael U.S. Edna Axelrod, Atty., Asst. U.S. Eric L. Muller Newark, N.J., (argued), Atty., Asst. U.S. appellee. STAPLETON, GREENBERG, Before ALDISERT, Judges. Circuit OF THE OPINION COURT GREENBERG, Judge. Circuit
BACKGROUND This criminal case this court is before appeal February from an order entered on 21, 1991, denying In new trials. 1988 the appellants Ralph Cicalese and Thomas Gil- senan, employed enforcement officers law prosecutor County, of Essex New Jersey, charged in a 41-count indict- including ment numerous offenses arising Influ- ones under the Racketeer Corrupt Organizations enced and Act (RICO) arising and the Hobbs Act from recited pleas." It further guilty plead- corruption. narcotics lacked government noted begin jury trial was guilty and ed not one in its confidence 3, 1989. on October the case was attorneys said defense *3 the However, by October the and that embarrassment” “institutional a tenta- reached government lants and the in plea deal the proposed “had government a agreement on which plea tive The arti- face.” to save desperate effort appellants day. The that on scheduled was on attack appellants’ quoted the then cle be held proceedings these that requested that case and indicated government’s the the that they concerned as were in camera arti- The they innocent. they were insisted that rejected and might be agreement plea “surprise plea as a the referred to cle them resulting publicity could the the that proposal” stated government and court denied The district jury in selection. they only attorneys said appellants’ agreement was plea the and the motion proposal” because the “agreed to consider agreement The open court. in then recited to do so temptation” it an “irresistible was plead would appellants the provided that 50-year facing were appellants the as charging a one-count guilty to they not regardless of whether terms the Hobbs to violate conspiracy them with article Remarkably, the innocent. incarcerated. be would that neither Act but agreed the said that never probation placed on Instead, be each would though that inference accept proposal, the to seek agree would years and for five from it. drawn can be the employment with his reinstatement 4, 1989, a similar was there as On October Inasmuch County Prosecutor. Essex article The Star-Ledger. in the sen- article specific provided for agreement the authori- again that the “federal once ap- court stated tence, subject to district it was dispose of the attempted quietly ties had Fed.R.Crim.P. pursuant proval defen- offering guarantee the 11(e)(2). case 11(e)(1)(C)and Fed.R.Crim.P. guilty exchange for probation dants agreement were of the the terms After by” angrily rejected deal was pleas, but the a noncustodial stated, why asked the court this arti- thrust of court. The district the The assistant appropriate. was disposition earlier, day was cle, that of had been the as attorney that explained States United and was government’s case weak that appellants’ plea demonstrate would inno- maintaining their appellants were en- remove them law guilt and would cence. officers, significant more results forcement regarding the publicity was other The There punishment. imposition of than The Associated proposed agreement. acknowledged its that government then article, ap- was which Press distributed proof." Ul- “in difficult terms case was newspaper in at one parently run least rejected court timately the district lines as along the same pun- October regarded proposed it agreement as It referred to the Star-Ledger. in the as insufficient. ishment “plea proposal” having government made contemplated, there As the States the assistant and said that regarding publicity was considerable was a the case attorney “conceded that Star-Ledger, said agreement. It also government.” tough one for newspaper with Jersey New be the coverage was television appears that there circulation, on Octo- ran an article greatest does the record plea proceedings but of the 1989, indicating the district ber reveal content. its declaring it agreement rejected court 3,1989, on October selected roll principles its not violate have caused seems to process The article said play dead. over and difficulty. particular Some no dispose of quietly “to tried authorities plea agreement about the had read drug corruption who police a much-heralded in- ultimately jurors, to were excused of freedom by offering guarantees selected. Spraguer, were cluding Patricia exchange for their two accused lawmen however, day excused after sev- asked the court that Spraguer, or the next during anything it eral of service the trial. As whether knew that would affect weeks opinion its she said might expected, the court instructed the because she honestly felt anything that what she had heard jury not to read or listen to about would not affect her presented decision. other than what was the case lengthy as court. The trial was evidence affidavit, Spraguer’s Armed with Ci- given days peri- on 24 over a six-week directly calese and Gilsenan moved for new 8, 1989, after a od. On December week and, pursuant trials to Fed.R.Crim.P. 33 deliberations, convicted Gilsenan alternatively, asked for a on the acquitted him on on 13 counts and application expectation in the *4 acquit- convicted Cicalese on 15 counts and develop evidence which would be the Following ted him on six.1 the denial of supply- basis for a new trial. In addition to imposition and the motions a new trial ing affidavit, Spraguer’s Rosen’s letter and incarceration, long terms of attorney Cicalese’s filed an affidavit indi- appeals lants filed direct but we affirmed cating brought jury that Rosen had by judgment orders their convictions with- by telephone matter to his attention a call opinion. out 25, to him on October 1990. He said that he discussed the matter with Gilsenan’s appeals directly us The now before were attorney they pre- trial and asked Rosen to 7, triggered by a letter dated November pare the He Rosen, affidavit.3 also indicated that professor from Richard A. a they verify were able to the affidavit to the Carolina, University of North of law at determining extent of that there had been a attorney, enclosing an affida- to Cicalese’s juror “George” jury. named on the Ci- Spraguer Patricia dated November vit of attorney Star-Ledger calese’s attached the Spraguer explained In her affidavit articles to motion. his that she then a law student at the was in University of North Carolina and The district court denied the motions for course of a criminal law class realized 11, 1991, February trial in an a new something happened during “that opinion pointed from the bench. The court may significant trial be a error.”2 She Spraguer’s vague out that affidavit was said that on she remembered as the what respects in The some was inaccurate. day second of the trial several members then indicated that on court October jury were that there had aware been Star-Ledger because of the initial night plea offer the before and that this article, array jury it asked the whether development jury in was discussed anyone had heard or read about the case. “[tjhey room. said that someone said She persons responded affirmatively but Six settle, judge had offered to but the said no they “utter- two were not excused were no time would be served.” She because vague” they heard or read ly about what matter had been on then said that Af- though the other four were excused. ju- that several again television she believed asked jurors ter lunch the were may report rors have seen the on television case and they whether had read about the newspaper. qualified in responded. or read about it She none regarding groups the words the settle- of each attributed in and as the members “George.” group any named if there reason ment offer to a were asked was fair there no re- jury also indicated that when the could not be was She point, is not clear on the seems to be some confusion in the 2. While the record 1.There respect charge Spraguer record with to count infer that became a law student after justice. against Gilsenan for obstruction of cording to the docket sheets he was found not Ac- in this case. her service guilty judgment on this count but the of convic- represented has been a different 3. Gilsenan guilty that he was found on it. Our tion recites attorney appeal. on this acquittals and 11 division 13 convictions judgment If treats the as correct. the docket sheets are correct the division is 12 and having significance appeal. no on this difference Furthermore, the lack of davit. instructed not to jurors were
sponse.4 The
radio or
demonstrated
the circumstance
or listen to
the case
read about
regarding it.
not returned until
accounts
verdict was
watch television
days of
on De-
after seven
deliberations
then said
opinion the court
In its
8, 1989,
acquittals on
and included
cember
inac-
notwithstanding
inconsistent and
many counts.
Spraguer’s affidavit it
curate statements
most
from “the
view the matter
indicated, citing Dowling,
then
that:
scenario” for
favorable
every exposure
814 F.2d at
that “not
sitting jurors were aware
at least several
to extra-record information about the
I
offer which
there had been
dis-
require a new trial” and that the
will
dis-
the matter was
rejected
had
position
is in the
to deter-
trict court
best
sitting
all the
presence
cussed
given
requires.”
mine “what a
situation
Spraguer re-
Miss
jurors with the words
The court determined that
at 137.
Id.
settle,
being ‘They offered to
members
required
and that
this case
no time
judge
said no because
but
assuming
Miss
at a
“even
served.’
would be
Spraguer’s
were tested under
averments
*5
true,
finding I have
oath and found to be
App.
at
assumed,
warrant-
a new trial would not be
assume that
also said it would
The court
21, 1991,
February
the court en-
ed.” On
the source
Star-Ledger articles were
the
denying
and this
the order
a new trial
tered
appel-
jurors
of the
as the
of the awareness
appeal followed.
the articles on it.
pressed
lants
appellants
positions
take two
on this
the
The court nevertheless ruled that
First,
the dis-
appeal.
they contend that
not entitled to a
appellants were
denying
indicated,
trict court abused its discretion
citing
a new trial.
It
Govern
a new trial because there
814 the motion for
Virgin
Dowling,
Islands v.
ment of
unre-
134,
(3d Cir.1987);
possibility that the
139
States was a reasonable
F.2d
United
Cir.1976);
Vento,
838,
(3d
Spraguer’s
affidavit
533 F.2d
869
information
v.
butted
DiNorscio,
affecting
jury’s
them
the
ver-
prejudiced
States v.
1041,
(D.N.J.1987),
F.Supp.
by enhancing
possibility
1042-43
the
of convic-
dict
aff'd
DiPasquale,
Second,
assuming
they
that
sub nom. United States
tions.
contend
(3d Cir.1988),5
denied,
prejudicial
Norscio, pointed F.Supp. at 1043. It Star-Ledger
out that
the thrust of the
ANALYSIS
government’s
that
case
articles was
considering
Preliminarily in
the merits of
perturbed that
was weak and the court was
important
recognize
brought
appeal
it is
government
it.
It then indi
general sources from which
if
some
there are two
cated that even
there had been
jurors or some of them could have
prejudice from the article of October
regarding the
ne-
clearly dissipated as there was
obtained information
it was
from the me-
jurors
gotiations.
it
One source was
allegation
no
that the
discussed
publicity and the other was from anoth-
Spraguer’s
time mentioned in
affi- dia
after the
course,
jury prejudice.
appeal
respond
On the
in DiNorscio
a failure to
meant that a
4. Of
juror
nothing
bring
to the court’s atten-
had
discussion of the district
we affirmed without
tion.
opinion
reported
as we found the
court’s
point
plainly
to be
lants' contentions on
opinion
to the district court’s
5. In this
we refer
F.2d at
n. 1.
without merit. 864
opinion in DiNorscioseveral times on the issue
objective point
view,
in the record
from an
juror.6
quite
er
There is
opposite
newspaper
is true as the
accounts
suggests
any juror
heard of the
which
appear
government’s
made it
any
negotiations from
other source and the
extremely
weak and that it was des-
appellants
any
claim that
did. It is
do not
perate
salvage something
pros-
from the
important
recognize that the
also
that we
Furthermore,
ecution.
the articles made it
request
significant
for a
raises
con-
government
clear that the
had made the
present
request
siderations not
the direct
plea proposal
they
indicated that it was
meaningful hearing
for the new trial as a
government
dispose
which wished to
require
questioned,
cases quietly.
The articles further re-
indeed.
delicate matter
See McDonald v.
displeasure
flected the court’s
with the
264, 267-68,
Pless, 238 U.S.
35 S.Ct.
government
appellants’
and the
assertions
97 determining what extra-record strictly required. all, After a call for a jury and, received if it hearing received such has an inherently ring reasonable information, jury whether could be re to it. But this is not one those circum- upon ignore lied it and confine delib stances there its for are compelling reasons erations to the record not to evidence. In involving Dowl- hold the recall- ing ing we of discharged jurors. considered that the information had As the Court of Appeals potential for substantial for the be Second Circuit recently cause it said: related to the facts of the and prior
because the
had a
defendant
convic
always
We are
jurors
reluctant to ‘haul
tion
robbery,
for bank
charge
the same
in
after
have reached a verdict in
in
being
indicated,
the case
tried.12 We
probe
order
potential
for
instances of
however,
every
bias,
that “not
exposure to ex
misconduct or extraneous influ-
tra-record information about the case will
ences.’ As
before,
we have said
post-
require a new trial.” Id. at 139.
verdict inquiries may
See also
lead to evil conse-
Boscia,
quences:
States v.
573 F.2d
subjecting
juries to harass-
(3d Cir.) (“[T]he
ment,
provide
failure to
inhibiting
a full
juryroom deliberation,
evidentiary hearing
possible prejudice
into
burdening courts with
applica-
meritless
resulting
tions,
from
increasing
communications with
temptation
jury
tam-
not,
itself,
does
require
pering
creating
reversal or
uncertainty
remand.”),
denied,
cert.
436 U.S.
verdicts.
L.Ed.2d
In United
v. Ianniello,
States
Greene and Dowling the claim that
(2d Cir.1989)
(omitting citations).
jury had
allegedly prejudicial
received
in
Indeed,
expressed
concerns
by the
formation came to the court’s attention Court of Appeals in United States v. Ian-
during the trial.
hardly new,
niello are
the Supreme
Here, however, we cannot conclude that
years ago
Court 76
in McDonald v. Pless
the district court abused its discretion in said:
holding hearing.
Dowling, 814 F.2d
But let it once be established that ver-
purpose
at 137. The
of a
dicts solemnly
publicly
made and
re-
happened,
determine what
that is to estab
turned into court can be attacked and set
lish the historical
Accordingly,
record.
aside
the testimony
of those who took
hearing need not be held at the behest of a
part in
publication
their
all
verdicts
party
allegations
whose
if established
be,
many
be,
could
followed
would not entitle
toit
relief. See Govern
inquiry
hope
discovering
Forte,
ment
the Virgin
Islands
something
might
which
invalidate the
(3d Cir.1989).
F.2d
Here the district
finding. Jurors would be harassed and
court assumed
beset
party
defeated
in an effort
allegations
substantiate their
to secure from them evidence of facts
*8
exposed
was
to the
proposal
might
informa
which
establish misconduct suffi-
tion.
hearing
Therefore a
was not needed
cient
set aside a
to
verdict.
If evidence
develop
to
the facts and the court
used,
did not
thus secured could be thus
the
abuse its
in
holding
discretion
not
one. Of
result would be to
what
in-
make
course,
606(b)
under Fed.R.Evid.
private deliberation,
a
tended to be a
the
could not be held for the
subject
public
court to
constant
of
investigation;
ask the
jury the effect
to the
of the information
destruction of
on its
all frankness and
verdict.
of
freedom
discussion and conference.
267-68,
In reaching our result recognize we that judges sometimes tempted are to order sight We cannot lose of fact the that we hearings put to matters to rest if even have been forced recognize jurors to that ty defendant, was that involved, the conviction, unlike the in addition to the informa- here, plea negotiations. initiated the tion charged that the defendant had been with attempted robbery armed and murder but ac- 12. As in Greene the extra-record information in quitted. Dowling was far more serious than as here it
98 States, 483 U.S. v. United Tanner intimidation. and threats subject to are 90 L.Ed.2d 120, 107 S.Ct. ap circumstances in some Thus, now we (1987). a jury, anonymous of an use the prove been might have time one at that practice Scarfo, v. CONCLUSION States See unthinkable. Cir.), de cert. (3d 1015, 1021-26 F.2d bewill February of The order 263, 102 nied, U.S. affirmed. fact In L.Ed.2d Scarfo of retal fears “[jjuror’s acknowledged that dissenting: Judge, STAPLETON, Circuit are defendants from criminal iation has been apprehension such hypothetical; forth accu- sets court the opinion of district As the Id. at documented.” matter of this facts fairly the rately and DiNorscio, States in United said expo- that conclusion its agree I with and to fair least 1042, “it is at F.Supp. at arti- newspaper the text of full to the sure serving defendants disappointed say that the unlikely to very be cles would quite will incarceration of terms lengthy is, There a eyes juror. of in the defendants at their weapon every understandably use analy- court’s the however, problem with convictions.” their aside to set disposal evidence record uncontradicted sis. criminals desperate that not doubt doWe told jurors of number that a indicates first crimes violent willing to commit settle, judge but the to “they offered that to attempting nothing of think would place served" no would time no because said overturn to effort in an jurors intimidate that no assurance provides the record and verdicts.13 read this information exposed escape I cannot articles. newspaper should service their complete who Jurors who average juror that an the conclusion proceedings for all, be recalled if at rarely, according “news to the only exposed It here. propose those such the de- that understand George” would thing to conduct a different qualitatively is of part guilty as plead offered fendants at proceeding ongoing during an voir dire but government with deal adjudicative part of is which stip- along because go judge refused or jury months to recall than process This light.1 too punishment ulated useful It is purpose. years later stay understanding would kind germane following to recall regard this or her color his average juror an Court: Supreme words longest of trials. throughout even view postverdict is little doubt There development that further it true Were juror misconduct into investigation imprudent, or precluded is either the record invalidation lead to instances in some with United hold, in accordance or I would irresponsible after reached of verdicts Jersey, 519 v. New rel. Greene ex at all States is not It juror behavior. improper current Cir.1975), (3d F.2d system however, clear, view, my In trial. a new requires record it. perfect efforts such survive entirely proper however, the sensible misconduct, incom- Allegations is to circumstances these do in thing to inattentiveness, raised or petency, determine evidentiary hold weeks, months *9 days, time first preju- what, any, extraneous if disrupt precisely verdict, seriously after atten- brought information dicial process. of finality escape a similar unable court was This 1. statement implying this areWe 13. v. New ex rel. Greene States improp- in United conclusion appellants somewhere we think Cir.1975) fact, (3d mem- where Jersey, Spraguer. In or Rosen erly approached Rosen it was information slightest received doubt of the bers have the do not exactly and we plead vult non contact initial offered had defendant who made was the Spraguer’s required affidavit a new risk of lants assert held that jus- her sense than other product of trial. experience. law school of her the basis tice on jury. may tion of members of It be who heard extraneous infor- received a fair understanding
mation
what went on at the on the and, so,
agreement if the conviction should While care
stand. would have to be taken inquiry
to avoid into anything “the effect upon juror’s ... a mind or emotions ... or
concerning processes,” his mental Fed. 606(b)(emphasis supplied), nothing
R.Evid. suggests
cited the court post that a inquiry propose
verdict I the kind impermissible Indeed, impractical. 606(b)
Federal Rule of Evidence and its
legislative history, as reviewed Tanner States,
v. United
U.S.
(1987),
such a expressly verdict
authorized testify and that a at hearing concerning
such a any “extraneous
prejudicial improperly ...
brought jury’s to the attention.” Fed. 606(b).
R.Evid.
I would remand this to the district
court with instructions hold an evidentia-
ry hearing opinion. consistent with this
STATE FARM MUTUAL AUTOMOBILE COMPANY, Appellant,
INSURANCE
Sylvia ARMSTRONG; Barry Towns; M. Thomas; Doe,
James John Wil a/k/a O’Brian, liam J. William J. a/k/a O’Brien; Beverly Renfrow; S. Karen
Jones, Brown; Karen a/k/a Loretta
Holloway; Services, Fidelcor Inc.
No. 89-1784.
United States Appeals, Court of
Third Circuit. Submitted Under Third Circuit Schaible, Wayne Duane, A. Morris & 12(6) April Rule 1990. Heckscher, Pa., Philadelphia, appellant. Decided Nov. 1991. Melvin, Miller, Francis X. Hauptman & Rehearing Rehearing En Banc Melvin, Pa., Philadelphia, appellee Bar- Denied Dec. ry Towns. *10 DeLuca, Holland, Pa., Renato ap- S. James pellee Thomas.