The opinion of the court was delivered by: MARSH
After a protracted criminal trial of five and one-half weeks, the jury in the above case returned verdicts which found the defendants, William Paul Kohne, Paul Patrick Woods, Patsy Stanizzo, Betty Howden Stanizzo, Joseph Tabella, Patrick Denham, Jeanine Denham and Frank DeLucia, not guilty of Count 1, conspiracy, and guilty of Count 2, violating the federal gambling statute, Title 18 U.S.C. § 1955.
The jury retired to deliberate at 1:10 p.m. on Tuesday, February 13, 1973, and returned the verdicts on Wednesday, February 14th, at approximately 4:30 p.m., after spending the night at the William Penn Hotel in Pittsburgh.
On Monday, February 19, 1973, Steve Tisak, No. 10 juror, went to the law office of James A. Ashton, Esq., where he met with three defense counsel, including Attorney Ashton, who represented William Paul Kohne, the owner of the alleged illegal gambling business, and defendants, Patrick and Jeanine Denham. There he signed a written question and answer statement in which he repented joining in the verdicts of guilty and complained about the words and actions of some other jurors, the hotel "cots", and worry over an erratic oil heater in his home.
On February 20, 1973, the defendants, William Paul Kohne, Patrick Denham and Jeanine Denham, filed a motion for mistrial alleging that Mr. Tisak rendered guilty verdicts because he "was coerced by threats of physical harm that he felt were real." Mr. Tisak's unsworn statement was attached. In their motion for mistrial, the moving defendants requested "that an evidentiary hearing be held by this Court to determine all facts which are germane to the issues raised by this petition, subject to the right of examination and cross-examination by all affected parties."
The William Penn Hotel is one of Pittsburgh's leading hotels where, to my knowledge, many juries have been sequestered overnight during the past 20 years. Five juries have spent the night in that hotel so far this year. I have not heard of any prior complaints about the accommodations. Even if the "cots" were not entirely to Tisak's liking, I find that the accommodations were adequate. (See: Exhibits 2, 3.)
Obviously, there is nothing in Tisak's written statement which would warrant impeachment of the verdicts. He does not assert that he was "coerced" into rendering the guilty verdicts. His predominant concerns were the performance of the oil heater at his home and the prospect of spending another night on a "cot" in a room with eight other exasperated male jurors. But because there was innuendo of threats of bodily harm, with considerable reluctance, I granted the request for a hearing to determine if there were genuine attempt to inflict bodily harm upon Tisak, or threats which actually put him in fear of bodily harm. Cf. United States v. Grieco, 261 F.2d 414, 415 (2d Cir. 1958).
All counsel were notified; four defense attorneys attended the hearing as well as the Assistant United States Attorney, who prosecuted the case.
Several defendants were present. Juror, Steve Tisak, was present and was examined by me at some length. Counsel for the government and counsel for the defendants who were present were not permitted to cross-examine Tisak. United States v. Grieco, supra, pp. 414-415. However, all counsel who were present were given the opportunity to suggest additional questions that they desired me to put to Tisak. No specific question was suggested.
Three of the jury attendants, a Marshal, Mr. Ray Eschman, my law clerk, Mr. James West, and the court-crier in attendance, Mr. William Ellis,
were also questioned by me. Counsel for the defendants were given the opportunity to examine these witnesses. Counsel for the defendants questioned Mr. Ellis; no questions were asked of either Mr. West or Mr. Eschman.
From the testimony taken, I find the following facts:
Steve Tisak was seated as juror No. 10 and served the entire duration of the trial. Tisak wrote and sent three communications to me; one during the course of the trial and two on February 14th, while the jury was deliberating. Tisak is not a frail man; he is 5' 8" in height, weighs 150 pounds, and is a truck driver and construction worker. From his appearance and demeanor, he did not appear to be a "weak sister" or a "shrinking violet" who would easily be intimidated by threats. On the contrary, he seemed to be endowed with the characteristics of an individualist and a worthy opponent for his 11 peers in the advocacy of his positions. His will was not overborne by threats of violence; to the contrary, his mind was changed in the heat of deliberations and shortly after my response to his last written question.
I gathered from his testimony that he was greatly concerned about being sequestered because of a problem that he was having with an oil heater in his home. He testified that he was not allowed to make a call to have someone check his heater. Pursuant to Tisak's written instructions (Exhibit 1), Mr. West made a call to Andrew Yanchik at 8:30 p.m. on February 13th to inform him that Tisak would be detained overnight. Tisak testified that he had previously arranged with Mr. Yanchik to feed his dogs if he was detained over-night. Tisak recalled writing the message and giving it to Mr. West, but erroneously thought it took place at 5:30 in the afternoon. Late that evening at the hotel, Tisak requested Mr. Ellis to make another call concerning his car which he had parked in Aliquippa that morning, but this request was refused because Ellis felt he could not leave the jurors unattended to make the call, and Tisak did not seem to be overly concerned. No mention was made of the oil heater to either West or Ellis.
Tisak also testified that at the conclusion of the charge, he remembered that I inquired whether any juror was unable to stay overnight if such became necessary. In response to that inquiry, Mrs. Csurilla, a juror, stated she could not stay overnight because she had two children at home with no one to care for them, and she was excused, but Mr. Tisak did not mention that the oil heater constituted a danger to his home.
In his statement Tisak described the threats as follows:
"* * * Other jurors said they did not intend to sleep on them cots again. One [juror] stated if he has to sleep there again he will be in Federal Court in the morning for murder. Through the day two jurors acted in such a manner that I thought they would pick up a chair and break it on my head because I would not vote blank [sic] guilty charges. Now, I finally voted guilty on a [sic] gambling charges because it was admitted in Court that gambling was performed. * * * I signed guilty on that blank [sic] charges because I myself did not want to sleep at the hotel with those people because I did not think ...