The opinion of the court was delivered by: ROSENBERG
The matters now before me are on two motions, (1) a Motion To Dismiss Indictment filed July 23, 1976 against the defendants, Egidio Cerilli, Ralph Buffone and Maylan Yakovich; and (2) a Motion To Dismiss Indictment filed August 24, 1976 against the defendants, Egidio Cerilli, Ralph Buffone, Maylan Yackovich and John Shurina, or in the alternative for change of venue.
The processing of the ill juror from 8:00 p.m. that evening until approximately 1:15 a.m. is accounted for by the fact that at 8:00 p.m. I invited, with the consent of counsel, the United States Post Office nurse who examined the juror and found him to be in a highly nervous state with a blood pressure of 170/110. She declared that she was not permitted and would not administer drugs to the patient (other than tylenol) without a doctor's prescription and that this man needed a doctor. He asserted that he had no doctor. At 10:00 p.m., while the jury was still sequestered, and with the consent of counsel, I requested the same United States Post Office nurse to look at the juror again, before sending the jury to the hotel for the night. On this occasion I, with the approval of counsel, was present with the bailiffs who were previously present in the courtroom, with the door of my chambers and the door to the jury room open. All counsel with the court reporter were gathered in my chambers. The nurse then found the juror's blood pressure to be 175/112. She again emphatically declared that the juror was in need of a doctor and that she would not and could not prescribe for this man who was then in a worse nervous state than he had been at 8 o'clock.
I then questioned the juror, in the presence of the nurse and the bailiffs, and he advised that he had no doctor. All of this was reported to the assembled counsel and made a matter of record. Eventually, I believe it was on the suggestion of counsel for the prosecution to the United States Marshal, that the juror be sent to the nearby Central Medical Pavilion Hospital emergency room, because the Marshal had already contacted these authorities for a doctor to be sent to the court. The answer by the hospital representative was that the juror would have to be sent to the hospital because equipment and staff would be needed for testing; however, the hospital emergency crew would receive and report on the juror immediately, if he were brought to the hospital. All counsel agreed that he be sent to the hospital and this was done. All counsel, the defendants and the reporter waited in my chambers for the report from the doctor. That came shortly before 1 o'clock a.m. over the phone. With the consent of all counsel present, I repeated the doctor's statements as he gave them to me, after I had assured him that his confidentiality would be protected, since in this instance it would serve the just processing of the case. All of this is a matter of record in camera and I shall not give the more confidential details because of any possible reflections on any person.
In any event, after tests were made at the hospital by the doctor and his staff with their equipment, the doctor advised me, and I in turn repeated it to all those present in my chambers, that it was urgent that the juror be admitted to the hospital at once for a specific reason. I repeated the reason aloud to counsel and made it a part of the record. Particularly, the doctor stated, that it would be hazardous to send this one juror out with the other eleven for the night. All this, I say, was divulged to counsel and made a part of the record in camera. After the juror was admitted to the hospital, the eleven other jurors were sent to a motel for the night.
Thereupon the three counsel for the defendants refusing to proceed with eleven jurors moved for a mistrial, without any objection on the part of the prosecuting attorney. Orally I granted the motion, as reported on the record sometime after midnight, but I requested defense counsel to renew their motion on the next day in open court.
On the next morning the Assistant United States Attorney, without notice to opposing counsel, came to me in chambers and told me that he had relented on his approval the night before and desired a re-examination by another doctor. In any event, after giving the matter due consideration and consultation with the Chief Judge, I denied the request. Orally, he suggested that I await the release of the ailing juror from the hospital and reunite them for further deliberation. I denied the suggestion as well, and later in open court granted the defendants' motion of a mistrial. In the meantime and without my knowledge, the prosecuting attorney instructed one of the bailiffs, who had left the juror in the hospital on the night before, to return to the hospital in the morning and stand watch over the juror. This bailiff remained with the juror until 4:00 p.m. When the deputy marshal informed me of the Assistant United States Attorney's action, I instructed the marshal that when a case is in process neither the prosecution nor the defense counsel has any right to direct the marshal as to what he is to do with jurors, but such instructions must come from the trial judge. Accordingly, the bailiff left the hospital at 4:00 o'clock p.m.
On the next day the marshal and the bailiff in attendance at the hospital reported to me that on the previous day while the bailiff was yet at the hospital watching the ailing juror, the hospital's daytime doctor came on the floor at about 3:00 o'clock p.m. and looked at the ailing juror with the remark that he had seen this patient before under similar circumstances. I thereafter summoned the jury commissioner with the file on this particular juror and learned that the juror's answers to the jury commissioner on information forms were similar to those given to the nurse -- that he had no doctor and that he had no attorney.
A day later one of the highly prominent and fundamentally reliable newspapers in the city carried the story of its federal court reporter that I had excused the juror without having consulted with his "family doctor". This was an absolute falsehood and one I am certain that this highly reputable newspaper would never have published had it not gotten that information from what it would call a reliable source. I have attempted to fathom what that source might have been and cannot be persuaded that it could have been from the hospital nor the juror's private personal doctor, since he had none.
Some circumstantial persuasion might exist in what followed. When I denied the oral motion of the prosecuting trial counsel to hold the eleven jurors in abeyance until such time as the one being treated at the Central Medical Pavilion Hospital was released and to reunite them and direct them to resume deliberation as if no separation had occurred, the matter was publicized (by someone) and that evening the United States Attorney himself, as I observed him, appeared on television news broadcast and criticized me, and set himself up as the superior judge by stating that I was obliged to reunite the twelve separated jurors and cause them to continue to deliberate. From then on my staff was bombarded by news representatives for my reply, but of course, as a federal judge I could not and would not reply.
For a day or two the publicity subsided. Then on the following Friday morning, May 21, 1976, at 10:42 a.m., the prosecution filed a Motion To Reconvene and Poll The Jury. In the motion, the averment was that "the United States Attorney for this District has reason to believe that prior to the declaration of a mistrial at 12:30 A.M. on May 18, 1976, and prior to the separation of the ill juror, the jury had unanimously agreed on a verdict as to several counts of the indictment." (Emphasis added). The prosecution did not aver any facts as a basis by which the United States Attorney was induced to "believe" that he had "reason to believe" what he averred.
At the same time it was obvious that if the prosecution really wanted speedy action on such a motion it could have easily notified all the defense counsel to come in at a particular time that day before the court when it would then present an emergency motion upon which I could have acted without delay. The very fact that the prosecution "served by mail" the motion on a Friday morning to the various defense counsel indicates essentially that it would take at least twenty-four hours for the mail to arrive from Pittsburgh into Westmoreland County, that is into Greensburg or New Kensington where defense counsel have their offices, and that this would be on a Saturday. Under our law, computing the days when answers are required to be filed, we exclude both Saturday and Sunday, and thus I would have concluded that the delivery of copies of the motion would ...