The opinion of the court was delivered by: LUONGO
On October 3, 1977, defendants Raymond T. Pellegrini and Sebastian A. Barone were convicted of conspiracy (18 U.S.C. § 371) and twenty counts of bank fraud (i.e., making false statements in loan applications submitted to a bank insured by the Federal Deposit Insurance Corporation, 18 U.S.C. § 1014). In addition, Pellegrini was convicted of twenty counts of embezzlement (18 U.S.C. § 656), and Barone was convicted of twenty counts of aiding and abetting that embezzlement (18 U.S.C. § 2). Post-trial motions for arrest of judgment (Fed. R. Crim. P. 34), judgment of acquittal (Fed. R. Crim. P. 29), and new trial (Fed. R. Crim. P. 33) were filed, and on November 18, 1977, I disposed of all but one of the contentions raised in those motions during proceedings in court, ruling that the motions should be denied insofar as they were based on those contentions. This opinion deals with the remaining contention made by both defendants -- that they are entitled to a new trial
because one of the jurors at their trial had an insufficient understanding of the English language. I have concluded that the motion for a new trial based on this contention should be denied.
The juror in question is John Polowyj, Juror Number 150 in a panel selected for petit jury service during a three week period commencing September 26, 1977. On that date, Polowyj was one of thirty-eight members of that panel brought to Courtroom 16B for jury selection in this case. Voir dire was conducted by the Court by asking general questions of all of the prospective jurors and allowing each juror who had a significant answer to a question to respond individually. Counsel were given an opportunity to submit additional questions and to then challenge jurors for cause and to exercise their peremptory challenges. As a result of this procedure, Polowyj was selected as Juror No. 7 on a panel of twelve jurors and two alternates. At no time during the jury selection process did Polowyj give any indication that he did not have a complete understanding of the English language.
The incident giving rise to defendants' motion occurred ten days after this trial's conclusion and in an entirely different case. Following the conclusion of this trial, Polowyj returned to the petit jury panel for further assignment. Eventually, he was selected as a juror in another criminal case, United States v. Bisher, Crim. No. 77-175, which was tried before Judge Broderick. At a recess in that trial, which immediately preceded Judge Broderick's charge to the jury, Polowyj approached the deputy clerk of court and asked to be excused from the jury because of his difficulty understanding all that was happening during the trial. The deputy clerk conveyed this information to Judge Broderick, who then, in the presence of counsel, called Polowyj into chambers to question him about his request. Polowyj explained his request as follows:
"Well, I, what I said, due to the fact that I was not schooled in this country and my knowledge of this technical and fancy talk is not that deep, so now I don't think I will be, you know, and besides that, I can't concentrate very well.
I have trouble with arthritis and in weather like this it unables [ sic ] me to concentrate. The arthritis is in my neck and my head, so when it comes to thinking I get, you know, --"
Transcript, Proceedings in Chambers in re John Polowyj, Juror, United States v. Bisher, supra, at 5-6.
In answer to questions by Judge Broderick and counsel, Polowyj repeated that his arthritic condition made it difficult to deliberate in the case and that he had difficulty understanding some of the terms used.
With the agreement of counsel, Judge Broderick then excused Polowyj from the case, substituting an alternate juror in his place. In discharging Polowyj, Judge Broderick commented that "I have difficulty myself understanding as to how a man could be in this courthouse three weeks and sit on another jury and come in on the last day of this trial, which is so important, and state that he has difficulty understanding." Transcript, at 9.
Defendants argue that if Polowyj was unable to fully understand the proceedings in the Bisher case, he also must have been unable to fully understand the proceedings in this case. They contend that the lack of full understanding by a juror entitles them to a new trial. At the least, they argue, even if the Bisher incident is not in itself sufficient to justify the granting of the new trial motion, it is sufficient to justify conducting a hearing to determine the extent of Polowyj's understanding of the proceedings in this case for the purpose of resolving the new trial motion.
The parties have not called the attention of the court to any reported decision dealing with this particular type of fact situation. Generally, the courts have refused to allow inquiry into the basis for jurors' votes, particularly when the question goes to such matters as a juror's mental processes or intra-jury deliberations. Investigation may be conducted, however, into "extraneous influences" on the outcome, such as jurors' extrajudicial communications with third parties or exposure to news items about the case. See generally Government of the Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir. 1975), cert. denied, 424 U.S. 917, 47 L. Ed. 2d 323, 96 S. Ct. 1119 (1976); United States v. Wilson, 175 U.S. App. D.C. 173, 534 F.2d 375, 378-79 (D.C. Cir. 1976); ABA Standards Relating to Trial by Jury, § 5.7 & Commentary thereto (Approved Draft, 1968). Polowyj's understanding of the English language -- or lack thereof -- is not an extraneous influence, however. The most pertinent case that I have found is United States v. Dioguardi, 492 F.2d 70 (2d Cir.), cert. denied, 419 U.S. 829, 95 S. Ct. 49, 42 L. Ed. 2d 53 (Ostrer, petitioner) & 873 (Dioguardi, petitioner) (1974), which dealt with an attempt to impeach a jury verdict on the basis of a juror's alleged mental incompetence. In considering that issue, the Court of Appeals stated:
"It is well settled that only clear evidence of a juror's incompetence to understand the issues and to deliberate at the time of his service requires setting aside a verdict. And only strong evidence that it is likely that the juror suffered from such incompetence during jury service will justify an inquiry into whether such incompetence in fact did exist.
[Absent] . . . substantial if not wholly conclusive evidence of incompetency, courts have been unwilling to subject a juror to a hearing on his mental condition merely on the allegations and ...