that furnished the "escrow" arrangement as the explanation for the $ 8,333.30 check involving Cohen and Herbert. It was the Government's intention to have the jury compare that grand jury explanation by Yannessa with the testimony provided at trial in order to cast doubt on the "escrow" version. Simply stated, the Government urged the jury at trial that it should return a verdict of guilty against Yannessa on the perjury count, because the evidence established beyond a reasonable doubt that the "escrow" arrangement was a fabrication and, consequently, perjury had been proven. It is Cohen's argument here that the admission of that testimony was prejudicial to him because, in effect, it permitted the trial jury to be influenced by the finding of the grand jury that perjury had been committed; hence, usurping the trial jury's prerogatives. In response, the Government argues that the grand jury indictment of Yannessa for making false statements to the grand jury is distinguishable from Bruton, where a statement or confession of a codefendant who did not testify at trial was introduced at the trial against the defendant. Further, the Government argues that there was no need for a severance, because the Court instructed the jury that the indictment should not be considered as evidence and that the evidence of the perjury charged against Yannessa should be compartmentalized with respect to Yannessa only.
The common sense answer to the rationale Cohen advances is that every grand jury makes a finding of some kind consistent with there being probable cause that a crime has been committed; otherwise, an indictment would not be returned. There is always the prospect that a trial jury's findings following trial will in some way be influenced by the grand jury's deliberations and ultimate findings. This jury was instructed time and time again from the beginning of the trial to the end that the indictment was not evidence, and Cohen concedes this. (See N. T. Post-Trial Arg. at 10.) The cautionary instructions given by the Court to the jury to disregard the indictment as evidence, and to consider only the evidence presented at trial, provide protection against the possibility that the trial jurors will give undue weight to the determinations of the grand jury. United States v. Pacente, 503 F.2d 543, 547-548 (7th Cir.), Cert. denied, 419 U.S. 1048, 95 S. Ct. 623, 42 L. Ed. 2d 642 (1974); See United States v. Homer, 545 F.2d 864, 868 (3d Cir. 1976), Cert. denied, 431 U.S. 954, 97 S. Ct. 2673, 53 L. Ed. 2d 270 (1977). Specifically, at the time during trial when the Yannessa grand jury testimony was about to be read and when Cohen made his motion for severance, the Court explicitly instructed the jury, at Cohen's request, that they should not consider that grand jury testimony in the case against defendant Cohen. (See N.T. Post-Trial Arg. at 8.) This Bruton argument was not made before trial, although it was perfectly plain by a reading of the indictment that proof of the perjury count would be advanced to the trial jury. Furthermore, the jury was admonished repeatedly that neither defendant had an obligation to testify on their own behalf and, if either defendant chose not to, that such election should not be considered adversely by the jury. Armed with all of the necessary elements, therefore, Cohen chose not to raise this argument until after the verdict was in, which this Court considers to be too late even if there were merit to the argument.
In addition to the reasons stated in our pretrial Memorandum and Order denying Cohen's motion for severance, United States v. Cohen, 444 F. Supp. 1314 (E.D.Pa.1978), we hold that severance was not warranted in this case because it is speculative to assume that the jury did not, or could not, follow the instructions of the Court.
Mid-Trial Dismissal of Juror
The recitation of facts presented at this time in this Opinion are derived by the Court from the Notes of Testimony of the Post-Trial Argument of April 27, 1978, at pages 14 to 41.
During the course of this trial, one of the jurors approached the Courtroom Deputy and stated that, because he worked for a construction company and believed that the "kickbacks" described in this case were widespread throughout the industry, he had already decided that Cohen and Yannessa were not guilty of a crime no matter what the law might be. When this statement was brought to the attention of counsel by the Court, it was agreed by all that, if the report from the Courtroom Deputy was correct, it furnished a basis for the juror's disqualification and removal. There then ensued a discussion between the Court and counsel of the various alternatives, after which it was agreed by the Court and all counsel that the Court would question juror number 5 the following morning, In camera, and if the Court determined that the juror's mind was made up and that the juror had not discussed his preconceived notions with anyone else, the juror would be advised by the Court that he was excused from further service and that from that instant on he would have no further contact with any of the other jurors. The Court advised counsel following this agreement on the afternoon of March 15, 1978, that they should think over the understanding and advise the Court if they had any objections to the agreed-to procedure the following morning. Cohen's counsel reported this agreement to his client that afternoon. The following morning, the Court, hearing no objection, asked the Courtroom Deputy to bring juror number 5 to the Court's chambers so that the Court could discuss, In camera, the question of the juror's preconceived notion of the case, as well as the extent to which he may have discussed this with others. The Court discussed this with the juror, In camera, and the juror confirmed that, because of his involvement in the construction industry, his mind was made up. He also advised the Court that he had not had any discussion with any other jurors. The Court advised the juror to remain in chambers and not return to the jury assembly room. The Court advised the Courtroom Deputy that, after the remainder of the jury was impaneled in the courtroom, the Deputy should escort juror number 5 from the Court's chambers in order to assure no further contact with the members of the jury still sitting. In keeping with the agreement, this was done, and when the trial resumed at noon that day, an alternate juror was, without further comment or explanation of any kind, directed to assume the seat of juror number 5.
There was no objection at that time nor other requests of any kind to the Court concerning this incident, until the issue was raised by Cohen in his post-trial motions. Cohen argues two points. The first is that he should have been present during the discussion concerning juror number 5 and, secondly, the matter should have been on the record. There are two instances involving this matter that could apply to Cohen's present position. The first was on the afternoon of March 15, 1978, when the Court met with counsel in the corridor outside the courtroom and reported to them what the Courtroom Deputy had relayed to the Court concerning juror number 5. The second instance would have been the following morning when the Court, in accordance with the agreement of counsel, discussed with juror number 5, In camera, the question concerning his statement to the Courtroom Deputy.
In regard to the first instance in the corridor, Cohen's counsel, together with other counsel, participated in that discussion without objection, without request that his client be present or without request that the Court Reporter take down everything that was said. Furthermore, Cohen's counsel, following the agreement as to how the matter should be handled, returned to the courtroom and discussed this with his client, following which there was neither objection nor request of any kind by his client for him to be a participant in the discussion nor that it be a matter of record. It should be noted also that the Court suggested that counsel consider the agreement over the evening recess and advise the Court the following morning, before the Court was to speak to juror number 5, if counsel had any further objections. No objections from either Cohen or his counsel or any other counsel were made. Under these circumstances, it seems perfectly plain that the defendant had an opportunity to be included in the discussions and to register any objection he may have had to the agreement or to request that any part of the episode be placed on the record. The second instance where the defendant may be said to have had a right to be present or to have something of record occurred the next morning when the Court, in keeping with the agreement, discussed with juror number 5 in chambers the question of that juror's partiality. It should be noted that Cohen concedes that the discussion was to be In camera and, for that reason, little more need be said as to the frivolity of his present contention that he should have been present, if In camera has any meaning at all.
Again, it should be noted that, following the In camera discussion and the release of juror number 5 by the Court by reason of the juror's partiality, the agreed-to procedure of replacing juror number 5 with an alternate was followed and this was in the record. Cohen had an opportunity at that time to make further objection or other request, yet he failed to do so.
Under all of the foregoing circumstances, it is incredulous that the defendant an experienced lawyer with the benefit of competent, experienced counsel and the benefit of full knowledge of what was transpiring, as well as opportunity to speak to the issue could through his counsel agree to a procedure and then, when that is followed, later complain that some other procedure should have been followed.
Cross-Examination of Baldino
Yannessa argues that the Court erred in refusing to permit extensive cross-examination of Baldino with respect to Baldino's federal income tax returns on the issue of the improbability of Baldino's financial capacity to make "kickback" payments to Yannessa. Specifically, Yannessa contends that the Court's limitation of his cross-examination of Baldino prevented Yannessa from demonstrating Baldino's lack of credibility, because the "kickbacks" which Baldino testified he gave to Yannessa exceeded Baldino's income as reported on his tax returns. The Government argues, in response, that the limitation of the cross-examination of Baldino was well within the Court's discretion, because the proposed line of questioning was premised upon unwarranted and speculative assumptions regarding Baldino's sources of income. Further, the Government argues that, despite Baldino's admission during cross-examination that the payments to Yannessa constituted a substantial financial drain on Baldino's income, the evidence presented at trial was sufficient for the jury to find that Baldino was financially capable of making the "kickbacks" to Yannessa.
It is well settled that the trial judge has wide discretion in determining the permissible scope of cross-examination of a witness. United States v. Dansker, 537 F.2d 40, 60 (3d Cir. 1976), Cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977). In this case, the Court limited Yannessa's attempt to cross-examine Baldino on the basis of his tax returns, because the offer of proof demonstrated that the issue was of such a complex nature that expert testimony, rather than the lay testimony of Baldino, was required to explicate the matter. In addition to the reasons stated on the record for limiting Yannessa's cross-examination of Baldino, we find that the Court did not err in limiting Yannessa's proposed cross-examination of Baldino because the proposed cross-examination improperly attempted an analysis of complex tax returns which were not personally prepared by the witness being cross-examined; I. e., Baldino. Further, the Court at sidebar ruled that Yannessa could offer the line of testimony in his own case by whatever witnesses he chose. We hold, therefore, that limitation of Yannessa's cross-examination of Baldino on this issue did not constitute reversible error.
For the reasons stated above, the Court finds that the trial errors alleged by Cohen and Yannessa are without merit. Accordingly, Cohen's and Yannessa's motions for a new trial pursuant to Fed.R.Crim.P. 33 will be denied.
MOTION IN ARREST OF JUDGMENT
In support of his motion in arrest of judgment pursuant to Fed.R.Crim.P. 34, Cohen argues that none of the 11 counts of the indictment upon which he was convicted charges an offense, but he does not tell us why.
As a result of reexamining the indictment, and the facts, dates and statutory citations stated therein, we find that each count of the indictment is sufficient as a matter of law to charge Cohen with the offenses for which he stands convicted. Accordingly, Cohen's motion in arrest of judgment will be denied.
An appropriate Order will be entered.