The opinion of the court was delivered by: TEITELBAUM
I. Subsequent to his conviction on three counts of making false declarations in a proceeding ancillary to a court of the United States in violation of 18 U.S.C. § 1623, defendant filed a host of motions and served a number of subpoenas duces tecum. The Court ruled on these matters prior to sentencing of defendant on October 12, 1984. The purpose of this memorandum opinion is to provide the grounds on which the Court relied in making those rulings.
II. Motion for an Evidentiary Hearing
Defendant presented two grounds in support of this motion:
First, defendant alleged that during trial Assistant United States Attorney James Y. Garrett, who represented the United States at trial, sought the admission into evidence of all three volumes of deposition testimony of the defendant in Jonnet Development Corp. v. Caliguiri, et al., 558 F. Supp. 962 (1983). The Court deferred ruling on whether the jurors should have the complete deposition until the close of trial. Immediately after the jurors left the courtroom to begin deliberating, but before any exhibits had been delivered to them, the Court ruled that only certain excerpts from the deposition would be made available to the jurors.
According to the defendant, the exhibits shortly thereafter were delivered to the jurors by Richard Grainer, Administrative Aide. The three complete volumes of deposition testimony were not included among those items. Approximately one and one-half hours later, however, Mr. Grainer allegedly delivered all three volumes to the jurors without any request by the jury or notice to counsel.
Defendant claimed that the three volumes contained highly prejudicial material. One of the passages (which was not among these excerpted portions given to the jurors) contained an allegedly crucial typographical error. It incorrectly stated that the defendant had typed out the agreement of July 1, 1980 between Jonnet Development Corp. and Conrail. According to defendant, this particular passage was a "major factor" in the jurors convicting him.
As a second ground in support of his motion for an evidentiary hearing, defendant alleged that Bonita Lundquist, a juror, was incompetent to serve as a juror because of a hearing impairment.
Defendant's motion for an evidentiary hearing was granted. Two jurors testified as to the delivery by Richard Grainer to the jury room of the three complete volumes of deposition testimony. They further testified that they had not, however, read the three volumes of the deposition and knew of no other juror who did so. An alternate juror, Angeline Chieffo, testified that Bonita Lundquist had difficulty hearing normal conversation outside the courtroom. Finally, Richard Grainer testified that he had no recollection of delivering all three volumes of the deposition and indicated that it was not his customary practice to deliver additional exhibits at a later time.
The two jurors who testified as to the delivery of all three volumes of the deposition were not permitted, however, to testify as to whether the contents of those volumes in any way affected their verdict. Although jurors may testify as to the presence of so-called "extraneous" material in the jury room they may not testify as to its effect on their deliberations. Fed.R.Evid. 606(b); also Government of Virgin Islands v. Gereau, 523 F.2d 140, 148-149 (3d Cir. 1975).
III. Motion for a New Trial.
Defendant alleged that he was entitled to a new trial for a variety of reasons.
First, defendant argued that he was deprived of a fair trial because the jury was "swayed" by "highly prejudicial" material contained in the three ...