On Appeal from the United States District Court for the Western District of Pennsylvania, Criminal Action No. 87-228, Rule 33.
Sloviter, Greenberg and Seitz, Circuit Judges.
GREENBERG, Circuit Judge.
The United States, pursuant to 18 U.S.C. § 3731, appeals from an order of May 31, 1989, granting appellee, Donna C. Tozzi, a new trial following her conviction under 18 U.S.C. § 371, for conspiring to defraud the United States of income tax due and owing.
The circumstances leading to this appeal are as follows. An indictment was returned in the Western District of Pennsylvania charging Tozzi, and certain other defendants, with tax offenses relating to the affairs of Acme Music Company, which owned coin operated vending machines generating substantial sums of cash. The prime operator of Acme was, at least for some time, Robert Thomas Skelton, who was also indicted but who, according to the briefs, is a fugitive and has not been apprehended.*fn1 For some period, Tozzi was involved in the operation of the business, signing checks, handling cash, ordering parts, and signing employee withholding forms. There can be no doubt but that Acme did not file tax returns reflecting substantial sums of income.
Tozzi was tried twice. At the first trial, she was tried with a co-defendant, Alan Frank, who was convicted on two counts and acquitted on one. The jury, however, was unable to reach a verdict in her case and thus there was a mistrial as to her. At the second trial, at which she was the only defendant, the jury was given the case on October 5, 1988, after summations and the charge. On October 6, 1988, the jury advised the court that it was unable to reach a verdict, but it nevertheless continued to deliberate and, on October 7, 1988, it found Tozzi guilty.
On November 18, 1988, at the scheduled sentencing, Tozzi's attorney told the court that the previous day he had indirectly learned from an alternate juror that one of the jurors who actually deliberated had prejudicial information regarding Tozzi, which had not been revealed in the voir dire. In particular the attorney indicated that the alternate juror, Robert Gneuhs, had a few days earlier contacted John A. Koval, Sr., an employee of Acme who was a defendant named in the indictment, and had given Koval the information about the other juror. Koval, who had earlier pleaded nolo contendere and received a noncustodial sentence, testified at Tozzi's trial. Koval passed Gneuhs's information on to Tozzi's attorney. The court responded that to obtain relief Tozzi's attorney would have to file affidavits and it authorized him to obtain an affidavit from Gneuhs. The court said that, if necessary, a hearing would be held. The Assistant United States Attorney agreed with this procedure and consequently the sentencing was postponed.
On November 29, 1988, Tozzi filed a motion for a new trial, reciting that Gneuhs had, after Tozzi's trial, disclosed to Koval, who was "an acquaintance of Mr. Gneuhs," the information described in an affidavit of Gneuhs annexed to the motion. She further set forth that on November 17, 1988, her attorney met with Gneuhs and questioned him and then brought the matter to the attention of the court the next day at the sentencing hearing. According to Gneuhs's affidavit, Homer Farabaugh, a juror in the case, advised Gneuhs at the trial that he knew that Tozzi had been "booking" on the avenue at the age of 14, an activity which Gneuhs understood to involve illegal gambling. Gneuhs further recited that during the third day of the trial Farabaugh advised him that Tozzi was guilty and was not a naive person. Gneuhs stated that Farabaugh had "a distinct bias" against Tozzi. Gneuhs also indicated that he disclosed this information to Koval on November 15, 1988, and to Tozzi's attorney on November 28, 1988. It appears, therefore, that there is some confusion as to when Tozzi's attorney met with Gneuhs, as the motion recited it was on November 17, 1988.
On December 27, 1988, a status conference was held on the motion. At that time, the court indicated that approximately two weeks earlier it received a call concerning whether an Internal Revenue Service representative could question Farabaugh and take a statement from him. The court had denied that request, as it considered that the best approach would be to permit only the attorneys to question the juror. The Assistant United States Attorney then indicated that there had been a misunderstanding, as Special Agent Robert Clark of the Internal Revenue Service had already interviewed Farabaugh. The court indicated that it had not wanted that to happen and directed that Tozzi's attorney be given a written summary of the interview. The summary was then produced and it reflected Farabaugh's statement that he had not known the individuals associated with the trial, including Tozzi, and that he had not advised Gneuhs during the third day of the trial that Tozzi was guilty. He did confirm that he had spoken during the trial with Gneuhs who told him that he knew some of the witnesses and he advised Gneuhs to tell the bailiff or the judge about that.
On January 13, 1989, there was a hearing at which several witnesses testified. Gneuhs testified that he was an independent contractor. He said he had known Koval and also indicated that he knew of Skelton and "I believe I had the acquaintance with a group of people to meet with him, yes." He said he had once been called to the Acme building but had not gone there. He did, however, describe dealings he had had with Koval and Acme, and indicated that he had telephoned Acme "over the years," and over the last two years had sought donations from Acme for a women's softball team.
Gneuhs said that it "appeared very clear to me by the third day of the trial, that Mr. Farabaugh was very biased and could hardly seem objective in his decision. He [Farabaugh] indicated that Donna Tozzi was not a naive type person, that she was very street wise, and personally he had indicated to me, and I do not believe that anybody else overheard it, but that he knew of her booking on the avenue when she was younger." Gneuhs also testified that both he and Farabaugh "knew of Acme Music" and that Farabaugh "had some type of contact or personal regrets with them because of some dealings in the past. I don't know whether it was against Donna [Tozzi] or whether it was against Tom Skelton or whether it was against somebody collecting for Acme Music."
Gneuhs reiterated that Farabaugh mentioned Tozzi's bookmaking activities during the third day of the trial and that Farabaugh, in Gneuhs's "personal opinion . . . had been rubbed wrong in the past and he could not be objective in his decision." Gneuhs said that even before the jury retired Farabaugh said that Tozzi was guilty and repeated that "she was not a naive person, that she was very street wise and she knew that -- what was going on."
Gneuhs also explained how he had come to reveal his information. He indicated that the day after he was relieved of jury duty he was at a junk yard getting parts for his car where he told Madeline Stevens, the wife of the owner, that he had been on the jury. He described the jury to Stevens and said that one juror had been biased. It appears that this conversation occurred while the trial was still in ...