On Appeal from the United States District Court for the District of New Jersey; D.C. Crim. Nos. 88-144-01/02.
Stapleton, Greenberg, and Aldisert, Circuit Judges. Stapleton, Circuit Judge Dissenting.
This criminal case is before this court on appeal from an order entered on February 21, 1991, denying new trials. In 1988 the appellants Ralph Cicalese and Thomas Gilsenan, law enforcement officers employed by the prosecutor of Essex County, New Jersey, were charged in a 41-count indictment with numerous offenses including ones arising under the Racketeer Influenced and Corrupt Organization Act (RICO) and the Hobbs Act arising from narcotics corruption. The appellants pleaded not guilty and a jury trial was to begin on October 3, 1989.
However, by October 2, 1989, the appellants and the government reached a tentative plea agreement on which a hearing was scheduled on that day. The appellants requested that these proceedings be held in camera as they were concerned that the plea agreement might be rejected and that the resulting publicity could prejudice them in jury selection. The district court denied the motion and the plea agreement was then recited in open court. The agreement provided that the appellants would plead guilty to a one-count information charging them with conspiracy to violate the Hobbs Act but that neither would be incarcerated. Instead, each would be placed on probation for five years and would agree not to seek reinstatement of his employment with the Essex County Prosecutor. Inasmuch as the agreement provided for a specific sentence, it was subject to district court approval pursuant to Fed. R. Crim. P. 11(e)(1)(c) and Fed. R. Crim. P. 11(e)(2).
After the terms of the agreement were stated, the court asked why a noncustodial disposition was appropriate. The assistant United States attorney explained that the plea would demonstrate the appellants' guilt and would remove them as law enforcement officers, results more significant than the imposition of punishment. The government then acknowledged that its case was difficult "in terms of proof." Ultimately the district court rejected the agreement as it regarded the proposed punishment as insufficient.
As the appellants contemplated, there was considerable publicity regarding the plea agreement. The Star-Ledger, said to be the New Jersey newspaper with the greatest circulation, ran an article on October 3, 1989, indicating that the district court rejected the agreement declaring it would not violate its principles and roll over and play dead. The article said that the authorities tried "to quietly dispose of a much-heralded police drug corruption case by offering guarantees of freedom to two accused lawmen in exchange for their guilty pleas." It further recited that the court noted that the government lacked confidence in its case and that one of the defense attorneys said the case was an "institutional embarrassment" and that the government "had proposed the plea deal in a desperate effort to save face." The article then quoted the appellants' attack on the government's case and indicated that they insisted they were innocent. The article referred to the plea as a "surprise government proposal" and stated that the appellants' attorneys said they only "agreed to consider the proposal" because it was an "irresistible temptation" to do so as the appellants were facing 50-year terms regardless of whether or not they were innocent. Remarkably, the article never said that the appellants agreed to accept the proposal, though that inference can be drawn from it.
On October 4, 1989, there was a similar article in the Star-Ledger. The article stated once again that the "federal authorities had attempted to quietly dispose of the case by offering to guarantee the defendants probation in exchange for guilty pleas, but the deal was angrily rejected by" the district court. The thrust of this article, as had been that of the day earlier, was that the government's case was weak and the appellants were maintaining their innocence.
There was other publicity regarding the proposed agreement. The Associated Press distributed an article, which was apparently run in at least one newspaper on October 3, 1989, along the same lines as that in the Star-Ledger. It referred to the government having made a "plea proposal" and said that the assistant United States attorney "conceded that the case was a tough one for the government." It also appears that there was television coverage of the plea proceedings but the record does not reveal its content.
The jury was selected on October 3, 1989, a process that seems to have caused the court no particular difficulty. Some jurors who had read about the plea agreement were excused and ultimately 16 jurors, including Patricia Spraguer, were selected. Spraguer, however, was excused after several weeks of service during the trial. As might be expected, the court instructed the jury not to read or listen to anything about the case other than what was presented in court. The trial was lengthy as evidence was given on 24 days over a six-week period. On December 8, 1989, after a week of deliberations, the jury convicted Gilsenan on 13 counts and acquitted him on 11, and convicted Cicalese on 15 counts and acquitted him on six.*fn1 Following the denial of motions for a new trial and the imposition of long terms of incarceration, the appellants filed direct appeals but we affirmed their convictions by judgment orders without opinion.
The appeals now before us were directly triggered by a letter dated November 7, 1990, from Richard A. Rosen, a professor of law at the University of North Carolina, to Cicalese's attorney, enclosing an affidavit of Patricia Spraguer dated November 6, 1990. In her affidavit Spraguer explained that she was then a law student at the University of North Carolina and in the course of a criminal law class realized "that something that happened during the trial may be a significant error."*fn2 She said that on what she remembered as the second day of the trial several members of the jury were aware that there had been a plea offer the night before and that this development was discussed in the jury room. She said that someone said "they had offered to settle, but the judge said no because no time would be served." She then said that the matter had been on television and she believed that several jurors may have seen the report on television or read about it in the newspaper. She attributed the words regarding the settlement offer to a juror named "George." She also indicated that when the jury was asked by the court that day or the next whether it knew anything that would affect its opinion she said nothing because she honestly felt that what she had heard would not affect her decision.
Armed with Spraguer's affidavit, Cicalese and Gilsenan moved directly for new trials pursuant to Fed. R. Crim. P. 33 and, alternatively, asked for a hearing on the application in the expectation that they could develop evidence which would be the basis for a new trial. In addition to supplying Rosen's letter and Spraguer's affidavit, Cicalese's attorney filed an affidavit indicating that Rosen had brought the jury matter to his attention by a telephone call to him on October 25, 1990. He said that he discussed the matter with Gilsenan's trial attorney and they asked Rosen to prepare the affidavit.*fn3 He also indicated that they were able to verify the affidavit to the extent of determining that there had been a juror named "George" on the jury. Cicalese's attorney attached the Star-Ledger articles to his motion.
The district court denied the motions for a new trial on February 11, 1991, in an opinion from the bench. The court pointed out that Spraguer's affidavit was vague and in some respects was inaccurate. The court then indicated that on October 3, 1989, because of the initial Star-Ledger article, it asked the jury array whether anyone had heard or read about the case. Six persons responded affirmatively but two were not excused as they were "utterly vague" about what they heard or read though the other four were excused. After lunch the jurors were again asked whether they had read about the case and none responded. The jurors were qualified in groups and as the members of each group were asked if there was any reason they could not be fair there was no response.*fn4 The jurors were instructed not to read about the case or listen to radio or watch television accounts regarding it.
In its opinion the court then said that notwithstanding the inconsistent and inaccurate statements in Spraguer's affidavit it would view the matter from "the most ...