The opinion of the court was delivered by: ROBERT F. KELLY
On July 3, 1991, Defendant, Leonard Pelullo, was convicted of 49 counts of wire fraud and one count under the Racketeering Influenced and Corrupt Organization Act ("RICO"). On May 12, 1992, the Third Circuit Court of Appeals reversed Defendant's conviction on all counts except Count 54, which it affirmed, and remanded the case to this Court for re-trial. United States v. Pelullo, 964 F.2d 193 (3d Cir. 1992). On January 11, 1993 Defendant was retried on 48 wire fraud counts and one RICO count. After a three week trial, the jury convicted Defendant on all counts. The Third Circuit, on January 24, 1994 revrsed Defendant's second conviction. United States v. Pelullo 14 F.3d 881 (3d Cir. 1994). On October 3, 1994 Defendant was retried on the 48 wire fraud counts and one RICO count. The jury failed to reach a verdict, and on October 25, 1994, this Court declared a mistrial. A fourth trial began on January 9, 1995 and resulted in Defendant's being convicted of 46 counts of wire fraud and one count under RICO.
Before the Court are: Defendant's Motion for a New Trial Based on Newly Discovered Evidence of Juror Misconduct; Defendant's Motion Pursuant to 28 U.S.C. § 2255 to Set Aside the Conviction of Count 54 and Dismiss the Indictment; Defendant's Motion for Judgment of Acquittal or For a New Trial; Defendant's Motion for the Production of Rough Notes of All Interviews; Defendant's Motion for the Production of Rough Notes of the Interviews of Arthur and Peter Pelullo, Jr.; and Defendant's Motion to Supplement his Motion on Juror Misconduct. For the reasons that follow, Defendant's Motions will be denied.
I. DEFENDANT'S MOTION AS TO JUROR MISCONDUCT
On March 28, 1995, Defendant filed a Motion for a New Trial or an Evidentiary Hearing based on Newly Discovered Evidence of Juror Misconduct pursuant to Rule 33 of the Federal Rules of Criminal Procedure. In this Motion, Defendant contends that he is entitled to a new trial because Juror 229
did not truthfully answer questions posed by the Court during voir dire. In the alternative, Defendant requests that this Court convene a hearing at which the Juror would testify concerning these matters. According to Defendant, the Juror's alleged failure to truthfully respond during voir dire prejudiced his right to a fair and impartial jury.
In his Motion, Defendant claims to have learned after trial that the brother-in-law of Juror 229, who was ultimately seated on the jury, is James Cattalo, a former police officer for the City of Philadelphia who was convicted of racketeering charges in the "Five Squad" trial. During voir dire, the panel was asked the following questions, to which Juror 229 did not respond: "Is any juror related to or closely associated with anyone employed by any law enforcement agency, including the FBI, local police?"; "Has any juror ever been related to, associated or connected with anyone who was involved in the defense of a criminal case? Whether as a witness, party or as an attorney who defended the matter?"; "Has any juror, relative or close friend ever been charged with a crime in any court, state, local or federal?" "Now, as to this, if any of you feel that you would rather give that response to me in private, you may do so at sidebar, at the end of this voir dire. Okay, do you understand. The question was, has any juror ever been related to, associated with or connected with anyone or charged with a crime in any court, state, local or federal?" 01/09/95 N.T. at 49-53. Defendant argues that Juror 229 should have responded to these questions, and her failure to do so prejudiced him from exercising his peremptory challenges.
In order to succeed on a Rule 33 motion based on juror misconduct, a defendant must show 1) that the evidence is newly discovered, in other words, that it has been discovered since the end of the trial and 2) that the defendant's failure to discover this information during trial is not the result of a lack of diligence. United States v. Bolinger, 837 F.2d 436, 438-439 (11th Cir. 1988); United States v. Jones, 597 F.2d 485, 488 (5th Cir. 1979); United States v. McKinney, 952 F.2d 333 (9th Cir. 1991). "[A] defendant cannot learn of juror misconduct during the trial, gamble on a favorable verdict by remaining silent, and then complain in a post-verdict motion that the verdict was prejudicially influenced by that misconduct." United States v. Bolinger, 837 F.2d 436, 438-439 (11th Cir. 1988), quoting, United States v. Jones, 597 F.2d 485, 488 (5th Cir. 1979). This rationale is particularly pertinent to the matter at hand, as the Government has presented evidence contradicting Defendant's claim that this is newly discovered evidence.
There exists a great reluctance for courts to "haul jurors in after they have reached a verdict in order to probe for potential instances of bias misconduct or extraneous influences." United States v. Gilsenan, 949 F.2d 90, 97 (3d Cir. 1991), quoting, United States v. Ianniello, 866 F.2d 540, 543 (2d Cir. 1989). "Jurors who complete their service should rarely, if at all, be recalled for proceedings such as those appellants propose here. [Evidentiary hearing to determine if the jury considered a newspaper account of the case.] It is qualitatively a different thing to conduct a voir dire during an ongoing proceeding at which the jury is part of the adjudicative process than to recall a jury months or years later for that purpose." Gelsenan, 949 F.2d at 98.
Such caution is warranted because constant investigation into juror misconduct would "seriously disrupt the finality of the process" by encouraging the losing party to endlessly investigate every juror in the hope of finding some basis for disqualification, and thus a new trial. Tanner v. United States, 483 U.S. 107, 120, 97 L. Ed. 2d 90, 107 S. Ct. 2739 (1987). The Supreme Court recognized in Tanner that, while "postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior, it is not at all clear, however, that the jury system could survive such efforts to perfect it." Id.
While bringing a juror in to be questioned may be an easy course for a court to take when confronted with this situation, the above-cited cases make it clear that this is not the first avenue that should be taken. This is especially true when the Government possesses evidence that the claims are not newly discovered, as is true in the matter at hand.
Therefore, by Order dated April 11, 1995, this Court ordered Defendant to file further evidence to support his allegation that this was newly discovered evidence.
By Order dated May 12, 1995, this Court found that, based on Defendant's filings, he failed to establish that the evidence was discovered after the conclusion of his trial, and thus scheduled a hearing at which Defendant would be given the opportunity to establish that the evidence concerning Juror 229 was newly discovered. The hearing occurred on June 5, 6, and 15, 1995.
Defendant argues that the hearing ordered by the Court was improper because the defense does not have a duty of due diligence. 06/05/95 N.T. at 7-8. For some unknown reason, Defendant interpreted his duty of due diligence as requiring his counsel to "go out and conduct an investigation into the background of jurors." Id. The law is clear that to be successful on a motion such as that filed by Defendant, it must be established that the failure to discover the evidence at an earlier time must not be the result of a lack of diligence on the defendant's part. United States v. McKinney, 952 F.2d 333 (9th Cir. 1991); United States v. Bolinger, 837 F.2d 436, 438-439 (11th Cir. 1988); United States v. Jones, 597 F.2d 485, 488 (5th Cir. 1979). Moreover, the duty of due diligence does not require that a defendant or his counsel "conduct an investigation into the background of jurors"
, but rather it requires a defendant or his counsel to investigate any matters brought to their attention concerning a juror, or at the very least to inform the court when information concerning juror misconduct is learned. Id. ; United States v. Diaz-Albertini, 772 F.2d 654, 657 (10th Cir. 1985).
Furthermore, the hearing was held in order to give Defendant yet another opportunity to present evidence that the information concerning Juror 229 was indeed newly discovered evidence. 06/05/95 N.T. at 7-9. The only evidence previously presented to the Court pertaining to this matter were the affidavits of Mr. Phillips, which were vague and only stated the general conclusion that counsel for Defendant did not learn of this information during trial. This evidence was insufficient for this Court to find that this information was newly discovered. The affidavits neither revealed the source of knowledge concerning the claims about Juror 229, nor stated the factual circumstances under which the source learned of this information. Moreover, the affidavits did not disclose the manner in which the information was revealed to the "defense team." In fact, Defendant's Motion did not even contain an affidavit from the source of the information, Defendant himself, or his other attorney concerning how and when this knowledge about Juror 229 was obtained. As such, a hearing was necessary to allow Defendant to show that the evidence was newly discovered and that the "defense team" acted with due diligence.
Defendant's final argument against holding the hearing is that under 28 U.S.C. § 1865(b), a person may not serve as a juror if he/she has been convicted of a crime punishable by more than one year in prison. Defendant is of the belief that the Juror was convicted of such a crime, and therefore, the Juror was automatically disqualified from serving, thus entitling Defendant to a new trial. 06/15/95 N.T. at 92-97. However, the cases addressing 28 U.S.C. § 1865 hold that the granting of a new trial is not automatic, but that actual bias or prejudice be shown. Ford v. United States, 201 F.2d 300 (5th Cir. 1953); United States v. Humphreys, 982 F.2d 254, 260-62 (8th Cir. 1992); United States v. Boney, 298 U.S. App. D.C. 149, 977 F.2d 624 (D.C. Cir. 1992). Therefore, this Court rejects Defendant's argument with respect to § 1865(b).
In order to properly analyze and weigh the testimony concerning whether this was newly discovered evidence, the Court will first summarize the testimony presented by the defense, and then make its findings of fact.
1. The source of the knowledge concerning Juror 229 was Patricia Mitchell, an employee of Defendant's father's wholesale food store, Montco Cash and Carry.
Phillips Third Affidavit; 06/05/95 N.T. at 147-148. Ms. Mitchell has been employed at Montco Cash and Carry since November, 1994. Id. at 148. Montco Cash and Carry is a wholesale food store where local grocers purchase their groceries to sell in their stores. Id.
2. Ms. Mitchell testified that on the morning of Friday, February 3, 1995,
, she was standing in line at Montco Cash and Carry in order to cash her check. 06/05/95 N.T. at 156. While in line, Ms. Mitchell claims to have overheard a man named "Squiggles"
tell the cashiers that a girl whose sister had been murdered was on Defendant's jury. Id. Ms. Mitchell testified that Squiggles stated the juror's first name and also stated that this juror was the sister of Donna Willard. Id. at 158. At this point, Ms. Mitchell realized that the juror described by "Squiggles" was an acquaintance of hers, and that the juror had a brother-in-law, James Cattalo, who was convicted in the Five Squad trial. Id. at 158-159. This juror was Juror 229.
3. Ms. Mitchell testified that she was "curious as to how she [Juror 229] could be on a jury." Id. at 166. Ms. Mitchell got the idea from television shows that having a sister who was murdered and a convicted brother-in-law disqualifies a person from serving as a juror. Id. at 167. Ms. Mitchell testified that she did not inform anyone other than her husband of this information until sometime between mid-February and mid-March. Id. at 190-196.
4. Ms. Mitchell further testified that on Sunday evening, February 5, 1995, two days after allegedly overhearing Squiggles' conversation, she was going to visit her father who lives in Delaware County. Id. at 170-173, 181-182. As she was driving to her father's house her car happened to get stuck in the snow about one block from the Juror's house. Id. at 172-173. Because her car was stranded near the Juror's house, Ms. Mitchell went over to the Juror's house and visited with her. Id. at 174. Prior to this visit, Ms. Mitchell had not seen Juror 229 in the last six months to one year. Id. at 203.
5. Ms. Mitchell testified that Juror 229's husband and some neighborhood kids were also at Juror 229's house, along with a neighbor who stopped over for a short period of time. Id. at 179. Ms. Mitchell testified that she did not meet this neighbor. 06/06/95 N.T. at 87-88. However, Ms. Mitchell later testified that the Juror's husband was not present on that evening. 06/06/95 N.T. at 84-85.
6. According to Ms. Mitchell, during the conversation the Juror revealed that she had served on Defendant's jury. 06/05/95 N.T. at 175. Ms. Mitchell admits that she did not then inform the Juror that she worked for Defendant's father. Id. at 174-175. However, later in the conversation, Ms. Mitchell did disclose this fact. Id. Ms. Mitchell also informed the Juror that she saw the Juror entering the courthouse one day during the trial, and was therefore aware of the Juror's service on Defendant's jury prior to this visit. Id. at 175, 182-183. However, later in the conversation, Ms. Mitchell changed her story and informed the Juror that she did not see the Juror at the courthouse, but rather learned about her jury service from James Grimes. Id. at 182-183. Ms. Mitchell explained that she initially lied to the Juror because she did not want to cause any friction between the Juror and Mr. Grimes. Id.
7. Ms. Mitchell also asked the Juror how she could serve on a jury given her family's involvement with the criminal system in the forms of Donna Willard and James Cattalo. Id. at 174-178. According to Ms. Mitchell, the Juror informed her that she wanted to be on the jury because "federal juries paid good." Id. at 213. Ms. Mitchell also testified that Juror 229 told her during the conversation that she smoked a joint before trial every day. Id. at 187-188. As to Ms. Mitchell's drug use, she claims that she does not use drugs. Id. at 160.
8. Ms. Mitchell further testified that she was at the Juror's house on one occasion subsequent to her February 5th visit. Id. at 202-203. According to Ms. Mitchell, about one month after the trial concluded she stopped by the Juror's house, but no one was home. Id. at 202. Ms. Mitchell testified that she left a note on the Juror's door that read as follows: "[The Juror's First Name]: It's important. Call me. Lorraine's friend, Patty", along with a telephone number. Id. at 202-203, 214. Ms. Mitchell claims that she left the note because an individual in her neighborhood was starting a new job and needed a baby sitter. Id. at 214. Ms. Mitchell thought that the Juror would be interested in taking care of her friend's child. Id.
10. However, Ms. Mitchell also testified that in February she informed Defendant's father that she knew the Juror. Id. at 193. According to Ms. Mitchell, Peter Pelullo, Sr. instructed her to call Mr. Eggleston with this information. Id.
11. Ms. Mitchell also testified that in her phone call to Mr. Eggleston, she only revealed to him that she knew the Juror, that the Juror's sister was murdered and that the Juror smoked pot. Id. at 205-206. Ms. Mitchell claims that she did not reveal to Mr. Eggleston the Juror's relationship to James Cattalo on this occasion. Id. at 206, 215.
12. Ms. Mitchell further testified that she attempted to contact Mr. Eggleston again in early March, but was unsuccessful in doing so because he was on vacation. Id. at 215-216. Subsequent to Mr. Eggleston's return from vacation, Ms. Mitchell testified that she spoke with Mr. Eggleston in person at the office of Peter Pelullo, Sr. in mid-March and informed him for the first time about Juror 229's relationship to James Cattalo. Id. at 216-217.
13. Peter Pelullo, Sr. is Defendant's father. 06/06/95 at 55. Peter Pelullo, Sr. was called to testify by the defense at the hearing. Id. Peter Pelullo, Sr. testified that Ms. Mitchell informed him in the middle of February that she knew the Juror, and that Squiggles' Deli was located in the same neighborhood in which the Juror lived. Id. at 56-57. According to Peter Pelullo, Sr., this was the extent of the information that Ms. Mitchell revealed at that time. Id. at 67.
14. Peter Pelullo, Sr. also testified that, near the end of February, he had a conversation with Mr. Grimes at Montco Cash and Carry pertaining to the Juror. Id. Peter Pelullo, Sr. testified that he asked Mr. Grimes if he knew the Juror, and that Mr. Grimes stated that he did know the Juror. Id. at 58. Peter Pelullo, Sr. claims that Mr. Grimes then told him that "she should not have been on that jury." Id. Peter Pelullo, Sr. also testified that Mr. Grimes informed him that the Juror was a drug addict. Id.
15. Peter Pelullo, Sr. testified that he called Mr. Eggleston and relayed the information that was provided by Mr. Grimes. Id. at 58-59. When asked whether the name James Cattalo was raised during this conversation, Peter Pelullo, Sr. testified that Cattalo's name was not mentioned in his conversation with Mr. Grimes. Id. Peter Pelullo, Sr. testified that the first time he heard about James Cattalo's connection to the Juror was when Mr. Eggleston called for Ms. Mitchell near the end of March. Id. at 59.
16. Peter Pelullo, Sr. further testified that he received a visit from Mr. Grimes in April because Mr. Grimes was upset that he was served with a subpoena to appear before a grand jury about this matter. Id. at 63-64. A motion to quash the subpoena was later filed by one of Defendant's attorneys. Id. at 75-79.
17. At the hearing, Neil Eggleston testified for the defense. 06/05/95 N.T. at 76. Mr. Eggleston served as co-counsel to Defendant during the third and fourth trials of this matter. Id. at 76. On direct examination, Mr. Eggleston testified in a conclusory fashion that, during the trial, he did not have any information that Juror 229 was related to an individual who was convicted of a crime. Id. at 76-77.
19. Mr. Eggleston further testified that on March 7, 1995, he spoke with Ms. Mitchell at the office of Defendant's brother, Peter Pelullo, Jr. Id. at 85-87. Mr. Eggleston testified that on this occasion he learned for the first time that Ms. Mitchell knew the Juror. Id. at 85-91. Mr. Eggleston testified that the Juror's relation to James Cattalo was not raised at this meeting. Id. at 88-89. Mr. Eggleston further testified that he may have, but does not know whether he spoke with Ms. Mitchell prior to this meeting. Id. at 86-91.
20. Mr. Eggleston also testified that on March 23, 1995, he met with Ms. Mitchell for a second time, but that this second meeting occurred at the offices of Defendant's father, Peter Pelullo, Sr. Id. at 85. According to Mr. Eggleston, it was at this meeting that he learned for the first time that the Juror was related to James Cattalo. Id. at 84-85, 88-89.
21. As a result of this conversation with Ms. Mitchell, Mr. Eggleston asked her to go to the library to get some of the articles pertaining to the Five Squad trial. 06/06/95 N.T. at 89-90. Mr. Eggleston testified that he received a fax of the articles that he requested on March 25, 1995. Id. at 90; Defense Exhibit 1.
22. Walter Phillips also testified for Defendant. 06/05/95 at 10. Mr. Phillips served as co-counsel for Defendant in this trial. Id. at 10-11. On direct examination, Mr. Phillips testified, in conclusory fashion, that he did not have any knowledge during trial that the Juror had not been truthful in answering questions during voir dire. Id.
23. On cross-examination, Mr. Phillips testified that he filed a motion to quash Mr. Grimes' subpoena to appear before the grand jury. 06/15/95 N.T. at 73. According to Mr. Phillips, after the motion was denied, he had a conversation with someone at Peter Pelullo, Sr.'s office and instructed them to inform Mr. Grimes that he had to appear in front of the grand jury the following day. 06/15/95 N.T. at 74-78. He believes the individual he spoke with was Ms. Mitchell. Id.
24. On April 24, 1995, Ms. Mitchell visited Mr. Grimes at his store. 06/05/95 N.T. at 162-166. Ms. Mitchell testified that she stopped by to make sure that Mr. Grimes was not going to lie in front of the grand jury, because she claims that, based on rumors she has heard in the neighborhood, he is a liar. Id. at 163-164. However, Ms. Mitchell claims that she did not have a conversation with Mr. Grimes on this occasion because the store was crowded when she arrived. Id. at 164-166.
25. Defendant also testified at the hearing. 06/05/95 at 39. Similar to his counsel's testimony, he testified on direct examination that he did not have any knowledge during trial that the Juror had not been truthful in answering questions during voir dire. Id. at 40.
26. On cross-examination, Defendant was questioned as to whether he instructed his girlfriend, Lynn Merritt, to order the transcript of the trial. Id. at 45, 48. Defendant was also questioned as to whether he instructed her to order the voir dire on an expedited basis. Id. Defendant responded as follows: "I might have done that. I'm not saying I didn't. I just don't remember. I could have done it." Id. at 49.
27. Defendant also testified that he learned for the first time in March that an employee of his father knew the Juror. Id. at 64. Defendant testified that he learned this information from his father. Id. at 65, 69. Defendant testified that he told his father to inform his attorneys of this, but "keep me out of it". Id. at 70-72. Upon further questioning, Defendant testified that his father also informed him at that time that the Juror was a "heavy-duty drug user". Id. at 73.
28. On July 27, 1995, Defendant submitted an affidavit of Lynn Merritt. Merritt Affidavit. In her Affidavit, Ms. Merritt claims that, subsequent to the trial, Mr. Eggleston instructed her to order a copy of the argument that occurred prior to the voir dire on January 9, 1995. Id. at P 5. Ms. Merritt states that "I know that I did not specifically request 'just the voir dire'" from the transcription service. Id. Ms. Merritt further stated that she recalled that "jury selection was not completed by the end of the first day and that a certain amount of time was devoted on January 10, 1995 to complete the selection of a jury. Neither Mr. Pelullo, Mr. Eggleston nor anyone else connected with the defense team requested that I order the transcript of January 10, 1995 concerning jury selection that day, and I did not order it." Id.
Based on all of the material submitted to this Court, the arguments made by both parties, and the testimony presented by both parties, this Court makes the following Findings of Fact:
1. The voir dire in this matter began on January 9, 1995. 01/09/95 N.T. at 41. The questioning of the jury panel concluded on January 9, 1995, and the only matter remaining for January 10, 1995 was for counsel to exercise their peremptory challenges. 01/09/95 N.T. at 161.
2. During the voir dire, Juror 229 disclosed that her sister had been murdered in 1990. 01/09/95 N.T. at 56-57. The Juror indicated that neither this, nor anything else would affect her ability to be a fair and impartial juror. Id. at 56-57, 74-75. Follow-up questioning of Juror 229 was not requested by either party.
3. On January 10, 1995, Juror 229 was seated as an alternate juror. On January 11, 1995, Juror 229 was seated as a petit juror. 01/11/95 at 2-16.
4. On January 18, 1995, this Court disclosed in open court that it learned that Juror 229 was the sister of Donna Willard, the victim of a locally well-known murder.
01/18/95 N.T. at 2-3. This Court held a conference with the parties. Id. Neither party objected to her continuing to serve as a juror, nor did either party request that she be questioned about this matter. Id.
5. Defendant was convicted on January 27, 1995. 01/27/95 N.T.
6. Defendant filed the instant Motion on March 28, 1995. Defendant's Motion failed to inform the Court as to how or when Defendant or his attorneys became aware of the allegations pertaining to the Juror. Moreover, the Motion failed to identify the source of the information. Therefore, by Order dated April 11, 1995, this Court ordered Defendant to file further evidence in support of his allegation that the information pertaining to Juror 229 was discovered after the trial. Between March 30, 1995 and April 21, 1995, Mr. Phillips filed four affidavits. Each affidavit was vague and revealed little information to aid this Court in reaching a decision on this matter.
7. By Order dated May 12, 1995, this Court found Defendant's Motion and supporting material insufficient to establish that the information concerning the Juror was newly discovered. Therefore, this Court scheduled a hearing wherein Defendant would be given the opportunity to show the Court that this was newly discovered evidence.
8. This Court heard testimony on this Motion on June 5, 6, and 15, 1995.
1. The Meeting With "Squiggles"
9. James Grimes testified at the hearing. 06/05/95 N.T. at 219. Mr. Grimes is the proprietor of Squiggles' Deli, which is located in southwest Philadelphia. 06/05/95 N.T. at 219-220. Squiggles' Deli is located in the same neighborhood in which Juror 229 lives. Id. at 219-220, 223. Mr. Grimes testified that he went to Montco Cash and Carry several times per week to purchase groceries for his deli. Id. at 219, 241. Mr. Grimes is the individual that Ms. Mitchell knew as "Squiggles", and from whom she claims ...