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United States v. Fumo

July 9, 2009


The opinion of the court was delivered by: Buckwalter, S.J.


Defendant Vincent J. Fumo has filed a second Motion for New Trial based on newly discovered evidence that, during the course of his trial, jurors were allegedly exposed to highly prejudicial extraneous information regarding the case. For the reasons which follow, the Court denies the Motion.*fn1


As described in an Affidavit submitted by Fumo's trial counsel, Dennis Cogan, Esq., journalist Ralph Cipriano contacted Cogan regarding information he obtained during post-verdict interviews with several jurors. In these interviews, Cipriano purportedly learned of several extra-judicial influences upon the jury. First, by the morning of Monday, March 16, 2009 -- the day the verdict was delivered -- all of the jurors allegedly heard media reports describing both juror Eric Wuest's improper use of social networking sites during trial and the fact that he was being questioned by the Court. Second, one of the jurors indicated that, while at her workplace on a Friday during trial, several co-workers informed her of Fumo's prior prosecution and the conviction and imprisonment of John Carter, former president of the Independence Seaport Museum. In light of this newly-discovered information, Defendant Fumo seeks both an evidentiary hearing on the juror exposure to extraneous information and, in turn, a new trial.

By way of its Response, the Government contends that although Cipriano, a free-lance journalist, contacted defense attorney Cogan, he never attempted to contact Government counsel to relate his conversations with jurors regarding this outside information. When Government counsel first learned of this information upon receipt of Defendant's Motion on July 2, 2009, they telephoned Cipriano, who refused to discuss his contacts with jurors unless authorized by the editor of Philadelphia Magazine, in which Cipriano's article would be published.*fn2 Following an unsuccessful attempt to reach the editor of Philadelphia Magazine, Government counsel received a phone call from the magazine's counsel, who stated that Cipriano would not answer questions about the information learned in the article's preparation. In a subsequent telephone conversation between Cogan and Government counsel, Cogan stated that he had not sought Court permission to contact any jurors directly, but rather was relying solely on Cipriano's representations regarding juror statements. Cogan also indicated that he met with Cipriano and confirmed that Cipriano had met with several jurors after the trial. Finally, Cogan provided the name of the juror who allegedly learned information in her workplace.


Federal Rule of Civil Procedure 33(b)(1) permits a criminal defendant to file a motion for new trial based on "newly discovered evidence." To grant a Rule 33 motion on the basis of newly discovered evidence, five requirements must be met: (1) the evidence must be in fact newly discovered, i.e., discovered since trial; (2) facts must be alleged from which the court may infer diligence on the part of the movant; (3) the evidence relied on must not be merely cumulative or impeaching; (4) it must be material to the issues involved; and (5) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal. United States v. Saada, 212 F.3d 210, 216 (3d Cir. 2000) (citing Govt. of the Virgin Islands v. Lima, 774 F.2d 1245, 1250 (3d Cir. 1985) (further citation omitted)). "The movant must meet all five of these requirements for the court to grant the motion for a new trial." United States v. Quiles, Crim A. No. 07-391, 2009 WL 466283, at *2 (E.D. Pa. Feb. 24, 2009). Furthermore, "[t]he movant has a 'heavy burden' in meeting these requirements." Saada, 212 F.3d at 216 (citing United States v. Ashfield, 735 F.2d 101, 112 (3d Cir. 1984)).


The primary issue before the Court is whether a hearing is appropriate to interrogate jurors and determine the extent to which the jurors were exposed to extraneous information during the course of trial. The subject of a Court's post-verdict inquiry into claims of juror misconduct or extra-judicial influence is governed by the careful balance of two competing policies. On the one hand, "when jurors are influenced by the media and other publicity, or when they engage in communications with third parties, these extra-record influences pose a substantial threat to the fairness of the criminal proceeding because the extraneous information completely evades the safeguards of the judicial process." United States v. Resko, 3 F.3d 684, 690 (3d Cir. 1993). On the other hand:

[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference.

McDonald v. Pless, 238 U.S. 264, 267-68 (1915) (emphasis added); see also FED. R. EVID. 606, advisory committee note (1972).

Federal Rule of Evidence 606 "offers an accommodation between these competing considerations." FED. R. EVID. 606, advisory committee note (1972). Rule 606(b) states:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

Id. Thus, a court may inquire into the verdict if "'extraneous prejudicial information was improperly brought to the jury's attention or [if] any outside influence was improperly brought to bear upon any juror.'" Wilson v. Vermont Castings, Inc., 170 F.3d 391, 394 (3d Cir. 1999) (quoting FED. R. EVID. 606(b)). However, "the court may only inquire into the existence of extraneous information," and not "into the subjective effect of such information on the particular jurors." Id.

Notwithstanding the ability of a court to voir dire jurors at its discretion, the Third Circuit has established a general reluctance to conducting post-verdict hearings to interrogate jurors regarding outside influences, absent a compelling showing of need or presumptive prejudice. In United States v. Gilsenan, 949 F.2d 90 (3d Cir. 1991), the Third Circuit examined the propriety of holding a post-verdict examination regarding juror misconduct where a juror, who had been excused from service after several weeks of trial, sent in an affidavit following the trial's conclusion concerning events occurring on the second day of trial. Id. at 93. Specifically, she recalled the jury discussing a highly publicized failed plea deal, wherein the parties had reached a tentative agreement, but the district court rejected the deal because the defendants would not have served any time. Id. The former juror indicated that although the jury was not supposed to have heard this information, several of the jurors may have seen a report about it either on television or in the newspaper. Id. Armed with this affidavit, defendants moved for a new trial. Id. The trial court ruled that the defendants were not entitled to a hearing or a new trial because the information did not prejudice them and did not even have the potential for prejudice. Id. at 94. Moreover, it found that even had there been prejudice, it was "clearly dissipated" as there was no allegation that the jurors discussed it after the time mentioned in the juror's affidavit. Id.

On appeal, the Third Circuit considered, in part, defendants' argument that the district court abused its discretion in refusing to conduct an evidentiary hearing to determine the precise, nature, quality, and extent of the jury breach. Distinguishing several Third Circuit cases in which the court found abuse of discretion in failure to conduct a hearing, the court noted that these cases dealt with information coming to light during trial regarding juror exposure to extraneous information. Id. at 96-97 (citing United States ex rel. Greene v. New Jersey, 519 F.2d 1356 (3d Cir. 1975); Govt. of the Virgin Islands v. Dowling, 814 F.2d 134, 139 (3d Cir. 1987)). The court cautioned that although judges are sometimes tempted to order hearings "to put matters to rest even if not strictly required" in a simple effort to ensure fairness, there are often "compelling reasons not to hold a hearing involving the recalling of discharged jurors." Id. at 97. Quoting the Second Circuit, the court noted:

We are always reluctant to "haul jurors in after they have reached a verdict in order to probe for potential instances of bias, misconduct or extraneous influences." As we have said before post-verdict inquiries may lead to evil consequences: subjecting juries to harassment, inhibiting juryroom deliberation, burdening courts with meritless applications, increasing temptation for jury tampering and creating uncertainty in jury verdicts.

Id. (quoting United States v. Ianniello, 866 F.2d 540, 543 (2d Cir. 1989) (citations omitted)). Recognizing that jurors may often be the subject of post-verdict intimidation, the Third Circuit went on to comment that, "[j]urors who complete their service should rarely, if at all, be recalled for proceedings such as those appellants propose here. 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 ...

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