Petition — Easton v. United States

Supreme Court brief1978

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( Supreme Court, U. S

FILED

| APR 26 I978

BAIA cso meer «s

hiCh L RODAK JR., CLERK

_————

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 2771539

SrepHen K. Easton,

Petitioner,

Unrrep States or AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

AsHer B. Lans,

Attorney for Petitioner

555 Madison Avenue

New York, N. Y. 10022

Rosert SterHan CoHEN

Desoran E, Lans

Epear J. Royce

Lans Ferypers & CoHEN

Of Counsel

April 26, 1978

See

TABLE OF CONTENTS

PAGE

Opinions Below ....................- sisnsnabileaeeagaiapaiesesengineiaianiniasiais 1

PIII. icilcsnsshshcesdsiictnninnschinebinmiesitiniamahidilamisiiastaiiidensnnisinteniidas 2

Questions Presented 2

Constitutional and Statutory Provisions Involved ...... 3

ID GE Ge GD ascent stesieeesinsatcersctiiisteininainaaicitinnens 4

A. Introductory Statement caiiieneeininanauae 5

B. Evidence of Jury Misconduct 6

C. Summary of Evidence Concerning Easton .......... 12

Reasons for Granting the Writ -......2222-2.--e.-eceeeeeeeee 15

I. Novel Issues Concerning the Interpretation and

Administration of Rule 606(b) of the Federal

Rules of Evidence and Rule 31(b) of the Federal

Rules of Criminal Procedure are Presented By

the Pre-Discharge Court-Juror Interview Re-

vealing Misconduct and Lack of Unanimity ...... 15

A. The Evidence Was Competent .. 16

B. There Was Sufficient Evidence of Miscon-

duct And Lack of Unanimity At Bar .......... 21

C. At The Least, The Jury Should Have Been

Directed To Redeliberate ~......... 22

II. Opinions Expressed By The Second Circuit In

The Instant Case Conflict With The Opinions

Of Other Circuits In Vital Areas Concerning

The Administration Of Criminal Justice ............ 23

A. The Court Declined to Rule Upon The Pro-

priety Of A Trial Court’s Private Instrue-

tion of Jurors 23

B. The Supplemental Instructions Given By

Trial Judge To Two Jurors Were Tanta-

mount To an Allen Charge, As To Use of

Which The Cireuit Courts Are Divided ......

III. Easton Was Denied the Right to A Proper Poll

Of the JUry ........-------c-c-c-secercsesesseseeesennnsnsnensnnnnnnensnsnee

IV. The Trial Court, by Admitting Into Evidence a

Large Amount of Prejudicial and Irrelevant

Testimony, Prevented Easton from Receiving a

Fair Trial, Thus Denying Him Due Process ......

A. The Repeated Admission, Over Objection,

Of Evidence Of The Unrelated, Uncharged

Crime of Failing to Withhold Taxes Was

Prejudicial Error ..........-----.---1-----e--ses-eeee

B. The Admission Of Evidence Indicating

That Easton’s Net Worth Was Substan-

tially Increased Two Years After The

Occurrence Of The Charged Crimes Fatally

Tainted The Conviction ...........-----.--:--+0+«

C. The Reception Of Alleged Financial State-

ments Of the Borrowing Corporations,

Without Any Authentication, Was Further

IE oecenecessenencestnecanscneeecectrnenmeenacninnanesitaimennnseeti

Cram ccccncecnencevnssnesesstosessesensnnsecnenmnusesonssrnsnensnanensorseessans

AppenpiIces TO Petition ror A Writ OF CERTIORARI:

A—Judgment and Opinion of the United States

Court of Appeals for the Second Circuit

Binteored Mare 27, 1976 ............0-- ccccsecesceeees

B—Unreported Opinion and Order of the United

States District Court for the Southern Dis-

trict of New York Entered April 13, 1977

Denying Motion by Defendants Hockridge

and Petri to Set Aside Verdict ......................

C—Judgment Entered June 15, 1977 ...............--.-

PAGE

A-1

A-18

TABLE OF AUTHORITIES

Cases:

Allen v. United States, 164 U.S. 492 (1896) "96

Andres v. United States, 333 U.S. 740 (1948) ........... 22

Apodaca v. Oregon, 406 U.S. 404 (1972) 16, 22

Beaty v. United States, 213 F.2d 712 (4th Cir. 1

cert. denied, 348 U.S. 905 (1958) Suances

Bradley v. United States, 433 F.2d 1113 (D.C. Cir.

1969) 32

Bruce vy. Chestnut Farms—Chevy Chase Dairy, 126

F.2d 224 (D.C. Cir. 1942) a"

Cahn v. Nicholas, 453 F.2d 528 (5th Cir. 1971) ............ 34

Cherensky v. George Washington—East Motor Lodge,

317 F. Supp. 1401 (E.D. Pa. 1970) ........ 7 19

Clark v. United States, 289 U.S. 1 (1933) “ ... 18, 20

Cook v. United States, 379 F.2d 966 (5th Cir. 1967) ... 22

Fox vy. United States, 417 F.2d 84 (5th Cir. 1969) ....... 20, 21

Government of Virgin Islands v. Gereau, 523 F.2d 140

(3d Cir. 1975), cert. denied, 424 U.S. 917 (1976) ........ 16

Grace Lines, Inc. v. Motley, 439 F.2d 1028 (2d Cir.

1971) Fe 2 .20, 21, 22

Hussein v. Isthmian Lines, Inc., 405 F.2d 946 (5th Cir

1968) . 84

Irvin v. Dowd, 366 U.S. 717 (1961) 18

Johnson v. United States, 318 U.S. 189 (1943) ...... 33

Jorgensen v. York Ice Machinery Corporation, 160

F.2d 432 (2d Cir. 1947) ........ bah hata wie 20

Kingsport Utilities, Inc. y. Lamson, 257 F

mtg tage 7 n, .2d 553 (6th

McDonald v. Plese, 238 U.S. 264 (1915) oo. eeeccecceececeees 17

McNabb v. Unitec States, 318 U.S. 332, reh

319 U.S. 784 (1943) ae I 35

PAGE

Miranda vy. United States, 255 F.2d 9 (1st Cir. 1958) 28, 29

Mesarosh v. United States, 352 U.S. 1 (1956)... 35

Morgan v. United States, 355 F.2d 483 (10th Cir.), cert.

GonteG, SR4 GUE. TES Cee weseniincenicnsinnainns 31

Mullin v. United States, 356 F.2d 368 (4th Cir. 1966) 26

Pinkerton vy. United States, 328 U.S. 640 (1946) ....... 28

Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) ....... 35

United States v. Bailey, 468 F.2d 652 (5th Cir, 1972),

reh, en banc, 480 F.2d 518 (Sth Cir, 1973) 000. 27, 28

United States v. Blake, 488 F.2d 101 (Sth Cir. 1973) ... = 34

United States v. Breland, 376 F.2d 721 (2d Cir. 1967) 20

United States v. Broadway, 477 F.2d 991 (5th Cir.

RGTE) ~-<.sssss1sssscsesishisignasdetiisasiiidesmnianiieiaaieidaamnamammaieaaiants 31

United States v. Brown, 411 F. 2d 930 (7th Cir. 1969),

cert. denied, 396 U.S. 1017 (1970) 22.2. eceeececccceeeeeee 27

United States v. Chereton, 309 F.2d 197 (6th Cir.

1962), cert. denied, 372 U.S. 936 (1963) 0. 19

United States v. Fioravanti, 412 F.2d 407 (3d Cir.

1969), cert. denied, 396 U.S. 8387 (1969) oo. 27

United States v. Fox, 488 F.2d 1093 (5th Cir. 1973),

cert. denied, 417 U.S. 948 (1974) 22

United States v. Green, 523 F.2d 229 (2d Cir. 1975),

cert. denied, 423 U.S. 1074 (1976) eee 27

United States v. Grieco, 261 F.2d 414 (2d Cir. 1958),

cert, denied, 359 U.S. 907 (1959) 2.2... .ccecccccecceoeeseeseee 22

United States v. Gullia, 450 F.2d 777 (3d Cir. 1971)... = 24

United States v. Kenner, 354 F.2d 780 (2d Cir, 1965),

cert. denied, 383 U.S. 958 (1966) 22... ccccecceeeeeee 27

United States v. Mathis, 535 F.2d 1303 (D.C. Cir.

BOTS) ..casrecensessnsevessenensenshiistihanissaenianisdalnaaiiaianaiannt 29

United States v. Modern Reed & Rattan Co., 159 F.2d

656 (2d Cir.), cert. denied, 331 U.S. 831 (1947) camies 30, 33

United States v. Ostrowsky, 501 F.2d 318 (7th Cir.

1974) 33

PAGE

United States v. Pleva, 66 F.2d 529 (2d Cir. 1933) .... 21, 22

United States y. Rabb, 450 F.2d 343 (3d Cir. 1971)

cert. denied, 405 U.S. 995 (1972) .22..22.2...-ccceceoceeeeeeeee 25

United States v. Reid, 12 How. 361 (1851) -............ 17

United States v. Robinson, 544 F.2d 611 (2d Cir.

1976) .26, 27, 32, 33

United States v. Rosenstein, 474 F.2d 705 (2d Cir.

RD diiatiniieemeenimeecnemmennammenemmmansmemusmecnmasenennenescsusomsss 34

United States y. Schroeder, 433 F.2d 846 (Sth Cir.

1970), cert. denied, 400 U.S. 1024 (1971) -.................. 9

United States y. Sexton, 456 F.2d 961 (5th Cir. 1972) 22

United States v. Teague, 445 F.2d 114 (7th Cir. 1971) 34

United States v. Thomas, 449 F.2d 1177 (D.C. Cir.

1971) 27

Vaise v. Delaval, 1 Term Rep. 11, 99 Eng. Rep. 944

SI, DRIED shares iccenenneniiemetmnsnetemmenenmetenneepemmnenenncssemse 17

Vizzini v. Ford Motor Company, 72 F.R.D. 132 (E.D.

Pa. 1976), vacated and remanded on other grounds,

LL a 17

Williams vy. United States, 419 F.2d 740 (D.C. Cir.

Se i cinalateeatiasidataadl 22, 29

Constitutional Provisions, Statutes and Other Authorities:

United States Constitution

a 3, 30

re 16

United States Code:

2 i aidatdcivicndn

occu oH

Federal Rules of Criminal Procedure

Rule 31(a) 16

ID tinnessienttaateeemmetamiceenees 2, 14, 15, 17

Rule 31(d) ..4, 23, 28

PAGE

I es 30

ES RN ae 2

Federal Rules of Evidence

RE ee 30, 31

Rule 606(b) sitiainininiaiatial 2, 3, 15, 16, 17, 18

| a

Rule 803(b) . a

a —

American Bar Association, Standards Relating to

Trial by Jury, Approved Draft, 1968 16, 17,19

6A Moore’s Federal Practice § 59.08[4] (2d ed. 1974) 19

8A Moore’s Federal Practice § 31.06 (1977 Revision) 20

3 Weinstein’s Evidence § 606[04) (1975)

8 Wigmore, Evidence § 2350 (McNaughton ed. 1961) ..19, 20

SPIE widinenittenniensttcesesseneeieniaintaninatites 17

a ee eine

ee te ORR ee ee

ee a ee ee eet

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No.

SrerHen K. Easton,

Petitioner,

Unirep States or AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioner, Stephen K. Easton, respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Second Circuit entered in this proceeding on March 27, 1978.

Opinions Bel

The opinion of the Court of Appeals, not yet reported,

appears in the Appendix hereto at pages A-1 to A-17. No

opinion was rendered by the District Court for the South-

ern District of New York determining petitioner’s motion

to set aside the verdict. The District Court did render an

opinion respecting the similar motion of two co-defendants,

which opinion appears in the Appendix hereto at pages

A-18 to A-23.

Jurisdicti

The judgment of the Court of Appeals was entered on

March 27, 1978. The jurisdiction of this Court to review

that judgment rests on 28 U.S.C. § 1254(1).

Questions Presented

1. May a partial jury verdict stand where two jurors,

during jury deliberations but after the partial verdict has

been rendered, advise the Court that the verdict was not

unanimous, that they surrendered their honest conviction

of petitioner’s imnocence, and that they were coerced

because “incredibly attacked personally”? This question

presents novel, unresolved and important issues concerning

the interpretation and administration of Rule 606(b) of the

Federal Rules of Evidence and Rule 31(b) of the Federal

Rules of Criminal Procedure.

2. Where during a private interview with and instrue-

tion of two jurors during deliberations the Court directed

the jurors to raise their questions anew with the jury for

redeliberation and stated that the Court would question

the jurors again, did the Court coerce the rendering of a

verdict on Count Two and err in rendering a private

instruction, by failing to instruct the entire jury to deliber-

ate anew, failing to call for the jury’s verdict again and

failing to repoll the jury? This issue is discussed in Points

I B and C, II and III of that section of this petition

which sets forth “The Reasons For Granting The Writ”.

3. Where the redacted indictment charged four defend-

ants with twenty-four crimes, the trial endured over thirty

days, sixty-nine witnesses were heard and fragmented ver-

dicts taken, was petitioner’s right to poll the jury denied

when the jury was polled on Count One as to all defendants

2 OR rs ow et re

collectively rather than as to each individually? This issue

is discussed in Point III of that section of this petition

which sets forth “The Reasons For Granting The Writ”.

4. ( Were so many prejudicial errors committed in admit-

ting testimony as to petitioner’s alleged commission of a

wholly unrelated crime and as to petitioner’s financial con-

dition that petitioner was denied due process, as a matter

of law?) This issue is dealt with in Point IV of that section

of this petition which sets forth “The Reasons Fer Grant-

ing The Writ”.

‘

Provisions Involved

United States Constitution Fifth Amendment:

“No person shall... be deprived of re eae

or property, without due process of law .

United States Code, Title 28:

Federal Rules of Evidence, Rule 606(b) :

“Inquiry into validity of verdict or indictment.

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

his or any other juror’s mind or emotions as influ-

encing him to assent to or dissent from the verdict

or indictment or concerning his mental processes in

connection therewith, except that a juror may testify

on the question whether extraneous prejudicial

information was improperly brought to the jury’s

attention or whether any outside influence was

brought to bear upon any juror. Nor may his affi-

davit or evidence of any statement by him concern-

ing a matter about which he would be precluded from

testifying be received for these purposes.”

United States Code, Title 18:

Federal Rules of Criminal Procedure, Rule 31(b):

“Several Defendants. If there are two or more

defendants, the jury at any time during its delibera-

tions may return a verdict or verdicts with respect

to a defendant or defendants as to whom it has

agreed; if the jury cannot agree with respect to all,

the defendant or defendants as to whom it does not

agree may be tried again.”

Federal Rules ot Criminal Procedure, Rule 31(d):

“Poll of Jury. When a verdict is returned and

before it is recorded the jury shall be polled at the

request of any party or upon the court’s own motion.

If upon the poll there is not unanimous concurrence,

the jury may be directed to return for further

deliberations or may be discharged.”

Statement of the Case

Petitioner seeks review of a judgment of the United

States Court of Appeals for the Second Cireuit (A-1)

which affirmed a judgment of the District Court for the

Southern District of New York finding petitioner to be

guilty on Counts One and Two of a twenty-four count

indictment, sentencing petitioner to imprisonment for six

months and fining him $5,000 on Count One, suspending

sentence on Count Two and imposing probation (A-22).

A. Introductory Statement

Petitioner, Stephen K. Easton (“Easton” and “peti-

tioner”), a certified public accountant, together with co-

defendants William H. Hockridge (“Hockridge”), Charles

Petri (“Petri”), George Flynn (“Flynn”), George Whitney

(“Whitney”) and Charles Rapport (‘“Rapport”)' were

charged with twenty-four counts of misconduct occurring

in 1971 and 1972

The first count charged conspiracy to violate 18 U.S.C.

§§ 656, 1005 and 1014 (1970). The second count charged

that Hockridge, an assistant vice-president and loan officer

of the Chemical Bank, misapplied funds of that bank ob-

tained by unsecured loans and that Petri, Flynn, Whiney

and Easton, alleged principals of the corporate borrowers,

aided and abetted such misconduct (18 U.S.C. §§ 656 and 2

(1970)). Counts Three through Seventeen charged the de-

fendants with making false financial statements with

respect to the various alleged shell corporations for the

purpose of influencing the Chemical Bank and Bank of New

York to make certain loans (18 U.S.C. $1014 (1970)).

Counts Eighteen through Twenty-Four charged that Hock-

ridge, aided and abetted by the remaining defendants

except Rapport, made false entries in the books of the

Chemical Bank (18 U.S.C. § 1005 (1970)).

All defendants but Whitney entered pleas of not guilty.

The trial of this complex multi-defendant matter before

a jury commenced on December 2, 1976, with the Honorable

Dudley B. Bonsal presiding, and continued until 34 days

thereafter when the jury was discharged, after rendering

verdicts on thirteen counts. Forty-three government and

twenty-six defense witnesses were heard.

1. Rapport was severed just prior to summations. Count Six

of the Indictment was dismissed at the time of severance.

The jury found Hockridge and Easton guilty on Counts

One and Two (hereinafter also the “conspiracy” and “mis-

application” counts). Easton was found not guilty on all

counts relating to the making of false financial statements.

Petri was found guilty on Counts One, Two and Eight.

Flynn was acquitted on all counts.

Easton’s role in the matter was essentially ministerial.

Easton was not a “principal” of the corporate borrowers.

He was a relatively minor financial officer thereof.

B. Evidence of Jury Misconduct

On the morning of the fifth day of the trial, the Court

received a note from Juror Number Three (A-6). The

Judge interviewed the juror in chambers and she revealed

that the jury had been improperly discussing the case dur-

ing recesses and that:

“(T]he people in the jury are not giving these peo-

ple [defendants] a fair chance... several of the peo-

ple have expressed their opinion that these people

are guilty.” (T. 566).?

The Court dismissed the juror’s comments stating:

“1 don’t think it is serious and I think this is the nor-

mal reaction of a young perhaps little idealistic

girl....” (T. 570).

Defendants moved for a mistrial on the ground of jury

bias. The motion was denied (TT. 570). The Court later

determined to interview the other jurors (T. 627). The

interviews were brief. The Judge prefaced his inquiry by

reminding each juror of the obligation not to discuss the

case, an admonition clearly tending to discourage revela-

tion of misconduet ('T. 688-727).

2. Parenthetical references in the form “(T. )” are to the

pages ~{ the transcript below.

During the interviews seven other jurors and two alter-

nates indicated they had heard jurors express opinions as

to defendants’ guilt (see, e.g., T. 696). The motion for a

mistrial was renewed (T. 730-1) and denied (T. 736).

Substantial misconduct also oceurred during the jury

deliberations. Throughout the morning of Friday, Febru-

ary 11, 1977, the Court charged the jury. At 4:45 p.m. the

jury asked to hear the charge concerning the elements of a

conspiracy again (T. 5864), and the charge was repeated.’

The jury concluded deliberations at 9:30 p.m. (T. 5877).

They had not reached any verdict (A-7).

Deliberations resumed Monday, February 14, 1977. The

jury requested further exhibits (T. 5880) and was read

portions of Easton’s testimony and testimony of a bank

officer concerning conversations had with Easton relating

to one loan (T, 5882-3). At 6:30 p.m. the jury upon inquiry

by the Court reported that it had reached a verdict as to

three defendants on Count One of the indictment. Over

objection, the Court heard the partial verdict finding

Hockridge, Petri and Easton guilty (A-8) (T. 5961-2). At

defendants’ request the jury was polled; however, each

juror was not polled separately as to each defendant.

The following day, the jury heard further excerpts from

the testimony and received further exhibits (T. 5907-9).

No further verdicts were rendered. At 5:00 p.m. the Judge

revealed for the first time that that morning he had

received a note from Juror Number Four requesting to see

him; the Judge determined not to interview the juror (T.

5909-15).* The jury was discharged for the day.

3. Prior thereto, the jurors had requested that certain exhibits be

transmitted to them (T. 5862, 5863), including evidence admitted

subject to connection (e.g., T. 5863, 5880, $001, 5908-9).

4. The Second Circuit opinion recites that the note was received

at 5 p.m. (A-8). The record indicates the note was received earlier,

but the reecipt only revealed by the Court at 5 p.m.

The next day, February 16, 1977, at 10:00 a.m. the Court

revealed to counsel his receipt of a note from Juror Num-

ber Three (A-8) (T. 5920-8). The note read:

“Judge Bonsal, please see me as soon as possible

this morning. I feel that I have committed a grave

injustice. Inasmuch as I let myself be led or rushed

for lack of a better word into agreeing with the ver-

dict of the jury.” (T. 5920) (emphasis added).5

The Court determined to interview Jurors Number Three

and Four, rather than immediately setting aside the partial

verdict, to “see [if he could find] any way of salvaging this

thing” (T. 5921). Concerning the interview, the Court

stated:

| am not going to let it [the Count One verdict]

stand if I am satisfied that this lady as she says it

was pressured into doing it.” (T. 5923).

The Court interviewed the two jurors in chambers.

Counsel were not present. The jurors indicated that their

comments were directed to the partial conspiracy verdict

(T. 5928).

At first, Juror Number Three indicated that her com-

ments were with respect to all three defendants (T. 5928).

She indicated she felt the evidence insufficient as to Hock-

ridge and Petri (T. 5928-9). As she began to speak about

Easton, the Court interrupted and turned his inquiry to

5. The jury was separated during the deliberations. On th

os iy ae 16, by ned the New York Daily News spatial

e partial verdict, identifying the United States Att ,

as its source (T. 5924). i ce

6. Later he stated: “I hope that in some way that [the inter-

view] might salvage the situation” (T. 5923). However well-

intended, the Trial Judge’s view that harassment of a juror, pre-

cluding him and her from rendering an independent and honest

verdict, could be cured or “salvaged” by a subsequent private judicial

interview can hardly be justified.

Juror Number Four. She indicated that during the delib-

erations she “was personally attacked incredibly by two

members [of the jury]” (T. 5929). The Court refused to

permit her to describe the nature of the attack (T. 5930).

Juror Number Four indicated that ultimately she became

secure in the guilty verdict respecting Hockridge and Petri

(T. 5930). However, as to Easton, she indicated that she,

and several other jurors, were:

“RJailroaded, you know, before we could bring up

our doubts ... 1 know that at the time when we were

polled that I should have said no.” (T. 5930-1).’

The Court then turned to Juror Number Three and

stated to her:

“CY jou have had sort of an emotional problem with

this thing here, haven’t you?

“Juror No. 3: It can be an emotional problem but

the question in my mind is the reasonable doubt .. .

[instruction as to reasonable doubt omitted].

“Ter Court: I think what I would like to do is this.

You know, I mentioned to you when I charged you I

don’t want you ever to surrender your honest con-

victions because of other jurors.

“Juror No. 3: That is what I did.

“Tue Court: You think you did.” (T. 5931) (em-

phasis added).

The Court’s comments plainly deprecated the jurors’

concern about the want of unanimity. Rather than con-

fronting the strong-arm tactics of some of the jurors, the

Court left the situation unresolved, apparently in the inter-

7. In fact, she had no opportunity to do so, since the poll was

not conducted individually as to each defendant (T. 5945).

est of salvaging the verdict in this lengthy trial. The

Judge instructed the two jurors:

“T would like you to think about that [the con-

spiracy verdict] and resume your deliberations and

then we'll see how it goes today with the delibera-

tions and then perhaps after we finish here I will

want to see you again. |

“Juror No. 3: J don’t understand what you mean.

Continue the deliberating—

“Tne Court: After the jury finishes, I think I will

want to see you again and talk again about some of

these things that you have told me this morning.

But I think it would be wise if both of you could go

back with the jurors.

“You have got a problem and you do the same

thing with respect to Mr. Easton. Think that one

over pretty carefully ....

“Juror No. 4: I know there is one other member

too who feels that way too.

“Tue Court: About what?

“Juror No. 4. I think about all three actually. But

I think specifically about Easton also.

“THe Court: All right. Why don’t you go back

then and let’s see where we go today and I’ll follow

this up.

. * *

“One other thought. When you go back with the

jury and when you think it is an appropriate time,

you raise your points again with the jury about what

you think about what they have done and see what

they think about that and have an exchange on that.”

(T. 5932-4) (emphasis added) (see A-9).

The two jurors were sent to resume deliberations.

Defendants moved for a mistrial (T. 5935). Easton’s

motion was never formally decided.

At no time following the private instruction did the Judge

charge the jury as a whole to deliberate anew as to Easton,

as he had charged the two jurors. The jury was never ad-

vised of the substance of the Court’s private interview.

At 2:30 p.m. of the day of the interview, the jury found

Flynn not guilty on Count One (T. 5955). Further requests

for evidence and testimony relating to Easton were made.

The following day at 2:00 p.m., after spending much of

the morning hearing testimony read, the jury returned a

further partial verdict, finding Hockridge, Petri and Easton

guilty on Count Two, Flynn not guilty on Count Two, and

all defendants not guilty on substantive Counts Three and

Four (T. 5968-70).

Thereafter, the jury rendered verdicts on Counts Eight,

Ten, Eleven, Twelve, Thirteen, Fourteen, Twenty and

Twenty-one; Easton was found not guilty on all counts

(A-10).

A verdict finding all defendants not guilty on Count

Seventeen was thereafter rendered (T. 6021).

After six days of deliberation the jury was discharged

(T. 6022-3) and the Court thereafter dismissed the remain-

ing counts.

The Judge never met with Jurors Number Three and

Four again. The jury was never instructed to redeliberate

as to Easton. The Judge did not repoll the jury as to

Count One. The Judge did not permit Jurors Number

Three and Four to alter their verdict as to Easton.

Easton was sentenced on June 15, 1977. Apparently,

the Court had determined to deny his motion for a mistrial

and to set aside the verdict, although no formal decision

was rendered.®

8. A formal decision was rendered with respect to a similar

motion by Hockridge and Petri. The Court wrote that it was

“satisfied that neither of the two jurors surrendered their honest con-

victions” (A-19).

C. Summary of Evidence Concerning Easton

The essence of the prosecution’s case against Easton was

that he, although a low-salaried part-time employee, was in

charge of “creating” the financial statements which were

submitted to the banks in order to induce the loans.’ All

but two of the statements were unsigned and none was

signed by Easton. All were unaudited. The only direct

evidence that Easton authored the statements was offered

by Robert Fillet, an unindicted co-conspirator promised

immunity by the government. Fillet, financial consultant

for ‘he borrowing companies, was paid a salary three times

that of Masten. Fillet’s trial testimony substantially con-

tradicted that given by him to the Grand Jury.

The financial statements were admitted, over objections

as to lack of authentication and hearsay, subject to connee-

tion. At no time prior to the charge was the jury instructed

as to the meaning of this ruling, nor did the Court advise

the jurors as to which, if any, of the financial statements

had been connected by the testimony.'°

The evidence that Easton occupied a position of mana-

gerial responsibility for Petri’s companies was meager. No

less than seven government witnesses employed by one or

more of the companies listed only Petri and Flynn as their

“bosses”.

Petri, not Easton, was identified as the individual nego-

tiating loans with Hockridge at Chemical Bank (T. 1208).

Petri was identified as Easton’s “boss” (T. 1302). Em-

9. Easton was found not guility on each of the counts relating to

the financial statements. The Second Circuit wrote that Easton pre-

pared all but two of the financial statements (A-4), This is incon-

sistent both with the jury’s verdict and the evidence, which failed to

demonstrate authorship of any of the statements but the two which

Easton admitted preparing.

10. During its deliberations, the jury made repeated requests f

this evidence (see, e.g., T. 5880-3). i "= ™ -

ployee-witnesses repeatedly stated that Easton’s authority

was limited (T. 1325). One secretary stated, “ile was more

like a bookkeeper” (T. 1325). Witnesses repeatedly testi-

fied that Easton often complained of his lack of knowledge

of the companies’ dealings (T. 1329, 1237). Easton was

described by his co-workers as Petri’s “pawn” (T. 1538)

and “naive” (T. 2657).

Easton’s salary was commensurate with his position as

an inferior. Petri’s chauffeur earned more than he (T.

1389).

As if in recognition of the paucity of competent evidence

proving Easton’s involvement, the government sought to

introduce irrelevant and prejudicial matter concerning

Easton.

Thus the government repeatedly elicited testimony, over

objection, that Easton permitted other employees to receive

salary payments without withholding taxes, although no

such crime was charged in the indictment (see, e.g., T. 642,

839, 1008, 2183). The Court permitted such testimony,

without explanation (id.). Similarly, during the cross-

examination of Easton, the government questioned Kaston

extensively concerning his personal finances and particu-

larly as to the fact that Easton’s net worth had increased

from approximately $170,000 in 1972 to approximately $3

million in 1974 — two years after the period covered in the

indictment (T. 5033-4).

The Assistant United States Attorney also repeatedly

charged in his summation that during the relevant period

Easton was “lacing his pockets with cash” (T. 5416), an

allegation he supported with reference to Eastoii’s

increased net worth in 1974 (T. 5428-9), an increase in fact

traceable to Easton’s private business ventures after

resigning from the Petri companies (T. 5109-14).

Easton, 41 years of age at the time of trial, took the stand

in his own defense, as did twelve character witnesses, each

of whom had dealt with Easton in business and professional

matters. One testified that his factoring company had made

loans aggregating approximately $1 million to Easton or

companies in which Easton had an interest, all of which

were timely repaid (T, 4763-4). Easton testified that all of

his substantial personal and unrelated business loans in

1971 and 1972 had been timely repaid (T. 4582-4, 4515-6,

4537-8).

Easton testified that he was only a part-time employee of

the Petri companies (T. 4598), because involved at the time

in outside business ventures as well. He reported to Fillet

(T. 4599). Easton denied preparing any of the relevant

financial statements (T. 4614-40). He conceded preparing,

at Fillet’s and Petri’s request, certain pro forma statements

and projections (T. 4611), which, in each instance, he

turned over to Fillet or Petri (T. 4615). In each instance,

the figures were based upon data given to him by Fillet or

Petri (T. 4615), not upon an examination of the relevant

corporate records (id.). In each instance the statements

were labelled as either pro forma financial statements or

projections (T. 4616).

Hockridge, the Chemical Bank loan officer, confirmed

Kaston’s non-involvement, testifying that he received all

relevant financial data from Petri (T. 3543).

In an effort to shore up the obviously weak case against

Easton, the Assistant United States Attorney devoted vir-

tually his entire summation to Easton. One hundred of the

one hundred thirty-five pages of the stenographiec tran-

script of the oral summation containing the portion which

discussed the alleged culpability of the individual defend-

ants focused upon Easton (T. 5345-5441, 5304-6, 5316-9,

5333-4), and only thirty-five pages in the aggregate focused

upon the other three defendants, although they were the

principals (T. 5322, 5472, 5320-22, 5465-73, 5441-65).

The Court’s charge to the jury included a general diree-

tion that the jury could consider evidence admitted subject

to connection only if it found the government had proven

a conspiracy (T. 5818-19). The specific and numerous

exhibits so admitted were not enumerated, nor was the jury

instructed that it must find the existence of such a con-

spiracy based only upon non-hearsay evidence. The jury

reviewed such evidence in connection with deliberations on

Count One. o

On March 27, 1978 the Court of Appeals for the Second

Circuit affirmed the judgment of conviction against Easton,

Hockridge and Petri. Hockridge and Petri have moved

that Court for rehearing.

Reasons for Granting the Writ

Novel Issues Concerning the Interpretation and Admin-

istration of Rule 606(b) of the Federal Rules of Evi-

dence and Rule 31(b) of the Federal Rules of Criminal

Procedure are Presented By the Pre-Discharge Court-

Juror Interview Revealing Misconduct and Lack of

Unanimity.

The Second Circuit ruled that the principal issue pre-

sented to it was a novel question concerning the interpre-

tation and interplay of Rule 606(b) of the Federal Rules

of Evidence (hereinafter “F.R.E.”) and Rule 31(b) of

the Federal Rules of Criminal Procedure (hereinafter

“F.R.Cr.P.”) which “[nJeither the eases nor the treatises

definitively answer ....” (A-11). That issue is whether

F.R.E. Rule 606(b) renders incompetent the voluntary

statements of jurors made to the Court after a partial ver-

dict is rendered but while deliberations are continuing,

which statements evidence jury misconduct and lack of

unanimity'' regarding the partial verdict. Petitioner

believes the issue to be one of substantial importance in

the administration of justice by the federal courts, by rea-

son of the frequency with which judges at trial permit

partial verdicts to be taken.

The District Court at bar, ruling upon Hockridge’s and

Petri’s motions to set aside, did not address the question

squarely, finding that the jurors had not surrendered their

honest convictions (A-19). Juror Number Three, however,

expressly stated that this was the case (T. 5931). The

Court of Appeals held F.R.E. Rule 606(b) applicable to

partial verdicts and notwithstanding the jurors’ statement

of coercion and lack of unanimity permitted the conviction

to stand.

A. The Evidence Was Competent

F.R.E. Rule 606(b), set forth supra, pp. 3-4, renders cer-

tain evidence incompetent to impeach a jury verdict.

While recent cases and legislative history indicate that

Rule 606(b) is intended (a) to protect jurors from post-

discharge harassment, minimize the risk of jury tampering,

and secure the privacy of deliberations, and (b) to promote

the finality of verdicts, e.9., Government of Virgin Islands

v. Gerean, 523 F.2d 140, 148-50 (3d Cir. 1975), cert. denied,

424 U.S. 917 (1976), American Bar Association, Standards

Relating To: Trial by Jury (Approved Draft 1968), Com-

11. Unanimity is, of course, a non-waivable constitutional man-

date, under the Sixth Amendment and under F.R.Cr.P. Rule 31(a).

See Apodaca v. Oregon, 406 U.S. 404 (1972). However, the clear

effect of the Second Circuit’s decision in the instant case is to impose

a constitutionally improper waiver of the unanimity rule, during the

course of jury deliberations.

mentary to §5.7(a) (hereinafter “ABA, Standards Relating

to Trial by Jury”), only the former reasons are cited in

the seminal decisions of this Court.!?

For example, in McDonald y. Pless, 238 U.S. 264 (1915),

articulating the rule in a civil action, the Court wrote that

absent such a rule:

“Jurors would be harassed and beset by the defeated

party in an effort to secure from them evidence of

facts which might establish misconduct .... [T]he

result would be to make what was intended to be a

private deliberation, the constant subject of public

investigation ....”/d. at 267-8."

Only one reported decision, apart from the instant mat-

ter, has been found addressing the issue of whether F.R.E.

Rule 606(b) applies to impeachment prior to jury dis-

charge but after a partial verdict has been rendered under

F.R.Cr.P. Rule 31(b). The legislative history and language

of the Rule are silent.

In the reported decision on point, the Third Circuit

declined to decide the issue. This was Vizzini v. Ford

Motor Company, 72 F.R.D. 132 (E.D. Pa. 1976), vacated

and remanded on other grounds, 569 F.2d 754 (3d Cir.

1977). In a bifurcated civil trial, the District Court had

declared a mistrial as to damages but held F.R.E. Rule

606(b) a bar to reception of evidence to impeach the lia-

bility verdict. The evidence, unearthed during deliberations

12. The rule was initially premised upon the maxim that no per-

son shall be allowed to allege his own turpitude. Vaise v. Delaval.

I Term Rep. 11, 99 Eng. Rep. 944 (K.B. 1785). However, that

doctrinal basis has since been discarded. 8&8 Wigmore, Evidence

2352 (McNaughton ed. 1961); ABA, Standards Relating to Trial

y Jury, at 168.

13. This Court has always stated that no inflexible rule can be

laid down because: “[C]ases might arise in which it would be — oe

sible to refuse them [evidence from jurors impeaching a verdict]

without violating the plainest principles of justice.” United States

v. Reid, 12 How. 361, 366 (1851).

as to damages, indicated that the previously rendered

verdict as io liability was the result of compromise. 72

F.R.D. at 136. On appeal, the Third Circuit vacated and

remanded, ruling that the issues of liability and damages

were so intertwined as to require a new trial on both ¢—«

tions. The Court specifically declined to determine whether

Rule 606(b) was applicable under the circumstances. 569

F.2d at 762, n.2.

In the case at bar, evidence was placed before the Court

on the fifth day of trial that numerous jurors entertained

pre-conceived notions of the defendants’ guilt. This, in

itself, constituted grounds for declaration of a mistrial.

Cf., Clark v. United States, 289 U.S. 1 (1933); Irvin v.

Dowd, 366 U.S. 717 (1961).

The Cireuit Court at bar perceived that “freedom of jury

deliberations is less threatened by impeachment of partial

verdicts ....” (A-12). The Court found, however, that

petitioner desired “scrutiny of the deliberations.” This is

inaccurate. The evidence of want of unanimity was volun-

tarily placed before the Court by jurors. No “scrutiny”

was necessary or appropriate. Rather, given the facts re-

vealed, the appropriate remedy would have been either to

set the verdict aside or to request the jury to deliberate

further. See pp. 22-23, infra."

The Second Cireuit principally based its holding that

F.R.E. Rule 606(b) was applicable upon the reasoning that

the interest in verdict finality “would be enhanced by

extending the rule against impeachment to partial verdicts

....” (A-13) (emphasis added).

While the catchphrase “verdict finality” appears in many

recent enunciations of the no-impeachment rule, the precise

interest has never been defined. Petitioner suggests there

14. The Trial Judge’s instructions to the jurors, which the Second

Circuit termed “somewhat ambiguous” (A-15, n.20), indeed sug-

gested redeliberation. The jury as a whole, however, was not so

charged.

is no interest in verdict finality per se, but rather that the

term exists only to establish that point in time, or judicial

act, after which impeachment by certain types of evidence

will be prohibited, in the interests of protecting jurors from

harassment and preserving the secrecy of the deliberative

process.

Numerous decisions and learned commentators have indi-

cated that the no-impeachment rule relates to evidence

obtained after the jury is discharged. These opinions

conflict with the ruling below. See United States v. Chere-

ton, 309 F.2d 197, 200 (6th Cir. 1962), cert. denied, 372 U.S.

936 (1963); United States v. Schroeder, 433 F.2d 846, 851

(Sth Cir. 1971), cert. denied, 400 U.S. 1024 (1971) ; Cheren-

sky v. George Washington-East Motor Lodge, 317 F. Supp.

1401 (E.D. Pa. 1970). As Professor Moore stated:

“(P]rior to the jury’s discharge there is nothing in

the policy underlying the no-impeachment rule, pres-

ently considered, to preclude a juror from testifying

relative to misconduct or other matters that might

vitiate the verdict.” 6A Moore’s Federal Practice

* 59.08[4], at 59-143 (2d ed. 1974).

Similarly, Wigmore writes:

“The reasons for the foregoing rule, namely, the

dangers of uncertainty and of tampering with jurors

to procure testimony, disappear in large part if

such investigation as may be desired is made by the

judge and takes place before the jurors’ discharge

and separation.” 8 Wigmore, Evidence § 2350, at

691 (McNaughton ed. 1961) (emphasis in original).

See also 3 Weinstein’s Evidence § 606[04], at 606-28 (1975) ;

ABA, Standards Relating To Trial By Jury, Commentary

to §5.7, at 137: “Finally, it should be emphasized that the

restrictions in Section 5.7(a) apply to inquiry after the

jury has been discharged... .”

Where, as in the instant case, jury bias has manifested

itself prior to deliberations, there is particular reason to

admit and consider pre-discharge record evidence of further

misconduct. See 3 Weinstein’s Evidence § 606[04], at 606-

35 (1975); Clark vy. United States, 289 U.S. 1 (1933).

Moreover, where evidence is offered, inter alia, to prove

that no unanimous verdict was rendered, it has repeatedly

heen held admissible. Fox v. United States, 417 F.2d 84

(Sth Cir. 1969); ef., Grace Lines, Inc. v. Motley, 439 F.2d

1028 (2d Cir. 1971), discussed infra, p. 21.

Jorgensen v. York Ice Machinery Corporation, 160 F.2d

432 (2d Cir. 1947), supports the interpretation of Rule

606(b) urged by petitioner. In Jorgensen, although the

Court declined to set aside the civil verdict where there was

evidence the verdict was achieved by compromise, the Court

accepted as evidence the post-discharge juror affidavits,

noting that:

“lJjudges again and again repeat the consecrated

rubric [the no-impeachment rule] which has so con-

fused the subject; it offers an easy escape from

embarrassing choices.” Jd. at 435.

The undeniable interest in establishing the point in the

judicial process after which impeachment by certain types

of evidence will be prohibited is not impaired by per-

mitting impeachment prior to discharge. Where the jury

is sequestered, harassment is unlikely. Separation during

deliberations is rarely permitted, SA Moore’s Federal Prac-

tice § 31.06, at 31-47, 31-48 (1977 Revision), and under

some circumstances may be plain error. See United States

v. Breland, 376 F.2d 721 (2d Cir. 1967). In addition, if

pre-discharge impeachment were permitted, any inquiry

would be made by the judge with due avoidance of pro-

tected areas. 8S Wigmore, Evidence §2350, at 691

(MeNaughton ed. 1961).

B. There Was Sufficient Evidence of Misconduct And

Lack of Unanimity At Bar.

In Grace Lines, Inc. vy. Motley, 439 F.2d 1028 (2d Cir.

1971), a juror responded during polling: “Yes, it [the ver-

dict] had to be unanimous.” Jd. at 1030. The Court

promptly declared a mistrial. In reversing, the Cireuit

Court stated:

“While it may be argued that Juror No. 11’s expla-

nation implied a disagreement with the verdict, there

is not sufficient [sic] in the record to warrant this

conclusion. ... There is nothing to indicate that she

was surrendering a conscientious conviction.” Id,

at 1032 (emphasis added).

By necessary implication, where there is evidence that

jurors surrendered their honest convictions, a mistrial must

be declared.’

In United States v. Pleva, 66 F.2d 529 (2d Cir. 1933), the

jury had deliberated for one and one-half days when an

elderly juror stated in open court that he was ill and that

he doubted that a conspiracy had been proven. <A doctor

examined the juror and found him sufficiently healthy to

continue deliberations. A second doctor examined the

juror, with fhe same result. Arrangements were made for

deliberations to be held under conditions minimizing the

juror’s pain. Several hours later, a verdict was rendered.

After the jury had been polled, the juror indicated that he

had assented because he felt unable physically to hold out

his dissenting opinion.

In reversing, the Circuit Court wrote:

“No person may lawfully be convicted by a jury

unless every juror actually agrees that upon the evi-

15. Indeed, the Trial Judge at bar so indicated when he stated

prior to the interview with the jurors: “I am not going to let it

[the verdict] stand if I am satisfied that this lady as she says it was

pressured into doing it. Don’t worry about that.” (T. 5923).

dence and the law of the case that person is guilty.

If a verdict of guilty is returned for any other rea-

son, it is a perversion of the constitutional guaranty

to a jury trial.” Jd. at 532.

At bar, at least two jurors indicated that they never actu-

ally agreed that Easton was guilty and that they were

never persuaded “on the merits.” Pleva, supra at 533. See

also United States v. Grieco, 261 F.2d 414 (2d Cir, 1958),

cert. denied, 359 U.S. 907 (1959) ; Kingsport Utilities, Inc.

v. Lamson, 257 F.2d 553 (6th Cir. 1958); Fox v. United

States, 417 F.2d 84 (5th Cir. 1969) (one juror stood mute

during the polling; the Court remanded for a new trial on

the ground that no unanimous verdict had been reached)."°

This result is inevitable in the instant situation in view

of the non-waivable constitutional mandate requiring una-

nimity of verdict. Apodaca y. Oregon, supra; Andres v.

United States, 333 U.S. 740 (1948).

C. At The Least, The Jury Should Have Been Directed

To Redeliberate.

In Grace Lines, supra, the Second Circuit held that under

the circumstances, and even though there was no evidence

the juror surrendered her conscientious conviction, the

Court should have sent the jury back for further delibera-

tions. Jd. at 1032. Similarly, in Williams vy. United States,

419 F.2d 740 (D.C. Cir. 1969) (en banc), during the polling,

one juror indicated confusion. The Cireuit Court approved

the Trial Judge’s action in sending the jury back to rede-

liberate. Accord, United States v. Fox, 488 F.2d 1093 (5th

Cir. 1973), cert. denied, 417 U.S. 948 (1974) ; United States

v. Sexton, 456 F.2d 961 (Sth Cir. 1971); Cook v. United

States, 379 F.2d 996 (Sth Cir. 1967); Bruce v. Chestnut

16. In Fox, the Court found juror affidavits admissible to prove

the absence of unanimity.

Farms-Chevy Chaise Dairy, 126 F.2d 224 (D.C. Cir. 1946) ;

F.R.Cr.P. Rule 31(d).

It is submitted that the trial Court erred in failing to

direct redeliberation. Although during its colloquy the

Court directed Jurors Number Three and Four to consider

the question of Kaston’s guilt de novo with the rest of the

jury, no such instruction was given to the other jurors or

to the jury as a whole, and the jury was never polled again

as to Easton’s guilt on Count One before being discharged.

The jury not having been so instructed and no further poll

having been taken, reversal is mandated.’

Opinions Expressed By The Second Circuit In The

Instant Case Conflict With The Opinions Of Other

Circuits In Vital Areas Concerning The Administration

Of Criminal Justice.

A. The Court Declined to Rule Upon The Propriety Of

A Trial Court’s Private Instruction of Jurors.

As set forth at pp. 8-11, supra, the Trial Judge gave

private instruction to Jurors Number Three and Four.

Petitioner contended before the Second Cireuit that such

private instruction was prejudicial error. This point,

raised by petitioner below, was not addressed in the Circuit

Court’s opinion. Therefore, that court musi be deemed to

have approved the procedure of a private interview and

17. The Second Circuit determined that petitioner waived this

objection by failing to request a further poll prior to discharge (A-15,

n.20). However, the motion to set aside was then before the Court

and just prior to discharging the jury the Court indicated no further

objections or motions in that connection were necessary (T. 6020).

The Circuit Court also placed unwarranted emphasis upon the fact

that the jurors did not again voice their reservations (A-14). How-

ever the jurors expected the Judge to speak with them again, as he

had promised, and, when the jury was discharged without such inter-

view, the two jurors again sought to speak with the Court.

instruction, as to a vital issue in the trial, under circum-

stances where the procedure was harmful to petitioner, as a

defendant.

A contrary rule has been enunciated in the Third and

Fourth Circuits. In United States v. Gullia, 450 F.2d 777

(3d Cir. 1971), one defendant was charged with eleven

counts and the other with one count of aiding and abetting

a bank teller in embezzling funds from her employer and

with obstruction of the FBI investigation thereof. The

trial lasted fourteen days. Deliberations commenced on a

Friday. The Judge, who was required to be out-of-town,

left instructions that any verdict reached should be sealed.

A sealed verdict was returned at 7:35 p.m. When the Court

reconvened the following Monday, and during the reading

of the verdict, one juror interrupted and asked to speak

with the Judge. The Judge consulted counsel, who

approved of the Court’s intention to interview the juror.

All counsel were present during the interview. The

reviewing court summarized the transcript of the interview

as follows:

“(The juror had agreed to the sealed verdict with

some reluctance; the juror, in the interim, had

discussed the case and the verdict with her husband;

the juror had some religious seruples about sitting

in judgment upon another; the juror had been unable

to sleep since the verdict was sealed .. .: the trial

judge correctly instructed the juror, again and again,

during the conference upon the meaning of ‘aids,

abets, counsels, commands, induces or procures’; .

in response to the juror’s question ‘... [what

would happen, Judge, if I held out?’, the trial judge

answered: *... [i]t would mean that we have just

wasted two weeks, that is all.’ Upon objection .. .

his revised reply was: ‘It would just be a misemploy-

ment of time.’” Jd. at 778-9.

Thereafter, in open court, the Judge repeated his in-

structions (a) as to aiding and abetting, (b) that the verdict

must be unanimous, and (c) that one juror need not be

guided by the majority. The jury withdrew to deliberate

further. Guilty verdicts were thereafter rendered on all

counts as to both defendants.

The Third Cireuit reversed and remanded, holding that

the Trial Judge erred in privately interviewing the juror,

stating: .

“[I]t was not only irregular, but error to give addi-

tional instructions to the extent and of the type here

given to one juror in the absence of the remaining

jurors.” Id. at 779.

In United States v. Rabb, 450 F.2d 343 (3d Cir. 1971),

cert. denied, 405 U.S. 995 (1972), and Beaty v. United

States, 213 F.2d 712, 722 (4th Cir. 1954), cert. denied, 348

U.S. 905 (1955), the Third and Fourth Circuits suggested

in their opinions that it was improper for the Trial Court

to communicate with any individual juror, a rule of law

which precludes the giving of private instructions to any

individual juror or jurors."*

B. ‘The Supplemental Instructions Given By The Trial

Judge To Two Jurers Were Tantamount To

an Allen Charge, As To Use of Which The Circuit

Courts Are Divided.

During his interview with Jurors Number Three and

Four, the Trial Judge, in his self-identified effort to “sal-

vage” the verdict (T. 5921), at first sought to minimize the

jurors’ statements of discontent. When Juror Number

Four commented that three or four jurors had been rail-

18. In Beaty, the Court found the communication with the fore-

man not to be prejudicial because solely related to a beneficial recom-

mendation as to sentencing.

rf]

roaded into a verdict as to Easton (T. 5930-1), the Court

abruptly turued to Juror Number Three, indicating that

her statements evinced “an emotional problem” (T, 5931).

When Juror Number Three indicated that she had sur-

rendered her honest conviction of Kaston’s innocence, the

Court commented “You think you did.” (T. 5931), There-

after, the Court indicated that the jurors should redeliber-

ate as to Easton (‘T. 5932-3). One can never know whether

such redeliberation occurred, as the jury was never again

polled as to Easton on Count One.

The impact of the two juror interview was akin to that

of an Allen charge.'? The Court’s direction that the two

jurors continue to deliberate, coupled with the failure to

charge the jury at large either to reopen consideration of

Count One as to Easton or to give proper deference and

regard to their fellow jurors’ opinions, particularly when

coupled with the Trial Judge’s laissez-faire attitude toward

the evidence of misconduct among the jurors and their lack

of unanimity, may also be likened in coercive effect to an

improperly given Allen charge. The composite was so co-

ercive as to vitiate the subsequent conviction on Count Two,

which followed soon after the private interview.

The Second Circuit itself has directed the exercise of

extreme caution in giving Allen-type charges. Thus, in

United States v. Robinson, 544 F.2d 611 (2d Cir. 1976), the

Court noted that when the Judge is aware of the numerical

split of the jury, and the jury is aware of the Court’s knowl-

edge, the giving of an Allen charge is a “precarious under-

taking” because the effect is “unavoidably to add the

Judge’s influence to the side of the majority ....” Jd. at

620, n.14, quoting Mullin v. United States, 356 F.2d 368, 370

19. See Allen v. United States, 164 U.S. 492 (1896). The re-

maining jurors assuredly were aware that Jurors Number Three and

Four had met with Judge Bonsal, as the interview occurred after the

jury was assembled on the morning of February 16, 1976 (T. 5920).

(4th Cir. 1966). At bar, the Court was obviously aware of

the numerical division and it seems reasonably evident that

the jury was also aware of the Judge’s knowledge thereof.

The return of Jurors Number Three and Four to the jury

room, without the giving of any instruction to the jury as a

whole and with the instruction to the two jurors that they

resume deliberations is, if anything, more coercive than the

rendering of an evenly balanced, supplementary instruction

to all jurors. See United States v. Green, 523 F.2d 229 (2d

Cir. 1975), cert. denied, 423 U.S. 1074 (1976).

The Second Cireuit seems to have retained, but only by

the “barest margin”, the doctrine that the giving of an Allen

charge may be proper. See United States vy. Kenner, 354

F.2d 780 (2d Cir. 1965), cert. denied, 383 U.S. 958 (1966),

and Robinson, supra. The Fifth Cireuit follows a similar

doctrine, although its key recent decision based its ruling

solely upon stare decisis, and commented that the charge

was inherently coercive. See United States v. Bailey, 468

F.2d 652 (5th Cir. 1972), reh. en banc, 480 F.2d 518 (5th

Cir, 1973).*°

Contrariwise, the Courts of Appeals for the District of

Columbia, the Seventh Cireuit and Third Cireuit have in

recent decisions explicitly disapproved the use of an Allen

charge. See United States v. Thomas, 449 F.2d 1177 (D.C.

Cir. 1971) (the District of Columbia Circuit prospectively

abandoned the use of the Allen charge (/d. at 1187));

United States v. Brown, 411 F.2d 930 (7th Cir. 1969), cert.

denied, 396 U.S. 1017 (1979); and United States v. Fiora-

vanti, 412 F.2d 407 (3rd Cir. 1969). cert. denied, 396 U.S.

837 (1969).

20. The Court wrote:

“We deeply regret being compelled to affirm this conviction.

We do so only because we are bound by precedent. [Cita-

tion omitted]. Were the choice ours alone to make, we

would put an end to the Allen charge in a ‘quick and not too

decent burial’ " Bailey, 468 F.2d at 669.

The continued use of Allen type charges is thus the sub-

ject of substantial disagreement among the Circuits. The

conflict should be resolved by this Court. Particularly, in

light of the coercive impact of the events surrounding the

Trial Judge’s private interview with two jurors and of the

brief time elapsed in deliberations prior to return of the

verdict as to Count Two, petitioner urges that the case at

bar affords a significant opportunity for reviewing the

propriety of an Allen charge.*' Petitioner respectfully sug-

gests that the inherently coercive character of this type of

jury instruction raises serious questions as to trial fairness,

which this Court should review. It is time to consider for

the federal judicial system, as a whole, whether the Fifth

Cireuit is not correct in its conclusion that this Draconian,

nineteenth century procedure should be given its final

interment. Bailey, supra at 669.

Easton Was Denied the Right to A Proper Poll of

the Jury.

As stated in Miranda vy. United States, 255 F.2d 9, 17

(1st Cir. 1958):

“The right of the defendant to have the jury polled,

as thus recognized and established by Rule 31(d)

lof the Federal Rules of Criminal Procedure], is of

ancient origin and of basic importance.”

21. In the case at bar, the Court’s charve also included a modified

Pinkerton instruction. See Pinkerton v. United States, 328 U.S. 640

(1946). This was improper since at the time when the jurors delib-

erated on Count Two, the conspiracy verdict had not been set aside.

Jurors Number Three and Four were under instructions to continue

to deliberate. It is quite possible that, in deliberating, the jury

applied the Pinkerton charge to find Easton guilty on Count Two.

In view of the fact that the Count One conviction was not unanimous

(see pp. 21-22, supra), such charge was inappropriate. Hence, the

Count Two conviction is subject to serious doubts for this reason

as well as the other circumstances set forth herein.

Denial of the right constitutes reversible error. Miranda,

supra at 18.

Moreover, as stated in United States v. Mathis, 535 F.2d

1303, 1307 (D.C. Cir. 1976):

“Since jury polls are a matter where ‘the need for

clarity is at its zenith,’ Williams v. United States, 136

U.S. App.D.C. 158, 419 F.2d 740 (1969) (en banc),

the court should shape the form of the poll so as to

minimize possible confusion by the jurors.”

In Mathis, the Court further wrote:

“The form used here —a single poll for multiple

[there, two] defendants — may entail risks of con-

fusion, especially in complicated cases. If the same

verdict is reached for all defendants, there is the pos-

sibility that a single poll would fail to uncover situ-

ations where the jury convicted all defendants al-

though only persuaded beyond a reasonable doubt of

the guilt of some. Where different verdicts are

reached as to various defendants, a single poll could

hide a juror’s confusion ....” Id. at 1307.

At bar, the partial verdict as to Count One found Hock-

ridge, Petri and Easton all guilty. The poll taken was as

to all defendants collectively. There can be little ques-

tion that the poll as taken masked confusion. Not only did

Jurors Number Three and Four later reveal their dissent

from the verdict as to Easton, but Juror Number Four

stated:

“T know that at the time when we were polled that

I should have said no... on Easton.” (T. 5930-1).

In fact, by reason of the form of the polling, i.¢., the fact

that separate polling was not made of the jurors as to

Count One, Juror Number Four had no opportunity to state

her true view that Easton was not guilty of this Count.

The Trial Court, by Admitting Into Evidence a Large

Amount of Prejudicial and Irrelevant Testimony, Pre-

vented Easton From Receiving a Fair Trial, Thus Deny-

ing Him Due Process.

By admitting, over objection, a substantial volume of

prejudicial testimony, the Trial Court impaired the ability

of the jury to give Easton a fair trial and precluded Faston

from receiving a fair trial. These errors, as a matter of

law, deprived Easton of due process of law, in violation

of the Fifth Amendment. The individual errors may not,

separately considered, justify this Court’s intervention.

Their cumulative effect, however, is so serious as to mar-

date reversal by this Court in its role as the ultimate admin-

istrator of the federal judicial system.

A. The Repeated Admission, Over Objection, Of Evi-

dence Of The Unrelated, Uncharged Crime of

Failing To Withhold Taxes Was Prejudicial Error.

The government repeatedly elicited testimony, over

objection, that Easton permitted cther employees to receive

salary payments without withholding taxes (e.g., T. 642,

839, 1008, 2183). The Court permitted such testimony, with-

out explanation. Jd. No count of the indictment charged

the crime of failure to withhold taxes due the federal gov-

ernment (26 U.S.C. § 6671, et seq. (1970)). The admission

of such testimony was error under F.R.E. Rule 404(b).

In United States v. Modern Reed & Rattan Co., 159

F.2d 656 (2d Cir.), cert. denied, 331 U.S. 831 (1947), appel-

lants were charged with violation of the Fair Labor Stand-

ards Act. The government, in its opening remarks, advised

the jury that appellants had in the past pleaded guilty to

an information charging other violations of the Act. Such

an allegation was also contained in the indictment. The

Second Circuit wrote that “evidence of the commission of

a wholly separate and independent crime even though of

the same nature is not admissible.” Jd. at 658 (citations

omitted). The conviction was reversed.

Recognizing that evidence of other crimes “may severely

prejudice the defendant” (United States v. Broadway, 477

F.2d 991, 994 (5th Cir. 1973)), the Courts have generally

required that such evidence be “plain, clear and conclu-

sive”. Id. at 995. Rule 404(b) of the Federal Rules of Evi-

dence restates both the general prohibition and certain

limited exceptions thereto, stating that evidence of other

crimes may “be admissible for other purposes, such as proof

of motive, opportunity, intent, preparation, plan, knowl-

edge, identity, or absence of mistake or accident”. Where

evidence of other crimes is admitted it must:

“Have a real probative value, and not just a possi-

hle worth on issues of intent, motive, absence of mis-

take or accident, or to establish a scheme or plan.”

Morgan vy. United States, 355 F.2d 48, 45 (10th Cir.),

cert. denied, 384 U.S. 1025 (1966).

Reversal is mandated where the prejudicial effect of the

admission of evidence of other crimes outweighs its proba-

tive value, where no exception to the exclusionary rule is

present, or where simply more evidence of the collateral

crime is admitted than is necessary to prove intent, ete.

See, e.g., United States vy. Ostrowsky, 501 F.2d 318 (7th

Cir. 1974).

In the instant situation, the evidence of aileged failure

to withhold income taxes had no conceivable bearing upon

the crimes charged, nor upon intent, motive, absence of

motive, mistake or accident.

Evidence of commission of another crime is presumed

to have been prejudicial. Bradley v. United States, 433

F.2d 1113 (D.C. Cir. 1969). The repeated admission of

such evidence was plainly erroneous.

B. The Admission Of Evidence Indicating That East-

on’s Net Worth Was Substantially Increased Two

Years After The Occurrence Of The Charged

Crimes Fatally Tainted The Conviction.

During the cross-examination of Easton, the government

questioned Easton extensively concerning the fact that his

net worth had increased from approximately $170,000 in

1972, the period covered in the indictment, to approximate-

ly $3 million in 1974 (T. 5035-4).

In summations, the government, with sole reference to

this fact, repeatedly charged that throughout the period

covered by th€ indictment Easton was “lacing his pockets

with cash” (T. 5416). However, the undisputed testimony

was that the increase derived entirely from Easton’s pri-

vate, unrelated and wholly subsequent business ventures.

Easton was a subordinate employee of the borrowing

corporations. The plain and patently improper purpose of

introducing the testimony regarding his apparent after-the-

fact increase in net worth was to prejudice the jury, by

implying that aston was a concealed principal in the bor-

rowing corporations or had improperly benefited personally

as a result of their misconduct. There was no evidence that

Easton derived personal benefit from the loans made to

the corporate borrowers.

In United States v. Robinson, 544 F.2d 611 (2d Cir. 1976),

appellant contended the Court erred in admitting testimony

concerning a .38-caliber handgun found in his possession

ten weeks after a robbery in which several guns, including

a .38, were allegedly used. When it admitted this evidence,

the Trial Court instructed the jury as to its limited proba-

tive value. In reversing, the Circuit Court noted that the

Federal Rules provide for exclusion of conceivably relevant

testimony, the probative value of which is outweighed by

the danger of unfair prejudice, The Court found the pro-

bative value of the evidence to be slight, because the jury

would, in order to rely thereon, also have to find that

Robinson owned the gun at the time of the robbery, that a

.388 was used in the robbery, and that Robinson’s gun was

in fact used. Jd. at 616-7. The Second Cireuit found the

possibility of prejudice substantial and reversed.

At bar, the evidence of Easton’s increased worth had no

probative value whatsoever. Tle indictment did not charge

that Easton utilized loan funds for personal ends. Even

if Easton had received and retained such funds, such fact

would have been reflected in his 1972, not 1974, net worth.??

The prejudicial effect of the evidence was much more

substantial than the prejudicial effect barred in Robinson,

lending credence to the otherwise unsupported claim of the

government that Easton “laced his pockets” with loan

proceeds.

Given the tenuous proof of Easton’s involvement in the

crimes charged, the lack of jury unanimity, and the inflam-

matory nature of the prejudicial evidence, its admission

clearly tainted the conviction.”

C. The Reception Of Alleged Financial Statements Of

the Borrowing Corporations, Without Any Authen-

tication, Was Further Error.

Numerous financial statements of the borrowing corpora-

tions, found in the files of the Chemical Bank, were admitted

into evidence “subject to connection”, over Easton’s objec-

22. Easton’s 1971 and 1972 net worth statements, received in

evidence, did not reflect any receipt of loan proceeds.

23. It is anticipated that respondent will argue that the objection

was waived at trial. However, the law is clear that a reviewing Court

should rectify an error of such substance and prejudicial! effect, even

when no objection was taken. See Johnson v. United States, 318

U.S. 189, 200 (1943); United States v. Modern Reed & Ratian Co.,

supra.

tion. The statements were offered during the testimony

of a Chemical employee, who admittedly knew nothing

whatsoever regarding the authorship of the statements and

although authorship of all but three was never established.

Absent authentication, the statements were inadmissible.

F.R.E. Rule 901 sets forth the requirement of document

authentication, a doctrine whose importance has been

emphasized in the cases. United States v. Blake, 488 F.2d

101 (5th Cir. 1973); United States v. Teague, 445 F.2d 114

(7th Cir. 1971); Cahn v. Nicholas, 453 F.2d 528 (5th Cir.

1971).

Absent authentication, or proof that the financial writings

were authored by one of the alleged co-conspirators, they

were hearsay under F.R.E. Rule 801. Just as plainly, none

of the exceptions to the hearsay rule were met and there-

fore admission was improper.**

Unquestionably, proof of the accuracy or inaccuracy of

the financial statements of the corporate borrowers was a

vital ingredient of the government’s case. Equally clearly,

admission of these financial statements, over objection,

without authentication and given their hearsay quality, was

an error of magnitude.

The overall effect of these material evidentiary errors

must be viewed in the context of the Court’s further im-

proprieties with regard to the jury. These acts, considered

cumulatively, raise the most serious questions as to the in-

24 The only potential exception was the “business records”

exception, F.R.E. Rule 803(6). However, no proof was adduced

that the writings satisfied the exception. Documents authored by

persons not employed by the business whose records are offered do

not fall within the rule. United States v. Rosenstein, 474 F.2d 705,

710 (2d Cir. 1973). The fact that the recipient, Chemical Bank,

continuously maintained a file containing such matter is immaterial,

especially since a Chemical officer conceded that no employee or agent

of the Bank had written the statements. See Rosenstein, supra; ac-

cord, Hussein v. Isthmian Lines, Inc., 405 F.2d 946 (5th Cir. 1968).

tegrity of a federal criminal trial and therefore raise a sub-

stantial issue as to whether Easton was deprived of due

process, in derogation of the Fifth Amendment to the

United States Constitution.

This Court, in the exercise of its supervisory jurisdic-

tion,”* has the ultimate obligation “to see that the waters of

justice are not polluted”. Mesarosh v. United States, 352

U.S. 1, 14 (1956). To paraphrase Chief Justice Warren,

the government of the United States “does not need con-

victions” based upon dubious testimony. Indeed, “[i]t

cannot afford to abide with them.” /d.

Conclusion

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

Asner B. Lays,

Attorney for Petitioner

555 Madison Avenue

New York, N. Y. 10022

Rospert STepHanN CoHEN

Desoran E. Lans

Enear J. Royce

Lans Ferysperc & ConEN

Of Counsel

April 26, 1978

25. Cf., McNabb v. United States, 318 U.S. 332, 340-41, reh.

oa — 784 (1943); Thiel v. Southern Pacific Co., 328 U.S.

217 (1946).

APPENDIX

APPENDIX A

Judgment and Opinion of the United States Court of

Appeals For the Second Circuit

Entered March 27, 1978

UNITED STATES COURT OF APPEALS

For tras Sscorp Crmovir

—<+or

Nos. 441, 443, 522—September Term, 1977.

(Argued December 14,1977 Decided March 27, 1978.)

Docket Nos. 77-1243, -1258, -1285

+or

Unrrep Srares or AMEBICA,

Appellee,

Wuuusm H. Hocxrinez, Cuarvtes Perri

and StepHen K. Easton,

Appellants.

Before:

Oages and Van Graaremanp, Circuit Judges,

and Barre:s, District Judge.°*

Appeal from judgments of conviction entered after a

jury trial in the United States District Court for the

Southern District of New York, Dudley B. Bonsal, Judge.

All three appellants were convicted of violating 18 U.S.C.

§ 371 under Count I and 18 U.S.C. §§656 and 2 under

Count II. Petri was also convicted under 18 U.S.C. § 1014.

Judgments affirmed.

Invine Anos, New York, N.Y., for Appellant

' Hockridge.

: Of the Eastern District of New York, sitting by designation.

A-2

Appendiz A

Rosezt S. Conzex, Lanes Feinserc & Conen,

New York, N.Y. (Deborah E. Lans, New

York, N.Y., of counsel), for Appellant

Easton.

Dante, J. Konnsrem, New York, N.Y., for Ap-

pellant Petri.

Dominic F. Amonosa, Assistant United States

Attorney (Robert B. Fiske, Jr. United

States Attorney for the Southern District

of New York, David W. O’Connor, Richard

Weinberg, Assistant United States Attor-

neys, of counsel), for Appellee.

Oakes, Circuit Judge:

The principal issue raised in this appeal is the propriety

of the district court’s refusal to permit two jurors to im-

peach a partial verdict. Questions of sufficiency of the

evidence with respect to appellant Hockridge, jury bias,

adequacy of the conspiracy instructions, purported with-

holding of evidence by the Government, and erroneous

evidentiary rulings are also presented, but each merits only

limited discussion.

: Appellants Hockridge, Petri and Easton challenge the

judgments of conviction entered after an eight-week jury

trial in the United States District Court for the Southern

District of New York before Dudley B. Bonsal, Judge.

Under Count One of the indictment all three appellants

were convicted of conspiracy' (a) to misapply moneys of

the Chemical Bank (Chemical), Hockridge’s employer,

(b) to yrepore and submit false financial statements for

the purpose of obtaining loans from Chemical and from

1 18 USO. $871.

A-3

Appendia 4

the Bank of New York, and (c) to make false entries in

Chemical’s books and reports. They also were found guilty

of a substantive count—Count Two—charging misapplica-

tion and assisting in the misapplication of approximately

$1,145,000 in Chemical funds.’ Petri, the owner of various

shell companies and a borrower from Chemical, was also

convicted of substantive Count Eight for preparing a false

financial statement of the Oceanic Drug Co. for the purpose

of influencing Chemical to loan $75,000 to that company.’

Hockridge and Easton were acquitted on the Oceanic Drug

count, as were all three appellants on Counts Three, Four,

Ten through Fourteen, Seventeen, Twenty and Twenty-one.

The jury was discharged on February 18, 1977, without

having reached verdicts on the remaining counts.‘

L. Facts

From September, 1971, through the middle of June,

1972, Petri borrowed in excess of $1,300,000 from Chemi-

cal. On over twenty occasions, loans were made to worth-

less corporations owned in whole or in part by a “mini-

conglomerate” controlled by Petri known after November

2 18 U.S.C. §§ 656, 2.

3 «18 U.S.C. § 1014.

4 On April 12, 1977, Hockridge was sentenced on Count One to nine

months’ imprisonment and on Count Two to a three-year suspended sen-

tence with probation to commence upon his release from confinement.

Petri was sentenced to four years’ imprisonment on each of Counts One

and Two and two years’ imprisonment on Count Eight, all sentences to

ran concurrently. On June 15, 1977, Easton received six months’ im-

prisonment and a fine of $5,000 on Count One. On Count Two his sen-

tence was suspended and he was given three years’ probation to commence

following his release from confinement.

5 The $1,300,000 total does not include “roll-over” loans. Roll-over loans

are those in which the proceeds of a new loan are used, at least in part,

to pay off an old one.

A-4

Agovendiz A

24, 1971, as Cine-Prime Corp. Chemica] ultimately lost

over $1,100,000 on these loans.

Petri effected his scheme with the assistance of Hock-

ridge who, as an assistant vice president and loan officer at

Chemical, used his authority* to grant unsecured loans to

Petri’s corporations. Petri originally enticed Hockridge

into the conspiracy by satisfying $35,000 in loans which

the latter had previously approved to one Daniel Shed-

drick.’ Petri subsequently paid off $23,000 in overdue per-

sonal loans that Hockridge had approved to a codefendant,

George Whitney. Petri also remunerated Hockridge more

directly by diverting $14,000 of a $75,000 loan Hockridge

had approved for one of Petri’s companies to Hockridge’s

checking account in March, 1972.* Petri also provided

Hockridge with other bribes and gratuities including, but

not limited to, stock in Cine-Prime Corp. held by a nomi-

nee, a $3,000 mink coat for Hockridge’s wife, sexual favors

of a woman paid for the purpose, a pool table and gold

clubs.

For all but two of the corporate loans approved by Hock-

ridge, Easton, an officer in several of Petri’s worthless

companies, prepared unsigned corporate financial state-

ments submitted to Chemical. Some of these listed non-

6 The ceiling on his authority was $50,000 from September, 1971, to

March 6, 1972, and then $75,000 from the latter date to June, 1972,

when the :cheme was discovered and Hockridge was dismissed.

7 The payment to Sheddrick is revealing. Hockridge approved a $75,000

loan to Oveanic Drog Co. and 2 $35,000 payment to Cord Automobile

Co., two of Petri’s companies. Hockridge removed $35,000 from the

Oceanic checking account and deposited the moneys in the Cord account.

A ebeck was then drawn on the Cord secount by Petri and Easton,

payable to Sheddrick.

8 The $14,000 payoff was made when Hockridge authorized a $75,000

joan to Todays Stores Services, Inc. Hockridge then approved a $14,000

Chemical cheek payable to the Central Jersey Bank and Trust Co. where

he maintained a bank aceount. He covered the Chemica! check hy with.

drawing $14,000 from the Todays Stores Services’ account.

Appendiz A

existent assets. For example, Cord Automobile Co., ac

quired in bankruptcy for $100, was shown to have more

than $260,000 in assets. One statement, that of Todays

Stores Services, was dated even before the corporation was

formed. Others were false in various particulars.

IL Discussion

A. Sufficiency as to Hockridge

Only Hockridge disputes the sufficiency of the Govern-

ment’s proof. Viewing the evidence in the light most favor-

able to the Government, Glasser v. United States, 315 US.

60, 80 (1942); United States v. Falcone, 544 F.2d 607, 610

(2d Cir. 1976), cert. denied, 430 U.S. 916 (1977), we con-

clade tnat the evidence supports Hockridge’s conviction on

both the conspiracy and the substantive counts.

The Government’s proof at trial focused on four areas.

First, the evidence permitted the jury to find that Hock-

ridge knew that the financial statements submitted on

behalf of Petri’s corporations were false.’ Second, the jury

properly could have found that Hockridge completed false

or fictitious documents in connection with several] of the

loans."* Third, the Government’s proof demonstrated that

Hockridge knowingly violated the bank’s “group credits

rule” by approving loans in excess of his credit authority

to two or more corporations controlled by the same party

without approval of other lending officers. And finally,

Hockridge received the substantial bribes and gratuities

4 He sdmonished one witness to “tell Petri and Master to come down

off some of these wild balance sheots.”

10 On more than one occasion Hockridge falsely stated that certain loans

woald be used for working capita] or for legitimate business imvestments

when in fact the money was used to pay off persoral lcans or loans

made to other companies.

A-4&

Appendez A

detailed above." Clearly, the evidence was more than

sufficient.

B. Alleged Jury Bias or Misconduct

All three appellants assert that the jury was infected

with prejadice before the deliberations even began. On

the &fth day of an eight-week trial, Juror Number Three

reported to the judge that several ether jurors had re-

marked that the defendants were guilty. She noted, how-

ever, that the jurors were “not speaking about the case

per se,” whatever that meant. The district jucge pro-

ceeded to interview each juror individually im camera.

Several said that they had heard nothing of the kind,

although six reported that someone had made « passing

reference, in jest, to the subject of the defendents’ guilt.

Each averred that he or she would not form any opinion

of guilt or innocence until all the evidence was presented.

Each further recognized the necessity of not talking aboui

the case.

In treating charges of jury miscondnuet, the trial judge

is accorded broad discretion. United States v. Panebtanco,

543 F.2d 447, 457 (2d Cir. 1976), cert. denied, 429 UB.

1193 (1977); United States v. Flynn, 216 F.2d 354, 372 (2d

Cir. 1954), cert. dented, 348 U.S. 909 (1955): see Note,

The United States Courts of Appeals: 1975-1976 Term

Criminal Law and Procedure, 65 Geo. LJ. 203, 370-71

(1976). A criminal trial is of course no place for bias or

prejudice, even “in jest.” And faced with the threat of

bias, Judge Bonsal acted properly in conducting the m

camera interviews. If one juror had been contaminated,

11 Hockridge’s subsequent report to the bank that he had received no

A-7

Appendix A

the district judge’s prompt action could have contained

any spread of the taint. United States v. Torres, 519 F.2d

723, 727-28 (2d Cir.) (“expeditious” voir dire after defen-

dants seen in handcuffs minimized harm where all jurors

but one assured judge of continuing impartiality; unsure

juror excused), cert. denied, 423 U.S. 1019 (1975); ef.

Umited Staies v. Lord, 565 F.2d 831, 837-39 (2d Cir. 1977)

(in camera individual interrogation of juror exposed to

prejudicial publicity during trial required); United States

v. Pfingst, 477 F.2d 177, 186 (2d Cir.) (individual jurors

examined on exposure to prejudicial publicity), cert. de-

nied, 412 U.S. 941 (1973); but cf. United States v. Taylor,

562 F.2d 1345, 1359-60 (2d Cir.) (omission to conduct indi-

vidual voir dire where jury may have seen defendants in

manacles not plain error), cert. denied sub nom. Salley v.

United States, 97 S. Ct. 2958 (1977).

Likewise, on the basis of the jurors’ interview state-

ments, it was not an abuse of discretion to continue the

trial upon concluding that the jurors were not prejudiced,

a determination which the district judge was in the best

position to make. See Umited States v. Bando, 244 F.2d

833, 838 (2d Cir.), cert. denied, 355 U.S. 844 (1957); cf.

United States v. Chiarizio, 525 F.2d 289, 293 (2d Cir.

1975) (factual findings at pretrial suppression hearing

are reversible on appeal only if clearly erroneous); 3

C. Wright, Federal Practice and Procedure § 678, at 143

(1969) (same).

C. Juror Impeachment of Partial Verdict

Appellants’ principal contention is best understood in

its specific factual context. The jury began deliberations

on Friday morning, February 11, 1977, and continued

until 9:30 that evening. Reconvening on Monday morning,

February 14, it deliberated until about 6:30 p.m. when the

Appendix A

court informed counsel that it would exercise its preroga-

tive under Rule 31(b) of the Federal Rules of Criminal

Procedure” to ask the jury whether it had reached a par-

tial verdict. The jurors responded affirmatively, announc-

ing their verdict of guilty on Count One. After the jurors

were polled, the guiliy verdicts were recorded. Delibera-

tions resumed on Tuesday, February 15. At about 5:00

p.m., the judge received a note from Juror Number Four

asking to see him, a request with which he did not immedi-

ately comply. The following morning at about 9:30 a.m.

he received a note from Juror Number Three. She also

sought a meeting with the judge, fearing that she had

committed “a grave injustice” by rushing into the verdict.

With consent of counsel, the judge conducted an on-the-

record in camera interview with Jurors Three and Four.

Daring the questioning both jurors expressed their concern

with the partial verdict. Juror Number Three believed that

12 Bale 31(b) provides:

Several Defendants. If there are two or more defendants, the

jury at emy time during its deliberations may retara a verdict or

verdicts with rempect to a defendsent or defendants as to whem it

has agreed; if the jury cannot agree with rempect to al), the Asfer-

dant or defenda~ts as to whom it does not agres may be tried azain.

Fed. R Crim P. 31(b). In explicating Rule 31(b), Profesor Wright

states that

its abeut

remaining charges [citing, inter alia, United States v. Conti 36!

F2d 153 (234 Cir. 1968), vacated end remanded on other srounds

sub nom. Stone Vv. United States, 398 UR S04 ( =

permitting the practice here described, Bale 31(%) is im accord with

the prior law [citing, inter alia, Velied States v. Frankd, G F.2d

285 (24 Cir.), cort. denied, 290 UA. G82 (1983) }.

2 C. Wright, Federal Practice and Procedure § 513, at 308-62 (1960).

@ verdict on ous or more counts. United States v. Bavash, 412 F.24 26.

31-32 (24 Cir.), cert. denied, 396 US. S32 (1909); McDonald v. Com.

monwealth, 173 Mam. 322, 328, 53 NE. 874, S75 (1899).

A-9

Appendiz A

“there was not evidence to make [her] decide that Mr.

Hockridge and Mr. Peiri. were invoived im a conspiracy.”

Juror Number Four expressed doubts about Easton’s guilt

and indicated that she “felt like [at] the last minute we

were railroaded. . . .”"* The judge reminded the two

jurors that he did not want them “ever to surrender

[their] honest convictions.” Juror Number Three replied

that she thought she had done so “because of verbal at-

tack.” The judge urged her “to get hardened to that,” to

“think about this some more,” and to consider each de-

fendant separately. He then said:

You did come in with a verdict ou three of them. I

would like you to think about that and resume your

deliberations and then we’ll see how it goes today with

the deliberations and then perhaps after we finish

here I will want to see you again.

Juzsor No. 3: I don’t understand what you mean.

Continue the deliberating—

Tae Court: After the jury finishes, I think I will

want to see you again and talk again about some of

these things that you have told me this morning. But

I think it would be wise if both of you could go back

with the jurors.

The jurors then resumed deliberations and never again

intimated any donbts of appellants’ guilt on Count One.

Indeed, they acquitted a codefendant on Count One that

day. On Thursday, February 17, the jury announced its

findings that the three appellants were guilty and a co-

defendant innocent on Count Two, and that all defendants

were not guilty on Counts Three and Four. On the sixth

13 She told the court that she had been “attacked incredibly” on the

first day of deliberations but agreed with .

A-10

Appendix A

and last day of deliberations, Friday, February 18, the

jury announced partial verdicts of not guilty as te all

three appellants on nine more counts with the exception of

Petri who was found guilty on Count Eight. The jury was

discharged without reaching verdicts on the remaining

counts even though there was no indication that it was

deadlocked.

In response to formal post-trial motions to set aside

the verdicts, Judge Bonsal held that the jurors’ in camera

interview statements could not affect their verdict on

Count One. Alternatively, the judge concluded that the

two jurors did not “surrender their honest convictions” in

finding the appellants guilty on thai count.

Challenging the district judge’s adverse ruling, appel-

lants argue vigorously that the statements of the jurors

were competent to impeach the verdict on Count One for

essentially two reasons. First, the jury had not been dis-

charged, thereby making Rule 606(b) of the Federal Rules

of Evidence’* inapposite. Second, when a juror has sur-

rendered “a conscientious conviction,” the verdict must be

set aside since it was not unanimous. Grace Limes, Inc. v.

Motley, 439 F.2d 1028, 1032 (2d Cir. 1971); see United

A-11

Appendiz A

States v. Pleva, 66 F.2d 529, 531-33 (2d Cir. 1933); 6A

Moore’s Federal Practice § 59.08[4], at 127-28 (1974).

Neither the cases nor the treatises definitively answer

the question whether Rule 606(b) bars the impeachment

of a partial verdict by the voluntary and spontaneous

testimony of a juror prior to the jury’s discharge. In

Viezini v. Ford Motor Co., 72 F.R.D. 132 (E.D. Pa. 1976),

relied on by the Government, the jury returned a verdict

of liability to a civil plaintiff which was recorded, but

during deliberations on damages it revealed that the li-

ability verdict was a compromise. The district court let

the verdict on liability stand, relying on Rule 606(b), and

submitted the question of damages to a new jury. The

Third Circuit reversed, No. 76-2529 (3d Cir., filed Dec. 16,

1977), but reserved decision on the Rule 606(b) question,

holding that the issues of liability and damages were so

related as not to permit severability."* The appellants’

cases are equally inconclusive.** Even the leading treatises

15 We note that the level of symbiosis between liability and damages that

existed in Viesini ordinarily would not pertain to partial verdicts on

separate counts of an indictment.

16 In United States v. Pleva, 66 F.2d 529 (2d Cir. 1933), the conviction

was reversed on appeal where a juror had informed the trial judge

while the jury was being polled and before the verdict was recorded

that he had voted for conviction because of his own illness. Here, of

course, the jurors’ statements were made after the verdict on Count One

had been recorded. Grace Lines, Inc. v. Motley, 489 F.2d 1028 (2d Cir.

1971), is similarly unavailing. A juror’s statement on polling that she

had consented to the verdict in the interests of unanimity was insuff-

cient to show surrender of an honest conviction. Id. at 1032 (Anderson,

J.); id. at 1033-34 (Lumbard, J., concurring). See 6A Moore's Fed-

eral Practice 4 59.08[4], at 130 (1974). Many cases in this cireuit state

the usual rule that jurors’ statements received after discharge may not

be received to impeach the verdict. E.g., United States v. Grieco, 26)

F.2d 414, 415 (2d Cir. 1958) (per curiam) (juror intimidated by “blus-

tering arrogance” of another juror), cert. denied, 359 U.8. 907 (1959) ;

Rotondo Vv. Isthmian 8.8. Co., 243 F.2d 581, 583 (2d Cir.) (post-discharge

statements explaining reasons for verdict are incompetent), cert. denied,

855 U.S. 834 (1957).

A-12

Appendiz A

ignore the relationship between Rule 606(b) and partial

verdicts after which a jury continues its deliberations."

To buttress appellants’ purported distinction between

impeachment of complete verdicts on the one hand and

partial verdicts followed by continuing deliberations on the

other, they suggest that the interests in protecting free-

dom of deliberation and freedom from post-verdict annoy-

ance, embarrassment, or harassment are not implicated

when the impeaching statements or incidents both occur

and are inquired into by the court before the jury has been

discharged. Appellants’ position, however, is defective

for two reasons. First, it mischaracterizes the impeach-

ment of partial verdicts as not implicating the jury’s free-

dom of deliberation. And second, it overlooks another im-

portant interest served by the rule against verdict im-

peachment—verdict finality.

While the freedom of jury deliberations is less threat-

ened by impeachment of partial verdicts than hy impeach-

ment of verdicts generally, it is, nevertheless, clearly

impinged. The inquiry requested by appellants in this

case is a prime example. It would have necessitated

scrutiny of the deliberations of the jury including the

mental processes of the jurors, a result inconsistent with

17 See 6A Moore’s Federal Practice, supra note 16, 1 59.08[4], at 123-52;

3 J. Weinstein & M. Berger, Evidence §§ 606[01]-[05], at 606-1-46;

8 Wigmore, Evidence §§ 2348-56 (McNaughton rev. ed. 1961); Wright,

supra note 12, § 554, at 488-95; The ABA Standards Relating to Trial

by Jury §5.7 (Approved Draft 1968) [hereinafter ABA Standards).

18 Wigmore noted in a non-partial verdict context that “the dangers of

uncertainty and of tampering with the jurors to procure testimony,

disappear in large part if such investigation as may be desired is made

by the judge and takes place before the jurors’ discharge and separa-

tion.” 8 Wigmore, supra note 17, § 2350, at 691 (emphasis in original).

See ABA Standards, supra note 17, $5.7(a), at 173. Wigmore points

out, however, the danger of abuse from an overactive judge attempting

to browbeat a jury out of its sincere conclusion, as in Rez v. Shipley.

21 How. St. Tr. 847, 950n, 951 (1784). Wigmore, supra, § 2350, at 69°.

A-13

Appendiz A

the strictures of Rule 606(b). The legislative history of

Rule 606(b), while perhaps not determinative, reveals the

strong congressional purpose of protecting the jury de-

liberation process. The House version embodied a sug-

gestion of the Advisory Committee of the Judicial Con-

ference to delete the proscription against testimony on

“any matter or statement occurring during the course of

the jury’s deliberations,” previously adopted by the Su-

preme Court. It retained the prohibition against inquiry

into the mental processes of the jurors. See H.R. Rep.

No. 93-650, 93d Cong., Ist Sess. 9-10 (1973). The Senate,

however, thought any inquiry into internal deliberations

of the jury unsound, and its report, citing McDonald v.

Pless, 238 U.S. 264, 267 (1915), called for reinstatement

of the proscription. S. Rep. No. 93-1277, 93d Cong., 2d

Sess. 13-14 (1974). The Senate view ultimately prevailed.

Similar considerations seemingly apply to a partial ver-

dict; the policy against intrusion into internal delibera-

tions remains the same. Furthermore, it must be assumed

that in enacting the Federal Rules of Evidence Congress

did not act in a vacuum, but rather had in mind the Fed-

eral Rules of Criminal Procedure, including Rule 31(b).

Appellants’ position also fails to recognize the impor-

tant interest in verdict finality which is furthered by Rule

606(b). Finality obviously would be enhanced by extend-

ing the rule against impeachment to partial verdicts

which have been recorded. A partial verdict should be

given final effect since “[i]t would only promote irrespon-

sible hesitation to tell [the jury] that they must reserve

their decision altogether until they got through; the appel-

lants had no right in [the jury’s] subsequent vacillations.”

United States v. Cotter, 60 F.2d 689, 690 (2d Cir.) (L.

Hand, J.), cert. demed, 287 U.S. 666 (1932). The reason

for taking a partial verdict is apparent in cases where

there has been a long trial and there exists the prospect

A-14

Appendiz A

of long deliberations. By taking a partial verdict, the

court is able to hedge against the possibility of juror ill-

ness or death or prejudice by publicity. Of course, final-

ity is not sought for its own sake. But where a partial

verdict has been recorded, we perceive no reasons of

sufficient magnitude to depart from the normal rules gov-

erning impeachment of jury verdicts.” A recorded partial

verdict ought not to be disturbed absent a showing of the

type which would permit impeachment of a complete

verdict.

In this particular case Judge Bonsal entered into a

discussion with the two jurors which to some extent

implied that they might, along with the other jurors,

reconsider the recorded verdict. To the extent that this

may have been error, it was harmless.

After the in camera interviews with Judge Bonsal, the

two jurors joined the others in verdicts of guilt and inno-

cence on a number of counts. At no point did they again

voice any reservation with respect to appellants’ convic-

tion on Count One. The appellants argue that Judge

Bonsal’s conduct in dealing with the two jurors had the

effect of coercing them into giving up reasonable doubts

they may have had about appellants’ guilt in subsequent

deliberations. This contention might have some merit if

Judge Bonsal’s in camera conduct had in any way been

19 A partial verdict still requires the affirmative act of assenting to a

verdict either by express answer to the clerk at polling in open court

or by silence which implies assent. See 8 Wigmore, supra note 17, § 2355,

at 717. “The record of a verdiet implies a unanimous consent of the

jury, and is conclusive and incontrovertible evidence of the fact.” Grin-

nell v. Phillips, 1 Mass. 529, 542 (1805). Although here there was no

individual polling, none was requested. Appellants, therefore, waived

the right. See Humphries v. District of Columbia, 174 U.8. 190, 194-95

(1899); United States v. Dye, 61 F. Supp. 457, 459 (W.D. Ky. 1945);

ABA Standards, supra note 17, $5.5; cf. Hernandes v. Deigado, 375

F.2d 584 (lst Cir. 1967) (no violation of due process to infer waiver

of right to poll jury from silence).

A-15

Appendia A

coercive, but his management of this difficult and novel

situation was the opposite of coercive.** We emphasize,

however, that in the future the appropriate action of the

trial judge faced with a similar request by a juror to

reconsider a prior recorded partial verdict should be to

advise the juror simply that such a verdict is final, avoid-

ing the discussion engaged in here.

D. Other Issues

Appellants’ remaining contentions require scant com-

ment. Hockridge asserts that the Government failed to

reveal an ongoing investigation of a “money-washing”

operation in several Chemical branches in violation of

Brady v. Maryland."* The inquiry centered on Chemical’s

failure to comply with federal currency requirements.

How this entirely unrelated investigation would have

tended to create a reasonable doubt of Hockridge’s guilt

is not demonstrated. Absent such a showing, no new trial

is required. United States v. Agurs, 427 U.S. 97, 112-13

(1976).

20 Concededly, the district judge’s directions to the two jurors were some-

what ambiguous. Ante at 2141. If he was urging the jurors to delib-

erate further on Count One, we believe that under the view we have

taken of Rule 606(b)’s application to partial verdicts, the district judge

exceeded his authority. Appellants could not complain of that error,

however, since it was favorable to their position.

In any event, Judge Bonsal’s instructions were clearly noncoercive.

True, he did not diseuss the matter further with the jurors, as he told

them he would do. But there did not appear to be any need for addi-

ticnal communications as the jury deliberations progressed. Moreover,

although appellants moved to set aside the verdict and for a mistrial]

when counsel were informed of the colloquy between the judge and the

two jurors, no objéction to the judge’s failure later to discuss the ver-

dict was ever lodged, nor did appellants ever request redeliberation by

the entire jury on Count One. Accordingly, they would have to abide

the result reached here even if the recorded partial verdict was not, by

virtue of the, trial judge’s discussion with the two jurors, entitled to

final effect.

21 373 U.S. 83 (1963).

A-16

Appendiz A

Hockridge argues that the court failed adequately to

explain to the jury the “thrust of the conspiracy count,”

Brief for Appellant Hockridge at 34, urging that he was

at most a “casual facilitator,” id. at 28. See United States

v. Hysohion, 448 F.2d 343, 347 (2d Cir. 1971). We find that

the judge’s conspiracy charge** was proper under the au-

thorities in this circuit** and that the evidence was clearly

sufficient to implicate Hockridge as a participant in the

scheme to defraud the bank.

Easton contends that the court improperly permitted

proof of extraneous crimes committed by himself and

Petri. Specifically the Government offered proof to show

that Easton and Petri failed to withhold requisite taxes

from corporate employees. However, this evidence tended

to show how the conspiracy operated by suggesting that

the Petri corporations were simply shells formed to obtain

loans. As such the evidence was plainly admissible under

Federal Rule of Evidence 404(b),** without creating undue

22 The court charged that “a conspiracy is a combination or partnership,

if you will, of two or more people to violate the law... .” It also

charged that the Government must prove

23 B.g., United States v. Rosenblatt, 554 F.2d 36 (24 Cir. 1977); United

States v. Kahaner, 317 F.2d 459, 474-82 (24 Cir.), cert. denied, 375 US,

836 (1963).

24 Other crimes, wrongs, or acts. Evidence of other crimes, wrongs,

to show that he acted in conformity therewith. It may, however,

be admissible for other purposes, such as proof of motive, oppor-

tunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.

Fed. BR. Evid. 404(b).

A-17

Appendix A

prejudice, confusion or wasic of time so as to be exclud-

able under Rule 403."

Easton also complains that the Government was errone-

ously pcrinitted to cross-examine bim on the increase of his

net worth by over $2,000,000 between 1972 and 1974. Bat

he cannot complain now where he failed to object to this

line of inquiry at trial. Unsted States v. Brauntg, 553 F.2d

777, 780 (2d Cir.), cert. denied, 431 U.S. 959 (1977). More-

over, there was proof that some of the Chemical loan pro-

ceeds were diverted to his personal chécking account, al-

thovgh he denied this for the most part. Thus the Govern-

ment could properly inquire into whether he had used

Chemical money to finance personal business ventures which

culminated in an increase in his net worth. See Usited

States v. Tramunti, 513 F.2d 1087, 1105 (2d Cir.), cert.

denied, 423 U.S. 832 (1975) ; United States v. Jackskion, 102

F.2d 683, 684 (2d Cir.), cert. denied, 307 U.S. 635 (1939).

None of the other points raised by appellants merits

Judgments affirmed.

25 Although relevant, evidence may be sacluded if its probative volue

ia substantially outweigbed by the danger of unfaiz prejudir<, con-

fusion of the issues, or misleading the jury, or by c~usiderations

of undue delay, waste of time, or needles presentation of cumula

tuve evidence.

Fed. R. Evid. 403.

A-18

APPENDIX B

Unreported Opinion and Order of the United States

District Court for the Southern District of New York

Entered April 13, 1977 Denying Motion by Defendants

Hockridge and Petri to Set Aside Verdict

UNITED STATES DISTRICT COURT

SourHern District or New York

76 Cr. 843

Unirep Sratres or AMERICA,

Witu1aM Hockrmer, et al.,

Defendants.

MEMORANDUM

BonsaL, D. J.

Prior to the sentencing of defendants William Hock-

ridge and Charles Petri this day, the Court denied their

motions and stated it would amplify its reasons for doing

so in this Memorandum.

Defendants William Hockridge and Charles Petri move

pursuant to Rule 33 of the Federal Rules of Criminal

Procedure to have the Court set aside a jury verdict of

guilty and grant them a new trial. Defendant Petri also

moves pursuant to Rule 29 (F. R. Cr. P.) to have the

A-19

Appendic B

Court set aside the verdict and enter judgment of aequit-

tal.

Defendants Hockridge and Petri contend: (1) that state-

ments made by two jurors during an in camera interview

conducted by the Court on February 16, 1977, the fourth

day of jury deliberations, after the jury had returned a

partial verdict of guilty on the conspiracy count, indicate

that these jurors had not been convinced of the defend-

ants’ participation in the conspiracy beyond a reasonable

doubt and had surrendered their conscientious convictions

in aequiescing in the verdict of their fellow jurors; (2)

that if the verdict on the conspiracy count is set aside, the

verdict(s) of guilty on the substantive count(s) must also

be set aside; (3) that the taking of a partial verdict on

the conspiracy count was improper; and (4) that the

Government improperly withheld from the defendants in-

formation that the Chemical Bank was under investiga-

tion.

In charging the jury that they should exchange views

and that they should not be afraid to surrender their

original views, the Court instructed the jury that they

should never surrender their honest convictions for any

reason whatsoever. The Court is satisfied that neither of

the two jurors surrendered their honest convictions. See

United States v. Grieco, 261 F.2d 414 (2d Cir. 1958), cert.

denied, 359 U.S. 907 (1959).

The jurors who were interviewed were instructed to go

back to the jury room and discuss their concerns with

their fellow jurors. The next day they joined with their

fellow jurors in finding the defendants Hockridge, Petri

and Easton guilty on Count 2 (misapplication of funds),

and the following day they found the defendant Petri

A-20

Appendia B

guilty on Count 8 (false statement). On each occasion

the jurors were individually polled. Moreover, all the

jurors joined in verdicts of not guilty on a number of the

substantive counts. It is apparent therefore that the con-

cerns of the two jurors interviewed were met by subse-

quent deliberations with their fellow jurors.

The Court also concludes that the taking of the partial

verdict pursuant to Rule 31(b) (F.R.Cr.P.) with respect

to the conspiracy count was proper under the cireum-

stances. The Court had directed the jury to reach a ver-

dict on the conspiracy count before deliberating on the

substantive counts. The jury had deliberated for two

days before they were asked if they had reached a ver-

dict on any count. Since the purpose of taking a partial

verdict is to avoid a costly and time-consuming retrial in

the event that one of the jurors becomes incapacitated,

it was in the interest of the defendants as well as the

Government to ask whether they had reached a verdict

on any count.

Nor were the defendants prejudiced by the “Pinkerton”

charge. The Court made it clear that they may apply

Pinkerton if they had found the defendant they were con-

sidering guilty under the conspiracy count. The fact that

they found defendants Hockridge and Petri not guilty of

a number of substantive counts, after finding them guilty

on the conspiracy count, is a clear indication that the de-

fendants were not prejudiced by the Pinkerton charge.

Finally, the defendants were not prejudiced by the al-

leged failure of the Government to disclose that the Chem-

ical Bank was under investigation. This was clearly not

relevant to the facts of this case.

A-21

Appendix B

For the foregoing reasons, the defendants’ motions are

denied,

It is so ordered.

Dated: New York, N.Y.

April 12, 1977

Dubey B. Bonsau

U.S.D.J.

A-22

APPENDIX C

Judgment

Judgment Entered June 15, 1977

UNITED STATES DISTRICT COURT

For SovrHern District or New York

Unitep States oF AMERICA,

vs.

SrerHen K. Easton,

Defendant.

Docket No. 76 Cr. 843 DBB

—_—»—

JUDGMENT AND Propavton/COMMITMENT ORDER

Counsel: In the presence of the attorney for the gov-

ernment the defendant appeared in person on this 6th

month, 15th day, ’77, with counsel William Sherr.

Plea: Not guilty.

Finding and Judgment: There being a verdict of guilty.

Defendant has been convicted as charged of the offenses

of unlawfully, wilfully and knowingly embezzle, abstract,

purloin and wilfully misapply the moneys, funds and

eredits of the Chemical Bank and the moneys, funds and

assets entrusted to the custody and care of said bank.

A-23

Appendix C

Title 18, U.S. Coce, §§656 and 2.); conspiracy so to do.

(Title 18, U.S. Code, $371.)

Sentence or Probation Order: The court asked whether

defendant had anything to say why judgment should not

be pronounced. Because no suflicient cause to the con-

trary was shown, or appeared to the court, the court ad-

judged the defendant guilty as charged and convicted and

ordered that: The defendant is hereby committed to the

custody of the Attorney General or his authorized rep-

resentative for imprisonment for a period of Six (6)

Monrus on count 1 and Fivxep $5,000.00 on count 1. Fine

is to be paid within 60 days or the defendant is to be com-

mitted until the fine is paid or he is otherwise discharged

according to law.

Imposition of sentence on count 2 is suspended. De-

fendant is placed on probation for a period of THrer (3)

Years, to commence upon expiration of confinement im-

posed on count 1, subject to the standing probation order

of this Court.

Special Conditions of Probation: Defendant is con-

tinued on present bail for 60 days, at which time he is to

surrender for service of sentence.

(SEAL)

By:

Clerk

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