Opposition — Mulligan v. United States

No. 77-1667

$$$ —— —— _ — Ee

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

DENNIS W. MULLIGAN, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. MCCREE, JR.,

Solicitor General,

PHILIP B. HEYMANN,

Assistant Attorney General,

JOSEPH S. DAVIES, JR.,

MARSHALL T. GOLDING,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

Opinion below 1

# Jurisdiction - 1

:

. Question presented . 2

Statement 2

Argument 6

Conclusion — arene 13

CITATIONS

Cases:

Carpenter v. United States, 100 F.2d

716. a ee rer 8,9

DeRosier v. United States, 407 F.2d 959 8

Irvin v. Dowd, 366 U.S. 717 7,8

Jackson v. United States, 395 F.2d 615 = 8,9

Jackson v. United States, 408 F.2d 306 8

Marshall v. United States, 355 F.2d 999,

certiorari denied, 385 U.S. 815 __- 7

) Mikus v. United States, 433 F.2d 719 | 7

Ryan v. United States, 191 F.2d 779,

certiorari denied sub nom. Duncan v.

| United States, 342 U.S. 928 _ 8

Stein v. New York, 346 U.S. 156 —~——sSY'7;« 11, 12

Turner v. United States, 416 F.2d 815 7,9

United States v. Baker, 266 F.Supp. 461,

remanded on other grounds, 401 F.2d

Bad CIS ee A RN SES nr REE 7-8

United States v. Brasco, 516 F.2d 816,

certiorari denied, 423 U.S. 860 13

United States v. Dioguardi, 492 F.2d 70,

certiorari denied, 419 U.S. 873 8,11

II

Cases—Continued Page

United States v. Green, 523 F.2d 229, cer-

tiorari denied, 423 U.S. 1074. _. 12

United States v. Grieco, 261 F.2d 414,

certiorari denied, 359 U.S. 907 _ _ 12

United States v. Robbins, 500 F.2d 650 8

Williams v. United States, 418 F.2d 372 8

Statutes and rule:

18 U.S.C. 371 peaesecaiasiommaabiai 2

18 U.S.C. 1623 Sedan 2,3

18 U.S.C. 2113(d) —— pani | 2

28 U.S.C. 1865(b) (4) _. 10

Fed. R. of Evid. 606(b) , 8,11

Miscellaneous:

3 Weinstein’s Evidence (1977) - ae 8

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 77-1667

DENNIS W. MULLIGAN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App.

2a-lla) is reported at 573 F.2d 775.

JURISDICTION

The judgment of the court of appeals (Pet. App.

la) was entered on April 3, 1978. The petition for

a writ of certiorari was filed on May 3, 1978. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

QUESTION PRESENTED

Whether petitioner was deprived of a fair trial by

an impartial jury because of the alleged bias, mis-

conduct, or incompetency of one of the jurors.

STATEMENT

After a jury trial in the United States District

Court for the Southern District of New York, peti-

tioner was convicted of making a false material

declaration under oath to a grand jury, in violation

of 18 U.S.C. 1623." He was sentenced to two years’

imprisonment. The court of appeals affirmed (Pet.

App. 2a-lla).

The government’s evidence showed that petitioner,

a New York City Police Detective, and others par-

ticipated in the robbery of the New York Hospital

Branch of the First National City Bank. The rob-

bery was executed by Frank Smith, Martin Shannon

and co-defendant Cerasani, while petitioner stood

guard and drove the getaway car. Smith and Shan-

non were the government’s chief witnesses at trial.

1 Petitioner and co-defendant John Cerasani were charged

with aggravated bank robbery, in violation of 18 U.S.C.

2113(d), and conspiracy to commit bank robbery, in violation

of 18 U.S.C. 371. Petitioner was also charged with five counts

of making false material declarations under oath to a grand

jury in violation of 18 U.S.C. 1623. A previous trial on the

bank robbery, conspiracy, and two false declaration counts

resulted in a hung jury as to both defendants on all counts.

On retrial, following two days of deliberation, petitioner was

convicted of one of the two false declaration counts; the jury

again disagreed on the remaining counts in respect to both

him and his co-defendant (Pet. App. 3a).

3

The false declaration that formed the basis for

petitioner’s conviction under Section 1623 was his

statement under oath to the grand jury that he did

not recognize Cerasani’s photograph, name, or nick-

name. Shannon and Smith testified that petitioner

had plotted with them and Cerasani to rob the bank

and had driven the getaway car containing the loot.

Shannon also testified that petitioner divided the pro-

ceeds shortly after the robbery in his and Cerasani’s

presence. (Tr. 225-232, 640-643, 645-649). In addi-

tion, evidence showed that five months before peti-

tioner’s grand jury testimony, a two-minute phone

call was placed from Cerasani’s telephone to petition-

er’s on a day that petitioner was off duty (Tr. 489-

495, 507-508; GX 41, 42, 45, 45A-45D).

Shortly after the verdict the district court received

a letter (A. 77)* from one of the jurors, Mr. Yusef

Bulos, stating, in substance, that he regretted having

voted to convict petitioner of committing perjury be-

fore the grand jury, and that he and two or three

other members of the jury had voted for conviction

on the perjury count in the hope of persuading the

rest of the jury to vote for acquittal on the other

counts (Pet. App. 4a). The court forwarded the

letter to counsel, and upon the government’s motion,

entered a protective order prohibiting the parties

from communicating with any member of the jury

(Tr. of June 28, 1977, p. 7).

Subsequently another juror, Virginia Stephenson

sent a letter (A. 78-81) to the Assistant United

*“A.” refers to the appendix in the court of appeals.

4

States Attorney who had represented the government

at trial. The Assistant immediately furnished copies

of the letter to defense counsel and the court (A.

123). In the letter, Stephenson stated that on one

occasion the jurors had voted eleven to one for ac-

quittal, she being the only holdout. She also expressed

her thrill at having participated in the trial, her

admiration for both the prosecutor and the judge, her

restored faith in the judicial system, and her satis-

faction with the verdict. She also stated that she

had begun to write a book that would be a fictional

portrayal of the witness Smith and asked for assist-

ance in obtaining transcripts of Smith’s testimony at

prior trials.

After counsel for petitioner received a copy of the

letter, they investigated further into Stephenson’s

background. They discovered that in 1973 she had a

dispute with a United States Postal Service employee.

Angered because postal trucks were being parked

near her apartment with their motors running, she

went to the post office to complain. On the way, she

got into an argument with the employee and struck

him with a ball-point pen, inflicting a minor lacera-

tion. She was arrested by the New York City Police

and charged with felonious assault, after which she

was fingerprinted and held overnight for arraign-

ment on the following day. The next day she was

released on her own recognizance, and the criminal

charges were subsequently dismissed. The postal em-

ployee later brought a civil suit against her and re-

5

or compensation for his injury (Pet. App. 4a-

a).

Because Stephenson had denied on voir dire that

she had had any disputes with the United States or

that she had “ever been involved in a criminal case,”

petitioner moved for a new trial. He argued that

Stephenson had perjured herself during voir dire and

that, as a result of the undisclosed incident, she must

have become biased against New York City police-

men. He also contended that her letter showed that

she had mental and emotional problems which pre-

vented her from performing her duty as a juror (Pet.

App. 5a).

At a hearing on petitioner’s motion, Stephenson

explained to the court that after her alleged assault

on the post office employee she had spent the night

in jail and had been arraigned the next morning on

a felony-assault charge, which was later reduced to

a misdemeanor charge and then dismissed on the

motion of the District Attorney when the complain-

ing witness failed to appear for trial (A. 242-245).

Under a provision of state law then in effect, she

moved for and obtained return of all photographs

and fingerprints taken upon her arrest (A. 145-146,

182-183, 245-247). She also stated that her attorney

had advised her that, because charges were dropped,

she could honestly deny having been involved in a

criminal case or having been arrested (A. 144). She

also denied having any grudge against the police de-

partment because of her arrest (A. 146-147). Al-

though she had testified during the civil trial that

she had been chased and punched in the stomach by

6

the postal employee, she testified during the hearing

in the instant case that she did not regard herself as

having been the victim of a crime through these

events (Pet. 7; A. 149).

The court found that the juror’s voir dire answer

had not been perjurious but instead was based on a

good-faith belief that she was entitled to treat the

prior criminal case as a nullity, that she did not pos-

sess and was not concealing any animus against peti-

tioner, and that there was no showing that petitioner

had been prejudiced even if the voir dire answer

were assumed to be deliberately false (A. 154-155).°

ARGUMENT

This case involves the application of settled prin-

ciples of law to the particular facts. The district

court resolved the relevant factual issues against pe-

titioner, and the court of appeals correctly held that

the district court’s factual determinations were not

clearly erroneous. That conclusion does not warrant

this Court’s review.

Petitioner contends that the verdict should be set

aside because (1) he would have peremptorily chal-

8 After the judge’s ruling, petitioner received permission to

call the lawyer who represented Stephenson during the pro-

ceedings against her. The lawyer stated he recalled helping her

get her fingerprints back from the police after the charge was

dropped and, although he did not recall the specific advice

he gave her on the subject of her arrest, he stated that the

conversation which she described “certainly could have taken

place” (A. 180-182). Following this testimony, the judge re-

affirmed his ruling on petitioner’s motion for a new trial (A.

197-198).

s. a

7

lenged Juror Stephenson if he had known about her

prior involvement with the police (Pet. 9-11), (2)

Juror Stephenson “willfully concealed her prior ex-

periences with the police” during voir dire (Pet. 12-

16), and (3) events during and after the trial dem-

onstrated that Juror Stephenson was biased and

mentally incompetent (Pet. 16-22). The first con-

tention is based on an erroneous legal premise, and

the second and third are factual contentions that

the district court resolved against petitioner.

1. A defendant is not entitled to have a verdict

set aside merely because facts come to light after

trial that might have, or even probably would have,

led the defendant to challenge the juror before trial

had he known of them at the time. In view of the

strong public interest in the finality of verdicts and

the need to prevent endless litigation and harassment

of jurors, attacks upon a verdict after trial are per-

mitted only on limited grounds and in exceptional

circumstances.‘ One of the grounds that courts have

recognized is proof that a juror lied to a material

question on voir dire and that the defendant was

thereby prejudiced. See, e.g., Turner v. United States,

416 F.2d 815, 817 (C.A.D.C.); Marshall v. United

States, 355 F.2d 999, 1009 (C.A. 9), certiorari de-

nied, 385 U.S. 815; United States v. Baker, 266 F.

*The same considerations of public policy have led the

courts to recognize a strong presumption that juries are im-

partial and to impose the burden of proving bias or prejudice

on the party attacking the verdict. See Irvin v. Dowd, 366 U.S.

717, 723; Stein v. New York, 346 U.S. 156, 178; Mikus v.

United States, 483 F.2d 719, 723 (C.A. 2).

8

Supp. 461, 462-463 (D. D.C.), remanded on other

grounds, 401 F.2d 958 (C.A.D.C.).° But in the ab-

sence of such proof, the courts have properly de-

clined to set aside verdicts on the basis of subse-

quently uncovered evidence that might have led to

striking the juror, unless the evidence is of such a

character as to compel the presumption of bias or

unfitness. See, e.g., United States v. Robbins, 500

F.2d 650, 653, n. 6 (C.A. 5); Williams v. United

States, 418 F.2d 372, 377 (C.A. 10); Jackson v.

United States, 408 F.2d 306, 308-309 (C.A. 9);

DeRosier v. United States, 407 F.2d 959, 963 (C.A.

8); Ryan v. United States, 191 F.2d 779, 780 (C.A.

D.C.), certiorari denied sub nom. Duncan v. United

States, 342 U.S. 928. And the trial court is properly

vested with broad discretion in determining whether

the juror lied and whether the information is suffi-

ciently indicative of prejudice or unfitness to war-

rant a new trial. 3 Weinstein’s Evidence ‘ 606[04]

(1977) ;° see Irvin v. Dowd, 366 U.S. 717, 723.

° Other grounds include proof that “extraneous prejudicial

information was improperly brought to the jury’s attention”

or that “outside influence was improperly brought to bear upon

any juror” (Fed. R. Evid. 606(b)), or evidence clearly show-

ing that a juror was mentally incompetent. Cf. United States

v. Dioguardi, 492 F.2d 70, 80-81 (C.A. 2), certiorari denied,

419 U.S. 873. See discussion, infra, pp. 11-12.

* Petitioner relies (Pet. 9-12) on Jackson v. United States,

395 F.2d 615 (C.A.D.C.), and Carpenter v. United States, 100

F.2d 716, 717 (C.A.D.C.), but those cases are inapposite. In

Jackson the defendant was charged with murdering his

former wife and assaulting her lover. After conviction it was

discovered that one of the jurors had been recently involved

- — ~~ eee

{¢

9

2. Petitioner’s claim that Juror Stephenson “will-

fully concealed her prior experiences with the police’”’

was specifically rejected by the district court, and the

court’s determination was not clearly erroneous. The

experience in question occurred four years prior to

trial; the criminal charges against Stephenson were

dismissed shortly thereafter; and the court credited

her testimony that her lawyer had advised her that

she could treat the criminal case and the arrest as

a nullity, and did so specifically with reference to

jury duty (Pet. App. 5a). Moreover, contrary to pe-

titioner’s suggestion (Pet. 8), her lawyer did not

undermine that claim; he specifically stated that the

in a very similar situation as the alleged lover of a murdered

woman. The court of appeals ordered a new trial) on the

ground that the presumption of prejudice was “manifest”

(395 F.2d at 617), even though the matter had not been

explored on voir dire. The court did not suggest that a new

trial is required whenever information is subsequently dis-

closed that would probably have led the defense to challenge

the juror, and subsequent decisions of the District of Columbia

Circuit have rejected such a rule. See, e.g., Turner v. United

States, supra.

Carpenter, far frora supporting petitioner’s claim, stands

for precisely the opposite proposition. There it was discovered

that a juror had previously known defense counsel, contrary

to his statement on voir dire. The district court denied a new

trial motion on the ground that the juror had not recognized

counsel at voir dire and therefore did not purposefully conceal

the fact. The court of appeals affirmed, stating (100 F.2d at

717; emphasis supplied): “[I]f [a juror] conceals a material

fact which, if disclosed, would probably have induced counsel

to strike him from the jury, a new trial should ordinarily be

ordered.” Without proof of willful concealment, however, a

new trial should not be ordered in the absence of manifest

prejudice.

10

conversation Stephenson described “certainly could

have taken place” (Pet. App. 6a).

The district court also found that Stephenson’s

prior experience did not establish such potential for

prejudice as to require a new trial. That finding

was based on Stephenson’s statements, which the court

credited, that she had “no grudge against the Police

Department whatsoever” and did not conceal any

animus against any party in order to get on the jury

(Pet. App. 6a). That finding was not clearly er-

roneous.’

3. Finally, petitioner errs in contending that

events during and after trial, particularly Stephen-

son’s letter, indicate a preexisting bias or mental in-

competence under 28 U.S.C. 1865(b)(4)° that de-

prived him of a fair trial. First, it should be noted

that the evidence offered by petitioner to show such

alleged bias, incompetence and resulting prejudice to

the defense (i.e., Stephenson’s letter and the letter

from Juror Bulos to the effect that the verdict was a

compromise) is inadmissible under well settled prin-

* Contrary to petitioner’s contentions (Pet. 12-16), the fact

that Stephenson did not disclose her prior experience does not

support the inference of bias against petitioner. The incident

was removed in tigfe and nothing about it would suggest that

it implanted an indelible animosity against any or all police

officers. Indeed, as the district court and court of appeals

noted (Pet. App. 8a), if the experience would warrant any

inference of bias, it would be a bias against the prosecution,

not against a criminal defendant.

* 28 U.S.C. 1865(b) (4) authorizes the district court to deem

any juror qualified unless, inter alia, the juror “is incapable,

by reason of mental or physical infirmity, to render satis-

factory jury service.”

ee

11

ciples now codified in Fed. R. Evid. 606(b).° See

also Stein v. New York, 346 U.S. 156, 178. But even

assuming the admissibility of that evidence, it does

not support petitioner’s claim. The post-trial letter,

indicating that juror Stephenson was favorably im-

pressed by the prosecutor during trial and wished to

write a book about her experience as a juror, is not

indicating that Juror Stephenson was favorably im-

trial began. The court of appeals also correctly held

(Pet. App. 8a) that the letter fell “far short” of es-

tablishing incapacitating mental and emotional in-

stability on her part. As the Second Circuit stated

in respect to similar claims in United States v.

Dioguardi, 492 F.2d 70, 78-80, certiorari denied, 419

U.S. 873, where a juror wrote an emotional letter to

the defendant after trial in which the juror claimed

clairvoyant powers:

It is well settled that only clear evidence of a

juror’s incompetence to understand the issues

and to deliberate at the time of his service re-

quires setting aside a verdict. And only strong

* Rule 606(b) prohibits evidence of “any matter or state-

ment occurring during the course of the jury’s deliberations

or * * * the effect of anything upon * * * any * * * juror’s

mind or emotions as influencing [a juror] to assent to or dis-

sent from the verdict * * * or concerning his mental processes

in connection therewith * * *.” As an exception, Rule 606(b)

admits evidence of “extraneous prejudicial information * * *

improperly brought to the jury’s attention” and evidence of

“outside influence * * * improperly brought to bear upon any

juror.” The Stephenson and Bulos letters do not concern

“extraneous information” of “outside influence”; rather they

concern only the mental processes of the jurors in reaching

the verdict.

12

evidence that it is likely that the juror suffered

from such incompetence during jury service will

justify an inquiry into whether such incompe-

tence in fact did exist. * * *

* * * * *

With respect to post-verdict evidence of pos-

sible juror incompetency during the triai, courts

have refused to set aside a verdict, or even to

make further inquiry, unless there be proof of an

adjudication of insanity or mental incompetence

closely in advance of the time of jury service.

Oniy when proof of this nature has been offered,

or proof of a closely contemporaneous and inde-

pendent posttrial adjudication of incompetency,

have courts conducted hearings to determine

whether the disability in fact affected the juror

at the time of trial.

But absent such substantial if not wholly con-

clusive evidence of incompetency, courts have

been unwilling to subject a juror to a hearing on

his mental condition merely on the allegations

and opinions of a losing party. [Footnotes

omitted. ]

Similarly, as the court of appeals noted (Pet. App.

8a), the indication in the letters that the jurors

might have reached a compromise verdict does not

warrant the granting of a new trial. Stein v. New

York, supra, 346 U.S. at 178; United States v. Green,

523 F.2d 229, 235-236 (C.A. 2), certiorari denied,

423 U.S. 1074: United States v. Grieco, 261 F.2d

414 (C.A. 2), certiorari denied, 359 U.S. 907.”

10 Petitioner’s further claim (Pet. 20-22) that the hearing

before the trial judge was not complete because the judge

13

CONCLUSION

The petition for a wri of certiorari should be

denied.

Respectfully submitted.

WADE H. McCREE, JR.,

Solicitor General.

PHILIP B. HEYMANN,

Assistant Attorney General.

JOSEPH S. DAVIES, JR.,

MARSHALL T. GOLDING,

Attorneys.

AUGUST 1978.

refused to allow petitioner’s counsel to conduct the juror’s

interrogation and declined to inquire into broad areas pro-

posed by petitioner ignores the settled principle that a post-

trial interrogation such as that involved here should be con-

ducted by the court and not by counsel. United States v.

Brasco, 516 F.2d 816, 819 n. 4 (C.A. 2), certiorari denied, 423

U.S. 860. Moreover, the broad additional areas of inquiry

proposed by petitioner had no direct bearing on the juror’s

testimony, since she already had explained her reason for not

volunteering information about the arrest. There clearly was

no abuse of the trial court’s recognized discretion to limit

questioning, and none of the cases relied upon by petitioner

(Pet. 20-21) suggests the contrary.

® sv. S. Government paintine orice; 1978 271541 98