Petition — Easton v. United States

Supreme Court brief1978

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IN THE

Supreme Court of the United States

October Term 1977

No. 77-1770

WILLIAM HOCKRIDGE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

IRVING ANOLIK

Attorney for Petitioner

225 Broadway

New York, N. Y. 10007

212-732-3050

TABLE OF CONTENTS

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Constitutional and Statutory Provisions Involved ..

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Evidence of Jury Misconduct .................5:

The Factual Background with Respect to Hockridge

I—Reasons for Granting the Writ ..............

IJ—Opinions Expressed By The Second Circuit In

The Instant Case Conflict With The Opinions Of

Other Cireuits In Vital Areas Concerning The

Administration Of Criminal Justice ..........

I1]—Hockridge and Easton Were Denied the Right to

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Cases Cited (Continued)

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Statutes and Rules Cited

American Bar Association, ‘‘Standards Relating to:

gelesen 18, 21

8 Wigmore, ‘* Evidence’? (McNaughton ed. 1961) 18, 21, 2:

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IN THE

Supreme Court of the United States

October Term 1977

No.

“y

WuuiumM Hockriner,

Petitioner,

Unrrep States or AmERrica,

Respondent.

“y

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

Statement

Petitioner Wiruiam Hockriner, respectfully prays that

a writ of certiorari issue to review the order and judgment

of the United States Court of Appeals for the Second Cir-

cuit entered the 27th day of March, 1978, affirming the

judgment of the United States District Court for the South-

ern District of New York which had convicted the petitioner

and two others, namely Charles Petri and Stephen Easton,

of conspiracy to violate 18 U.S.C. § 656 (embezzling, ab-

stracting, purloining and misapplying monies and assets of

a federal insured bank) and of one substantive count of

such violation, after trial before Bonsal, D.J.

The United States Court of Appeals entertained an ap-

plication for rehearing, but denied that relief on the 15th

day of May, 1978. (A-22

We adopt the brief and petition submitted by the co-de-

fendant-appellant in the case, Stephen K. Easton, which

has previously been docketed in this Court under No. 77-

1243.

Opinions Below

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-19 to A-21.

Questions Presented

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

during jury deliberations but after the partial verdict has

heen rendered, advise the Court that the verdict was not

unanimous, that they surrendered their honest conviction

of petitioner's innocence, and that they were coerced

hecause ‘‘ineredibly 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 daring 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

failiag to repoll the jury?

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

collectively rather than as to each individually?

4. Whether the Court erred in refusing to dismiss the

indietment as against Hockridge, pursuant to Rule 29 of

the Federal Rules of Criminal Procedure, at the conclusion

of the Government’s case in chief when it appeared obvious

that there was insufficient evidence to warrant submitting

the case to the jury?

5’. Whether Petitioner was denied due process of law by

the Government’s withholding of evidence that there was

& major investigation of Chemical Bank (Hockrince’s

former employer), which resulted in several indictments of

the bank and its officers?

6. Whether the Court erred in failing to grant a mistrial

early in the ease when information concerning prejudice

on the part of certain jurors came to its attention?

Constitutional and Statutory

Provisions Involved

United States Constitution Fifth Amendment:

“No person shall... be deprived of life, liberty,

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.

(‘pon 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 in-

formation 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 of 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 an order and judgment of the

United States Court of Appeals which affirmed the judg-

ment of the District Court, as set forth supra.

The Petitioner herein was sentenced to 9 months in-

careeration on the conspiracy charge and to 3 years im-

prisonment on the substantive count upon which he was

convicted [Count Two]. The execution thereof was stayed,

however, with directions that he be placed on probation

for 3 years at the expiration of his confinement on the

first count.

Petitioner Hockridge was also indicted on a number of

other counts alleging false statements on applications for

bank loans (18 U.S.C. 1014) and false entries in the books

of the bank (18 U.S.C. 1005). Hockridge, however was

acquitted of all these other counts.

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, Flyan, Whitney

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 infucncing the Chemical Bank and Bank of New

York to make ceriain loans (18 U.S.C. § 1014 (1970)).

Counts Mighteen through Tweuty Four charged that Hoek-

ridge, nided and abetted by the remaining defendants

except Rapport, made false entries in the books of the

Chemical Bank (18 U.S.C. § 7005 (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.

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 Fight.

Flynn was acquitted on all counts.

Evidence of Jury Misconduct

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

recevied a note from Juror Number Three. The Judge

interviewed the juror in chambers and she revealed that the

jury had been improperly discussing the case during re-

cesses and that:

“(The people in the jury are not giving these peo-

rle [defendants ! a fair chanee ... several of the peo-

~~)

ple have expressed their opinion that these people

are guilty.”’ (T. 566).?

The Court dismissed the juror’s comments stating:

**T don't think it is serious and I think this is the nor-

mal reaction of a young perhaps little idealistic

we) eS

Defendants moved for a mistrial on the ground of jury

bias. The motion was denied (T. 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 misconduct (T. 688-727).

During the interviews seven other jurors and two alter-

nates indicated they had heard jurors express opinions as

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

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

Substantial misconduct also occurred 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.

Deliberations resumed Monday, February 14, 1977. The

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

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

pages of the transcript below.

% Prior thereto, .ne jurors had requested that certain exhibits be

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

subject to connection (e.g., T. 5863, 5880, 5901, 5908-9).

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 (T. 5961-2). At de-

fendants’ request the jury was polled; however, each juror

was not polled seperately 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 5:09 p.m. the Judge

revealed for the first time that that morning he had re-

ceived 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.

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

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

her Three (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).®

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

_' The Second Circuit opinion recites that the note was received

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

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

* The jury was separated during the deliberations. On the morn-

ing of February 16, 1977 the New York Daily News reported the

partial verdict, identifying the United States Attorney’s Office as its

source (T. 5924).

thing’? (T. 5921).° Concerning the interview, the Court

stated:

‘‘T 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

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 deseribe the nature of the attack (T. 5930).

Juror Number Four indicated that ultimately she be-

came secure in the guilty verdict respecting Hockridge and

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

she, and several others 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).7

* Later he stated: “I hope that in some way that [the interview]

might salvage the situation” (1. 5923). However well-intended, the

Trial Judge’s view that harassment of a juror, precluding 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.

7 In fact, she had no opportunity to do so, since the poll was not

conducted individually as to each defendant (T. 5945).

10)

The Court then turned to Juror Number Three and

stated to her:

‘“{Ylou have had sort of an emotional problem with

this thing here, haven’t you?

*Jcnor No. 3: It can be an emotional problem but

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

[instruction as to reasonable doubt omitted].

‘*Tue Court: I think vhat 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 tacties of some of the jurors, the

Court left the situation unresolved, apparently in the inter-

est of salvaging the verdict in this lengthy trial. The Judge

instructed the two jurors:

*T would like vou to think about that [the econ-

spiracy verdict] and resume your deliberations and

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

tions and then perhaps after we finish here I will

Want to see vou again.

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

Continue the deliberating—

‘Tie Court: After the jury finishes, I think I will

want to see vou 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 ....

* 7. ane

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

too who feels that way too.

‘The Counr: About what?

**Jernor No.4: [think about all three actually. But

I think specifically about Easton also.

“Tue Courr: <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 vou go back with the

jury and when vou 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)

The two jurors were sent to resume deliberations.

Defendants moved for a mistrial (T. 5935). Haston’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 Maston,

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 gollowing 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 Kaston

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

all defendants not guilty on substantive Counts Three and

Four (T. 5968-70).

Thereafier, 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 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.

Petitioner Hockridge, at the time of the incidents, as

set forth in the indictment, was a man in his late twenties,

never previously in conflict with the law, and was em-

ployed by Chemical Bank in a career position. He was a

* 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 convictions”

(A-19).

loan officer. As a result of this ease, he was summarily

fired, but has consistently maintained his innocence and

took the stand in his own defense.

The evidence against him was, for the most part, hear-

say and circumstantial. As we explain, infra, the accusa-

tions of criminality contained in the indictment were con-

clusively refuted by documentary evidence and by direct

testimony. The trial Court should not have permitted

this case to go to the jury with respect to Hockridge.

The Factual Background with

Respect to Hockridge

The main thrust of the evidence against Hockridge was

his alleged misapplication of funds from Chemical Bank,

by whom he was employed as a loan officer. More par-

ticularly, the evidence against defendant revolved around

a $14,000 check, about which the Government centered its

ease against Hockridge, alleging, in substance, that this

was obviously a kickback to Hockridge for having approved

a certain loan.

In truth and in fact, as the evidence revealed, the

$14,000 was a check given to Hockridge by Nancy Petri so

he could purchase 1,000 shares of Frigitemp stock. The

proof at trial revealed that this sum was paid back in full

together with $414 in interest. There was absolutely no

evidence, therefore, that Hockridge received this money as

a gift or gratuity or kickback, or for any improper purpose.

The Government also sought to link Hockridge with the

signature on two cards at the Regency Hotel located on

Madison Avenue in New York City. Perhaps this was to

suggest possible amorous escapades on the part of the

Petitioner. The proof, however, adduced at trial, estab-

lished that the signatures on those cards were not in Hock-

ridge’s handwriting, so that, too, was just a ‘‘red herring”’

dragged across the case to confyse and bemuse the jury.

Mr. Otis of the Bank of New York made a $150,000 loan,

predicted much upon the same basis as utilized by Hock-

ridge when he approved loans to certain firms,

Otis admitted that not infrequently errors are made

on the so-called ‘*white’’ sheets, and further declared that

he himself had made a number of mistakes in connection

with loans. Otis, of course, was never charged nor indicted.

Mr. Whitney of the Petri organization admitted that he

had lunch or dinner with Hockridge on perhaps forty or

fifty oceasions, but that he had never discussed business.

Whitney had admitted lying in the grand jury and also was

mistaken about supposedly giving Hockridge $980 in cash,

but later admitted that he was mistaken about this.

Mr. Fillet had said that he spoke to Mr. Petri concern-

ing defendant Hockridge within two weeks after he started

working for Petri in July. Since defendant had never met

Petri until September, it was obvious that Fillet was

lving.

The Government sought to make much of the fact that

Hockridge had aequired stock of CSPI Corporation, but

it was established at trial that this stock was acquired

in 1969, long before Hockridge ever met Petri. Thus, this,

too, Was irrelevant.

It wax obvious that there were a number of conspiracies

which were presented to the jurors (3369).*

* Numerals in parentheses refer to pages of the official court re-

porter’s minutes of trial, unless otherwise indicated.

Hockridge was a loan officer employed by Chemical Bank

and the prosecutor sought to establish that he had received

$14,000 as a result of a loan made to Today Stores, Inc.

In addition, he supposedly received a fur coat for his wife

and a pool table and a trip, for other services.

The proof adduced by Hockridge and by exhibits in-

troduced into evidence established that $14,000 was a loan

obtained by Hockridge from Petri’s wife for investment

in 1,000 shares of Frigitemp stock and that this amount

was fully repaid to Petri’s wife, with interest,

Also, there was proof introduced that Hockridge had

made some trips with his family, but he paid $980 to cover

these expenses,

We need not dwell on the extensive discussion in the

case concerning any charges above Counts One and Two

since defendant was acquitted of all those other counts

or there were dismissals following the jury’s inability to

reach verdicts on some of them.

For the purpose of this record, the Court dismissed

Counts Five, Six, Seven, Fifteen, Sixteen, Kighteen, Nine-

teen, ‘Twenty-One, Twenty-Three, and Twenty-Four, with

the consent of the Government, on February 23, 1977.

We are adopting the arguments and recitation of facts

of the co-petitioner, Stephen Easton.

The thrust of the Government's case, therefore, was

that Hockridge had embezzled a sum of money, namely

$14,000, by virtue of a kickback which he allegedly re-

ceived in connection with a loan to Today Stores, Inc.*

* This was completely refuted, but in any event, it could not have

been an embezzlement from the Bank.

We have already indicated that there was a complete

refutation of this allegation by conerete proof that the

$14,000 was in fact repaid by Hockridge and had been ad-

vanced to him solely to enable him to buy 1,000 shares of

Frigitemp stock. In fact, the loan was repaid with interest.

The Government conceded that its case was predicated

primarily on circumstantial evidence (3385).

In fact, the testimony against Hockridge was virtually

all hearsay and defense counsel at trial argued, in vain, that

the Court should not have submitted the case to the jury

(3406, 3407).

We are not dealing with the elaborate testimony that

came into the ease concerning Hockridge’s preparation of

so-called ‘*white’’ sheets, or testimony that came in against

various defendants with respect to the other counts of the

indictment on which Hoeckridge was not convicted.

The Government took the position that Hockridge was

instrumental in the approval of a number of loans based

upon false financial statements and other false material and

that Hockridge was fully aware of the falsity of these pre-

dicate materials upon which the loans were approved.

It boiled down, however, to the one $14,000 transaction

in connection with Today Stores, Inc. loan which Hockridge

established was in fact a loan to him which was fully repaid

with interest.

Reasons for Granting the Writ

Novel Issues Concerning the Interpretation and Ad-

ministration 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 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 ‘‘|n]either the cases nor the treatises

definitively answer... .’’ That issue is whether F.R.E.

Rule 606(b) renders incompetent the voluntary statements

of jurors made to the Court after a partial verdict 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 reason of the frequeney

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

'! Unanimity is, of course, a non-waivable constitutional mam

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

See Apodaca Vv. 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.

honest convictions. Juror Number Three, however, ez-

pressly 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

FRE. Rule 606(b), set forth supra, pp. 3-4, renders

certain evidence incompetent to impeach a jury verdict.

While recent cases and legislative history indicate that

iinle 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.¢., Government of Virgin Islands

v. Gereau, 523 F.2d 140, 148-50 (8d Cir. 1975), cert. denied,

124 US. 917 (1976), American Bar Association, Standards

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

mentary lo > 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 vy. 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 seeure from them evidence of

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

result would be to make what was intended to be a

'2 The rule was initially premised upon the maxim that no per-

son shal! 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 Wigmore, Evidence

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

by Jury, ot 168

private deliberation, the constant subject of public

investigation ....’’ Jd. 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()) 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 Cireuit

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

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

and remanded on other grounds, 569 F.2d 754 (8d Cir.

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

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

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

bility verdict. The evidence, unearthed during deliberations

as to damages, indicated that the previously rendered ver-

dict as to liability was the result of compromise. 72 F.R.D.

at 136. On appeal, the Third Cireuit vacated and remanded,

ruling that the issues of liability and damages were so

intertwined as to require a new trial on both questions.

The Court specifically declined to determine whether Rule

6§06(b) was applicable under the circumstances. 569 F.2d

at 762, n.2.

Tn 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).

'® This Court has always stated that no inflexible rule can be

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

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).

The Cireuit Court at bar perceived that ‘‘freedom of

jury deliberations is less threatened by impeachment of

partial verdicts. ’* The Court found, however, that

petitioner desired ‘‘serutiny of the deliberations.’’ This

is inaccurate. The evidence of want of unanimity was

voluntarily placed before the Court by jurors. No *’seru-

tiny’’ was necessary or appropriate. Rather, given the facts

revealed, 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

I’.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.

...”’ (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 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

indieated 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.

'* 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.

936 (1963); United States v. Schroeder, 483 F.2d 846, 851

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

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

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

‘*{Plrior 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

159.08[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 Realting To Trial By Jury, Com-

mentary 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-

30 (1975); Clark v. United States, 289 U.S. 1 (1933).

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

that no unanimous verdict was rendered, it has repeatedly

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

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

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

Jorgensen Vv. York lee Machinery Corporation, 160 F.2d

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

6H06(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:

‘| JJudges again and again repeat the consecrated

rubrie [the no-impeachment rule] whieh has so con-

fused the subject; it offers an easy escape from

embarrassing choiees.’’ 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, 8A Moore’s Federal Prac-

tice 931.06, 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. 8 Wigmore, Evidence § 2350, at 691 (Me-

Naughton ed. 1961).

B. There Was Sufficient Evidence of Misconduct And

Lack of Unanimity At Bar,

In Grace Lines, Ine. v. Motley, 489 F.2d 1028 (2a Cir.

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

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

promptly declared a mistrial. In reversing, the Circuit

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 vy. 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 doetor

examined the juror and found him sufficiently healthy to

continue deliberations. A second doctor examined the juror,

with the same result. Arrangements were made for deli-

berations 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 held out his

dissenting opinion,

In reversing, the Cireuit Court wrote:

‘‘No person may lawfully be convieted by a jury

unless every juror actually agrees that upon the evi-

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

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

son, it is a perversion of the constitutional enaranty

to a jury trial.’’ 7d. at 552.

' 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).

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, 309 US. SOT (1959); Kingsport Utilities, Inc.

v. Lamson, 257 F.2d 553 (6th Cir. 1958); Fox vy. 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 sitnation in view

of the non-waivable constitutional mandate requiring una-

nimity of verdict. Apodaca v. 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, 7d. at 1032. Similarly, in Williams v. United States,

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

one juror indicated confusion. The Circuit Court approved

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

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

Cir. 1975), cert. denied, 417 US. 948 (1974); United States

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

States, 3579 F.2d 996 (Sth Cir. 1967); Bruce v. Chestnut

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

Meee rP. Pule 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

'' In Fox, the Court found juror affidavits admissible to prove

the absence of unanimity.

the question of Eastan’s guilt de nove 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 EKaston’s guilt on Count One before being discharged.

The jury not having been so instrneted 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 Cir-

cuits 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 Circuit 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 must be deemed to

have approved the procedure of a private interview and

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

stances where the procedure was harmful to petitioner, as

a defendant.

'? The Second Circuit determined that petitioner waived this ob-

jection by faiiing to request a further poll prior to discharge. How-

ever, 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. However the jurors expected

the Judge to speak with them again, as he had promised, and, when

the jury was discharged without such interview, the two jurors again

sought to speak with the Court.

A contrary rule has been enunciated in the Third and

Fourth Cireuits. In United States vy. 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

reconvencd the following Monday, and during the reading

of the verdiet, 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:

‘‘(T)he juror had agreed to the sealed verdict with

some reluctance; the juror, in the interim, had

discussed the ease 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 ‘ ... [w]hat

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

answered: * ... [ijt 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.’ ’* Id. at 778-9.

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

structions (a) as to aiding and abetting, () 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:

‘*{]]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 (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 Cireuits 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 Jurors 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-

'- 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.

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

abruptly turned to Juror Number Three, indicating that

her statements evineed ‘‘an emotional problem’’ (T. 5931).

When Juror Number Three indicated that she had sur-

rendered her honest conviction of Easton’s innocence, the

(‘ourt 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

(‘ount 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 y. 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’* beeause the effeet is ‘‘unavoidably to add the

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

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

ing 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 merning of February 16, 1976 (Tf. 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, wifhout 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 Circuit seems to have retained, but only in

the ‘‘barest margin’’, the doctrine that the giving of an

Allen charge may be proper. See United States v. 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 (Sth Cir. 1972), reh. en banc, 480 F.2d 518

(Sth Cir. 1973).*°

The continued use of A/len type charges is thus the sub-

ject of substantial disagreemnt 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

2° The Court wrote:

“We deeply regret being compelled to affirm this conviction.

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

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.

bar alfords 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.

Hockridge and Easton Were Denied the Right to A

Proper Poll of the Jury.

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

(Ist Cir. 1958):

‘The right of the defendant to have the jury

polled, as thus recognized and established by Rule

31(d) [of the Federal Rules of Criminal Procedure],

is of ancient origin and of basic importance.’’

Denial of the right constitutes reversible error. Miranda,

supra at 18,

*' In the case at bar, the Court's charge 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 ible 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.

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

bane), 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 fora used here—a single pol] 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 al! 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 revealed their dissent

from the verdict as to Easton, but Juror Number Four

stated:

‘‘I 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 “orm of the polling, i.e., 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.

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 Cireuit prospectively

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

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

denied, 396 U.S. 1017 (1970); and United States v. Fiora-

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

837 (1969).

CONCLUSION

The Writ of Certiorari Should be Granted.

Respectfully submitted,

Invinc ANOLIK

Attorney for Petitioner, Hockridge

225 Broadway

New York, N. Y. 10007

212-732-3050

APPENDICES

Appendix A

Judgment and Opinion of the United States Court of

Appeals For the Second Circuit

Ientered March 27, 1978

UNITED STATES COURT OF APPEALS

For THE Seconp Crreevir

Nos. 441, 443, 522

September Term, 1977.

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

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

i co ee i enmieaiensies nasal

Unirep States Or AMERICA,

Appellee,

WittiM H. Hockriper, Cuarces Perri

and Srepuen K. EHastox,

Appellants.

Before:

Oxxes and Van Graareitann, Circuit Judges,

and Barres, District Judge.

Appeal from judgments of conviction entered after a

jury trial in the United States District Court for the South-

ern Di-striet of New York, Dudley B. Ponsal. Judge. All

three appellants were convicted of violating IS U.S.C. 9 57

under Count 1L and 18 U.S.C. 6§ 656 and 2 under Count IL.

Petri was also convicted under 18 U.S.C. © 1014.

—— ee

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

A-2

Appendix A

Judgments affirmed.

—_ -— oe S—

Irvine ANxouik, New York, N.Y., for Appellant

Hockridge.

operr S. Cones, Lans Fersperc & Connex, New

’

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

of counsel), for Appellant Easton.

Danxuvt J. Korxsreix, New York, N.Y., for Ap-

pellant Petri.

Dominic F. Amorosa, 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 Attorneys, of coun

sel), for Appellee.

Oakes, Circuit Judge:

The principal issue raised in this appeal is the propriety

of the district ecourt’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 conspiraey instructions, purported with-

holding of evidence by the Government, and erroneous

evidentiary rulings are also presented, but each merits only

limited discussion.

Appellants Hoekridge, 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.

lnder Count One of the indictment al! three appellants

A-3

Appendix A

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

the Chemieal Bank (Chemical), Hoeckridge’s employer,

(b) to prepare and submit false financial statements for

the purpose of obtaining loans from Chemical and from

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

Chemieal’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 $1,300,00 from Chemi-

18 U.S.C. § 371.

* 18 U.S.C. §§ 656, 2.

*18 U.S.C. § 1014.

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

nine months’ imprisonment and on Count Two to a three-year sus-

pended sentence 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 run concurrently. On June 15, 1977, Easton

received six months’ imprisonment and a fine of $5,000 on Count

One. On Count Two his sentence was suspended and he was given

three years’ probation to commence following his release from con-

finement.

A-4

Appendix A

eal.” 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

24, 1971, as Cine-Prime «'‘orp. Chemical 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

(hemical, 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

direetly 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

Hlockridge with other bribes and gratuities including, but

* 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.

* 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 scheme was discovered and Hockridge was dismissed.

* The payment to Shedrick is revealing. Hockridge approved a

$75,000 loan to Oceanic Drug Co. and a $35,000 payment to Cord

\utomobile Co., two of Petri’s companies. Hockridge removed

$35,000 from the Oceanic checking account and deposited the

moneys in the Cord account. A check was then drawn on the Cord

account by Petri, and Easton payable to Sheddrick.

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

$75,000 loan to Todays Stores Services, Inc. Hockridge then ap-

proved a $14,000 Chemical check payable to the Central Jersey

Bank and Trust Co. where he maintained a bank account. He

covered the Chemical check by withdrawing $14,000 from the

Todays Stores Services’ account.

A-5

Appendix A

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 2 woman paid for the purpose, a poo! 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-

existent assets. For example, Cord Automobile Co., ae-

quire in bankruptey for $100, was shown to have more

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

Stores Services, was dated even before the corporation was

formed. Others were false in various particulars.

I]. Discussion

A. Sufficiency as to Hockridae

Only Hoekridge disputes tb ‘iiency of the Govern-

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

able to the Government, Glasse, United States, 315 U.S.

GO SQ (1942); United States v tleone, 544 F.2d 607, 610

(2d Cir. 1976), cert. denied, + ULS. 916 (19TT), we con

clude that the evidence suppo. — Hoekridge’s conviction on

both the conspiraey and the su! stantive counts.

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

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

ridge knew that the financial statements submitted on

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

-_—

“He admonished one witness to “tell Petri and Easton to come

down off some of these wild balance sheets.”

A-6

Appendix A

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 epproval of other lending efficers, And _ finally,

Hockridge received the substantial bribes and gratuities

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 prejudice before the deliberations ‘even began, On

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

reported to the judge that several other 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 judge pro-

ceeded to interview each juror individually in camera.

Several said that they had heard nothing of the kind,

although six reported that someone had made a passing

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

Each averred that he er she would not form any opinion

'’ On more than one occasion Hockridge falsely stated that cer-

tain loans would be used for working capital or for legitimate busi-

ness investments when in fact the money was used to pay off personal

loans or loans made to other companies.

'' Hockridge’s subsequent report to the bank that he had received

no “gratuities, payments or secret benefits” from Petri or his group

failed to mention the $14,000 payoff, see note 8 and accompanying

text supra, and belied Hockridge’s testimony that the transaction was

really a loan from Petri to be used to buy stock.

A-7

Appendix A

of guilt or innocence until all the evidence was presented.

Kach further recognized the necessity of not talking about

the case.

In treating charges of jury misconduct, the trial judge

is accorded broad diseretion. ( viled Stutes ve Ponebianco,

045 F.2d 447, 457 (2d Cir. 1976), cert. denied, 429 U.S.

1103 (1977); United States v. Flynn, 216 F. 2d 354, 372 (2d

Cir. 1954), cert. denied, VAS U.S. 909 (1955): see Note,

The United States Courts of Appeals: 1975-1976 Term

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

(1976). A eriminal 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 in

camera interviews. If one juror had been contaminated,

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

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

(in camera individual interrovation 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 ef. United States v. Taylor,

962 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 wpon coneluding that the jurors were not prejudiced,

A-S

Appendix A

a determination which the district judge was in the best

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

833, S38 (2d Cir.), cert. denied, 355 U.S. 844 (1957); ef.

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

1975) (faetual findings at pretrial suppression hearing are

reversible on appeal only if clearly erroneous); 3

(. Wright, Federal Practice and Procedure § 678, at 148

(1969) (same).

(. Juror Impeachment of Partial Verdict

Appellants’ principal contention is best understood in

its specifie 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

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-

"= Rule 31(b) provides:

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

jury at any time during its deliberations 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 defen-

dant or defendants as to whom it does not agree may be tried

again.

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

Wright states that

the jury, at any time during its deliberations, may return one or

more verdicts on those counts or defendants on which it is

agreed. It may then retire again and resume its deliberations

about the remaining charges [citing, inter alia, United States v.

Conti, 361 F.2d 153 (2d Cir. 1966), vacated and remanded on

other grounds sub nom, Stone v. United States, 390 U.S. 204

(1968)].. . . In permitting the practice here described, Rule

31(b) is in accord with the prior law [citing, inter alia, United

States Vv. Franke!, 68 F.2d 235 (2d Cir.), cert. denied, 290 U.S.

682 (1933)].

A-9

Appendiv A

tial verdict. The jurors responded affirmatively, announe-

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

were polled, the guilty 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.

During the questioning both jurors expressed their concern

with the partial verdict. Juror Number Three believed that

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

Hockridge and Mr. Petri were involved in a conspiracy.”’

Juror Number Four expressed doubts about Easton's euilt

and indieated 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 convietions.’’ Juror Number Three replied

that she thought she had done so ‘‘hecause of verbal at-

tack.’’ The judge urged her ‘‘to get hardened to that,’’ to

2 C. Wright, Federal Practice and Procedure § 513, at 368-69

(1969).

A guilty verdict may not be challenged on the basis that the jury

is sent back for further deliberations on remaining counts after

reaching a verdict on one or more counts. United States v. Barash,

412 F.2d 26, 31-32 (2d Cir.), cert. denied, 396 U.S. 832 (1969):

McDonald v. Commonwealth, 173 Mass. 322, 329, 53 N.E. 374.

375 (1899).

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

the first day of deliberations but agreed with the judge that jury delib-

erations are often “emotional and high strung.”

A-10

Appendix A

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

fendant separately. He then said:

You did come in with a verdict on three of them.

1 would like you to think abuut 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.

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

(‘ontinue the deliberating—

Tur Cover: 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 he wise if both of you could go back

with the jurors.

The jurors then resumed deliberations and never again

intimated any doubts of appellants’ guilt on Count One.

Indeed, they aequitted 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

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

jury announced partial verdicts of not guilty as to all

three appellants on nine more counts with the exeeption 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 affeet their verdict on

Count One. Alternatively, the judge concluded that the

A-11

Appendix A

two jurors did not ‘surrender their honest convictions’’ in

finding the appellants guilty on that 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 Lines, Inc. v.

Motley, 429 F.2d 1028, 1052 (2d Cir. 1971); see United

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

Vicemi v. Ford Motor Co., 72 F.RD. 132 (B.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 liability ver-

dict was a compromise. The district court let the verdict

on liability stand, relying on Rule 606(5), and submitted

't Fed. R. Evid. 606(b) states:

Inquiry into validity of verdict or indictment. Upon an in-

quiry 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 infiuencing 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 in-

formation was improperly brought to the jury’s attention or

whether any outside influence was improperly brought to bear

upon any juror. Nor may his affidavit or evidence of any state-

ment by him concerning a matter about which he would be pre-

cluded from testifying be received for these purposes.

A-12

Appendix A

the question of damaces toa new jury, The Third Cirenit

reversed, No, 76-2529 (3d Cir., filed Dee. 16, 1977), but

reserved decision on the Rule G06(b) question, holding that

the issues of liability and damages were so related as not

to permit severability.’* The appellants* cases are equally

inconclusive, liven the leading treatises ignore the rela-

tionship between Rule 606(b) and partial verdicts after

which a jury continues its deliberations.”

‘Yo 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 freedom

'» We note that the level of symbiosis between liability and dam-

ages that existed in Vizzini ordinarily would not pertain to partial

verdicts on separate counts of an indictment.

'' 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, 439

F.2d 1028 (2d Cir. 1971), is similarly unavailing. A juror’s state-

ment on polling that she had consented to the verdict in the interests

of unanimity was insufficient to show surrender of an honest convic-

tion. Jd. at 1032 (Anderson, J.); id. at 1033-34 (Lumbard, J., con-

Many cxses in this circuit state the usual rule that jurors’ statements

received after discharge may not be received to impeach the verdict.

Lg, United States Vv. Grieco, 261 F.2d 414, 415 (2d Cir. 1958) (per

curiam) (jurior intimidated by “blustering arrogance” of another

juror), cert. denied, 359 U.S. 907 (1959); Rotondo vy. Isthmian

SS. Co., 243 F.2d 581, 583 (2d Cir.) (post-discharge statements

explaining reasons for verdict are incompetent), cert. denied, 355

U.S. 834 (1957).

at 123-52: 3 J. Weinstein & M. Merger, Evidence $$ 606{01]-[05],

at 606-1-46; 8 Wigmore, Evidence $$ 2345-56 (McNaughton rev.

ed. 1961); Wright, supra note 12, $554, at 488-95; The ABA

Srandards Relating to Trial by Jury $ 5.7 (Approved Draft 1968)

fhereinafter ABA Standardsj.

A-13

Appendix A

of deliberation and frecdom from post-verdict annoyance,

embarrassment, or harrassment are not implicated when

the impeaching statements or incidents both occur and are

inquired into by the court before the jury has been dis-

charged.’ Appellants’ position, however, is defective for

two reasons. First, it mischaracterizes the impeachment

of partial verdicts as not implicating the jury’s freedom

of deliberation. And second, it overlooks another important

interest served by the rule against verdict impeachment—

verdict finality.

While the freedom of jury deliberatious is less threat-

ened by impeachment of partial verdicts than by impeach-

ment of verdicts generally, it is, nevertheless, clearly

impinged, The inquiry requested by appellants in’ this

case is a prime cxample. It would have necessitated

scrutiny of the deliberations of the jury including the

mental processes of the jurors, a result inconsistent with

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-

vestion 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. Sve H.R. Rep.

'* Wigmore noted in a non-partial verdict context that “the dan-

gers of uncertainty and of tampering with the jurors to procure testi-

mony, 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, 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 Rex v. Shipley, 21 How. St. Tr. 847, 950n, 951 (1784). Wigmore,

supra, § 2350, at 692.

A-14

Appendix A

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 MeDonald v.

Pless, 238 Us, 264, 267 (1915), ealled for reinstatement

of the proscription. S. Rep. No. 93-1277, 938d Cong., 2d

Sess. 13-14 (1974). The Senate view ultimately prevailed.

Similar considerations seemingly apply to a partial ver-

diet: 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-

eval itules of Criminal Procedure, including Rule 31(b).

Appellants’ position also fails to reeognize the impor-

funt 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 reeorded. A) partial verdict should he

viven final effect sinee {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] sabsequent vacillations,’’

lonited States vy. Cotter, GO F.2d 689, 690 (2d Cir.) Ch.

Hand, J.). cert. denied, 287 U.S. 666 (1982). The reason

for taking a partial verdict is apparrent in cases where

there has been a long trial and there exists the prospect

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

verdiet has been recorded, we perceive no reasons of

sufficient magnitude to depart from the normal rules gov-

A-1o

Appendix A

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 im-

plied that they might, along with the other jurors recon-

sider the recorded verdict. To the extent that this may

have been error, it was harmless.

After the in camera interviews with Judge Bensal, 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

coercive, but his management of this difficult and novel

'* 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 verdict implies a unanimous

consent of the jury, and is conclusive and incontrovertible evidence

of the fact.” Grinnell v. Phillips, 1 Mass. 529, 542 (1805). Al-

though here there was no individual polling, none was requested.

Appellants, therefore, waived the right. See Humphries v. District

of Columbia, 174 U.S. 190, 194-95 (1899); United States v. Dve,

61 F. Supp. 457, 459 (W.D. Ky. 1945); ABA Standards, supra note

17, § 5.5: cf. Hernandez v. Delgado, 375 F.2d 584 (1st Cir. 1967)

(no violation of due process to infer waiver of right to poll jury from

silence).

A-16

Appendix A

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 equire seant com-

ment. Iloekridge asserts that the Government failed to

reveal an ongoing investigation of a ‘‘money-washing”’

operation in several Chemical branches in violation of

Brady vy. Maryland?! The inquiry centered on Chemical’s

failure to eomply with federal currency requirements.

(‘ow this entirely unrelated investigation would have

tended to create a reasonable doubt of Hoekridge’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).

*"Concededly, the district judge’s directions to the two jurors

were somewhat ambiguous. Ante at 2141. If he was urging the

jurors to deliberate 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 com-

plain of that error, however, since it was favorable to their position.

In any event, Judge Bonsal’s instructions were clearly non-

coercive. True, he did not discuss the matter further with the jurors,

as he told them he would do, But there did not appear to be any

need for additional communications as the jury deliberations pro-

gressed. Moreover, although appellants moved to set aside the ver-

dict and for a mistrial when counsel were informed of the colloquy

between the judge and the two jurors, no objection to the judge's

failure later to discuss the verdict was ever lodged, nor did appellants

ever request redeliberation by the entire jury on Count One, Accord-

ingly, they would have to abide the result reached here even if the

recorded partial verdict was not, by virtue of the trial judge’s dis-

cussion with the two jurors, entitled to final effect.

“' 3273 U.S. 83 (1963).

A-17

Appendix |

Hockridge argues that the court failed adequately to

explain to the jury the ‘thrust of the conspiracy count,”

Brief for Appellant Hockridge at 54, urging that he was

at most a ‘‘easual 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 cireuit®® 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 impreperly permitted

proof of extraneous crimes committed by himsclf and

Petri. Specifically the Government offered proof to show

that Maston 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

*2 The court charged that “‘a conspiracy is a combination or part-

nership, if you will, of two or more people to violate the law... .”

It also charged that the Government must prove

that at least two or more persons came to a mutual understand-

ing for the purposes of accomplishing the unlawful plan or

scheme described in the conspiracy count which I just read to

you. Here, of course, the fact that the defendants knew each

other or may have associated with each other or may have dis-

cussed mutual or common business interests, that isn’t enough

to establish a conspiracy. Mere association isn’t enough.

** E.g., United States Vv. Rosenblatt, 554 F.2d 36 (2d Cir. 1977),

United States v. Kahaner, 317 F.2d 459, 474-82 (2d Cir.), cert.

denied, 375 U.S. 836 (1963).

‘‘ Other crimes, wrongs, or acts. Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person

in order to show that he acted in conformity therewith. It may, how-

ever, be admissible for other purposes, such as proof of motive, op-

portunity, intent, preparation, plan, knowledge, identity, or absence

of mistake or accident, Fed. R. Evid. 404(b).

A-18

Appendix A

prejudice, confusion or waste of time so as to be exclud-

able under Rule 403.7"

aston also complains that the Government was errone-

ously permitted to cross-examine him on the increase of his

net worth by over $2,000,000 between 1972 and 1974. But

he cannot complain now where he failed to object to this

line of inquiry at trial. United States v. Braunig, 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 checking account, al-

though he denied this for the most part. Thus the Govern-

ment could properly inquire into whether he had used

(‘hemical money to finance personal business ventures which

culminated in an inerease in his net worth. See United

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

discussion.

Judgments affirmed.

*5 Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative

evidence. Fed. R. Evid. 403.

A-19

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

Sovrnern Disrrict or New York

76 Cr. 843

Oo—

Unirep Srares oF AMERICA,

Witiiam Hockriper, et al.,

Defendants.

MEMORANDUM

BonsaL, D./.

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

Court set aside the verdict and enter judgment of acquit-

tal.

A-20

Appendix B

Defendants Hockridge and Petri contend: (1) that

statements made by two jurors during an in camera inter-

view conducted by the Court on February 16, 1977, the

fourth day ef jury deliberations, after the jury had re-

turned a partial verdict of guilty on the conspiracy count,

indicate that these jurors had not been convineed of the

defendants’ participation in the conspiracy beyond a rea-

sonable doubt and had surrendered their conscientious

convictions in acquiescing 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

(<) must also be set aside; (3) that the taking of a partial

verdict on the conspiracy count was improper; and (4) that

the Government improprely withheld from the fedendants

information 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

l’vited States v. Grieco, 261 F.2d 414 (2d Cir. 1958), cert.

denied, B59 US. P07 (1959),

The jurors who were interviewed were instructed to go

hack to the jury room and discuss their coneerns with

their fellow jurors. The next day they joined with their

fellow jurors in finding the defendants Hockridge, Petri

and Kaston guilty on Count 2 (misapplication of funds),

and the following day they found the efendant Petri

auilty 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

A-2]

Appendix B

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 (d) (F.R.Cr.P.) with respect

to the conspiracy count was proper under the circum-

stanees. 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 recahed 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.

For the foregoing reasons, the defendants’ motions are

denied,

It is so ordered,

Dated: New York, NVY.

April 12, 1977

Duprey B. Bonsan

U.S.D.J.

A-22

Order Denying Rehearing

UNITED STATES COURT OF APPEALS

SECOND CiReUrt

a Stated Term of the United States Court of

AY yi be be in and for the Second Cirenit, held at

| States Court House, in the City of

\ 1

the United

New York, on the fifteenth day of May, one

thonsand nine hundred and seventy-eight.

Present:

Hoxorapne James L. Oakes

(GRAAFFILAND

Mirsworru Vas

Circuit Judaes

Hlone RABI

loyited States

hioxnorasBLe Joun Ry Barrets

lL nited States District Judae

AMERICA,

l xirep STATES OF

Plaintiff Appellant,

WinwiaM Hoekripar,

Defendant-Appellant.

\ petition for a rehearing having been filed herein by

counsel for the appelrant William Hoekridge.

[pon consideration thereof, it is Ordered that said

petition be amd at here! V is dened

A. Dasxter, Fusano,

(Clerk

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