# Petition — Easton v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 821

## Text

IN THE

Supreme Court of the United States

October Term 1977

No. 77-1770

WILLIAM HOCKRIDGE,

Petitioner,
v.

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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Cherensky v. George Washington-East Motor Lodge

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ii

Cases Cited (Continued)

PAGE
SUE Gv a seks ae cunduucbiaturbecoen totes 24
ee Mn ud axds pAdey Ghee pane oeee eae ke eaeten 21, 24
Government of Virgin Islands v. Gereau .......... 18
ee ene TD, GD oo x nto ence vdeenccdicnes 22
Se EE dsc ue ee ork aul haldaeaS neon u ath ewds 19
Jorgensen v. York Ice Machinery Corporation ...... 22
Kingsport Utilities, Ine. v. Lamson ................ 24
I a a ca vane 18
I arid OG Ne a a Bi Sn ahi 30
I atte te Be nl ly foe ee 28
Pe Ct. cdo ednvewnrebaeekenssss 30
EE aie Gciu ck Wikduewwakdcs aswaeees 29
Re oi kek ce rcawkes ykveeban 22
RE I oh a otal os be i i we cule 32
re i a ew anwekus 20
OF BESET rare Pee ee eee pe aD 32
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ee CeCe NUE s eaweeabven nese a aba. 24
SEMIN chnti vance hibd'o oa baw ee een dene duck 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

19

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).

20

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.

21

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).

24

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.

20

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.

27

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.

28

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).

29

(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.

30

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.

31

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.

32

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

7

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

ee

'’ 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

le

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-
curring). See 64 Moore's Federal Practice © 59.0814}, at 130 (1974).
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).

'* See 6A Moore's Federal Practice, supra note 16, © 59.08{4),
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,
v.

Witiiam Hockriper, et al.,
Defendants.

ay
Vv

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1153%3A1. Public record. Not legal advice.