Petition — Gross v. United States

«Wibeete Court, U. &:

FILED

ame

MAY 7% 1980

IN THE CR 6 te NE he toner ante

Supreme Court of the United States

Ocroser Term, 1979

Nn. 79.1832

NELSON G. GROSS,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

F. Lee Batey,

KENNETH J. FISHMAN,

Attorneys for the Petitioner,

One Center Plaza

Boston, Massachusetts 02108.

(617) 723-1980

Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102-—(201) 623-8611

TABLE OF CONTENTS

Opinion BELOw ............- eS eo

Questions PRESENTED ror Review ........

ly rae

Perens o7 as Co

Reasons For GRANTING THE WRIT:

A. The Court of Appeals’ decision that petitioner

was not entitled to coram nobis relief despite

evidence of improprieties between jury mem-

bers and Deputy Marshals which would have

entitled petitioner to a mistrial or reversal

on direct appeal raises a novel and im-

portant question of constitutional law .......W...

B. The Court of Appeals failure to reverse the

District Court’s denial of coram nobis relief

where the record discloses, at a minimum,

the “appearance of evil” is in conflict with

controlling case law of this Court and other

Circuits

C. The Court of Appeals failed to rule on peti-

tioner’s claim that he was entitled to coram

nobis relief where the integrity of the judicial

process was violated by the failure of the

Court Officers to report the improonrieties to

the Trial Court, which claim raises a novel

and important question of constitutional law

CONCLUSION ....ccceeeee-ee-

14

17

23

ii TABLE OF CONTENTS

PAGE

APPENDIX:

A—Decision and Judgment of Court of Appeals A-1

B—Decision of District Court B-1

Cases Cited

Estes v. Texas, 381 U.S. 532 (1965) ...... 20

Gonzales v. Beto, 405 U.S. 1052 (1972) ; 16

Government of Virgin Islands v. isigtiae 523 F.2d

140 (3rd Cir. 1976) i adh 22

Leger v. Westinghouse Elec. Corp., 483 F.2d 428 (5th

Cir. 1973) “ 19

Mattox v. United States, 146 U. s. 140 (1892) ............ 17,19

McGraw v. O’Neal, 123 Mo. App. 691, 101 S.W. 132 17

Palmer v. Miller, 60 F.Supp. 710 17

Pekar v. United States, 315 F.2d 319 (5th Cir. 1963) 17,

18

Remmer y. United States, 347 U.S. 227 (1954) ... 16

Turner vy. Louisiana, 379 U.S. 466 (1965) 00... 16

United States v. Betner, 489 F.2d 116 (5th Cir. 1974) 18

United States v. Harry Barfield Co., 359 F.2d 120

CORR BD bi aciesecsksen indices 18, 19

United States v. Keogh, 391 F.2d 138 (2nd Cir. 1968) 15

United States v. McKinney, 429 F.2d 1019 (5th Cir.

I heresies 22

IN THE

Suprene Court of the United States

Octoser Term, 1979

No.

» =

—

NELSON G. GROSS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

¢

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

Petitioner, Nelson G. Gross, respectfully prays that a

writ of certiorari issue to review the judgment and opin-

ion of the United States Court of Appeals for the Third

Cireuit entered on February 7, 1980.

Opinion Below

The opinion of the Court of Appeals for the Third

Circuit is published in United States v. Nelson G. Gross,

2

614 F.2d 365 (1980), and is attached hereto as Appendix A

(A-1). Said opinion affirmed the unpublished opinion of

the United States District Court for the District of New

Jersey, United States v. Gross, No. 73-324 (D.N.J. July

3, 1979). The District Court Opinion is attached hereto

as Exhibit B (B-1).

Questions Presented for Review

I. Whether the Court of Appeals erred in affirming the

District Court’s denial of Petition for Writ of Error

Coram Nobis where the record disclosed extensive roman-

tic involvement and prejudicial communications between

sequestered jurors and officers of the court and where

such behavior would have required a mistrial if discov-

ered during the course of trial or a retrial if raised on

direct appeal.

II. Whether the Court of Appeals erred in affirming

the District Court’s determination that petitioner must es-

tablish that the verdict of the jury was impermissibly

influenced where petitioner was denied a fundamentally

fair trial by the overwhelming “appearance of evil” re-

sulting from the conduct of court officers.

III. Whether the Court of Appeals erred in failing

to rule on petitioner’s claim that the integrity of the

judicial process and petitioner’s Sixth Amendment rights

were violated by the failure of the court officers to re-

port improprieties involving the jury to the trial court.

Proceedings Below

Petitioner, Nelson G. Gross, was convicted on a five-

count indictment on March 29, 1974, following a trial

of more than 30 days.' United States v. Gross, 375 F.

Supp. 971 (D.N.J. 1974), aff'd, 511 F.2d 910 (38rd Cir.),

cert. den., 423 U.S. 925 (1975). A subsequent motion for

a new trial was denied by both the trial court and the

Court of Appeals. Defendant Gross was incarcerated

from June 2, 1976, until he was paroled on December

10, 1976. His supervision on parole terminated on June

1, 1977.

On or about December 5, 1977, Gross filed a motion

for a new trial pursuant to Rule 33 of the Federal Rules

of Criminal Procedure, or, alternatively, for an order set-

ting aside his conviction pursuant to a petition for writ

of error coram nobis. United States v. Gross, 446 F.

Supp. 948 (D.N.J. 1978). A hearing im camera was com-

menced on December 27, 1977, continued on January 10

through January 13, 1978, and concluded on January 16,

1978. Having concluded that the court had jurisdiction

over the matter through the vehicle of a writ of error

coram nobis, the United States District of New Jersey

(Honorable Lawrence A. Whipple) nevertheless determ-

ined that there was no basis in fact for the issuance of

the writ of coram nobis nor any factual issue justify-

ing a more extensive hearing and thus denied the petition.

446 F.Supp. at 959.

The District Court’s order was vacated and remanded

by the United States Court of Appeals for the Third

1 Petitioner was charged with conspiracy to defraud the United

States, aiding and assisting the filing of a false and fraudulent tax

return, obstruction of justice and subornation of perjury in an in-

dictment returned on May 22, 1973.

4

Circuit in an order dated November 6, 1978. United

States v. Gross, No. 78-1360 (8rd Cir. Nov. 6, 1978), order

reported at 588 F.2d 824. This Court found present fact-

ual issues justifying a more extensive hearing into the

matter and suggested that the renewed hearings be open

rather than in camera.

Accordingly, the District Court held additional hearings

at which petitioner Gross was permitted to present evi-

dence in support of his allegations. Said hearings were

conducted on March 19th and 20th, 1979, and on April

11, 1979.

On July 17, 1979, the District Court entered an order

denying the application for a writ of error coram nobis

based upon the reasons set forth in the court’s opinion

filed on July 3, 1979. United States v. Gross, No. 324-73

(D.N.J., July 3, 1979) (unpviished opinion). The opinion

of the District Court was affirmed on February 7, 1980,

by the Third Cireuit in Unii - States vy. Gross, 614 F.2d

365 (1980).

Statement of the Case

The initial evidence in support of the petition for a

writ of error coram nobis consisted of the affidavit of

former Deputy Marshal Leon Stacey, dated November 18,

1977, and the testimony of Mr. Stacey in the United

States District Court for the District of New Jersey.

In his affidavit, Stacey asserted that he was attached to

the United States Marshal’s Office in N ewark, New Jersey

from July 9, 1971, to September 11, 1976, and ineluded

among his duties was the responsibility for sequestered

juries.

ere

5

From the first week in March, 1974, and for a period

of approximately three weeks thereafter, Stacey was as-

signed as the “Day Deputy Marshal” to “oversee” the

sequestered jury in the case of United States v. Nelson

Gross. He was on duty from 7:00 A.M. to 7:00 P.M., seven

days a week and on weekends he would accompany the

jury on their recreational trips. It was during this tour

of duty that Stacey developed a romantic relationship

with a female juror named Brendalee Kashey. The re-

lationship began after Stacey was informed by Deputy

Marshals Samuel Cicchino and Cosmo Alagna, Jr. that

Ms. Kashey was attracted to him. Cicchino and Alagna

had become friendly with another female juror named

Lucy Cramer; indeed, these Deputy Marshals were vying

for Cramer’s affection. Specifically, Stacey claimed that

he was able to meet with Kashey privately and intimately

at the Coachman Inn where the jury was sequestered

due to the connivance of Deputy Marshals Cicchino and

Alagna. Further, he was able to see her more frequently

on weekends, particularly on a bus trip. During their

discussions, Kashey would complaint about the case and

was anxious to have it completed. The relationship be-

tween Stacey and Kashey became well-known to indi-

dividuals in the Marshal’s office, and matrons informed

Stacey that Kashey was, in fact, infatuated with him and

could not wait until the trial was over.

During the last week to ten days of the trial, Stacey

was transferred to other duties at the Federal Building

but was able to meet with Kashey during this period.

According to Stacey, Deputy Marshals Cicchino and

Alagna permitted Kashey to leave the jury room at the

courthouse in order that Stacey could meet with her while

Alagna and Ciechino were “partying” with Lucy Cramer,

the other female juror. At the Coachman Inn, both women

met and romanced with the three Deputy Marshals in-

a

6:

volved, either on walks in the motel corridor or in a se-

eluded area where a record player was set up.

Stacey further contended that a few days following the

trial, he met with Kashey and they drove to Ming’s

Chinese Restaurant in Woodbridge, New Jersey where

they had dinner, talked and met certain friends of Sta-

cey’s. During that evening, Kashey informed Stacey of

her confusion regarding her current engagement, her feel-

ings about Stacey, her lack of concern about the Gross

ease during tke jury deliberations and other personal

problems. Stacey further claimed that after the trial

Deputy Ciechino, Lucy Cramer, Brendalee Kashey and

Stacey all got together at Stacey’s home.

At a later date, Stacey discussed the matter with United

States Marshal Hirschman. He informed Hirschman about

the “rendezvous at my apartment.” They further dis-

cussed a relationship between Deputy Marshal Anthony

Vitello and other female member of the jury named Mau-

reen. Hirschman told Stacey to keep quiet about the epi-

sode.

Stacey asserted that he informed the F.B.I. of these

matters during March of 1977. He further informed the

F.B.I. that the office motto for sequestered juries was “*We

won another case for the government’.” Stacey also main-

tained that he convinced Kashey that the defendant Gross,

as a politician, would never receive a prison term if a

guilty verdict were returned.

Former Deputy Marshal Stacey’s testimony served both

to corroborate and expand upon his allegations contained

in his affidavit. He testified that the Deputy Marshals

were specifically instructed by Marshal Hirschman to take

particularly good care of this jury as United States At-

torney Goldstein, who was prosecuting the case, had to

look good in that he might become a federal judge. Ac-

cording to Stacey, Hirschman had instructed that the gov-

ernment had to win the case and Stacey, as a Marshal,

considered himself a part of the government’s team.

Stacey’s testimony also provided further detail concern-

ing the development of his romantic relationship with

juror Kashey and the relationship between juror Cramer

and Deputy Marshals Alagna and Cicchina. With respect

to the conversations between the Deputy Marshals and the

jurors concerning the case itself, Stacey testified that

Cramer expressed her dislike for the defendant’s attorney,

and that Kashey complained generally about being in the

jury, stressing that she had enough of her own problems

and was not interested in “any dam politician.”

It was during a Saturday bus trip to South Jersey, in

the third week of trial, that Stacey informed Kashey that

as Gross was a politician, he would only get “a slap on

the wrist.” Kashey was upset and indicated that she did

not want to be part of the jury nor did she care what

happened to the defendant. Stacey further testified that

at a subsequent courthouse meeting, Cicchino told Cramer

not to worry because Gross was not going to be sent to

jail.

Stacey stated that during the trial, Marshal Hirschman

removed him from duty because of his relationship with

Kashey and because everyone was aware of that relation-

ship and Hirschman ««! not want the case “blown.” In

response to a question put forth by the District Court,

Stacey contended that he did not bring his romantic in-

volvement to the court’s attention during the Gross trial

because he was told by Hirschman to keep his mouth shut.

Stacey also revealed that during a February 1977 meet-

ing with F.B.I. agents, he talked about the Nelson Gross

case and told the agents of the involvement with female

8

jury members. He stated that he further informed the

agents that he did not think that Gross received a fair

verdict in view of the conduct of the Deputy Marshals.

Deputy Marshal Samuel Cicchino testified that he was

informed by Stacey that he (Stacey) was infatuated with

one of the jurors and indeed was “falling in love” with

a juror named Brenda. Cicchino further testified that he

did not report Stacey’s infatuation to anyone because he

did not take Stacey seriously, but he assumed that Deputy

Marsha! Anthony Vitello and Chief Bowler had been in-

formed about Stacey’s feelings }: cause they told the Mar-

shal and the Marshal subsequently took Stacey off the

jury. While Cicchino admitted that he was on the bus

trip with the Gross jury to Smithville on March 16, 1974,

he claimed that he could not recall Stacey being present

and that he (Ciechino) did not sit with any juror.

Ciechino admitted that he saw a young female member

of the jury several times after the trial. Cramer was the

juror whom Stacey had identified as the one over whom

Ciechino and Deputy Marshal Cosmo Alagna were vying.

Ciechino claims that about one week after the trial he had

dinner at Cramer’s home, and that he had had a date with

her at a softball game and visited her at her place of

work.

With respect to the post-trial rendezvous, Cicchino tes-

tified that he, Stacey, Cramer and Kashey did, in fact, get

together at Stacey’s apartment on a Saturday following

the trial. He stated that no deception was to be involved

in getting Kashey to Stacey’s apartment. They were at

Stacey’s apartment for well over an hour, and after eat-

ing and conversation, Cicchino took the women home. Cic-

chino admitted that this was the only time in his life he

had seen a marshal date a juror after a trial in which the

juror participated. He further stated that when inter-

9

viewed concerning the improprieties at the Gross trial by

the F.B.I., he told them he knew of none.

Catherine Garrity, a matron assigned to the Gross jury,

testified that on more than one occasion while on duty at

the Coachman Inn where the jury was sequestered, Stacey

informed her that he liked Kashey and would like to

establish a relationship or’ friendship with her. While

Garrity claims that she advised Stacey to stay away from

Kashey, Garrity did observe Stacey and Kashey commu-

nicating while Stacey was on duty. Garrity testified that

she could see that Kashey was becoming infatuated with

Stacey as Kashey would inquire about when Stacey would

be on duty. Garrity also testified that she informed Mar-

shall Hirschman about Stacey and that a day or two

later Stacey was removed from duty with the Gross jury.

Linda Kotner, a member of the Gross jury, testified

that Kashey had told her during the trial that she (Bren-

dalee) thought Stacey was nice and that she was con-

fused at the time because she was engaged. Kotner stated

that the cause of confusion was her feelings about Stacey.

Harriet Sica Timpanaro testified that she saw Stacey

and a wouian named Brendalee (Kashey) at Ming’s in the

latter part of April, 1974, and that she sat with them for

an hour or an hour and a half.

Lucy Cramer, a female member of the jury, testified

that during the trial Stacey invited her and other mem-

bers of the jury over to his apartment after the trial

was over. She stated that Stacey liked Kashey and that

she knew Stacey had been taken off jury duty because

he became too friendly with the jurors, possibly having

been told that by Deputy Marshal Vitello. She thought

that Stacey’s removal was occasioned by his attention to

Kashey. She contradicted the testimony of Deputy Mar-

shal Ciechino by stating that on the bus trip to Smith-

10

ville she rode down seated next to Cicchino. In relating

the events concerning the Saturday rendezvous at Stacey’s

apartment, Cramer both contradicted and corroborated

the testimony of Stacey, Cicchino and Kashey concerning

this event. Most significantly, she stated that she remem-

bers going to Stacey’s apartment but does not remember

who arranged it.

Cramer admitted that Ciechino had come to her house

a couple of times after the trial, at least once for dinner;

that she had dinner with Cicchino after the trial at a res-

taurant on another occasion; and that in addition, Cic-

chino came over to visit her at her job.

Deputy Marshal Anthony Vitello testified that he and

Chief Bowler were in charge of the Gross jury, and that

Stacey, Alagna and Cicchino were assigned to assist. Dur-

ing the trial, he was told by one of the matrons that a

juror had complained about Stacey bothering her and

the matron had mentioned the name “Brenda.” He claims

he reported this to Marshal Hirschman who said he would

take care of it. A day or so later, Hirschman, yelling

and screaming, instructed Vitello to remove Stacey from

the jury. He states that he never reported the informa-

tion concerning Stacey to the trial court and he does

not know if Hirschman ever reported it.

Vitello dénied telling F.B.I. agents in an interview that

Deputy Marshals Alagna and Cicchino were involved with

a female juror on a sequestered jury and that he (Vitello)

reported the same to Hirschman. He further denied

telling Assistant United States Attorney Robertson and

Justice Department Attorney Speiser that Stacey was re-

moved from his assignment with the Gross jury because

he was in love with a juror. F.B.I. agents Brennan and

Wilson, who interviewed Deputy Marshal Vitello in July,

1977, testified that Vitello had told them that Deputy

Te ee ee ee — a Bote ee 1 mane ae ne int -

11

Marshals Cicchino and Alagna attempted to develop a

relationship with a member of a sequestered jury, and

that Vitello had brought this to the attention of the

United States Marshal with the idea of having these par-

ticular deputies removed from that seqnestered jury. The

agents further testified that Vitello stated the Marshal

refused to act. Agent Brennan testified that he had in-

juired concerning Deputy Marshal involvement with fe-

male members of the sequestered jury as a result of a

prior interview with another deputy who had stated that

a couple of deputies had benefited as a result of working

with the sequestered jury for the Gross trial. Both Agents

Brennan and Wilson testified to the accuracy of their

reports which indicated that Vitello had told them of

the Alagna and Cicchino involvement with a female juror.

Justice Department Attorney Speiser testified that Vitello

had stated in an interview three separate times that

Stacey was in love with a juror.

Vitello admitted that Stacey was with the jury on

March 16, 1974 (the day of the Smithville bus trip) by

virtue of the information contained on the logs, but he

could not testified to specifically remembering Stacey

being on that trip. While this was the only time in his

experience that he had received this type of complaint

concerning a Deputy Marshal and felt that such a com-

plaint was unusual, he further felt it was enough to re-

port the matter to the Marshal.

Chief Bowler testified that Vitello was a court security

specialist and in charge of the Gross jury. He stated

that he had heard Hirschman hollering on one occasion

and Hirschman kicked Stacey off the jury. He later

learned that Stacey was removed for fraternizing with

a juror by way of talking too much to that juror and

giving her a hard time. He stated that Hirschman later

12

changed his mind and allowed Stacey back on duty with

that same jury.

In ccntrast, Marshal Carl Hirschman testified that he

was the Marshal in 1974 and that Bowler and Vitello

were in charge of the Gross jury. Hirschman claimed

that he was never told that the deputies were acting im-

properly, and indeed, never removed any Deputy Marshal

from jury duty nor did he reinstate any deputy to such

duty. He further stated that he had never heard any

information concerning a deputy being in love with a fe-

male juror. He testified that the policy in the office was

to report any impropriety to the trial court and not to

the Marshal and he would have immediately reported any

such complaint to the court had he received one.

Myrtle Grimm, the forelady of the Gross jury, testified

that Deputy Marshal Stacey was annoying the female

members of the jury. She further testified that Stacey

thought that he was in love with Kashey. Kashey, how-

ever, did not want to be bothered by Stacey. Mrs. Grimm

stated that the other female members of the jury came

to her and complained about Stacey. Grimm advised that

they should go to Judge Whipple and have Stacey re-

moved from duty. Her co-jurors stated that they would

report it to Marshal Hirschman and she presumed that

they did. Indeed, Mrs. Grimm testified that they reported

to her that they had gone to Hirschman and that Hirsch-

man had stated that he would see to it that Stacey was

removed. Only a few days later, Stacey was, in fact,

removed. Mrs. Grimm presumed that the incident was

reported to Judge Whipple and believed Stacey’s removal

was the trial judge’s doing, that being the only reason

she did not make an independent report to the court.

Brendalee Kashey Dworak testified that she never knew

Stacey was interested in her and that she only knew

13

Stacey after one and one half weeks into the trial. In

contrast to Garrity’s testimony, Kashey admitted that one

of the matrons questioned her on the bus one day, say-

ing that Stacey had talked to her (the matron) about

Kashey but testified that she told the matron she felt

nothing for Stacey. Kashey admitted that, during a re-

cess in the trial, she was engaged in conversation with

Kotner, Alexander and Grimm (and possibly Cramer), and

during said conversation, it developed that Stacey was

bothering these women. She denied ever going to Hirsch-

man with a complaint regarding Stacey. Kashey also

lenied asking Matron Garrity when Stacey would be re-

turning to duty.

Kashey distinctly remembered that Stacey was on the

Smithville bus trip, that Stacey sat with her for a few

minutes, and that Cramer sat with Deputy Cicchino for

a few minutes. She claimed that she did not converse

with Stacey more than to say “hello”, and stated that

Stacey was annoying on the bus that she ignored him

and read a book. She remembers also that Stacey was

ultimately removed from duty.

With respect to her relationship with Stacey after the

completion of the trial, Kashey testified that she was

called by Stacey the day she got home from jury duty.

With regard to the Saturday visit at Stacey’s apartment,

she claimed that she did not know she was going to

Stacey’s, but did, in fact, end up there with Cramer and

Ciechino. Her account of the events of that day varied

considerably with the testimony of the other witnesses

involved.

Kashey testified that Stacey called her once after that

visit, and denied ever going to Ming’s Chinese Restaurant

with Stacey, or, in fact, to any restaurant with Stacey.

She testified that she did not like Stacey in that he was

annoying and denied any romantic involvement with any

marshal during the course of the trial.

14

REASONS FOR GRANTING THE WRIT

A. The Court of Appeals’ decision that petitioner was

not entitled to coram nobis relief despite evidence

of improprieties between jury members and Deputy

Marshals which would have entitled petitioner to

a mistrial or reversal on direct appeal raises a novel

and important question of constitutional law.

Although recognizing that “[c]oram nobis is a remedy

infrequently used, and the case law on it is accordingly

sparce,” the Court of Appeals below nevertheless held

The interest in finality of judgments dictates that

the standard for a successful collateral attack on

a conviction be more stringent than the standard

applicable on a direct appeal. Behavior that might

clearly require a mistrial if brought to the dis-

trict court’s attention at trial, or a retrial if on

direct appeal, might not be sufficient to require

coram nobis relief.

United States v. Gross, 614 F.2d 365, 368 (3rd Cir. 1980).

(A-5).

By so stating, the Third Circuit has created a stand-

ard, unsupported by prior judicial decisions, which, when

applied to a case such as the one at bar, deprives a de-

fendant relief when he has, by any existing standard,

shown that he was deprived a fundamentally fair trial

by an impartial jury. The Court of Appeals has sug-

gested that even if the instant petitioner was entitled to

a mistrial or a reversal on direct appeal by virtue of

the evidence of romantic involvement between female mem-

bers of the sequestered Gross jury and Deputy Marshals,

he was not entitled to coram nobis relief unless he con-

ta mentee alll

titer ante sh

15

clusively establishes the irregularity or invalidity of the

proceedings below presumably by, as suggested by the Dis-

trict Court, proving the jury was impermissibly influenced.

(B-6).

It is submitted that to place a higher burden on pe-

titioner in his quest for coram nobis relief is both un-

reasonable and unfair. As recognized by the court below,

coram nobis was the only avenue available to petitioner

when he became aware of the irregularities in his trial

because he had completed serving his sentence and his

parole supervision had terminated. 614 F.2d at 366-367.

(A-2).

Clearly, the circumstances of the uncontrollable timing

of petitioner’s claim for relief which resulted in the pe-

tition being considered as a request for a writ of error

coram nobis should not act against petitioner because his

time served can never be returned and, as pointed out

in the District Court, the coram nobis petition was his

only avenue by which to vindicate his rights and ulti-

mately return him to the practice of law. Indeed, the

Second Circuit has recognized that “special considerations

applicable to coram nobis” are not applicable where the

petitioner could not have possibly made a record on the

error claimed during trial. In such cases, coram nobis

relief is mandated once the fundamental defect is shown.

United States v. Keogh, 391 F.2d 138, 148 n. 9 (2d Cir.

1968).

While the instant petitioner claims that the record be-

low reveals far more than that which the Court of Ap-

peals described as “a simple ‘annoyance’ of some female

jurors and the expression of a romantic interest in one”,?

2It was petitioner’s contention below that Stacey’s allegations

having been corroborated in many of its important details, the

(Footnote continued on following page)

16

(A-6), it is submitted that the Third Circuit was likely

to have reached a totally contrary decision in this case

had the proper standards been applied.

This Court in Remmer v. United States, 347 U.S. 227,

229 (1954), held that a presumption of prejudice arises in

cases in which there is “any private communication, con-

tact, or tampering directly or indirectly, with a juror dur-

ing a trial about the matter pending before the jury... .”

If the Remmer standard had properly been applied to the

case at bar*® without the heavier burden allegedly imposed

in coram nobis cases, it is apparent that the government

failed to meet its burden of establishing that the preju-

dicial communications and romantic relationships did not

occur or that, if they did occur, they were harmless, and

thus petitioner was entitled to relief. See Turner v. Louisi-

ana, 379 U.S. 466 (1965); Gonzales v. Beto, 405 U.S. 1052

(1972).

(Footnote continued from preceding page)

District Court should have found that there was both extensive

romantic involvement between more than one juror and more than

one Deputy Marshal and discussion between those individuals con-

cerning the case on trial. Under these circumstances, petitioner

is clearly entitled to relief. Remmer v. United States, supra. The

District Court concluded, however, that Stacey was not to be be-

lieved merely because of the manner in which his affidavit was pre-

pared and because of his motives.

SIt is further submitted that the court below also improperly

applied Remmer to the instant case. There having been evidence

of prejudicial communications between jurors and Deputy Mar-

shals regarding the guilt or innocence of the petitioner, the pre-

sumption of prejudice arose and only thereafter, in assessing whe-

ther the government met its burden, would Stacey’s credibility have

become a factor.

17

B. The Court of Appeals failure to reverse the District

Court’s denial of coram nobis relief where the record

discloses, at a minimum, the “appearance of evil’

is in conflict with controlling case law of this Court

and other Circuits.

As early as 1892, this Court held that:

[p]rivate communications, possibly prejudicial, be-

tween jurors and third persons, or witnesses, or

the officer in charge, are absolutely forbidden, and

invalidate the verdict, at least unless their harm-

lessness is made to appear.

Mattox v. United States, 146 U.S. 140, 150 (1892). (em-

phasis added).

Following the Mattox principle, the United States Court

of Appeals for the Fifth Cireuit, in Pekar v. United

States, 315 F.2d 319 (5th Cir. 1963), reversed a conviction

where the prosecuting attorney engaged in merely social

conversation with one or more jurors. In so holding, the

Fifth Cireuit relied, in part, on the District Court deci-

sion in the civil ease of Palmer v. Miller, 60 F.Supp. 710,

which quoted the following passage from the opinion in

McGraw v. O’Neal, 123 Mo.App. 691, 101 S.W. 132, 137

(emphasis added) :

“Tt is the duty of litigants and their attorneys to

refrain, while the trial is in progress, from seeking

the companionship of jurors during the necessary

adjournments and recesses. They should avoid even

the appearance of evil, and, when it is brought to

the attention of the trial judge that any person in-

terested in the result of the cause on trial is at-

tempting to court favor with jurors by any sort of

attention, a prompt and sufficient rebuke should be

18

administered, and should it appear that a party or

his counsel with improper design has succeeded m

bestowing favor on a juror, though it consists of

nothing more than social attention, a verdict in

favor of the offending party should be set aside.”

The Pekar court went on to note that in a criminal case,

“an even stricter standard, if possible, is required .. .”

315 F.2d at 322.

Similarly, in United States v. Betner, 489 F.2d 116 (5th

Cir. 1974), a conviction was overturned where the prose-

eutor, during a recess, discussed matters other than the

ease at hand with jurors. The Court held that, “[t]he dis-

trict court’s investigation went no further than to ascer-

tain that the case on trial was not mentioned. This was

insufficient.” Id., at 118 (emphasis added).

Further, in United States v. Harry Barfield Co., 359

F.2d 120 (5th Cir. 1966), the Fifth Cireuit reversed a con-

viction where the president of a corporate taxpayer seek-

ing a refund, conversed with members of the jury about

family relationships and other topics not involving the

ease. The Court of Appeals found that conduct to be

prejudicial per se, stating:

That case does suggest that a verdict rendered un-

der such circumstances may be saved if forbidden

communciations with jurors are made to appear

harmless. But, as in Pekar, we think the harm is

inherent in the deliberate contact or communication

which exists under the facts of this case. Every

case of this kind turns on tts own peculiar facts, but

the harm here appears to a degree which may not

be overcome; and thus prejudice or harm appears

as a matter of law. The conduct here was deliber-

ate and intentional as distinguished from a mere in-

sen ee trea ree

19

advertent or accidental contact involving only an

exchange of greeting in order to avoid an appear-

ance of discourtesy.

Id., at 124 (emphasis added). The Court recognized that

reversal was necessary to preserve the integrity of the

jury system. Id. See also Leger v. Westinghouse Elec.

Corp., 483 F.2d 428 (5th Cir. 1973).

While the cases discussed above deal primarily with

contact between litigants or their representatives and

members of the jury, it is clear that they dispel the no-

tion under which the District Court operated in the in-

stant case and which the Court Appeals affirmed, to wit:

that the communication between the third party (here,

court officers) and jurors must necessarily concern the

case itself to be prejudicial. To the contrary, improper

contact between jurors and other individuals is forbidden

because

[i]t is vital ... that the jury should pass upon the

case free from external causes tending to disturb

the exercise of deliberate and unbiased judgment.

Nor can any ground of suspicion that the admin-

istration of justice has been interfered with be

tolerated.

Mattox v. United States, supra, at 149, quoted in United

States v. Harry Barfield Co., supra, at 124.

It is submitted that to conclude, as did the District

Court below, that the jury in the Gross ease passed “upon

the case free from external causes tending to disturb

the exercise of deliberate and unbiased judgment” is

plainly error, even assuming arguendo that the record

does not support a finding that discussions between the

Deputy Marshals and female jurors during their romantic

20

trysts did not concern the case before them. This error

is particularly severe as there is unrebutted testimony

supporting the finding that the conduct of the Deputy

Marshals, particularly Stacey’s conduct, was deliberate

and intended to prejudice the defendant and aid the gov-

ernment in obtaining a conviction in an “important” case.

The Court of Appeals has set a standard that would

condone the grossly improper contact engaged in between

court officers and jurors—contact which the court below

conceded was improper and reprehensible (A-6)—as long

as the case on trial is not discussed. It is respectfully

submitted that such a standard is unacceptable as it

ignores the potential prejudice to the defendant by such

contact and is destructive of the jury system. Moreover,

the standard is in direct conflict with the decision in the

cases discussed above.

At a minimum, it is apparent that the conduct engaged

in by the Deputy Marshals created a severe distraction

to the female jurors involved and to other jurors, such

as Grimm and Kotner, who were aware of the conduct,

and the absence of the proper atmosphere is grounds for

relief. See Estes v. Texas, 381 U.S. 532, 540-541 (1965).

a nt cn a a

anti mc At INE AD a a oe

21

C. The Court of Appeals failed to rule on petitioner’s

claim that he was entitled to coram nobis relief

where the integrity of the judicial process was vio-

lated by the failure of the court officers to report

the improprieties to the trial court, which claim

raises a novel and important question of constitu-

tional law.

It is petitioner’s contention that the absolute duty of

the Marshal and his Deputies to report to the court any

unpermitted contact with members of the sequestered jury

having been violated, petitioner was entitled to the relief

requested, not only because of the attendant prejudice

to him but also because of the severe impairment of the

judicial process in which the trial took place.

The record of the instant case discloses that this was

not a situation where court officers merely neglected to

inform the trial court of matters which they did not be-

lieve merited the involvement of the court, but rather

involved a calculated effort on the part of those with

responsibility and those jurors involved with the Deputy

Marshals to conceal from the court wrongdoings that

were tainting the entire proceedings. Indeed, the record

reflects that the efforts of the forelady of the jury to

contact the court were subverted by members of the Mar-

shal’s staff, or perhaps the Marshal himself.

The Court of Appeals found the following facts to have

been disclosed at the hearings:

The forelady believed the matter had been reported

to the Trial Judge and that Stacey had been re-

moved on account of his behavior. The matron

testified that she reported Stacey to the United

States Marshal. In fact nothing was reported to

the Trial Judge, however, several witnesses con-

22

firmed that Stacey had been reported to the Marshal.

The Marshal denied knowing about it, while sev-

eral Deputy Marshals testified that they heard him

verbally order Stacey off the Gross jury.

(A-45).

Whether or not the matter was ever brought to Marshal

Hirschman’s attenton and even if Hirchman initially re-

moved Stacey from his assignment with the Gross jury,

it is submitted that neither would have obviated the need

to bring it to the attention of the trial court, which would

have undoubtedly made an immediate independent in-

quiry to determine whether the jury had been tainted to

the extent that a continuation of the trial would have

denied the defendant his right to a trial by a fair and

impartial jury. It is further submitted that even a find-

ing consistent with the one resulting from the coram nobis

proceedings, 7.¢., some romantic involvement, would have

clearly resulted in a mistrial and petitioner’s rights would

have been preserved.

The trial court, having had no opportunity to insure the

protection of the petitioner’s Sixth Amendment rights and

exercise its duty “‘to protect the integrity of its own

processes’”, was required to set aside the instant verdict.

Government of Virgin Islands v. Gereau, supra, at 151,

quoting United States v. McKinney, 429 F.2d 1019, 1032-

33 (Sth Cir. 1970) (Goldbold, J., dissenting), cert. denied,

401 U.S. 922 (1971). Both the District Court and the

Court of Appeals failed to do so, by denying the writ of

error coram nobis and, indeed, failed to even address

this issue when denying petitioner relief.

— ee

23

CONCLUSION

Based upon the facts of this case and the foregoing

arguments and authorities, is respectfully submitted that

the petition for a writ of certiorari should be granted.

Respectfully submitted,

F. Lee Barmy,

KENNETH J. FISHMAN,

Attorneys for the Petitioner,

One Center Plaza

Boston, Massachusetts 02108.

[ApPenpices FotLow]

A-1

APPENDIX A

Decision and Judgment of the United States Court of

Appeals, for the Third Circuit = _ |

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 79-2010

UNITED STATES OF AMERICA

Vv.

NELSON G. GROSS, Appellant

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(Crim. No. 73-00324)

Argued January 8, 1980

Before: SEITZ, Chief Judge, ADAMS and WEIS.

Circuit Judges

(Filed February 7, 1980)

F. LEE BAILEY (Argued)

KENNETH J. FISHMAN

Boston, Massachusetts

Attorneys for Appellant

ROBERT J. DEL TUFO

United States Attorney

Newark, New Jersey

On the Brief:

MARYANNE T. DESMOND (Argued)

Chief, Appeals Division

A-2

Appendiz A

OPINION OF THE COURT

PER CURIAM:

Nelson Gross appeals for the second time the dis-

trict court’s denial of a writ of coram nobis. in the first

appeal, we vacated the order of the trial court and re-

manded for a full evidentiary hearing on Gross’s allega-

tions of misconduct on the part of governmeni marshals

in their dealings with a sequestered jury.' After an ex-

tensive hearing the district judge found that a deputy

marshal had acted improperly, but that his behavior was

neither of such character nor such magnitude as to jus-

tilv issuance of the writ. We now affirm.

The purported evidence of improprieties was discov-

ered more than two years after the affirmance of Gross's

conviction? and after his sentence had been served and

parole supervision terminated.* Consequently, relief un-

der Fed. R. Crim. P. 33 or under habeas corpus, 28

U.S.C. $2255, was not available.

The bases for the petition for writ of coram nobis

Were statements in an affidavit of Leon Stacey, a former

1. United States v. Gross. No. 78-1360 (3d Cir. Nev. 6. 1978)

(unpublished per curiam). order reported at 588 F.2d 824.

2. See United States v. Gross. 375 F. Supp. 971 (D.N.J. 1974).

afd. 311 F.2d 910 (3d Cir.). cert. denied, 423 U.S. 924 (1975). In

the previous appeal this court affirmed the district court’s holding

that it did not have jurisdiction over Gross’s Rule 33 motion based

on newly discovered evidence. because it was not made within two

vears of the date of final judgment. See United States v. Gross. 446

IF. Supp. 948, 952-53 (D.N.J. 1978). aff'd on this issue, No. 78-1360

(3d Cir, Nov. 6. 1978). Final judgment has been detined as the date

When the appellate court issues its mandate allirming the convic-

tion, United States v. White, 557 F.2d 1249, 1250-51 (8th Cir.).

cert. denied, 434 U.S. 870 (1977): United States v. Granza. 427

F.2d 184. 185 n.3 (Sth Cir. 1970): Casias v. United States. 337 F.2d

934, 356 (10th Cir. 1964): Smith v. United States. 283 F.2d G07.

610 (D.C. Cir, 1960). cert. denied. 364 U.S. 938 (1961).

3. Gross was convicted of conspiracy to defraud the United

States, aiding and assisting the filing of a false tax return. obstruc-

oe arenes)

A-3

Appendia A

Deputy United States Marshal. Stacey alleged that,

while assigned to guard the sequestered jurors. he de-

veloped during the first week of the trial a romantic in-

volvement with one of the female jurors which contin-

ued until shortly after the trial ended. He further alleged

that in the course of his “romancing” he sought to influ-

ence her verdict by telling her that the defendant would,

if convicted, receive no more than a fine. Two other

marshals were claimed to have competed for the affec-

tions of another juror and to have attempted similar

influence.

At the first hearing on the petition, the district court

heard testimony in camera from Stacey, from the cur-

rent marshal, and from the stenographer employed in

preparing the affidavit. The court determined that the

manner in which the affidavit was prepared raised

doubts as to its credibility,? that Stacey’s motives were

suspect.° and “that all allegations of misconduct during

the pendency of the trial [were] false.’

tion of justice. and subornation of perjury. See id. His sentence, as

later reduced. was to imprisonment for a year and a day. After serv-

ing five months of the sentence, he was released on parole, supervi-

sion of which ended June 1, 1977. Because he was no longer “in

custody” when the present motion was filed, no jurisdiction for

habeas corpus existed.

4. The judge ascertained that Gross had paid all expenses of

Stacey's trip from California to New Jersey to prepare the affidavit

during the course of a two-day meeting. Stacey had admitted that

the wording of the affidavit “was primarily the creation of |Gross].”

and that several key statements as well as the name of the juror

with whom Stacey allegedly became friendly were supplied by

Gross. United States v. Gross. 446 F. Supp. 948, 954 (D.N.J.). va-

cated and remanded, 588 F.2d 824 (3d Cir. 1978).

5. Stacev had been the subject of a magazine story and was to

be the protagonist of a book. The alleged improprieties were said to

be disclosed at the urging of the author and for the purpose of gain-

ing financial benelit from public attention. Furthermore, there were

sucgestions of personal animosity between Stacey and other mem-

bers of the Marshal's service. Id. at 954-35.

G. Id. at 9358.

A4

Appendiz A

On the first appeal we concluded that a more exten-

sive hearing was necessary because the district court

should not have assumed that once it had “discredit|ed]

Stacey's allegations regarding frequent instances of pro-

longed romantic encounters between himself ‘and a fe-

male juror, similar ‘trysts’ between Marshal Service offi-

cers and another female juror, and instances in which

he attempted to directly influence the juror’s delibera-

tions on Gross’s guilt or innocence, there was no neces-

sity for further judicial inquiry into this case.” We held

that “inasmuch as there was other evidence offered here

suggesting romantic involvement between sequestered

jurors and the officers of the court assigned to supervise

their sequestration, a full evidentiary hearing on the is-

sue of juror prejudice was in order.” United States v.

Gross, No. 78-1360, slip op. at 5 (3d Cir. Nov. 6, 1978),

order reported at 558 F.2d 824.

. At the hearing held pursuant to our remand, testi-

-mony was adduced from sixteen witnesses, including

five jurors, two deputy marshals, the Chief Deputy

Marshal, the former Marshal, a deputy clerk who had

been a matron assigned to the jury, two FBI agents who

had been involved in investigating the Marshal’s office,

and four other witnesses. Each relevant witness denied

that he or she had heard or observed any discussions

that related to the Gross trial between any Deputy

Marshal and any juror.

After hearing much contradictory testimony the tri-

al judge concluded that Stacey’s story was substantially

fabricated, although there was at least this kernel of

truth:

The forelady of the Gross jury testified that Stacey

had annoyed certain female members of the jury. A

matron assigned to the jury testified that Stacey

mentioned his romantic interest in a certain juror.

The forelady believed the matter had been reported

to the Trial Judge and that Stacey had been re-

A-5

Appendia A

moved on account of his behavior. The matron testi-

fied that she reported Stacey to the United States

Marshal. In fact nothing was reported to the Trial

Judge, however, several witnesses confirmed that

Stacey had been reported to the Marshal. The

Marshal denied knowing about it, while several

Deputy Marshals testified that they heard him ver-

bally order Stacey off the Gross jury.

Because the trial judge is completely competent to

sift through testimony and make credibility determina-

tions, and because his findings are not clearly erroneous,

we decline the petitioner’s, invitation to make our own

findings of fact. The legal question we must therefore

decide is whether the behavior found to have occurred

requires the conclusion that Gross should have been

granted the writ of coram nobis. To focus this legal issue

more clearly, it is whether the annoyance of some jurors

by a marshal and the marshal’s expression of romantic

interest in a specific juror is a sufficient taint on the pro-

ceedings to require coram nobis relief.

The interest in finality of judgments dictates that

the standard for a successful collateral attack on a con-

viction be more stringent than the standard applicable in

a direct appeal. Behavior that might clearly require a

mistrial if brought to the district court’s attention at trial,

or a retrial if on direct appeal, might not be sufficient to

require coram nobis relief.

Coram nobis is a remedy infrequently used, and the

case law on it is accordingly sparse. The Supreme Court

has held that, as an extraordinary remedy, coram nobis

should be considered only in circumstances “compelling

such action to achieve justice.” United States v. Mor-

gan, 346 U.S. 502, 511 (1954). Issuance of the writ has

been said to be limited to “those cases where the errors

were of the most fundamental character, that is, such as

rendered the proceeding ‘itself irregular and invalid.’ ”

United States v. Mayer, 235 U.S. 55, 69 (1914) (dic-

A-6

Appendia A

tum). Moreover, “[a]ny proceeding challenged by the

writ is presumed to be correct and the burden rests on its

assailant to show otherwise.” United States v. Cariola,

323 F.2d 180, 184 (3d Cir. 1963).

Quoting from an opinion dealing with a‘direct ap-

peal of a conviction, Gross argues that he has met his

burden of demonstrating irregularity during the course

of the trial, so that the burden shifted to the government

to prove that the irregularity was harmless:

In a criminal case, any private communication, con-

tact, or tampering, directly or indirectly, with a juror

during a trial about the matter pending before the

jury is, for obvious reasons, deemed presumptively

prejudicial, if not made in pursuance of known

rules of the court and the instructions and direc-

tions of the court made during the trial, with full

knowledge of the parties. The presumption is not

conclusive, but the burden rests heavily upon the

Government to establish, after notice to and hearing

of the defendant, that such contact with the juror

was harmless to the defendant.

Remmer v. United States, 347 U.S. 227, 229 (1954). As-

suming that the Remmer shift in presumptions applies

to these proceedings, we hold that the district court cor-

rectly emphasized that the presumption shifts only if the

improper contact between the deputy marshal and a ju-

ror involved “the matter pending before the jury.” The

matter pending before the jury. we held in United States

v. Boscia, 573 F.2d 827. 831 (3d Cir. 1978) (interpreting

Remmer), “is the guilt or innocence of the defendant.||”

The trial judge specifically disbelieved the testimo-

nv that Stacev had communicatece with a juror regarding

the substance of the trial itself. The conduct found to

have occurred — however improper and reprehensible

— Was simply “annovance”™ of some female jurors and

the expression of a romantic interest in one. Because

OO ak pels Oe tee ie AN A ol. din Beet,

wen inks nhl 0 a elec dint ate

10.0 A ne hasIe in Sihidbas ae

mA minnie sha main

A-7

Appendtz A

this finding is not clearly erroneous, we affirm the dis-

trict court’s conclusion that Gross did not carry his bur-

den of proving that he was unjustly convicted in an “ir-

regular and invalid” proceeding. The judgment of the

district court will accordingly be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

A-8

Appendia A

UNIZED STATES COURT OF APPEALS

For THE Turrp Circuit

No. 79-2010

me

Unitep States oF AMERICA,

VS.

Netson G. Gross,

Appellant.

—>

(D. C. Criminal No. 73-00324)

On APPEAL FROM THE UNITED Srates Disrricr Court

FOR THE District or NEw JERSEY

Present:

Seitz, Chief Judge,

Apams and Weiss, Circuit Judges.

Judgment

This cause came on to be heard on the record from the

United States District Court for the District of New Jer-

sey and was argued by counsel on January 8, 1980.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said

District Court, filed July 16, 1979, be, and the same is

hereby affirmed.

ATTEsT:

THomas F. Quinn

Clerk

February 7, 1980

act A tical

B-1

APPENDIX B

Decision of the United States District Court for the

District of New Jersey

(Filed—July 3, 1979)

-Unttep States Distrricr Court

District or NEw JERSEY

CriminaL No. 73-324

UNITED STATES OF AMERICA,

Respondent,

vs.

NELSON G. GROSS,

Petitioner.

F. Lee Bailey, Esq.

One Center Plaza,

Boston, Massachusetts 02108

Attorney for Petitioner

Robert Del Tufo, Esq.

United States Attorney <

By: Mary Ann Desmond,

Chief, Appeals Division

Federal Building

Newark, New Jersey 07101

Attorney for Respondent

Wurtz, Senior Judge.

B-2

Appendix B

OPINION

This Court denied the petitioner’s request for the issu-

ance of a writ of coram nobis in an earlier opinion United

States v. Nelson G. Gross, 446 F.Supp. 948 (D.N.J. 1978).

This denial was vacated and remanded by the Court of

Appeals for the Third Cireuit. United States v. Nelson

Gross, 3d Cir., No. 78-1360, filed Nov. 6, 1978 (hereinafter,

slip opinion). Pursuant to that remand a full evidentiary

hearing was held in open court March 19, 1979 and con-

tinued March 20 and April 11. Sixteen witnesses testified

and oral argument was heard. Having carefully con-

sidered the complete record including post hearing memo-

randa submitted by the parties, this Court is of the opin-

ion that petitioner’s claim for relief must be denied.

Petitioner was convicted on a five Count indictment

on March 29, 1974. He was found guilty of conspiracy

to defraud the United States, aiding and assisting the

filing of a false tax return, obstruction of justice, and

subornation of perjury. United States v. Gross, 375 F.

Supp. 971 (D.N.J. 1974), aff’d 511 F.2d 910 (3d Cir.),

cert. denied, 423 U.S. 924 (1975). He was sentenced to

two years in prison and was fined an aggregate of $10,000.

On September 23, 1976 Mr. Gross’ sentence was reduced

to one year and one day. Under the applicable Parole

Guidelines, he was released from federal custody on De-

cember 10, 1976 after serving five months. His period

of parole supervision terminated on June 1, 1977.

Because petitioner was no longer in federal custody,

this Court previously ruled that he could not seek relief

under the provisions of 28 U.S.C. § 2255, but rather that

he could, pursuant to 28 U.S.C. § 1651, seek a writ of

coram nobis. 446 F.Supp. at 952. On appeal the Third Cir-

B-3

Appendix B

cuit agreed that the extraordinary relief of coram nobis

may be considered if circumstances compell such action

to achieve justice. Slip opinion at 3, citing; United States

v. Morgan, 346 U.S. 502, 511 (1954). Jurisdiction to

issue a writ of coram nobis is limited to, “those cases

where errors [are] of the most fundamental character,

that is, such as [to render] the proceeding itself irregular

and invalid.” United States v. Mayer, 235 U.S. 55, 69

(1914).

The grounds upon which petitioner seeks relief involve

allegations of improper contact between members of the

Marshal’s service and members of the jury who found Mr.

Gross guilty. These allegations arose when Leon Stacey,

a former United States Deputy Marshal, stated in an affi-

davit that during the trial he had become romantically

involved with a member of the jury and that he made

statements about the case to that juror.’ A hearing was

held in camera where Stacey was subjected to direct and

cross-examination. After considering his testimony and

the circumstances under which he made his allegations

this Court concluded that:

The revord before this Court is replete with con-

tradictions and discrepancies in Mr. Stacey’s testi-

mony. Additionally, several of Mr. Stacey’s alle-

gations are inherently unbelievable. The evidence

presented to this Court evinces a strong incentive

on Mr. Stacey’s part to fabricate this story. Lastly,

1This Court believes this allegation to be the only one which

merits consideration, because it alone could entitle the petitioner

to the relief he seeks. The fact that another juror later did some

work for the Marshal’s service was filly explored at the hearing.

This Court finds that fact to be insignificant and immaterial for

purposes of this application.

BA

Appendix B

the manner in which the affidavit was prepared

casts serious doubts as to its credibility and vera-

city. Having carefully considered all the testimony

adduced at the hearing, this Court is of the opinion

that Mr. Stacey is not a credible witness, and his

allegations as to all material aspects are false.

446 F.Supp. at 955.

On appeal the Third Circuit found no error in the con-

clusion, “that significant portions of Stacey’s affidavit

were fabricated,” slip opinion at 4.

Tue Two PresuMPTIONS

At the outset it must be stressed that contrary to the

petitioner’s argument as stated in his various legal memo-

randa:

A legal proceeding is presumed regular, and con-

sequently, the assailant bears the burden of proof

to the contrary. United States vy. Cariola, supra

at 184. The presumption of regularity is well rec-

ognized in the federal courts, and has been con-

sidered in ruling on the merits of the petition. See

Ybarra v. United States, 461 F.2d 1195 (9th Cir.

1972); Bruno v. United States, 474 F.2d 1261 (8th

Cir. 1973); Peterson v. Missouri, 355 F.Supp. 1371

(W.D. Mo. 1973). Thus, in applying for a writ of

error coram nobis, the petitioner herein must show,

on the face of the pleadings, that an error in fact

of a fundamental nature existed at the prior trial.

The burden extends to a showing that, if known,

the verdict may very possibly be contrary to the

verdict actually rendered.

B-5

Appendix B

While the defendant thus bears the burden of

overcoming the presumption of regularity in the

original trial, a conflicting presumption weighs

heavily in his favor. Specifically, where there is

alleged juror-third-party contact on matters ger-

mane to the issue before the court, a presumption

of prejudice arises and the Court must thereafter

conduct a hearing to determine whether the alleged

misconduct occurred. Remmer v. United States,

347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954);

United States v. McKinney, 429 F.2d 1019, 1025

(5th Cir.), cert. denied, 401 U.S. 922, 91 S.Ct. 910,

27 L.Ed. 2d 825 (1970).

Gross, supra 446 F.Supp. at 9543. (emphasis supplied).

At the first in camera hearing it was determined tha: the

alleged misconduct did not occur insofar as it was “ger-

mane to the issue before the Court” at the original trial.

Petitioner now appears to believe he has met his ini-

tial burden and that the Government has failed to rebut

a presumption of prejudice. In support thereof peti-

tioner cites Remmer v. United States, 347 U.S. 227 (1934)

where it was held:

In a criminal case, any private communication,

contact, or tampering directly or indirectly, with

a juror during a trial about the matter pending

before the jury is, for obvious reasons, deemed pre-

sumptively prejudicial, if not made in pursuance

of known rules of the court and the instructions

and directions of the court made during the trial,

with full knowedge of the parties. The presump-

tion is not conclusive, but the burden rests heavily

upon the Government to establish, after notice to

B6

Anpendiz B

and hearing of the defendant, that such contact

with the juror was harmless to the defendant. Mat-

tox v. United States, 146 U.S. 140, 148-150, 13 S.Ct.

50, 52-535, 36 L.Ed. 917; Wheaton v. United States,

8 Cir., 133 F.2d 522, 527.

347 U.S. at 228 (emphasis supplied).

In order to raise the presumption of prejudice peti-

tioner must show tha tthe juror-deputy marshal contact

involved “the matter pending before the jury.” As stated

by the Third Circuit discussing Remmer, supra in United

States v. Boscia, 573 F.2d 827 (3d Cir. 1978), “(t)he mat-

ter pending before the jury is the guilt or innocence of

the defendants.” 573 F.2d at 831.

Not all juror-jury attendant exchanges are presump-

tively prejudicial. Each case must turn on its own facts.

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

154 n. 39 (3d Cir. 1975), cert. dented, 424 U.S. 917 (1976).

Petitioner’s reliance upon Turner v. Louisiana, 379 U.S.

466 (1965) is misplaced for precisely that reason. In

Turner, supra, two of the deputies who were assigned to

guard the jury were also key witnesses for the prosecu-

tion. Clearly in that situation there was an abvious pre-

sumption of prejudice which did not arise during the Gross

trial. While Stacey did allege that he discussed the Gross

case with a member of the jury, it has already been de-

termined that he lacked credibility. Furthermore the Third

Circuit agreed that Stacey fabricated significant portions

of his story. However, the Circuit apparently believed a

full hearing was necessary to inquire whether anyone

would corroborate the allegation of juror-deputy marshal

contact insofar as it may have prejudiced the jury against

Mr. Gross.

B-7

Appendix B

In United States v. Mayer, supra it was held that a

writ of coram nobis could not be entertained at common

law in eases of alleged “misbehavior or partiality of

jurors.” The Third Cireuit agreed with my earlier deci-

sion; the rule from Mayer, supra does not control. where

“prejudicial communications and extensive romantic in-

volvement between sequestered jurors and officers of the

court have been alleged.” Slip opinion at 4. However, as

the Cireuit noted, “(s)uch allegations, if proved true, might

well render Gross’ conviction irregular and invalid.” Slip

opinion at 4 (emphasis supplied).

Sixteen witnesses testified at the full hearing.? The Gov-

erment asked each relevant witness if they heard or ob-

served any discussions of Mr. Gross or the Gross trial

between any Deputy Marshal and any juror. Each wit-

ness denied that this occurred. The overwhelming weight

of the testimony refuted the material aspects of Stacey’s

allegations. In the absence of any corroboration of these

material aspects, petitioner has failed to raise a presump-

tion of prejudice and therefore the Government had noth-

ing to rebut.

Tue Resuut oF THE FuLtL HEARING

Petitioner asserts that proof or even an inference of

romantic involvement alone is sufficient to grant the re-

quested relief. He relies upon language in the remand

decision of the Third Circuit, when in fact the Circuit

2The witnesses who testified at the full hearing included; five

jurors, two Deputy Marshals, a Chief Deputy Marshal, the former

United States Marshal, a deputy clerk who had been a métron,

two FBI Agents, and four additional witnesses.

B-8

Appendix B

only granted petitioner a full hearing. This is evidenced

by the statement that:

Given the possibility that officers of the court

may have had such contacts with members of the

jury in Gross’ trial as to impermissibly influence

their verdict, we are remanding this case to the

district court for further inquiry. We conclude that

a full evidentiary hearing is required to insure that,

in the light of all the circumstances, Gross’ right

to an impartial jury verdict, as well as the integrity

of the judicial process, were not prejudiced by the

conduct of Marshal Service personnel.

Slip opinion at 6 (citations omitted; emphasis supplied).

The concern of both this Court and the Third Circuit

is whether the verdict of the Gross jury was impermis-

sibly influenced, not the personal activities of the indi-

vidual jurors.

Petitioner is correct that contradictory testimony was

heard at the full hearing. It appears that Stacey did

not fabricate his entire story. The forelady of the Gross

jury testified that Stacey had annoyed certain female

members of the jury. A matron assigned to the jury

testified that Stacey mentioned his romantic interest in

a certain juror.

The forelady believed the matter had been reported to

the Trial Judge and that Stacey had been removed on ac-

count of his behavior. The matron testified that she re-

ported Stacey to the United States Marshal. In fact

nothing was reported to the Trial Judge, however, several

witnesses confirmed that Stacey had been reported to the

Marshal. The Marshal denied knowing about it, while

B9

Appendix B

several Deputy Marshals testified that they heard him

verbally order Stacey off the Gross jury. This is a dis-

turbing conflict in testimony.* However so, it does not

corroborate Stacey’s allegation that he discussed the trial

or Mr. Gross with a member of the jury.

Stacey’s allegations of extensive romantic involvement

were discredited at both the initial and full hearing. The

juror in question denied it completely. At most there

is support for a finding that there may have been a slight

romantic interest.° Petitioner has failed to prove prej-

udicial communication or extensive romantic involvement

between the jurors and members of the Marshal’s service.

To grant petitioner’s application, this Court would have

to infer that because some conflicts in testimony emerged,

3 Petitioner believes this conflict entitles him to relief. The weight

of the evidence establishes that the matter was reported to the

Marshal. Unfortunately this means the testimony of a former

United States Marshal cannot be accepted as true. Nonetheless

this fact does not entitle Mr. Gross to relief.

4 Petitioner hints that this denial is entitled to little weight.

However, taken together with the other witnesses’ testimony, this

Court is convinced that Stacey at least overstated and at most com-

pletely fabricated his allegations of extensive romance. See Gross,

supra, 446 F.Supp. at 954-958.

5 Petitioner asserts that this possibility, when coupled with the

fact that some jurors were or about to become related to law en-

forcement personal is significant. On voir dire the jurors were

questioned by petitioner about these relationships and none were

challenged. True, petitioner could not have known at the time

of voir dire that a slight romantic interest would possibly develop

later, however, even if it did, no showing has been made that this,

in and of itself, prejudiced Mr. Gross.

B-10

Appendix B

Stacey’s entire tale was true. This the Court will not

do. From the testimony at the full hearing, it is clear

that Mr. Gross was not denied his right to an impar-

tial jury, nor was the integrity of the judicial process

compromised.

A full hearing having been conducted and petitioner’s

various legal memoranda having been considered, this

Court hereby denies petitioner’s application for the issu-

ance of a writ of coram nobis.

Counsel for the Government shall prepare an appro-

priate order within seven (7) days.

LAWRENCE A. WHIPPLE

Senior Judge, U.S.D.C.

Dated: July 3, 1979.