Petition for Writ of Certiorari — Rugiero v. United States

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OFFICE OF THE CLERK

VY)

No.

In Che

Supreme Court of the United States

> @October Cerm, 1994 «

PATRICK RUGIERO,

v Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CiRCUIT

DOMNICK J. SORISE

Counsel of Record

33830 Harper Avenue

Clinton Township, Michigan 48035

(810) 415-1200

Attorney for Petitioner

Interstate Brief & Record Company, a division of North American Graphics, Inc.

1629 West Lafayette Boulevard, Detroit, MI 48216 (313) 962-6230 1

ie ens ea

QUESTIONS PRESENTED FOR REVIEW _

DID THE JURY’S EXPOSURE TO NEWSCASTS TYING DEFEND-

ANT’S LAWYER TO AN INVESTIGATION OF ORGANIZED CRIME,

WHICH OCCURRED DURING DELIBERATIONS AND WAS SEEN

OR HEARD BY TEN JURORS, DENY DEFENDANT A FAIR TRIAL

WHERE THE TRIAL JUDGE REFUSED TO PRESUME PREJU-

DICE, AND CONDUCT A HEARING INTO OTHER ALLEGATIONS

OF IMPROPRIETY BY A JUROR?

DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN

DENYING A MISTRIAL OR THE EXCLUSION OF TESTIMONY

WHERE THE GOVERNMENT ABUSED THE SUBPOENA POWER,

VIOLATED A SEQUESTRATION ORDER, AND RESORTED TO

COERCIVE TECHNIQUES TO OBTAIN IMPORTANT CORROBOR-

ATIVE TESTIMONY FROM A WITNESS?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ............:cccceeseeeeeees i

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TN sisi vind scinaitpesesndsvinnersiehnoundqustieianpaiaicdeius l

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ET Fe I civicickkihnetiscenioracnscnsstninanvesinnmniions 2

REASONS FOR GRANTING THE WRIT:

Il.

THE JURY'S EXPOSURE TO NEWSCASTS TYING

DEFENDANT'S LAWYER TO AN INVESTIGATION OF

ORGANIZED CRIME, WHICH OCCURRED DURING

DELIBERATIONS.AND WAS SEEN OR HEARD BY

TEN JURORS, DENIED DEFENDANT A FAIR TRIAL

WHERE THE TRIAL JUDGE REFUSED TO PRESUME

PREJUDICE, AND CONDUCT A HEARING INTO

OTHER ALLEGATIONS OF IMPROPRIETY BY A

FRIFIII, ccvaseconspsecsnncsccczienncdotgs sonntubsvoesinvenanaintebeneinents

THE TRIAL COURT COMMITTED REVERSIBLE

ERROR IN DENYING A MISTRIAL OR THE EXCLU-

SION OF TESTIMONY WHERE THE GOVERNMENT

ABUSED THE SUBPOENA POWER, VIOLATED A

SEQUESTRATION ORDER, AND RESORTED TO CO-

ERCIVE TECHNIQUES TO OBTAIN IMPORTANT

CORROBATIVE TESTIMONY FROM A WITNESS. _ ....

SUMMARY AND CONCLUSION ...........c:ccccccesseeseeeeteeeeeeens

TABLE OF CITATIONS

Page(s)

Cases:

Budoff v Holiday Inns, Inc., 832 F2d 1523 (6th Cir,

BUNTY scisscisdisscndcasuik aashetnslceoesceoliesubicasndatiaiecialépienneacaniiacan 12

Chapman vy California, 386 US. 18 (1967) ............. 20, 21

Dickson v Sullivan, 849 F2d 403 (9th Cir, 1988) ......... 10

Drew v Collins, 964 F2d 411 (Sth Cir, 1992)... 8

Gov't of the Virgin Islands v Gereau, 523 F2d 140

I i BREED shins dc ia dasee ea ihaleacccacicdeetsnccatcaenes 10

Johnson v Armontrout, 961 F2d 748 (8th Cir, 1942) .... 7,9

Marshall v United States, 360 US 310 (1959) ...........2. 10

Mattox v United States, 146 US 140 (1892) ....... 10

Miller v Universal Studios, Inc., 650 F2d 1365 (5th

Ba Is cebacicchk cbc cab icc nocd pacitcbichesabchvdonkixiknedoienss 16

Mu’Min v Virginia, 500 US 415 (1991)... eeeeeeeees 7

Neron v Tierney, 841 F2d 1197 (1st Cir, 1988) .............. 8

Passman v Blackburn, 797 F2d 1335 (Sth Cir, 1986) ... 20

Remmer v United States, 347 US 227 (1954) «0.0.00... 7

Smith v Phillips, 455 US 209 (1982) 0... eee eeeeeeee 6, 9

Spencer v Texas, 385 US 554 (1967) ....... cee eeeseeeeeeeee 21

Stockton v Virginia, 852 F2d 740 (4th Cir, 1988) .... 8, 10

Stone v United States, 113 F2d 70 (6th Cir, 1940) ......... 7

Tanner v United States, 483 US 107 (1987) .............. 13-14

United States v Angulo, 4 F3d 843 (9th Cir, 1993) ........ 7

United States v Augiulo, 897 F2d 1169 (ist Cir,

IIIT: sini dich diecaheinidcaeclasbeccssaabiiebaditiajes asd 8

Page(s)

United States v Butler, 822 F2d 1191 fn 2 (DC. Cir,

DE asiindaks sisal inition ecbisbineccmsbdieumanclaia

OPED sisexisdsiasseer ass etaniocscindbcabbeoniciictaeia tain

United States v DeLutis, 772 F2d 902 (1st Cir, 1983) ....

United States v Gibson, 675 F2d 825 (6th Cir, 1982) ... 20

United States v Hammond, 598 F2d 1008 (5th Cir,

RDC) sssinibrilaiebchincesbisbaabciaantddeipudbnasiae iaiaidugaimete aie as 19

United States v Hobson, 672 F2d 825 (11th Cir,

| eC EMER MOM OEE ESS MEM TR ere eo Coe li

United States v Hornung, 848 F2d 1040 (10th Cir,

SPUD icssnsensincesstussviaicceuede ice naananaecemmmdad tena caeanies 8

United States v Keen, 509 F2d 1273 (6th Cir, 1975) ... 18

United States v Littlefield, 752 F2d 1429 (9th Cir,

NDGUDD: ns-ctsnneesusipincdhlindcvatdaiss biiausilaces nate Matas 8, 9

United States v Malik, 800 F2d 143 (7th Cir, 1986) ..... 19

United States v McClure, 734 F2d 484 (10th Cir,

=) Berta nanrer arenas Paden Serer srr AsO ee Merl ante eet RO 18

United States v McLain, 823 F2d 1457 (11th Cir,

ERC) | sssisisscinsubisvaasieckl Meccan cana aed mation il

United States v O'Brien, 872 F2d 12 (Ast Cir, 1992) ..... 8

United States v Pennell, 737 F2d 521 (6th Cir,

1984) cert den., 469 US 1158 (1985)... 8, 9

United States v Robinson, 756 F2d 56 (8th Cir,

NODE) cciciaccsnleipicinensteibcebticraeariedsbba addict achadbaliaaS is 8

United States v Sanders, 962 F2d 660 (7th Cir, 1992) ...

United States v Sblendorio, 830 F2d 1382 (7th Cir,

ETP D Sinisishataucisdeigh cies Wiacdsebcasbiceaanailecicdlaiubiteasiaeassaaeamibcaidan

Page(s)

United States v Slone, 833 F2d 595 (6th Cir, 1987) .... ll

United States vy Smith, 478 F2d 976 (DC. Cir, 1973) ... 19

United States v Solivan, 937 F2d 1146 (6th Cir,

TEED <ctiiveesenctinevsnsideisssinaneseepuaiisiniahobannsiaiaiaaebiidpianiaens 21

SII i ccicsesseveceintigndansilctiee tet ncaa bea 10-11

GVEA siverhscsisrtoenannsuinietiicoelmanenaimmiemmmllaaaiiasia 6

United States v Walker, 1 F3d 423 (6th Cir, 1993) ... 8, 9

United States v Weiss, 752 F2d 777 (2nd Cir, 1985) ..... 8

United States v Zelinka, 862 F2d 92 (6th Cir, 1988) ..... 8

Waldorf v Shuta, 3 F3d 705 (3d Cir, 1993)... 7

Court Rule:

eis SUTIITIIIED . cicsintinsassantsdcontanseninneleiabigmeamaamncleaaoies 13

Other Authorities:

6 Wigmore, Evidence (3d Ed 1940) § 1838, p 461 ...... 18

31 Wayne L Rev 1083, 1096-1098 (1985) 0.0.0... 9

No.

Inu The

Supreme Court of the United States

> October Term, 1994 <«

—

_—

— Se

PATRICK RUGIERO,

v. Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

OPINIONS BELOW

The opinions of the district court (Eastern District of

Michigan, Southern Division), and the United States Sixth

Circuit Court of Appeals are reported and unreported,

and are contained herein at Appendix A-1, A-5, A-14, A-24,

A-37 and A-48, respectively. The district court opinion

regarding jury exposure is published at 804 F Supp 925,

and the Sixth Circuit opinion is pending publication.

JURISDICTION

The United States Sixth Circuit Court of Appeals

denied relief in an opinion entered March 22, 1994, and

denied rehearing (and rehearing en banc) in an order

entered on May 5, 1995. This Court has jurisdiction

under 28 USC. § 1254(1).

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment V provides in

pertinent part:

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

or property, without due process of law ... ”

United States Constitution, Amendment VI provides in

pertinent part:

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously ascer-

tained by law, and ... to be confronted with the

witnesses against him ... and to have the Assist-

ance of Counsel for his defense.

STATEMENT OF THE CASE

On or about November 8, 1990, a grand jury in the

Eastern District, Southern Division of Michigan,

returned an eight-count indictment against Defendant-

Petitioner Patrick Rugiero and five others. Defendant

was charged in five counts: count one alleging con-

spiracy to possess and distribute cocaine and heroin

from about April 1, 1985, to the date of the indictment

(21 USC. §§ 846, 841(a)(1)); count two alleging distribu-

tion of 2004 grams of cocaine on january 8, 1988 (21

U.S.C. § 841(a)(1)); count three alleging distribution of

483.96 grams of heroin on February 24, 1988 (21 U.S.C.

§ 841(a)(1)); and counts five and six alleging, respec-

tively, intimidating/threatening a witness, Thomas

Wyman, (18 U.S.C. § 1512(b)), and carrying/using a

firearm during crime of violence (18 US.C.§ 924(c)).

Defendant was tried by a jury on a superseding

indictment, containing the same five counts, along with

two co-defendants, his brother Anthony Rugiero and Ara

Basmajian. The remaining co-defendants, Thomas Jamil

Ahmed, Lonnie Jordan, and Robert Ricketts pled guilty |

and testified as government witnesses (VII 7; XVI 5; XVI

153).' Trial was held before the Honorable Paul V.

Gadola. Defendant was convicted of Counts | and II

(conspiracy and cocaine distribution) and acquitted of

the remaining charges (XXIV 15-98; XXVI 4-5). On

October 6, 1992, he was sentenced to concurrent terms

of thirty years in prison (S 89-100).

Defendant filed a timely appeal as of right, main-

taining among other issues that jury exposure to extra-

neous information during deliberations about which the

trial judge refused to presume prejudice, and prosecu-

torial abuse and coercion from which the government

obtain important corrobative testimony, denied him a

fair trial. In an opinion for publication dated March 22,

1994, a panel majority of the United States Court of

Appeals for the Sixth Circuit affirmed Defendant's con-

victions and sentences, over the dissent of Chief Judge

Merritt regarding the prosecutorial misconduct issue. In

an order dated May 5, 1994, the panel majority again

denied Defendant’s timely petition for rehearing, over

Chief Judge Merritt’s dissent. Defendant’s petition for

rehearing en banc was also denied, without dissent, on

the same date.

As outlined in opening statement and closing argu-

ment (II 28-41; XXII 4-94; XXIII 102-132), the government's

1 The transcripts of the trial testimony are sequentially num-

bered and references to the trial testimony will be designated by

Roman numerals followed by the page number(s). References to

documents will be identified by the name of the document and then

the page number(s).

theory of the case was that Defendant began distrib-

uting fractions of an ounce of cocaine to, and through,

high school and neighborhood acquaintances, in the

areas of Dearborn and Dearborn Heights, Michigan,

during the early dates of the charge conspiracy (Il 29,

32-33; XXII 17-28, 34-39). The government theorized that

Defendant continued, and headed, the charged con-

spiracy, and progressed to distribution of larger

amounts of narcotics, eventually resulting in the

delivery of about two kilograms of cocaine to an under-

cover informant and agents, through Thomas Wyman,

on January 8, 1988 (II 35-36; XXII 44-49), and the

delivery of about one-half kilogram of heroin to under-

cover agents, through Robert “Bubba” Culevski, on Feb-

ruary 24, 1988 (II 35-39; XXII 44, 62-79). The government

alleged that Defendant entered into a partnership with

Thomas Jamil Ahmed and another for distribution (XXII

6, 38, 122-123); used his limousine service as a front,

and its manager, Culevski, as his right-hand man (ll 35-

36; XXII 51, 83; XXIII 115); and was the source of supply

for distributions by Wyman and others (Il 35; XXII 50-53,

59-99, 83).

The government also alleged that Ahmed maintained

a group of “goons” whom Defendant used, along with

others, for collection of debts and acts of violence,

resulting in a car shooting and bombing, beatings, and

the robbery of a drug dealer (Il 39-40; XXII 28-30, 39-40,

590-53, 80, 88-93; XXIII 108). The government further

alleged that Defendant participated in acts of violence

and obstruction (XXII 19, 31-32, 90), including the

charged attempt to dissuade Wyman from providing

information after his arrest for cocaine distribution on

January 8, 1988 (II 35, 40-41; XXII 59-62). |

The trial was extremely hard fought. While the gov-

ernment offered the testimony of forty-five witnesses,

bs)

the great bulk of these witnesses were self-described

drug traffickers, whose credibility and testimony were

seriously and significantly impeached. That the factual

disputes raised by the evidence were close is demon-

strated by the fact that, despite the number of govern-

ment witnesses, and despite the trial errors complained

of, Defendant was acquitted of three of the five charges

against him, and his brother acquitted of all the

charges. Since Defendant does not raise any issue

regarding the sufficiency of the evidence to take the

case to the jury, an extensive discussion of the testi-

mony as a whole is not thought necessary. The partic-

ular facts relevant to each issue raised in this petition

will be presented in the course of the arguments.

Defendant now timely petitions this Court for writ of

certiorari under 28 USC § 1254(1).

REASONS FOR GRANTING THE WRIT

THE JURY’S EXPOSURE TO NEWSCASTS TYING DEFEND-

ANT’S LAWYER TO AN INVESTIGATION OF ORGANIZED

CRIME, WHICH OCCURRED DURING DELIBERATIONS AND

WAS SEEN OR HEARD BY TEN JURORS, DENIED DEFEND-

ANT A FAIR TRIAL WHERE THE TRIAL JUDGE REFUSED TO

PRESUME PREJUDICE, AND CONDUCT A HEARING INTO

OTHER ALLEGATIONS OF IMPROPRIETY BY A JUROR.

This issue involves extraneous information from tele-

vision news broadcasts, which made repeated refer-

ences to a criminal investigation of Defendant’s trial

lawyer and organized crime figures, and which came at

a most critical juncture in the trial —after testimony,

argument, and instructions, and in the midst of jury

PR EE ee Oe SS A eee ee ge ee eT ee ee Oe ee ENS ee eee

deliberations (XXIV 8-10, A-17-A-19)*. See, United States v

Thomas, 463 F2d 1061, 1065 (7th Cir, 1972) (“The timing

of the exposure was as important as the content... ”).

Consequently, “the safeguards of jury impartiality, such

as voir dire and protective instruction”, referred to in

Smith v Phillips, 455 US 209, 217 (1982), were not avail-

able to check the spread of prejudice.

Court inquiry following jury verdicts revealed that ten

of the twelve jurors had seen, or heard about, the

broadcasts (XXIV 19-21, 23-25, 28-29, 36-37, 40-49, 50-56,

58-63, 67-74, 80-83, 86-89). Some of the jurors had even

heard about the television reports from jurors in other

cases in the jury assembly room (XXIV 20-21, 51, 55-56,

62), and from relatives and friends outside of the court-

house (XXIV 41, 59, 87). Jury recollection of the televi-

sion news reports varied from “rumors” (XXIV 59), to

“under investigation for some kind of charges” (XXIV

24), to “questioned for some charges” (XXIV 87), to

“brought up on some kind of a charge” (XXIV 28), to

“something to do with cashing checks and maybe

money laundering” (XXIV 82), and finally to “being

indicted for laundering money” (XXIV 37) and “running

from the press” and “going to be brought up on indict-

ment charges of embezzlement” (XXIV 69). However, the

most disturbing aspect of the inquiry was the fact that

the jury foreperson, Deborah Mayhew, reported, spread,

and discussed these varying accounts with at least six

other jurors in the jury assembly room, in the jury

deliberation room, at lunch, and upon leaving the court-

2 Transcriptions of two television newscasts were attached as

exhibits to Defendant’s motion for new trial and are contained in

the separately-bound Appendix at A-66-A-68. Trial of this case was

handled by the Organized Crime Unit of the United States Attorney

Office. The same unit handled the investigation and prosecution of

Defendant’s trial lawyer. See, Criminal Case No. 92-80848, Eastern

District of Michigan, Southern Division.

house (XXIV 28-29, 36-37, 51-56, 67-74, 81-82, 86-89). See,

Waldorf v Shuta, 3 F3d 705, 711 (3d Cir, 1993).

The Sixth Circuit acknowledged that “Most of the

jurors indicated that they had seen or heard about the

television report or reports,” and that “Some jurors indi-

cated that the jury foreman [sic], Mayhew, had dis-

cussed the television information about Rugiero’s

attorney with other jurors.” (Slip Op. at 3-4, A-50).

While the district judge and the Sixth Circuit panel

relied chiefly on personal assessments and general

denials by the jurors® to deny relief (XXIV 92-93; A-24,

A-37; Slip Op. at 3-4, A-49-A-51), this record clearly

establishes that at least one juror, probably the most

important, was improperly and unduly influenced by

the news reports. Her actions, related and confirmed by

six companion jurors (XXIV 28-29, 36-37, 51-56, 67-74, 81-

82), of repeatedly raising, spreading, and discussing the

television reports, apparently “in excitement” (XXIV 73),

constituted an independent source of prejudicial, extra-

neous information within the jury panel. The prejudicial

effect on this one juror, the foreperson, was more than

enough to deny defendant his Sixth Amendment rights

to a fair trial, to confrontation, and to effective assis-

tance of counsel. See, Stone v United States, 113 F2d 70,

77 (6th Cir, 1940), (“If a single juror is improperly influ-

enced, the verdict is as unfair as if all were”). Johnson v

Armontrout, 961 F2d 748, 751-752 (8th Cir, 1942); United

States v Angulo, 4 F3d 843, 844 (9th Cir, 1993).

The Sixth Circuit was able to affirm by denying Defend-

ant a presumption of prejudice clearly mandated by this

Court in Remmer v United States, 347 US 227, 229

(1954) — “We do not presume prejudice has occurred

3 See, Mu’Min v Virginia, 500 US 415 (1991) (Marshall, J., dissenting).

by reason of extraneous contact with a juror or jurors”

(Slip Op. at 5, A-52). This ruling also appears to be in

conflict with decisions by the First, Second, Fourth,

Fifth, Seventh, Eighth, Ninth, Tenth, Eleventh and D.C.

Circuit Court of Appeals in United States v O’Brien, 872

F2d 12, 14 (1st Cir, 1992); United States v Weiss, 752 F2d

777, 782-783 (2nd Cir, 1985); Stockton v Virginia, 852 F2d

740, 744 (4th Cir, 1988); Drew v Collins, 964 F2d 411, 415

(5th Cir, 1992); United States v Sanders, 962 F2d 660, 668

(7th Cir, 1992); United States v Robinson, 756 F2d 56, 59

(8th Cir, 1985); United States v Littlefield, 752 F2d 1429,

1431-1432 (9th Cir, 1985); United States v Hornung, 848

F2d 1040, 1044 (10th Cir, 1988); United States v Caporale,

806 F2d 1487, 1503 (11th Cir, 1986); United States v Builer,

822 F2d 1191, 1195, fn2 (DC. Cir, 1987).

Remmer and the above progeny presume prejudice for

any jury exposure to extraneous information, whereas

the Sixth Circuit stands virtually alone in requiring the

accused to prove actual prejudice. United States v

Pennell, 737 F2d 521, 529-534 (6th Cir, 1984) (Celebrezze,

dissenting), cert den., 469 US 1158 (1985); United States v

Zelinka, 862 F2d 92, 94-96 (6th Cir, 1988); United States v

Walker, 1 F3d 423, 429-431 (6th Cir, 1993) (Acknow-

ledging that “there has been a split among the federal

circuits with respect to the burden of proof,” and noting

that the “First Circuit appears to agree with this [Sixth

Circuit] interpretation. See, Neron v Tierney, 841 F2d

1197, 1200 (ist Cir, 1988); United States v DeLutis, 772 F2d

902, 909 (1st Cir, 1983).”). But see, United States v

Augiulo, 897 F2d 1169, 1183-1187 (1st Cir, 1990); United

States v O’Brien, supra at 972 F2d 14.

This case is similar to United States v Pennell, supra at

737 F2d 532, where the Sixth Circuit conceded that

“Were Remmer, Ferguson [486 F2d 968 (6th Cir, 1973) ]

and Stone [113 F2d 80 (6th Cir, 1940)] controlling, we

would be hard pressed to affirm.” The appropriateness

of such a concession alone would appear to warrant

scrutiny of the split decision in Pennell by subsequent

cases. However, there has been little or no analysis in

the dozen or so cases citing to Pennell. e.g., United

States v Zelinka, supra at 682 F2d 95; United States v

Walker, supra at 1 F3d 431. Accordingly, it is submitted

that the time has come to scrutinize Pennell and resolve

this conflict.

In Pennell, supra, 737 F2d 532, the Sixth Circuit con-

cluded that Smith v Phillips, 455 US 209 (1982), “has

indeed altered the law concerning unauthorized com-

munication with jurors.” However, it must be recognized

in the first instance, and upon final analysis, that

Phillips addressed the issue of intrinsic juror bias, not

jury exposure to extraneous information. In Phillips,

supra at 455 US 215-217, this Court pointed out that the

beliefs, preferences, and biases of jurors may be

exposed and checked by voir dire and cautionary

instructions, and that defendant always retains “for alle-

gations of juror partiality” the opportunity “to prove

actual bias.” In essence, this Court ruled “A holding of

implied bias to disqualify jurors because of their

relationship with the Government is no longer permis-

sible ...” /d. at 216 (citation omitted). Phillips dealt

chiefly with juror disqualification, unlike this case or

Pennell itself. See, Johnson v Armontrout, supra at 961

F2d 952-753.

This same point was subsequently made by the Sev-

enth Circuit in United States v Littlefield, supra at 752

F2d 1413, and in a law review analysis of Remmer

and Pennell. “Clean sweep of the New Trial Safeguard

Against Prejudice from Unauthorized Communications

with Jury Members”, 31 Wayne L Rev 1083, 1096-1098

(1985).

The Sixth Amendment guarantees criminal defendants

the right to trial by an impartial jury. “No right touches

more the heart of fairness in a trial.” Stockton v Virginia,

852 F2d 740, 743 (4th Cir, 1988). Justice Holmes stated at

the beginning of this century:

“The theory of our system is that the conclu-

sions to be reached in a case will be induced

only by evidence and argument in open court,

and not by any outside influence, whether pri-

vate talk or public print. Patterson v Colorado, 205

US 454, 462; 27 SCt 556; 51 LEd 879 (1907).”

(emphasis added).

It has often been held that where information con-

tained in media reports came to the attention of jurors,

the possibility of prejudice to the defendant from such

exposure was fatal to conviction. See, e.g., Mattox v

United States, 146 US 140, 150 (1892); Marshall v United

States, 360 US 310, 312-313 (1959) (“The prejudice to the

defendant is almost certain to be as great when that

evidence reaches the jury through news accounts as

when it is a part of the prosecution's evidence.” ).

It does not require extended legal or factual argu-

ments to show that media reports can also undermine

the basic rights to confrontation and effective assis-

tance of counsel. See, Gov't of the Virgin Islands v

Gereau, 523 F2d 140, 150-151 (10th Cir, 1975); Dickson v

Sullivan, 849 F2d 403, 406 (9th Cir, 1988). Nor does it

break new ground to observe that a defendant’s fate is

intimately tied to the jury’s view of his lawyer. In cases

such as the one at bar, where the defendant does not

testify, his lawyer is his only voice with the jury. His

defense may often stand or fall on the jury’s view of the

credibility and integrity of his lawyer.

It is this fact of courtroom life which protects against

a trial court’s castigation of defense counsel, United

| IE Se ae aN FE OM Se Oe ote ae Ee aw ine”

States v Spears, 558 F2d 1296, 1298 (7th Cir, 1977) (“the

court’s castigation of counsel so discredited him in the

eyes of the jury that he could not have remained an

effective spokesman for his client”), or interference with

his efforts. United States v Slone, 833 F2d 595, 598 (6th

Cir, 1987) (“Interference with the presentations of

counsel potentially makes a mockery of a defencant’s

right to a fair trial, even in the absence of open hos-

tility.”). It is this fact of courtroom life which also pro-

hibits government counsel from making personal

attacks on defense counsel. United States v Sblendorio,

830 F2d 1382, 1395 (7th Cir, 1987) (“Attacks on the hon-

esty and sincerity of defense counsel are improper.”);

United States v McLain, 823 F2d 1457, 1462 (11th Cir,

1987) (“To discredit defense counsel in front of the jury

is improper, and even subsequent jury instructions

aimed at rectifying this error may not ensure that the

disparaging remarks have not already deprived the

defendant of a fair trial.”).

And indeed, it is this fact of courtroom life which may

even require the disqualification of a defense lawyer

where the jury may, through the evidence, learn of

accusations regarding defense counsel which “will

impugn severely his integrity and credibility in the eyes

of the jury.” United States v Hobson, 672 F2d 825, 828

(ilth Cir, 1982).

Here, the television broadcasts posed a three-pronged

threat to Defendant’s right to a fair trial by providing

extraneous information which was not only prejudicial

to his right to an impartial jury, but which also under-

mined his rights to confrontation and effective assis-

tance of counsel.

The Sixth Circuit would resolve such dangers by spec-

ulating as to the jury’s thought and decision process —

“The jury evidently disregarded any information they

may have heard about Rugiero’s counsel — they

acquitted Rugiero and and [sic] his brother Anthony on

three counts.” (Slip Op. at 9, A-56). This is indeed a

slender reed on which to stake basic constitutional

rights. A presumption of prejudice is needed to protect

against the timing and nature of such extraneous infor-

mation, if not to guard against “the appearance of impro-

priety.” See, Budoff v Holiday Inns, Inc., 832 F2d 1523,

1526 (6th Cir, 1984), where the Sixth Circuit itself stated:

“The presumption that the contact swayed the

juror — who went on to the elected foreman of

the jury — on this close question of fact is not

rebutted by his testimony that it did not; the

human mind is too complex for us to fully under-

stand and explain our actions, even to ourselves.

External and verifiable indicia of harmlessness

are necessary to rebut this presumption. On bal-

ance we believe the ends of juscice are best sat-

isfied by retrial of the case free from any outside

contact that may have subtly influenced a juror’s

view of the case.” (emphasis added).

Over and above this aspect, the district judge com-

mitted reversible error by denying inquiry into a note,

which was written by another juror (Deborah Freelon),

which came moments before the jury’s verdict in open

court. The note indicated among other matters:

“Many stated they knew from the first day

their verdict.

eS :&:2

The verdicts were not based on impartial deci-

sions by the majority of the jury.

x* kek

Many focused their decisions on the fact that

whether they will walk away with their hands

clean or not. * * *

”

The juror’s note ominously concluded:

“I have not been paid off or threatened, just had

uneasy feelings the way this decisions [sic] were

handled. A new jury should be picked.” (XXIV 5-

6, A-15-A-16).

The defense requested the court to make an inquiry

of the juror* who wrote the note before taking any ver-

dict, “as to the potential for improper influence in the

jury room.” (XXIV 6-8, A-16-A-18). The defense main-

tained that the note itself contained indications of

extraneous information being brought into the jury

room and deliberations. (XXIV 6-8, A-16-A-18; 43-45, 64-

75, 92-96). The district judge denied the defense

requests for inquiry of the juror who wrote the note

based on FR.E. Rule 606(b) (XXIV 11-12, A-19-A-21),

being of the opinion: ~

“In fact, no juror is even allowed to testify in a

post-trial hearing as to what went on inside the

jury room nor may a juror submit an affidavit.”

(XXIV 93-94).

To the contrary, in Tanner v United States, 483 US 107,

117-118 (1987), this Court made it very clear that extra-

neous influences occurring in the jury room were sub-

ject to inquiry and admission:

“Lower courts used this external/internal distinc-

tion to identify those instances in which juror

testimony impeaching a verdict would be admis-

sible. The distinction was not based on whether

4 Any assertion that this juror retracted her note by writing a

second note (XXIV 4-8, A-14—-A-18), is complicated by the fact that

this juror stated a dissenting vote of not guilty as to count two upon

an individual poll following the initial verdict (XXIV 64-66). The

judge ordered continued jury deliberations on count two, over

defense objection (XXIV 90-92, 96-99), and an unanimous guilty ver-

dict was returned some two days later (XXVI 4-6).

the juror was literally inside or outside the jury

room when the alleged irregularity took place;

rather, the distinction was based on the nature

of the allegation.” (emphasis added).

Since this record lacks objective and verifiable assur-

ances that these split verdicts, in this closely tried case,

were unaffected by extraneous information or influence,

this Court should grant certiorari to address this trou-

blesome departure, and to resolve the split of opinion

in the circuit courts.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

DENYING A MISTRIAL OR THE EXCLUSION OF TESTIMONY

WHERE THE GOVERNMENT ABUSED THE SUBPOENA

POWER, VIOLATED A SEQUESTRATION ORDER, AND RE-

SORTED TO COERCIVE TECHNIQUES TO OBTAIN IMPOR-

TANT CORROBORATIVE TESTIMONY FROM A WITNESS.

Over the dissent of Chief Judge Merritt, the panel

majority was not persuaded by “defendant’s vigorous

argument” that the district judge abused his discretion

or Defendant was prejudiced, stating:

“We are not persuaded that the defendants have

established these requirements in light of the

substantial other similar evidence, equivalent to

Milewski’s testimony, and the wide discretion

given the district court in making such a ruling.

See, United States v McClure, 734 F2d 484, 495

(10th Cir, 1984).” (Slip Op 13-14, A-61).

This issue does not involve simply questions as to

whether the judge abused his, discretion regarding

sequestration violations. Rather, it involves a course of

conduct and a series of tactics by the government

which were improper, coercive, and prejudicial. The

majority opinion does not adequately address the sig-

nificance of this overall course of misconduct by the

government, and its divided and narrow view of the

issue facilitates what Chief Judge Merritt, in dissent,

appropriately refers to as disposing of the issue by

sweeping it “under the ‘harmless error’ rug.” (Slip Op at

16, A-63). Had the majority taken a full view of the gov-

ernment’s activities, and applied the appropriate stan-

dard of review, it would have embraced Chief Judge

Merritt’s conclusion that “This is such an obvious and

notorious violation in this case that | would reverse and

remand for new trial.” (Slip Op at 16, A-64).

During the trial, the prosecutor was able to blunt the

issues by delaying disclosure of all the facts until the

very end of trial testimony, when it best suited his pur-

poses. The facts, in their proper context, show that the

government subpoenaed Keith Milewski on May 5, 1992

(XX 49), which was the second day of trial, and shortly

after completion of jury selection (Il 3). Milewski was

not included on the government witness list submitted

to the judge (XVIII 25). The government instructed

Milewski that “you got to come whenever they [we] call

you” (XX 49).

The record indicates that the government instructed

Milewski to come to its offices or the courthouse on

three separate dates, May 15, 1992, May 21, 1992, and

June 2, 1992, without any intention of calling him to the

stand (XIX 151-154). On the first two dates, the govern-

ment questioned Milewski at its offices, and he denied

involvement or knowledge regarding drug activities (XIX

151-154). On the first date, a government agent accused

Milewski of lying (XIX 151-154). On the second date

before re-questioning, Milewski entered the courtroom

and remained for approximately one hour during Defend-

ant’s cross-examination of Thomas Wyman (XVIII 19-

ee ee en “Tue?

21), a key government witness (XII 5-45). As the

majority opinion notes, “Although the government was

permitted more than one law enforcement agent [three

(Il 73)] to be present in the courtroom, no one detected

Milewski’s courtroom presence until some time had

elapsed.” (Slip Op at 9, A-56).

This incident was the subject of a defense motion for

exclusion on June 8 and 9, 1992 (XVIII 18-34; XIX 6-9, A-1-

A-4). The government denied any prior knowledge or

participation regarding Milewski’s presence in court,

and the district judge accepted the government’s repre-

sentations and denied the motion to exclude Milewski’s

testimony (XIX 6-9, A-1-A-4).

However, the facts show that about one week earlier

on June 2, 1992, the government planned and staged a

confrontation between Milewski and Thomas Jamil

Ahmed (XIX 154-161; XX 50-51), another key government

witness who was in the midst of testifying (XI 13-166).

Furthermore, Ahmed had been in the Witness Protec-

tion Program since 1990 (XX 6; XXIII 114-115), making

such a meeting virtually impossible without the con-

certed effort of the government in violation of court

ordered sequestration. See, Miller v Universal Studios,

Inc., 650 F2d 1365, 1373 (5th Cir, 1981).

On June 8, 1992, when the judge considered Defend-

ant’s initial motion to exclude Milewski’s testimony

because of his entry into the courtroom during defend-

ant’s cross-examination of Wyman, the trial prosecutor

did not fully explain his maneuvers with Milewski’'s trial

subpoena, or even mention the confrontation with

Ahmed on June 2, 1992 (XVIII 26). The prosecutor

instead indicated:

“To make a long story short, we, at his request,

got him a court appointed counsel and he came

in Friday with his attorney, and at that time

}

agreed for the first time to testify and tell us for

the first time what it was he knew.” (XVIII 26).

(emphasis added).

It is obvious why the prosecutor did not want to tell

the “long story”, because to do so would have placed

the government in direct violation of the sequestra-

tion order. But, one day later, on June 9, 1992, after

Milewski’s trial testimony as the last government wit-

ness suffered substantial impeachment during Defend-

ant’s cross-examination (XIX 150-156), the prosecutor

did not hesitate to disclose the confrontation with

Ahmed to bolster Milewski’s credibility on redirect

examination (XIX 157). The delay thereby had the added

effects of undermining Defendant’s cross-examination,

and bolstering Milewski’s credibility on redirect. The

defense was relegated to scrambling for basic facts, in

the presence of the jury, during recross-examination

(XIX 159-160). A defense request for an immediate

hearing outside the presence of the jury was deferred

by the judge to the following day, June 10, 1992 (XIX 159-

163), creating the opportunity for additional, prob-

lematic contact and communications between the

government and Milewski (XX 22, 29-35, 46-48). The dis-

trict judge denied a second defense motion for mistrial,

or exclusion of Milewski’s testimony, after closing argu-

ment and jury instructions (XXIII 189-199, A-5-A-13).

When Milewski entered the courtroom during Defend-

ant’s cross-examination of Wyman, he was not just

another bored or confused witness waiting around to

testify. The government told him to be there under the

guise of a subpoena, without any intention of calling

him to testify (XX 13-15). This was a situation fraught

with temptation, and it was created by abuse of the

subpoena power, since to subpoena a witness for a pur-

pose other than to present his testimony in court is

“clearly unauthorized and improper.” United States v

Keen, 509 F2d 1273, 1274-1276 (6th Cir, 1975). Because

the government improperly procured Milewski’s pres-

ence at the courtroom door without guidance or cau-

tion, it cannot assert that it was entirely free of blame

for his presence in the courtroom. cf, United States v

McClure, 734 F2d 484, 495 (10th Cir, 1984). What

Milewski heard and saw, regardless of subject matter,

was the vigorous cross-examination of a key govern-

ment witness. Much can be learned from such observa-

tions. Indeed, one of the purposes of the rule of

sequestration is “preventing one prospective witness

from being taught by hearing another’s testimony”. 6

Wigmore, Evidence (3d Ed 1940) § 1838, p 461.

Similarly, Milewski was not just an anxious witness

who just happened to meet and talk with Ahmed, all of

which just happened at an inopportune time. As the

judge found, “we would have to all agree that was with

the consent, connivance, and procurement of the Gov-

ernment.” (XXIII 193, A-9). Once again it was the gov-

ernment’s abuse of the subpoena power which

facilitated the violation — he was required to appear,

not for testimony, but as the prosecutor admitted, for

the very purpose of arranging the confrontation with a

witness who was, at that very time, on the stand and

supposedly subject to the court’s sequestration order

(XX 16).

As Chief Judge Merritt stated in dissent:

“The obvious purpose of this confrontation was

to get Milewski to testify in a way that would be

consistent with the testimony of the witness who

was then on the stand. The witness on the stand

told Milewski facts that the government wanted

Milewski to testify to. Milewski then did so tes-

tify.” (Slip Op at 16, A-63).

Due process clearly prohibits the government from

using its authority to intimidate potential witnesses from

testifying. See, e.g., United States vy Hammond, 598 F2d

1008, 1012-1015 (Sth Cir, 1979). By analogy, due process

principles should also be held to prohibit the govern-

ment from using improper means and coercive tactics to

obtain testimony from individuals because such conduct

undermines the integrity of the fact finding process. Pri-

vate conversations, let alone a staged confrontation, can

be subject to abuse by the government. See, United

States v Malik, 800 F2d 143, 149 (7th Cir, 1986). In United

States v Smith, 478 F2d 976, 979 (DC. Cir, 1973), the Court

warned that “even if the prosecutor’s motives were

impeccable”, he must refrain from overreaching:

“As the Supreme Court of Michigan observed in

People v Pena, 383 Mich 402, 406; 175 NW2d 767,

768 (1970), ‘[a] prosecutor may impeach a witness

in court but he may not intimidate him — in or

out of court.’ See also, Bray v Peyton, 429 F2d 500

(4th Cir, 1970); People v Butler, 30 Mich App 561;

186 NW2d 786 (1971).” (emphasis added).

The government is not, and cannot be, the sole arbiter

of truth. It is impossible to know what Milewski’s testi-

mony would have been absent the government’s coercive

actions. Indeed, the government’s heavy handed tactics

made a mockery of Milewski’s right not to testify at all,

and the government ignores the fact that, absent such

tactics, Milewski may have exercised that right (XX 54).

Through a pattern of abuse, Milewski was cajoled and

coerced into giving testimony which was strongly cor-

roborative of Ahmed, whom the government called the

“glue” holding its case together (XXIII 111).5

5 It might be noted, as the panel majority did in turning aside

Defendant’s claim regarding jury exposure (Slip Op at 9, A-56), that

(concluded on page 20)

The panel majority, however, ignores the thrust of

this issue altogether, and instead treats the matter as

two separate and simple sequestration violations. This

treatment facilitates the conclusion that, under the

broad standard of review for sequestration violations

enunciated in United States v Gibson, 675 F2d 825 (6th

Cir, 1982), an insufficient showing of prejudice was

made, “in light of the substantial other similar evidence,

equivalent to Milewski’s testimony, and the wide discre-

tion given the district court in making such a ruling.”

(Slip Op. at 13-14, A-61).

Had the panel majority weighed the course of the

government’s misconduct by the standards appropriate

to the resolution of constitutional violations, it would

have recognized that reversal was compelled unless the

government could demonstrate “beyond a reasonable

doubt that the error complained of did not contribute

to the verdict obtained.” Chapman v California, 386 US.

18, 24 (1967). Under the proper analysis, the panel

majority would not be free to excuse the government’s

compliance with the appropriate procedural standards

“in light of the substantial other similar evidence.” As

recognized in Passman v Blackburn, 797 F2d 1335, 1347

(5th Cir, 1986):

“As stated in Fahy v Connecticut, 375 US 85, 86-87;

84 SCt 229, 230-31; 11 LEd2d 171 (1963), the issue

is not ‘whether there was sufficient evidence on

which the petitioner could have been convicted

without the evidence complained of.’ Rather, the

‘question is whether there is a reasonable possi-

(continued from page 19)

Defendant was acquitted of charges relating to heroin distribution,

witness intimidation, and firearm possession, and convicted only of

charges relating to cocaine —- the only charges upon which Milewski

offered testimony.

bility that the evidence complained of might

have contributed to the conviction.” (citations

omitted).

In United States v Solivan, 937 F2d 1146, 1155 (6th Cir,

1991), the Sixth Circuit itself made clear that in

reviewing claims of prosecutorial misconduct, courts

should be guided by the standards relating to constitu-

tional violation set forth in Chapman v California, supra.

The prosecutorial overreaching in the case at bar was

obvious and repeated, and bespeaks the need, so

clearly perceived by Chief Judge Merritt, for interven-

tion by this Court. The heart of Chief Judge Merritt’s

dissent is the recognition that “As Mr. Justice Frank-

furter often reminded us, the history of individual lib-

erty is largely coincidence with the history of observing

of procedural safeguards.” Spencer v Texas, 385 US 554,

570 (1967). Respect for the rule of law as a body of nor-

mative principles requires this Court to look more

closely at the instant course of prosecutorial miscon-

duct, and obedience to the rule of law require that, in

recognition of the scope and significance of that mis-

conduct, this Court grant certiorari.

SUMMARY AND CONCLUSION

While the foregoing issues may at first blush appear

to be at distant points on a spectrum, closer examina-

tion indicates that both jury exposure to extraneous

information during deliberation and prosecutorial abuse

and coercion to obtain testimony touch on the same

basic concern — integrity of the fact finding process.

For the above reasons, this Honorable Court should

grant Petition for Writ of Certiorari, and reverse Defend-

ant’s convictions and remand for new trial.

Respectfully submitted,

By: /s/ DOMNICK J. SORISE

Counsel of Record

33830 Harper Avenue

Clinton Township, Michigan 48035

(810) 415-1200

Dated: July 29, 1994

APPENDIX

f FILED

' 9)

“ 94 269 AUG - 2 19%

No. ——Dettite OF Tt CLERK

In Che

Supreme Court of the United States

> October Cerm, 1994 <

PATRICK RUGIERO,

v Petitioner,

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO PETITION

FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

DOMNICK J. SORISE

Counsel of Record

33830 Harper Avenue

Clinton Township, Michigan 48035

(810) 415-1200

Attorney for Petitioner

Interstate Brief & Record Company, a division of North American Graphics, Inc.

1629 West Lafayette Boulevard, Detroit, MI 48216 (313) 962-6230

~~ | Ee Ae 5

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TABLE OF CONTENTS OF APPENDIX

Page

EXCERPTS FROM TRANSCRIPT OF JURY TRIAL — Vol. XIX,

held on June 9, 1992, United States District Court,

before the Honorable Paul V. Gadola (pp. 6-9) ........ A-1

EXCERPTS FROM TRANSCRIPT OF JURY TRIAL — Vol. XXIII,

held on June 16, 1992, United States District Court,

before the Honorable Paul V. Gadola (pp. 189-199) ..... A-5

EXCERPTS FROM TRANSCRIPT OF JURY TRIAL — Vol. XXIV,

held on June 19, 1992, United States District Court,

before the Honorable Paul V. Gadola (pp. 4-15) .... A-14

EXCERPTS FROM TRANSCRIPT OF SENTENCING,

held on October 6, 1992, United States District Court,

before the Honorable Paul V. Gadola (pp. 20-36) ... A-24

ORDER DENYING DEFENDANTS’ MOTION FOR NEW TRIAL,

United States District Court, dated October 16, 1992.. A-37

OPINION,

United States Court of Appeals for the Sixth Circuit,

I re a sailed kien nsichdiicidas tarinnivties A-48

ORDER DENYING PETITION FOR REHEARING EN BANC AND

PETITION FOR REHEARING, United States Court of

Appeals for the Sixth Circuit, dated May 5, 1994 .... A-65

RADIO TV REPORTS TRANSCRIPTIONS,

of Newsbeat Investigation dated June 17, 1992 at

6:00 p.m., and Nightbeat Federal Investigation

dated Fume 17, 1992 at TN:00 Pu. oo. ccinccccssccscecsccceseseees A-66

A-1

APPENDIX TO PETITION FOR CERTIORARI

EXCERPTS FROM TRANSCRIPT OF PROCEEDINGS

(United States District Court —

Eastern District of Michigan —

Southern Division)

(Prodeedings of June 9, 1992)

(UNITED STATES OF AMERICA, Plaintiff, vs. PATRICK RUGIERO,

ARA BASMADJIAN and ANTHONY RUGIERO, Defendants —

Case No. 90-80941; HON. PAUL V. GADOLA)

PROCEEDINGS had and testimony taken during jury

trial before the HONORABLE PAUL V. GADOLA, U.S. District

Judge for the Eastern District of Michigan, on June 9,

1992, at 257 U.S. Courthouse, Detroit, Michigan.

APPEARANCES: RICHARD DELONIS, Assistant U.S. Attorney,

Appearing on behalf of the Government; WILLIAM

BUFALINO, ESQ., and N.C. DEDAY LARENE, ESQ., Appear-

ing on behalf of Defendant Patrick Rugiero; JAMES D.

O'CONNELL, ESQ., Appearing on behalf of Defendant

Basmadjian; and DOMNICK SOURISE, ESQ., Appearing

on behalf of Defendant Anthony Rugiero.

2 6

(XIX-6) * * * THECOURT: All right. Then we had

the issue regarding the — the Rule 615 question. That is

regarding my order that witnesses be excluded or

sequestered until such time as their testimony was

completed. It appears from what we've learned at this

point that one Government witness, Mr. Keith Milewski,

who was Called to the stand on June the 8th had been

A-2

present in the courtroom for some time on a previous

date and, in fact, the witness indicated that he was pre-

sent in the courtroom for perhaps 45 minutes during

the testimony of Thomas Wyman. It’s clear that his

presence in the courtroom would be in violation of the

Court's order under Federal Rule of Evidence 615, which

provides that:

“At the request of a party the court shall order

witnesses excluded so that they cannot hear the

testimony of other witnesses.”

And it may make the order of its own motion.

The — the leading case in the Sixth Circuit on that

particular point is United States v. Gibson, 675 F2d 825,

more specally pages 835 and 836. That’s a 1982 decision

in which the Sixth Circuit ruled that:

“Violation of an order directing that witnesses be

separated does not automatically bar the wit-

nesses’ testimony.”

(XIX-7) The Sixth Circuit went on in that decision to say

that:

“A witness may be held in contempt and his tes-

timony may be held open to the jury for com-

ment to the jury, but exclusion of the testimony

is within the sound discretion of the trial court.”

The Sixth Circuit quoted Holder v. United States, 150

U.S. 91; it’s a 1893 decision. United States v. Pulley, 922

F2d 1283, at 1286, which is a Sixth Circuit 1991 decision.

The decision in United States v. Ell, 718 F2d 291, at

pages 293 and 294, states that — states that in part

that:

“Most authorities agree that particular circum-

stances sufficient to justify exclusion of a wit-

ness are indications that the witness has

remained in court with a consent, connivance,

procurement or knowledge of the party seeking

his testimony.”

A-3

That case was cited and relied on by the Sixth Circuit at

page 836 of the Gibson opinion.

Now, in the Gibson case the witness was in the court-

room with the Government’s consent and knowledge

and was therefore excluded from giving testimony.

It’s clear in this case, and I’m satisfied, and I don't

think the defense as a matter of fact claims to the con-

trary, that the Government did not in this instance con-

sent or connive or procure or have active knowledge

that Milewski was in the courtroom. In fact, his pres-

ence in the courtroom (XIX-8) was not intended by the

Government, and when it came io the attention of the

Government that he was in the courtroom by happen-

stance, having apparently just wandered into the court-

room, he was directed at that point, immediately to

leave the courtroom.

Beyond that, his presence in the courtroom was

during the testimony of Mr. Wyman and — and Mr.

Milewski has no knowledge of Wyman or no knowledge

in involving the — any matters relating to Wyman. He

was not a participant in those matters, and it’s my

understanding that his testimony related entirely dif-

ferent alleged transactions and happenings. If — if he

had been a participant in the Wyman dealings and the

Wyman transactions, then I think we might have a[n]

entirely different situation.

As | think I’ve previously indicated to — to counsel

during some discussion that we had in chambers, it

seems to me that the — that the rule, that is Rule 615,

is intended to impact upon the situation primarily

where a witness is one of several witnesses to a trans-

action or to a happening or to some sequence of

events. And then — and may have his own independent

recollection of those events which may be divergent

from the recollection of other witnesses, but then may

have his testimony influenced or his memory refreshed

by hearing other people testify as to the — as to the

same events or the same happenings.

(XIX-9) That does not seem to be the situation here

at all. It does not seem to me that based upon the

record that’s been produced here that the — the

Defendants are prejudiced in any manner by the brief

presence of Mr. Milewski in the — the courtroom,

which, as I say, is a presence that was without any con-

sent or connivance or procurement or even knowledge

f the Government that he was in the courtroom. So

under those circumstances, I'm going — in the exercise

of the Court’s discretion I'm not going to bar the testi-

mony of Mr. Milewski.

A-5

EXCERPTS FROM TRANSCRIPT OF PROCEEDINGS

(United States District Court —

Eastern District of Michigan —

Southern Divis*on)

(Prodeedings of June 16, 1992)

(UNITED STATES OF AMERICA, Plaintiff, vs. PATRICK RUGIERO,

ARA BASMADJIAN and ANTHONY RUGIERO, Defendants —

Case No. 90-80941; HON. PAUL V. GADOLA)

PROCEEDINGS had and testimony taken during jury

trial before the HONORABLE PAUL V. GADOLA, U.S. District

Judge for the Eastern District of Michigan, on June 16,

1992, at 257 U.S. Courthouse, Detroit, Michigan.

APPEARANCES: RICHARD DELONIS, Assistant U.S. Attorney,

Appearing on behalf of the Government; WILLIAM

BUFALINO, ESQ., and N.C. DEDAY LARENE, ESQ., Appear-

ing on behalf of Defendant Patrick Rugiero; JAMES D.

O’CONNELL, ESQ., Appearing on behalf of Defendant

Basmadjian; and DOMNICK SOURISE, ESQ., Appearing

on behalf of Defendant Anthony Rugiero.

2 2 @

(XXIII-189) * * * THECOURT: All right. Very well.

The parties being satisfied with the exception of the

Government’s objection on the one instruction and

which I| ruled to the Defendants, we will proceed.

There’s one other matter that the Court needs to take

up. There was a motion for mistrial made previously in

the proceedings and | think I may as well address that

at this point.

On June the 10th, the defense made a motion for a

mistrial or in the alternative, a motion to strike the tes-

timony of Keith Milewski. The obvious preference was

for the — was for the mistrial.

In this matter, just to relate a little background, on

June the 9th, the Court had ruled that the testimony of

Mr. Milewski could be received, despite the fact that he

had been in the courtroom and listened to certain testi-

mony in violation of the Court’s order excluding wit-

nesses from the courtroom, the order granted under

Federal Rule of Evidence 615. Mr. Milewski, so it turned

out, had inadvertently wandered into the courtroom

and spent, perhaps, 45 minutes in the courtroom, lis-

tening and heard part of the testimony of (XXIII-190)

Thomas Wyman. The Government then observed his

presence in the courtroom, and he was immediately

removed from the courtroom at that point.

The — there was a motion made to bar him or

exclude him as a witness in this case, due to his pres-

ence in the courtroom on that occasion and that

motion was denied on the — on the authority of the

ruling in U.S. vs. Gibson, 675 F2d 825, particularly at

pages 835 and 836, which is a Sixth Circuit decision,

1982, in which certiorari was denied in 1982, at 459 US.

972, and aiso on the authority of Holder v. the United

States, 150 U.S. 91 and 92 and U.S. v. Pulley, P-u-l-l-e-y, 922

F2d, 1283, a Sixth Circuit 1991 decision.

The Court ruled, at that time, that the — that Mr.

Milewski would not be barred as a witness in the case

because, first of all, he did not know Wyman, he had no

connection with Wyman or any knowledge of the mat-

ters to which Mr. Wyman testified, and thus, it did not

appear that his testimony could have been influenced

by hearing any — any portion of the testimony of

Wyman. The testimony of Wyman and the testimony of

Milewski were on totally divergent, different matters.

Secondly, the Government — the witness was not in

the courtroom with a consent or a connivance or pro-

curement or knowledge of the party seeking his testi-

mony, that is to say, the Government. In fact, the

A-7

Government had him removed (XXIII-191) as soun as his

presence was noted.

And third, of course, is the ruling in this circuit that

the exclusion of the testimony of the witness for a viola-

tion of Federal Rule of Evidence 615 is within the sound

discretion of the trial court and in the exercise of that

discretion, | allowed his testimony to be taken.

Then, however, another problem arose, which is

the matter that’s involved in the motion for a mistrial.

Mr. Milewski testified on June the 9th and on cross-

examination by Mr. Larene and then on redirect exami-

nation by the Government, there was testimony

adduced that he had previously lied to government

agents, so he said, concerning his participation in drug

trafficking matters. And also had lied to Attorney

Larene, when Mr. Larene talked to him in a corner of

the courthouse on the prior date, that is the previous

date.

He — he testified that he later had changed his ver-

sion of what he knew about this matter and had

decided to tell the truth or what he then claimed to be

the truth, after being confronted on the previous day by

government agents and by the witness — by witness

Thomas Jamil Ahmed. He indicated, testified, that he

had met him in a room here, in the courthouse, with

the government agents and with Mr. Delonis and with

Mr. Ahmed. Mr. Ahmed, of course, had previously testi-

fied in this case and Mr. Ahmed had indeed testified to

a relationship with Mr. Milewski and to his furnishing of

some controlled (XXilI-192) substances to Mr. Milewski,

so it’s a different situation than existed regarding the —

regarding the — Mr. Milewski hearing the testimony in

open court of Mr. Wyman.

Mr. Ahmed testified that — that he knew Mr. Milewski

and as I say, testified to some dealings that he had with

Mr. Milewski, involving narcotics trafficking. The wit-

A-8

ness, Mr. Milewski, related that Mr. Ahmed told him in

his meeting with him in this room, prior to Mr. Milewski

taking the witness stand, that he, Ahmed, knew

Milewski, knew where he lived, knew what kind of a car

he had driven, knew the kind of musical instrument he

played and knew of his role in — in receiving and

selling drugs. And also indicated to him that the only

way that he could help himself would be to tell the

truth and also gave him some warning regarding the pos-

sibility of his being prosecuted tor perjury if he denied

any involvement in — in these drug transactions.

The witness, Mr. Milewski, testified that he asked to

see a lawyer and consulted a lawyer and decided to tes-

tify and then related, what he then claimed on the wit-

ness stand, to be the truth, that is, that he was involved

in mat.ers that are charged in this case.

He first indicated on cross-examination by Mr. Larene,

that Mr. Ahmed had not told him what Mr. Ahmed’s tes-

timony had been, but then under some further cross-

examination, he indicated on a somewhat equivocal

matter, that (XXIII-193) Mr. Ahmed may have mentioned

to him some of his testimony. As I| say, his testimony —

his — his testimony on cross-examination and re-

examination on that point were -—— were certainly not

categorical. They were rather — it was rather equivocal

and not entirely clear, but he did indicate that on cross-

examination and redirect examination, that he may have

been told by Mr. Ahmed, some things that Mr. Ahmed

had testified to. And then, based upon that record, on

June the 10th, Mr. Larene made a motion for a mistrial,

claiming that the action of the Government in — in con-

fronting him with Mr. Ahmed, who had previously testi-

fied, was a violation of the Federal Rules of Evidence,

615, and the Court’s order under that rule. .

Now, of course, here we have, as I’ve indicated, an

entirely different situation because in contrast to the

yee

A-9

first situation, which is the presence of Mr. Milewski in |

the courtroom for a while while Mr. Wyman testified,

here the second situation, in which the confrontation

with Mr. Ahmed occurred, we would have to all agree

that was with the consent, connivance and procurement

of the Government, because certainly the Government

arranged for that meeting.

If indeed Mr. Ahmed did tell Mr. Milewski what his

testimony had been, then also that would have pro-

duced — that would produce a different situation

because it would seem that that certainly may well have

influenced Mr. Milewski’s (XXIII-194) testimony. Since

contrary to the situation with Mr. — with Mr. Wyman,

Milewski was directly involved in and connected with

matters to which Ahmed testified and to which Mr.

Milewski ultimately testified himself. And he did, in fact,

change his story, having indicated before the confronta-

tion with Mr. Ahmed that he knew nothing about these

drug dealings and then after the confrontation, taking

the stand and testifying that he was involved in — in

those dealings.

Now, on June the 10th, Mr. Milewski testified in a sep-

arate record, however, that Mr. Ahmed had not told him

what his testimony had been, but rather confined his

remarks to telling Milewski that he knew who he was,

that he knew his car, he knew his address, he knew the

musical instrument that he — that he played, knew of

his involvement in the drug dealing and warned him of

the consequences of committing perjury.

Mr. Milewski testified that at that time, not only did

he not know that Mr. — not only did Mr. Ahmed not

relate what his testimony had been, but indeed, further

testified that he did not even know that Mr. Ahmed had

been a witness at all in the case. He said that he gath-

ered that Mr. Ahmed may have — that there may have

been the intention to call Mr. Ahmed as a future witness

A-10

in the trial, but that he had no knowledge that Ahmed

had already testified and certainly, therefore, no know-

ledge of anything that Mr. Ahmed had said (XXIII-195)

on the witness stand since he didn’t even know that Mr.

Ahmed had ever been on the witness stand.

Now, it seems to me that on a — on the basis of —

among other decisions, U.S. v. Greshner, found at 802

F.2d 373, at pages 375 and 76, there — and such other

decisions as U.S. v. Johnston, 578 F2d 1352 and 1355 and

the decision in Perry v. Leek, 488 US. 272 at pages 281

and 82, certainly this spirit, if not the letter of Rule 615

is violated, if — if a witness who has testified, then later

relates his testimony to another witness, and it would

seem, in this case, is indeed that had occurred, then

the Defendants would be entitled to some relief. Query

whether a mistrial would be appropriate or the striking

of the — of the testimony, but it would seem that under

those circumstances, some — some relief would be due

the Defendants, if indeed, that did occur.

Even though — even though in this case, | might

emphasize, in contrast to the situation that existed in

some of the cases that were submitted to me, the Court

did not specifically order a witness not to — not to dis-

close his testimony to a subsequent witness. The court,

in several of the cases that I just mentioned, made the

point that the — that the court was not asked to not

only exclude the witnesses from the courtroom, but

also asked to specifically inform witnesses that they

were not to discuss their testimony after (XXIII-196)

they had testified, with any other witness. That wasn't

done here and that may change the situation somewhat.

However, it would still seem to me that there would

be a violation, certainly, of the spirit if not of the letter

of Rule 615, since certainly the Government, under

those circumstances, must — would have to have been

well aware that the whole purpose of the rule is to — is

A-1]

obviated and nullified if the witness goes outside the

courtroom and tells a subsequent — just everything that

he, the witness, has said on the witness stand. If that —

if that is permissible, then there's not [sic] point in ever

barring the subsequent witness from the courtroom.

So I would think that if — if — if there's a finding that

actually the testimony was related, then I think the

defense would be entitleu to some relief. Whether it

would be a mistrial or not, I’m not going to state it at

this point, but it would certainly seem that it would be

logical that at least the testimony of the particular indi-

vidual should have been — should be stricken from the

record, under those circumstances.

Here, however, the Court finds, based upon the — all

the evidence produced here, both when the witness —

when the witness testified on the cross-examination and

redirect examination and then on the separate record,

that Mr. Ahmed did not relate his testimony or any of

his testimony to Mr. (XXIII-197) Milewski. Rather he indi-

cated to Mr. Milewski that he, Ahmed, knew who he

was, knew that he was involved in drug trafficking and

had trafficked in drugs with him and — and knew such

things as the — as I've indicated before, what kind of a

car he drove, where he lived, what kind of a musical

instrument he played and that sort of thing. And also

indicated to him that if he was called to the witness

stand and committed perjury, he could be in some very

serious trouble.

That seems to me is quite different from — from

relating to the — to the subsequent witness, Milewski,

what he, Ahmed, had already told the jury about

Milewski or about any other aspect of this case. The

record seems now to be clear that — that Ahmed did

not relate any of his testimony to Milewski. In fact,

Milewski didn’t even know that he had been a witness,

but suspected or — or — or speculated that perhaps

A-12

he might be called, at a later point in the trial, to be a

witness.

So under those circumstances and in further light of

the fact that there was no specific request made to, in

this case, to bar a — a witness from discussing with

another witness after he leaves the courtroom, his testi-

mony — I! don't think that’s the major reason for my

ruling, but it seems to be noted in all these cases, the

court seems to make a point in several of these cases,

as to whether or not the (XXIII-198) judge specifically

instructed the witness that he must not discuss his tes-

timony with any other witness after he left the witness

stand. So that has some bearing, although I — that’s not

the major reason for my ruling.

Basically, it is, however, a slight factor, but the major

point in my ruling is that | — | don't find that Ahmed

did relate to Milewski what his testimony had been in

this case, and therefore, under those circumstances and

on the basis that the case law that | — to which I have

referred, I'm going to deny the defense motion in that

regard.

I did find it interesting that one — one district court

in the Eastern District, Judge Tom Bertelsman, who's a

very highly respected United States District [sic] judge,

ruled that in 1982, in U.S. v. Charstein, 531 FE Supp. 460

at 464, that — that a judge shouldn't even attempt to

enforce an order that restricts a witness from dis-

cussing his testimony after he leaves the courtroom.

With all due respect to that jurist, | — I don’t believe

that I would go that far, but there is that one district

court decision that has been cited in that regard, which

would seem to indicate that a judges [sic] shouldn't

even issue an order that goes beyond the letter of — of

Federal Rule of Evidence 615. .

In any event, for the reasons that I’ve indicated here

on the record this morning, and on the basis of the

A-13

case authority that I’ve reviewed, I'm going to exercise

my (XXIII-199) discretion under U.S. v. Gibson and

permit the testimony of Mr. Milewski to stand.

That is our — that — it should also be added, how-

ever, and I'll say this for your benefit, Mr. Delonis, that |

think that was a — as | think you previously indicated

to you [sic], with some emphasis, | think it was a very

risky proposition and if Mr. Ahmed had related portions

of his testimony to Mr. Milewski, had even blurted it

out, then the Government may have had a very serious

problem, insofar as I’m concerned in this case. So it was

a — it was a — it was certainly risky and | would think

rather inadvisable operation for you to have had Mr.

Ahmed in that room with Mr. Milewski before he testi-

fied.

MR. DELONIS: | appreciate that, Judge.

e 2"

A-14

EXCERPTS FROM TRANSCRIPT OF PROCEEDINGS

(United States District Court —

Eastern District of Michigan —

Southern Division)

(Prodeedings of June 19, 1992)

(UNITED STATES OF AMERICA, Plaintiff, vs. PATRICK RUGIERO,

ARA BASMADJIAN and ANTHONY RUGIERO, Defendants —

Case No. 90-80941; HON. PAUL V. GADOLA)

PROCEEDINGS had and testimony taken during jury

trial before the HONORABLE PAUL V. GADOLA, U.S. District

Judge for the Eastern District of Michigan, on June 19,

1992, at 257 U.S. Courthouse, Detroit, Michigan.

APPEARANCES: RICHARD DELONIS, Assistant U.S. Attorney,

Appearing on behalf of the Government; WILLIAM

BUFALINO, ESQ., and N.C. DEDAY LARENE, ESQ., Appear-

ing on behalf of Defendant Patrick Rugiero; JAMES D.

O'CONNELL, ESQ., Appearing on behalf of Defendant

Basmadjian; and DOMNICK SOURISE, ESQ., Appearing

on behalf of Defendant Anthony Rugiero.

& 2 @

(XXIV-4) Detroit, Michigan

Friday, June 19, 1992

10:11 a.m.

(Call to order of the court)

THE COURT: United States versus Patrick Rugiero,

Anthony Rugiero, and Ara Basmadijian.

THE COURT: Good morning.

ATTORNEYS: Good morning, your Honor.

THE COURT: As I’ve previously indicated to counsel

in chambers, yesterday just before five p.m. when the

A-15

jury was being notified that the — that they were

excused for the day and should return this morning to

continue their deliberations, there was an indication

given that they'd reached verdicts in this case. They

were advised that since at that hour the — it would not

be possible to round up all the attorneys and — and

conduct the proceedings — as a matter of fact, I iust —

| was on my way down into the parking garage, and they

were unable to intercept me — they were told to return

this morning.

When they arrived this morning down in the jury

assembly room, one of the jurors handed a note to a

Marshal, and that note was delivered to me. When the

jurors came upstairs and went into their jury room

here, a note then came from the jury.

(XXIV-5) The note that was handed to a Marshal

down at — in the jury assembly room this morning

before the jurors came up to enter their jury room to

continue deliberations is before me at this time, and for

the record, | will read the note. It has a line at the top

that may not be part of the message itself, but it is a

line at the top that says, and | quote:

“Many stated they knew from the first day their

verdicts.”

Then — end of quote.

Then it goes on to say, and I quote:

“Judge Gadola: | totally disagree with Count

Two verdict for first defendant, and there is

doubt about the second defendant. The verdicts

were not based on impartial decisions by the

majority of the jury. Many focused their deci-

sions on the fact that whether they will walk

away with their hands clean or not based on one

person's notes, not their own. Several had feel-

ings that the government didn’t present a suffi-

cient case to convict either one of them. Many

A-16

went along with the majority to keep down argu-

ments. Many stated, ‘This is bullshit. We don't

want to be jurors any longer. Let’s just get it over

with.’

“l have not been paid off or threatened, just had

uneasy feelings the way this decisions [sic] (XXIV-

6) were handled. A new jury should be picked.”

End of quotation.

The note that then was handed to my clerk from the

jury room after the jurors came upstairs and went into

the jury room to continue deliberations this morning

reads as follows, and | quote:

“Judge Gadola: We have reached our verdict,”

signed “The Jury.”

Then while counsel were in chambers with myself and

I was discussing with them these two notes — that is,

the note from the individual juror which had been

handed to a Marshal downstairs and then the note that

was handled — handed to my clerk from the jurors in

their jury room a few minutes subsequent thereto —

while we were discussing those two notes, then a third

note was delivered, again to my clerk, and brought to

chambers. That third note reads as follows, and I quote:

“Number One: Disregard Note. A unamimous

decision has been reached,”

and end of quote.

So we have those three notes received. It’s my inten-

tion at this time to call the jury into the courtroom and

to inquire as to whether they have reached verdicts in

this case. It’s my understanding that — from our discus-

sion in chambers this morning that counsel have

requested that — that (XXIV-7) the juror who sent the

— who handled the individual note to the Marshal

downstairs be — be called in to court with counsel pre-

sent and interrogated regarding the content of that

note. Is that — is that correct?”

A-17

MR. LARENE: That was our request, sir, yes.

THE COURT: Would you like to state your position on

that —

MR. LARENE: Yes.

THE COURT: —matter? Go ahead.

MR. LARENE: No, that — no, that is correct. Our posi-

tion was that at this point the Judge — the Court

should not take the verdict because, for one thing, |

think it is not clear from the handwriting or from any

other indicator that the person who wrote the note

saying, “Disregard previous note,” was also the same

person who wrote the previous note, and we did have a

discussion in chambers, and we did take the position

and we do take the position that under the circum-

stances, the verdict should not be taken from this jury,

that the juror — that an inquiry should be made as to

the potential for improper influence in the jury room in

that it appears that there are certainly indicators of

that, although the notes are somewhat oblique, | sus-

pect, but the — the jury — the jury should — the jury

should not be permitted to return what might pass as a

verdict. That was our position.

(XXIV-8) THE COURT: Mr. Delonis, do you want to

put your position on the record?

MR. DELONIS: Our position is that the last note

received makes reference to a previous note to be disre-

garded. In the context of what we have here, the only

possible reference that could be is the reference to the

note given to the Marshal earlier. This would indicate

that there has been a unanimous decision, and | think

the Court should proceed to take the verdict at this

time, and | think that under Federal Rules of Evidence

606, as things stand at this point, there need not be any

inquiry into the jury as to the process by which they

reached their verdict.

A-18

I think the only area of inquiry, if there is to be any, is

into the matter of whether or not they saw any of the

publicity that involved Mr. Larene the night before last,

and | would indicate for the record that this was

brought to the Court's attention yesterday morning, and

at that time it was decided to defer the matter until

such time as the jury came to a resolution.

MR. LARENE: That — that’s correct. | didn’t ask that a

record be made yesterday, but perhaps we should make

it now.

THE COURT: Go ahead.

MR. LARENE: On Tuesday evening after the jury —

while the jury — I’m sorry —

(XXIV-9) MR. BUFALINO: Wednesday.

MR. LARENE: — Wednesday while the jury was —

after the jury was deliberating and apparently after they

went home for the day, one of the local stations — |

originally thought it was two; I now believe it was only

one; | think it was channel 4 — ran a — I — | hesitate

to call it a story, but in any event, ran something on the

— apparently the five and/or six and/or eleven o'clock

news, they featured a footage of me and a picture of a

client of mine and the announcement that my client and

myself were — my client being a man of some notorious

name in the city — were being investigated by the fed-

eral government, and | understand, though | still haven't

heard it, that they — it was reported that we were near

— they were near bringing charges against myself and

my client and that the — the charges were deferred

until the end of a trial that | was involved in, presum-

ably this one, that | was represented by lawyers from

Washington and that the matter involved a business

deal. I'm not sure what other details were offered.

| yesterday morning brought it to the Court’s atten-

tion, and we discussed in chambers what — what, if

anything, should be done and/or when it should be

a ee |

A-19

done, and it was all — was agreed all the way around

that the proper course of action would be to do nothing

at that time but to wait, and in the event there were

guilty verdicts on any of the counts, to (XXIV-10) make

an inquiry of the jurors whether they had received any

— or they had been aware of this publicity, and | guess

then if any indicated “yes,” to follow up as to whether

any of this publicity affected the jury’s deliberations

and/or verdict.

| believe that’s everything that’s necessary, and | — |

— we do request if there are any of the verdicts, if they

are verdicts, are returned finding any of the defendants

guilty, that such an inquiry be made.

THE COURT: All right. It’s my understanding that the

government does not object to the Court making that

inquiry of — of the jurors in the event that verdicts are

returned this morning?

MR. DELONIS: That's correct, your Honor.

THE COURT: Make an inquiry, in other words, as to

whether —

MR. DELONIS: In a general —

THE COURT: — whether they are aware of — of that

television broadcast and whether it had a bearing on or

influenced their decision in the case.

MR. DELONIS: That's correct. I think the first question

ought to be whether they are — have an awareness.

THE COURT: Awareness of the item, and if indeed

they have an awareness, then the next inquiry would be

whether that influenced in any way the — the verdict

reached.

MR. LARENE: Whether it was discussed in the jury

(XXIV-11) room —

THE COURT: Yes.

MR. LARENE: — and et cetera, yes.

THE COURT: All right. All right. Well, the Court will

grant that request.

A-20

Now, insofar as the request that the juror who sent

the individual note by the Marshal to me this morning

is concerned, the request that that juror be interro-

gated as to matters that have occurred in the jury

room, I believe that that matter is really fully explicitly

covered by Federal Rule of Evidence 606(b). 606(b) pro-

vides as follows, and | quote:

“Upon an inquiry into the validity of a verdict

or indictment, a juror may not testify as to any

matter or statement occurring during the course

of the jury’s deliberation or to the effect of any-

thing upon that or any other juror’s mind or

emotions as influencing the juror to assent to or

dissent from the verdict or indictment or con-

cerning the juror’s mental processes in connec-

tion therewith except that a juror may testify on

the question of whether extraneous prejudicial

information was improperly brought to the jury’s

attention or whether any outside influence was

improperly brought to bear upon any juror, nor

may a juror’s affidavit or evidence of any state-

ment by the juror concerning a (XXIV-12) matter

about which the juror would be precluded from

testifying be received for these purposes,”

end quote.

Now, under that rule, it’s clear that the verdict of a

jury may not be impeached by anything that went on

inside the jury room concerning their deliberations or

concerning the mental processes of — of a — of a juror.

As a matter of fact, if there is a challenge to the jury’s

verdict, a juror is incompetent to testify, cannot be

called as a witness to testify as to what went on inside

that jury room as to their — their deliberations or the

— the various possible arguments or pressures or what-

ever that may have been used to reach a verdict, and

the Court cannot consider, as is explicitly stated, an

in ) j | — - |

A-2]

affidavit signed by a juror as. any of those matters that

went on within the — within the jury room.

Under those circumstances, since a juror is not

allowed to testify as to those matters and since an affi-

davit from a juror cannot be considered by the Court as

to matters that went on within the jury room, certainly

the Court cannot then consider this note that was deliv-

ered here this morning from a juror indicating that the

juror may not agree with — with a possible verdict in

this case or verdicts.

The jurors, | assume, will — I assume that the jurors

will be polled. | assume that there will be a request

from one party or the other in this case for a poll of the

(XXIV-13) jury after the verdicts, if indeed we have ver-

dicts, are received. At that time, every juror will have

the opportunity to state whether they agree or disagree

with the verdict, whether it is their verdict or is not

their verdict, and that would seem to totally safeguard

the situation as to whether this one juror really has

agreed to the verdict or has not agreed to the verdict.

Now, it’s my understanding that counsel wish the

Court to follow a — a rather unusual procedure in any

poll of the jury. Is that correct?

MR. LARENE: Yes, sir. We had asked and would ask

that in the event there are — that the Court — not —

that the Court has expressed its intention to receive

verdicts, that if — in the event that any of these ver-

dicts are guilty as to any of the defendants, that the

jury be polled and that the jury be polled on an indi-

vidual basis with each juror being questioned outside

the presence of the other jurors whether any such ver-

dict was and is his or her verdict.

| also would ask and — as | believe I’ve indicated to

the Court previously, that that — at that time, outside

the presence of the other jurors, each juror be asked

individually whether he or she received any notice as to

A-22

the publicity — to admit deliberation [sic] of publicity

— and the — that the inquiry that we discussed at that

time on an individual basis.

(XXIV-14) THE COURT: All right. Mr. Delonis, any

comment — any response to that request?

MR. DELONIS: Our preference in the matter is that the

jury be polled in the normal way, simply to have them

deliver their verdict as a group and then be polled one at

a time in each other’s presence here in the courtroom.

THE COURT: | thi::x in light of the fact that this note

was handed to a Marshal this morning indicating some

objection to a possible verdict on the part of a juror,

the fact that that juror apparently was impelled to com-

municate that by a note to the Court, I think perhaps

under the circumstances it is — it would be advisable

to accede to the defense request and to poll the jurors

on an individual basis.

I realize this is a very unusual procedure. I’m not

aware of any case where it’s been done, as a matter of

fact. Certainly in my several years as a judge and my

many years in the practice of law, I’ve never — I’ve

never seen it done, and I think — I doubt if counsel has

seen it done, but —

MR. LARENE: No. I think Mr. Sorise just thought of it

this morning, Judge, but, frankly, I’ve never seen notes

like this before today, so —

THE COURT: Well, I think the situation is somewhat

unusual, and so! will grant that request. We will — we will

— if there is a poll — if there are verdicts returned this

(XXIV-15) morning and if there is a request for a poll of

the jurors, then I will ask the jurors to return to the jury

room, and then we'll call them into court one by one and

ask them in the usual fashion whether the verdict is their

verdict, and as that same time, then, I will make inquiry of

them as to whether or not they have become aware of

any publicity concerning you, Mr. Larene.

A-23

MR. LAREN! Thank you, your Honor.

THE COURT: All right?

Anything further to place on the record?

MR. DELONIS: Nothing further, your Honor.

THE COURT: All right. Let’s bring the jurors into the

courtroom, then. Then you can inquire of them whether

they’ve reached verdicts.

| might also state for the record that copies of the

three notes have been provided to all counsel in the

case.

MR. DELONIS: Correct, your Honor.

MR. LARENE: That’s correct.

(Pause in proceedings)

eo a2 @

A-24

EXCERPTS FROM TRANSCRIPT OF PROCEEDINGS

(United States District Court —

Eastern District of Michigan —

Southern Division)

(Prodeedings of October 6, 1992)

(UNITED STATES OF AMERICA, Plaintiff, vs. PATRICK RUGIERO

and ARA BASMADJIAN, Defendants — Case No. 90-80941;

HON. PAUL V. GADOLA)

TRANSCRIPT of Sentence before the HONORABLE PAUL

V. GADOLA, U.S. District Judge for the Eastern District of

Michigan, on October 6, 1992, at 257 U.S. Courthouse,

Detroit, Michigan.

APPEARANCES: RICHARD DELONIS, Assistant U.S. Attorney,

Appearing on behalf of the Government; WILLIAM

BUFALINO, ESQ., and N.C. DEDAY LARENE, ESQ., Appear-

ing on behalf of Defendant Patrick Rugiero; and JAMES

HOWARTH, ESQ., Appearing on behalf of Defendant

Basmadjian.

x * &

(20) * * * MR.LARENE: And I just want to make it

perfectly clear that the prejudice, a showing of preju-

dice that I say, has been made, or bias, is that the

foreman, the foreperson of the jury, has been shown to

be affected and biased and prejudiced, that is the

indicia of prejudice with respect to the news report. I —

lest | be any less than crystal clear on that, I want to

just say that. Thank you.

THE COURT: All right. Well, | will prepare and file a —

a formal opinion regarding these motions made on (21)

behalf of both Mr. Rugiero and Mr. Basmadjian, but | —

I will indicate at this point my feeling and the thrust of

A-25

what the opinion will encompass when it is filed, and I

expect that will be filed very, very shortly indeed.

We have a situation here, of course, in which on the

19th of June of this year, the Defendant Patrick Rugiero

was convicted by the jury of conspiracy to distribute or

possess with intent to distribute both cocaine and

heroin.

On that same date, Mr. Basmadjian was convicted of

that same conspiracy charge and he was also convicted

on that date of distribution of heroin, a separate — a

separate count. So as of that date, Mr. Basmadjian had

been convicted on Counts 1 and 3 of the superseding

indictment. And Mr. Rugiero had been convicted on

Count 1.

Then on June the 23rd, following further delibera-

tions, Mr. Rugiero was convicted of Count 2, being the

count charging him with distribution of cocaine. So at

that point, then, he stood convicted of Counts 1 and 2

and Mr. Basmadjian stood convicted of Counts 1 and 3.

Mr. Rugiero was acquitted of — of Counts 3, distribu-

tion of heroin, Count 5, intimidating and threatening a

witness and Count 6, the use and carrying of a firearm

during a crime of violence which related to the charge

of intimidating and threatening a witness.

The — the case had been submitted to the jury on

the 16th of June for deliberations as to three — then

three (22) Defendants, Mr. Patrick Rugiero, Mr. Basmad-

jian and Mr. Anthony Rugiero. Anthony Rugiero was, of

course, acquitted of the two counts under which he was

charged, which are Counts 5 and 6.

On the evening of the 17th of June, 1992, there were

some local news broadcasts or telecasts that reported

that one of Mr. Patrick Rugiero’s trial counsel was a sub-

ject of a federal criminal investigation, that counsel

being, of course, Mr. Larene. On the morning of June

18th, when this matter was brought to the Court’s atten-

A-26

tion, | — the Court and counsel for the parties met in

chambers to — for the purpose of discussing how to

proceed in the light of that publicity, and it was agreed

by counsel for all parties at that point, that the appro-

priate course would be to defer any inquiry of the

jurors until such time that the jury deliberations had

been concluded and any verdicts had been reached.

At the end of the court day, on June the 18th, 1992,

the jury reported to the Court’s clerk that they had —

that they had reached verdicts. However, at that point,

we were right at the point of, I believe, five o’clock or

right in that very vicinity. Counsel had, | believe,

departed and | was in the process of departing right at

that point, so the — due to the unavailability of at least

myself, and perhaps of counsel, the jurors were

instructed to return to court the (23) next morning.

Then on June 19th, the next morning, while the jurors

were en route from the jury assembly room downstairs,

on their way up here to their jury room, one of the

jurors handed one of the court’s security officer[s] a

note which contained some comments critical of the

deliberations and of certain verdicts. That note didn't

make — did not make any reference to the publicity

which I’ve mentioned, the publicity involving Mr. Larene

or to — nor did it make, in my estimation, any reference

at all to any other extraneous occurrence having influ-

enced the jury in its deliberations.

Shortly after the jurors had convened in their jury

room, the jury sent a note indicating that it had

reached its verdicts. And then a few moments later, and

before the jurors came into the courtroom, another

note came, written by the juror who had submitted the

— the complaining note to the court’s security officer

while they were on their way outside arrived and that

second note from that juror stated — asked that the —

that her first note be disregarded and confirmed that

unamimous decision on the verdicts had been reached.

A-27

It was at that point the defense counsel requested

that the — that the Court, before receiving any verdicts,

make an inquiry of the juror who wrote the notes

regarding the proceedings in the jury room which had

precipitated the sending of the — of the juror’s notes.

(24) The — the Court, pursuant to Rule 606(b) of

the Federal Rules of — of Evidence, denied this request

for an inquiry of the juror who wrote the notes, since

the notes gave no indication either that there was any

extraneous prejudicial information which had been

improperly brought to the jury's attention or that any

outside influence had been improperly brought to bear

upon any juror.

Rule 606(b) forbids inquiry of a juror regarding any

matter or statement occurring during the course of the

jury’s deliberations or to the effect of anything upon —

upon those deliberations or any other juror’s mind —

Or any juror’s mind, | should say or a motion — for a

motion as influencing the juror to assent to dissent

from the verdict, or any inquiry concerning the jurors’

mental processes in connection with their deliberations

and their verdicts.

As a matter of fact, the rule to which I referred states

that a juror may neither testify to such matters, nor

may an affidavit or evidence of any statement of the

juror concerning such matters be received. The only

exception[s] to that are, as I above stated, evidence of

extraneous prejudicial information or outside influence

— influence improperly brought to the attention of or to

bear upon the deliberations of a juror. And in my estima-

tion, the juror’s notes did not so reflect or indicate.

Further, I might add, and in any event, the Court (25)

had the opportunity, which was exercised, to make

inquiry concerning these matters and the — and

whether or not there were extraneous influences

brought to bear upon any juror or upon any delibera-

A-28

tions of any juror, in the jury room, after the verdicts

were returned and during the polling of the jury. And

that is precisely the course that the Court did ulti-

mately follow.

The — the jury then came into the courtroom and

returned the verdicts, as reported by its foreperson.

The jury announced that Defendant Anthony Rugiero

was acquitted on Count 5, charging intimidating and

threatening a witness, and then Count 6, the use and

carrying of a firearm during a crime of violence.

Defendant Basmadjian was found guilty on Count 1,

charging conspiracy and Count 3, charging distribution

of heroin. And Defendant Patrick Rugiero was, as the

verdict was announced at that point, found guilty on

Count 1, conspiracy and was acquitted on Count 3, dis-

tribution of heroin, was acquitted on Count 5, charging

intimidating and threatening a witness and was

acquitted on Count 6, charging use of carrying of a

firearm during a crime of violence. The foreperson also

reported a verdict of guilty, as to Patrick Rugiero, on

Count — on Count 2, | believe — or — yes, Count —

Count 2, distribution of cocaine.

I might note that the — that the note from the (26)

juror, the note to which I| had referred, which was given

to the court’s security officer first thing in the morning

of that date, and which the juror then subsequently

repudiated, appeared, so I thought quite clearly, to refer

to matters or statements which occurred or might have

occurred during the course of the jury’s deliberations;

that is to say, that the note made reference that some

jurors may have formed opinions in the early stages of

the trial or that some jurors wanted to have clean

hands at the conclusion of the deliberations. Or that

some jurors wanted to bring their arguments to a close

and get it over with, or that some jurors may have given

undue weight to another juror’s notes. Or that some

A-29

verdicts were not based on sufficient evidence and that

some jurors were not convinced of the sufficiency of

the Government’s proofs, all matters, which seemed to

me, were clearly covered by Federal Rule of Evidence,

Rule 606(b) and were matters in which the Court has

forbidden to make inquiry into the — into the delibera-

tive processes of the — of the jury.

After these verdicts were received, on the morning of

the 19th of June, | then proceeded to poll the jurors,

but because of the — because of the information that

had been brought to me that there’d been this televi-

sion news item, concerning Mr. Larene, and also

because of the fact that this note had come from the

one juror complaining of some things which had gone

on in the jury room, | polled the jury in quite (27) a dif-

ferent nature than is ordinarily conducted. Each jury

[sic] was called into the courtroom individually and out

of the hearing of all other jurors and was then ques-

tioned. And this was done in the presence of counsel for

the various parties and in the presence of the Defendants.

The — | asked each juror whether he or she had

been exposed to the publicity of June 17th, 1992, the

television publicity concerning Mr. Larene, who, as I say,

is the — one of the trial counsel for Patrick Rugiero.

While a number of the jurors acknowledged having

either seen or heard of that television news item, each

and every juror advised the Court that the publicity

had had no influence upon his or her decision. And in

fact, there were certain jurors who expressed admira-

tion for Mr. Larene, who is the subject of the — of the

publicity.

The juror who had written the note to the Court,

complaining about the jury's deliberations and had also

sent the note then, retracting her complaint, indicated

that her complaints about the deliberations were not

motivated by any concern of extraneous influence and

A-30

further — and stated that she had — she had not been

influence[d] herself by any publicity regarding Mr.

Larene or by any other extraneous matter of — that —

or prejudicial matter that had been brought into the

jury room from outside.

The poll the jurors did, however, indicate to the (28)

Court that the verdict, as to Patrick Rugiero on Count 2,

was not unanimous, and therefore the Court did not

accept the verdict of the — of the jury on that partic-

ular count and the jury was, instead, directed to con-

tinue with its deliberations regarding Count 2.

The jury returned, | believe, on June the 22nd; after

being excused on Friday, June the 19th, the jurors

returned on Monday, June 22nd and continued delibera-

tions as to Count 2. And then on June the 23rd, 1992,

the jury returned a verdict of guilty on Count 2 as to

Defendant Patrick Rugiero. The jury was polled and it

was apparent that the verdict at that point on Count 2

as to Mr. Patrick Rugiero was, indeed, unanimous and

the jurors were discharged.

The counsel for the Defendants Patrick Rugiero and

Ara Basmadjian have of course, filed a motion for a new

trial on the grounds that the jury was prejudiced by the

news report concerning Mr. Larene, which news item

appeared on local television during the period that the

jury was deliberating and also — and also on the basis

of the statements made in the note given to the court's

security officer by a member of the — of the jury.

So we've got really two arguments here. First, that the

jury was prejudiciously — prejudicially influenced by

television news reports broadcast during the jury’s

deliberations and that such prejudicial influence

resulted in (29) bias against the Defendants on the, part

of the jury. And second, that the note from the one indi-

vidual jury [sic] indicated that members of the jury

possibly were being influenced by forces extraneous to

A-31

the jury’s deliberations and — and by matter improp-

erly brought into the jury room from outside and that

these forces caused actual bias.

The remedy for, of course, for allegations of juror par-

tiality is a hearing in which the Defendant has the

opportunity to prove actual bias. The Court did conduct

its own hearing by polling individually each and every

member of the juror — jury, out of the presence and

out of the hearing of all the other jurors. I was satisfied

following that procedure that there had been no biased

[sic] or no prejudice that was caused either by the tele-

vision news item concerning Mr. Larene or the — or by

any other outside influence or prejudicial matter that

was injected from outside into the jury room, in which

[sic] caused the note that was submitted by the one

juror.

The — the Defendants certainly have the opportunity

to request an additional hearing and to present what

evidence they wish to present concerning actual bias,

but no such evidence has been presented. If there,

indeed, was outside prejudicial information that got into

the jury room, then certainly a juror would be per-

mitted to testify to those matters. But there has been

no such testimony. There’s been (30) no such — no affi-

davits of — to confirm that any such things have

occurred submitted to the Court. There’s been no infor-

mation at all submitted to the Court to verify or sup-

port these claims on the part of the Defendants.

It is clear to this Court that it is the Defendant who

has the burden of proving that any unauthorized com-

munication with the jurors resulted in actual juror bias.

That has been very emphatically held in this circuit by

the — by the Court of Appeals in United States v. Pennell

found at 737 F2d 521 at page 532, a 1984 decision. The

United States Supreme Court has so held in Smith v.

Phillips, 455 U.S. 209, at page 215, a 1982 decision.

A-32

The — as | previously indicated to you in this case,

the Defendant’s concerns that the jury may have been

exposed to unfavorable publicity as to Mr. Rugiero’s

trial counsel were brought to the attention of the Court,

prior to the jury returning a verdict. The Court immedi-

ately responded to those concerns by meeting with

counsel in chambers, and at that time, as I’ve stated,

there was an agreement reached, that the jurors were to

be questioned regarding their exposure to this publicity,

if any, after verdicts had been reached, and conse-

quently, when the jury returned with the verdicts, the

jurors were questioned by the Court as to whether they

had seen or heard the publicity and they all indicated

either that they had seen the publicity, but it had (31)

not influenced them at all in their deliberations or their

verdicts, or that they had not seen it and were not

aware of it. And as I've — now we've mentioned several

times some of the jurors spoke with admiration of Mr.

Larene.

So the Court does find that the questioning of the

jurors, as to the effect, if any, of the — of the publicity,

was sufficient to satisfy the requirement that — that a

hearing be held when a defendant alleges juror bias. |

discovered nothing during those proceedings that

would indicate any bias and defense counsel have not

requested any further hearing considering that matter,

nor have they submitted any affidavits or — or made an

offer of proof of testimony by any member of the juror

— jury that there was any such actual bias.

Where the Court has heard the jurors’ assurances of

— of continued impartiality and total impartiality

during the proceedings, the Court is entitled to rely

upon those assurances in deciding whether a defendant

has satisfied the burden of proving actual prejudice.

And in this case, the Court does find, as | did at the

time that the jurors were questioned, that the jurors’

7 | .

A-33

answers were sufficient to satisfy me that no juror bias

resulted from the publicity regarding Mr. Rugiero’s tria!

counsel.

I also think that the fact that the publicity did not

pertain to the Defendant, Mr. Rugiero, or to the (32)

Defendant, Mr. Basmadjian, or to any matter at issue in

this trial either directly or indirectly, but rather only

related to a totally extraneous matter involving one of

Mr. Rugiero’s counsel, is further reason for the propriety

of the Court relying upon the credibility of the jurors’

assurances of — of a total lack of any bias or prejudice

on their part.

The second argument made by the Defendants is that

the note submitted by the one juror indicated that the

jurors were being influenced by extraneous forces, and |

cannot agree that that is the case. The contents of the

note and, of course they've been submitted in the — in

the — in the pleadings, that is, in the motion and in the

briefs submitted by defense counsel in support of the

motion for new trial, state as follows and | quote:

“Many stated they knew from first day their

verdict. I totally disagree with Count 2 verdict

for first Defendant.”

And it goes on and I’m not going to repeat it to you —

filed it all, but as I’ve indicated they — the note states

that the — that the verdicts focused on such things as

whether or not the jurors will have “clean hands” at the

conclusion of the trial, whether they relied on —

whether some jurors relied on other jurors’ notes,

whether the Government had presented a sufficient case

to convict, whether some jurors went along with other

jurors to keep down (33) arguments, whether some

jurors said they didn’t want to be jurors any longer, they

wanted to get the case over with, that sort of thing.

Now, the — the note made no reference whatsoever

to any extraneous factor influencing the jury in its

A-34

deliberations. In fact, of course, the claim that some

jurors had sort of made up their minds early in the

trial, that their — that as to what their decisions would

be sort of undermines the claim that anything con-

tained in that television broadcast concerning Mr.

Larene had anything at all to do with the conclusions

ultimately reached by the — by the jurors.

I might further state, Mr. Larene, you urged that the

Sixth Circuit Court of Appeals in the case of U.S. v.

Pennell, which I’ve cited and which the U.S. Supreme

Court denied certiorari in 1985, that the Sixth Circuit

was in error in that decision in its ruling that the U.S.

Supreme Court had in Smith v. Phillips, which I previ-

ously cited, had reinterpreted Remmer v. United States, so

as to hold that where it is shown that a jury was exposed

to extraneous information, the burden of proof is on the

defendant to demonstrate actual juror partiality.

The Remmer case is found at two different places. It’s

found at 347 U.S. 227, at page 229 in 1954 and then it’s

found agein, the same case went back in — before the

U.S. (34) Supreme Court in 1956 and there it’s Remmer v.

United States, 350 US. 377.

In — in the decision of those cases, the ruling seems

to have been that where there was evidence that a jury

had been exposed to some extraneous information,

then the — there was a presumption of — of bias or

prejudice and the Government was in a position where

the Government had to rebut the presumption.

Mr. Larene, as | — as I’ve indicated, has urged that the

Sixth Circuit is in error in its Pennell decision in its

holding that the Remmer decision has been modified by

Smith v. Phillips. | find that, in fact, it has been modified by

Smith v. Phillips and that it’s clear at this point that the —

that the burden of proof is on the defendant to establish

that the — that any extraneous information that comes to

a jury’s attention, in fact, is prejudicial to the offense.

ee ee ee ee ee STS A

A-35

I might further observe that the Sixth Circuit has

more recently reaffirmed its ruling in — in U.S. v.

Pennell and such subsequent cases as U.S. v. Zelinka,

found at 862 F2d 92, at pages 95 and 96, which is a 1988

decision.

So I do find that the burden of proof is indeed on the

defendant to demonstrate actual juror bias or prejudice

from any extraneous prejudicial information or im-

proper outside influence. Here, there’s been no such

attempt, (35) on the part of the defense to — to — to

demonstrate any actual juror bias or prejudice, despite

the fact that that opportunity was available to the — to

the Defendants. That is, certainly, a juror testimony or

juror affidavits or other evidence that there was such

bias or prejudice from extraneous information that

might have been submitted to the Court and that has

not been done, nor has there been any requests that

the Court allow an opportunity for a hearing to produce

any such evidence or affidavits or information.

I might further add that even — even if it be assumed

that there is a presumption of bias or prejudice from

extraneous information come to the jurors’ attention,

which is a proposition with which I do not agree and

which I find that the Sixth Circuit doesn’t agree and

which | find that at present the United States Supreme

Court doesn’t agree, but even if that is assumed, in this

case the ruling, from what I’ve heard of this case, would

necessarily be that even in that circumstance the Gov-

ernment has met that sort of a burden because we've

got a record here which demonstrates that all jurors

say that there was no extraneous influence that was

brought to bear upon their deliberations that preju-

diced the Defendants in this case. The juror who sent

the note and all jurors were closely questioned individ-

ually and out of the hearing of their fellow jurors and

all of them have testified that no extraneous informa-

A-36

tion had influenced (36) their deliberations of verdicts

and all confirmed that there was no improper outside

influence that had been brought to bear upon any of

them.

So accordingly and under these circumstances, the

Court must deny the motions for a new trial. | — I’m

going to reduce that to a formal opinion, but I just

thought counsel ought to know right now that | reached

that conclusion.

A-37

ORDER DENYING DEFENDANTS’ MOTION FOR NEW TRIAL

[Cite as 804 F.Supp. 925 (E.D.Mich. 1992) ]

(United States District Court —

E.D Michigan, S.D.)

(Dated October 16, 1992)

(UNITED STATES of America, Plaintiff, v. Patrick RUGIERO,

and Ara Basmadjian, et al, Defendants — No. 90-80941)

Stephen J. Markman, U.S. Atty., by Richard L. Delonis,

Asst. U.S. Atty., Detroit, Mich., for plaintiff; N.C. Deday

Larene, Detroit, Mich., William E. Bufalino, Il, St. Clair

Shores, Mich., for defendant.

GADOLA, District Judge.

On June 19, 1992, defendant Patrick Rugiero was con-

victed by a jury of conspiracy to distribute, or possess

with intent to distribute, cocaine and heroin. Also on

June 19, 1992, and in the same proceeding, defendant

Ara Basmadjian was convicted of conspiracy to dis-

tribute, or possess with intent to distribute cocaine and

heroin, and of distribution of heroin.

On June 23, 1992, following further deliberations of

the same jury within the same proceeding, defend-

ant Patrick Rugiero was convicted of distribution of

cocaine.

On June 23, 1992, the court issued a stipulation and

order extending the time for filing a motion for new

trial. On July 28, 1992, defendants filed this motion for

new trial. On August 31, 1992, the government filed an

answer to defendants’ motion for new trial. Defendants

Patrick Rugiero and Ara Basmadjian, on August 27, 1992

and Sentember 4, 1992, respectively, filed motions for

bond pending appeal of the issues raised in the defen-

dants’ motion for new trial.

A-38

FACTS

On June 16, 1992, at the conclusion of a trial before a

jury, this case was submitted to the jury for delibera-

tions as to defendants Patrick Rugiero, Ara Basmadijian,

and Anthony Rugiero. On the evening of June 17, 1992,

certain local news broadcasts reported that one of

defendant Patrick Rugiero’s trial counsel was the subject

of a federal criminal investigation. On the morning of

June 18, 1992, the court and the parties met in cham-

bers for the purpose of discussing how to proceed in

light of the publicity. All agreed that the appropriate

course of action would be to defer any inquiry of the

jurors until such time that jury deliberations had been

concluded and any verdicts had been reached.

At the conclusion of their deliberations on June 18,

1992, the jury reported to the court’s clerk that it had

reached verdicts. Because of the unavailability of the

court and the parties, the jurors were excused for the

day and directed to return the next morning.

On June 19, 1992, while en route from the jury

assembly room to the court's jury room, a juror handed

a court security officer a note containing comments

critical of the deliberations and of certain verdicts. The

note made no reference to the aforementioned publicity

nor to any other extraneous occurrence having influ-

enced the jury. Shortly after convening in the jury

room, the jury sent the court a note indicating that it

had reached its verdict. Moments later, another note,

written by the same complaining juror who had written

the first note, was received by the court. The juror

asked that her first note be disregarded and confirmed

that, in fact, a unanimous decision had been reached.

Defense counsei requested that the court, before

taking any verdict, make an inquiry of the juror who

wrote the notes, regarding the proceedings in the jury

A-39

room which preceded the sending of the juror’s notes.

Pursuant to rule 606(b) of the Federal Rules of Evi-

dence, the court denied this request for inquiry of the

juror who wrote the notes, since the notes gave no indi-

cation either that any extraneous prejudicial informa-

tion had been improperly brought to the jury’s

attention or that any outside influence had been im-

properly brought to bear upon any juror.’ Rule 606(b)

forbids inquiry of a juror regarding any matter or state-

ment occurring during the course of the jury’s delibera-

tions or to the effect of anything upon that or any other

juror’s mind or emotions as influencing the juror to

assent to or dissent from the verdict, or concerning the

juror’s mental processes in connection therewith. A

juror may neither testify to such matters nor may an

affidavit or evidence of any statement of the juror con-

cerning such matters be received. The only exceptions

are. as above stated, evidence of extraneous prejudicial

information brought to the jury’s attention or outside

influence improperly brought to bear upon a juror, and

the juror’s notes did not so reflect or so indicate. Fur-

ther, the court had the opportunity, which was exer-

cised, to subsequently make inquiry concerning those

limited exceptions under Rule 606(b) after the verdicts

were returned and during the polling of the jury, which

of course took place after verdicts were reported.

The jury then returned the following verdicts, as

reported by its foreperson:

! The note from the juror to the court appeared to refer to

matters-or statements which had occurred during the course of the

jury's ¢eliberations, i.e. that some jurors may have formed opinions

in the early stages of the trial, or that jurors wanted to have “clean

hands” at the conclusion of the deliberations, or wanted to bring

their arguments to a close and “get it over with,” or that some

A-40

1) Defendant Anthony Rugiero was acquitted on

Count V (Intimidating a Witness) and Count VI

(Use and Carrying of a Firearm During a Crime of

Violence);

2) Defendant Ara Basmadjian was found guilty on

Count I (Conspiracy) and Count III (Distribution

of Heroin);

3) Defendant Patrick Rugiero was found guilty on

Count I (Conspiracy) but was acquitted on Count

Il (Distribution of Heroin), Count V (Intimidating

a Witness) and Count VI (Use and Carrying of a

Firearm During a Crime of Violence).

The foreperson also reported a verdict of guilty as to

Patrick Rugiero on Count II (Distribution of Cocaine).

The court then proceeded to poll each juror individu-

ally and out of the hearing of the other jurors, as to the

reported verdicts. The court asked each juror whether

he or she had been exposed to the publicity of June 17,

1992, regarding Patrick Rugiero’s trial counsel. Many

jurors acknowledged having seen or heard of the pub-

licity, but each juror advised the court that the pub-

licity had had no influence upon his or her decision; in

fact, two jurors even expressed admiration for the trial

counsel who had been the subject of the publicity. The

juror who had written the note to the court com-

plaining about the jury’s deliberations and the note

retracting this complaint, indicated that her complaints

about the jury’s deliberations were not motivated by

concerns of any extraneous prejudicial information

brought to the jury’s attention or by any outside influ-

ence improperly brought to bear upon any juror; she

further stated that she had not been influenced in her

decision by the publicity regarding defendant Patrick

Rugiero’s counsel.

A41

The poll of the jurors did indicate, however, that the

verdict as to Patrick Rugiero on Count II was not unani-

mous, and the court therefore did not receive a verdict

on that count. The jury was excused for the day and

directed to return on Monday, June 22, 1992, to continue

deliberations as to Count Il.

On June 23, 1992, the jury returned a verdict of guilty

on Count Il as to defendant Patrick Rugiero. A poll of

the jury disclosed that the verdict was unanimous, and

the jurors were discharged.

On July 28, 1992, as noted above, the defendants filed

a motion for a new trial on grounds that the jury was

prejudiced by the news reports or by other extraneous

forces which allegedly were alluded to in the com-

plaining juror’s note to the court.

STANDARD OF REVIEW

Rule 33 of the Federal Rules of Criminal Procedure

provides in pertinent part that on motion of a defen-

dant the court may grant a new trial “if required in the

interest of justice.” Decisions on motions for new trial

are within the sound discretion of the trial judge. Burks

v. Egeler, 512 F.2d 221, 224 (6th Cir. 1975), cert. denied,

423 US. 937, 96 S.Ct. 297, 46 L.Ed.2d 270 (1975). Motions

for new trial are not favored and should be granted only

with great caution and in the most extraordinary of cir-

cumstances. United States v. Garner, 529 F.2d 962, 969

(6th Cir. 1976), cert. denied, 426 US. 922, 96 S.Ct. 2630, 49

L.Ed.2d 376 (1986) and 429 U.S. 850, 97 S.Ct. 138, 50

L.Ed.2d 124.

ANALYSIS

In defendants’ motion for new trial, defendants make

two arguments: 1) that the jury possibly was prejudi-

cially influenced by television news reports which were

A-42

broadcast during the jury’s deliberations and that such

prejudicial influence possibly resulted in actual bias

against the defendant on the part of the jury, and

2) that a note from a juror to the court indicated that

members of the jury possibly were being influenced by

forces extraneous to the jury’s deliberations and that

such forces possibly caused actual bias. The court dis-

agrees with both of defendants’ arguments.

The remedy for allegations of juror partiality is a

hearing in which the defendant has the opportunity to

prove actual bias. Smith v. Phillips, 455 US. 209, 215, 102

S.Ct 940, 944-45, 71 L.Ed.2d 78 (1982). The defendant has

the burden of proving that any unauthorized communi-

cation with jurors resulted in actual juror bias. United

States v. Pennell, 737 F2d 521, 532 (6th Cir. 1984).

In the case at hand, the defendants’ concerns that the

jury may have been exposed to unfavorable publicity as

to one of defendant Patrick Rugiero’s trial counsel, were

brought to the attention of the court prior to the jury

returning a verdict. The court immediately responded

to defendants’ concerns by holding a meeting in cham-

bers between the court and the parties, wherein it was

agreed that the jurors were to be questioned regarding

their exposure to the publicity, if any, after verdicts had

been reached. Consequently, when the jury returned

with its verdicts, the jurors were questioned by the

court as to whether they had seen er heard of the pub-

licity. All jurors indicated either tha! they had seen the

publicity but had not been influenced by it, or that they

had not seen it. In fact, as noted above, two of the

jurors spoke to the court of their admiration for the

trial counsel in question.

A-43

The court finds that the questioning of the jurors as

to the effect, if any, of the publicity was sufficient to sat-

isfy the requirement that a hearing be held when a

defendant alleges juror bias. The court questioned the

jurors at the time of trial and discovered nothing in

their answers that would indicate bias. Defendants’

motion for new trial presents no new factual issues to

be considered in a hearing.

Where a district court views juror assurances of con-

tinued impartiality to be credible, the court is entitled

to rely upon such assurances in deciding whether a

defendant has satisfied the burden of proving actual

prejudice. United States v. Pennell, 737 F2d at 533. In the

case at hand, the court finds, as it did at the time of

questioning the jurors, that the jurors’ answers are suffi-

cient to satisfy the court that no juror bias resulted

from the publicity on defendant Patrick Rugiero’s trial

counsel.

The fact that the publicity did not pertain to the defen-

dants’ case itself, either directly or indirectly, but rather

related to extraneous matters involving one of defendant

Patrick Rugiero’s trial counsel is further evidence of the

propriety of relying upon the credibility of the jurors’

assurances. In United States v. Porcaro, 648 F.2d 753, 757

(ist Cir. 1981), the court established a three pronged test

to determine whether a trial jury had been prejudiced

by publicity: 1) was the publicity of a prejudicial nature?;

2) if so, were any of the jurors exposed to the news Cov-

erage?; and 3) if exposure occurred, did it affect the

jury's impartiality? Defining “prejudicial” in this context,

the First Circuit, in a case subsequent to its Porcaro deci-

sion, considered important the fact that the jurors were

not exposed to any substantive information on the

issues at trial or on the defendants’ guilt with respect to

the charges against them. United States v. Angiulo, 897

A-A4

F.2d 1169, 1186 (1st Cir. 1990). See also, United States v.

Gaggi, 811 F2d 47, 52 (2d Cir. 1987). Thus, the fact that

the publicity was not related to any issue at trial in

defendants’ case combined with the jurors’ assurances

that no influence or actua! bias resulted from the pub-

licity leads the court to conclude that the jury was not

made biased by the publicity.

II.

Defendants’ second argument is that a note submitted

by a juror indicated that the jurors were being influ-

enced by extraneous forces. The court disagrees. The

contents of the note were as follows:

Many stated they knew from the first day their

verdict. Judge Gadola I totally disagree with

count 2 verdict for first defendant. The verdicts

were not based on impartial decisions by the

majority of the jury. Many focused there [sic]

decisions on the fact that whether they will walk

away with their hands clean or not. Based on

one person's notes not their own. Several had

the feeling that the government didn't present a

sufficient case to convict either of them. Many

went along with the majority to keep down argu-

ments. Many stated this is bullshit we don’t want

to be jurors any longer. Let’s just get it over

with. | have not been paid off or threatened. Just

had uneasy feelings the way this decisions [sic]

were handled. A new jury should be picked.

The note makes no reference to any extraneous factors

influencing the jury in its deliberations.? Rule 606(b) of

2 In fact, the claim that many knew from the first day what their

decisions would be undermines defendants’ claim that the jurors

were influenced and actually biased by news reports that did not

occur until the jury’s second day of deliberations.

ee Be ee ee

A-45

the Federal Rules of Evidence makes it clear that the

jury’s deliberations are not to be investigated or ques-

tioned so long as no extraneous prejudicial information

or outside influence was brought to bear upon any

juror. Furthermore, the author of the note later asked

that the note be disregarded. Additionally, as above set

forth, the juror was questioned individually during

polling, as was each juror, and did not indicate that

either the television news item concerning defendant

Patrick Rugiero’s counsel or any extraneous prejudicial

informat‘on or any outside influence had been brought

to bear upon herself or had caused any prejudice or

bias or had any effect whatsoever upon the jury’s delib-

erations. All the jurors, when questioned individually

and out of the hearing of one another, concurred.

Defense counsel have urged that the Sixth Circuit

Court of Appeals, in U.S. v. Pennell, 737 F2d 521, 531-533

(6th Cir. 1984), cert. denied, 469 US. 1158, 105 S.Ct. 906,

83 L.Ed.2d 921 (1985) was in error in ruling that the

United States Supreme Court in Smith v. Phillips, 455 US.

209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) had reinterpreted

Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450,

451, 98 L.Ed. 654 (1954)* now holding that where it is

shown that a jury was exposed to extraneous informa-

tion, the burden of proof is on the defendant to demon-

strate actual juror partiality. This court disagrees with

defendants’ contentions and observes that the Sixth Cir-

cuit has reaffirmed its ruling in Pennell in such subse-

quent cases as United States v. Zelinka, 862 F2d 92, 95-96

(6th Cir. 1988).

The burden of proof is indeed on the defendant

to demonstrate actual juror bias or prejudice from

3 United States v. Remmer was again reviewed by the Supreme

Court at 350 U.S. 377, 76 S.Ct. 425, 100 L-Ed. 435 (1956), in which

the original conclusion was again enunciated.

A-46

extraneous prejudicial information, or improper outside

influence.

But even if it be assumed that there is a presumption

of such resultant bias or prejudice, with the govern-

ment having the burden to overcome the presumption,

in this case the ruling necessarily would be that the

government had even met that burden. The juror who

sent the note, and all jurors, were closely questioned,

individually and out of the hearing of fellow jurors, and

all of them attested that no extraneous information had

influenced their deliberations or verdicts. Further, all

confirmed that no improper outside influence had been

brought to bear upon any of them.

Defendants were given the opportunity, at the hearing

held October 6, 1992, to produce testimony from the

juror who submitted the notes, or from any other

jurors, to support their claim that either any extraneous

prejudicial information had been improperly brought to

the jury’s attention or that any outside influence had

been improperly brought to bear upon any juror,

thereby resulting in bias against the defendants. Defend-

ants have produced no such testimony nor any sup-

porting affidavits nor any evidence whatsoever of any

such bias or prejudice to the defendants and defense

counsel, on October 6, 1992, advised the court that they

did not propose to submit any such testimony or evi-

dence on the limited matters on which such testimony

or evidence is permitted under Fed.R.Evid. 606(b). They

rely instead only on speculation and conjecture, as to

the jury’s deliberations, and upon matters barred by

Fed.R.Evid. 606(b), and have entirely failed to meet their

burden of proving any actual juror bias whatsoever,

The court finds therefore that the juror’s note, un-

supported by any evidence whatsoever, created no

A-47

issue as to whether extraneous forces acted upon the

jury to cause any actual bias.

ORDER

Therefore, it is hereby ORDERED that defendants’

motion for a new trial is DENIED.

SO ORDERED.

ew:

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A-48

OPINION

RECOMMENDED FOR FULL-TEXT PUBLICATION

-Pursuant to Sixth Circuit Rule 24-

ELECTRONIC CITATION: 1994 FED App. 0091P (6th Cir.)

File Name: 94a0091p.06

(United States Court of Appeals — Sixth Circuit)

(Decided and Filed March 22, 1994)

(UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

PATRICK RUGIERO (92-2412); ARA BASMAJIAN (92-2414),

Defendants-Appellants — Nos. 92-2412/2414; ON APPEAL

from the United States District Court for the Eastern

District of Michigan)

Before: MERRITT, Chief Judge; SUHRHEINRICH, Circuit

Judge; and WELLFORD, Senior Circuit Judge.

WELLFORD, Senior Circuit Judge, delivered the opinion

of the court, in which SUHRHEINRICH, Circuit Judge,

joined. MERRITT, Chief Judge (p. 16), delivered a sepa-

rate dissenting opinion.

HARRY W. WELLFORD, Senior Circuit Judge.

Two of a number of defendants charged in an indictment

for conspiracy to possess and distribute cocaine and

heroin (or other specific substantive dealing in these

drugs), using and carrying a weapon in relation to their

drug dealing and a crime of violence, and also for threat-

ening a witness, now appeal their convictions. After an

extended trial, Patrick Rugiero (“Rugiero”) and Ara Basma-

jian (“Basmajian”)! raise a number of issues. The district

court denied motions for a new trial and then assessed

substantial sentences against these two defendants.”

1 We use the name as reflected in the indictment and in the

defendant’s brief. It is sometimes spelled “Basmadiian.”

2 Anthony Rugiero, Patrick’s brother, was found not guilty of the

two counts pe Bare. against him; Patrick was also acquitted of one

drug count, one weapon count, and the witness threatening count.

A-49

The government charged that beginning in 1985, in

southeast Michigan, Rugiero was the leader of an armed >

drug distribution ring, and that Basmajian was one of

the participants in the illegal group. Basmajian and his

family owned and operated a party store in Dearborn

Heights, allegedly used as a site to store and distribute

drugs. Rugiero and his brother, Anthony, allegedly

employed violent means, including threatened firearm

use, to collect drug debts.

There was evidence of undercover drug contacts with

defendants over a period of time, principally involving

substantial quantities of cocaine. Others involved in

drug transactions testified as to participation of defend-

ants in distribution of both cocaine and heroin.

ARA (ART) BASMAJIAN

Basmajian was charged with and convicted on two of

the eight counts of the indictment, conspiracy to dis-

tribute drugs, and aiding and abetting one substantive

heroin offense.

A. JURY MISCONDUCT

Basmajian (and Rugiero) assert that a television

report tying Rugiero’s trial counsel to “organized crime”

figures came to the attention of the jury during its

deliberations prejudicing both defendants and necessi-

tating a mistrial. The defendants brought their concerns

promptly to the district court. The controversy centers,

in part, around a note from the jury about the time it

initially indicated a verdict had been reached.* The

3 The note contained, among other things, the following comments:

“Many stated they knew from the first day their verdict.”

(concluded on page A-50)

A-50

defendants requested an inquiry of the person who

wrote the note. Very soon after sending the first note,

the jury returned its verdict together with another note

to this effect: “Disregard note. A unanimous decision

has been reached.” The district judge declined the

request to make a juror inquiry at that time and

accepted the guilty verdicts, now the subject of appeal,

over the defendants’ objections.

Despite his earlier indication, the trial judge then

made separate individuai inquiries of each juror about

the television report regarding Rugiero’s attorney. Most

of the jurors indicated that they had seen or heard

about the television report or reports. Some jurors indi-

cated that the jury foreman, Mayhew, had discussed the

television information about Rugiero’s attorney with

other jurors. Mayhew herself, however, denied know-

ledge of the television report or discussing this matter

with other jurors. Each juror denied any adverse influ-

ence on their verdict, and the district court denied the

motion for a mistrial.

The standard to be applied in assessing the district

court’s actions in a case of alleged juror misconduct is

whether the actions (or inactions) constituted an abuse

of discretion under all the circumstances. United States

v. Shackleford, 777 F.2d 1141, 1145 (6th Cir. 1985), cert.

denied, 476 US. 1119 (1986). This court has articulated

four points to consider in cases of possible improper

juror contact:

(continued from page A49)

“The verdicts were not based on impartial decisions by the

majority of the jury.”

“I have not been paid off or threatened. Just had uneasy

feelings the way this decisions [sic] were handled.”

A-51

Four points emerge from our decision in Pennell: *.

(1) when a defendant alleges that an unautho-

rized contact with a juror has tainted a trial, a

hearing must be held; (2) no presumption of

prejudice arises from such a contact; (3) the defend-

ant bears the burden of proving actual juror bias;

and (4) juror testimony at the “Remmer® hearing”

is not inherently suspect.

United States v. Zelinka, 862 F.2d 92, 95-96 (6th Cir. 1988).

The district court in this case did conduct a hearing

on the defendants’ claims of jury taint. The district

court properly made no “presumption of prejudice from

juror exposure to the television news relating to

Rugiero’s attorney and required the defendants to prove

“actual juror bias.” The district court noted that it and

the parties, through their counsel, “agreed that the

appropriate course of action [after the television broad-

cast at issue] would be to defer any inquiry of the

jurors” until conclusion of jury deliberations and a ver-

dict. This agreed course of action was followed. The

trial judge declined to inquire in great detail of the juror

who wrote the notes “since the notes gave no indication

either that any extraneous prejudicial information had

been improperly brought to the jury’s attention cr that

outside influence had been improperly brought to bear

on any juror,” citing Fed. R. Evid. 606(b).® See also

Shackleford, supra. The district court heard “individual

4 United States v. Pennell, 737 F.2d 521,532 (6th Cir. 1984), cert.

denied, 469 U.S. 1158 (1985).

5 Remmer v. United States, 347 U.S. 227 (1954).

A-52

juror’s testimony and viewed their assurances of con-

tinued impartiality to be credible,” as it was entitled to

do under Pennell and Zelinka. See also United States v.

Sturman, 951 F2d 1466, 1477-78 (6th Cir. 1991), cert.

denied, 112 S. Ct. 2964 (1992).*

Even if we assume that the jury foreman was exposed

to the television broadcast and mentioned it or its con-

tent to other jurors, we find no abuse of discretion on

the part of the district court here. We do not presume

prejudice has occurred by reason of extraneous contact

with a juror or jurors. Neither Basmajian nor his

counsel were the subjects of any adverse information.

Basmajian concedes in his brief that “juror testimony

concerning the effect of the outside communication on

the minds of the jurors is inadmissible,” Stockton v.

Commonwealth of Virginia, 852 F.2d 740, 744 (4th Cir.

1988), cert. denied, 109 S. Ct. 1354 (1989), but argues

that the district court should not have relied upon

“unsworn and unreliable denials of influence.”

As to the defendant Basmajian, we are satisfied that

there was no abuse of discretion nor error committed

by the district court with respect to the alleged jury

misconduct issue. We also conclude that Basmajian

proved no actual bias against him on the part of the

jury on this record, nor was “actual prejudice” demon-

strated. See United States v. Griffith, 756 F2d 1244, 1252

(6th Cir.), cert. denied, 474 U.S. 837 (1985) (defendant

must demonstrate that juror communications resulted

in actual prejudice).®

7 Two jurors during the inquiry apparently “spoke to the court

of their admiration for the trial counsel.”

8 The defendant cited Budoff v. Holiday Inns, Inc., 732 F.2d 1523

(6th Cir. 1984), in support his argument. Budoff was a civil case and

the panel presumed prejudice by reason of the direct contact

attempted by trial counsel’s assistant to a juror. We deem Budoff dis-

tinguishable on its facts.

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Thcenteudeha ih se aS

mda pe

A-53

B. SEVERANCE

The principal basis for Basmajian’s motion for a sepa-

rate trial was the existence of charges against two of his

alleged co-conspirators, the Rugiero defendants, with

respect to possession and/or use of firearms and intimi-

dating and threatening a witness. We observe first that

the jury acquitted the Rugiero brothers of both these

charges. The jury was evidently able to separate the

proof and evidence regarding the different defendants

and different charges set out in the indictment. We

believe that the district court was not in error in

denying the defendant's severance motion. The counts

against the three defendants, particularly the two appel-

lants now before us, were “logically interrelated and

involve[d] overlapping proof.” United States v. Swift, 809

F.2d 320, 322 (6th Cir. 1987). We presume, unless the

defendant carries a strong burden of showing to the

contrary, that the jury is “capable of sorting out evi-

dence and considering each count and each defendant

separately.” /d. at 323. The defendant has failed to show

an abuse of discretion in denying him a separate trial.

See United States v. Warner, 971 F.2d 1189 (6th Cir. 1992);

United States v. Sivils, 960 F.2d 587 (6th Cir.), cert.

denied, 113 S. Ct. 130 (1992); United States v. Gallo, 763

F.2d 1504 (6th Cir. 1985), cert. denied, 474 U.S. 1068

(1986); United States v. Krebs, 788 F.2d 1166 (6th Cir.),

cert. denied, 479 US. 930 (1986).

C. SINGLE OR MULTIPLE CONSPIRACIES

When the case was submitted to the jury, Basmajian

had the opportunity to argue whether the proof, if any,

of his part in any conspiracy to deal drugs indicated a

separate conspiracy from that charged against him in

the indictment. He did not request a jury instruction on

multiple conspiracies. We consider this claim, therefore,

only on a basis of plain and clearly prejudicial error. In

A-54

respect to this issue, the defendant can prevail only if he

shows that the evidence presented could “reasonably be

construed only as supporting a finding of multiple con-

spiracies” rather than the conspiracy charged. United

States v. Rios, 842 F.2d 868,872 (6th Cir. 1988), cert.

denied, 488 U.S. 1031 (1989) (emphasis added) (quoting

United States v. Warner, 690 F2d 545, 548 (6th Cir. 1982)).

Rios indicates further that a single conspiracy is not con-

verted into multiple conspiracies merely because there

may be some changes in persons involved or because

they play different roles. See also United States v. Bates,

600 F2d 505, 509 (Sth Cir. 1979). We believe the defen-

dant has not prevailed in his burden to establish clear

error and a fatal variance in this case.

Each member of a conspiracy need not be shown to

know each other or to have direct association with all

other conspirators. United States v. Sanchez, 928 F2d

1450, 1457 (6th Cir. 1991). The proof indicated that Bas-

majian knew of the existence of others in the charged

drug conspiracy. See United States v. Christian, 786 F.2d

203, 211 (6th Cir. 1986). Once the existence of a drug

conspiracy, as charged, has been shown, proof of a

formal agreement is unnecessary. A tacit or mutual

understanding and a showing of knowing and active

participation by a defendant in some act or portion of

the conspiracy is all that is required. United States v.

Lee, 991 F2d 343, 347-48 (6th Cir. 1993).

The fact that a conspiracy can be divided into

distinctive sub-groups does not mean that there

is more than one conspiracy. As long as the dif-

ferent sub-groups are committing acts in further-

ance of one overall plan, the jury can still aie a

single, continuing conspiracy.

United States v. Warner, 690 F.2d 545, 550 n.8 (6th Cir.

1982).

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A-55

We find no merit in the claim of variance. The jury

had sufficient evidence to decide whether Basmajian

was simply a seller or whether he was a conspirator, or

aider and abettor in distribution of illicit drugs.

D. SENTENCE

Basmajian was found responsible for two kilograms of

heroin by the sentencing judge, who noted that the evi-

dence clearly showed that Basmajian was the source of

this quantity being distributed by Rugiero. The district

court also found evidence of this defendant's dealing in

three kilograms of cocaine from at least two sources.

The district court specifically overruled Basmajian’s

objections to the quantities of contraband attributed to

him in the presentence report. We accept the findings

of the district court in this respect unless they are

clearly erroneous and shall give due deference to the

district court’s application of the guidelines to the facts.

United Stutes v. Walton, 908 F.2d 12839, 1300-01 (6th Cir.),

cert. denied, 498 U.S. 906 (1990). We find no error in

attributing to Basmajian the entire two kilos of heroin

negotiated for, although only one-half kilo was actually

delivered to Basmajian’s store.

Accordingly, we AFFIRM Basmajian’s convictions and

sentence in all respects.

II.

PATRICK RUGIERO

A. JURY MISCONDUCT

As well might be expected, Rugiero attacks the failure

of the district court to grant a mistrial on the jury mis-

conduct issue discussed heretofore. Rugiero has a

stronger basis for a challenge on this ground, although

he was acquitted on three of the five counts with which

he was charged in the superseding indictment, while

A-56

Basmajian was convicted on both charges made against

him.

Despite the fact that Rugiero’s attorney was the spe-

cific subject of the adverse information contained in the

television reports, we reach the same result on this

issue. The jury evidently disregarded any information

they may have heard about Rugiero’s counsel — they

acquitted Rugiero and and his brother Anthony on

three counts.

B. NON-SEQUESTRATION

OF GOVERNMENT WITNESS MILEWSKI

The district court directed sequestration of witnesses

upon this defendant’s motion. During cross-examination

of Thomas Wyman, who defendant describes as a “key

government witness,” Keith Milewski, who had been sub-

poenaed by the government, entered the courtroom and

heard part of Wyman’s testimony for some forty-five

minutes. Over two weeks later, the government called

Milewski as a witness and he was permitted to testify

over Rugiero’s objection.

The statutory purpose of the rule requiring seques-

tration of witnesses is to preclude coaching or the influ-

encing of a witness’ testimony by another witness.

United States v. Gibson, 675 F2d 825, 835 (6th Cir.), cert.

denied, 459 U.S. 972 (1982). Although the government

was permitted more than one law enforcement agent to

be present in the courtroom, no one detected

Milewski’s courtroom presence until some time had

elapsed. The defendant maintains that on May 21,

Milewski indicated that he had no personal knowledge

about the defendant’s alleged drug operations.

The district court held that Milewski was not disquali-

fied from testifying because: (1) the government did not

consent, connive, procure Milewski’s presence; (2) the

}

A-57

government did not have active knowledge that

Milewski was in the courtroom during a part of

Wyman’s cross-examination; and (3) the witness had no

knowledge of Wyman or any matters relating to Wyman.

The defendant does not actually claim that the govern-

ment permitted, encouraged, or approved of Milewski's

coming into the courtroom. Rather, the defendant con-

tends that because the government subpoenaed

Milewski and instructed him to come to the courthouse

during the trial, the district court should have held the

government accountable for his going into the court-

room for a portion of a government witness’ testimony

and erred in not barring his testimony. It appears that

Milewski initially denied knowledge of the defendant's

drug activities, but upon his return after May 21, upon

governmental urging and assurances of immunity,

Milewski agreed to testify. While the government

counsel may not have revealed all the details in arguing

the defendant's motion to exclude Milewski's testimony,

we are Satisfied that the district court, under all the cir-

cumstances, in the absence of any government collu-

sion, did not abuse its discretion in permitting him to

testify despite his being in the courtroom during earlier

testimony.

The fact that Milewski also spoke to co-defendant

Jamil Ahmed, with the government's cooperation, while

the latter was in the course of his testimony, presents a

more difficult problem. Milewski indicated in his direct

testimony that he had changed his mind about impli-

cating himself and Rugiero in drug activities after

talking to codefendant Ahmed and speaking with his

lawyer. We recite the pertinent portions of the govern-

ment’s brief in this regard:

The prosecutor explained that he had planned

to have Milewski meet with Ahmed before

A-58

Ahmed testified, but Milewski failed to appear.

The prosecutor did not consider his actions to

be a circumvention of the sequestration order.

When Milewski finally showed up, the prosecutor

planned to demonstrate to Milewski that he had

a witness who would implicate Milewski in an

effort to persuade Milewski to seek counsel

before making any decisions. The prosecutor

explained that he was present during the discus-

sion with Ahmed, and that the discussion did

not include the fact that Ahmed had testified. ...

As he explained, “The representations made by

Ahmed, while they were made after his testi-

mony, could have been said the day before, the

week before, the month before. There was no

review of Ahmed’s testimony.”

Milewski’s description of his meeting with

Ahmed demonstrated that its purpose was not

to inform Milewski of the testimony that had

occurred in the trial, but to help him understand

his potential criminal liability so as to encourage

him to obtain legal counsel before making any

decisions that might lead to perjury charges.

In the fifteen to twenty minute conversation

with Ahmed, Ahmed reminded Milewski that they

had met before. He then told Milewski “[Y]ou’re

in this now, the only way that you’re going to get

out of this is by telling them the truth, tell them

what happened with you and Pat, and what hap-

pened with me and you.” Ahmed told him to'tell

the truth or he cold [sic] get caught for perjury.

... Milewski asked Ahmed if he had been caught

with dope. Ahmed responded “no” and explained

A-59

to him how conspiracy law worked. Milewski

explained that prior to Ahmed’s explanation he

had believed he could not be charged unless he

was actually caught with dope. At that point,

Milewski asked for legal counsel, all questioning

stopped, and the prosecutor instructed him on

how to obtain free legal counsel.

Milewski understood Ahmed’s statement to

mean he had not yet testified® . . . Milewski

admitted that but for the meeting with Ahmed,

he probably would have perjured himself on the

stand.

The government’s arranging of a meeting between a

prospective witness and a witness who was in the

process of cross-examination risked a violation of the

spirit, if not the letter, of the exclusion of the witness

rule. The defendant moved for a mistrial by reason of

these circumstances behind Milewski’s testimony,

claiming “an improper circumvention of Rule 615,” and

“a violation of the Court’s order on sequestration.”

After a hearing and some reflection, the district court

made the following finding:

The record seems now to be clear that — that

Ahmed did not relate any of his testimony to

9 Defendant Rugiero alleges that Ahmed told Milewski “his

‘name was brought up there’ [at trial].” ... The record, however,

reflects that Milewski stated that defense counsel LaRene, not

Ahmed, told him this:

Q. [MR. LARENE]: And also that this was the testimony

that [Ahmed] either had given or was going to give in

this trial?

A. [Milewski]: You told me that my name was brought up

there.

Q. Well, no, no, no. Mr. — Mr. Milewski —

Nhs pe Son ey See EN oe) eee we en Yh eee

A-60

Milewski. In fact, Milewski didn’t even know that

he had been a witness, but suspected or — or —

speculated that perhaps he might be cailed, at a

later point in the trial, to be a witness.

So under those circumstances and ir further

light of the fact that there was no specific

request made to, in this case, to bar a — a wit-

ness from discussing with another witness after

he leaves the courtroom, his testimony — | don't

think that’s the major reason for my ruling, ...

Basically, it is, however, a slight factor, but the

major point in my ruling is that | — i don't find

that Ahmed did relate to Milewski what his testi-

mony had been in this case, and therefore, under

those circumstances and on the basis that the

case iaw that | — to which I have referred, I’m

going to deny the defense motion in that regard.

We are not persuaded by the defendant's vigorous

argument that because the government subpoenae.l

Milewski in, the government, by reason of that fact,

triggered all the following problems involving the

sequestration rule. Neither are we satisfied by the gov-

ernment’s self-serving explanation and claimed justifica-

tion for bringing Milewski and Ahmed into face-toface

contact. The government, to be sure, had a right to

require Milewski’s presence at the courthouse as one

who purportedly had relevant information about the

indictment charges and it had a right to discuss with

him what he knew about the alleged conspiracy and the

defendants on trial. Bringing witnesses together in this

fashion, especially without the court’s consent, comes

very close to a per se violation of this ancient and

important rule of sequestration. But even if we count

this as a violation, especially when coupled with

Milewski’s prior presence during another witness’ testi-

Peedinenne se IY t+

A-61

mony, “[t]he controlling principle in this Circuit is that

violation of an order directing that witnesses be sepa-

rated does not automatically bar a witness’ testimony.”

Gibson, 675 F2d at 835-36. During trial, the district court

was fully apprised of the circumstances of Milewski’s

testimony and the government's part in, at least, a viola-

tion of the spirit of the sequestration rule and order. In

order to grant a new trial, we must find that t= uistrict

court not only abused it discretion, but also that the

court’s error was prejudicial to the defendant's

receiving a fair trial. Gibson, 675 F2d at 835-36. We are

not persuaded that the defendants have established

these requirements in light of the substantial other sim-

ilar evidence, equivalent to Milewski’s testimony, and

the wide discretion given the district court in making

such a ruling. See United States v. McClure, 734 E2d 484,

495 (10th Cir. 1984.). Finally, we find no clear error in

the factual! determinations on this issue made by the

district court, although we think it unnecessary, once

the rule is invoked, that either party need ask the court

to instruct each witness not to discuss his testimony

with another witness yet to testify.”

Although this issue is a close one, we find no prejudi-

cial error in the district court's rulings on Milewski's

testimony.

C. CRAFT’S TESTIMONY ABOUT

RUGIERO’S SEEKING TO KILL A FEDERAL AGENT

Rugiero asserts error in permitting witness Nathaniel

Craft to testify about a conversation in which he

allegedly inquired whether Craft would “take out” a fed-

10 Attorneys know, without such construction, that witnesses

who have testified when the sequestration rule is in effect should

not discuss the substance of their testimony with a witness who has

not yet given testimony. The role is designed to prevent “tailoring

testimony.” Gibson, 675 F.2d at 836.

A-62

eral agent. Rugiero objects to Craft's being “improperly

called before the grand jury” about this incident after

Rugiero was indicted on the charges subject to this

appeal. He also claims this post-indictment conversation

violated his right to counsel and that such evidence

was unduly and unfairly prejudicial. In essence, Rugiero

claims that calling Craft before the grand jury was an

abuse of its process because no new indictment fol-

lowed this testimony, and this procedure was used

improperly to “anchor the testimony of the witness.” We

find no error, under the circumstances, in the district

court’s finding that the government had a legitimate

purpose in calling Craft before the grand jury. “So long

as it is not the sole or dominant purpose of the grand

jury to discover facts relating to a defendant’s pending

indictment, the Court may not interfere with a grand

jury's investigation.” United States v. George, 444 F2d 310,

314 (6th Cir. 1971). The burden is on Rugiero to demon-

strate that there are in fact irregularities. “The law pre-

sumes, absent a strong showing to the contrary, that a

grand jury acts within the legitimate scope of its

300 (1991). Craft did testity about pre-indictment mat-

ters, but he also gave substantial testimony about

threats to a government agent after the indictment. We

do not conclude that Rugiero has shown a wrongful

“dominant purpose” in this regard.

The district court found that Rugiero had initiated

the conversation with Craft and that the government

had not arranged the meeting. While the testimony in

question was doubtless prejudicial to Rugiero, we

cannot say the district court was clearly in error or

abused its discretion in admitting this evidence. The

district court is granted considerable deference in

deciding difficult Fed. R. Evid. 404(b) matters and

weighing relevance versus undue prejudice. The jury

Aes WEE Aste Bee pe Rly ND Ait CAB BP oy = Be

Seibert eA” hema L er dibels

A-63

did not convict Rugiero on the violence or weapon

counts. We find this challenge also to be without merit —

under all the circumstances.

We have considered carefully all the contentions of

the defendant Rugiero. As in the case of co-defendant

Basmajian, we are not persuaded that any reversible

error has been demonstrated.

We, accordingly, AFFIRM the respective convictions

and sentences.

MERRITT, Chief Judge, dissenting.

| would reverse Rugiero’s conviction because of the

prosecutor's violation of the sequestration rule. The

Court is right to suggest that the prosecutor obviously

violated the rule by not keeping Milewski out of the

courtroom while under subpoena to testify and by

staging a confrontation and conversation between him

and a witness who was testifying. The obvious purpose

of this confrontation was to get Milewski to testify in a

way that would be consistent with the testimony of the

witness who was then on the stand, The witness on the

stand told Milewski facts that the government wanted

Milewski to testify to, Milewski then did so testify. This

is too much of a violation to condone or to sweep

under the “harmless error” rug. We are always reluc-

tant, as we should be, to set aside a verdict on a techni-

cality when it is fairly clear that the defendant is guilty

and may have been convicted anyway. But if prosecu-

tors know that in such circumstances we will always

overlook egregious transgressions they will then have

no incentive to play ball by the rules, The “war on

drugs” of the last decade has emboldened many prose-

cutors to believe that they are immune from normal

rules of procedure in criminal cases. In our zest to

A-64

incarcerate, we are in danger of losing the rule of law,

This is such an obvious and notorious violation in this

case that | would reverse and remand for a new trial.

A-65

ORDER DENYING PETITION FOR REHEARING EN BANC

AND PETITION FOR REHEARING |

(United States Court of Appeals — Sixth Circuit)

(Filed May 5, 1994)

(UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

PATRICK RUGIERO, Defendant-Appellant — No. 92-2412)

BEFORE: MERRITT, Chief Judge; SUHRHEINRICH, Circuit

Judge; and WELLFORD, Senior Circuit Judge.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only

to the original panel members but also to all other

active judges of this court, and no judge of this court

having requested a vote on the suggestion for rehearing

en banc, the petition for rehearing has been referred to

the original hearing panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original submis-

sion and decision of the case. Accordingly, the petition

is denied. Judge Merritt would grant rehearing for the

reasons stated in his dissent.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green,

Clerk

A-66

TRANSCRIPTIONS OF RADIO TV REPORTS

FROM NEWSBEAT INVESTIGATION DATED JUNE 17, 1992 AT 6:00 P.M.,

AND NIGHTBEAT FEDERAL INVESTIGATION DATED JUNE 17, 1992, AT 11:00 P.M

RADIO TV REPORTS

42400 GRAND RIVER AVENUE, SUITE 110

FOR: BUFALINO AND PALAZZOLO

PROGRAM: Newsbeat STATION: WDIV-TV

DATE: June 17, 1992 6:00pm_ CITY: Detroit

NEWSBEAT INVESTIGATION

EMERY KING: A Newsbeat investigation has ievealed

tonight that a well-known Detroit attorney is the target

of a federal investigation, in a story you'll see only on

Four, several sources tell the Newsbeat that the case

involves the attorney’s dealings with a client who has

been tied to organized crime. Our Chris Hansen has

that story.

CHRIS HANSEN: Deday Larene is the most prominent

criminal defense attorneys [sic] in the Detroit area, now

numerous well-informed sources say he has become a

target himself of a federal criminal investigation.

The case involves one of his former clients, long tied to

gambling and organized crime, Vito “Billy Jack”

Giacalone. Giacalone just recently got out of federal

prison, according to sources familiar with the investi-

gation, the feds have evidence that Larene helped

engineer a business deal for Giacalone in which a sub-

stantial amount of money was hidden from the Internal

Revenue Service. When | approached Larene today on

the investigation he refused to comment

Sources close to the case have indicated to the News-

beat that the investigation is completed and that the

feds are just now waiting until Deday Larene finishes up

A-67

with a trial now going on here in federal court. wsiansa

cally some of the federal evidence in the case, was,

according to sources, provided by this man Emmett

Denha (7), Denha recently pleaded guilty in a huge

sports betting case and agreed to cooperate with the

feds in exchange for lenient sentencing, Denha’s store

was allegedly used to launder some of the money

involved in Giacalone’s questionable financial deal.

Deday Larene also represented Giacalone’s son, Jackie

Giacalone, who recently pleaded guilty in the same

sports betting case in which Denha was originally

indicted.

We tried to contact U.S. attorney Steven Markman on

this story today. We got in touch with him but he

refused to confirm or deny the scenario, but the News-

beat has learned that Larene has apparently contacted

a high-powered law firm in Washington, D.C., famous for

its criminal work. That to help him in this investigation.

Emery.

KING: All right Chris, thank you. Chris Hansen

reporting live tonight from the federal building in down-

town Detroit.

A-68

RADIO TV REPORTS

42400 GRAND RIVER AVENUE, SUITE 110 ;

NOVI, MI 48375 ¢ (313) 344-1177 ¢ FAX (313) 344-1730 :

FOR: BUFALINO AND PALAZZOLO

PROGRAM: Nightbeat STATION: WDIV-TV

DATE: June 17, 1992 11:00pm _ CITY: Detroit

FEDERAL INVESTIGATION

NEWSCASTER: A well-known Detroit-area criminal

defense attorney soon may be on the defensive himself.

The Nightbeat’s Chris Hansen has learned that Deday

Larene is the target of a federal investigation. Larene

has represented a large number of alleged organized

crime figures, sources say federal agents have evidence

Larene helped engineer a business deal for Vito “Billy

Jack” Giacalone, in which a large amount of money was

hidden from the IRS. Larene refused to comment on the

report, but sources say he may ask a Washington law

firm to defend him if needed.

” a! hea i

or erm y oa

ee ee ee oy Oe ae ed tl ae ence

- j he a % ape a This

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.