United States v. Bertoli, 854 F. Supp. 975 (D.N.J. 1994)
U.S. District Court for the District of New Jersey – 854 F. Supp. 975 (D.N.J. 1994)
March 30, 1994
c. The Riepe Letter
On 7 March 1994, Bertoli submitted new evidence which he contends warrants a further hearing on the issue of Juror Six’s asserted misconduct. This new evidence *1105 consists of a letter from John Riepe (“Riepe”) to Levitt, dated 4 March 1994 (the “Riepe Letter”). In the Riepe Letter, Riepe purports to be “engaged in a literary project focusing on the emotional impact courtroom proceedings have on jurors, and the way in which they reach decisions or verdicts.” Riepe Letter, attached to Levitt Aff. as Exhibit E, at 1.
Riepe states that, in connection with this “literary project,” he pursued and interviewed at least one juror in Bertoli’s case (“Juror Two”). Attached to the Riepe Letter are notes of an interview between Riepe and Juror Two, held 1 February 1994 (the “Riepe Notes”). It is the Riepe Notes which Bertoli relies upon in requesting a further hearing into Juror Six’s asserted misconduct. See 7 March 1994 Bertoli Brief at 8, 16.
According to the Riepe Notes, Juror Two disclosed to Riepe several details concerning the private deliberations of the jury in this case. Bertoli makes specific reference to the following passages:
In the beginning, we all felt that Bertoli was clean. After a while, I (and others) felt that Bertoli had to be a little dirty to be involved in all this, but not to the extent that the [G]overnment had proved in their case. There was one woman ([Juror Six]) who insisted that he was dirty and guilty from the very beginning. I don’t know why the [G]overnment was so intent on putting this guy away when the witnesses for the [G]overnment seemed to be far guiltier than he was. But this woman ([Juror Six]) didn’t like him from the beginning. And there were times during the trial when I felt that [Juror Six] wasn’t even listening. On occasion, there were multiple jurors sleeping. [Juror Six] was one of the ones who slept.
I got upset with [Juror Six]. We were repeatedly voting without conclusion and I thought the judge would think that we were brain-dead because we couldn’t reach a decision. …
[Juror Six] had three people thrown off the jury because she said they tried to influence the rest of us. She went to the *1106 judge to tell him that these jurors were saying that this man was innocent, and were prejudicial [sic], while she herself had been saying he was guilty from the beginning. She was pretty much guilty of all the things she said they were guilty of but she went to the judge first. The judge said he believed the statements of the accused jurors but released them for the sake of the court. The other jurors in the courtroom didn’t even know what was going on. If the judge was going to disqualify these jurors, he should have disqualified [Juror Six] as well.
[Juror Six] was a very dramatic person. She had to be the center of attention. She claimed she was taking medication for sugar and made a big production of everything. Some or us were under the impression that she was dragging out the trial for the $40 per day, and because she probably had nothing else to do.
Riepe Notes at 2-3.
Bertoli argues the comments of Juror Two, as described in the Riepe Notes, indicate misconduct on the part of Juror Six in that she “repeatedly expressed opinions regarding … Bertoli’s guilt to other jurors during the trial.” 7 March 1994 Bertoli Brief at 16. Bertoli argues, therefore, that the Riepe Notes warrant a new trial or, in the alternative, “a hearing at which all knowledgeable persons should be called upon to testify.” 7 March 1994 Bertoli Brief at 16.
Impeachment of the Verdict: Rule 606(b)
Federal Rule of Evidence 606(b) provides, in full:
Inquiry into validity of verdict or indictment. 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 deliberations or 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 indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question 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 statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
Fed.R.Evid. 606(b) (emphasis added).
As the Supreme Court has noted, Rule 606(b) “is grounded in the common-law rule against admission of jury testimony to impeach a verdict and the exception for juror testimony relating to extraneous influences.” Tanner, 483 U.S. at 121, 107 S.Ct. at 2748. The rule recognizes that a jury’s verdict may not be impeached by a juror’s testimony as to “`internal’ rather than `external’ matters.” Id. at 118, 107 S.Ct. at 2746.
Elaborating on this distinction, the Court has explained that, under Rule 606(b), a juror can
testify as to the influence of extraneous prejudicial information brought to the jury’s attention (e.g. a radio newscast or a newspaper account) or an outside influence which improperly had been brought to bear upon a juror (e.g. a threat to the safety of a member of his family), but he [can]not testify as to other irregularities which occurred in the jury room.
Id. at 123, 107 S.Ct. at 2749 (quoting H.R.Rep. No. 93-6450 at 9-10 (1973)) (emphasis added); see United States v. Black, 843 F.2d 1456, 1464 n. 7 (D.C.Cir.1988) (Under rationale of Tanner and Rule 606(b), a juror’s affidavit or testimony “is incompetent to impeach the verdict for internal error; juror affidavits [or testimony] may only be used for the narrow purpose of showing `extraneous influence,’ such as prejudicial publicity.”); Government of the Virgin Islands v. Nicholas, 759 F.2d 1073, 1080 (3d Cir.1985) (adopting identical reading of Rule 606(b) on *1107 rationale that “[i]t is obvious that the drafters of the rule were primarily concerned with jury tampering or improper communications to the jury …”).
Where allegations of juror misconduct are based solely on juror testimony as to `internal’ matters, which testimony would be inadmissible under Rule 606(b), a post-verdict evidentiary hearing is not required with respect to such allegations. See Tanner, 483 U.S. at 127, 107 S.Ct. at 2751; Gilsenan, 949 F.2d at 97; Nicholas, 759 F.2d at 1081; see also United States v. O’Brien, 972 F.2d 12, 14 (1st Cir.1992) (“Only communications between jurors and others which concern the case require further inquiry.”).
It has consistently been held that premature deliberations or improper jury discussions do not constitute “extraneous” irregularities, and testimony regarding such deliberations or discussions may not be received from jurors. See United States v. Cuthel, 903 F.2d 1381, 1382-83 (11th Cir. 1990) (“evidence of premature deliberation” could not be the subject of post-verdict inquiry because “there was no allegation of extraneous prejudicial information being brought to the jury’s attention; nor was there evidence of improper outside influence sufficient to warrant an inquiry”); Chiantese, 582 F.2d at 979 (juror’s remark during trial that defense attorney was “stupid” and “a pain in the ___ [sic]” did not require evidentiary hearing because “there was no outside influence”); United States v. Williams-Davis, 821 F.Supp. 727, 741 (D.D.C.1993) (juror discussions of case prior to deliberations did not require a hearing because such discussions were not extraneous influence under Rule 606(b)); United States v. Oshatz, 715 F.Supp. 74, 76 (S.D.N.Y.1989) (Juror’s testimony that other jurors “had made up their minds” after testimony of Government’s chief witness was inadmissible as internal matter under Rule 606(b)); see also United States v. Casamayor, 837 F.2d 1509, 1515 (11th Cir.1988) (“[T]he alleged harassment or intimidation of one juror by another would not be competent evidence to impeach the verdict under Rule 606(b)….”), cert. denied sub nom. Barker v. United States, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989).
Applying these principles to the facts at bar, none of the facts alleged in the Riepe Letter or the Riepe Notes would be admissible to impeach Bertoli’s guilty verdict. Every allegation supposedly made by Juror Two in the Riepe Notes concerns internal matters about which jurors would be incompetent to testify pursuant to Rule 606(b). As stated, Bertoli relies solely on Juror Two’s allegations as to comments made, and views held, by Juror Six prior to deliberations. See Riepe Notes at 2-3; 7 March 1994 Bertoli Brief at 16. Such comments and views do not constitute external influences under Rule 606(b). See Oshatz, 715 F.Supp. at 76. The testimony of Juror Two, or of any other juror, regarding such statements by Juror Six would be inadmissible to impeach the verdict. Id. Accordingly, neither a new trial nor an evidentiary hearing is warranted by Juror Two’s allegations as set forth in the Riepe Notes.
Bertoli does not appear to argue a hearing is warranted by Juror Two’s allegations that other jurors were sleeping and otherwise inattentive during trial. Riepe Notes at 2. To the extent he does, his argument fails on both factual and legal grounds. As a factual matter, any assertion that jurors were sleeping during testimony in Bertoli’s trial is simply inaccurate. All parts of the jury box are in plain view of the court and the parties; any juror sleeping while testimony was being taken would have been conspicuous and noticed immediately. The court observed no jurors sleeping, either while testimony was being taken or at any other time during trial. Nor did the parties bring any such occurrence to the court’s attention. Throughout trial, in fact, the jurors and alternates were observed to be alert and attentive. Any assertion to the contrary lacks credibility. See United States v. Hernandez, 921 F.2d 1569, 1577-78 (11th Cir.) (where trial judge found, in response to defense assertions of juror inattentiveness, that “no jurors had been asleep at trial,” refusal to investigate issue further was well within discretion of trial court), cert. denied sub nom. Tape v. United States, 500 U.S. 958, 111 S.Ct. 2271, 114 L.Ed.2d 722 (1991); see United States v.*1108Key, 717 F.2d 1206, 1209 (8th Cir.1983) (same).
Any testimony, moreover, by Juror Two regarding sleeping jurors would be incompetent to impeach the verdict. A juror’s testimony that other jurors were sleeping or inattentive during trial does not concern “extraneous” influences and is therefore inadmissible under Rule 606(b). See Tanner, 483 U.S. at 121, 107 S.Ct. at 2748 (“[U]nder Rule 606(b), `proof to the following effects is excludable …: that one or more jurors was inattentive during trial or deliberations, sleeping or thinking about other matters.'”) (quoting 3 D. Lousell & C. Mueller, Federal Evidence § 287 at 121-25 (1979)); see also Nicholas, 759 F.2d at 1078 (“[Q]uestions concerning the competency of a jury ordinarily are not entertained once the jury has rendered its verdict.”).
Only jurors could testify, based on personal knowledge, regarding the issues raised by Juror Two in the Riepe Letter and Riepe Notes. As stated, none of these issues concern “extraneous” influences within the meaning of Rule 606(b). Therefore, any testimony regarding the issues raised in the Riepe Letter and Riepe Notes would be inadmissible to impeach the verdict in this case.See Tanner, 483 U.S. at 123, 107 S.Ct. at 2749. Under these facts, neither a new trial nor an evidentiary hearing is warranted by the Riepe Letter and Riepe Notes. Id.
 Both Riepe and Levitt have identified Juror Two by name. However, because this opinion is intended for publication, Juror Two’s name is withheld in the interest of her privacy.
 In introducing the Riepe Letter, Levitt certified that Riepe is “an independent writer….” Levitt Aff., ¶ 1. Levitt further certified the Riepe Notes reflect “interviews and related interviews independently conducted by Riepe with jurors. …” Id.
Evidence submitted by the Government, however, casts significant doubt on the representations of Levitt in this regard. Specifically, it appears Riepe has had significant prior contact with Bertoli. An investigation by the Government has revealed Riepe as the former press secretary to Wally Lindsley (“Lindsley”), mayor of Weehawken, New Jersey from 1980 through 1982. 16 Mar. 1994 Cahill Aff., ¶ 1. Riepe has also been identified as Lindsley’s “spokesman.” Id., Ex. 2. Lindsley was convicted of a violation of the Hobbs Act in this district in 1983 (the “Lindsley Prosecution”). Id.
Lindsley and Bertoli have an extensive and well-documented relationship. In 1984, Lindsley testified on Bertoli’s behalf in connection with the SEC Investigation. During this testimony, Lindsley stated that, as of 1984, he had known Bertoli for five years. 16 Mar. 1994 Cahill Aff., Ex. 3 at 23. Lindsley further testified he “admire[d]” Bertoli, and considered him a “God-fearing scholar.” Id. at 24. Lindsley also testified he borrowed $10,000 from Bertoli to finance his defense in the Lindsley Prosecution. Id. at 52. During the Lindsley Prosecution, Lindsley confirmed on cross-examination that Bertoli “was a family friend.” Id., Ex. 4.
Bertoli has continued to demonstrate his close relationship with Lindsley in the instant proceedings. In connection with his continuing efforts to introduce evidence of vindictive prosecution to the jury, Bertoli has made repeated reference to this relationship. For example, in the 19 January 1994 Bertoli Brief, Bertoli stated that, if permitted, he “would have introduced evidence that the [G]overnment targeted Bertoli because he … provided assistance to former Weehawken Mayor … Lindsley when Lindsley was prosecuted. …” Id. at 7; see Affidavit of Bertoli, dated 13 March 1992, in Support of Motion to Dismiss Indictment on Grounds of Vindictive and Selective Prosecution, ¶ 12A (“The affiant caused substantial family funds to be loaned to Lindsley to retain his counsel….”).
 An irregularity need not occur inside the jury room, in the physical sense, in order to be considered `internal.’ Rather, the distinction focuses on whether the irregularity or influence involves jurors alone, or other non-jury influences as well. Thus, in Tanner, the Supreme Court determined that “juror intoxication is not an `outside influence’ about which jurors may testify to impeach the verdict.” 483 U.S. at 125, 107 S.Ct. at 2750.
 The Riepe Letter and Riepe Notes themselves lack credibility. As indicated, Bertoli and Riepe have a substantial relationship through their close friendships with Lindsley. See supra note 208. It appears Bertoli, through Levitt, sought to conceal this relationship by representing that Riepe is “an independent writer” who conducted juror interviews on his own initiative. Levitt Aff., ¶ 1. In light of Bertoli’s extensive relationship with Riepe, it is highly unlikely that Riepe’s decision to interview jurors in Bertoli’s case was pure coincidence. Because it appears the Riepe Letter and Riepe Notes were the result of collusion between Bertoli and Riepe, these documents cannot be deemed credible.
Accordingly, the Riepe Letter and Riepe Notes cannot provide a basis for a new trial or evidentiary hearing. See Kelly, 749 F.2d at 1551-52 (where court found allegations of juror bias to lack credibility, it was within its discretion to deny request for evidentiary hearing to examine juror bias); see also Caldwell, 776 F.2d at 998 (“The more speculative or unsubstantiated the allegation of misconduct, the less the burden to investigate.”).
Levitt’s actions in concealing the relationship between Riepe and Bertoli from the court raise potential concerns of a different nature. Rule 19B of the General Rules for the District of New Jersey prohibits an attorney or party, either “personally or through any investigator or other person acting for such attorney or party,” from interviewing, examining or questioning any juror during the pendency of the trial without leave of the court. Though the issue need not be decided at this juncture, the facts before the court suggest this Rule may have been violated.