United States of America, Appellee, v. Anthony M. Grieco, Appellant, 261 F.2d 414 (2d Cir. 1958)

Grieco appeals from an order of the District Court for the Southern District of New York (Levet, J. presiding), denying a motion for a new trial after conviction under an indictment, charging him in eight counts with embezzlement from the mails and in a ninth count with conspiracy. After judgment upon this indictment he changed his plea of not guilty to a plea of guilty upon another indictment, charging him with making false statements in violation of § 1001, of Title 18 U.S.C., and when he moved for a new trial upon the first indictment he joined with it a motion to restore his former plea of not guilty upon the second indictment. The ground alleged for a new trial upon the first indictment is that five days after the judgment had been entered, one of the jurors, a woman, wrote a letter to Judge Levet in which she declared that she had wished to vote for acquittal, but being the only juror who did, another juror, a man, was "very abusive," so much so that she was "shaking and crying" when she finally agreed to concur with the rest, and that she now wished "to retract." Judge Levet held a hearing at which both parties attended and he examined this juror, the upshot of whose testimony appears in the margin.¹  Judge Levet, having concluded his examination, refused to allow the defendant's attorney to examine her, and denied the motion for a new trial.

As is well known, it was long the rule that a court would refuse to inquire in any way whatever as to what had occurred during the jury's deliberations. It is true that the rigidity of this doctrine has been relaxed, as appears, for example, in Mattox v. United States, 1892, 146 U.S. 140, 13 S. Ct. 50, 36 L. Ed. 917, where a newspaper article, prejudicial to the accused, was brought into the jury room. As was said in McDonald v. Pless, 1915, 238 U.S. 264, 268-269, 35 S. Ct. 783, 785, 59 L. Ed. 1300, "it would not be safe to lay down any inflexible rule because there might be instances in which" the "testimony of the juror could not be excluded without `violating the plainest principles of justice.'" And yet in that case the motion was denied, although the amount of the verdict had been the result of averaging the several amounts severally awarded by the jurors. We do not say that there can be no threats short of violence by one juror against a recalcitrant dissenter that will upset a verdict, but certainly there was nothing in the case at bar to justify such action. So far as appears, it was only the blustering arrogance of her fellow that so agitated the juror that, after she had later had time to reflect, she concluded that she had not voluntarily concurred in the verdict. In Rotondo v. Isthmian Steamship Co., 2 Cir., 1957, 243 F.2d 581, 583, we said that it was "not indeed because the verdict would, or could, servive the facts if they were disclosed; but because the law will not permit a decision to be reopened to which all have assented." Again in Jorgensen v. York Ice Machinery Corp., 2 Cir., 1947, 160 F.2d 432, 435, we said that "it would be impracticable to impose the counsel of absolute perfection that no verdict shall stand, unless every juror has been entirely without bias, and has based his vote only upon evidence he has heard in court." It is not possible to determine mental processes of jurors by the strict tests available in an experiment in physics; we have to deal with human beings, whose opinions are inevitably to some extent subject to emotional controls that are beyond any accessible scrutiny.

The appellant's motion to be allowed to withdraw his plea of guilty to the second indictment is too baseless to require discussion.

Orders affirmed.