573 F.

2d 752
2 Fed. R. Evid. Serv. 1330

UNITED STATES of America, Appellee,

v.
William H. HOCKRIDGE, Charles Petri and Stephen K.
Easton, Appellants.
Nos. 441, 443, 522, Dockets 77-1243, 77-1258, 77-1285.

United States Court of Appeals,

Second Circuit.
Argued Dec. 14, 1977.
Decided March 27, 1978.

Irving Anolik, New York City, for appellant Hockridge.

Robert S. Cohen, Lans Feinberg & Cohen, New York City (Deborah E.
Lans, New York City, of counsel), for appellant Easton.
Daniel J. Kornstein, New York City, for appellant Petri.
Dominic F. Amorosa, Asst. U. S. Atty., New York City (Robert B. Fiske,
Jr., U. S. Atty., S.D.N.Y., David W. O'Connor, Richard Weinberg, Asst.
U. S. Attys., New York City, of counsel), for appellee.
Before OAKES and VAN GRAAFEILAND, Circuit Judges, and
BARTELS, District Judge.*
OAKES, Circuit Judge:

The principal issue raised in this appeal is the propriety of the district court's
refusal to permit two jurors to impeach a partial verdict. Questions of
sufficiency of the evidence with respect to appellant Hockridge, jury bias,
adequacy of the conspiracy instructions, purported withholding of evidence by
the Government, and erroneous evidentiary rulings are also presented, but each
merits only limited discussion.
Appellants Hockridge, Petri and Easton challenge the judgments of conviction

Appellants Hockridge, Petri and Easton challenge the judgments of conviction

entered after an eight-week jury trial in the United States District Court for the
Southern District of New York before Dudley B. Bonsal, Judge. Under Count
One of the indictment all three appellants were convicted of conspiracy1 (a) to
misapply moneys of the Chemical Bank (Chemical), Hockridge's employer, (b)
to prepare and submit false financial statements for the purpose of obtaining
loans from Chemical and from the Bank of New York, and (c) to make false
entries in Chemical's books and reports. They also were found guilty of a
substantive count Count Two charging misapplication and assisting in the
misapplication of approximately $1,145,000 in Chemical funds.2 Petri, the
owner of various shell companies and a borrower from Chemical, was also
convicted of substantive Count Eight for preparing a false financial statement of
the Oceanic Drug Co. for the purpose of influencing Chemical to loan $75,000
to that company.3 Hockridge and Easton were acquitted on the Oceanic Drug
count, as were all three appellants on Counts Three, Four, Ten through
Fourteen, Seventeen, Twenty and Twenty-one. The jury was discharged on
February 18, 1977, without having reached verdicts on the remaining counts. 4

I. FACTS
3

From September, 1971, through the middle of June, 1972, Petri borrowed in
excess of $1,300,000 from Chemical.5 On over twenty occasions, loans were
made to worthless corporations owned in whole or in part by a "miniconglomerate" controlled by Petri known after November 24, 1971, as CinePrime Corp. Chemical ultimately lost over $1,100,000 on these loans.

Petri effected his scheme with the assistance of Hockridge who, as an assistant
vice president and loan officer at Chemical, used his authority6 to grant
unsecured loans to Petri's corporations. Petri originally enticed Hockridge into
the conspiracy by satisfying $35,000 in loans which the latter had previously
approved to one Daniel Sheddrick. 7 Petri subsequently paid off $23,000 in
overdue personal loans that Hockridge had approved to a codefendant, George
Whitney. Petri also remunerated Hockridge more directly by diverting $14,000
of a $75,000 loan Hockridge had approved for one of Petri's companies to
Hockridge's checking account in March, 1972.8 Petri also provided Hockridge
with other bribes and gratuities including, but not limited to, stock in CinePrime Corp. held by a nominee, a $3,000 mink coat for Hockridge's wife,
sexual favors of a woman paid for the purpose, a pool table and golf clubs.

For all but two of the corporate loans approved by Hockridge, Easton, an
officer in several of Petri's worthless companies, prepared unsigned corporate
financial statements submitted to Chemical. Some of these listed non-existent
assets. For example, Cord Automobile Co., acquired in bankruptcy for $100,

was shown to have more than $260,000 in assets. One statement, that of Todays
Stores Services, was dated even before the corporation was formed. Others
were false in various particulars.
II. DISCUSSION
A. Sufficiency as to Hockridge
6

Only Hockridge disputes the sufficiency of the Government's proof. Viewing

the evidence in the light most favorable to the Government, Glasser v. United
States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v.
Falcone, 544 F.2d 607, 610 (2d Cir. 1976), cert. denied, 430 U.S. 916, 97 S.Ct.
1329, 51 L.Ed.2d 595 (1977), we conclude that the evidence supports
Hockridge's conviction on both the conspiracy and the substantive counts.

The Government's proof at trial focused on four areas. First, the evidence
permitted the jury to find that Hockridge knew that the financial statements
submitted on behalf of Petri's corporations were false.9 Second, the jury
properly could have found that Hockridge completed false or fictitious
documents in connection with several of the loans.10 Third, the Government's
proof demonstrated that Hockridge knowingly violated the bank's "group
credits rule" by approving loans in excess of his credit authority to two or more
corporations controlled by the same party without approval of other lending
officers. And finally, Hockridge received the substantial bribes and gratuities
detailed above.11 Clearly, the evidence was more than sufficient.

B. Alleged Jury Bias or Misconduct

8

All three appellants assert that the jury was infected with prejudice before the
deliberations even began. On the fifth day of an eight-week trial, Juror Number
Three reported to the judge that several other jurors had remarked that the
defendants were guilty. She noted, however, that the jurors were "not speaking
about the case per se," whatever that meant. The district judge proceeded to
interview each juror individually in camera. Several said that they had heard
nothing of the kind, although six reported that someone had made a passing
reference, in jest, to the subject of the defendants' guilt. Each averred that he or
she would not form any opinion of guilt or innocence until all the evidence was
presented. Each further recognized the necessity of not talking about the case.

In treating charges of jury misconduct, the trial judge is accorded broad

discretion. United States v. Panebianco, 543 F.2d 447, 457 (2d Cir. 1976), cert.
denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L.Ed.2d 553 (1977); United States v.

Flynn, 216 F.2d 354, 372 (2d Cir. 1954), cert. denied, 348 U.S. 909, 75 S.Ct.
295, 99 L.Ed. 713 (1955); see Note, The United States Courts of Appeals:
1975-1976 Term Criminal Law and Procedure,65 Geo.L.J. 203, 370-71 (1976).
A criminal trial is of course no place for bias or prejudice, even "in jest." And
faced with the threat of bias, Judge Bonsal acted properly in conducting the in
camera interviews. If one juror had been contaminated, the district judge's
prompt action could have contained any spread of the taint. United States v.
Torres, 519 F.2d 723, 727-28 (2d Cir.) ("expeditious" voir dire after defendants
seen in handcuffs minimized harm where all jurors but one assured judge of
continuing impartiality; unsure juror excused), cert. denied, 423 U.S. 1019, 96
S.Ct. 457, 46 L.Ed.2d 392 (1975); cf. United States v. Lord, 565 F.2d 831, 83739 (2d Cir. 1977) (in camera individual interrogation of juror exposed to
prejudicial publicity during trial required); United States v. Pfingst, 477 F.2d
177, 186 (2d Cir.) (individual jurors examined on exposure to prejudicial
publicity), cert. denied, 412 U.S. 941, 93 S.Ct. 2779, 37 L.Ed.2d 400 (1973);
but cf. United States v. Taylor, 562 F.2d 1345, 1359-60 (2d Cir.) (omission to
conduct individual voir dire where jury may have seen defendants in manacles
not plain error), cert. denied sub nom. Salley v. United States, 432 U.S. 909, 97
S.Ct. 2958, 53 L.Ed.2d 1083 (1977).
10

Likewise, on the basis of the jurors' interview statements, it was not an abuse of
discretion to continue the trial upon concluding that the jurors were not
prejudiced, a determination which the district judge was in the best position to
make. See United States v. Bando, 244 F.2d 833, 838 (2d Cir.), cert. denied,
355 U.S. 844, 78 S.Ct. 67, 2 L.Ed.2d 53 (1957); cf. United States v. Chiarizio,
525 F.2d 289, 293 (2d Cir. 1975) (factual findings at pretrial suppression
hearing are reversible on appeal only if clearly erroneous); 3 C. Wright, Federal
Practice and Procedure 678, at 143 (1969) (same).

C. Juror Impeachment of Partial Verdict

11

Appellants' principal contention is best understood in its specific factual

context. The jury began deliberations on Friday morning, February 11, 1977,
and continued until 9:30 that evening. Reconvening on Monday morning,
February 14, it deliberated until about 6:30 p. m. when the court informed
counsel that it would exercise its prerogative under Rule 31(b) of the Federal
Rules of Criminal Procedure12 to ask the jury whether it had reached a partial
verdict. The jurors responded affirmatively, announcing their verdict of guilty
on Count One. After the jurors were polled, the guilty verdicts were recorded.
Deliberations resumed on Tuesday, February 15. At about 5:00 p. m., the judge
received a note from Juror Number Four asking to see him, a request with
which he did not immediately comply. The following morning at about 9:30 a.

m. he received a note from Juror Number Three. She also sought a meeting
with the judge, fearing that she had committed "a grave injustice" by rushing
into the verdict.
12

With consent of counsel, the judge conducted an on-the-record in camera

interview with Jurors Three and Four. During the questioning both jurors
expressed their concern with the partial verdict. Juror Number Three believed
that "there was not evidence to make (her) decide that Mr. Hockridge and Mr.
Petri were involved in a conspiracy." Juror Number Four expressed doubts
about Easton's guilt and indicated that she "felt like (at) the last minute we were
railroaded. . . ." 13 The judge reminded the two jurors that he did not want them
"ever to surrender (their) honest convictions." Juror Number Three replied that
she thought she had done so "because of verbal attack." The judge urged her "to
get hardened to that," to "think about this some more," and to consider each
defendant separately. He then said:

13 did come in with a verdict on three of them. I would like you to think about that
You
and resume your deliberations and then we'll see how it goes today with the
deliberations and then perhaps after we finish here I will want to see you again.
Juror No. 3: I don't understand what you mean. Continue the deliberating
14
15 Court: After the jury finishes, I think I will want to see you again and talk again
The
about some of these things that you have told me this morning. But I think it would
be wise if both of you could go back with the jurors.
16

The jurors then resumed deliberations and never again intimated any doubts of
appellants' guilt on Count One. Indeed, they acquitted a codefendant on Count
One that day. On Thursday, February 17, the jury announced its findings that
the three appellants were guilty and a codefendant innocent on Count Two, and
that all defendants were not guilty on Counts Three and Four. On the sixth and
last day of deliberations, Friday, February 18, the jury announced partial
verdicts of not guilty as to all three appellants on nine more counts with the
exception of Petri who was found guilty on Count Eight. The jury was
discharged without reaching verdicts on the remaining counts even though
there was no indication that it was deadlocked.

17

In response to formal post-trial motions to set aside the verdicts, Judge Bonsal
held that the jurors' in camera interview statements could not affect their verdict
on Count One. Alternatively, the judge concluded that the two jurors did not
"surrender their honest convictions" in finding the appellants guilty on that
count.

18

Challenging the district judge's adverse ruling, appellants argue vigorously that
the statements of the jurors were competent to impeach the verdict on Count
One for essentially two reasons. First, the jury had not been discharged, thereby
making Rule 606(b) of the Federal Rules of Evidence14 inapposite. Second,
when a juror has surrendered "a conscientious conviction," the verdict must be
set aside since it was not unanimous. Grace Lines, Inc. v. Motley, 439 F.2d
1028, 1032 (2d Cir. 1971); see United States v. Pleva, 66 F.2d 529, 531-33 (2d
Cir. 1933); 6A Moore's Federal Practice P 59.08(4), at 127-28 (1974).

19

Neither the cases nor the treatises definitely answer the question whether Rule
606(b) bars the impeachment of a partial verdict by the voluntary and
spontaneous testimony of a juror prior to the jury's discharge. In Vizzini v. Ford
Motor Co., 72 F.R.D. 132 (E.D.Pa.1976), relied on by the Government, the jury
returned a verdict of liability to a civil plaintiff which was recorded, but during
deliberations on damages it revealed that the liability verdict was a
compromise. The district court let the verdict on liability stand, relying on Rule
606(b), and submitted the question of damages to a new jury. The Third Circuit
reversed, 569 F.2d 754 (3d Cir., filed Dec. 16, 1977), but reserved decision on
the Rule 606(b) question, holding that the issues of liability and damages were
so related as not to permit severability.15 The appellants' cases are equally
inconclusive.16 Even the leading treatises ignore the relationship between Rule
606(b) and partial verdicts after which a jury continues its deliberations.17

20

To buttress appellants' purported distinction between impeachment of complete

verdicts on the one hand and partial verdicts followed by continuing
deliberations on the other, they suggest that the interests in protecting freedom
of deliberation and freedom from post-verdict annoyance, embarrassment, or
harassment are not implicated when the impeaching statements or incidents
both occur and are inquired into by the court before the jury has been
discharged.18 Appellants' position, however, is defective for two reasons. First,
it mischaracterizes the impeachment of partial verdicts as not implicating the
jury's freedom of deliberation. And second, it overlooks another important
interest served by the rule against verdict impeachment verdict finality.

21

While the freedom of jury deliberations is less threatened by impeachment of

partial verdicts than by impeachment of verdicts generally, it is, nevertheless,
clearly impinged. The inquiry requested by appellants in this case is a prime
example. It would have necessitated scrutiny of the deliberations of the jury
including the mental processes of the jurors, a result inconsistent with the
strictures of Rule 606(b). The legislative history of Rule 606(b), while perhaps
not determinative, reveals the strong congressional purpose of protecting the
jury deliberation process. The House version embodied a suggestion of the

Advisory Committee of the Judicial Conference to delete the proscription

against testimony on "any matter or statement occurring during the course of
the jury's deliberations," previously adopted by the Supreme Court. It retained
the prohibition against inquiry into the mental processes of the jurors. See
H.R.Rep.No.93-650, 93d Cong., 1st Sess. 9-10 (1973). The Senate, however,
thought any inquiry into internal deliberations of the jury unsound, and its
report, citing McDonald v. Pless, 238 U.S. 264, 267, 35 S.Ct. 783, 59 L.Ed.
1300 (1915), called for reinstatement of the proscription. S.Rep.No.93-1277,
93d Cong., 2d Sess. 13-14 (1974), U.S.Code Cong. & Admin.News 1974, p.
7051. The Senate view ultimately prevailed. Similar considerations seemingly
apply to a partial verdict; the policy against intrusion into internal deliberations
remains the same. Furthermore, it must be assumed that in enacting the Federal
Rules of Evidence Congress did not act in a vacuum, but rather had in mind the
Federal Rules of Criminal Procedure, including Rule 31(b).
22

Appellants' position also fails to recognize the important interest in verdict

finality which is furthered by Rule 606(b). Finality obviously would be
enhanced by extending the rule against impeachment to partial verdicts which
have been recorded. A partial verdict should be given final effect since "(i) t
would only promote irresponsible hesitation to tell (the jury) that they must
reserve their decision altogether until they got through; the appellants had no
right in (the jury's) subsequent vacillations." United States v. Cotter, 60 F.2d
689, 690 (2d Cir.) (L. Hand, J. ), cert. denied, 287 U.S. 666, 53 S.Ct. 291, 77
L.Ed. 575 (1932). The reason for taking a partial verdict is apparent in cases
where there has been a long trial and there exists the prospect of long
deliberations. By taking a partial verdict, the court is able to hedge against the
possibility of juror illness or death or prejudice by publicity. Of course, finality
is not sought for its own sake. But where a partial verdict has been recorded, we
perceive no reasons of sufficient magnitude to depart from the normal rules
governing impeachment of jury verdicts.19 A recorded partial verdict ought not
to be disturbed absent a showing of the type which would permit impeachment
of a complete verdict.

23

In this particular case Judge Bonsal entered into a discussion with the two
jurors which to some extent implied that they might, along with the other
jurors, reconsider the recorded verdict. To the extent that this may have been
error, it was harmless.

24

After the in camera interviews with Judge Bonsal, the two jurors joined the
others in verdicts of guilt and innocence on a number of counts. At no point did
they again voice any reservation with respect to appellants' conviction on Count
One. The appellants argue that Judge Bonsal's conduct in dealing with the two

jurors had the effect of coercing them into giving up reasonable doubts they
may have had about appellants' guilt in subsequent deliberations. This
contention might have some merit if Judge Bonsal's in camera conduct had in
any way been coercive, but his management of this difficult and novel situation
was the opposite of coercive.20 We emphasize, however, that in the future the
appropriate action of the trial judge faced with a similar request by a juror to
reconsider a prior recorded partial verdict should be to advise the juror simply
that such a verdict is final, avoiding the discussion engaged in here.
D. Other Issues
25

Appellants' remaining contentions require scant comment. Hockridge asserts

that the Government failed to reveal an ongoing investigation of a "moneywashing" operation in several Chemical branches in violation of Brady v.
Maryland.21 The inquiry centered on Chemical's failure to comply with federal
currency requirements. How this entirely unrelated investigation would have
tended to create a reasonable doubt of Hockridge's guilt is not demonstrated.
Absent such a showing, no new trial is required. United States v. Agurs, 427
U.S. 97, 112-13, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

26

Hockridge argues that the court failed adequately to explain to the jury the
"thrust of the conspiracy count," Brief for Appellant Hockridge at 34, urging
that he was at most a "casual facilitator," id. at 28. See United States v.
Hysohion, 448 F.2d 343, 347 (2d Cir. 1971). We find that the judge's
conspiracy charge22 was proper under the authorities in this circuit23 and that
the evidence was clearly sufficient to implicate Hockridge as a participant in the
scheme to defraud the bank.

27

Easton contends that the court improperly permitted proof of extraneous crimes
committed by himself and Petri. Specifically the Government offered proof to
show that Easton and Petri failed to withhold requisite taxes from corporate
employees. However, this evidence tended to show how the conspiracy
operated by suggesting that the Petri corporations were simply shells formed to
obtain loans. As such the evidence was plainly admissible under Federal Rule
of Evidence 404(b),24 without creating undue prejudice, confusion or waste of
time so as to be excludable under Rule 403.25

28

Easton also complains that the Government was erroneously permitted to crossexamine him on the increase of his net worth by over $2,000,000 between 1972
and 1974. But he cannot complain now where he failed to object to this line of
inquiry at trial. United States v. Braunig, 553 F.2d 777, 780 (2d Cir.), cert.
denied, 431 U.S. 959, 97 S.Ct. 2686, 53 L.Ed.2d 277 (1977). Moreover, there

was proof that some of the Chemical loan proceeds were diverted to his
personal checking account, although he denied this for the most part. Thus the
Government could properly inquire into whether he had used Chemical money
to finance personal business ventures which culminated in an increase in his net
worth. See United States v. Tramunti,513 F.2d 1087, 1105 (2d Cir.), cert.
denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975); United States v.
Jackskion, 102 F.2d 683, 684 (2d Cir.), cert. denied, 307 U.S. 635, 59 S.Ct.
1032, 83 L.Ed. 1517 (1939).
29

None of the other points raised by appellants merits discussion.

30

Judgments affirmed.

Of the Eastern District of New York, sitting by designation

18 U.S.C. 371

18 U.S.C. 656, 2

18 U.S.C. 1014

On April 12, 1977, Hockridge was sentenced on Count One to nine months'
imprisonment and on Count Two to a three-year suspended sentence with
probation to commence upon his release from confinement. Petri was sentenced
to four years' imprisonment on each of Counts One and Two and two years'
imprisonment on Count Eight, all sentences to run concurrently. On June 15,
1977, Easton received six months' imprisonment and a fine of $5,000 on Count
One. On Count Two his sentence was suspended and he was given three years'
probation to commence following his release from confinement

The $1,300,000 total does not include "roll-over" loans. Roll-over loans are
those in which the proceeds of a new loan are used, at least in part, to pay off
an old one

The ceiling on his authority was $50,000 from September, 1971, to March 6,
1972, and then $75,000 from the latter date to June, 1972, when the scheme
was discovered and Hockridge was dismissed

The payment to Sheddrick is revealing. Hockridge approved a $75,000 loan to

Oceanic Drug Co. and a $35,000 payment to Cord Automobile Co., two of
Petri's companies. Hockridge removed $35,000 from the Oceanic checking
account and deposited the moneys in the Cord account. A check was then

drawn on the Cord account by Petri and Easton, payable to Sheddrick

8

The $14,000 payoff was made when Hockridge authorized a $75,000 loan to
Todays Stores Services, Inc. Hockridge then approved a $14,000 Chemical
check payable to the Central Jersey Bank and Trust Co. where he maintained a
bank account. He covered the Chemical check by withdrawing $14,000 from
the Todays Stores Services' account

He admonished one witness to "tell Petri and Easton to come down off some of
these wild balance sheets."

10

On more than one occasion Hockridge falsely stated that certain loans would be
used for working capital or for legitimate business investments when in fact the
money was used to pay off personal loans or loans made to other companies

11

Hockridge's subsequent report to the bank that he had received no "gratuities,

payments or secret benefits" from Petri or his group failed to mention the
$14,000 payoff, see note 8 and accompanying text supra, and belied
Hockridge's testimony that the transaction was really a loan from Petri to be
used to buy stock

12

Rule 31(b) provides:

Several Defendants. If there are two or more defendants, the jury at any time
during its deliberations may return a verdict or verdicts with respect to a
defendant or defendants as to whom it has agreed; if the jury cannot agree with
respect to all, the defendant or defendants as to whom it does not agree may be
tried again.
Fed.R.Crim.P. 31(b). In explicating Rule 31(b), Professor Wright states that
the jury, at any time during its deliberations, may return one or more verdicts
on those counts or defendants on which it is agreed. It may then retire again
and resume its deliberations about the remaining charges (citing, inter alia,
United States v. Conti, 361 F.2d 153 (2d Cir. 1966), vacated and remanded on
other grounds sub nom. Stone v. United States, 390 U.S. 204 (88 S.Ct. 899, 19
L.Ed.2d 1035) (1968)) . . . . In permitting the practice here described, Rule
31(b) is in accord with the prior law (citing, inter alia, United States v. Frankel,
65 F.2d 285 (2d Cir.), cert. denied, 290 U.S. 682 (54 S.Ct. 119, 78 L.Ed. 588)
(1933)).

C. Wright, Federal Practice and Procedure 513, at 368-69 (1969)

A guilty verdict may not be challenged on the basis that the jury is sent back

for further deliberations on remaining counts after reaching a verdict on one or

more counts. United States v. Barash, 412 F.2d 26, 31-32 (2d Cir.), cert.
denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969); McDonald v.
Commonwealth, 173 Mass. 322, 329, 53 N.E. 874, 875 (1899).
13

She told the court that she had been "attacked incredibly" on the first day of
deliberations but agreed with the judge that jury deliberations are often
"emotional and high strung."

14

Fed.R.Evid. 606(b) states:

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 to the effect of
anything upon his or any other juror's mind or emotions as influencing him to
assent to or dissent from the verdict or indictment or concerning his mental
processes in connection therewith, except that a juror may testify on the
question whether extraneous prejudicial information was improperly brought to
the jury's attention or whether any outside influence was improperly brought to
bear upon any juror. Nor may his affidavit or evidence of any statement by him
concerning a matter about which he would be precluded from testifying be
received for these purposes.

15

We note that the level of symbiosis between liability and damages that existed
in Vizzini ordinarily would not pertain to partial verdicts on separate counts of
an indictment

16

In United States v. Pleva, 66 F.2d 529 (2d Cir. 1933), the conviction was
reversed on appeal where a juror had informed the trial judge while the jury
was being polled and before the verdict was recorded that he had voted for
conviction because of his own illness. Here, of course, the jurors' statements
were made after the verdict on Count One had been recorded. Grace Lines, Inc.
v. Motley, 439 F.2d 1028 (2d Cir. 1971), is similarly unavailing. A juror's
statement on polling that she had consented to the verdict in the interests of
unanimity was insufficient to show surrender of an honest conviction. Id. at
1032 (Anderson, J. ); id. at 1033-34 (Lumbard, J., concurring). See 6A Moore's
Federal Practice P 59.08(4), at 130 (1974). Many cases in this circuit state the
usual rule that jurors' statements received after discharge may not be received to
impeach the verdict. E. g., United States v. Grieco, 261 F.2d 414, 415 (2d Cir.
1958) (per curiam) (juror intimidated by "blustering arrogance" of another
juror), cert. denied, 359 U.S. 907, 79 S.Ct. 582, 3 L.Ed.2d 572 (1959); Rotondo
v. Isthmian S.S. Co., 243 F.2d 581, 583 (2d Cir.) (post-discharge statements
explaining reasons for verdict are incompetent), cert. denied, 355 U.S. 834, 78

S.Ct. 53, 2 L.Ed.2d 45 (1957)

17

See 6A Moore's Federal Practice, supra note 16, P 59.08(4), at 123-52; 3 J.

Weinstein & M. Berger, Evidence 606(01)-(05), at 606-1-46; 8 Wigmore,
Evidence 2345-56 (McNaughton rev. ed. 1961); Wright, supra note 12,
554, at 488-95; The ABA Standards Relating to Trial by Jury 5.7 (Approved
Draft 1968) (hereinafter ABA Standards)

18

Wigmore noted in a non-partial verdict context that "the dangers of uncertainty

and of tampering with the jurors to procure testimony, disappear in large part if
such investigation as may be desired is made by the judge and takes place
before the jurors' discharge and separation." 8 Wigmore, supra note 17, 2350,
at 691 (emphasis in original). See ABA Standards, supra note 17, 5.7(a), at
173. Wigmore points out, however, the danger of abuse from an overactive
judge attempting to browbeat a jury out of its sincere conclusion, as in Rex v.
Shipley, 21 How.St.Tr. 847, 950n, 951 (1784). Wigmore, supra, 2350, at 692

19

A partial verdict still requires the affirmative act of assenting to a verdict either
by express answer to the clerk at polling in open court or by silence which
implies assent. See 8 Wigmore, supra note 17, 2355, at 717. "The record of a
verdict implies a unanimous consent of the jury, and is conclusive and
incontrovertible evidence of the fact." Grinnell v. Phillips, 1 Mass. 529, (530),
542 (1805). Although here there was no individual polling, none was requested.
Appellants, therefore, waived the right. See Humphries v. District of Columbia,
174 U.S. 190, 194-95, 19 S.Ct. 637, 43 L.Ed. 944 (1899); United States v. Dye,
61 F.Supp. 457, 459 (W.D.Ky.1945); ABA Standards, supra note 17, 5.5; cf.
Hernandez v. Delgado, 375 F.2d 584 (1st Cir. 1967) (no violation of due
process to infer waiver of right to poll jury from silence)

20

Concededly, the district judge's directions to the two jurors were somewhat
ambiguous. Ante at 2141. If he was urging the jurors to deliberate further on
Count One, we believe that under the view we have taken of Rule 606(b)'s
application to partial verdicts, the district judge exceeded his authority.
Appellants could not complain of that error, however, since it was favorable to
their position
In any event, Judge Bonsal's instructions were clearly noncoercive. True, he did
not discuss the matter further with the jurors, as he told them he would do. But
there did not appear to be any need for additional communications as the jury
deliberations progressed. Moreover, although appellants moved to set aside the
verdict and for a mistrial when counsel were informed of the colloquy between
the judge and the two jurors, no objection to the judge's failure later to discuss
the verdict was ever lodged, nor did appellants ever request redeliberation by

the entire jury on Count One. Accordingly, they would have to abide the result
reached here even if the recorded partial verdict was not, by virtue of the trial
judge's discussion with the two jurors, entitled to final effect.
21

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)

22

The court charged that "a conspiracy is a combination or partnership, if you

will, of two or more people to violate the law . . . ." It also charged that the
Government must prove
that at least two or more persons came to a mutual understanding for the
purposes of accomplishing the unlawful plan or scheme described in the
conspiracy count which I just read to you. Here, of course, the fact that the
defendants knew each other or may have associated with each other or may
have discussed mutual or common business interests, that isn't enough to
establish a conspiracy. Mere association isn't enough.

23

E. g., United States v. Rosenblatt, 554 F.2d 36 (2d Cir. 1977); United States v.
Kahaner, 317 F.2d 459, 474-82 (2d Cir.), cert. denied, 375 U.S. 836, 84 S.Ct.
62, 11 L.Ed.2d 65 (1963)

24

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident
Fed.R.Evid. 404(b).

25

Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence
Fed.R.Evid. 403.