Lawyers for former Drug Enforcement Administration agent Joseph Bongiovanni on Tuesday sought a mistrial based on a jury note read aloud in federal court last week that they say could add undue pressure on a holdout juror.
The judge denied the motion.
A note Friday from the jury deliberating in the corruption trial of the retired federal agent revealed a dispute jurors were having with one juror and expressed concern that they may not be able to reach a unanimous verdict.
The note said there was a “general consensus” that a single juror was being “unduly” in relation to deliberations, but the wording in the message didn’t complete the phrase.
“Because of this one ‘holdout’ juror, the foreperson indicated that she did not feel that the jury “will be able to come to a unanimous decision,” defense attorney Robert Singer said in his request for a mistrial. “This statement, in and of itself, may serve as grounds for a mistrial.”
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But the reason the defense brought the motion is the reaction of other jurors when U.S. District Judge Lawrence Vilardo read the note, Singer said.
“When the court read the note to the jury, the foreperson was noticeably surprised that her note was read in open court to all of the jurors,” Singer said. “The foreperson then turned to Juror 2 seated immediately to her right and made a comment to him. The foreperson’s body language clearly indicated that she did not expect the note to be read to the entire jury,” according to Singer’s motion.
“The defense also noticed Juror 7’s complexion turn red and Juror 11 look up towards the ceiling,” Singer added. “Based on the way the jurors reacted, it appears that the foreperson sent this note without the knowledge and consent of the entire jury, to include the person who was allegedly acting ‘unduly,’” Singer said.
After the note was read, jurors spent 90 minutes in deliberations, remained undecided and were discharged for the weekend.
Jurors resumed deliberating Tuesday morning.
Eleven members of the jury deliberating in the corruption trial of a former federal agent have a dispute with the remaining juror and expressed concern that they may not be able to reach a unanimous verdict, according a note from the jury read in court Friday.
“Because of the note, the one juror who is allegedly acting ‘unduly’ because he or she is not permitting the jury to reach a unanimous decision – something this juror has a right to do if he or she does not agree with the majority of the other jurors – has now been publicly outed by the court to his or her fellow jurors,” Singer said. “Being called ‘unduly’ and getting ‘outed’ by the foreperson inevitably made this one juror uncomfortable. And such discomfort will only grow as deliberations continue.”
During a court proceeding Tuesday, Assistant U.S. Attorney Joseph Tripi called the jurors’ reactions to Friday’s note “open to interpretation,” adding that speculation regarding juror discomfort cannot be the basis for a mistrial.
“Speculative observations” are not evidence of anything, Tripi said.
In their court filing, prosecutors said jury notes raising potential issues of juror misconduct are desirable, because they give the judge and both parties a chance to take action, short of declaring a mistrial, to ensure the trial’s fairness. Friday’s note was not unlike many jury notes received during deliberations, particularly lengthy cases with complex counts, the prosecutors said.
What’s more, a federal court may permit 11 jurors to return a verdict – rather than 12 – if the judge finds good cause to excuse a juror, prosecutors noted. The term “good cause” includes a juror’s refusal to perform his or her duty as a juror to deliberate with the other jurors, according to their filing.
Tripi said the judge properly handled the note, and he added that during a bench conference Friday both sides agreed with the judge on how to proceed. The judge repeated some instructions to the jurors after reading the jury note in court Friday.
Vilardo agreed with the prosecution Tuesday.
“We are speculating about juror body language and things like that,” Vilardo said, denying the mistrial motion.
“I’m not being critical of you for filing this motion,” Vilardo told Singer. “I do disagree with the substance of it.”
Singer said the motion was not directed at Vilardo for reading the note and how he dealt with it afterward with jurors and lawyers.
At the bench conference with the judge, the prosecutors and defense attorneys were in general agreement there was no basis to dismiss the “unduly” juror or replace the juror with an alternate juror, Singer noted in a court filing.
Singer said he and co-counsel Parker MacKay decided to ask for the mistrial after thinking over the weekend about the jurors’ reactions and the pressure that is being applied on the “holdout juror.”
“The jury note clearly indicated a deadlocked jury on some or all of the charges based on one juror who holds a different view regarding the evidence than the 11 other jurors,” Singer said in a court filing.
The note came Friday afternoon during the second full day of deliberations in the trial of Bongiovanni, who faces 15 felony charges, including accepting bribes, shielding drug traffickers and lying to investigators.
Since Friday’s note, there has been only one other note, which came Tuesday, asking for a readback of testimony from a retired FBI agent who recounted a meeting with Bongiovanni and Peter Gerace Jr., the owner of Pharaoh’s Gentlemen’s Club. Thomas Herbst testified he did not pursue an investigation into Gerace because after meeting with Bongiovanni and Gerace, he believed Gerace was Bongiovanni’s confidential source.
Jurors ended their deliberations Tuesday afternoon without rendering a verdict. They’ll resume deliberating Wednesday.
Patrick Lakamp can be reached at plakamp@buffnews.com