Appeal from the dismissal of habeas corpus petitions alleging that the jury that convicted them in the Southern District in 1977 was tainted by bribery. The district court for the Southern District of New York (Whitman Knapp, J.), denied appellants a full evidentiary hearing into the alleged jury tampering and dismissed the petition.
Lumbard, Pierce, and Altimari, Circuit Judges.
Joseph Hayden, Steven Baker, Steven Monsanto, Leon Johnson, Waymin Hines, John Hatcher, and James McCoy appeal from an order entered July 16, 1986, in the Southern District by Judge Whitman Knapp, denying their consolidated habeas corpus petitions under 28 U.S.C. § 2255.*fn1 These petitions sought to vacate petitioners' convictions for violations of federal narcotics and firearms laws after a two-month trial in 1977 in the Southern District before Judge Henry Werker and an anonymous jury in United States v. Barnes, 443 F. Supp. 137 (1977), aff'd, 604 F.2d 121 (2d Cir. 1979). The indictment, filed September 2, 1977, charged eighteen defendants, including the seven appellants, in thirteen counts with violating various federal narcotics and firearms laws, including conspiracy to violate narcotics laws, 21 U.S.C. §§ 812, 841, 846, engaging in a continuing criminal enterprise, 21 U.S.C. § 848, distribution of heroin and cocaine, 21 U.S.C. §§ 812 and 841, 18 U.S.C. § 2, and firearms violations, 18 U.S.C. § 924.*fn2 Trial began on September 29, 1977. The jury returned verdicts of guilty on December 2, 1977, against eleven defendants, including Barnes and the seven appellants herein, and disagreed as to a verdict on Guy Fisher.*fn3 Judge Werker sentenced Barnes to life imprisonment, and all petitioners except Hayden and McCoy to thirty years' imprisonment and three years' parole. Hayden received a fifteen year prison term and life parole, and McCoy received a twenty year prison term and three years' parole. Judge Werker also assessed fines against Barnes and all petitioners except McCoy. All of the convicted defendants are currently serving their sentences. Fisher was never retried on the 1977 charges.
In 1983, however, Fisher and seven others were charged in the Southern District with various violations of federal narcotics, firearms and racketeering laws committed over an eleven-year period, in United States v. Fisher, 563 F. Supp. 1369 (1983). Barnes, who was convicted in the 1977 trial, cooperated with the government and testified as a government witness at the 1983 trial before Judge Pollack and an anonymous jury. Following a six-week trial, the jury returned guilty verdicts against all eight defendants.
In support of its motion for an anonymous jury in the Fisher case, in August and September, 1983, the government disclosed statements allegedly made by Fisher to Barnes and to a confidential informant that a juror in the 1977 Barnes trial had been paid a $25,000 bribe to obtain a hung jury on Fisher's behalf.
On November 28, 1984, Barnes' co-defendants Hayden, Baker, and Monsanto, later joined by co-defendants Johnson, Hines, Hatcher, and McCoy, filed the instant habeas corpus petitions under 28 U.S.C. § 2255 seeking to vacate their 1977 convictions on the ground of jury tampering. Each petitioner predicated his claim on the government's disclosure of Fisher's reported statements to Barnes and the informant. Judge Knapp allowed joint discovery by the government and appellants to explore these allegations further, and depositions of four individuals, whom appellants asserted might have pertinent information, were taken. Appellants then sought a full evidentiary hearing as to whether or not bribery in fact occurred, and the government moved to dismiss the habeas corpus petitions. Judge Knapp determined that appellants had not made a factual showing sufficient to require a full evidentiary hearing, and on July 15, 1986 denied the motion and granted the government's motion to dismiss the consolidated petitions.
Appellants claim that they made a factual showing sufficient to require a full evidentiary hearing on the issue of jury tampering and that the district court erred in denying them such a hearing.
We find no error and, accordingly, affirm the dismissal of the habeas corpus petitions.
As stated above, each habeas corpus petition at bar is based on the government's disclosure of alleged jury tampering in support of its motion for an anonymous jury for the trial of Fisher and others which began in September 1983. That motion, filed on August 17, 1983, asserted five grounds for an anonymous jury: (1) the violent nature of the offenses charged in the indictment, which included the commission of a number of homicides as part of a pattern of racketeering activity; (2) reliable information from confidential sources that the Fisher defendants had agreed to pay one million dollars to have Leroy Barnes murdered, and that a contract to murder Barnes' two young daughters existed; (3) implied threats made against the prosecutors, agents, and police officers involved in the case by at least two defendants, Frank James and Guy Fisher; (4) the expectation that the Fisher trial would receive widespread media attention; and (5) the lengthy prison sentences that several of the Fisher defendants would face if convicted.
In addition, on August 26, 1983, at oral argument on its motion, the government stated that it had learned that defendant Guy Fisher had allegedly attempted to approach a juror in the 1977 Barnes trial with a corrupt proposition. On September 1, 1983, the government submitted a supplemental affidavit by Assistant United States Attorney Douglas in further support of its disclosure on August 26 which set forth additional information obtained from Leroy Barnes and the confidential informant regarding Fisher's alleged claim that he had bribed a juror in the 1977 trial. Barnes had informed government counsel that Fisher had told him in 1977, during the trial of Barnes, Fisher and thirteen others, that one of Fisher's associates who was attending the trial as a spectator had recognized one of the jurors. Fisher subsequently told Barnes that he planned to approach that juror.
The Douglas affidavit also stated that the government's confidential informant had confirmed Barnes' statement that one of Fisher's associates had recognized a juror in the 1977 trial. In addition, the informant stated that Fisher told him that the juror was paid $25,000 for obtaining a hung jury for Fisher, that after the Barnes jury was discharged in December, 1977, the juror in question disappeared from New York; and, to the best of his knowledge, that juror was neither seen nor heard from again.
Before responding to appellants' habeas corpus petitions, filed in November, 1984, counsel for the government again discussed the alleged jury tampering with the informant. The informant stated that during the Barnes jury selection a female spectator, known to Baker, Monsanto and, to a lesser extent, Fisher, told him that she recognized a black female seated in the jury box as a prospective juror. The informant stated that sometime later a meeting was held in or near the courthouse at which Baker, Monsanto, Fisher, Hayden, and other defendants were present. During this meeting, the defendants discussed a plan to raise $25,000 to be paid to a relative of the prospective juror, and decided who among the defendants would contribute to the bribe, and who would benefit from it. The informant reported that the black female was selected as a Barnes juror, and it was learned during the voir dire examination that she was employed in a hospital. The government reviewed the Barnes voir dire transcript and found that juror #49, who was ultimately selected as juror #2, was a black female then employed at a hospital.
The habeas corpus petitions filed by appellants in November, 1984 were based solely on the statements reportedly made by Fisher to Barnes and to the informant, which the government had disclosed on its motion for an anonymous jury in the Fisher trial. The government argued that appellants had not made a factual showing sufficient to warrant an evidentiary hearing. However, Judge Knapp permitted depositions to be taken of four ...