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UNITED STATES v. MITCHELL

March 29, 1976

UNITED STATES of America
v.
John N. MITCHELL et al.



The opinion of the court was delivered by: SIRICA

 SIRICA, District Judge.

 Defendant H. R. Haldeman, one of four defendants in the above-entitled matter convicted by jury verdict on January 1, 1975, has filed a motion for a new trial on the basis of newly discovered evidence and, pursuant to that motion, requests a full evidentiary hearing to determine whether an alleged unauthorized contact between a third party and any members of the sequestered jury took place and, if it did, whether the alleged contact was prejudicial to the defendant. Defendant Haldeman also requests that the seal, which has been ordered by the Court to apply to the papers and proceedings surrounding this incident for the purpose of protecting the investigation of the U. S. Marshal's Service, be lifted.

 FACTS

 On October 30, 1975, the Court informed all defense counsel and the Office of the Special Prosecutor that it had received information, in the form of hand-delivered affidavits, that the wife of one of the supervising marshals in charge of the sequestered jury may have accompanied the jury on an evening of dinner and entertainment at the Andrews Air Force Base Officers' Club on the evening of November 22, 1974, which was during the time that the jury was hearing evidence in the trial. Copies of these affidavits were also forwarded to counsel.

 On November 14, 1975, at a meeting held in camera, all parties agreed to hold any action in abeyance pending the completion of an investigative report of the incident by the U. S. Marshal's Service, Department of Justice.

 A copy of this lengthy investigative report was transmitted to the Court on December 10, 1975, and the Court promptly distributed copies of the report to all counsel. The report included affidavits, in question and answer form, of the marshals and matrons who accompanied the jury that evening, and of Ellis Duley, the supervising marshal, and his wife. All were questioned at length about Mrs. Duley's presence that evening and about any possible contacts she might have had with the jury.

 After receiving this report, defendant Haldeman filed the instant motions.

 JURISDICTION OF THE TRIAL COURT

 Rule 33 of the Federal Rules of Criminal Procedure gives this Court, as the trial court, jurisdiction to hear a motion for a new trial based on newly discovered evidence while the case is on appeal from a judgment of conviction. Asserting improper communications between a third party and a juror or jurors rests squarely upon newly discovered evidence within the purview of Rule 33. Holfester v. Long Island Rwy. Co., 360 F.2d 369 (2d Cir. 1966); Holmes v. United States, 284 F.2d 716 (4th Cir. 1960). This motion is properly before the Court at this time.

 It is important to note that the discretion of the trial judge to grant a motion of this nature includes the discretion to determine the extent and type of investigation requisite to a ruling on the motion. U. S. v. Flynn, 216 F.2d 354, 372 (2d Cir. 1954); Tillman v. United States, 406 F.2d 930 (5th Cir. 1969). Under the facts of this case, the Court concludes that a full evidentiary hearing is not required in order for the Court to rule on the motion for a new trial.

 I. REQUEST FOR AN EVIDENTIARY HEARING

 In support of the request for a full evidentiary hearing, defendant argues that, under the facts present here and the applicable law, the Court has a clear duty to hold such a hearing. The Court disagrees. The leading case which deals with the situation in which a stranger comes in contact with the jury, and details the duty of the trial court in such cases, is Remmer v. United States, 347 U.S. 227, 74 S. Ct. 450, 98 L. Ed. 654 (1954). In Remmer the Supreme Court stated:


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