US v. Gotti

Decision Date21 December 1990
Docket NumberNo. CR-90-1051.,CR-90-1051.
Citation753 F. Supp. 443
PartiesUNITED STATES of America, Plaintiff, v. John GOTTI, Frank Locascio, also known as "Frankie Loc," Salvatore Gravano, also known as "Sammy" and "Sammy Bull," and Thomas Gambino, Defendants.
CourtU.S. District Court — Eastern District of New York

John Gleeson, Asst. U.S. Atty., Brooklyn, N.Y., for U.S.

Bruce Cutler, New York City, for Gotti.

David Greenfield, New York City, for Locascio.

Gerald Shargel, New York City, for Gravano.

Michael Rosen, New York City, for Gambino.

MEMORANDUM AND ORDER

GLASSER, District Judge:

The defendants have been charged with violating 18 U.S.C. § 1962(c) which makes it unlawful for any person employed by or associated with any enterprise engaged in or the activities of which affect interstate commerce, to conduct or participate in the conduct of such enterprise through a pattern of racketeering activity and 18 U.S.C. § 1962(d), which makes it unlawful for any person to conspire to violate § 1962(c). The pattern of racketeering activity alleged includes conspiracy to murder and the murder of Paul Castellano; the murder of Thomas Bilotti; the conspiracy to murder and the murder of Robert DiBernardo; the conspiracy to murder and the murder of Louis DiBono; the conspiracy to murder Gaetano Vastola; the conducting of illegal gambling businesses in New York and Connecticut; loansharking conspiracies; obstructions of justice and bribery. Gotti and Gravano are also charged with the conspiracy to murder and the murder of Robert DiBernardo (18 U.S.C. §§ 1952B(a)(1), (5)); the conspiracy to murder and the murder of Liborio Milito. Gotti, Gravano and Locascio are charged with conspiracy to murder Gaetano Vastola (18 U.S.C. § 1959(a)(5)), with conducting an illegal gambling business in New York (18 U.S.C. § 1955) and with conspiracy to obstruct justice (18 U.S.C. § 371). Gotti and Locascio are charged with conspiracy to defraud the United States and finally, Gotti is charged with obstruction of justice in connection with an earlier trial of Thomas Gambino (18 U.S.C. § 1512).

Upon their first appearance before the court on December 12, 1990, the defendant Gambino was released on bail. The government urged that the defendants Gotti, Gravano and Locascio be detained for the reason that no condition or combination of conditions would reasonably assure the safety of other persons and the community. In support of that position, the government submitted under seal a memorandum which included its evidentiary proffer and a discussion of the legal principles it contended were controlling. The government then requested a three day continuance pursuant to 18 U.S.C. § 3142(f). The request was granted and in accordance with a computation as prescribed by Rule 45(a) the bail hearing was adjourned to December 17, 1990. The detention of the defendants until that date was mandated by § 3142(f) and was so ordered.

Shortly prior to the scheduled commencement of the hearing on the 17th, counsel for the detained defendants hand-delivered a letter-request that the bail hearing be closed to the public for the reasons that "their privacy and fair trial interests out-weigh the public's interest in having access to the bail proceedings." A letter-response by the government followed. Mindful that "representatives of the press and general public `must be given an opportunity to be heard on the question of their exclusion,'" Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 25, 102 S.Ct. 2613, 2621 n. 25, 73 L.Ed.2d 248 (1982); In re Application of Herald Co., 734 F.2d 93, 101-02 (2d Cir.1984), media representatives present in force were informed that briefs may be submitted by them on the issue of closure by noon (later extended to 5 p.m.) on December 18, 1990. The hearing was adjourned with the consent of the defendants until December 21, 1990.

Discussion

In Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986), the Supreme Court established that "the qualified First Amendment right of access to criminal proceedings applies to preliminary hearings as they are conducted in California." 478 U.S. at 13, 106 S.Ct. at 2743. That decision has been understood to apply to pretrial proceedings which pass the "tests of experience and logic." 478 U.S. at 9, 106 S.Ct. at 2740. Although bail hearings have not passed those tests, a qualified First Amendment right of access to them has nevertheless been recognized. In re Globe Newspaper Co., 729 F.2d 47 (1st Cir.1984); United States v. Chagra, 701 F.2d 354 (5th Cir.1983). In addition, the qualified First Amendment right has been held applicable to written documents submitted in connection with judicial proceedings. In re New York Times Co., 828 F.2d 110, 114 (2d Cir.1987). The qualification of the right of access is a recognition that in a given case that right must yield to the Sixth Amendment right of the accused to a fair trial. The Court in Press-Enterprise put it thus:

But even when a right of access attaches, it is not absolute.... While open criminal proceedings give assurances of fairness to both the public and the accused, there are some limited circumstances in which the right of the accused to a fair trial might be undermined by publicity. In such cases, the trial court must determine whether the situation is such that the rights of the accused override the qualified First Amendment right of access.

478 U.S. at 9, 106 S.Ct. at 2740-41 footnote and citation omitted.

The recognition of that exquisite tension between the First and Sixth Amendments has been expressed in many ways, but perhaps never with more elegant simplicity than in Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 2215, 81 L.Ed.2d 31 (1984): "The central aim of a criminal proceeding must be to try the accused fairly." Although the realization of that aim rests largely upon the shoulders of the trial judge, its realization must also be pursued by the government. That shared obligation was clearly expressed in Gannett Co. v. DePasquale, 443 U.S. 368, 384 n. 12, 99 S.Ct. 2898, 2908 n. 12, 61 L.Ed.2d 608 (1979) in these terms:

The responsibility of the prosecutor as a representative of the public surely encompasses a duty to protect the societal interest in an open trial. But this responsibility also requires him to be sensitive to the due process rights of a defendant to a fair trial. A fortiori, the trial judge has the same dual obligation.

In United States v. Chagra, 701 F.2d 354, 365 (5th Cir.1983) special emphasis was placed upon the obligation of the trial judge in this regard. "There is no single divine constitutional right to whose reign all others are subject," said the court. "When one constitutional right cannot be protected to the ultimate degree without violating another, the trial judge must find the course that will recognize and protect each in just measure, forfeiting neither and permitting neither to dominate the other."

If the accused has asserted his right to a fair trial, what are the touchstones that should guide the court in determining whether or not the pretrial proceeding should be closed? Press-Enterprise teaches that the proceedings cannot be closed

unless specific, on the record findings are made demonstrating that "closure is essential to preserve higher values and is narrowly tailored to serve that interest." ... If the interest asserted is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights.

478 U.S. at 13-14, 106 S.Ct. at 2743 citation omitted.

A. Substantial Probability That Right to a Fair Trial Will Be Prejudiced

The defendants' assertion that their Sixth Amendment right will be irreparably compromised and they could not be tried fairly is linked entirely to the evidentiary proffer contemplated by the government which consists of electronically intercepted conversations and information gathered from confidential informants. The defendants assert that public disclosure of that information will so infect and inflame all who hear and read it that the resulting prejudice against them will be impossible to overcome.

The media, in their memorandum of law in opposition to closure, correctly recite the observation in Press-Enterprise that "The First Amendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of" the right to a fair trial. 478 U.S. at 15, 106 S.Ct. at 2743. They contend, in essence, that because "there have probably been more words written about him in the media than about any other criminal defendant in recent times" he cannot seriously argue that more publicity will result in a substantial probability of prejudice. The premises of this contention, namely, that one's Sixth Amendment right to a fair trial diminishes as one's notoriety increases is neither good logic nor good law. On the contrary, the true test of our system is to be measured by our commitment to according a fair trial even to the most notorious among us.

The media then assert that the closure of the proceeding and the sealing of the documents would not prevent further publicity probably consisting of "second-hand and less authoritative information about what has transpired beyond closed doors." Carried to its logical conclusion this assertion would dictate that judicial proceedings should never be closed. It is hoped that the media is sensitive to its responsibility to report accurately and will abjure the temptation to publish information the authenticity of which has not been confirmed or is known to be dubious.

Another assertion and one which is encountered frequently in judicial...

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  • U.S. v. Cutler
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 19, 1995
    ...motion to close the hearing and seal all evidentiary submissions, including transcripts from the wiretaps. See United States v. Gotti, 753 F.Supp. 443 (E.D.N.Y.1990). On December 20, 1990, after the hearing, Judge Glasser admonished the parties (and Cutler in particular) to try the case onl......
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    • May 25, 2005
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