846 F.2d 117 (2nd Cir. 1988), 88-1098, United States v. Ruggiero

Docket Nº:88-1098 and 88-1102.
Citation:846 F.2d 117
Party Name:UNITED STATES of America, Appellee, v. Angelo RUGGIERO, Gene Gotti, John Carneglia, Edward Lino, Mark Reiter, Joseph LoPresti, Anthony Moscatiello, Oscar Ansourian, Anthony Gurino, and Cesar Gurino, Appellants. Nos. 1075-82, 1092-93, Dockets 88-1083-88, 88-1090-91,
Case Date:April 26, 1988
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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846 F.2d 117 (2nd Cir. 1988)

UNITED STATES of America, Appellee,


Angelo RUGGIERO, Gene Gotti, John Carneglia, Edward Lino,

Mark Reiter, Joseph LoPresti, Anthony Moscatiello,

Oscar Ansourian, Anthony Gurino, and

Cesar Gurino, Appellants.

Nos. 1075-82, 1092-93, Dockets 88-1083-88, 88-1090-91,

88-1098 and 88-1102.

United States Court of Appeals, Second Circuit

April 26, 1988

Argued April 8, 1988.

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Gerald L. Shargel, New York City, for appellant Carneglia (Christine E. Yaris, New York, N.Y.; Jeffrey Hoffman, Todtman, Hoffman, Epstein, Young, Goldstein, Tunick & Pollok, P.C., New York City, for appellant Ruggiero; Ronald P. Fischetti, Fischetti & Pomerantz, New York City, for appellant Gotti; Robert Katzberg, Kaplan & Katzberg, New York City, for appellant Lino, of counsel), arguing for appellants Ruggiero, Gotti, Carneglia and Lino.

David L. Lewis, Lewis & Fiore, New York City, for appellants Anthony and Cesar Gurino (Edwin Schulman, Kew Gardens, for appellant Moscatiello; Martin Geduldig, Garden City, for appellant Ansourian; David DePetris, DePetris & Meyers, New York City, for appellant LoPresti; Barry Slotnick, Slotnick & Baker, New York City, for appellant Mark Reiter; Joseph Calluori, of counsel), arguing for appellants Anthony and Cesar Gurino, Moscatiello, Ansourian, LoPresti and Reiter.

John Gleeson, Asst. U.S. Atty. (Andrew J. Maloney, U.S. Atty. for E.D.N.Y., David C. James, Asst. U.S. Atty., of counsel), for appellee.

Before LUMBARD, OAKES and MINER, Circuit Judges.

OAKES, Circuit Judge:

Ten defendants, following a declaration of mistrial, appeal from the denial of their motion to bar a retrial on double jeopardy grounds. The defendants--Angelo Ruggiero, Gene Gotti, John Carneglia, Edward Lino, Mark Reiter, Joseph LoPresti, Anthony Moscatiello, Oscar Ansourian, Anthony Gurino, and Cesar Gurino--were tried in the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, on charges of narcotics trafficking, obstruction of justice, racketeering, and operating a continuing criminal narcotics enterprise. 1 Judge Costantino declared a mistrial because he found that the defendants had attempted to identify and influence the jury and that the dismissal of three biased jurors left an insufficient number of jurors to try the case. Assigned the case after the mistrial, Judge Joseph M. McLaughlin relied heavily on Judge Costantino's opinion and concluded that the showing of a manifest necessity for the mistrial avoided a double jeopardy bar to a subsequent prosecution. We affirm.


A twelve-count superseding indictment charges Angelo Ruggiero, Gene Gotti, and John Carneglia with engaging in a continuing criminal narcotics enterprise in violation of 21 U.S.C. Sec. 848 (1982 & Supp. IV 1986). In addition, it charges all defendants with conspiracy to violate the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. Sec. 1962(d) (1982), and with various other charges relating to narcotics trafficking and the obstruction of a grand jury investigation. Trial commenced before Judge Costantino and an anonymous jury on June 1, 1987.

In October 1987, the United States Attorney learned that the Federal Bureau of Investigation (FBI) had received information from confidential sources that the defendants had identified members of the anonymous jury for the purpose of influencing the verdict. Specifically, the Government discovered that defendants John Carneglia, Gene Gotti, Angelo Ruggiero, and Edward Lino had employed William Sewell, a private investigator, to trace the license plates of suspected jurors. After Sewell had a falling out with these defendants, they used a different investigator, Victor Juliano. The confidential information indicated that the defendants had learned the identities of at least five of the jurors and that one of the black jurors had been approached "and [was] now compromised." FBI investigators also learned that Juror No. 4, who was one of the few jurors who parked near the courthouse, owned a car with a "vanity" license plate consisting of his first initial and full last

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name. After finding Juror No. 4's address in a Queens, New York, telephone book, the FBI investigators determined that he lived approximately five doors away from two men whom they suspected of engaging in organized criminal activities, often in association with the defendants.

This information prompted a grand jury investigation into the allegations of jury tampering. On December 8, 1987, while the grand jury investigation was proceeding, Gary Barnes, Juror No. 2, was excused from the jury because it was discovered that he was not a United States citizen. Two days later, Barnes told FBI Special Agent John Flanagan that a co-worker, Mel Rosenberg, had telephoned him that morning and arranged to meet him. 2 According to Barnes, Rosenberg indicated he believed Barnes was a juror in the case, said he was a friend of defendant Gene Gotti, and offered Barnes a new BMW car in exchange for information about how the jury was "feeling."

On December 22 at 7:20 a.m., Agent Flanagan questioned Rosenberg at his home. Rosenberg admitted calling Barnes but said that it was a joke, a "lark." He denied that he ever mentioned the initials "G.G." or the name "Gene Gotti." He told the FBI agent that the only attorneys he knew were his brother-in-law and his own attorney, Brian Levinson. At the end of this interview, Agent Flanagan served Rosenberg with a subpoena to appear before the grand jury the next day. Rosenberg said that he would be there.

According to tape recordings of telephone calls made from Rosenberg's office, two hours later he called a person named Anthony and said, "Yeah, listen, I don't have his number. I've got to speak to him." Anthony asked, "Who?" Rosenberg said, "You know." When Anthony asked what was the matter, Rosenberg said he could not talk about it on the telephone. Within the hour, he made a call to an unknown person identified as "Big A," again trying to contact "him." He told "Big A" that it was very important, that he was in trouble but that he could not talk about it on the phone. In a 3:30 p.m. telephone conversation between Rosenberg and an unidentified male, Rosenberg indicated that he had to meet with an attorney.

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At 4:02 p.m., Rosenberg called attorney Brian Levinson and told the woman who answered that "Charlie Carnesi" would be calling on Rosenberg's behalf. At 4:26 p.m. Charles Carnesi called Rosenberg to tell him that he, Carnesi, had not "been able to get in touch with him yet." Three minutes later, Brian Levinson returned Rosenberg's call. Rosenberg said that "Charlie" was trying to get in touch with Levinson. He added that Carnesi would "lay out the groundwork" for Levinson for "this thing ... for tomorrow morning at 10 a.m.," the exact return date and time of Rosenberg's subpoena.

On January 7, 1988, the Government presented Judge Costantino with the evidence of jury tampering and requested the court conduct an in camera voir dire of each juror. The Government also requested the court to hold an evidentiary hearing which would be closed to the public. Attached to the Government's memorandum in support of its motion were affidavits of FBI Special Agents John Flanagan and Martin A. Towey which described the information from confidential sources suggesting jury tampering as well as past reports that four of the principal defendants, Ruggiero, Gotti, Carneglia, and Ansourian, had tampered with judicial and law enforcement processes.

On Monday, January 11, 1988, Judge Costantino conducted seriatim a voir dire of the jurors as requested by the Government in chambers and without the presence of the lawyers. With the exception of Juror No. 11, who stated that a person at work had indicated that he knew that she was on Angelo Ruggiero's jury, none of the jurors said that they had been approached. The next day, a transcript of the voir dire and the Government's papers were turned over to defense counsel. The Government renewed its request for closure and notified the court and the defendants that, based on inquiries that the United States Attorney's office had received, the press was already aware of the general nature of the proceedings. The defense joined the Government in its motion to close the hearing to the public. When the court declined to rule on the issue of closure, the Government moved to sequester the jury. The defendants opposed sequestration. That night, a television news story about the jury-tampering allegations was aired. Nevertheless, on the morning of January 13, the court denied the Government's motion for closure. The Government immediately renewed its motion for sequestration of the jury. The court, "reserv[ing] decision on sequestration ... pending the hearing," commenced a hearing on the jury-tampering issue in open court.

The first witness was Gary Barnes, the juror who had been excused because he was not a United States citizen. Barnes testified that he had seen a man later identified as William Sewell sitting in the courtroom during the trial. He remembered seeing him once for three days in a row, and on another occasion speaking with Ronald Fischetti, Gene Gotti's attorney. Barnes testified that he once encountered Sewell in the municipal parking garage near the courthouse. Barnes was walking with a fellow juror, about one hundred feet into the garage, when he noticed that Sewell had come up behind him, "literally side by side, like walking pretty fast." Barnes testified that when he recognized Sewell as the man he had seen in the courtroom, he asked Sewell who, like himself, was black, "What are you, chauffeur?" Sewell, who appeared offended by the question, replied, "No, I am a private investigator,"...

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