U.S. v. Gaggi

• Decision Date: 21 January 1987
• Docket Number: Nos. 164,s. 164
• Parties: 22 Fed. R. Evid. Serv. 586 UNITED STATES of America, Appellee, v. Anthony Frank GAGGI, Henry Borelli, Peter LaFroscia, Ronald Ustica, Edward Rendini and Ronald Turekian, Defendants-Appellants. to 169, Dockets 86-1171 to 86-1174 and 86-1184 to 86-1186.
• Court: U.S. Court of Appeals — Second Circuit

Page 47

811 F.2d 47

22 Fed. R. Evid. Serv. 586

UNITED STATES of America, Appellee, v. Anthony Frank GAGGI, Henry Borelli, Peter LaFroscia, Ronald

Ustica, Edward Rendini and Ronald Turekian,

Defendants-Appellants.

Nos. 164 to 169, Dockets 86-1171 to 86-1174 and 86-1184 to 86-1186.

United States Court of Appeals, Second Circuit.

Argued Oct. 6, 1986.

Decided Jan. 21, 1987.

Judd Burstein, Michael Rosen, New York City (Judd Burstein, Edward M. Chikofsky, New York City, of counsel), for defendant-appellant Anthony Gaggi.

Herald Price Fahringer, New York City (Robert L. Ellis, Edward M. Chikofsky, Judd Burstein, New York City, of counsel), for defendant-appellant Edward Rendini.

Robert L. Ellis, New York City, submitted joint brief for defendant-appellant Henry Borelli.

Joel Winograd, New York City, submitted joint brief for defendant-appellant Peter LaFroscia.

Edward M. Chikofsky, New York City, submitted joint brief for defendant-appellant Ronald Ustica.

Judd Burstein, New York City, of counsel on joint brief, for defendants-appellants.

David S. Greenfield, New York City (Jonathan J. Silbermann, New York City, of counsel), submitted brief for defendant-appellant Ronald Turekian.

Mary Lee Warren, Asst. U.S. Atty., S.D.N.Y. (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Michael Kellogg, Walter S. Mack, Jr., Warren Neil Eggleston, Asst. U.S. Attys., S.D.N.Y., of counsel), for appellee, U.S.

Before CARDAMONE and PIERCE, Circuit Judges, and BONSAL, District Judge. ^*

CARDAMONE, Circuit Judge:

This appeal presents a trial record of a malevolent group of defendants, in the accomplishment of whose violent conspiracies no one was suffered to stand in the way. The problems raised by their trial are varied and complex, not merely on account of the number of those accused, but because two events--one unexpected, one designed--complicated the proceedings immeasurably. Unanticipated was the murder

of defendant Paul Castellano on the streets of New York City, during the trial. The planned action was the government's decision to indict two defendants for conspiracy to murder two "persons" under a statute originally enacted in 1870 to protect citizens from discrimination. Although there is no charge that constancy be Congress' guiding star, it has for over 115 years steadfastly resisted all attempts to change the meaning of the word "citizen".

BACKGROUND

Defendants Anthony Gaggi, Henry Borelli, Peter LaFroscia, Ronald Ustica, Ronald Turekian and Edward Rendini appeal their judgments of conviction entered in the United States District Court for the Southern District of New York (Duffy, J.) on April 9 and 11, 1986, after a five and one-half month jury trial. On October 4, 1984, the government filed a 78-count indictment naming 24 defendants and alleging 11 different conspiracies. On September 9, 1985, Judge Duffy severed the indictment for the separate trials. ¹ The trial at issue on this appeal comprises 23 counts of the original indictment relating to the defendants' stolen car ring involving ten individuals, six of whom are the defendants presently before us. ²

The six defendants were variously charged with and convicted of one or more violations of 18 U.S.C. Secs. 241, 371, 1341 and 2314. Section 371 makes illegal a conspiracy to transport stolen property in interstate and foreign commerce, and Sec. 2314 proscribes the substantive crime of actually transporting such property. Section 241 makes it a crime to deprive any citizen of any right or privilege guaranteed by the Constitution or laws of the United States. Finally, Sec. 1341 proscribes frauds perpetrated through the use of the United States mails.

The defendants, the various crimes with which they were charged, and the dispositions of the charges are as follows. The conspiracy under Sec. 371 charged defendants with combining to ship late-model automobiles stolen on the streets of New York to Kuwait and other parts of the Middle East, Puerto Rico and other states in the United States. Gaggi, Ustica, LaFroscia, Rendini and Turekian were convicted of this conspiracy. Ustica, Borelli and Rendini were also convicted on a number of Sec. 2314 counts; while Gaggi, LaFroscia and Turekian were acquitted on these counts. Borelli and Ustica were additionally convicted of conspiracy to deny citizens their civil rights in violation of Sec. 241 for the murders of Ronald Falcaro and Khaled Fahd Darwish Daoud. Finally, Turekian was convicted of mail fraud in violation of Sec. 1341 for submitting fraudulent claims to Aetna Insurance Company. An appendix included at the end of the opinion shows the charges for which each defendant was indicted, whether the charge resulted in a conviction or an acquittal, and the sentence imposed.

Two of the six issues raised have already been alluded to--the effect of publicity generated by a murder during trial and the conspiracy to commit murder. For organizational purposes the issues raised by appellants will be discussed in the following order: (I) publicity during trial, (II) civil rights murder conspiracy, (III) government's claimed misconduct under Brady and Mooney, (IV) evidentiary contentions, (V) jury instructions, and (VI) sentences.

DISCUSSION

I The Publicity During Trial

Two deaths occurred at different times during this lengthy trial prompting motions for mistrial, which were denied on each occasion. Appellants argue that the continued impartiality of the jury was destroyed It is not an uncommon occurrence for a notorious trial held in Metropolitan New York to engender extensive publicity. The strong public interest in such trials has resulted in procedures to protect defendants' rights to a fair trial. In United States v. Lord, 565 F.2d 831 (2d Cir.1977), we established guidelines for a district court to follow when the problem of widely disseminated publicity may prejudicially impact an ongoing criminal trial. The simple three-step process is, first, to determine whether the coverage has a potential for unfair prejudice, second, to canvass the jury to find out if they have learned of the potentially prejudicial publicity and, third, to examine individually exposed jurors--outside the presence of the other jurors--to ascertain how much they know of the distracting publicity and what effect, if any, it has had on that juror's ability to decide the case fairly. Id. at 838-39. Ultimately, the trial judge must examine the " 'special facts' " of each case, United States v. Persico, 425 F.2d 1375, 1382 (2d Cir.), cert. denied, 400 U.S. 869, 91 S.Ct. 102, 27 L.Ed.2d 108 (1970) (quoting Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1172, 3 L.Ed.2d 1250 (1959) (per curiam)), to determine whether the jurors remained impartial. United States v. Gigante, 729 F.2d 78, 82 (2d Cir.), cert. denied, 467 U.S. 1206, 104 S.Ct. 2390, 81 L.Ed.2d 348 (1984). Absent a clear abuse of the trial court's discretion, its finding that the jury was impartial should be upheld. United States v. Moon, 718 F.2d 1210, 1219 (2d Cir.1983), cert. denied, 466 U.S. 971, 104 S.Ct. 2344, 80 L.Ed.2d 818 (1984); see Marshall, 360 U.S. at 312, 79 S.Ct. at 1172 (trial judge has large discretion in ruling on the issue of prejudice resulting from publicity). With these standards in mind, we turn to the events that occurred during trial and the safeguards taken by the district court.

by these events, and they urge further that the measures taken by the district court were inadequate to protect their rights to a fair trial.

A. The Murder of Paul Castellano

On December 16, 1985 two and one-half months into the trial, Paul Castellano--the lead-named defendant in the indictment and one of the named defendants on trial--was gunned down and killed in mid-town Manhattan while out on bail. Almost immediately news of the murder appeared in virtually every newspaper, radio, and television report in New York City. Two leading newspapers reported the incident, for example, as Mafia's Number One Blown Away, N.Y. Post, Dec. 17, 1985 at 2 and Organized-Crime Chief Shot Dead Stepping From Car on E. 46th St., N.Y. Times, Dec. 17, 1985 at A1, col. 2. The reports of this killing and subsequent investigation did not subside for several weeks. Appellants contend, as they did below, that the jury's exposure to the concededly broad media coverage of this event required a mistrial.

The day after Castellano's death Judge Duffy conducted a separate voir dire of each juror, asking a number of questions regarding what, if anything, the juror had heard or seen about the murder. All of the jurors knew of it, and approximately six also had heard that Castellano had been a head of an organized crime family. None had heard any comments regarding the nine remaining defendants or about the trial, except that Castellano was a defendant before them. All of the jurors stated that they would be able to decide the case fairly and impartially. United States v. Gaggi, 632 F.Supp. 1019, 1020-21 (S.D.N.Y.1986).

Following arguments heard January 6, 1986, on defendants' motion for mistrial, Judge Duffy found that the publicity had "a potential for unfair prejudice," and therefore conducted a second individual voir dire of each juror, including questions suggested by defense counsel. Id. at 1021-22. The trial court concluded that the publicity was collateral in nature, and specifically found that none of the jurors had heard or read anything concerning the remaining defendants. All of the jurors stated unequivocally that their judgment would The record thus reveals that the trial court complied in every respect with this Circuit's guidelines. For instance, in Lord, we held that the district court should not rely solely on repetitive admonitions when widespread publicity created a strong possibility that some jurors might have been exposed to prejudicial publicity. 565 F.2d at 838. In contrast, the district court here took prompt and effective corrective action. Once it saw "a potential for unfair...