U.S. v. Gallo, 560
| Decision Date | 22 September 1988 |
| Docket Number | No. 560,D,560 |
| Citation | 859 F.2d 1078 |
| Parties | UNITED STATES of America, Appellee, v. Joseph N. GALLO, Joseph Armone, Joseph Corrao, Robert DiBernardo, James Failla, Joseph Zingaro, Thomas Agro, Robert Desimone, Jack Giardano, Angelo Ruggiero, Anthony Vitta, George Daly, Louis Giardina, Salvatore Migliorisi, Julie Miron, Mildred Russo, Defendants, Julie Miron, Defendant-Appellant. ocket 87-1379. |
| Court | U.S. Court of Appeals — Second Circuit |
Lawrence H. Tribe, Cambridge, Mass. (Brian Koukoutchos, Cambridge, Mass., Andrew M. Lawler and Sharon D. Feldman, New York City, of counsel), for defendant-appellant.
Douglas E. Grover, Sp. Atty., Brooklyn Strike Force, Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., Deborah Watson, Dept. of Justice, Washington, D.C., Laura Ward, Sp. Atty., Brooklyn Strike Force, Brooklyn, N.Y., of counsel), for appellee.
Before VAN GRAAFEILAND, WINTER and ALTIMARI, Circuit Judges.
This appeal raises in stark form the question of under what circumstances a defendant is entitled to a dismissal of an indictment where his fifth amendment rights have been violated by the inadvertent inclusion of prior immunized testimony in an application for electronic surveillance that led to evidence of his criminality.
Julie Miron testified under a grant of immunity before a grand jury looking into the activities of now-convicted labor-racketeer John Cody. A paragraph of Miron's testimony was erroneously included in a lengthy application for an extension of an electronic surveillance authorization in the home of the late Paul Castellano. The surveillance eventually uncovered a labor payoff scheme implicating Miron. The paragraph containing the immunized testimony was so inconsequential, however, that it could not have influenced the government's decision to seek or the district judge's decision to issue the surveillance order. Because inclusion of the paragraph did not affect the course of events leading to Miron's conviction, I would affirm the judgment of conviction.
In March 1980 the Organized Crime Strike Force of the Eastern District of New York obtained an order compelling Julie Miron, the president of several building supply corporations, to testify before a grand jury investigating John Cody, a former labor official with suspected ties to organized crime. Miron's testimony was given under a grant of immunity pursuant to 18 U.S.C. Sec. 6002 (1982), following Miron's assertion of his fifth amendment privilege in response to the question: "Do you know John Cody?"
On June 18, 1980, Miron appeared before the grand jury and answered questions about the union contracts of his building supply companies, his relationship with John Cody, and his relationship with the late Paul Castellano, the alleged boss of the Gambino organized crime family. Miron testified that one of his companies had a contract with a union headed by Cody and that he had other business dealings with Cody and Cody's son. Miron also testified that his companies had supplied building materials to Castellano's sons and that he met with Castellano and John Cody at a Manhattan restaurant to resolve a dispute about the price of those materials.
The grand jury investigation culminated in the indictment and conviction of Cody on labor-racketeering charges. Although Miron did not testify at Cody's trial, a special Subsequently, the Brooklyn Strike Force initiated an investigation of potential racketeering violations by the Gambino organized crime family. On November 12, 1982, the government applied for authorization to place electronic bugs in Castellano's home. In support of the application, an affidavit by an FBI agent recited information substantiating probable cause for a wiretap concerning possible loansharking and murder. The affidavit also recited other criminal activities of the Gambino crime family. On the basis of that affidavit, Judge Bramwell signed an order authorizing a 30-day wiretap. Because of logistical difficulties in installing the necessary equipment, the Strike Force applied for and received three extensions of the original wiretap order. None of these applications referred to Miron's immunized testimony.
agent of the Strike Force provided Miron's grand jury testimony to the probation officer who prepared Cody's presentence report. The report used Miron's immunized testimony to establish a connection between Cody and Castellano.
Information revealed in conversations intercepted at the Castellano residence led the government on April 8, 1983 to seek another extension of the original order and a broader wiretap authorization to cover Hobbs and Taft-Hartley Act violations. The affidavit supporting the application described the Gambino family's labor-racketeering activities, including providing "muscle" for and sharing payoffs with corrupt union officials, and stated that John Cody was one such official. In addition, the affidavit stated that reliable informants had told the FBI that Cody was a close associate of Carlo Gambino, former head of the organized crime family, and of Paul Castellano. Also included in the affidavit, however, was a reference to part of Miron's immunized 1980 grand jury testimony. Paragraph 18 stated:
I am also informed ... that during [the] investigation of the Cody case, he heard testimony from Julie Miron, the president of Miron Mason Supplies. Mr. Miron said that he had supplied materials for the construction for homes CASTELLANO's sons were building on Staten Island. A dispute arose over the price Mr. Miron was charging for the materials. Mr. Miron was then contacted by John Cody on behalf of CASTELLANO. Cody said that he thought Mr. Miron's prices for the CASTELLANO materials were too high. Cody then arranged a meeting with PAUL CASTELLANO, Cody, and Miron attended to discuss this dispute.
The agent who included this paragraph did not know that it was based on immunized grand jury testimony.
The affidavit went on to describe a number of intercepted conversations involving explicit and extensive labor-racketeering activities. It also stated that cars registered in Miron's name arrived at the Castellano residence and that Miron visited the home, after arranging a meeting with Castellano in a phone conversation during which Miron used a code name.
On April 8, 1983, Judge Bramwell extended and expanded the wiretap authorization as requested by the government. Conversations intercepted thereafter implicated Miron and his co-defendants in a large-scale labor payoff scheme involving the use of non-union labor on multi-million dollar contracts for work on Mobile Oil Corporation's deep water terminal and pipeline facility at Port Mobil, New York.
Based on this evidence, Miron was indicted on Taft-Hartley, racketeering and obstruction of justice charges in June 1986. Before trial, Miron moved to dismiss the indictment or, alternatively, to suppress the evidence on the ground that the government had improperly used his immunized grand jury testimony to obtain both the indictment and the evidence to be used against him at trial. Then Chief Judge Weinstein denied the motion, stating that the small part of Miron's immunized 1980 grand jury testimony referred to in the wiretap affidavit was "of no significance," and that its use was like "having a horse blanket and throwing it on top of ... a little handkerchief, no effect whatsoever." Judge Weinstein found that: (1) the FBI agent who prepared the affidavit in question did not know that Miron's testimony It is apparent that (1) any judge of this court would have taken the same action, and that (2) the absence of the Miron references would have made no difference in the result. In terms of the order actually obtained, the immunized testimony of Miron had no impact at all.
had been immunized; and (2) the government proved beyond a reasonable doubt the existence of "wholly independent legitimate sources" causing the government to apply for and the district court to grant the renewed and expanded wiretap order. He concluded that
The parties agree that the evidence against Miron developed through the electronic surveillance authorization was the basis for his conviction. This appeal presents two issues: (1) whether the government's use of Miron's immunized testimony violated his fifth amendment and statutory rights; and (2) if so, whether he is entitled to relief for improper use of his immunized testimony where use of the testimony did not affect the course of events leading to his indictment.
I believe it clear that the portion of Miron's grand jury testimony used in the affidavit was subject to a valid claim of privilege. The precise question causing Miron to invoke the fifth amendment, and the government to enforce the immunity order, was, "Do you know John Cody?" No claim was made by the government that the privilege was improperly invoked, as an admission of a relationship with Cody might well have been a link in a chain of evidence showing criminality. See Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). Had Miron continued to refuse to testify concerning his relationship with Cody, which of course led to disclosure of his relationship with Castellano, Miron would have been held in contempt. That testimony is thus covered by use-immunity under 18 U.S.C. Sec. 6002 (1982). 1
The government argues, however, that because the crimes committed by Miron occurred after he gave his immunized testimony, the use of that testimony in securing the indictment and his conviction violates neither the statute nor the fifth amendment. I do not discern in relevant Supreme Court decisions such a broad principle. Indeed, Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), held the registration provisions of the gambling tax statutes...
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