U.S. v. Gigante, 376
| Decision Date | 21 February 1984 |
| Docket Number | D,No. 376,376 |
| Citation | 729 F.2d 78 |
| Parties | 15 Fed. R. Evid. Serv. 89 UNITED STATES of America, Appellee, v. Mario GIGANTE, Defendant-Appellant. ocket 83-1229. |
| Court | U.S. Court of Appeals — Second Circuit |
Bruce A. Baird, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. for the Southern Dist. of N.Y., Robert S. Litt, Asst. U.S. Atty., New York City, on the brief), for appellee.
Alan M. Dershowitz, Cambridge, Mass. (Nathan Z. Dershowitz, Dershowitz & Eiger, New York City, on the brief), for defendant-appellant.
Before MANSFIELD, KEARSE and PRATT, Circuit Judges.
Defendant Mario Gigante appeals from a judgment entered in the United States District Court for the Southern District of New York, Charles E. Stewart, Jr., Judge, after a jury trial, convicting him and a codefendant, Michael Vodola, of two counts of making extortionate extensions of credit, two counts of using extortionate means to collect such extensions of credit, and two counts of conspiring to commit those substantive offenses, in violation of 18 U.S.C. Secs. 891, 892, 894, & 2 (1982). Gigante was sentenced to concurrent eight-year terms of imprisonment on all six counts. 1 On appeal, Gigante asserts that he was denied a fair trial principally because of (1) prejudicial publicity to which the jury was exposed on the eve of its deliberations, (2) erroneous evidentiary rulings by the trial court, and (3) improper questioning by the prosecutor. We affirm the judgment of conviction.
Gigante and Vodola were indicted in a twelve-count indictment charging them with one count of conspiring to make extortionate extensions of credit and to threaten violence as a means of coercing repayment, in violation of 18 U.S.C. Secs. 891 and 892 (count 1); six counts of making specified extortionate extensions of credit, in violation of Secs. 891, 892, and 2 (counts 2-7); one count of conspiring to collect repayments by extortionate means, in violation of Secs. 891 and 894 (count 8); and four counts of using extortionate means to collect repayments, in violation of Secs. 891, 894, and 2 (counts 9-12). Counts 4, 5, and 10 were dismissed on motion of the government before the close of its case.
The government's proof at trial, the sufficiency of which is not challenged by Gigante, was presented primarily through the testimony of loanshark victim Ralph Sirabella, tape-recorded conversations Sirabella had with Vodola and other persons, Sirabella's written records of the payments he made to Vodola and Gigante, and Vodola's written records of payments he collected for Gigante from Sirabella and others. Sirabella, a butcher by trade, was a lifelong gambler who frequently borrowed money from loansharks to meet his gambling debts. In 1977, Sirabella met Vodola, with whom he placed bets; when Sirabella needed more money to cover his bets, Vodola told him about a man named Mario who Vodola said was connected to organized crime and would lend Sirabella money. Soon thereafter, Vodola introduced Sirabella to Mario Gigante, who loaned Sirabella $10,000, which Sirabella was to repay at the rate of $200 per week until he had paid a total of $20,000. Vodola described to Sirabella how other persons who owed money to Gigante were beaten when they failed to make payments on time.
At the same time, Sirabella owed money to other loansharks, two of whom beat him and threatened him late in 1979 when he failed to pay them on time. Unable to keep up with all of the payments due all of the loansharks, Sirabella told Vodola about the beating he had received and asked for help. In early 1980, Vodola and Gigante consolidated all of Sirabella's loans, doubled the total amount of his outstanding debt to an amount in excess of $200,000 while giving him no cash, and arranged for a repayment In early February 1981, Sirabella found that his apartment had been entered in his absence by someone with a key and that his tape recorder, which showed he had been cooperating with the FBI, had been tampered with. The evidence revealed that Sirabella's landlord, who had keys to the apartment, was acquainted with Gigante. Following the break-in, Vodola behaved in a markedly more friendly manner toward Sirabella; he made no more threats, he no longer demanded payments, and he volunteered that Gigante would help Sirabella get a bank loan if he needed one.
schedule of $600 per week. Gigante threatened Sirabella on several occasions when he was late with his payments, and once punched him in the face. In January of 1981, afraid for his life, Sirabella went to the FBI for help. He began to tape record conversations he had with Vodola, during which he was threatened repeatedly with what Gigante would do to him if he failed to make his payments.
Trial had commenced on February 16, 1983. On Friday, March 4, the government presented its closing argument to the jury; defense summations were scheduled for Monday, March 7. On Sunday, March 6, the New York Daily News published a lengthy article about organized crime activity on the New Jersey waterfront, mentioning loansharking as one of the activities in which the mob engaged. The article was accompanied by a picture of Gigante, whom the article described as an "alleged Genovese capo." The article cited as its source "an FBI affidavit filed in federal court."
The prosecutor notified the trial court promptly on Monday morning about the article's appearance. In response to defense counsel's query about how it happened that the article was published shortly before the case was scheduled to go to the jury, the prosecutor responded that he had inquired of an FBI agent in Newark, who had told him that The defendants moved for a mistrial and for an evidentiary hearing into the possibility of prosecutorial misconduct leading to the publicity.
The court proceeded to question each of the regular and alternate jurors individually, with counsel present, as to their awareness of and reactions to the Daily News article. Four jurors said they had seen the article, eight others said they had heard the article mentioned in the jury room, and two jurors said they were unaware of the article. Each juror assured the court that the incident would not affect his ability to render a fair and impartial decision. The court was satisfied that neither the jury as a whole nor any of its members had been prejudicially affected by the article, and it denied defendants' motions. It offered to give a cautionary instruction, which defense counsel declined. After trial the court adhered to its decision, denying a renewed motion by Gigante for a mistrial and a hearing. (Memorandum Decision dated June 10, 1983 ("June 10 Decision").)
The jury deliberated for four days. During its deliberations it requested a number of exhibits, transcripts of all of the tapes in evidence, the replaying of some of the tapes, and the rereading of some of the testimony. Eventually the jury found Gigante and Vodola guilty on both conspiracy counts (1 and 8), on two counts of making extortionate extensions of credit (2 and 7), and on two counts of using extortionate means to collect such extensions of credit (11 and 12). It found each defendant not guilty on counts 3, 6, and 9.
On appeal Gigante contends principally that the district court should have granted a mistrial because of the adverse publicity during trial. In addition, he contends, inter alia, that the trial court improperly permitted the government to make references to Gigante's alleged connections to
organized crime and improperly allowed the introduction of evidence of other crimes by Gigante and other persons. Gigante also argues that he was denied a fair trial by the prosecutor's improper inquiry as to whether Sirabella still feared Gigante. We have considered all of Gigante's contentions, singly and in combination, and find in them no basis for reversal.
On appeal, Gigante renews his arguments that the publicity was so prejudicial as to require a mistrial and that a hearing should have been held to determine the source of the "leak" of the information to the press. He cites as grounds for mistrial the sensational nature of the article, the references linking Gigante to organized crime and to loansharking, the timing of the article's release, the credibility of the newspaper's source, the pervasiveness of the medium, and the evidence of the jurors' exposure to the article. As to the need for a hearing, Gigante states that "the circumstances strongly suggest[ ] possible prosecutorial complicity" (Gigante brief on appeal at 25), and challenges the court's reliance on the "uncross-examined and conclusory assertion of the United States Attorney that no prosecutor had been involved." (Id.) We are unpersuaded.
The trial court has broad discretion in determining whether prejudice requiring the grant of a mistrial has resulted from publicity during a trial. 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). Each case must turn on its own facts, and the essential question is whether the jurors retained the requisite impartiality. Id. The trial judge is in the best position to make such an evaluation. In a case in which (1) the publicity does not focus directly on the issue of the defendant's guilt or innocence with respect to the charges in the ongoing trial, (2) much of the potentially prejudicial matter has been adduced as competent evidence at trial, (3) the trial judge has taken prompt action to determine the effect of the publicity on the jurors, and (4) the judge has given or offered to...
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