U.S. v. Ruggiero

• Decision Date: 22 March 1991
• Docket Number: 630,Nos. 629,D,s. 629
• Citation: U.S. v. Ruggiero, 928 F.2d 1289 (2nd Cir. 1991)
• Parties: 32 Fed. R. Evid. Serv. 689 UNITED STATES of America, Appellee, v. Angelo RUGGIERO, et al., Defendants, Gene Gotti and John Carneglia, Defendants-Appellants. ockets 89-1354, 89-1355.
• Court: U.S. Court of Appeals — Second Circuit

Page 1289

928 F.2d 1289

32 Fed. R. Evid. Serv. 689

UNITED STATES of America, Appellee, v.Angelo RUGGIERO, et al., DefendantsGene Gotti and John Carneglia, Defendants-Appellants.

Nos. 629, 630, Dockets 89-1354, 89-1355.

United States Court of Appeals Second Circuit.

Argued Jan. 18, 1990.

Decided March 22, 1991.

Mark F. Pomerantz, New York City(Ronald P. Fischetti, David T. Grudberg, Fischetti Pomerantz & Russo, New York City, of counsel), for defendant-appellantGene Gotti.

Gerald L. Shargel, New York City(John L. Pollok, Hoffman & Pollok, New York City, of counsel), for defendant-appellantJohn Carneglia.

Matthew E. Fishbein, Asst. U.S. Atty. E.D. of New York, Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. E.D. New York, David C. James, John Gleeson, Robert P. LaRusso, Asst. U.S. Attys.E.D. New York, Brooklyn, N.Y., of counsel), for appellee U.S.

Before FEINBERG, PRATT, and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

AppellantsGene Gotti and John Carneglia appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, John R. Bartels, Judge, following a jury trial, for racketeering conspiracy in violation of 18 U.S.C. Sec. 1962(d)(1988), narcotics conspiracy in violation of 21 U.S.C. Sec. 846(1988), and possession of heroin with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1)(1988); and, in the case of Carneglia, for traveling in interstate commerce to promote and facilitate the conduct of a narcotics business enterprise in violation of 18 U.S.C. Sec. 1952(1988).

They contend on appeal that (1)the trial court committed reversible error in rulings with respect to the dismissal of a juror during jury deliberations and the jury's subsequent rendition of verdicts; (2) evidence and leads derived from certain electronic surveillance should have been suppressed because of minimization violations; (3) certain tape recordings were received in evidence without adequate authentication; (4) improper expert testimony regarding drug transactions was admitted; and (5)the district court improperly relied upon in camera testimony in sentencing Gotti and Carneglia.

We affirm.

BACKGROUND

A.Procedural History.

The procedural history of this case is lengthy and complex, and we summarize it only briefly here.We assume familiarity with two prior opinions, United States v. Ruggiero, 678 F.Supp. 46(E.D.N.Y.1988)("Ruggiero I "), andUnited States v. Ruggiero, 846 F.2d 117(2d Cir.), cert. denied, 488 U.S. 966, 109 S.Ct. 491, 102 L.Ed.2d 528(1988)("Ruggiero II "), which treat in more detail certain of the matters hereinafter considered.

The initial trial in this case commenced before District Judge Mark A. Costantino and an anonymous jury on June 1, 1987.On October 22, 1987, the government initiated an investigation, based upon information from confidential sources, to ascertain whether efforts were being made to compromise the jury.SeeRuggiero I, 678 F.Supp. at 47.The investigation resulted in a seriatim voir dire of the individual jurors on January 11, 1988 to determine whether any of them had been compromised, and a hearing with regard to the jury-tampering issue before Judge Costantino that commenced on January 13, 1988.SeeRuggiero II, 846 F.2d at 120.Upon conclusion of the hearing, the government moved for a mistrial on January 19, 1988.Seeid. at 121.

Later that day, the United States District Court for the Eastern District of New York convened in banc to consider whether the government had made spurious charges of jury tampering to provoke a mistrial, ruled that the charges were appropriate and bona fide, observed that "[a]ny publicity arising from the United States Attorney's application, which may have come to the attention of some jurors and resulted in their doubting their ability to decide the case fairly was not due to the fault of the United States Attorney,"id. at 122, and concluded that the question whether and when to order a mistrial was properly left to the trial judge.Seeid. at 121-22.

Judge Costantino thereupon declared a mistrial in Ruggiero I, concluding "that there is a very high degree of likelihood that the panel sitting on this case has to some extent been compromised as a result of unlawful conduct circumstantially attributable to the defendants."678 F.Supp. at 48.The case was then reassigned to then-District Judge Joseph M. McLaughlin, who severed the case into four parts, one of which is the subject of the instant appeal.

The defendants moved to bar a retrial on double jeopardy grounds, contending that Judge Costantino had erroneously declared a mistrial.SeeRuggiero II, 846 F.2d at 122.Judge McLaughlin denied the motion, an interlocutory appeal was taken, and we affirmed in Ruggiero II, finding that the "testimony presented at the [district court] hearing and the information the FBI received from confidential sources" supported the district court's finding "that there was a 'distinct possibility' of jury tampering."840 F.2d at 123-24.¹Gotti and Carneglia were then tried, together with Angelo Ruggiero, before Judge McLaughlin, resulting in a second mistrial when the jury was unable to reach a unanimous verdict.

After being reassigned to Judge Bartels, the third trial of Gotti and Carneglia commenced on April 17, 1989 on the basis of a five-count redacted, superseding indictment.²Count one charged that from in or about February 1982 until the date of the filing of the indictment, Gotti, Carneglia, and others conspired to make money by engaging in a pattern of racketeering activity, including, but not limited to, the distribution of heroin, in violation of 18 U.S.C. Sec. 1962(d)(1988).Count two charged Gotti, Carneglia, and Ruggiero with taking part in a continuing criminal enterprise between February and June 1982 with five or more individuals with respect to whom Gotti, Carneglia, and Ruggiero occupied "the position of organizer, supervisor and manager," from which activities they obtained substantial income and resources, in violation of 21 U.S.C. Sec. 848(1988).Count three charged that between February and June 1982, Gotti, Carneglia, and others conspired to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. Sec. 846(1988).Count four charged that on or about June 11, 1982, Carneglia and Ruggiero travelled in interstate commerce from LaGuardia Airport in New York to West Palm Beach in Florida to promote and facilitate the conduct of a narcotics business enterprise in violation of 18 U.S.C. Sec. 1952(1988).Count five charged that on or about June 23, 1982, Gotti, Carneglia, and others possessed with the intent to distribute approximately two kilograms of heroin in violation of 21 U.S.C. Sec. 841(a)(1)(1988).

At the close of the government's case, the court granted defendants' motion to dismiss the continuing criminal enterprise count.On May 23, 1989, the jury returned a verdict finding Gotti and Carneglia guilty on the remaining counts with which they were charged.Gotti was sentenced to twenty years on count one, fifteen years on count three, and fifteen years on count five, all to run consecutively for a total of fifty years.He was also sentenced to a three-year term of special parole with respect to count five, and assessed a fine of $75,000.The same sentence was imposed upon Carneglia, with the addition of a five-year concurrent sentence on count four.

B.Events At and Preceding Trial.

On November 9, 1981 special agents of the Federal Bureau of Investigation (the "FBI") applied for and received court authorization to intercept communications being conducted over a telephone in a house occupied by Ruggieroat 163-36 88th Street, Howard Beach, New York.In the months prior to the application, FBI agents had been in contact with confidential informants who had reported that Ruggiero was a member of the Gambino organized crime family, which engaged in extortionate extensions and collections of credit and illegal gambling, and that he conducted conversations over the telephone at the above address regarding those activities.

The interception of telephone calls continued at the Howard Beach location until December 1, 1981, when Ruggiero moved to a new residence located at 370 Barnard Avenue, Cedarhurst, New York.Following the move, on December 29, 1981, agents applied for and received authorization to intercept telephone conversations from the two telephones located in Ruggiero's Cedarhurst home for a period of thirty days.³

On April 5, 1982, in addition to receiving authorization to intercept wire communications for an additional thirty days, agents applied for and were given authority to place electronic surveillance devices in several rooms of Ruggiero's Cedarhurst home.This authorization was extended by subsequent thirty-day orders on May 7, 1982 and June 7, 1982.

Over the course of this surveillance, agents gathered tapes evidencing that Ruggiero and defendants Gotti and Carneglia, in addition to their involvement in illegal gambling and loansharking, were principals in an extensive narcotics enterprise that distributed large quantities of heroin, and, to a lesser extent, cocaine and methaqualone tablets.

We have briefly described hereinabove the major events which occurred from the completion of the primary government investigation to the commencement of the third trial of Gotti and Carneglia before Judge Bartels.Gotti and Carneglia do not challenge the sufficiency of the evidence presented by the government at that trial, which consisted primarily of recordings of telephonic and other conversations resulting from the surveillance described hereinabove.Rather the "principal issue raised on the appeal," according to appellants' counsel, is "whether the trial judge erred in his handling of the events that took place after the jury retired to consider its verdict."

Counsel delivered their summations to the jury on ...