United States v. Gallo

Decision Date14 November 1986
Docket NumberNo. 86-CR-452 (JBW).,86-CR-452 (JBW).
Citation653 F. Supp. 320
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joseph N. GALLO, Anthony Vitta and Salvatore Migliorisi, et al., Defendants-Appellants.
CourtU.S. District Court — Eastern District of New York




Douglas E. Grover, Laura A. Ward, Sp. Attys., U.S. Dept. of Justice, Organized Crime Strike Force for the U.S.

Richard A. Rehbock, New York City, for defendant Anthony Vitta.

David A. DePetris, DePetris & Meyer, New York City, for defendant Salvatore Migliorisi.

                                        TABLE OF CONTENTS
                I.   FACTS                                                     324
                II.  LAW                                                       326
                     A. Procedural Issues                                      326
                        1. Jurisdiction                                        326
                        2. Release of the Witness' Presentence Report          328
                        3. Reliance by the Court on the Witness' Grand
                           Jury Testimony                                      331
                     B. Detention Based on Threat to Witness                   331
                        1. Trial Court's Powers                                331
                        2. Severity of Threat                                  332
                           a. Admission of Grand Jury Testimony                332
                           b. Admission of Testimony at Hearing                332
                           c. Consciousness of Guilt                           333
                           d. Power of Detention to Diminish Threat            333
                        3. Other Grounds for Detention                         334
                        4. Due Process                                         334
                           a. Punishment vs. Regulation                        334
                           b. Length of Detention                              335
                           c. Nature of Burdens and Harms Caused by
                              Pretrial Detention                               336
                              i.  Stigma and Burdens on Defense                336
                              ii. Cumulative Effects                           337
                        5. Need for Balancing, with Emphasis on Time
                           Served                                              338
                        6. Need for Balancing, with Emphasis on Other
                           Factors Emphasized by Courts of Appeals             343
                        7. Need for Balancing, with Emphasis on Statutory
                           Considerations                                      344
                III. APPLYING LAW TO FACTS                                     344
                IV.  ADDITIONAL PROTECTIVE BAIL CONDITIONS                     345

WEINSTEIN, Chief Judge:

Defendants Anthony Vitta and Salvatore Migliorisi are in custody because they were found to constitute a danger to a potential witness, "X." They move for their release pending trial. Decision requires a balancing of the dangers to the witness and to society against the likelihood that the defendants' continued incarceration would protect "X" and the unfairness of incarcerating for long periods persons presumed to be innocent. As indicated below, analysis of the facts and various relevant factors requires conditional release.


Vitta and Migliorisi were indicted on June 20, 1986 along with fourteen co-defendants. Both were charged with extortion in violation of 18 U.S.C. § 1951. Vitta is alleged to have engaged in loansharking. 18 U.S.C. §§ 892 and 894. He is also alleged to have been a member of a criminal enterprise in violation of the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. United States v. Gallo, CR-86-452 (E.D.N. Y.). The government expects "X," the alleged victim of the defendants' extortion, to testify at trial.

The defendants were arrested on June 20, 1986. At a June 24th hearing before the Magistrate an FBI agent testified about threats to "X." "X" had received three messages on his telephone answering machine on the evening of June 21st. The first message was from an unknown caller who threatened his life, and the second and third messages were from Migliorisi, asking for an appointment to see "X" at the latter's place of business. On Monday, June 23rd, Migliorisi and his attorney visited "X" seeking his signature on papers necessary to obtain Vitta's release on bail. Migliorisi was reported by one of "X"'s employees to have said that "X" was in danger.

The Magistrate found that incarceration was required because of the defendants' threat to "X." Both defendants were ordered incarcerated pending trial. On stipulation that no additional hearing was required, this court affirmed the Magistrate's detention order on June 27th. On August 27th the Court of Appeals affirmed without opinion. 801 F.2d 392.

At the time of the initial detention hearing and appeals it was believed that the case could be tried promptly. Subsequently, during pretrial conferences, it became clear that because of an overlap of defendants and defense counsel, the instant case could not be tried before two lengthy trials in complex multi-defendant cases, United States v. Gotti, CR-85-178 (E.D.N.Y.) and United States v. Ruggiero, CR-83-412 (E.D.N.Y.). Jury selection in the Gotti case was completed on September 25, 1986 and a projected three-month trial is now in progress. Trial in United States v. Ruggiero will start after the Gotti case is completed; it is expected to last several months. Accordingly, by agreement of all parties, and with due regard to Speedy Trial Act requirements, the instant case was set for trial in March of 1987.

Since this is a complex case involving multiple counts and numerous defendants, the trial will take many months. The result of these necessary delays would be the incarceration of the defendants, who are presumed innocent, for over a year. Based on this trial date and on other information presented by defense counsel, the defendants moved under 18 U.S.C. § 3142(c) for reconsideration of the detention order.

On September 22nd and 23rd the court held hearings at which "X" appeared before the court for the first time. During the course of the hearings the witness' presentence report in another case came to the court's attention.

"X" had originally been scheduled to be sentenced by another judge for conspiracy to defraud the Internal Revenue Service on his corporate income taxes and for income tax evasion on his personal returns. The Indictment, CR-86-220, charges eleven counts of tax fraud using complex and extensive schemes to avoid taxes totaling some $100,000 from 1980 to 1984. "X" pled guilty to two counts. Since "X"'s sentence on these charges may depend on his testimony in this case, his sentencing was reassigned to the judge in charge of the instant case. It has been scheduled to follow the conclusion of the trial in this case.

The hearing and presentence report puts "X," his relationship to the two incarcerated defendants, and the threat in a new light. Rather than being simply the blameless victim of extortion by the two defendants, "X" himself is a criminal. He has one prior conviction of conspiracy to transport obscene material in interstate commerce, 18 U.S.C. § 371, for which he was fined. He had an intimate social relationship with the defendants over a number of years; their families mingled in and outside their homes. "X"'s business benefited from the association since the defendants obtained and serviced customers for him; the defendants may have been instrumental in ensuring labor peace in his business. "X" may even be profiting financially from the defendants' incarceration, since he has retained the defendants' customers but stopped paying defendants' commissions.

"X" appears to have more resources for his own protection than the average citizen. He carries a gun, for which he has held a license for a number of years, and has a private collection of twenty guns. He has not availed himself of the government's witness protection program. He has the resources to provide, and apparently has arranged for, private protection. He can call upon the FBI when he feels threatened, as he did following the telephone calls of June 21st.

There are persons other than the defendants with a possible animus against "X." That enmity might have been intensified upon publication of the news of the indictment in the present case, with the suggestion that "X" was cooperating in the prosecution in order to avoid punishment for his own crimes. He received a light sentence in an obscenity case because he cooperated with the government against a number of his former colleagues, who had been engaged with him in producing and distributing pornographic pictures depicting a variety of perversions. "X" has had two divorces and has little, if any, contact with his offspring. He "bought out" his business partner. He has avoided unionization despite apparent labor problems. He lives in a fine home on the waterfront with a 38-foot cabin cruiser at his adjacent private dock.

A person with "X"'s lifestyle and history might well have picked up enemies along the way other than the defendants. In addition, it is possible that one of Vitta's or Migliorisi's misguided friends spontaneously made the threats without the personal complicity of the defendants.

All of the above derogatory information about "X" strongly suggests that it is in the defendants' best interests to have "X" appear at trial. As a witness his credibility may be attacked and his demeanor observed by the jury. Based upon the court's observation of "X" during his testimony before it, a jury is likely to find "X"'s believability something less than perfect.

Lengthy pretrial detention has imposed upon the defendants the usual sorts of hardships and stigma that accompany imprisonment. The effects upon the defendants' families are illustrated by the insomnia of defendant Vitta's...

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