United States v. Gallo, No. 86-CR-452 (JBW).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtRichard A. Rehbock, New York City, for defendant Anthony Vitta
Citation653 F. Supp. 320
Docket NumberNo. 86-CR-452 (JBW).
Decision Date14 November 1986
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joseph N. GALLO, Anthony Vitta and Salvatore Migliorisi, et al., Defendants-Appellants.

653 F. Supp. 320

UNITED STATES of America, Plaintiff-Appellee,
v.
Joseph N. GALLO, Anthony Vitta and Salvatore Migliorisi, et al., Defendants-Appellants.

No. 86-CR-452 (JBW).

United States District Court, E.D. New York.

November 14, 1986.


653 F. Supp. 321
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653 F. Supp. 322
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653 F. Supp. 323
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653 F. Supp. 324
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
                 Page
                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
                 ____
                

MEMORANDUM AND ORDER

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.

I. FACTS

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,

653 F. Supp. 325
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."

653 F. Supp. 326
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 youngest son, and the difficulty of setting a wedding date for Vitta's affianced daughter while her father is detained pending trial. The effects felt by defendant Vitta have resulted in a stress-related heart attack suffered during his incarceration. These hardships have been inflicted upon a man whom the law presumes innocent until proven guilty. Vitta has been in prison before, after conviction for criminal usury, but a citation for meritorious service that he received in 1983 from his community for risking his life to rescue neighbors from a burning building indicates that he still has some kind of reputation in the community that might be damaged by this lengthy incarceration.

Migliorisi has no prior criminal record. He and his family are also paying an emotional and financial price for his incarceration.

Neither defendant is a gentle soul. Both are capable of violence for their own and their associates' gain. They both reportedly threatened to viciously kill or beat...

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32 practice notes
  • US v. Gallo, No. CR-86-452 (JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 19, 1987
    ...and numerous alleged instances of both discrete and continuing criminal activities, in a case styled United States v. Gallo, et al., 653 F.Supp. 320 (E.D.N.Y.). The first and central count of the indictment alleges that most of the defendants were members of, or associated with, a secret cr......
  • US v. Gallo, No. 86-CR-452(S) (JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 28, 1987
    ...(discovery of defendants' and co-conspirators' statements), vacated, No. 87-3018 (2d Cir. May 29, 1987); United States v. Gallo, 653 F.Supp. 320 (E.D.N.Y.1986) (pretrial detention for prolonged periods); United States v. Gallo, 86-CR-452(S) (E.D.N.Y. June 1, 1987) (available on WESTLAW DCT ......
  • U.S. v. Beckford, Criminal No. 3:96CR66-01.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • April 4, 1997
    ...States v. Dingle, 546 F.2d 1378, 1380 (10th Cir.1976); United States v. Dansker, 537 F.2d 40 (3rd Cir.1976); United States v. Gallo, 653 F.Supp. 320, 328-29 (E.D.N.Y.1986); United States v. Cuthbertson, 511 F.Supp. 375, 382-83 (D.N.J. 1981), rev'd on other grounds, 651 F.2d 189 (3rd Cir.), ......
  • US v. Gallo, No. CR-86-452(S).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 7, 1987
    ...fifteen codefendants in an action entitled United States v. Gallo, et al., 668 F.Supp. 736 (E.D.N.Y.1987). See United States v. Gallo, 653 F.Supp. 320 (E.D.N.Y.1986); United States v. Gallo, 654 F.Supp. 463 (E.D.N.Y.1987). He was tried along with two codefendants for part of the labor union......
  • Request a trial to view additional results
32 cases
  • US v. Gallo, No. CR-86-452 (JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 19, 1987
    ...and numerous alleged instances of both discrete and continuing criminal activities, in a case styled United States v. Gallo, et al., 653 F.Supp. 320 (E.D.N.Y.). The first and central count of the indictment alleges that most of the defendants were members of, or associated with, a secret cr......
  • US v. Gallo, No. 86-CR-452(S) (JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 28, 1987
    ...(discovery of defendants' and co-conspirators' statements), vacated, No. 87-3018 (2d Cir. May 29, 1987); United States v. Gallo, 653 F.Supp. 320 (E.D.N.Y.1986) (pretrial detention for prolonged periods); United States v. Gallo, 86-CR-452(S) (E.D.N.Y. June 1, 1987) (available on WESTLAW DCT ......
  • U.S. v. Beckford, Criminal No. 3:96CR66-01.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • April 4, 1997
    ...States v. Dingle, 546 F.2d 1378, 1380 (10th Cir.1976); United States v. Dansker, 537 F.2d 40 (3rd Cir.1976); United States v. Gallo, 653 F.Supp. 320, 328-29 (E.D.N.Y.1986); United States v. Cuthbertson, 511 F.Supp. 375, 382-83 (D.N.J. 1981), rev'd on other grounds, 651 F.2d 189 (3rd Cir.), ......
  • US v. Gallo, No. CR-86-452(S).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 7, 1987
    ...fifteen codefendants in an action entitled United States v. Gallo, et al., 668 F.Supp. 736 (E.D.N.Y.1987). See United States v. Gallo, 653 F.Supp. 320 (E.D.N.Y.1986); United States v. Gallo, 654 F.Supp. 463 (E.D.N.Y.1987). He was tried along with two codefendants for part of the labor union......
  • Request a trial to view additional results

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