United States v. Gallo

• Decision Date: 30 May 1975
• Docket Number: Crim. No. B 74-13.
• Citation: 394 F. Supp. 310
• Parties: UNITED STATES of America v. Dominic P. GALLO and Carmen Ricca.
• Court: U.S. District Court — District of Connecticut

394 F. Supp. 310

UNITED STATES of America v. Dominic P. GALLO and Carmen Ricca.

Crim. No. B 74-13.

United States District Court, D. Connecticut.

May 30, 1975.

Paul E. Coffey, Sp. Atty., U. S. Justice Dept., Hartford, Conn., for plaintiff.

Elaine S. Amendola, Zeldes, Needle & Cooper, Bridgeport, Conn., for defendant Gallo.

J. Daniel Sagarin, Schless & Sagarin, Bridgeport, Conn., for defendant Ricca.

RULING ON DEFENDANTS' MOTION TO DISMISS

ZAMPANO, District Judge.

This motion to dismiss challenges the questionable procedures employed by the government's attorney to secure a second indictment against the defendants. The prosecutor obtained the present indictment by submitting to the grand jury written transcripts of a witness's testimony before a prior grand jury, and by informing the second grand jury that he was seeking to make mere technical corrections in the first charge.

I.

The facts are not in dispute. On November 28, 1972, Jerome Buckley, the chief government witness in this case, appeared before a grand jury in Hartford, described his role in an illegal gambling business, and testified as to the participation of the defendants in the business. In one portion of his testimony, Buckley described a gathering in Easton, Connecticut, where the various members of the gambling syndicate including defendant Gallo met to centralize its operations after the death of a key figure. On June 13, 1973, Buckley appeared before the same grand jury and admitted that he had fabricated the story of the Easton meeting. Buckley explained that there had been friction between Gallo and himself and that he had cooperated with federal authorities to insure Gallo's indictment. After confessing his perjury, Buckley reaffirmed the rest of his testimony concerning Gallo's involvement in a "policy playing" racket. On the basis of Buckley's testimony, the identification of certain gambling records, and the testimony of a police officer who performed surveillance of the gambling operations in 1972, the grand jury returned an indictment against the defendants, in Criminal No. B-96, filed on June 14, 1973.

The defendants attacked the indictment in Criminal No. B-96 in a lengthy motion to dismiss. Subsequently, the government concluded that there were several errors in the initial true bill. Not only did the indictment charge that the defendants' activities in violation of 18 U.S.C. § 1955 commenced before the effective date of that statute, but also the Connecticut state statute allegedy violated was cited mistakenly. The government therefore dismissed the charges in Criminal No. B-96 after obtaining the present indictment in Criminal No. B-74-13. This true bill corrects the aforementioned errors and charges the defendants with owning and conducting in concert with others an illegal gambling business, in violation of 18 U.S.C. §§ 1955 and 2.

It is the manner in which the government attorney, Mr. Paul Coffey, procured the instant indictment which gives rise to the defendants' present claim. On February 27, 1974, having decided to seek a new indictment against defendants, Mr. Coffey convened a grand jury in Hartford. This grand jury was composed of individuals entirely different from the panel which returned the indictment in Criminal No. B-96, because the term of the previous grand jury had expired. When Mr. Coffey appeared before this new grand jury, he stated at the outset that he was seeking an indictment of the defendants and that he was supplying the grand jury with transcripts of the testimony of "Gerald" Buckley before a previous grand jury on November 28, 1972, and on June 13, 1973. This testimony, the prosecutor said, had resulted in a prior indictment of the defendants by the preceding grand jury. He then explained that the proposed indictment he was submitting to the jurors was a "superseding indictment" which changed the first true bill in two ways. First, the new indictment changed the initial date when the gambling business was alleged to have operated, "to avoid . . . charging the Defendants with an offense which was not a criminal offense." Second, the new indictment changed the citation of the state law being violated to "the technically correct citation." In concluding his brief remarks, the government attorney stated that the probable cause upon which the previous grand jury had returned the prior charges consisted of Buckley's testimony as well as the identification of certain gambling records and the testimony of a police officer who had performed surveillance of the policy operation. Mr. Coffey then departed, leaving for the consideration of the grand jury the "superseding indictment" and the transcripts of Mr. Buckley's testimony. The grand jurors deliberated briefly¹ and returned the instant indictment. The full text of Mr. Coffey's remarks is set forth in the margin.²

II.

The defendants contend, inter alia, that the manner in which this indictment was secured violated the Second Circuit's principles relating to the excessive use of hearsay testimony in grand jury proceedings. United States v. Estepa, 471 F.2d 1132 (2 Cir. 1972); United States v. Leibowitz, 420 F.2d 39 (2 Cir. 1969); United States v. Arcuri, 405 F.2d 691 (2 Cir. 1968); and United States v. Umans, 368 F.2d 725 (2 Cir. 1966).

At the outset, it is appropriate to emphasize that "when the framers of the Bill of Rights directed in the Fifth Amendment that `No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,' they were not engaging in a mere verbal exercise." United States v. Estepa, supra at 1136. Accordingly, courts must be ever vigilant to preserve the functions of the grand jury as an effective "safeguard against oppressive actions of the prosecutor . . .." Gaither v. United States, 134 U.S.App. D.C. 154, 413 F.2d 1061, 1066 (1969), quoting from United States v. Cox, 342 F.2d 167, 170 (5 Cir. 1965).

The Supreme Court has pointed out on several occasions that one purpose of the requirement that an individual be indicted by a grand jury is to place between the prosecutor and the accused an independent body, which can evaluate the evidence and determine if the charge is based upon reason. Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962); Stirone v. United States, 361 U.S. 212, 218, 80 S. Ct. 270, 4 L.Ed.2d 252 (1960); Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). The accused has a right "to have the grand jury make the charge on its own judgment." Stirone v. United States, supra at 219, 80 S.Ct. at 274. Neither by depriving the grand jury of its opportunity to evaluate the credibility of witnesses nor by making prejudicial remarks to sway the grand jury may the prosecutor deny the accused this substantial right. As we stress in our instructions to grand juries routinely given in the District of Connecticut:

Remember always your task is to stand as a bulwark between prosecutor and citizen. You have the protection and liberty of the members of this State in your charge. You are to see to it that the innocent are not to undergo public trial, unless you are satisfied from the evidence that there is probable cause to believe the accused committed the crime charged. The oath you have taken indicates the impartial spirit with which your duty shall be performed . . . . One of the most important functions you are to perform is to judge the credibility of the various witnesses who may appear before you. You and you alone are the judges of the credibility of those witnesses, that is, the believability of their statements to you. In reaching your conclusions as to the credibility of any witness you may consider . . . the demeanor of the witness, the witness' manner of testifying, the reasonableness or probability of the witness' story as it is related to you, whether a witness has been corroborated by other witnesses, evidence, or circumstances in the case . . . .

The Court of Appeals for this Circuit has expressed particular concern that an indicting grand jury not become a "rubber stamp" endorsing the wishes of a prosecutor as a result of the needless presentation of hearsay testimony in grand jury proceedings. In a series of cases culminating in United States v. Estepa, supra, the Second Circuit has "condemned the casual attitude with respect to the presentation of evidence to a grand jury manifested by the decision of the Assistant United States Attorney to rely on hearsay testimony . . .." Id. at 1135. Criticism has been leveled not only at any government practice which may have misled the grand jurors into thinking that the hearsay testimony they were hearing was an eyewitness account, United States v. Leibowitz, supra at 42, but also at any conduct of the prosecutor in the presentation of hearsay evidence that does not make clear to the jurors "the shoddy merchandise they are getting so they can seek something better if they wish." United States v. Payton, 363 F. 2d 996, 1000 (2 Cir.) (Friendly, J. dissenting), cert. denied, 385 U.S. 993 (1966). It was specifically mandated in United States v. Umans, supra at 730, that "hearsay evidence should only be used when direct testimony is unavailable or when it is demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge." See also United States v. Leibowitz, supra at 42; United States v. Catino, 403 F.2d 491, 496 (2 Cir. 1968).

Disturbed at the apparent disregard of its warnings to prosecutors in this Circuit concerning the widespread use of hearsay evidence before grand juries, the Court of Appeals felt compelled in Estepa to reverse the judgments of conviction because in the proper exercise of its judicial duties, it could not content itself with "yet another admonition." United States v. Estepa, supra at 1137.

III.

Applying these general principles to the facts of the instant case, it is evident to the Court that a dismissal of the...