US v. Gallo

• Citation: 671 F. Supp. 124
• Decision Date: 07 August 1987
• Docket Number: No. CR-86-452(S).,CR-86-452(S).
• Parties: UNITED STATES of America, Plaintiff, v. Joseph N. GALLO, Julius Miron, et al., Defendants.
• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

671 F. Supp. 124

UNITED STATES of America, Plaintiff, v. Joseph N. GALLO, Julius Miron, et al., Defendants.

No. CR-86-452(S).

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

August 7, 1987.

Andrew J. Maloney, U.S. Atty., E.D. N.Y., Edward A. McDonald, Attorney-in-Charge, U.S. Dept. of Justice, Organized Crime Strike Force, E.D.N.Y., Brooklyn, N.Y. by Douglas Grover, Laura Ward, Christopher Ulrich; Deborah Watson, Atty., Appellate Section, Crim. Div., U.S. Dept. of Justice, Washington, D.C., for the U.S.

Andrew Lawler, New York City, for defendant Julius Miron.

WEINSTEIN, Chief Judge:

Defendant Julius Miron has been found guilty by a jury of conspiracy to participate in the Gambino Crime Family through a pattern of racketeering activity, consisting of Taft-Hartley violations and obstruction of justice. He was also found guilty on separate non-RICO Taft-Hartley and obstruction of justice counts.

Miron had been indicted along with 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 aspects of the conspiracy in the first of several severed trials.

Before trial Miron moved to dismiss the indictment against him on the ground that the government had improperly used, and would use, some of his prior immunized grand jury testimony in violation of 18 U.S.C. § 6002. At a pretrial hearing, the motion was denied. When the evidence of the government was introduced at the trial, the basis for both the defendant's and the government's contentions became clearer. Accordingly, following Miron's conviction, the court reopened the hearing. Additional evidence and the entire record of the trial were considered. See United States v. Hossbach, 518 F.Supp. 759, 771-72 (E.D.Pa. 1980) (court can more readily determine if government met its burden of showing independent sources after presentation of all trial evidence).

The law is cognizant of the importance of the privilege against self-incrimination, and of the need scrupulously to fulfill governmental promises of immunity. Yet, for the reasons indicated below, granting the defendant's motion, and with it the motion for the acquittal which would then logically be required, would constitute a perversion of the immunity statute. Immunization does not provide a warrant to commit new crimes.

I. FACTS

In 1979, Miron, a successful businessman in the building supply industry, was subpoenaed to testify before a federal grand jury in connection with a criminal investigation of former labor official John Cody. That investigation, and the resultant indictment of Cody, 82-CR-13 (E.D.N.Y.), was conducted by the Department of Justice Organized Crime Strike Force in the Eastern District of New York, under the supervision of Special Attorney Michael Guadagno. The government was advised that Miron would invoke his Fifth Amendment privilege against self-incrimination before the grand jury. It applied for an order of immunity. On March 12, 1980, Judge Henry Bramwell granted the order.

On June 18, 1980, Miron testified before the grand jury pursuant to the grant of statutory immunity. 18 U.S.C. § 6002. The government questioned Miron about his relationship with John Cody and Teamsters' Local 282, about Cody's relationship with Paul Castellano, a leader of the Gambino Crime Family, and about a 1978 meeting set up by Cody at which Castellano, Miron and Cody settled a dispute over the price of materials Miron had supplied for homes being built by Castellano's sons. Miron's Grand Jury Testimony, United States v. John Doe (U.S. v. Cody), June 18, 1980.

In 1986 Castellano was named as an unindicted coconspirator of Miron and two other labor union officials, Louis Giardina and George Daly. That is the case now before us.

In the 1982 criminal litigation Cody was convicted of labor racketeering. Miron did not testify at that trial. Special Attorney Guadagno provided Miron's grand jury testimony to the probation officer who prepared Cody's presentence report. That report specifically referred to Miron's immunized testimony and the links it established between Cody and Castellano. Cody Presentence Report, 82-CR-13(S), at 11-12. The report indicated that Miron's testimony regarding the Miron-Castellano-Cody dispute resolution "corroborated" information provided by FBI informants as to the Cody-Castellano relationship.

At about the time of Cody's sentencing, the government initiated a series of applications for orders authorizing the placement of electronic bugs in the home of Paul Castellano. In its November 12, 1982 application for such an order, the government submitted an affidavit by FBI agent Joseph O'Brien, alleging probable cause to believe that discussions were ongoing in the Castellano residence concerning violations of the RICO conspiracy law — in particular, regarding loansharking, extortion, and murder. O'Brien did not contend that there was probable cause to believe that any labor racketeering or Taft-Hartley violations discussions would take place. Miron was not named as a person whom the government expected to intercept. Judge Bramwell signed the first interception order on November 12, 1982. Because the FBI was unable to gain immediate entrance to the Castellano home, the government repeated its application on three occasions prior to April 1983. Judge McLaughlin authorized the interception on December 23, 1982 and again on January 28, 1983. Judge Bramwell once again signed an order on March 7, 1983. There appears no doubt that all these orders were supported by ample evidence.

The FBI was finally able to enter the Castellano residence to install the eavesdropping device on March 23, 1983. During the first week or so of intercepted conversations, the FBI overheard discussions concerning labor matters, including possible violations of the Taft-Hartley and Hobbs Acts. On April 8, 1983, Agent O'Brien applied to Judge Bramwell for a renewal of the order. In his accompanying affidavit, O'Brien included new information indicating probable cause to believe that labor racketeering was being discussed, and requested an expansion of the order to cover Taft-Hartley and Hobbs Act violations. The material information that O'Brien added to support expansion to labor activities is set out at length below. The particular aspects relating to Miron are italicized. As is indicated in the discussion that follows at Section II C, infra, an important issue is whether information about Miron's grand Jury testimony was significant in the decision of the authorizing judge to expand the order.

"INFORMATION CONCERNING LABOR RACKETEERING

"12. I Agent O'Brien ... noted in my affidavit of November 12, 1982, that I have learned that the Gambino Family is engaged in labor racketeering and the corrupt control of labor unions. However, I did not contend in any of my previous affidavits that there was probable cause to believe that the subjects would have discussions at the subject premises concerning labor racketeering in general, and in particular Hobbs Act and Taft-Hartley violations. On the basis of what I have learned from what has already been intercepted at the subject premises and the other information submitted herewith and in my previous affidavits, I submit that there is probable cause to believe that the subjects are also discussing labor racketeering violations at the subject premises.

"13. In connection with my assignment to this case, I have had conversations with several FBI agents who have extensive experience in the area of labor racketeering and, in particular, racketeering in the construction industry. Based on these conversations, especially with Special Agent James Brennan (who was assigned for three years to the FBI's LILREX investigation which resulted in the convictions of over 15 people in connection with labor racketeering in the construction industry) and my own experience and investigations, and information supplied to other agents by confidential informants, I have learned that the criminal activities in which members of the Gambino Family engage in the area of labor racketeering take many forms. Among those illegal activities are violations of the Hobbs Act and Taft-Hartley Act. In such situations, members of the Gambino Family usually supply `muscle' or support for corrupt union officials. These union officials in turn extort money (or other things of value) from construction company contractors or other employers in the construction industry for labor peace (a commitment not to strike or create other labor problems) and in the case of non-unionized firms, for the right to employ nonunion labor, usually at lower wages or fewer benefits. The corrupt union officials, of course, are required to split their payoffs with Gambino Family figures. In some situations, members of the Family or their close associates are actually union officials themselves. In others, members of the Family control companies in the construction industry and make payoffs themselves to labor officials in violation of the Taft-Hartley Act. Finally, there also exist situations where corrupt union officials accept payoffs from employers who have not actually been extorted in violation of the Taft-Hartley Act and share those payoffs with Family members.

"14. One labor official closely associated with the Gambino Family, and in particular with Paul Castellano, is John Cody, the President of Local 282 of the International Brotherhood of Teamsters, the local representing employees for companies primarily responsible for delivering materials and supplies to construction sites in the New York Metropolitan area. Mr. Cody was convicted in the United States District Court (USDC) for the Eastern District of New York (EDNY) in October, 1982, on RICO charges arising out of his extortionate...