US v. Gallo

• Decision Date: 19 February 1987
• Docket Number: No. CR-86-452 (JBW).,CR-86-452 (JBW).
• Citation: 654 F. Supp. 463
• Parties: UNITED STATES of America, Plaintiff, v. Joseph GALLO, Joseph Zingaro, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

654 F. Supp. 463

UNITED STATES of America, Plaintiff, v. Joseph GALLO, Joseph Zingaro, et al., Defendants.

No. CR-86-452 (JBW).

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

February 19, 1987.

COPYRIGHT MATERIAL OMITTED

Andrew J. Maloney, U.S. Atty., E.D. N.Y., Honorable Edward A. McDonald, Attorney-in-Charge, U.S. Dept. of Justice, Organized Crime Strike Force, E.D.N.Y., Brooklyn, N.Y. by Douglas E. Grover, Laura A. Ward, for the United States.

Jay Goldberg, Judd Burstein, New York City, for defendant Joseph Zingaro.

(All defendants join in this motion.)

MEMORANDUM AND ORDER

WEINSTEIN, Chief Judge:

Defendant Joseph Zingaro has been indicted, along with fifteen other co-defendants, in a complex criminal action, involving seventeen separate counts 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 criminal organization called the Gambino Crime Family, and that the operations of "the Family" constituted a violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.

This is the second (Gallo II) in a series of rulings that the court will be required to make before this complex case can proceed to trial. See United States v. Gallo, et. al., 653 F.Supp. 320 (E.D.N.Y.1986) (Gallo I) (release of defendants from pretrial detention because of long delays). Further pretrial opinions will be required in view of the extensive motion practice underway. These huge, complicated RICO cases require specially tailored proceedings if the court is to properly control the litigation in a way protective of both the public's and the defendants' interests.

Defendant Zingaro has moved for pretrial disclosure of those statements made by alleged co-conspirators which the government will seek to introduce at trial as defendants' statements pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence. All the defendants have joined in the motion. Primarily they seek to discover statements made by unindicted co-conspirators, many of whom are no longer alive.

The government contends that it has already produced all materials discoverable under Rule 16(a) of the Federal Rules of Criminal Procedure. It argues that the disclosure requested by the defendants does not fall within the ambit of Rule 16(a) and, in any event, is barred by both the Jencks Act, 18 U.S.C. § 3500, and by United States v. Percevault, 490 F.2d 126 (2d Cir.1974). The motion requires consideration of the interaction between Rule 16(a), the Jencks Act, and Rule 801(d)(2)(E) of the Federal Rules of Evidence; of the inherent power of a trial court to control litigation before it; and of the special problems presented by a complex RICO prosecution.

Because such a RICO case may hinge on a relatively vague or abstract sense of involvement or constructive knowledge, evidence concerning alleged co-conspirators can have an enormous impact on the determination of culpability. Defendants may be significantly more implicated than usual by the actions and admissions of others, for they may well be held responsible by virtue of the conspiracy for diverse, long-continued and dangerous activities of which they had little or no knowledge. "A conspiracy case carries with it the inevitable risk of wrongful attribution of responsibility to one or more of the multiple defendants.... In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact." Dennis v. United States, 384 U.S. 855, 873, 86 S.Ct. 1840, 1851, 16 L.Ed.2d 973 (1966) (citations and footnote omitted). A fortiori that is true of a case such as the one at bar.

Pretrial discovery is an especially important tool in ensuring that both sides of such a complex case are well prepared for trial, and in clarifying for the court as well as the parties the allegations, questions, and burdens of proof that are to be issues of dispute at trial. Broad discovery not only provides vastly improved adjudicative efficiency, but also protects defendants from elements of surprise that can have an inordinately prejudicial effect on the outcome of a case. "To ensure that justice is done, it is imperative to the function of the courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense." United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974).

Moreover, the complicated severance, in limine evidence, double jeopardy and other preliminary motions now sub judice all require the court to know much more about details of the evidence on which the government intends to rely than would usually be required. Discovery here is a tool necessary not only to ensure due process for the defendants but also to assist the court in the proper administration of the case. A complex case such as this one must be approached with full appreciation for the mandate of Rule 2 of the Rules of Criminal Procedure, that those Rules "are intended to provide for ... just determination and fairness in administration ...," and of Rule 102 of the Rules of Evidence, requiring construction "to the end that the truth may be ascertained and proceedings justly determined." See also the discussion of the inherent power of the court, infra.

The first section of this opinion explains why discovery of defendants' own statements mandated by Rule 16 of the Federal Rules of Criminal Procedure extends to all such statements "recorded" by the government irrespective of the form of that recording. The opinion next examines an alternative basis for mandating such broad disclosure of defendants' statements, namely, the inherent power of the court to regulate discovery; the exercise of that power is particularly appropriate in a complex case such as this one. The following section demonstrates why the Jencks Act does not affirmatively bar required pretrial discovery of these sorts of statements, even where the statements may be included within the testimony of prospective government witnesses. The opinion then explains why co-conspirators' statements must be treated in the same way as defendants' own statements for purposes of discovery, with the exception that disclosure is not required where the co-conspirator whose statements are in question is himself a prospective government witness. Finally, the opinion addresses some general issues related to expanded discovery, including the security of witnesses and the improved administration of complex criminal litigation.

Rule 16(a)(1)(A)

The government contends that it has already disclosed all co-conspirator statements that would be discoverable under Rule 16(a)(1)(A) were they the defendants' own statements. It insists that the defendants seek disclosure of statements that would not fall under the ambit of Rule 16 even if they were the defendants' declarations. The claim is that the defendants request greater discovery rights for co-conspirator statements than they would be entitled to were they seeking to obtain statements of the defendants themselves. To assess the nature and validity of the government's contention, we turn to a more detailed analysis of Rule 16(a)(1)(A).

It is not disputed that if co-conspirators' statements are discoverable they are discoverable only to the same extent as defendants' own statements. See, e.g., United States v. Roberts, 793 F.2d 580, 586 (4th Cir.1986) (co-conspirator statements "subject to the same conditions that apply to those made by a defendant"), rev'd on other grounds, 811 F.2d 257 (4th Cir.1987) (in banc); United States v. DeFabritus, 605 F.Supp. 1538, 1548 (S.D.N.Y.1985) ("court will not impose disclosure beyond that required by Rule 16").

The first operative question therefore is the extent to which defendants' statements are discoverable under Rule 16(a)(1)(A), for that constitutes the outside limit of discoverability for co-conspirators' declarations as well. In this case, the government has provided the defendants with hundreds of hours of tape recordings and transcripts of those recordings, containing many defendant and co-conspirator statements. In addition, the government has provided copies of all statements made to known FBI agents, and all documents in the government's possession which were prepared by and for the defendants. All of these materials clearly are discoverable under Rule 16(a)(1)(A).

There are at least two kinds of statements which the government has not provided here. In the first case, a defendant or co-conspirator makes a declaration in the presence of an undercover government agent and at some point that agent "records," or writes down, that statement. In the second, a defendant's or co-conspirator's declaration is overheard by a "third party," who may or may not "record" the statement; the third party informs a government agent of the declaration, and the agent records the third party's recapitulation of the defendant's or co-conspirator's reported statement. Alternatively, the statement may have been reported when the third party conveyed the statement to the grand jury.

The question is whether these types of statements are discoverable under Rule 16(a)(1)(A). In considering this issue, we must bear in mind that Rule 16 was amended in 1975 in order "to promote greater pretrial discovery," in the view that "broad discovery contributes to the fair and efficient administration of criminal justice ... by minimizing the undesirable effect of surprise at the trial." Notes of Committee on the Judiciary, House Rept. No. 247, 94th Cong., 1st Sess. 13, reprinted in 1975 U.S. Code Cong. & Ad.News 674, 685. Congress adopted the following reasoning:

Broad discovery contributes to the fair and efficient

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