US v. Gambino, 9S 88 Cr. 919 (PKL).

• Decision Date: 21 December 1992
• Docket Number: No. 9S 88 Cr. 919 (PKL).,9S 88 Cr. 919 (PKL).
• Parties: UNITED STATES of America v. John GAMBINO, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

809 F. Supp. 1061

UNITED STATES of America v. John GAMBINO, et al., Defendants.

No. 9S 88 Cr. 919 (PKL).

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

December 21, 1992.

Otto G. Obermaier, U.S. Atty., S.D.N.Y., New York City (James B. Comey, Patrick J. Fitzgerald, of counsel), for the U.S.

Hoffman & Pollok (John L. Pollok, of counsel), Santangelo, Santangelo & Cohen (George L. Santangelo, of counsel), Michael Rosen, New York City, for John Gambino.

Edward S. Panzer, Bruce Cutler, New York City, for Joseph Gambino.

John M. Apicella, Charles F. Carnesi, Brooklyn, NY, for Lorenzo Mannino.

Ira J. Friedman, Brooklyn, NY, for Francesco Inzerillo.

Howard R. Leader, New York City, for Matteo Romano.

OPINION AND ORDER

LEISURE, District Judge.

On September 28, 1992, a Grand Jury filed the ninth superseding indictment (the "indictment") against the defendants in this case. The indictment alleges that the defendants participated in the illegal activities of an international criminal organization known as "the Mafia" or "La Cosa Nostra," which allegedly includes groups in both the United States and Sicily. More specifically, the enterprise charged in the indictment allegedly consists of "made" members and associates of the Gambino Family of the American Mafia, together with "made" members and associates of the Passo Di Rigano, San Lorenzo, and Santa Maria di Gesu Families of the Sicilian Mafia. According to the Government, this organization, or system of organizations, has engaged in the importation and distribution of large quantities of narcotics in violation of federal law, as well as other illicit activities such as illegal gambling and loansharking. It is alleged that the affairs of this enterprise have been conducted through various acts of violence including extortion and murder.

The Government has moved for the impaneling of an anonymous jury. In addition, five defendants charged in the indictment —John Gambino, Joseph Gambino, Lorenzo Mannino ("Mannino"), Francesco Inzerillo ("Inzerillo"), and Matteo Romano ("Romano") (collectively, the "moving defendants") —have brought several pretrial motions including a motion to suppress certain electronic surveillance evidence from the Ravenite Social Club, demands for a bill of particulars, demands for Brady material, various severance motions, a motion to dismiss the racketeering charges against defendant Romano, and a motion to preclude the admissibility of certain evidence against Romano relating to his participation in an uncharged narcotics conspiracy. For the reasons stated below, the Government's motion for an anonymous jury is granted, and the moving defendants' various pretrial motions are denied in their entirety.

BACKGROUND

The extensive procedural background of this case is set forth in the Court's prior decisions and will not be restated here.¹ However, the Court will summarize the charges set forth in the ninth superseding indictment, as to the five moving defendants. The indictment contains ten counts. Count One charges the moving defendants, except for Francesco Inzerillo, with conspiring to participate in a criminal enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d). Count Two charges the moving defendants, except for Francesco Inzerillo, with participating in a criminal enterprise in violation of RICO, 18 U.S.C. § 1962(c). Count Three charges defendants John Gambino, Joseph Gambino, Lorenzo Mannino, and Francesco Inzerillo with conspiring to violate the federal narcotics laws in violation of 21 U.S.C. § 846. Count Four charges defendants John Gambino and Joseph Gambino with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848(a) and (b). Count Five charges that, on or about March 15, 1988, defendants John Gambino and Joseph Gambino distributed and possessed heroin with the intent to distribute in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. Counts Six and Seven charge defendants John Gambino, Joseph Gambino, and Lorenzo Mannino with conspiring to murder (Count Six), and murdering (Count Seven), Francesco Oliveri in aid of racketeering in violation of 18 U.S.C. § 1959. Count Eight charges defendants John Gambino and Joseph Gambino with failing to appear before the Court as required by the conditions of their release, in violation of 18 U.S.C. § 3146(a)(1) and (b)(1)(A)(i). Count Nine in the indictment alleges forfeiture of property against defendants John Gambino, Joseph Gambino, and Lorenzo Mannino, pursuant to 21 U.S.C. § 853(a). The property allegedly includes, but is not limited to, at least $25 million in gross receipts from the sale of heroin and cocaine during the period January 1, 1975, until the filing of the indictment, as contained in Counts Three, Four, and Five. Finally, Count Ten alleges the forfeiture of certain other "substitute properties" pursuant to 21 U.S.C. § 853(p), as against defendants Joseph Gambino, John Gambino, and Lorenzo Mannino to the extent that the property alleged under Count Nine cannot be reached for one of the enumerated reasons set forth in Section 853(p).

A number of pretrial motions have now been brought by the various parties in the wake of the ninth superseding indictment.² First, the Government has moved for the impaneling of an anonymous jury in this case. The Government initially brought its motion for an anonymous jury on January 17, 1990. On June 13, 1990, the defendants filed opposition papers, to which the Government replied by letter to the Court, dated September 28, 1990. The Court decided to postpone consideration of this issue until the final stage of the pretrial process, which we have now entered. The Government has supplemented its original motion by letter to the Court, dated November 10, 1992.

Second, defendants John and Joseph Gambino have now brought the following motions before the Court: (1) a motion to suppress evidence resulting from certain electronic interceptions at the Ravenite Social Club in Manhattan; (2) demand for a bill of particulars in connection with Counts Four, Six, Seven and Eight of the indictment; (3) a renewed demand for evidence favorable to the defendants pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny; and (4) a motion for severance of the bail jumping charge alleged in Count Eight, based upon improper joinder and prejudice. In addition, defendant John Gambino has made a motion for a medical severance.

Defendant Matteo Romano has brought the following motions with respect to the ninth superseding indictment: (1) motion to dismiss the racketeering charges (i.e. Counts One and Two) against him; (2) motion in limine to preclude the introduction of evidence at trial regarding Romano's alleged participation in an uncharged narcotics conspiracy; and (3) a renewed motion to sever his trial based upon prejudicial spillover. Defendant Mannino also has renewed his motion for severance of his case and, in addition, has moved for a bill of particulars with respect to the alleged Oliveri murder. Defendant Francesco Inzerillo similarly has renewed his motion for severance of his case, on grounds of prejudicial spillover and improper joinder, and also has moved for a bill of particulars as to Count Three with respect to the alleged murder of Palermo Public Prosecutor Gaetano Costa.³

DISCUSSION

I. MOTION FOR ANONYMOUS JURY

The Government has moved the Court to take the following precautions to ensure that the jury will be free from any improper influence, intimidation or fear during trial: (1) voir dire of prospective jurors should be limited so that a venireman's name, address, and name of employer or place of employment is not disclosed; (2) during trial, the jurors should be kept together during recesses and taken to lunch as a group each day by the United States Marshal's Service; and (3) at the end of each trial day, the jurors should be transported together by the United States Marshal's Service from the courthouse to an undisclosed central location, from which they can leave for their respective communities.

The Second Circuit has repeatedly held that the use of an anonymous jury is appropriate where: (1) there is strong reason to believe that the jury needs protection; and (2) reasonable precautions are taken to minimize any prejudicial effects to the defendant and to ensure that the defendants' fundamental rights are protected. United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 3029, 120 L.Ed.2d 900 (1992); United States v. Vario, 943 F.2d 236, 239 (2d Cir. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 882, 116 L.Ed.2d 786 (1992); United States v. Tutino, 883 F.2d 1125, 1132 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990); United States v. Persico, 832 F.2d 705, 717-18 (2d Cir.1987), cert. denied, 486 U.S. 1022, 108 S.Ct. 1995, 100 L.Ed.2d 227 (1988); United States v. Thomas, 757 F.2d 1359, 1365 (2d Cir.), cert. denied, 474 U.S. 819, 106 S.Ct. 66, 88 L.Ed.2d 54 (1985); see also United States v. Ferguson, 758 F.2d 843, 854 (2d Cir.), cert. denied, 474 U.S. 841, 106 S.Ct. 124, 88 L.Ed.2d 102 (1985); United States v. Barnes, 604 F.2d 121, 133-43 (2d Cir. 1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980).

The Second Circuit set forth an underlying rationale for the use of an anonymous jury in United States v. Barnes:

If a juror feels that he and his family may be subjected to violence or death at the hands of a defendant or his friends, how can his judgment be as free and impartial as the Constitution requires? If "the anonymous juror feels less pressure" as a result of anonymity, ... this is as it should be—a factor contributing to his impartiality. The court's decision as to anonymity and sequestration comported with its obligation to protect the jury, to assure its privacy, and to avoid

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