US v. Ianniello

• Decision Date: 26 April 1990
• Docket Number: No. SSS 86 Cr. 245 (PNL).,SSS 86 Cr. 245 (PNL).
• Citation: 740 F. Supp. 171
• Parties: UNITED STATES of America, v. Matthew IANNIELLO, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

740 F. Supp. 171

UNITED STATES of America, v. Matthew IANNIELLO, et al., Defendants.

No. SSS 86 Cr. 245 (PNL).

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

April 26, 1990.

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Otto Obermeier, U.S. Atty., New York City (Alan M. Cohen, Asst. U.S. Atty., Mark R. Hellerer, Asst. U.S. Atty., of counsel), for the Government.

Jay Goldberg, New York City (Judd Burstein, New York City, of counsel), for defendant Matthew Ianniello.

John Jacobs, New York City, Anthony Cardinale, Boston, Mass., for defendant Anthony Salerno.

Gustave H. Newman, New York City, Michael Tigar, Austin, Tex., for defendant Vincent DiNapoli.

Robert L. Ellis, New York City, Kaplan, Russin & Vecchi, Washington, D.C. (Michael Abbell, of counsel), for defendant Louis DiNapoli.

Miller, Lewin, LaRocca & Cassidy, Washington, D.C. (Herbert Miller, Stephen Braga, of counsel), Segal & Hundley, New York City (Marvin B. Segal, of counsel), for defendant Nicholas Auletta.

Goldman & Hafetz, New York City (Frederick Hafetz, Susan Necheles, of counsel), for defendant Edward Halloran.

Albert A. Gaudelli, Flushing, N.Y., for defendant Aniello Migliore.

Henry Putzel, New York City, for defendant Richard Costa.

FINDINGS OF FACT and CONCLUSIONS OF LAW

BRIEANT, Chief Judge.

Pursuant to a Mandate of the United States Court of Appeals for the Second Circuit, docketed in the Southern District of New York on February 23, 1989, which vacated and remanded a prior order of this Court (Judge Lowe), reported at 698 F.Supp. 1109 sub nom United States v. Salerno (SDNY 1988), denying a new trial to defendants Matthew Ianniello, Vincent DiNapoli, Louis DiNapoli, Nicholas Auletta, Edward J. Halloran, Aniello Migliore, Anthony Salerno, Richard Costa, and Alvin O. Chattin, the District Court was directed to hold further proceedings on remand consistent with the panel opinion of the Court of Appeals for the Second Circuit in this case, decided January 18, 1989 and reported at 866 F.2d 540.

Evidentiary hearings were held before this Court on April 13, 14, 27 and 28, and December 21, 1989. The matter has been fully submitted as of March 23, 1990. The Court now sets forth below its findings of fact and conclusions of law, and its decision with respect to the motion for a new trial and the matters directed to be adjudicated by the Court of Appeals.

This Court concludes that the moving defendants have failed to prove that there were any improper ex parte contacts with the jury or that the verdicts were tainted as claimed. Also, no necessity is shown to require the oral testimony of the trial judge. The motions are denied for the reasons set forth below.

Our decision should begin by invoking the usual literary convention of the modern federal court to the effect that "the familiarity of the reader with all prior proceedings herein is assumed." Such an assumption here would be preposterous because we write in the aftermath of a more than thirteen month criminal jury trial conducted before Judge Lowe. We have considered all portions of the trial record which were cited to us at the evidentiary hearings and, in addition, such portions as are specifically referred to below. We doubt that anyone can be "familiar with all prior proceedings" in a matter of such length and magnitude as this but assume with confidence familiarity of the reader with the panel opinion of the Court of Appeals at 866 F.2d 540 and the opinion of Judge Lowe, supra, denying a new trial.

Indictment SSS 86 Cr. 245, filed on April 7, 1988, charged a total of eleven defendants in 35 counts. The Indictment charged that, from April 1970 to April 1987, the defendants led, managed, and participated in a racketeering enterprise known as the Genovese Family of La Cosa Nostra (the "Genovese Family"), a secret criminal organization, by committing and agreeing to commit numerous crimes. The defendants include alleged leaders of the Genovese Family, as well as several businessmen who allegedly became their partners and assisted the Genovese Family in infiltrating businesses in the New York City area and nationwide.

Following more than thirteen months of trial, jury verdicts of conviction were returned against the moving defendants on May 4, 1988 for violations of the RICO statute, 18 U.S.C. § 1961 et seq., and various underlying offenses. The jury convicted nine and acquitted two of the eleven defendants, failing to agree on four predicate racketeering acts found in the RICO allegations. The trial had a second phase involving forfeitures during which the already exhausted jurors were instructed as to the additional facts which needed to be found to dispose of the forfeiture allegations in the Indictment. The jury granted the government's application for forfeiture except with regard to some of the interests of defendants Salerno, Auletta, and Halloran. The initial deliberation to reach the verdicts on the criminal counts extended over nine days. An additional two days of deliberation were required for the forfeiture phase of the jury trial.

After the verdicts were returned, defendants moved for a new trial and for recusal of the trial judge in deciding the motion, claiming that they had been denied a fair trial because of ex parte communications between the Judge and jury and an improper statement by a Deputy United States Marshal to the jury. In support of their motion, the defendants submitted the affidavits of three jurors, Joyce Domingo, Helen Talley, and Joseph James. On October 12, 1988, the trial judge denied the motion without a hearing, holding that "the evidence submitted by the defendants in support of their motion lacked sufficient reliability, clarity, and strength to warrant further inquiry." After imposition of pre-Guideline sentences on October 13, and 14, 1988 ranging from six to seventy years, the defendants appealed the trial judge's order.

In its decision of January 18, 1989, the Court of Appeals vacated the trial judge's order denying a new trial and remanded the case for further proceedings before another district judge, including an evidentiary hearing "to determine whether the allegations are true and to provide a basis for assessing whether defendants were prejudiced by inappropriate communications with the jury". 866 F.2d at 544. The Court of Appeals stated that "the substance of the inquiry on remand should be limited to determining whether the Judge or Marshal made ex parte statements to the jury, what each said, the factual circumstances surrounding any ex parte contacts, and whether the jurors who heard the statements communicated the content of those statements to the other jurors" in order to determine whether defendants are entitled to a new trial. Id. The Court of Appeals noted that, on remand, the investigator who submitted the cursory affidavit stating that he took the statements of three jurors, the three jurors who came forward with affidavits, and the Deputy Marshal, should be called as witnesses. Whether the rest of the jurors, as well as the trial judge, should testify was left to the discretion of this Court.

The Hearing

Pursuant to the Court of Appeals Mandate that the scope of this hearing "should be limited to only what is absolutely necessary to determine the facts with precision," 866 F.2d at 544, this Court heard the testimony of the three affiant jurors, two private investigators, Raymond Glynn and Marilyn Reynolds, who solicited the statements contained in the three jurors' affidavits, three notaries public who notarized the affidavits, an attorney, Stiso, who attended a meeting with between one juror and the investigator, and the Deputy Marshal who allegedly made an ex parte statement to the jurors.

Findings of Fact and Conclusions of Law

Raymond P. Glynn, a New York State licensed private investigator, had retired as a Lieutenant in the New York City Police Department, having served from 1954 to 1974 both as a detective and a uniformed officer. Prior to that time he had been employed as a part-time United States Marshal and in other occupations. A distinguished looking, gray-haired man, Glynn could have come from Central Casting to play the part of a Detective-Investigator.

His connection with the trial began in 1987 and included almost daily attendance in Court, both during the trial and during jury deliberation. He testified that during the trial he had been employed by Albert A. Gaudelli, Esq., attorney for defendant Aniello Migliore. The reason for and scope of this employment is unclear. Glynn claimed that his employment by Gaudelli was concluded following the post-verdict medical hearings before Judge Lowe but that on June 1, 1988 he met with Mr. Anthony DiNapoli, brother of Vincent and Louis DiNapoli, defendants in the case, who asked Mr. Glynn to interview the jurors because he was "quite concerned at what appeared to him to be a sudden and precipitous decision on the part of the jury when they were obviously focusing in a different direction" (Tr. 12). Glynn contended that his investigative efforts were sought and thereafter supervised by Mr. DiNapoli, not by Mr. Gaudelli or any other attorney. Apparently this rather vague instruction was sufficient for Mr. Glynn, who set off to locate and interview the jurors.

There is a slight ring of untruth about this aspect of Glynn's retainer. The Court suspects that Glynn's post-trial services were sought and managed, directly or indirectly, by one or more lawyers, for it defies belief that such inquiries were the brainchild of the defendants' brother.¹ The point is of little moment except insofar as it affects Mr. Glynn's credibility adversely, in a general way.

Our Court of Appeals has stated that "complicity by counsel in a planned, systematic, broad-scale, post-trial inquisition of the jurors ... is reprehensible." United States v. Brasco, 516 F.2d 816, 819 n. 4 (2d Cir.1975) Although not forbidden by statute, post-trial inquiries of jurors...