US v. Ruggiero

• Decision Date: 08 June 1993
• Docket Number: No. S 92 CR. 811 (KC).,S 92 CR. 811 (KC).
• Citation: 824 F. Supp. 379
• Parties: UNITED STATES of America, Plaintiff, v. Louis RUGGIERO, Jr., a/k/a "Jerry," a/k/a "Lieutenant," David Cleary, a/k/a "Heavy D," a/k/a "Anthony Monti, Michael Palazzolo, Anthony Castelli, Richard Olivieri, Robert Aulicino, Jr., Derrick Augustine, a/k/a "D," James Brown, a/k/a "Justice," Robert Cherry, a/k/a "Sherry," and Keith Green, Defendants.
• Court: U.S. District Court — Southern District of New York

824 F. Supp. 379

UNITED STATES of America, Plaintiff, v. Louis RUGGIERO, Jr., a/k/a "Jerry," a/k/a "Lieutenant," David Cleary, a/k/a "Heavy D," a/k/a "Anthony Monti, Michael Palazzolo, Anthony Castelli, Richard Olivieri, Robert Aulicino, Jr., Derrick Augustine, a/k/a "D," James Brown, a/k/a "Justice," Robert Cherry, a/k/a "Sherry," and Keith Green, Defendants.

No. S 92 CR. 811 (KC).

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

June 8, 1993.

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Elizabeth Glazer, Paul Gardephe, Asst. U.S. Attys., New York City, for U.S.

Robert J. Krakow, New York City, for Robert Aulicino.

Jeffrey A. Bronster, Decotiis Phillips & Lundster, Roseland, NJ, for Louis Ruggiero.

Joseph R. Benfante, New York City, for David Cleary.

ORDER

CONBOY, District Judge:

The defendants have been indicted for multiple counts of racketeering, kidnapping, extortion, murder, possession of weapons and other crimes. The Court has before it a number of motions made by the parties.

The Government has moved for the empaneling of an anonymous jury, and an order in limine precluding defendant Aulicino's counsel from cross-examining a Government informant, Augustine, about an alleged post indictment obstruction of justice purportedly participated in by defendants Ruggiero and Cleary.

Defendant Ruggiero has moved to suppress the fruits of electronic surveillance conducted pursuant to orders of the Superior Court of New Jersey. He also has made certain oral motions and joins in the motions of his co-defendants.

Defendant Cleary has moved for disclosure under the Jencks Act; disclosures under Giglio; disclosures under Roviario; access to confidential informants under Saa; suppression of identification evidence under Simmons and Wade; disclosure of Brady material; inspection of certain Government reports and documentation; direction to Government agents who have worked on this case to retain their rough notes; a hearing to determine the audibility of tapes and accuracy of transcripts; disclosure of the Government's trial exhibits in advance of trial; an order requiring the Government to give Rule 404(b) notice; preclusion of any evidence relating to any extraneous crime or misconduct of a defendant or defense witness; suppression of physical evidence seized from defendants; the striking from the caption of the indictment aliases attributed to the defendant Cleary; a bill of particulars and permission to adopt motions of co-defendants.

Defendant Cleary has also moved to suppress the fruits of the New Jersey electronic surveillance on the grounds of lack of proper authorization, failure to timely seal the recordings, and failure to properly amend.

Defendant Aulicino has moved for a severance; disclosure of discovery; a bill of particulars, Brady material; suppression of identification testimony; disclosure of identity of government informants; suppression of oral statements made by defendant Aulicino; and permission to adopt the motions of co-defendants.

Defendant Palazzolo has moved for suppression of identification testimony; a severance; suppression of co-defendant statements under Bruton; disclosure of the names and addresses of Government informants who will be witnesses at the trial; and permission to join all motions made by co-defendants.

Defendant Olivieri has moved for a bill of particulars, further discovery; preclusion of evidence under Rules 403 and 404; Brady material; a severance; suppression of identification evidence under Simmons and Wade; suppression under Franks of evidence seized under a search warrant and other evidence seized without a warrant; dismissal of the indictment on grounds of lack of specificity (subsequently withdrawn); and permission to join in the motions of co-defendants.

The defendants Ruggiero, Cleary and Aulicino have also moved orally for a postponement of the trial until after the sentencing of defendants Palazzolo and Olivieri, who entered pleas of guilty to certain of the charged offenses herein on June 1, 1993. The motions assert that defendants Ruggiero, Cleary and Aulicino intend to call defendants Palazzolo and Olivieri as witnesses, and require the adjournment to obviate Fifth Amendment impediments to access to the testimony sought.

As a result of the aforesaid pleas of guilty, all remaining parties agree that the motions raising Bruton issues are moot, and deemed withdrawn.

We address first the Government's motions.

I. Empanelment of an Anonymous Jury

We grant the Government's motion for the empaneling of an anonymous jury in this case. By letter of May 6, 1993 the Government provided the defendants with details of a scheme to bribe or, failing that, to murder one Roberto Mercedes, a kidnap victim of the defendants according to indictment, who the defendants expect to testify against them at trial. The affirmation of Assistant United States Attorney Elizabeth Glazer ("AUSA Glazer" and "Glazer Aff.") dated May 11, 1993 sets forth the extraordinarily violent nature of the alleged conduct charged to the defendants, notes that three of the defendants, as fugitives, remain at large, and recites the extremely heavy penalties, including life imprisonment and mandatory twenty-five year sentences that would follow a jury verdict of conviction.

According to the Government, on December 9, 1992, Derrick Augustine and his lawyer, Wesley Serra, met with the prosecutors in this case to discuss the possibility of cooperating with the Government. Augustine told the Government that his co-defendants, who were incarcerated with him at FCI Otisville (only Aulicino was admitted to bail), had solicited his help in locating Roberto Mercedes, one of the alleged enterprise's kidnapping victims. The defendants told Augustine that they wanted to bribe Mercedes so that he would not testify at trial. The plan was to pay Mercedes $50,000 if he signed an affidavit exonerating the defendants. Although David Cleary had the most contact with Augustine because of the proximity of their cells, defendants Ruggiero, Olivieri, Palazzolo and Castelli fully supported this effort. In the event that Mercedes refused to accept the bribe, Cleary, Ruggiero and Palazzolo told Augustine that they would have Mercedes killed. Cleary also told Augustine that the defendants had bribed other individuals whom they believed the Government would call as witnesses at trial.

Cleary asked Augustine to contact an acquaintance of his named "Nancy" whom the defendants knew could find Mercedes. Nancy was to arrange a meeting between Mercedes and the defendants' outside contact. Augustine provided Cleary and Olivieri with "Nancy's" beeper number. The beeper number, in fact, belonged to an undercover police officer.

The defendants became suspicious that Augustine was cooperating after he had remained at the MCC for several days, while they had been returned to Otisville. They suggested that Augustine's cousin "Raymond" could be the go-between, and asked to meet "Raymond" in person. At about this time, Cleary told Augustine that once they took care of Mercedes the case against them would be finished. Cleary said that they should kill Mercedes as a "last resort." On another occasion, Cleary had told Augustine that he was reluctant to kill Mercedes because there were already "too many bodies in the case." Cleary told Augustine that Olivieri, Palazzolo, Ruggiero and Castelli had each agreed to contribute $5,000 to bribe Mercedes; Cleary said that Mercedes would get another $25,000 when the case was over.

On March 12, 1993, after several delays because of bad weather, an undercover officer, posing as "Raymond", met with Cleary and Castelli at FCI Otisville. Also present were Tim Nicoletti and Ida Ruggiero. Ms. Ruggiero is the sister of defendant Louis Ruggiero, Jr. Cleary had described Nicoletti as a childhood friend whom he could trust completely and who understood that the purpose of the meeting was to arrange to pay off a witness. Nicoletti, according to Cleary, had recently become a private investigator. A few days before the meeting, Olivieri put in a special request to have Nicoletti visit Olivieri on March 12, 1993.

During the March 12, 1993 meeting at Otisville, one of the defendants noticed that the undercover officer was wearing jewelry with initials that did not match his purported name. "Raymond" explained that he had stolen the jewelry. Cleary then took Augustine aside and asked if they could trust "Raymond" not to steal their money. Lacking confidence in "Raymond," the defendants did not make reference to killing or bribing Mercedes during the meeting. After the meeting, the defendants told Augustine that they did not trust his "cousin." The defendants were particularly wary since they had already given money to another individual to find Mercedes; that person had taken the money but had not produced Mercedes.

Shortly thereafter, the undercover officer left a message and then spoke to Nicoletti on the telephone. The conversation was general and ambiguous. Nicoletti said he had to talk to Cleary. At about this time Castelli told Augustine to tell "Raymond" not to leave messages on Nicoletti's machine in which he spoke too openly.

On or about April 7, 1993, Cleary asked Augustine why Augustine was on the list to go to the MCC. Cleary made Augustine swear that "Raymond" was not a cop.

On April 8, 1993 Augustine was moved to the MCC and signed a cooperation agreement with the Government.

On April 29, 1993, Olivieri met Augustine at the MCC near the bullpen. Olivieri told Augustine that if he testified against his co-defendants he would have "a problem;" but if Augustine did not testify he would receive money.

The affirmation of Elizabeth Glazer, dated June 3, 1993 ("Second Glazer Aff.") amplifies the Government's factual submission. After the March 12, 1993 meeting, Augustine saw Ruggiero and Palazzolo in the courtyard of FCI Otisville. When they asked how the meeting went, Augustine...