US v. Ruggiero

• Decision Date: 25 January 1988
• Docket Number: No. CR 83-412(S).,CR 83-412(S).
• Citation: 678 F. Supp. 46
• Parties: UNITED STATES of America, v. Angelo RUGGIERO, et al, Defendants.
• Court: U.S. District Court — Eastern District of New York

678 F. Supp. 46

UNITED STATES of America, v. Angelo RUGGIERO, et al, Defendants.

No. CR 83-412(S).

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

January 25, 1988.

Andrew J. Maloney, U.S. Atty., Laurence Urgenson by Robert Larusso, John Gleeson, Asst. U.S. Attys., and Jack Shannon, Sp. Asst. U.S. Atty., Brooklyn, N.Y., for U.S.

Jeffrey Hoffman, New York City, for defendant Ruggiero.

Ronald Fischetti, New York City, for defendant Gotti.

Anthony Lombardino, Kew Gardens, N.Y., for defendant Carneglia.

Edwin Schulman, Pittsford, N.Y., for defendant Moscatiello.

Robert Katzberg, New York City, for defendant Lino.

Benjamin Brafman, New York City, for defendant Reiter.

Dave Depetris, New York City, for defendant LoPresti.

David Lewis, New York City, for defendant A. Gurino.

Robert Fogelnest, New York City, for defendant C. Gurino.

Martin Geduldig, Garden City, N.Y., for defendant Ansourian.

MEMORANDUM OF DECISION AND ORDER

COSTANTINO, District Judge.

Trial of this case, which involves charges of Racketeering, Distribution of Heroin, Obstruction of Justice and Conspiracy to Obstruct Justice, commenced in April 1987, when an anonymous jury was empaneled. Opening statements began on June 1, 1987. On October 22, 1987, the Government began an investigation, necessitated by information obtained from confidential sources, to discover whether the jury sitting in this case had been compromised. On January 8, 1988, the Government brought the fruits of its investigation to the court's attention and requested that the Court conduct an in camera voir dire of each juror and a hearing to determine if unlawful contact with the jurors had, in fact, occurred.

Confronted with the seriousness and the immediacy of the information presented by the Government, the Court granted the Government's request and interviewed each juror in chambers without first notifying the defendants. The next day, defense counsel was presented with a transcript of the voir dire and the Government's motion papers. Over the following three days, the Court conducted hearings in order to determine the merits of the Government's allegations. At the conclusion of the hearings, the Government moved for a mistrial and on January 22, the Court granted the motion. The following constitutes this Court's findings with respect to the Government's motion.

At the outset, it is important to note that the defendants' assertion that the Government bears the burden of establishing by a preponderance of the evidence that jury tampering has occurred is incorrect. In a case similar to the one at bar, where the trial court "understandably believed" that the defendant was responsible for the death of a crucial Government witness, the Court of Appeals for the Second Circuit stated:

"the test is simply whether at the time the trial judge is faced with the question he reasonably concludes that there is a distinct possibility that the defendant participated in making the witness unavailable, at least where ... the Government is totally without fault and the case cannot proceed and the ends of justice be served ..."

United States v. Mastrangelo, 662 F.2d 946, 952 (2d. Cir.1981).

Although the Government also urges this Court to make its findings based on the more rigorous preponderance standard, the Court will not accept the invitation. In light of the exigency of determining whether to proceed with the trial and the obvious constraints placed upon the Court's ability to fully explore the Government's allegations at a short hearing, the Court can perceive no reason to depart from the standard enunciated in Mastrangelo. The fact that the Government had more time to investigate the defendants' misconduct than it did in Mastrangelo, is of limited significance, for it is the Court that must make the expeditious determination of whether the trial may go forward in the face of the Government's assertion (and the defendants' vehement denials) that jury tampering has occurred. Id. at 951-952.

The defendants are also incorrect in their assertion that "the jurors' answers to the Court's voir dires are conclusive and absolutely preclude a finding by the Court that jury tampering has occurred." (Defendants' Joint Memorandum, p. 23). Irvin v. Dowd, 366 U.S. 717, 725, 81 S.Ct. 1639, 1644, 6 L.Ed.2d 751 (1960); Sullivan v. Fogg, 613 F.2d 465, 467 (2d Cir.1980). If the Court believed that the voir dire resolved the Government's allegations, the inquiry would have ended there. The voir dire did not solve the issue to the court's satisfaction, however, and the additional proceedings were clearly warranted.

Both the Government and the defendants have set forth extensive reviews in their submissions of the evidence that was adduced at the trial, presumably so that the Court could determine whether the defendants had a motive to tamper with the jury. The defendants also present their interpretation of the trial evidence to bolster their claim that the Government acted in bad faith in bringing its mistrial motion. This latter point is clearly a question for a future proceeding (however, the Court fully adopts the January 22, 1988 opinion of the en banc panel on this issue¹).

In regard to whether the evidence introduced at trial provided the defendants with a motive to tamper with the jury, the Court will not pass on the weight of the trial evidence. A judicial endorsement of the Government's case could significantly prejudice the defendants at subsequent trial. The Court does find, however, that the charges and the possible sentences faced by the defendants if they were convicted provided the defendants with ample motive to tamper with the jury.

Based upon the evidence adduced at the hearing and the materials submitted by the Government, the Court finds that there is a very high degree of likelihood that the panel sitting on this case has to some extent been compromised as a result of unlawful conduct circumstantially attributable to the defendants.

In an affidavit dated January 7, 1988, Special Agent Martin J. Towey states that he has been advised by Special Agent Robert J. Liberatore that the Federal Bureau of Investigation ("F.B.I.") has received information from confidential sources regarding jury tampering in this case. Specifically, Agent Towey advises that:

a. Beginning in the summer of 1987, the defendants in this case began to take overt measures to identify members of the anonymous jury in order to fix the case. Specifically, the plot was engineered by John Carneglia, Gene Gotti, Angelo Ruggiero and Eddie Lino.

b. The defendants have learned the identities of at least five of the jurors.

c. Initially, the defendants used the services of William Sewell, an investigator, to help identify members of the jury. Sewell's services included having computer searches conducted to trace the license plates of cars in which the jurors were observed.

d. At least one of the black jurors has been approached and is now compromised. (footnote omitted).

Towey Aff. pp. 2-3.

Although standing alone this hearsay information might be considered too attenuated for the Court to make a finding of jury tampering, testimony adduced at the hearing provides potent corroboration of Towey's statements. For example, former juror number two, Gary Barnes, served on the panel until December 8, 1987. He was discharged on that date after it was learned that he was not a United States citizen and was therefore not qualified to serve as a juror. (28 U.S.C. § 1865 (b)(1)). Mr. Barnes was the Government's first witness at the hearing. The Court finds Barnes to be a completely trustworthy witness, and it credits his testimony in its entirety. At the hearing, Barnes testified that he is employed at REFCO, Inc. as a commodities telephone clerk. (Tr. 10210².). Barnes identified a photograph, marked as Government exhibit 4, as a person he observed in courtroom on several occasions. (Tr. 10224). Exhibit 4 is photograph of William Sewell, the private investigator named in the Towey affidavit and in the affidavit of Special Agent John Flanagan. Barnes observed Sewell on one occasion in the municipal parking lot used by several of the jurors. (Tr. 10227). At that time, they had a brief verbal interchange which was initiated by Barnes. Although the defendants have painted this conversation as "utterly innocuous" (Defendants' Joint Memorandum, p. 32), the Court does not agree with this characterization. The import of Barnes's testimony and the significance of his question — "Are you a chauffeur?" — is that Barnes was curious about why Sewell had followed him into the garage.

The defendants also make much of the fact that Sewell truthfully told Barnes that he was a private investigator in response to Barnes's question³. It would bespeak ill of Sewell's skills as an experienced investigator and former New York City detective, however, if he responded untruthfully with an answer that could be so easily verified that it might unveil the defendants' stratagem in an instant.

The information obtained from the confidential sources is also substantiated by the events which transpired shortly after Mr. Barnes was discharged from the jury on December 8. On December 9, Special Agent Flanagan telephoned Barnes and arranged an interview for the afternoon of the next day. (Tr. 10235). On December 10, at 10:45 A.M., prior to his meeting with Flanagan, Barnes received a telephone call from Melvin Rosenberg. Rosenberg is also employed by REFCO. That conversation was recorded at REFCO in the regular course of business and was replayed during the hearing⁴. It is patent from this conversation that: (1) Barnes did not recognize the speaker until Rosenberg identified himself several times, (2) Rosenberg was very serious about his need to meet with Barnes, and (3) Rosenberg believed that the subject matter of his planned meeting with Barnes could not be stated on a taped telephone. This latter point is especially noteworthy, for it evinces...