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July 17, 1986

JOHN GOTTI, et al., Defendants

The opinion of the court was delivered by: NICKERSON



 Defendants apply to preclude the admission of certain evidence that the government proposes to offer.

 The indictment charges so-called RICO violations in two counts. The first alleges, in substance, that defendants as the leadership of a part of the "Gambino Crime Family" constituted an "enterprise" within the meaning of 18. U.S.C. § 1961(4) and conspired, in violation of 18 U.S.C. § 1962(d), to associate together in the enterprise and to conduct its affairs through "a pattern of racketeering activity" consisting of theft, the conduct of illegal gambling businesses, extortion, robbery, trafficking in contraband cigarettes, and acts and threats of murder and robbery.

 The second count charges that each defendant violated 18 U.S.C. § 1962(c) by participating in the conduct of the affairs of the enterprise through a "pattern of racketeering activity." The count alleges fifteen racketeering acts, in at least two of which each defendant is said to have participated.

 The alleged racketeering acts committed by the seven defendants remaining in the case may be summarized as follows. Two of the defendants are accused of theft of goods from interstate commerce, one of illegal possession of goods stolen from interstate commerce, three of murder or conspiracy to murder, six of the conduct of illegal gambling businesses, three of conspiracies to rob currency from armored cars, five of conspiracies to commit extortion, one of theft under state law, and one of illegal possession of contraband and stolen cigarettes.

 1. The government proposes to offer pursuant to Rule 804(b)(5) of the Federal Rules of Evidence statements by Albert Gelb, one of the murder victims, to ten prospective witnesses. Gelb, a court officer, allegedly caused the arrest of Charles Carneglia for possession of a weapon. Charles Carneglia, a named defendant, is a fugitive and the brother of defendant John Carneglia. Charles was charged in the state court with possession of a weapon and resisting arrest. On March 11, 1976, shortly before the state trial, Gelb was murdered. Before he was killed Gelb allegedly stated to several of his acquaintances that Charles and friends and associates of Charles had threatened him with injury or death if he testified against Charles.

 The indictment charges defendant John, Charles' brother, with the murder of Gelb as a part of the conduct of the affairs of the enterprise.

 Subsection (b)(5) of Rule 804 provides an exception to the exclusion of hearsay evidence when the declarant is unavailable. The subsection reads, in pertinent part, as follows:

(5) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness [is not excluded by the hearsay rule], if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

 To qualify for admission under this so-called "catch-all" rule Gelb's statements as to the threats must be, among other things, evidence of "a material fact," a term not defined in the Federal Rules of Evidence. If a "material" fact is simply a "relevant" fact, the qualification adds nothing to the sentence in Rule 402 excluding irrelevant evidence. Rule 401 of the Federal Rules of Evidence recites that "'[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The notes of the Advisory Committee on the proposed Rules show that it used this language because "it has the advantage of avoiding the loosely used and ambiguous word 'material.'"

 But Congress and not the Advisory Committee drafted Rule 804(b)(5) [and Rule 803(24), which has identical pertinent wording], and nothing in the legislative history throws light on the question of whether the drafters sought to make a distinction between "material" and "relevant." Chief Judge Weinstein has suggested that use of the word "material" probably requires that the evidence concern a matter that is not "trivial or collateral." United States v. Iaconetti, 406 F. Supp. 554, 559 (E.D.N.Y.), aff'd, 540 F.2d 574 (2d Cir. 1976), cert. denied, 429 U.S. 1041, 50 L. Ed. 2d 752, 97 S. Ct. 739 (1977). At least the evidence must be relevant.

 The government urges that Charles' threats are relevant to his motive to cause his brother John to commit the murder. The threats are certainly evidence that Charles knew that Gelb was the cause of the arrest and realized that Gelb would probably testify against him. To that extent the threats are relevant to show that Charles had an incentive, shared, the government claims, with John, to cause Gelb's disappearance.

 But to admit the evidence on this basis would be inconsistent with the second qualification of Rule 804(b)(5). For the threats are not "more probative" than other evidence the government has to show Charles' appreciation that Gelb's testimony would be damaging to him. The government proposes to offer the testimony of Gelb at a hearing in which he recounted the events leading up to the arrest and during which Charles' counsel thoroughly cross-examined Gelb. Gelb's accusations under oath that Charles possessed a weapon and resisted arrest are as directly probative of Charles' motive to arrange the murder as are his threats.

 The government also contends that the threats to Gelb are relevant to show the murder was committed as a part of the conduct of the affairs of the "enterprise." The argument is that warnings not to testify against someone in fact a member of the Gambino Family tends to prove that the billing was not a random homicide unrelated to the protection of the enterprise.

 A threat by Charles himself would not itself justify an inference that it was made in furtherance of the aims of the enterprise or of the Gambino Family. It is just as likely he made the threat on his own behalf. The government does not suggest that he announced his threats as part of the activities or policy of the enterprise or of the Gambino Family.

 Moreover, John allegedly committed the murder. Indeed, the government says there will be testimony that John said he had committed the murder to prevent his brother from going to jail. Perhaps the government has other evidence to warrant a jury in finding that John killed not solely out of a fraternal feeling but to serve the purposes of the enterprise. But evidence of Charles' threats is not proof that such was John's motive.

 The government points out that Gelb stated that some of the threats were made by Charles' friends or associates. Evidence that an "associate" of the "enterprise" made a threat would tend to show that members of the enterprise believed that its interests were threatened by Gelb's prospective ...

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