Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
U.S. v. IANNIELLO
April 26, 1990
UNITED STATES OF AMERICA,
MATTHEW IANNIELLO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Brieant, Chief Judge.
FINDINGS OF FACT and CONCLUSIONS OF LAW
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.
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
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 lack[ed]
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 "[t]he 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
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
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.*fn1 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 conducted in defiance
of specific court orders may constitute obstruction of justice.
Rakes v. United States, 169 F.2d 739, 745-46 (4th Cir. 1948).
Nothing in the record of this case, however, suggests that
counsel for defendants, assuming they directed Mr. Glynn,
violated either of these principles. Glynn neither harassed
unwilling jurors nor violated instructions against approaching
them because no such instructions were ever given.*fn2 He
asked questions of cooperative jurors, declining even to
approach two jurors (the "upstate" jurors) from whom he
expected hostile or unsympathetic responses. At the close of
trial, the jurors were free to discuss the case to whatever
extent they saw fit. Mr. Glynn did nothing improper by asking
several of them whether they wished to do so.
Our Court of Appeals has stated in dicta that ". . .
post-trial questioning of jurors must only be conducted under
the strict supervision and control of the court, with inquiry
restricted to those matters found by the court as both relevant
and proper." United States v. Brasco, supra. We believe,
however, that this principle does not apply where, as here,
jurors voluntarily submit to interrogation and choose to
exercise their First Amendment rights to criticize the judicial
system and their own participation in it — whether to counsel,
the media, or a private investigator hired to impeach the
verdict. The rule of Brasco is not supposed to disable lawyers
from establishing claims of juror bribery or improper outside
influence. The right to assistance of counsel does not end with
the judgment of conviction. We can conceive of no reason why
counsel for criminal defendants should be forced either to
await the fortuity of media investigation or to file
unsubstantiated motions to impeach a verdict based only on
suspicion. Any rule necessitating such a choice would so limit
counsel as to deny criminal defendants their Sixth Amendment
right to effective representation. It would also burden the
courts with meritless — and, by definition, unexamined —
Practical necessity often leaves counsel with little choice
but to conduct a limited independent investigation to
substantiate suspicion in order to justify a court-directed
full investigation. Indeed, counsel may have believed that
judicial supervision and authorization of their effort to
impeach the jury's verdict would be inappropriate if, as here,
some supposed interaction between the trial judge or the
marshal and the jurors was the object of investigation. Such a
view would not necessarily involve any imputation of bias or
unfairness against the trial judge, for our system of limited
government does not permit the President to adjudicate the
lawfulness of his own actions, United States v. Nixon,
418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), nor the legislature
to determine the constitutionality of its own enactments,
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803).
Surely the Court of Appeals did not intend in Brasco to make
individual judges the sole investigators of their own conduct.
The mandate of the Court of Appeals in this case rests on the
assumption that such allegations are best investigated by an
independent, unbiased fact-finder. It is our view, therefore,
that once their suspicions were activated, defendants' lawyers
were entitled to conduct such inquiries of the jurors as were
necessary to establish a colorable claim. That the
investigators in this case did so with deference to the privacy
rights of individual jurors, as they did, reinforces our belief
that such inquiries need not open the door to intrusive
Thus, even assuming that Glynn's investigation was
coordinated by some knowledgeable lawyer acting for one or more
of the defendants — an obvious conclusion on this record — no
wrongdoing or ethical breach was involved.
Glynn claims that the investigation was prompted by a
perceived suddenness of the jury's verdict. On May 2, 1988 the
jurors sent out an ambiguous note calling for a series of tapes
by subject matter. At least five hours were wasted while the
attorneys bickered with each other and argued with the trial
judge over which tapes were required to be re-played in
response to the note. Thereafter, some tapes were replayed, but
the jurors decided that they did not want to review additional
tapes. According to Glynn: "A short time thereafter, they came
out with a verdict and [Anthony DiNapoli] thought this was
— it just wasn't consistent." Glynn describes his retainer as
being "to interview some of the jurors to determine what their
feelings were along this — these lines." (Tr. p. 12). In fact,
the verdict was rendered on May 4, 1988, two days after the
jury decided it did not wish to re-hear the additional tapes.
Beginning on July 5, 1988, Mr. Glynn employed Mrs. Marilyn
Reynolds and associated her with the investigation. Mrs.
Reynolds, also a retired New York City police officer, is an
articulate and experienced investigator who also could have
been drawn from Central Casting. Mrs. Reynolds understood that
was to help the defense lawyers who were working on the appeal
of the verdicts. Her admitted function, which she performed
most effectively, was to play a duet with Glynn in the course
of interviews and to establish a good relationship with the
affiant jurors. See Exhibit 303A at 6. This form of police
interrogation, which is quite common, is often described as the
"good cop, bad cop routine," but in this case it was more the
"smart cop, dumb cop," with Mrs. Reynolds cast in the first
position and Glynn pretending to require considerable
repetition and explication of the witnesses' statements before
he would admit that he could understand them.
The jury in this case was described as "semi-anonymous".
There is, of course, no such thing as a semi-anonymous jury in
a long trial. Apparently, the jurors were permitted to give
only their last names, and tell the general neighborhood or
vicinity in which they lived, as well as their occupations.
Since all jurors, with exceptions not material, of necessity
had to come from Manhattan, the Bronx, or a point upstate
within fifty (50) miles of the Foley Square Courthouse,
locating such jurors could not have been a difficult problem
for a trained investigator. Mr. Glynn contends that he used
ordinary procedures, such as the Motor Vehicle Department
checks, the telephone book, and reference to the Board of
Elections. It is more likely that Joyce Domingo, the foreperson
of the jury and an early, enthusiastic participant in this plan
to impeach the verdict, who admits she knows the full names and
residence addresses of all, or almost all, of the jurors,
provided the information needed to locate them.
Glynn says he found out that the jury foreperson, Joyce
Domingo, lived in the Bronx, and managed to obtain her home
telephone number in spite of the fact that the phone listing
was under the name "Gibson". Mr. Glynn testified that he called
and identified himself, told Ms. Domingo that he was
interviewing jurors in the Salerno case, and asked her if she
would meet with him to discuss the case. They arranged to meet
at a nearby Burger King restaurant on June 13, 1988. (Tr.
18-20) Ms. Domingo emerges as the most important figure in this
proceeding, and this Court is compelled carefully to scrutinize
her testimony, which presents the only evidence of prejudicial
ex parte juror contact.
According to Glynn, Ms. Domingo began the restaurant
conversation, which conversation was not tape-recorded, by
saying that she was "sorry the way the verdict turned out" and
"that deliberations began with a vote of 9 to 3 for acquittal,
because they felt that there was not enough evidence shown to
convict these people" (Tr. 21). According to Glynn, Ms.
Domingo, told him the following during that first meeting:
(1) She was told by someone on the outside that if they
didn't come to a decision they would have to listen again to
100 of the tapes;
(2) On another occasion, the Judge had come to the
deliberation room door and had said to them that she did not
want a hung jury, either convict or acquit, but she did not
want a hung jury; and
(3) During the forfeiture proceedings, after the initial
guilty verdict had been announced, she had entered the Judge's
Chambers to call home, the Judge had asked her how she was
doing, and when she responded that they "were having big
arguments and it looked like they were not going to be able to
come to some decision", the Judge then told her to go back in
and to try to pull the others together "because I don't — I do
not want a hung jury" (Tr. 22).
Glynn claims that he tried to tape record this meeting, but
his only recorder was broken. (Tr. 26). His "scratch notes" of
the interview were not produced.
Mr. Glynn took Ms. Domingo for lunch again on June 16, 1988
at the same Burger King restaurant and asked her if she would
sign an affidavit. She said she would. He prepared a two page
affidavit and returned to the Burger King the following day at
noon with a Notary, attorney Pat V. Stiso. Ms. Domingo said
that she wanted to take the affidavit home to review before
signing it, and he left the proposed affidavit with
her. On Monday, June 20th, they met again by prearrangement.
Ms. Domingo had re-drafted the second page of the affidavit on
a typewriter at her place of employment. Glynn then took Ms.
Domingo to the office of well-known criminal defense attorney
Murray Richman, Esq., at 2027 Williamsbridge Road in the Bronx,
where Mr. Stiso was employed and where he knew a Notary Public
would be available. Although Stiso was present, the Notary used
was Denise Begasse. Testimony of the Notary Public, Denise
Begasse (Tr. 272) was essentially consistent with that of Glynn
concerning the signing of the Domingo affidavit. The first page
was initialed by Ms. Domingo at the Notary's request. Attorney
Stiso also testified that he had been present at the diner on
the earlier occasion when the affidavit would have been signed
had it been acceptable to Ms. Domingo (see Tr. 282).
The Domingo affidavit is Exhibit "1" at the Hearing. The
claim about the Judge appearing at the doorway and telling them
that "they must work together and come to some decision . . .
[e]ither a conviction or an acquittal, but she did not want a
hung jury" appears on the first page of the Exhibit originally
typed by Mr. Glynn, followed by the conclusion of Ms. Domingo
that "all the Jurors heard the Judge's remarks." Reference to
the second alleged contact with the Judge, when Ms. Domingo
made a telephone call from the judge's room, is also found on
the first page.
The second re-typed page contains nothing of specific
relevance to this Hearing. However, it does tell us that Ms.
Domingo, at least in June of 1988, was most displeased with the
jury verdict, regarded the Judge as "a very nice lady [who]
seemed to lean more toward the Government", and claimed that in
the forfeiture proceeding there had been "trading off" among
the Jurors in order to reach an agreement that "Tony" (Mr.
Salerno) could keep his farm. She also offered the conjecture
that she was "sure some of [the jurors] [had] read the [news]
papers." These two latter assertions are of no relevance except
that they bear on the witness' state of mind. They are not
within the scope of the remand and are barred by Rule 606(b)
This Court has examined the original, unsigned page two of
the affidavit as drafted by Mr. Glynn. The differences between
the respective second pages are very slight. For example, Ms.
Domingo corrected the name of the judge's clerk, typed by Glynn
as "Lily" to read "Lisa". The sentence referring to the Salerno
farm had originally been drafted by Mr. Glynn as reading "Ms.
Domingo said they got Tony [Anthony Salerno] and Maishe [Milton
Rockman] out of the Teamster thing, only by swapping or trading
off". References to Senate Sub-Committee Hearings and Vincent
Coffaro were eliminated in the re-draft. All these changes are
essentially insignificant. After signing the affidavit, Ms.
Domingo asked Mr. Glynn for a copy of it. He took the original
and left the Richman law office. Mr. Glynn's June 20th and July
19th meetings with Ms. Domingo were tape recorded. Meetings on
June 13th, 16th and June 17th were not recorded. The excuse
given is that the tape recorder was broken. No inference
adverse to the movants or the witnesses can be drawn from the
fact that some meetings were recorded, and some were not. All
law enforcement agencies make selective use of specific methods
of investigation, including concealed tape recorders. However,
the claim that the tape recorder was "broken" and no substitute
machine was available has a slight ring of untruth to it.
Ms. Domingo testified before me on April 14, 1989. Her
demeanor and attitude could fairly be described as highly
favorable to the movants. Ms. Domingo testified that she was
strongly in favor of acquitting the defendants and was happy to
assist Mr. Glynn in any way she could to see that the
defendants received a new trial (Tr. 403). Nevertheless, on her
direct examination, she was somewhat less certain of the
critical facts than her affidavit and prior conversations, as
reported by Glynn, would suggest. In response to a leading
question, she described the trial judge, at a date or time
which she could not remember,
as having come to the jury room door. She testified:
(Direct examination by Mr. Jacobs (Tr. 303)
Q. Did there come a time during the jury
deliberations in that case that Judge Lowe
appeared in the doorway of the Jury Room?
Q. Do you recall anything that she said, if
THE COURT: First fix the time.
Q. Do you remember when that was, Miss Domingo?
A. I really can't say. It's been so long ago.
Q. Can you tell us what was said, if anything.
A. For us to carry on and come to a decision.
Probably during lunch break. That's the only time
the door would have been open.
Q. Do you remember her exact words?
A. Come to a decision. Carry on.
The witness also testified (Tr. 304) that at a later time
the Judge said that she did not want a hung Jury: "She said to
pull the others together, so we can come to a decision and we
can't [sic] have twelve yes and twelve no. Just come to a
decision." This event is described as having happened on a
"night we worked very late, till 1:00, 2:00 o'clock in the
morning". Ms. Domingo was in the Judge's robing room to make
a telephone call "and she asked how everything was going, and
I told her not good" (Tr. 305). The telephone call was placed
while the Jury was engaged in deliberation on the issue of
forfeiture, and I find that it is the same contact described
in Judge Lowe's affidavit as the "we want pillows and
blankets" situation, discussed below.
Movants then confronted Ms. Domingo with her own affidavit
obtained by Mr. Glynn. The following testimony ensued:
Q. Ms. Domingo, let me take you back to the first
time that you said the judge was at the jury room
door. Do you remember anything else that the
judge said at that time?
A. No, just to carry on and come to a decision.
Q. Let me show you court Exhibit No. 1, Ms.
Domingo, and ask you whether you have seen that
Q. And what is it, ma'am?
A. Well, it's a deposition of what I remember.
Q. Would you look at it — would you take a moment
and read it, please?
A. Starting with the date?
Q. No, read it to yourself.
Q. Have you read the document?
Q. Is that your signature that appears on page 2
of the document?
Q. After reading [that] document, do you recall
anything else the judge said when she was at the
doorway to ...