of Brooklyn. Brand names such as, "Unknown", "No Mercy" and
"Critical", were allegedly used to identify the narcotics
distributed by the defendants. The defendants allegedly
distributed controlled substances on both the retail and
The organization allegedly reaped enormous profits between
1986 and 1989, which totaled, at one time, approximately $8
million per month. The Government further alleges that in
order to protect this lucrative business, violence was used
to discipline the organization's members and thwart rivals.
Examples alleged include numerous murders and kidnappings, as
well as assaults that involved bodily mutilation such as
extracting teeth and chopping off fingers.
In support of its motion for an anonymous jury, the
Government alleges that since their arrests, certain of the
defendants, and their relatives and friends, have made
threats of violence to law enforcement personnel, various
witnesses and even prosecutors. The Government also argues
that many of the defendants have previously been convicted of
narcotics offenses and crimes of violence, and have received
or could receive sentences that may result in life terms.
Finally, the Government expects considerable pre-trial and
trial media coverage of this case.
All of the defendants oppose the impaneling of an anonymous
jury, primarily on three grounds. First, it is alleged that
the use of an anonymous jury infringes upon the defendants'
presumption of innocence by instilling the impression of
guilt in the jurors' minds. Second, it is alleged that
withholding the names, addresses and places of employment
prevents meaningful voir dire of the jurors' racial, ethnic
and socioeconomic backgrounds. Finally, it is alleged that
even assuming the constitutionality of such a procedure, its
application is not warranted here.
The Government initially submitted ex parte, an affirmation
in support of its application for the Court's in camera
inspection and sealing. The affirmation detailed the
Government's allegations of threats of violence to witnesses,
law enforcement personnel and prosecutors. By order dated May
23, 1990, the Court directed counsel for all parties to appear
for oral argument. At that time, the Government's chief trial
counsel did verbally advise the Court and counsel for the
defendants of certain of these allegations. At oral argument,
the Government was given the option to either provide copies of
the affirmation to the defendants, or withdraw the affirmation.
Receiving no response, on July 6, 1990, the Court returned the
Government's affirmation, advising that it would not consider
its contents in making a determination unless copies were
served on all counsel.
The use of an anonymous jury for the purposes of voir dire
was first upheld in this circuit in the celebrated case of
United States v. Barnes, 604, F.2d 121 (2d Cir. 1979), cert.
denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980),
involving the trial of Leroy "Nicky" Barnes. The trial judge in
Barnes determined, sua sponte, that a limited voir dire in
which the names, addresses and neighborhoods of prospective
jurors would not be disclosed, was appropriate (see 604
F.2d at pp. 134, 137), in light of the seriousness of the
charges, extensive pretrial publicity and indications of the
defendants' willingness to interfere with the judicial system
(see 604 F.2d at p. 141). The trial judge, however, did conduct
an extensive voir dire, and asked the jurors to disclose the
counties in which they resided (see 604 F.2d at p. 135).
Since Barnes, "many trials involving multiple-defendants
indicted on racketeering and narcotics charges have been tried
to anonymous juries" (Hayden v. United States, 814 F.2d 888,
892 [2d Cir. 1987]). The Second Circuit has repeatedly upheld
the use of the procedure under appropriate circumstances (see,
e.g., United States v. Tutino, 883 F.2d 1125, 1132-33 [2d Cir.
1989], cert. denied, ___ U.S. ___, 110 S.Ct. 1139, 107
L.Ed.2d 1044 ; United States Persico, 832 F.2d 705,
717-18 [2d Cir. 1987], cert. denied, 486 U.S. 1022, 108 S.Ct.
1995, 100 L.Ed.2d 227 ; United
States v. Ferguson, 758 F.2d 843, 854 [2d Cir.], cert. denied,
474 U.S. 1032, 106 S.Ct. 592, 88 L.Ed.2d 572 ; United
States v. Thomas, 757 F.2d 1359, 1364-65 [2d Cir.], cert.
denied, 474 U.S. 819, 106 S.Ct. 66, 88 L.Ed.2d 54 ).
Critics have attacked the procedure as an assault on the
criminal defendant's entitlement to a presumption of
innocence, as well as an infringement of the sixth amendment
right to an impartial jury (see generally Abramovsky, Juror
Safety: The Presumption of Innocence and Meaningful Voir Dire
in Federal Criminal Prosecutions — Are They Endangered
Species?, 50 Fordham L.Rev. 30  [criticizing procedure
employed by Barnes court]). On the other hand, proponents
contend that the procedure is necessary in those limited cases
where jurors may reasonably fear retaliation or actually be
exposed to intimidation (see generally Note, Anonymous
Juries, 54 Fordham L.Rev. 981  [advocating juror
anonymity in extraordinary cases to ensure jury is free from
fear, intimidation and outside influence]).
In balancing the competing interests of these relative
positions, the Court recognizes that the presumption of
innocence is part of the cornerstone of our criminal justice
system and is considered one of the major basic components of
a fair criminal trial (see Estelle v. Williams, 425 U.S. 501,
503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 ). While, there
is no per se rule prohibiting the courts from placing
reasonable burdens on this presumption (see United States v.
Thomas, supra, 757 F.2d at p. 1363), in doing so the courts
must carefully consider the degree of prejudice to the
defendant weighed against the magnitude of threat to jurors.
The Second Circuit has enunciated the following
considerations which govern the Court's determination as to
the use of an anonymous jury:
"`there must be, first, strong reason to believe
that the jury needs protection and, second,
reasonable precaution must be taken to minimize
the effect that such a decision might have on the
jurors' opinions of the defendants'".
United States v. Tutino, supra, 883 F.2d at p. 1132, quoting
United States v. Thomas, supra, 757 F.2d at p. 1365.