The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM DECISION AND ORDER
The delicate balance between a criminal defendant's
presumption of innocence and sixth amendment right to an
impartial jury on the one hand, and the prospective juror's
potential fear of retaliation or of outside influence on the
other, is at the center of the Court's concern in determining
whether there is a need for the drastic remedy of an
anonymous jury. Before the Court at this time is the
Government's motion for the impaneling of an anonymous jury
in this case, which involves a forty seven-count indictment
alleging, inter alia, murder, kidnapping, assault, money
laundering and illegal possession of weapons, all of which
surround an alleged extensive organized cocaine and heroin
distribution operation based in Brooklyn, New York. In
particular, the Government requests that the Court withhold the
names, addresses and places of employment of the prospective
jurors during voir dire. Since the Court finds that the jurors
to be selected in this case need some protection under the
circumstances presented, but not to the extent requested by the
Government, the motion is partially granted. Accordingly,
during the voir dire of this trial, the prospective juror's
first names and specific addresses and places of employment
will not be revealed. Their surnames, general locations of
residence and type of employment may be revealed. Also, the
jurors will be in the custody of the United States Marshal from
the time they enter the courthouse each day, until the time
In August and September of 1989, thirty six members of an
alleged heroin and cocaine trafficking organization located
in Brooklyn, New York, were arrested by the New York Drug
Enforcement Task Force. An indictment was later handed down
by a Grand Jury impanelled in the Eastern District of New
York, charging each of the defendants with violations of the
Controlled Substances Act, 21 U.S.C. § 801 et seq., and the
Racketeer Influenced and Corrupt Organizations Act ("RICO"),
18 U.S.C. § 1961-1968. The original indictment named 39
defendants, three of whom are fugitives. At the present time,
twenty-one defendants remain to be tried.
In particular, the indictment alleges that the defendants
engaged in numerous acts of kidnapping, murder, assault,
money laundering, possession of illegal firearms (including
unregistered "Uzi" .9mm submachine guns, semi-automatic
pistols and sawed-off rifles), all which was in furtherance
of the organization's extensive narcotics trafficking.
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, ...