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U.S. v. GOTTI

November 14, 1991

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOHN GOTTI, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Glasser, District Judge:

MEMORANDUM AND ORDER

The government has moved this court for an order directing that the jury in this case be selected anonymously and that the jury be sequestered. The bases upon which this motion is made are as follows:

In an affidavit by Patrick J. Cotter, an Assistant United States Attorney, the government relates that in the course of the trial of the case captioned United States v. John Gotti, 85-CR-178 (EHN), Matthew Traynor was called as a witness for the defense. He testified that the prosecutors sought to induce him to lie under oath concerning the defendants' involvement in various crimes "by providing him with controlled substances and helping him to achieve sexual gratification." At the conclusion of that trial, the presiding judge, Judge Nickerson, in a letter to then Chief Judge Weinstein dated March 16, 1987, wrote that after listening to Traynor and observing him while he testified, he found Traynor's testimony to be deliberately false. That assessment of Traynor's credibility was subsequently confirmed by Traynor's plea of guilty to perjury based upon that testimony. A transcript of a deposition of Traynor was made part of the record of the proceedings at which he pleaded guilty. In that sworn deposition, Traynor identified John Gotti, Gene Gotti and their attorneys as having suborned the perjury of which he was convicted.

In another affidavit subsequently submitted in support of this motion, John P. Mullaney, a Special Agent of the Federal Bureau of Investigation, sets forth the results of an investigation into allegations of jury tampering and obstruction of justice in connection with the case captioned United States v. Venero Mangano, et al., 90-CR-449 (RJD). One of the defendants in that case is Peter Gotti, the brother of John Gotti and an alleged "capo" in the Gambino organized crime family.

In 1984, John Gotti was identified by Romual Piecyk as one of two men who had assaulted him. Notwithstanding his prior identification of Gotti and his testimony before a grand jury which resulted in Gotti's indictment, Piecyk refused to identify Gotti at trial. Judge Nickerson found, following an evidentiary hearing, that Piecyk refused to identify Gotti because he was discouraged from doing so by intimidation attributable directly and indirectly to Gotti. See United States v. Gotti, 794 F.2d 773, 779 (2d Cir. 1986).

Angelo Ruggiero, Gene Gotti (John Gotti's brother) and John Carneglia were indicted and tried on narcotics charges before an anonymous jury in 1987. They were members of the Gambino Family. United States v. Ruggiero, 846 F.2d 117 (2d Cir.), cert. denied, 488 U.S. 966, 109 S.Ct. 491, 102 L.Ed.2d 528 (1988). A distinct possibility of jury tampering in that case, for which the defendants bore responsibility, gave rise to a grand jury investigation and a mistrial. The second trial resulted in a deadlocked jury and the third trial of Carneglia and Gene Gotti commenced in 1989. The efforts made to tamper with that jury, and thus obstruct the administration of justice, are set out in the Government's Memorandum in Support of its Motion for an Anonymous and Sequestered Jury ("Memo") at pages 13-15 and will not be repeated here. Suffice it to say that there is reason to believe that persons affiliated with John Gotti and the Gambino Family are implicated in those efforts and an investigation of that episode has not yet been concluded.

Electronically intercepted conversations which form the basis for several charges in the current indictment confirm that the defendants do not suffer from any inhibitions regarding the subversion of the judicial process by any means through which such subversion can be successfully accomplished. (Memo, 15-17).

With the foregoing as the factual predicate, coupled with the extraordinary publicity that has been and will continue to be given to this trial, the court is driven to conclude that the government's motion for an anonymous and sequestered jury must be granted. Given that factual context, a discussion of the legal principles which compel that conclusion follows.

I. Anonymous Juries

The United States Court of Appeals for the Second Circuit most recently addressed the issues to which an anonymous jury gives rise in United States v. Vario, 943 F.2d 236 (2d Cir. 1991), writing as follows:

  In a line of decisions, we have held that when
  genuinely called for and when properly used,
  anonymous juries do not infringe a defendant's
  constitutional rights. [Citations omitted]
  In United States v. Thomas, 757 F.2d 1359, 1365 (2d
  Cir. 1985), we outlined the basic standard for
  determining when the use of an anonymous jury is
  constitutional: "there must be, first, strong
  reason to believe that the jury needs protection
  and, second, reasonable precaution must be taken to
  minimize the ...

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