United States District Court, Eastern District of New York
November 14, 1991
UNITED STATES OF AMERICA, PLAINTIFF,
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
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
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
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 effect that such a decision might have
on jurors' opinions of the defendants."
943 F.2d at 239.
Other circuits have endorsed the practice of concealing
personal information about jurors. See, e.g., United States v.
Scarfo, 850 F.2d 1015 (3rd Cir.), cert. denied, 488 U.S. 910,
109 S.Ct. 263, 102 L.Ed.2d 251 (1988). In this circuit, the
anonymity of a jury has been sustained on numerous occasions.
In one of the earlier cases in which
the court commented upon the issue, it wrote that threats to
jurors conveyed in unsigned letters
demonstrates the need for precautions assuring
that the addresses, and perhaps even the names,
of jurors in cases such as this will be held in
confidence; courts must protect the integrity of
criminal trials against this kind of disruption,
whether it emanated from defendants' enemies, from
their friends, or from neither.
United States v. Borelli, 336 F.2d 376, 392 (2d Cir. 1964)
(emphasis added), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13
L.Ed.2d 555 (1965).
The court in United States v. Edmond, 730 F. Supp. 1144
(D.D.C. 1990) concluded after examining the cases in which
anonymous juries were considered that a court
must balance, on the one hand, the interests of
the criminal justice system — protecting the
jurors and their families from violence, actual or
threatened, and shielding the jurors from the
potential taint of extensive trial-related
publicity — and, on the other hand, the
defendants' interests — conducting a meaningful
voir dire to permit the intelligent exercise of
their peremptory challenges and retaining their
presumption of innocence.
730 F. Supp. at 1145.
In Scarfo, after observing that a "juror's fears of
retaliation from criminal defendants are not hypothetical [and
that] such apprehension has been documented," the court
As judges, we are aware that, even in routine
criminal cases, veniremen are often uncomfortable
with disclosure of their names and addresses to a
defendant. The need for such information in
preparing an effective defense is not always
self-evident. If, in circumstances like those in
Barnes,*fn1 the anonymity promotes impartial
decision making, that result is likely to hold
equally true in less celebrated cases.
The virtue of the jury system lies in the
random summoning from the community of twelve
"indifferent" persons — "not appointed till the
hour of trial" — to decide a dispute, and in their
subsequent, unencumbered return to their normal
pursuits. See 3 W. Blackstone, Commentaries * 378.
The lack of continuity in their service tends to
insulate jurors from recrimination for their
decisions and to prevent the occasional mistake of
one panel from being perpetuated in future
deliberations. Because the system contemplates that
jurors will inconspicuously fade back into the
community once their tenure is completed, anonymity
would seem entirely consistent with, rather than
anathema to, the jury concept. In short, we believe
that the probable merits of the anonymous jury
procedure are worthy, not of a presumption of
irregularity, but of disinterested appraisal by the
850 F.2d at 1023 (emphasis added).
The factors that have driven me to conclude that an
anonymous jury is required in this case are compelling. There
is an urgent need to protect the integrity of this trial
against efforts to subvert its processes. The defendant Gotti,
members of the Gambino Family, and others have all
demonstrated a willingness to attempt, if not to accomplish,
such subversion in the past.
Jurors cannot be expected to gamble on what might befall
them if a verdict of guilty is returned. The ability of a jury
to render a fair and impartial verdict may be adversely
affected by even a general fear of retaliation, and a distinct
possibility of a serious threat to the safety of jurors
requires that precautionary measures be taken. United States v.
Thomas, 757 F.2d 1359, 1364 (2d Cir. 1985). The extensive
publicity this case has garnered thus far (and is certain to
attract during each day of trial until a verdict is returned)
is another factor requiring an anonymous jury. In repeated
applications to conduct in camera
proceedings and to keep all submissions sealed, the defendants
have urged the necessity of keeping publicity to an absolute
minimum lest the defendants' right to a fair trial be
adversely affected by a polluted pool of jurors. "[A]nonymity
and sequestration measures will serve the . . . purpose of
ensuring that the jurors are not exposed to members of the
media or to publicity about the trial." Edmond, 730 F. Supp. at
1148. Anonymity and sequestration will also serve to protect
the rights of privacy of the jurors and their families. United
States v. Tutino, 883 F.2d 1125, 1132 (2d Cir. 1989), cert.
denied, 493 U.S. 1081, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990);
United States v. Ferguson, 758 F.2d 843, 854 (2d Cir.), cert.
denied, 474 U.S. 841 & 1032, 106 S.Ct. 124 & 592, 88 L.Ed.2d
102 & 572 (1985); United States v. Barnes, 604 F.2d 121, 141
(2d Cir. 1979).
The jury selection process (voir dire) is not a matter of
constitutional dimension and the selection of an anonymous jury
was implicitly held to be constitutional in Barnes. See Thomas,
757 F.2d at 1364. The defendants do not contend that jury
anonymity negates the presumption of innocence, nor could they.
Although the due process clause of the Fifth Amendment protects
the presumption of innocence, "there is no per se rule that it
may not be burdened." Thomas, 757 F.2d at 1364; see also
Scarfo, 850 F.2d at 1026. Balancing the government's interest
in safeguarding both the jurors and the integrity of the
judicial process against the defendants' interest in preserving
the integrity of the presumption of innocence, the scale weighs
heavily in favor of the government.
II. Sequestered Juries
The decision to sequester the jury is one which rests in the
sound discretion of the trial judge. Holt v. United States,
218 U.S. 245, 251, 31 S.Ct. 2, 5-6, 54 L.Ed. 1021 (1910); United
States v. Shiomos, 864 F.2d 16, 18 (3rd Cir. 1988); United
States v. Persico, 832 F.2d 705, 718 (2d Cir. 1987), cert.
denied, 486 U.S. 1022, 108 S.Ct. 1995, 100 L.Ed.2d 227 (1988);
Baker v. United States, 401 F.2d 958, 968 (D.C. Cir. 1968);
United States v. Breland, 376 F.2d 721, 723-24 (2d Cir. 1967).
Sequestration may be ordered notwithstanding the objection of
the defendant. Shiomos, 864 F.2d at 18. The grounds upon which
the decision to empanel an anonymous jury were based also
compel the conclusion that the jury should be sequestered. In
United States v. Edmond, 730 F. Supp. 1144, 1145 n. 1 (D.D.C.
1990), the court recognized that the only way to assure the
anonymity of a jury, as a practical matter, is to sequester
them and that a decision on anonymity will also determine
whether the jury should be sequestered.
In prior proceedings in this case, namely, the proceeding to
determine whether the defendants should be detained pretrial
and the proceeding to determine whether certain defense
counsel should be disqualified, the defendants urged the court
to conduct the proceedings in camera and to direct that all
submissions pertaining to those proceedings be kept under seal.
They argued that the virtually unprecedented publicity
attendant upon any case involving John Gotti, and particularly
this one, would impair his Sixth Amendment right to a fair
trial were those proceedings to be made public. They contended
that the jury pool would be irrevocably tainted and that even a
searching voir dire could not cleanse it.
In opposing the government's motion for an anonymous and
sequestered jury, the defendants recognize "that media
coverage of this trial has and will be extraordinary." (Defs.
Memo at 8). They nevertheless contend that "[t]he traditional
methods of attempting to guarantee both sides a fair trial in
the face of potentially prejudicial news coverage has
heretofore always consisted of careful screening of jurors and
of making available to the defendants, if they choose, such
remedies as continuance, change of venue and/or mistrial."
(Defs. Memo at 8). The suggestion that the recited remedies
are solely a matter of defendants' choice is questionable, to
say the least, and the recognition that the prejudicial
publicity in this case may require a mistrial is a tacit
recognition of the necessity for sequestration.
The defendants' inconsistent view of the impact of the
extraordinary publicity upon the defendants' right to a fair
trial and upon the integrity of the judicial process is
reminiscent of an observation made in another context in
Wheat v. United States, 486 U.S. 153, 161, 108 S.Ct. 1692,
1698, 100 L.Ed.2d 140 (1988): "trial courts confronted with
[sequestration decisions] face the prospect of being
`whipsawed' by assertions of error no matter which way they
rule." The accuracy of that observation is confirmed by cases
such as United States v. Persico, 832 F.2d 705, 718 (2d Cir.
1987) (Carmine Persico claimed error predicated on Judge
Keenan's decision not to sequester the jury during the
eight-month trial), cert. denied, 486 U.S. 1022, 108 S.Ct.
1995, 100 L.Ed.2d 227 (1988); United States v. Bakker,
925 F.2d 728, 734 (4th Cir. 1991) (Bakker argued that the trial court's
refusal to grant his motion to sequester the jury unjustifiably
exposed the jury to influences from the media and public
opinion); Baker v. United States, 401 F.2d 958, 968 (D.C. Cir.
1968) (defendant contended that sequestering the jury was not
justifiable); United States v. Hoffa, 367 F.2d 698, 711 (7th
Cir. 1966) (Hoffa argued that sequestration was patently at
odds with basic American traditions where jury housed at Great
Lakes Naval Station), vacated, 387 U.S. 231, 87 S.Ct. 1583, 18
L.Ed.2d 738 (1967); and United States v. Holovachka,
314 F.2d 345, 352 (7th Cir.) (defendant argued that sequestration was
coercive in its effect on the verdict of the jury), cert.
denied, 374 U.S. 809, 83 S.Ct. 1695, 10 L.Ed.2d 1033 (1963).
Finally, it is interesting to note that in Sheppard v. Maxwell,
384 U.S. 333, 363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966)
the Supreme Court, in holding that the defendant's due process
rights were violated by trial publicity, stated that
"sequestration of the jury was something the judge should have
raised sua sponte with counsel" to protect the defendant's
right to a trial by an impartial jury free from outside
The court is not indifferent to the unusual burdens
sequestration places upon jurors beyond those they already
bear in discharging their civic responsibility to jury
service. It firmly believes, however, that a properly
instructed jury will willingly bear that burden and discharge
that responsibility toward the end that the integrity of the
judicial process, as well as the defendants' right to a fair
trial and to an impartial jury, will be realized.
For the reasons stated in granting the government's motion
for empaneling an anonymous jury, the government's motion to
sequester that jury is also granted.