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UNITED STATES v. COIRO

February 25, 1992

UNITED STATES OF AMERICA, against MICHAEL COIRO, Defendant.


The opinion of the court was delivered by: I. LEO GLASSER

MEMORANDUM AND ORDER

 GLASSER, United States District Judge:

 The defendant in this criminal action moves to compel disclosure of his grand jury testimony, to dismiss the indictment, and to suppress the fruits of certain electronic surveillance; the government cross-moves for a protective order with respect to the grand jury testimony of the defendant. For the reasons set forth below, the motions of the defendant are denied, and the motion of the government is granted.

 FACTS

 On November 30, 1989, the defendant in this action, Michael Coiro, was found guilty on charges that included conspiracy to violate the Racketeer-Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq. That evening, Michael Coiro engaged in conversations with John Gotti at the Ravenite Social Club in Manhattan; those conversations were secretly recorded by federal agents. The government alleges that, during the course of their discussions, Gotti directed Coiro to contact Coiro's "sources" of law enforcement information in order to ascertain the details of a pending investigation into the murders of Paul Castellano and of Thomas Bilotti. The government also alleges that at least part of these conversations on November 30, 1989 took place in an apartment located above the Ravenite Social Club.

 After Coiro was incarcerated, he was summoned to testify before a federal grand jury. During several days of testimony in October and November of 1990, Coiro was asked about the conversations he had with Gotti at the Ravenite on November 30, 1989. In his grand jury testimony, Coiro denied that he had any discussions with Gotti about obtaining information from law enforcement "sources" with respect to the pending murder investigation. See Indictment para. 4. He also denied that he had agreed to obtain such information from his corrupt "sources." Id. para. 8. Further, Coiro denied that his November 30, 1989 conversations with Gotti had taken place anywhere other than inside the Ravenite Social Club itself. Id. para. 11. Finally, Coiro testified before the grand jury that, although he had failed to disclose to his probation officer on December 1, 1989 that he had a proprietary interest in a firm called Scorpio Marketing (the nominal employer of John Gotti), he nonetheless had not discussed with anyone before his meeting with the probation officer that he would omit reference to his interest in the firm. Id. para. 14.

 After his testimony, the grand jury determined that these four denials by Michael Coiro constituted an adequate basis for the return of an indictment against him. The first four counts of this indictment allege that Coiro perjured himself before the grand jury. Id. paras. 5, 9, 12, and 15. The fifth and final count of the indictment charges that Coiro obstructed justice by giving "false, evasive and misleading testimony" before that grand jury. Id. para. 17. However, after the grand jury voted in April of 1991 to indict Michael Coiro on these five counts, the indictment was sealed until November of 1991.

 The defendant has now presented his pretrial motions before this court. He moves: (1) for discovery of his grand jury testimony "which allegedly formed the basis for the . . . indictment," Defendant's Notice of Motion para. 1; (2) for dismissal of the indictment, or of certain counts of the indictment, "on the ground that those certain counts were . . . not related to material matters and that the Government and the grand jury knew the answers to those questions," id. para. 2; (3) for dismissal of the indictment on the ground that the indictment was sealed for several months and that this sealing "prejudiced the defendant," id. para. 3; and (4) to suppress "the fruits of illegal electronic surveillance," id. paras. 4-5. The government has opposed these motions and has cross-moved for a protective order under which the government would not be required to disclose to Coiro his grand jury testimony until after he has completed his direct testimony in the pending criminal matter against John Gotti.

 DISCUSSION

 1. Discovery of Defendant's Grand Jury Testimony

 The defendant Coiro moves first for discovery of his testimony before the grand jury in October and November of 1990. Essentially, he claims that discovery of that testimony is necessary to the preparation of his defense on the charges that he perjured himself before that grand jury. Affidavit of David A. DePetris paras. 3-4. In response, the government points out that significant segments of Coiro's grand jury testimony have been set out in the indictment. Government's Memorandum of Law at 3. Furthermore, the government represents that it "will turn over the remaining portions of Coiro's . . . testimony well in advance of trial." Id. Thus, insofar as Coiro seeks an order from this court to compel the government to disclose Coiro's testimony, such an order is unnecessary. The government has pledged to make this disclosure "well in advance of trial."

 However, the government does seek to control the timing of its disclosure: It has moved this court for a protective order pursuant to which it would not disclose this testimony until after Coiro's direct testimony in the pending John Gotti trial. The government argues that such an order is necessary because, if Coiro obtained his grand jury testimony prior to his testimony in the Gotti case, he would "tailor" that direct testimony "so as to benefit Gotti without further incriminating himself . . . ." Government's Memorandum of Law at 4. In support of this position, the government points out that Coiro's RICO conviction stemmed from obstruction-of-justice predicate acts and that he is at present indicted for perjury. Thus, the government reasons, Coiro has demonstrated a willingness and a capacity to manipulate and to frustrate the truth-seeking function of the judicial process. Immediate disclosure of his grand jury testimony would, on the argument of the government, facilitate such manipulation by Coiro when he testifies at John Gotti's trial.

 Federal Rule of Criminal Procedure 16(d)(1) provides, in relevant part:

 Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, ...


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