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DRAKE v. GOTTI

March 9, 1992

In re Subpoena of Nancy Drake to testify in UNITED STATES OF AMERICA against JOHN GOTTI and FRANK LOCASCIO, Defendants.


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

 GLASSER, United States District Judge:

 A witness who has been served with a subpoena to testify in this criminal matter has moved to quash that subpoena on the grounds that it is oppressive and unreasonable. In the alternative, the witness moves this court to declare her "unavailable" as a witness and to admit into evidence certain statements that she has made to a federal investigator. The government has opposed her motion to quash the subpoena but has moved this court to admit her statements under the "catch-all" hearsay exception. The government has represented that if the court should determine her statements to the federal investigator to be admissible, it will vacate its subpoena ad testificandum. The defendants have taken no position on this matter. For the reasons indicated below, this court will admit the statements made by the prospective witness into evidence under Federal Rule of Evidence 804(23). Furthermore, on the basis of the representation of the government that it will vacate its subpoena, this court will not consider the motion of the witness to quash that subpoena.

 FACTS

 In October of 1991, the government served on Nancy Drake a subpoena ad testificandum in the matter of United States v. John Gotti and Frank Locascio, CR-90-1051. The government has represented that it will seek to elicit testimony from Drake about her knowledge of the events surrounding the disappearance of Robert DiBernardo in early June of 1986. Drake contends that, because of her complex psychological and emotional problems, she is unable to testify about this matter.

 Drake apparently had a romantic relationship with Robert DiBernardo before his disappearance on June 5, 1986. After he disappeared, agents of the Federal Bureau of Investigation (the "FBI") interviewed her on several occasions with respect to her relationship with DiBernardo, his business and social interactions, and the events immediately prior to June 5, 1986; those interviews were conducted by FBI Agent Brendan M. Balen -- who transcribed his notes of these conversations into reports. The government considers the following matters to be the salient elements of Drake's statements (as contained in Agent Balen's reports):

 1. Drake was dating DiBernardo in June 1986, and frequently stayed at his home . . . . Drake often answered telephone calls for DiBernardo from a man who identified himself as Angelo and who refused to tell Drake the purpose of his call. DiBernardo had once taken Drake to Angelo's home.

 2. On the night of June 4, 1986, Angelo called DiBernardo's home. Drake answered the call and told Angelo that DiBernardo was not home. Angelo told Drake to tell DiBernardo that Angelo had called and that it was very important that DiBernardo contact and meet with "Sammy" the following day.

 3. On the afternoon of June 5, 1986, Drake was in DiBernardo's home and spoke by telephone to DiBernardo, who was in his car and using a mobile telephone. DiBernardo told Drake that he had a meeting scheduled for 4:00 p.m. and that he would be at home at 7:30 in order to go out to dinner at 8:00 with Drake and her sister. At 7:30, Drake called her sister to cancel the dinner.

 Memorandum of Government at 3.

 As a threshold matter, Drake's attorney describes those FBI interviews thus:

 At all times, Drake was cooperative and forthcoming. At the time, Drake believed -- and was led to believe -- that DiBernardo might still be alive, and her information would help find him.

 Affidavit of Laura A. Brevetti P4. However, Drake contends that after she learned that the FBI suspected that DiBernardo had been killed by organized crime -- and that DiBernardo was himself believed to have been a member of organized crime -- Drake "became terribly frightened by the incident . . . and was traumatized by these events and the prospect of danger to herself and family because of her short-lived liaison with DiBernardo." Id. Drake contends that her fear continued to grow, that she became seriously distraught, and that, accordingly, she moved away from New York (she apparently lives in Colorado now). Id. PP5-6.

 In January of 1989, the Organized Crime Strike Force for the Eastern District of New York issued a subpoena to Drake to compel her to testify before a grand jury about the disappearance of DiBernardo. The government characterizes that appearance as follows:

 Drake testified before the grand jury pursuant to an order of immunity. Although she stated she could not remember much of the information contained in Agent Balen's reports of her statements, she confirmed the fact of her relationship with DiBernardo, as well as the fact that she had been staying at his home when he disappeared. She also stated that she remembered speaking with Agent Balen and that while she did not remember what she had told him during those interviews, she was "sure" that any statements she made to him were true.

 Memorandum of Government at 3. Apparently, the government was not satisfied with her testimony at that time, and Drake was brought before Judge Nickerson; he admonished her that she had a duty to respond to the questions of the grand jury to the best of her ability and recollection. Affidavit of Laura A. Brevetti P7. Notwithstanding the directions of Judge Nickerson, Drake continued to ...


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