The opinion of the court was delivered by: PETER K. LEISURE
On September 28, 1992, a Grand Jury filed the ninth superseding indictment (the "indictment") against the defendants in this case. The indictment alleges that the defendants participated in the illegal activities of an international criminal organization known as "the Mafia" or "La Cosa Nostra," which allegedly includes groups in both the United States and Sicily. More specifically, the enterprise charged in the indictment allegedly consists of "made" members and associates of the Gambino Family of the American Mafia, together with "made" members and associates of the Passo Di Rigano, San Lorenzo, and Santa Maria di Gesu Families of the Sicilian Mafia. According to the Government, this organization, or system of organizations, has engaged in the importation and distribution of large quantities of narcotics in violation of federal law, as well as other illicit activities such as illegal gambling and loansharking. It is alleged that the affairs of this enterprise have been conducted through various acts of violence including extortion and murder.
The Government has moved for the impaneling of an anonymous jury. In addition, five defendants charged in the indictment -- John Gambino, Joseph Gambino, Lorenzo Mannino ("Mannino"), Francesco Inzerillo ("Inzerillo"), and Matteo Romano ("Romano") (collectively, the "moving defendants") -- have brought several pretrial motions including a motion to suppress certain electronic surveillance evidence from the Ravenite Social Club, demands for a bill of particulars, demands for Brady material, various severance motions, a motion to dismiss the racketeering charges against defendant Romano, and a motion to preclude the admissibility of certain evidence against Romano relating to his participation in an uncharged narcotics conspiracy. For the reasons stated below, the Government's motion for an anonymous jury is granted, and the moving defendants' various pretrial motions are denied in their entirety.
The extensive procedural background of this case is set forth in the Court's prior decisions and will not be restated here.
However, the Court will summarize the charges set forth in the ninth superseding indictment, as to the five moving defendants. The indictment contains ten counts. Count One charges the moving defendants, except for Francesco Inzerillo, with conspiring to participate in a criminal enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d). Count Two charges the moving defendants, except for Francesco Inzerillo, with participating in a criminal enterprise in violation of RICO, 18 U.S.C. § 1962(c). Count Three charges defendants John Gambino, Joseph Gambino, Lorenzo Mannino, and Francesco Inzerillo with conspiring to violate the federal narcotics laws in violation of 21 U.S.C. § 846. Count Four charges defendants John Gambino and Joseph Gambino with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848(a) and (b). Count Five charges that, on or about March 15, 1988, defendants John Gambino and Joseph Gambino distributed and possessed heroin with the intent to distribute in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. Counts Six and Seven charge defendants John Gambino, Joseph Gambino, and Lorenzo Mannino with conspiring to murder (Count Six), and murdering (Count Seven), Francesco Oliveri in aid of racketeering in violation of 18 U.S.C. § 1959. Count Eight charges defendants John Gambino and Joseph Gambino with failing to appear before the Court as required by the conditions of their release, in violation of 18 U.S.C. § 3146(a)(1) and (b)(1)(A)(i). Count Nine in the indictment alleges forfeiture of property against defendants John Gambino, Joseph Gambino, and Lorenzo Mannino, pursuant to 21 U.S.C. § 853(a). The property allegedly includes, but is not limited to, at least $ 25 million in gross receipts from the sale of heroin and cocaine during the period January 1, 1975, until the filing of the indictment, as contained in Counts Three, Four, and Five. Finally, Count Ten alleges the forfeiture of certain other "substitute properties" pursuant to 21 U.S.C. § 853(p), as against defendants Joseph Gambino, John Gambino, and Lorenzo Mannino to the extent that the property alleged under Count Nine cannot be reached for one of the enumerated reasons set forth in Section 853(p).
A number of pretrial motions have now been brought by the various parties in the wake of the ninth superseding indictment.
First, the Government has moved for the impaneling of an anonymous jury in this case. The Government initially brought its motion for an anonymous jury on January 17, 1990. On June 13, 1990, the defendants filed opposition papers, to which the Government replied by letter to the Court, dated September 28, 1990. The Court decided to postpone consideration of this issue until the final stage of the pretrial process, which we have now entered. The Government has supplemented its original motion by letter to the Court, dated November 10, 1992.
Second, defendants John and Joseph Gambino have now brought the following motions before the Court: (1) a motion to suppress evidence resulting from certain electronic interceptions at the Ravenite Social Club in Manhattan; (2) demand for a bill of particulars in connection with Counts Four, Six, Seven and Eight of the indictment; (3) a renewed demand for evidence favorable to the defendants pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and its progeny; and (4) a motion for severance of the bail jumping charge alleged in Count Eight, based upon improper joinder and prejudice. In addition, defendant John Gambino has made a motion for a medical severance.
Defendant Matteo Romano has brought the following motions with respect to the ninth superseding indictment: (1) motion to dismiss the racketeering charges (i.e. Counts One and Two) against him; (2) motion in limine to preclude the introduction of evidence at trial regarding Romano's alleged participation in an uncharged narcotics conspiracy; and (3) a renewed motion to sever his trial based upon prejudicial spillover. Defendant Mannino also has renewed his motion for severance of his case and, in addition, has moved for a bill of particulars with respect to the alleged Oliveri murder. Defendant Francesco Inzerillo similarly has renewed his motion for severance of his case, on grounds of prejudicial spillover and improper joiner, and also has moved for a bill of particulars as to Count Three with respect to the alleged murder of Palermo Public Prosecutor Gaetano Costa.
I. MOTION FOR ANONYMOUS JURY
The Government has moved the Court to take the following precautions to ensure that the jury will be free from any improper influence, intimidation or fear during trial: (1) voir dire of prospective jurors should be limited so that a venireman's name, address, and name of employer or place of employment is not disclosed; (2) during trial, the jurors should be kept together during recesses and taken to lunch as a group each day by the United States Marshal's Service; and (3) at the end of each trial day, the jurors should be transported together by the United States Marshal's Service from the courthouse to an undisclosed central location, from which they can leave for their respective communities.
The Second Circuit has repeatedly held that the use of an anonymous jury is appropriate where: (1) there is strong reason to believe that the jury needs protection; and (2) reasonable precautions are taken to minimize any prejudicial effects to the defendant and to ensure that the defendants' fundamental rights are protected. United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991), cert. denied, 120 L. Ed. 2d 900, 112 S. Ct. 3029 (1992); United States v. Vario, 943 F.2d 236, 239 (2d Cir. 1991), cert. denied, 116 L. Ed. 2d 786, 112 S. Ct. 882 (1992); United States v. Tutino, 883 F.2d 1125, 1132 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 107 L. Ed. 2d 1044, 110 S. Ct. 1139, 493 U.S. 1082 (1990); United States v. Persico, 832 F.2d 705, 717-18 (2d Cir. 1987), cert. denied, 486 U.S. 1022, 100 L. Ed. 2d 227, 108 S. Ct. 1995 (1988); United States v. Thomas, 757 F.2d 1359, 1365 (2d Cir.), cert. denied, 474 U.S. 819, 88 L. Ed. 2d 54, 106 S. Ct. 67 (1985); see also United States v. Ferguson, 758 F.2d 843, 854 (2d Cir.), cert. denied, 474 U.S. 841 (1985); United States v. Barnes, 604 F.2d 121, 133-43 (2d Cir. 1979), cert. denied, 446 U.S. 907, 64 L. Ed. 2d 260, 100 S. Ct. 1833 (1980).
The Second Circuit set forth an underlying rationale for the use of an anonymous jury in United States v. Barnes:
If a juror feels that he and his family may be subjected to violence or death at the hands of a defendant or his friends, how can his judgment be as free and impartial as the Constitution requires? If "the anonymous juror feels less pressure" as a result of anonymity, . . . this is as it should be -- a factor contributing to his impartiality. The court's decision as to anonymity and sequestration comported with its obligation to protect the jury, to assure its privacy, and to avoid all possible mental blocks against impartiality.
604 F.2d at 140-41 (citation omitted); see also United States v. Thomas, 757 F.2d at 1364 ("obviously, explicit threats to jurors or their families or even a general fear of retaliation could well affect the jury's ability to render a fair and impartial verdict").
In determining whether there is strong reason to believe that the impaneling of an anonymous jury is necessary, courts have often considered the following factors: "(1) the seriousness of the offenses charged, including whether the defendants are alleged to have engaged in dangerous and unscrupulous conduct in the context of a large-scale criminal organization and whether the defendants have access to means to harm jurors; (2) whether the defendants have engaged in past attempts to interfere with the workings of the judicial process, such as by jury tampering or attempts to evade prosecution; and, (3) the nature and degree of pretrial and expected trial publicity." United States v. Melendez, 743 F. Supp. 134, 137 (E.D.N.Y. 1990); see also United States v. Persico, 621 F. Supp. 842, 878 (S.D.N.Y. 1985), aff'd on this issue, 832 F.2d 705, 717-18 (2d Cir. 1987), cert. denied, 486 U.S. 1022, 100 L. Ed. 2d 227, 108 S. Ct. 1995 (1988).
A. Strong Reason to Believe the Jury Needs Protection
(1) Seriousness of Offenses Charged
In United States v. Vario, the Second Circuit emphasized that the mere fact that the case involves "organized crime" does not, by itself, justify an anonymous jury:
The invocation of the words "organized crime," "mob," or "Mafia," unless there is something more, does not warrant an anonymous jury. This "something more" can be a demonstrable history or likelihood of obstruction of justice on the part of the defendant or others acting on his behalf or a showing that trial evidence will depict a pattern of violence by the defendants and his associates such as would cause a juror to reasonably fear for his own safety.
The posture of the instant case meets the standard set forth in Vario. First, even a cursory review of the ninth superseding indictment reveals the serious nature of the charges in the instant case. The indictment names the defendants as being members of a large-scale criminal organization known as La Cosa Nostra, and charges the defendants with committing various acts, including acts of violence, to protect, maintain and further their criminal enterprise, which centered on massive drug trafficking. The defendants, along with their co-racketeers, are alleged to have conducted the affairs of the enterprise through, inter alia, extortion, murder, bribery, illegal gambling, and loansharking. For example, defendants John Gambino, Joseph Gambino, and Lorenzo Mannino are charged with the murder of Francesco Oliveri. Defendant Romano is charged with threatening to murder and mutilate Pietro Candela in an attempt to affect the movement in commerce of one kilogram of heroin. Defendant Francesco Inzerillo is charged with participating in the murder of Palermo Public Prosecutor Gaetano Costa in Sicily in 1980. The Court finds that it is indisputable that the conduct alleged against these defendants involves dangerous and unscrupulous conduct in the context of a large-scale criminal organization. Accordingly, the seriousness of the offenses charged against these defendants supports having an anonymous jury in the instant case. See United States v. Barnes, 604 F.2d at 141 (allegations of "dangerous and unscrupulous conduct" and extensive pretrial publicity supported withholding the names and addresses of jurors); see also United States v. Thomas, 757 F.2d at 1364 (history of violence -- "mob-style" killings -- related directly to the issue of juror safety or fear of reprisal).
More importantly, there is also evidence that the group with which defendants are associated, La Cosa Nostra (and, more specifically, the Gambino Crime Family), has a history of attempting to interfere with the judicial process. The indictment charges that the enterprise consists in part of "made" members and associates of the Gambino Family of the American Mafia, together with "made" members and associates of the Passo Di Rigano, San Lorenzo, and Santa Maria di Gesu Families of the Sicilian Mafia. Moreover, John Gambino is alleged to have been a captain in the Gambino Crime Family and defendants Joseph Gambino (a "made" member), Lorenzo Mannino (an "associate") and Francesco Inzerillo (an "associate") are all alleged to have been part of John Gambino's crew. Defendant Matteo Romano also is alleged to be an associate in the Gambino Family aligned with John Gambino's crew. The Government alleges the following:
The Government, moreover, will seek to present evidence of the conspirators' attempts to infiltrate federal grand jury proceedings in the Eastern District of Pennsylvania; to harbor and maintain fugitives from justice such as Adamita and Tomasso Inzerillo; to bribe law enforcement officials in the Dominican Republic and Florida; and to ascertain the identities of other potential witnesses.
Affidavit of Assistant United States Attorney Frances M. Fragos, Esq., sworn to on January 17, 1990 ("Fragos Affidavit"), at P 13. Therefore, the Court finds that, given the defendants' connection to, and substantial involvement, in the affairs of this criminal organization, such evidence has direct relevance "to the question of juror fears or safety in the trial at hand, beyond the innuendo that this connection conjures up." United States v. Vario, 943 F.2d at 241.
Based upon the serious allegations in the indictment and the information provided in the Fragos Affidavit, there is strong reason to believe that precautionary measures with respect to the impaneling of the jury are warranted in the instant case. The Government has presented substantial evidence that there is a likelihood of interference with the judicial process on the part of either the defendants or their alleged associates within the Gambino Crime Family. See, e.g., United States v. Persico, 621 F. Supp. at 879 ("given the serious nature of the charges in the instant indictment, the potential for substantial incarceration upon conviction, and the Colombo Family's history of attempting to corrupt and obstruct the law enforcement and judicial processes, the Court concludes that the possibility of further efforts to frustrate justice is real and substantial"); see also United States v. Thomas, 757 F.2d at 1365 (upholding the district court's determination to impanel an anonymous jury where "there was strong evidence of defendants' past attempts to interfere with the judicial process, and defendants were alleged to be part of a group that possessed the means to harm jurors"). Furthermore, the Government has shown that the trial evidence will depict alleged acts of violence by defendants and their associates that would cause a juror to reasonably fear for his or her own safety.
B. Acts Which Indicate Willingness to Corrupt the Judicial System
The Government also has alleged that both John Gambino and Joseph Gambino have committed certain acts in an attempt to corrupt the judicial system. With respect to John Gambino, the Government has submitted the testimony of Salvatore Gravano in United States v. Gotti where Gravano testified that John Gambino participated in an effort to tamper with a jury in the early 1990 trial of Gambino Family "capo," Edward Lino. Moreover, the ninth superseding indictment alleges that Joseph Gambino bribed public officials in order to facilitate the escape of a co-conspirator Adamita from the Immigration and Naturalization Service in Florida. The Court finds that these allegations provide additional support, with respect to John and Joseph Gambino, for granting the anonymous jury.
Courts have frequently considered the amount of publicity that a trial will generate as one factor in deciding whether to impanel an anonymous jury. See, e.g., United States v. Persico, 832 F.2d at 717 ("extensive publicity this case is expected to continue to attract" supported impaneling an anonymous jury) (quotation omitted); United States v. Barnes, 604 F.2d at 141 ("in a case that generated as much pretrial publicity as this one did and in which allegations of dangerous and unscrupulous conduct abounded," anonymous jury was appropriate).
The Government states that the arrests of the defendants in this case was reported in both the print and electronic news media. Moreover, this case was given extraordinary press coverage in the wake of John and Joseph Gambino's flight in September 1992. Based upon this extensive pretrial coverage, the Court finds that it is likely that there also will be media attention given to this case during the course of the trial and, thus, the proposed precautionary measures will serve to shield the jurors from such trial publicity.
D. Cautionary Instruction and Voir Dire
Once the Court finds that impaneling an anonymous jury is justified, the Court must also take reasonable precautions to minimize any prejudicial effects to the defendants. See, e.g., United States v. Paccione, 949 F.2d at 1192-93; United States v. Tutino, 883 F.2d at 1132-33; United States v. Thomas, 757 F.2d at 1365.
In order to minimize any prejudicial effect to the defendants in the instant case and ensure that the defendants' fundamental rights are protected, the Court will take certain reasonable precautions. First, the Court will instruct the jury at the outset of the trial that these special procedures are routine and designed to protect the jury from any contacts by the media with respect to the instant case. This plausible and nonprejudicial reason for not disclosing the jurors identity or taking other security measures will minimize the possibility that the anonymous procedure would cast unfair aspersions on the defendants. See, e.g., United States v. Paccione, 949 F.2d at 1193 (instructed jury that the anonymity was a protection against pressures from the media); United States ...