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April 15, 1993

THOMAS GAMBINO, et al., Defendants.

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

 GLASSER, United States District Judge:

 The defendants, Thomas Gambino, Guiseppe Gambino, and Philip Loscalzo have filed motions which seek to (a) dismiss the superseding indictment against Thomas Gambino; (b) dismiss Count Three of that indictment for improper venue; (c) strike prejudicial surplusage from the indictment; (d) exclude certain evidence; and (e) obtain disclosure.


 Dismissal of Superseding Indictment Against Thomas Gambino

 Thomas Gambino was initially charged in an indictment that was filed on December 12, 1990 with two counts alleging violations of 18 U.S.C. §§ 1962(c) (RICO) and 1962(d) (RICO conspiracy). The racketeering acts incident to those counts with which he was charged were alleged violations of 18 U.S.C. §§ 2 and 1955; § 892 and § 894. Pretrial bail and detention hearings followed. On December 12, 1990 an order of excludable delay was entered pursuant to 18 U.S.C. § 3161(h)(8)(B)(ii) based upon a determination that this was a complex case.

 A superseding indictment was filed on July 18, 1991. The charges against Thomas Gambino were not altered. On that day several other matters were considered. Mr. Rosen, counsel to Thomas Gambino, advised the court that he would not move for a severance. A trial date of September 23, 1991 was reaffirmed. The motion made by Mr. Rosen on behalf of Gambino for an evidentiary hearing pursuant to Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972), was granted, the hearing, if still warranted, to be held at the conclusion of the trial. That motion is, technically, still pending. The disqualification of counsel for then codefendants Gotti and Gravano, and the need that this disqualification created for them to obtain new counsel, caused the September 23, 1991 trial date to be deferred. At a status conference held on August 28, 1991, Mr. Rosen advised the court that his client was required to appear for trial in the state court in January, 1992.

 On August 4, 1992 a superseding indictment in which Thomas Gambino was joined with two other defendants was unsealed and filed. This indictment and the indictment originally filed on December 12, 1990, as to Thomas Gambino, are the same except that Gambino was joined with two new defendants and was charged with violating 18 U.S.C. §§ 1952 and 2 as a predicate racketeering act in Count One and as a separate offense in Count Three. Thomas Gambino appeared before this court for arraignment on August 14, 1992. A status conference was scheduled for August 21, 1992 at which counsel for all defendants appeared. Mr. Goldberg, counsel for codefendant Guiseppe Gambino, and Mr. Richman, counsel for codefendant Loscalzo, apprised the court of their respective prior engagements and of their need to review approximately 1,000 cassettes; they requested a trial date after the second week of January, 1993. Mr. Rosen joined in their application. (Tr. Aug. 21, 1992, at 4). The government announced its readiness to proceed within seventy days but agreed to abide by the court's direction. When the end of January or the first week of February was suggested as a viable trial date, Mr. Rosen stated as follows:

MR. ROSEN: I don't want to cry the blues, but I think I have to at least let you know of a potential problem. I don't really see it as a major problem. Perhaps your Honor and Judge Leisure in the Southern District can work it out.
There is a trial scheduled. I don't know if it's a firm date or tentative date because a superseder is about to come down next week or the week after, a case in front of Judge Leisure also called United States of America versus Gambino. It's a similar name from what we have heard. There is a superseder coming down and perhaps the Government can work it out, who goes where first.

 February 1, 1993 was then fixed as the trial date in this case, and an order of excludable delay based upon 3161(h)(8)(B)(ii), in which Mr. Rosen concurred (Tr. Aug. 21, 1992, at 6), was issued to cover the period August 21, 1992 to February 1, 1993.

 On that same day, August 21, 1992, the government filed a motion to modify the terms of Thomas Gambino's bail. A hearing was held on that motion on September 14, 1992, and it was denied from the bench.

 On September 24, 1992 Mr. Rosen filed a motion for a severance on behalf of Thomas Gambino which was returnable on October 2, 1992. That motion was predicated entirely on Mr. Rosen's conflicting trial schedule. On the return date Mr. Rosen stated that "it would be very difficult, indeed, to go to trial in November, but I'm committed to do it, if the court sees its way clear of giving us this opportunity to fight this case the way I'm prepared to fight it and the time I put into it, . . . We posed the alternative, either the severance and earlier trial or to put the case over beyond the Judge Leisure case." (Tr. Oct. 2, 1992, at 2-3). The government opposed the motion to sever and, for reasons indicated upon the record (Tr. Oct. 2, 1992, at 6, 10), the motion was denied. During the course of that proceeding, Mr. Burstein, co-counsel for Thomas Gambino, after alluding to the time gap between the verdict in the Gotti case (April 2, 1992) and the superseding indictment in this case (August 4, 1992) and without reference to the Speedy Trial Act, observed that "if this case went in May instead of February it would not be the end of the world." (Tr. Oct. 2, 1992, at 8).

 The reference to the time gap which is the crux of this motion prompted the court to inquire of the government why the case was not brought on sooner. The government responded as follows:

 (Tr. Oct. 2, 1992, at 8-9).

 At the next status conference, October 9, 1992, the following statement was made by Mr. Rosen:

MR. ROSEN: Your Honor, because of a little logistical problem over the holidays, I didn't go to see my client over in the Southern District until yesterday and I come to advise the Court that my client in that case has asked if it is humanly possible and doesn't cause anybody great pain and hardship, that he would prefer me to continue to represent him.
He paid me in the past. We've been together a couple of years on that case. It's a long and involved case and I suggest most respectfully, I know your Honor had declined to sever the case and move it forward, but most respectfully, your Honor, this is a two-week trial and I would ask your Honor to really consider adjourning it then so that I can complete the case before Judge Leisure.
Judge Glasser, I don't mean to be critical but I know your Honor had said you had a lot of cases to try. Our case doesn't involve any speedy trial problems. All the defendants are out.
Again, not to be critical but the Government didn't move with the greatest amount of haste and anxiety to bring Mr. Gambino here to trial. They had their own agenda. They wanted to do some more investigation. They wanted to make additional presentations. That is their right, but in light of what you said last week about your sensitivity to people trying to have a lawyer of their choice, and since I really can't see, and mean this sincerely, any phenomenal prejudice certainly to the Court and to the government in putting it over for a couple of months, I would ask that you really consider most respectfully putting this off until I finish the case in front of Judge Leisure.
I don't see how anybody gets hurt, with all due respect.

 (Tr. Oct. 9, 1992, at 2-3) (Emphasis added). During the course of the proceeding on February 19, 1993, the court was informed, without contradiction, that defense counsel indicated to the government that he did not want the matter calendared during the summer months of 1992. (Tr. Feb. 19, 1993, at 24).

 On December 7, 1992, the defendant Thomas Gambino filed this motion seeking, among other things, an order "dismissing the superseding indictment against Thomas Gambino because the government failed to comply with the Speedy Trial Act, and instead trying Thomas Gambino alone on the original indictment." (Emphasis added). A hearing on this motion was delayed until February 19, 1993 due to the unavoidable unavailability of counsel, and the trial of this case was fixed for March 22, 1993. The defendant Thomas Gambino makes no Speedy Trial Act claim for the period August 4, 1992 to March 22, 1993. It is the period between March and August of 1992 during which he claims the Speedy Trial clock ran down.


 The detailed chronology of events has been furnished in the belief that it, more eloquently, perhaps, than any other narrative statement could, places in sharp focus the issue raised by this motion as the court firmly believes it to be, namely: should defense counsel be permitted simultaneously to use the Act as a sword as well as a shield and to sandbag the court and the government in doing so? Or, to put it slightly differently, is the defendant correct when he says "the truth is that the Speedy Trial Act is obviously designed to permit defendants to take advantage of government errors"? (Reply Memorandum of Law in Support of Defendants' Pretrial Motions, at 3).

 The government urges the adoption of the view that having made a Kastigar motion, the time during which that motion continues to remain under advisement is excludable. The government, having successfully contended when the motion was made that its determination should await the conclusion of the trial, is surely disingenuous in now contending that the Act, designed to accelerate criminal trials, is suspended until the trial has ended. The government also urges the court to give continued efficacy to a finding made on the original indictment, in which all parties concurred, that delay in commencing the trial was excludable because the case was so complex, pursuant to § 3161(h)(B)(ii). The codefendants in that original indictment, John Gotti and Frank Locascio, have already been tried, convicted, and sentenced. The government urges, however, that since the defendant (Thomas Gambino) was severed from that indictment and is yet to be tried, that finding of complexity is still extant. Finally, the government asserts, that having repeatedly requested a further continuance, the defendant has either waived a Speedy Trial claim or is abusing the process of the Speedy Trial Act to obtain a severance, clearly a purpose for which it was ...

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