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UNITED STATES v. GAMBINO

April 15, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
THOMAS GAMBINO, et al., Defendants.



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

 GLASSER, United States District Judge:

 The defendants have made motions in limine which, if granted would, (1) restrict the government's use of expert testimony; (2) preclude the admission into evidence of Count One of Anthony Megale's Connecticut indictment together with portions of the government's proffer made in connection with Mr. Megale's guilty plea; and (3) permit the defendants to introduce proof of Thomas Gambino's prior federal acquittal.

 The government has also made such a motion which, if granted would, (1) limit the cross-examination of Salvatore Gravano as will be hereafter explicated; (2) preclude the defendants from mentioning in their opening statements evidence which they may not be permitted to elicit in cross-examining Gravano; and (3) have an anonymous jury empaneled.

 I

 THE DEFENDANTS' MOTIONS

 A. Barring Expert Testimony

 The defendants contend that the decision in United States v. Cruz, 981 F.2d 659 (2d Cir. 1992), compels the conclusion that the court should not permit an expert witness called by the government to testify as to matters which will be the subject of testimony by Salvatore Gravano. The defendants also urge that to negate the possibility of overlap in the testimony of the two witnesses, the government should be directed to call Mr. Gravano to testify prior to its expert witness.

 In Cruz, an accomplice testified that the defendant acted as a broker for drug transactions between a drug dealer in the Albany area and drug suppliers located in the Washington Heights area of Manhattan. His testimony described the sequence of events from the time he and the dealer from Albany arrived in Manhattan to meet the drug supplier until the completion of the transaction. The government also called a Special Agent of the Drug Administration as an expert witness who described how drug transactions in Washington Heights were consummated and the role of the broker in that process. His testimony was relied upon heavily by the government in its summation. In deciding that the expert should not have been permitted to testify, as he did, to matters which went well beyond explaining that "drug wholesalers often use intermediaries and make deliveries away from the actual locus of the drugs as means of avoiding identification and arrest," which would have been permissible, the court held that the government's principal use of the expert was to bolster the accomplice's testimony, which was impermissible. In so holding, the court did not announce a new principle as the defendants' argument suggests. It merely reaffirmed its holding in United States v. Castillo, 924 F.2d 1227 (2d Cir. 1991), that the government may not use an expert witness to bolster the testimony of a fact-witness which is not attacked as being improbable or ambiguous. The Cruz court made plain that it was not abandoning commonly understood rules regulating the propriety of receiving expert testimony. Rather, it reaffirmed the proper use of such testimony as to operations having "esoteric aspects reasonably perceived as beyond the ken of the jury" and "to explain even non-esoteric matters, when the defense seeks to discredit the government's version of events as improbable criminal behavior." 981 F.2d at 664.

 The threshold inquiry, therefore, is whether expert testimony is admissible to explain the operation, structure, membership and terminology of organized crime families. That is, are such matters "reasonably perceived as beyond the ken of the jury"? The defendants' contention that they are not, given the extent to which the public is exposed by the print and visual media to organized crime, completely ignores the cases which are unanimous in holding that such matters are beyond the ken of a jury and that expert testimony as to such matters is admissible. See, e.g., United States v. Skowronski, 968 F.2d 242 (2d Cir. 1992); United States v. Tutino, 883 F.2d 1125 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 107 L. Ed. 2d 1044, 110 S. Ct. 1139 (1990); United States v. Angiulo, 847 F.2d 956 (1st Cir.), cert. denied, 488 U.S. 852 (1988); United States v. Daly, 842 F.2d 1380 (2d Cir.), cert. denied, 488 U.S. 821 (1988); United States v. Ardito, 782 F.2d 358 (2d Cir.), cert. denied, 475 U.S. 1141 (1986).

 The defendants' request that the government be directed to call Mr. Gravano prior to the expert runs the risk of replicating the sequence of testimony in Cruz and the implication that sequence suggested that the expert's testimony was designed to bolster the testimony of the accomplice. Although there is nothing in Cruz which mandates that there be no overlap of testimony as between the expert and the accomplice, the government would be well-advised to limit the testimony of the expert to explaining the operation, structure, membership and terminology of organized crime families and to limit the accomplice testimony to the facts which, the government contends, will prove the allegations of the indictment. That is to say, the government would be well-advised to pay appropriate attention to the teaching of Cruz.

 The defendants' motion in this regard assumes an anticipatory breach of the Cruz principle which it would have the court enjoin by precluding expert testimony. This motion is premature and is denied.

 B. Megale's Connecticut Guilty Plea

 In the course of the trial of United States v. Gotti the court permitted the government to introduce and read to the jury portions of the proffer made by the prosecution incident to Megale's guilty plea and the count of the indictment to which he pleaded guilty. The plea occurred in the federal court in Connecticut. The defendants request that the court reconsider its ruling for this case. They also request that if the Connecticut ...


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