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UNITED STATES v. RUGGIERO

June 8, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
LOUIS RUGGIERO, JR., a/k/a "Jerry," a/k/a "Lieutenant," DAVID CLEARY, a/k/a "Heavy D," a/k/a "Anthony Monti," MICHAEL PALAZZOLO, ANTHONY CASTELLI, RICHARD OLIVIERI, ROBERT AULICINO, JR., DERRICK AUGUSTINE, a/k/a "D," JAMES BROWN, a/k/a "Justice," ROBERT CHERRY, a/k/a "Sherry," and KEITH GREEN, Defendants.



The opinion of the court was delivered by: KENNETH CONBOY

 Kenneth Conboy, District Judge:

 The defendants have been indicted for multiple counts of racketeering, kidnapping, extortion, murder, possession of weapons and other crimes. The Court has before it a number of motions made by the parties.

 The Government has moved for the empaneling of an anonymous jury, and an order in limine precluding defendant Aulicino's counsel from cross-examining a Government informant, Augustine, about an alleged post indictment obstruction of justice purportedly participated in by defendants Ruggiero and Cleary.

 Defendant Ruggiero has moved to suppress the fruits of electronic surveillance conducted pursuant to orders of the Superior Court of New Jersey. He also has made certain oral motions and joins in the motions of his co-defendants.

 Defendant Cleary has moved for disclosure under the Jencks Act; disclosures under Giglio; disclosures under Roviario; access to confidential informants under Saa ; suppression of identification evidence under Simmons and Wade; disclosure of Brady material; inspection of certain Government reports and documentation; direction to Government agents who have worked on this case to retain their rough notes; a hearing to determine the audibility of tapes and accuracy of transcripts; disclosure of the Government's trial exhibits in advance of trial; an order requiring the Government to give Rule 404(b) notice; preclusion of any evidence relating to any extraneous crime or misconduct of a defendant or defense witness; suppression of physical evidence seized from defendants; the striking from the caption of the indictment aliases attributed to the defendant Cleary; a bill of particulars and permission to adopt motions of co-defendants.

 Defendant Cleary has also moved to suppress the fruits of the New Jersey electronic surveillance on the grounds of lack of proper authorization, failure to timely seal the recordings, and failure to properly amend.

 Defendant Aulicino has moved for a severance; disclosure of discovery; a bill of particulars, Brady material; suppression of identification testimony; disclosure of identity of government informants; suppression of oral statements made by defendant Aulicino; and permission to adopt the motions of co-defendants.

 Defendant Palazzolo has moved for suppression of identification testimony; a severance; suppression of co-defendant statements under Bruton; disclosure of the names and addresses of Government informants who will be witnesses at the trial; and permission to join all motions made by co-defendants.

 Defendant Olivieri has moved for a bill of particulars, further discovery; preclusion of evidence under Rules 403 and 404; Brady material; a severance; suppression of identification evidence under Simmons and Wade; suppression under Franks of evidence seized under a search warrant and other evidence seized without a warrant; dismissal of the indictment on grounds of lack of specificity (subsequently withdrawn); and permission to join in the motions of co-defendants.

 The defendants Ruggiero, Cleary and Aulicino have also moved orally for a postponement of the trial until after the sentencing of defendants Palazzolo and Olivieri, who entered pleas of guilty to certain of the charged offenses herein on June 1, 1993. The motions assert that defendants Ruggiero, Cleary and Aulicino intend to call defendants Palazzolo and Olivieri as witnesses, and require the adjournment to obviate Fifth Amendment impediments to access to the testimony sought.

 As a result of the aforesaid pleas of guilty, all remaining parties agree that the motions raising Bruton issues are moot, and deemed withdrawn.

 We address first the Government's motions.

 I. Empanelment of an Anonymous Jury

 We grant the Government's motion for the empaneling of an anonymous jury in this case. By letter of May 6, 1993 the Government provided the defendants with details of a scheme to bribe or, failing that, to murder one Roberto Mercedes, a kidnap victim of the defendants according to indictment, who the defendants expect to testify against them at trial. The affirmation of Assistant United States Attorney Elizabeth Glazer ("AUSA Glazer" and "Glazer Aff.") dated May 11, 1993 sets forth the extraordinarily violent nature of the alleged conduct charged to the defendants, notes that three of the defendants, as fugitives, remain at large, and recites the extremely heavy penalties, including life imprisonment and mandatory twenty-five year sentences that would follow a jury verdict of conviction.

 According to the Government, on December 9, 1992, Derrick Augustine and his lawyer, Wesley Serra, met with the prosecutors in this case to discuss the possibility of cooperating with the Government. Augustine told the Government that his co-defendants, who were incarcerated with him at FCI Otisville (only Aulicino was admitted to bail), had solicited his help in locating Roberto Mercedes, one of the alleged enterprise's kidnapping victims. The defendants told Augustine that they wanted to bribe Mercedes so that he would not testify at trial. The plan was to pay Mercedes $ 50,000 if he signed an affidavit exonerating the defendants. Although David Cleary had the most contact with Augustine because of the proximity of their cells, defendants Ruggiero, Olivieri, Palazzolo and Castelli fully supported this effort. In the event that Mercedes refused to accept the bribe, Cleary, Ruggiero and Palazzolo told Augustine that they would have Mercedes killed. Cleary also told Augustine that the defendants had bribed other individuals whom they believed the Government would call as witnesses at trial.

 Cleary asked Augustine to contact an acquaintance of his named "Nancy" whom the defendants knew could find Mercedes. Nancy was to arrange a meeting between Mercedes and the defendants' outside contact. Augustine provided Cleary and Olivieri with "Nancy's" beeper number. The beeper number, in fact, belonged to an undercover police officer.

 The defendants became suspicious that Augustine was cooperating after he had remained at the MCC for several days, while they had been returned to Otisville. They suggested that Augustine's cousin "Raymond" could be the go-between, and asked to meet "Raymond" in person. At about this time, Cleary told Augustine that once they took care of Mercedes the case against them would be finished. Cleary said that they should kill Mercedes as a "last resort." On another occasion, Cleary had told Augustine that he was reluctant to kill Mercedes because there were already "too many bodies in the case." Cleary told Augustine that Olivieri, Palazzolo, Ruggiero and Castelli had each agreed to contribute $ 5,000 to bribe Mercedes; Cleary said that Mercedes would get another $ 25,000 when the case was over.

 On March 12, 1993, after several delays because of bad weather, an undercover officer, posing as "Raymond", met with Cleary and Castelli at FCI Otisville. Also present were Tim Nicoletti and Ida Ruggiero. Ms. Ruggiero is the sister of defendant Louis Ruggiero, Jr. Cleary had described Nicoletti as a childhood friend whom he could trust completely and who understood that the purpose of the meeting was to arrange to pay off a witness. Nicoletti, according to Cleary, had recently become a private investigator. A few days before the meeting, Olivieri put in a special request to have Nicoletti visit Olivieri on March 12, 1993.

 During the March 12, 1993 meeting at Otisville, one of the defendants noticed that the undercover officer was wearing jewelry with initials that did not match his purported name. "Raymond" explained that he had stolen the jewelry. Cleary then took Augustine aside and asked if they could trust "Raymond" not to steal their money. Lacking confidence in "Raymond," the defendants did not make reference to killing or bribing Mercedes during the meeting. After the meeting, the defendants told Augustine that they did not trust his "cousin." The defendants were particularly wary since they had already given money to another individual to find Mercedes; that person had taken the money but had not produced Mercedes.

 Shortly thereafter, the undercover officer left a message and then spoke to Nicoletti on the telephone. The conversation was general and ambiguous. Nicoletti said he had to talk to Cleary. At about this time Castelli told Augustine to tell "Raymond" not to leave messages on Nicoletti's machine in which he spoke too openly.

 On or about April 7, 1993, Cleary asked Augustine why Augustine was on the list to go to the MCC. Cleary made Augustine swear that "Raymond" was not a cop.

 On April 8, 1993 Augustine was moved to the MCC and signed a cooperation agreement with the Government.

 On April 29, 1993, Olivieri met Augustine at the MCC near the bullpen. Olivieri told Augustine that if he testified against his co-defendants he would have "a problem;" but if Augustine did not testify he would receive money.

 The affirmation of Elizabeth Glazer, dated June 3, 1993 ("Second Glazer Aff.") amplifies the Government's factual submission. After the March 12, 1993 meeting, Augustine saw Ruggiero and Palazzolo in the courtyard of FCI Otisville. When they asked how the meeting went, Augustine reported that it did not go well because Cleary did not trust his "cousin." Ruggiero then complained that had Cleary listened to Ruggiero when Ruggiero was in Riker's Island they would not have these problems. For approximately a year before his September 1992 arrest in this case, Ruggiero had been incarcerated at Riker's on charges that he had attempted to murder Roberto Mercedes. Second Glazer Aff. at P 3. Ruggiero explained that while he was at Riker's he told Cleary that the had a contact who could find Mercedes. However, at that time Cleary told Ruggiero to wait, because, as Ruggiero explained it, since Cleary was not in prison he thought he had nothing to worry about. However, by the time Cleary was arrested, according to Ruggiero, it was too late, because by then, Ruggiero had lost touch with his contact to Mercedes. Second Glazer Aff. at P 4.

 Augustine's account of his conversation with Ruggiero is corroborated by another cooperating witness, Barry Shawn. Shawn was a member of the enterprise charged in the indictment and has pled guilty to an information that mirrors Count One of the indictment. Until approximately August 1992, Shawn was incarcerated with Ruggiero at Riker's Island. Shawn told the Government in May of 1992 that Ruggiero had offered him money if he would exonerate Ruggiero at his trial on the attempted murder of Mercedes. Ruggiero accurately reported that by the time of Cleary's September 1992 arrest on the charges in this case, Ruggiero had lost contact with Shawn; by that time Shawn had been moved into federal custody. Second Glazer Aff. at P 5.

 Ruggiero and Cleary also attempted to influence a witness after their February 1991 arrest in Queens on a gun possession charge. The events surrounding that arrest form the basis for the Racketeering Act Ten of Count which charges Ruggiero and Cleary with conspiring to kidnap Jorge Davila, a/k/a "Tony." Ruggiero and Cleary were arrested with another individual, Albert Van Dyke, who is also cooperating with the Government. Van Dyke told the Government that his bail in that case had been put up by his co-defendants. Van Dyke also said that Ruggiero and Cleary had tried to persuade him to take the "weight" on the Queens charge. Second Glazer Aff. P 6.

 Van Dyke's account is further corroborated by a telephone conversation recorded on David Cleary's telephone pursuant to a wiretap authorized by the New Jersey Superior Court. On May 13, 1991, at 4:28 p.m., Cleary and Ruggiero discuss their case and whether they will get a plea:

 
Ruggiero: . . . Well, I think, that guy opened his mouth.
 
Cleary: Van Dyke?
 
Ruggiero: Yeah.
 
Cleary: No shit. Of course he did, I told you that.
 
Ruggiero: No, I mean now like officially he doesn't give a shit anymore. And like you know he's doin' what, he's fully cooperating now, I think.
 
Cleary: Yeah. Bu, bu so what?
 
Ruggiero: 'Cause we know, we never sent no money, never do nothin'.
 
Cleary: He would've done it anyway.
 
Ruggiero: It probably would've been a waste of money, anyway.
 
Cleary: Yeah.
 
Ruggiero: So.
 
Cleary: But, but what do you mean, like what can he do?
 
Ruggiero: I don't know, you know, it's just . . . You know maybe he'll just like use him fully as a witness to put everybody together. You know?

 Second Glazer Aff. at P 7.

 Ruggiero and Cleary plainly have the ability and the inclination to tamper with a jury. On the wiretap, Ruggiero's sister refers on several occasions to her uncle in the Bronx, Angelo Prisco. Numerous reliable confidential informants for the Federal Bureau of Investigation have stated that Prisco is a powerful capo in the Genovese La Cosa Nostra Crime Family. The Government argues that in light of the life without parole sentence that the defendants face, they have every reason to reach out to their relatives and associates who possess the wherewithal and experience to tamper with jurors. Second Glazer Aff. at P 8.

 Ruggiero has in the past relied upon his father, Prisco's brother-in-law, to assist him. For example, in a June 3, 1991 call recorded between Ruggiero and an unknown male, pursuant to a court-authorized wiretap, Ruggiero discusses his Queens case. Ruggiero tells his friend that he is facing a gun charge, "but my father said he can get me out of it, so I ain't worried." Similarly, in the conversation referred to above, Ruggiero tells Cleary, in reference to the Queens case: "My father's gonna take care of it." Second Glazer Aff. at P 8.

 Ruggiero's father's willingness to improperly interfere is further borne out by evidence of his involvement in his son's recent attempt to bribe a guard at FCI Otisville. The Warden of FCI Otisville told the Government that Ruggiero tried to bribe a guard to smuggle in a pair of tennis shoes. Ruggiero gave the guard his father's number and told the guard that if he complied with Ruggiero's request, Ruggiero's father would take care of him. Second Glazer Aff. at P 9.

 Defendant Aulicino advances principally two arguments in opposition to the Government's motion for an anonymous jury. First, he erroneously asserts that anonymous jury motions have been granted in only four fact patterns which are not present in this case. Aulicino Memorandum of Law ("Aulicino Mem.") at 4. Second, Aulicino again erroneously contends that in a similar case, United States v. Coonan, 664 F. Supp. 861 (S.D.N.Y. 1987), Judge Knapp denied the very relief the Government requests here.

 As an initial matter, the cases in which the courts have granted an anonymous jury motion are not confined to the fact patterns that Aulicino presents. Rather, the courts have inquired whether "there is a strong reason to believe the jury needs protection. . . . [and] there are reasonable precautions [that can be taken] to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected." United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991). That inquiry requires a flexible examination of all the circumstances of the case and the history of the defendants. For example, in Paccione, the racketeering indictment which related to the carting industry, was based entirely on mail fraud predicates and contained no allegations of violence or of organized crime connections by the defendants. Rather, the Government's motion and the court's decision was based on 1) the long prison sentences the defendants faced (two of the defendants were subsequently sentenced to twelve years' imprisonment and one defendant was sentenced to a year in jail, Paccione, 949 F.2d at 1191); 2) the murder of a co-defendant in circumstances that suggested a connection to the case and some of the defendants; 3) the association of two defendants with organized crime; 4) an anonymous and threatening telephone call to a Government witness; 5) and the extensive media coverage the case had received. Paccione, 949 F.2d at 1192-93.

 In this case, the facts are even more compelling than in Paccione: if convicted, Cleary and Ruggiero face a mandatory life sentence without parole, and Aulicino faces a mandatory twenty-five year sentence on the gun counts alone, see Deal v. United States, 113 S. Ct. 1993, 124 L. Ed. 2d 44 (U.S. 1993), that must run consecutively to any sentence he receives on the racketeering counts; the indictment contains numerous allegations of violent and retributive behavior;*three witnesses have described attempts by the defendants to influence their testimony variously in this case and in a gun possession case in Queens, and their accounts have been corroborated by one another and by tape-recorded evidence; Ruggiero's uncle, Angelo Prisco, is according to the Government, a Genovese crime family functionary who has the kind of associations that would facilitate jury tampering; and taped conversations show that Ruggiero's father has promised on previous occasions to help Ruggiero fix a case.

 Aulicino relies on Coonan for his untenable position that the court must find that the defendants have tampered with jurors or a prosecutor and not just witnesses before granting an anonymous jury motion. Aulicino Mem. at 5. The defendants in this case have never before been judged by a jury. Their inclination to interfere with the jury's deliberations may be inferred from their past efforts to improperly affect the outcome of other charges against them.

 Indeed the very case that Aulicino relies upon most heavily to oppose the Government's anonymous jury motion is one in which the Court granted the very relief the Government seeks here: the Court precluded "questioning jurors as to their exact addresses or places of employment . . . [and] directed that the jurors shall be kept in the custody of the United States Marshal upon their arrival at the courthouse until after the close of court each day, and that the Marshal shall make all appropriate arrangements for transportation of jurors from the courthouse at the end of each day."* Coonan, 664 F. Supp. at 863.

 Based upon this record, we find that there is a substantial reason to believe (1) that an effort might be made to intimidate or influence jurors at trial; and (2) that jurors could reasonably fear retaliation if they rendered guilty verdicts. As the Second Circuit held in United States v. Barnes, 604 F.2d 121 (2d Cir. 1979), cert. denied, 446 U.S. 907, 64 L. Ed. 2d 260, 100 S. Ct. 1833 (1980), it is not necessary to "wait until fears . . . become realities" to take steps to prevent such attempts at improper influence or intimidation. A jury selected anonymously and managed in such a way to ensure that its members cannot be contacted directly or indirectly is the only way to "protect the integrity of criminal trials against this kind of disruption, whether it emanates from defendants' enemies, from their friends, or from neither." United States v. Borelli, 336 F.2d 376, 392 (2d Cir. 1964), cert. denied, 379 U.S. 960 (1965).

 The Second Circuit has repeatedly upheld the use of anonymous juries where there is a strong reason to believe that the jury needs protection, and reasonable precaution is taken to minimize any adverse effect on the jurors opinion of the defendants. United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991); United States v. Vario, 943 F.2d 236, 239 (2d Cir. 1991); 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 (1990); United States v. Persico, 832 F.2d 705, 717 (2d Cir. 1987), cert. denied, 486 U.S. 1022 (1988); United States v. Ferguson, 758 F.2d 843, 854 (2d Cir.), cert denied, 474 U.S. 841 (1985); United States v. Thomas, 757 F.2d 1359, 1364-65 (2d Cir. 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); United States v. Rosado, 82 Cr. 463 (E.D.N.Y. 1983), aff'd, 728 F.2d 89, 94-95 (2d Cir. 1984); See also United Sates v. Gibbons, 602 F.2d 1044, 1050-52 (2d Cir. 1979); United States v. Borelli, 336 F.2d 376, 392 (2d Cir. 1964), cert. denied, 379 U.S. 960 (1965). "In recent years many trials involving multiple defendants indicted on racketeering and narcotics charges have been tried to anonymous juries." Hayden v. United States, 814 F.2d 888, 892 (2d Cir. 1987).

 In United States v. Barnes, the Second Circuit upheld the empanelment of an anonymous jury and noted that "in a case that generated as much pretrial publicity as [Barnes] and in which allegations of dangerous and unscrupulous conduct abounded, precaution was best taken so that fears would not become realities." 604 F.2d at 141.

 Similarly, in United States v. Thomas, a RICO and narcotics case, the Second Circuit upheld the trial judge's decision to take precautionary measures and to empanel an anonymous jury. In discussing Barnes, the Second Circuit noted that "an anonymous jury" was "a necessary precaution [in that case] to save the jurors from a fear of retaliation that could affect their deliberations." 757 F.2d at 1364 (citing Barnes, 604 F.2d at 104-41). In upholding the use of an anonymous jury, the Court found that "the protection of jurors is vital to the functioning of the criminal justice system":

 
As a practical matter, we cannot expect jurors to "take their chances" on what might happen to them as a result of a guilty verdict. 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. Justice requires that when a serious ...

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