The opinion of the court was delivered by: PETER K. LEISURE
The defendants have filed a motion (1) to bar the retrial of drug trafficking, murder, and other charges on the grounds of double jeopardy, (2) to vacate the convictions of John and Joseph Gambino for bail jumping, (3) for the dismissal of these charges pursuant to the supervisory powers of this Court, and (4) seeking other forms of relief, namely the production of names and documents from the Government. The Government opposes the defendants' motion. For the reasons set forth below this Court denies the defendants' motion in its entirety.
The defendants, JOHN GAMBINO, a/k/a "Giovanni," JOSEPH GAMBINO, a/k/a "Joe," a/k/a "Giuseppe," LORENZO MANNINO, a/k/a "Lore," and MATTEO ROMANO were charged in the ninth superseding indictment, with a variety of criminal charges, including committing and attempting to commit acts of racketeering involving dealing in narcotics and other dangerous drugs, murder, extortion, loansharking, bribery, and illegal gambling.
On February 1, 1993, the first trial began and the jury panel was sworn. At trial Government witness Salvatore Gravano provided, or corroborated, evidence concerning: (1) the alleged participation of defendants John Gambino and Joseph Gambino and Lorenzo Mannino in the murder of Francesco Oliveri; (2) their alleged status in the Gambino crime family; (3) the alleged participation of John Gambino in a racketeering enterprise; and (4) the Gambino crime family's so-called "rule against drugs" and its application with respect to the defendants.
In preparation for trial the Assistant United States Attorneys ("AUSAs") from the United States Attorney's Office for the Southern District of New York ("Southern District") took substantial steps to learn what information Gravano had about the alleged narcotics trafficking by the defendants. This preparation included reviewing Gravano's testimony in prior trials, and meeting with AUSAs from the United States Attorney's Office for the Eastern District of New York ("Eastern District").
On May 18, 1993, after the close of the evidence at trial, but prior to the summations, an article appeared in a local newspaper alleging Gravano's involvement in a heroin trafficking scheme with Pasquale Conte (the "Scheme"). In open court, AUSA James Comey, lead counsel for the Government, informed the Court that the appearance of the article was the first time that he, co-counsel, AUSA Patrick Fitzgerald, or anyone in the Southern District, became aware of Gravano's possible involvement in a drug trafficking scheme with Conte. At the time of this development, the Court offered to reopen the case and recall Mr. Gravano for the limited purpose of making him available to the defendants for additional cross examination. The defendants declined the Court's offer to have Mr. Gravano recalled. On May 26, 1993 after additional discussion on this matter, this Court again offered to make Mr. Gravano available to the defendants for cross examination. The defendants again declined.
On June 4, 1993, the jury returned a verdict of guilty on the bail jumping count as to John Gambino and Joseph Gambino, but was unable to reach a verdict on the remaining counts. The Court declared a mistrial as to the counts on which the jury was unable to reach a verdict, and the Government immediately sought a new trial.
I. The Standard for a Double Jeopardy Claim
The Second Circuit has recently clarified the standard for a double jeopardy claim based on prosecutorial misconduct. In United States v. Pavloyianis, 996 F.2d 1467 (2d Cir. 1993), the Second Circuit, citing Oregon v. Kennedy, 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982), held that double jeopardy bars a retrial when the prosecutorial misconduct "giving rise to the mistrial was intended to goad or provoke [the defendant] into moving for the mistrial." Pavloyianis, 996 F.2d at 1473. The Second Circuit held that when, as in the case at the bar, the alleged prosecutorial misconduct did not cause a mistrial, double jeopardy bars a retrial "only where the misconduct of the prosecutor is undertaken, not simply to prevent an acquittal, but to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct." Id. at 1474 (quoting United States v. Wallach, 979 F.2d 912, 915-16 (2d Cir. 1992), cert. denied 124 L. Ed. 2d 637, 113 S. Ct. 2414 (1993)).