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UNITED STATES v. MUYET

November 5, 1996

UNITED STATES OF AMERICA, against JOSE MUYET, JOHN MUYET, PEDRO NARVAEZ, JULIO MATIAS, WILLIAM DELVALLE, FRANK SOSA, and ANTONIO FELICIANO, Defendants.


The opinion of the court was delivered by: LEISURE

 LEISURE, District Judge :

 On June 13, 1996, a Grand Jury filed a superseding indictment (the "indictment"), S2 95 Cr. 941, against the defendants in this case. The indictment alleges that the defendants participated in the illegal activities of a violent narcotics trafficking organization known as the "Nasty Boys" which operated primarily in the Bronx, New York. According to the indictment, this organization has engaged in the sale and distribution of large quantities of heroin and cocaine base, commonly known as crack. It is alleged that the affairs of this enterprise have been conducted through various acts of violence including assault, conspiracy to commit murder, attempted murder and murder.

 BACKGROUND

 The Court will summarize the charges set forth in the forty-three count indictment as to the seven moving defendants. *fn1" Count One charges the moving defendants, except for William Delvalle, with participating in a criminal enterprise in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c). Count Two charges the moving defendants, except for William Delvalle, with conspiring to participate in a criminal enterprise in violation of RICO, 18 U.S.C. § 1962(d). Counts Three through Twenty-Nine charge various moving defendants, except for William Delvalle, with committing violent crimes in aid of racketeering in violation of 18 U.S.C. § 1959(a). Count Thirty charges the moving defendants, except for Antonio Feliciano, with conspiring to violate the narcotics laws of the United States in violation of 21 U.S.C. § 846. Counts Thirty-One through Forty-Two charge various moving defendants, except for William Delvalle, with using and carrying firearms during and in relation to their violent crimes in violation of 18 U.S.C. § 924(c). Count Forty-Three charges the moving defendants, except for Antonio Feliciano, with using and carrying firearms during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c).

 Before the Court are various pretrial motions brought by the Government and the moving defendants. *fn2" The Government moves for the empaneling of an anonymous, semi-sequestered jury in this case. Defendant William Delvalle moves for severance pursuant to Rule 14 of the Federal Rules of Criminal Procedure. Defendants Jose Muyet, John Muyet, Pedro Narvaez, Julio Matias, William Delvalle, Frank Sosa and Antonio Feliciano each request a bill of particulars. Defendants Pedro Narvaez, Julio Matias, William Delvalle, Frank Sosa and Antonio Feliciano seek additional discovery, including a list of confidential informants, cooperating witnesses and all other Government witnesses. *fn3"

 DISCUSSION

 I. MOTION FOR AN ANONYMOUS JURY

 The Government moves the Court to take the following precautions to ensure that the jury will be free from improper influence, intimidation or fear during the trial and during their deliberations: (1) limit voir dire so that the potential jurors on the voir dire panel, and the jurors and alternates selected to serve at trial, do not reveal their names, addresses, or places of employment; (2) during the trial, keep the jurors together during recesses, and allow the United States Marshals Service to provide lunch for the jurors as a group or take the jurors to lunch as a group each day; and (3) at the end of each trial day, allow the United States Marshals Service to transport the jurors together from the Courthouse to an undisclosed central location, from which they can leave for their respective communities. All of the defendants object to the use of these procedures.

  The empaneling of an anonymous jury has "serious implications for a defendant's interest in effectively conducting voir dire and in maintaining the presumption of innocence." United States v. Wong, 40 F.3d 1347, 1376 (2d Cir. 1994), cert. denied, 133 L. Ed. 2d 127, 116 S. Ct. 190 (1995); see United States v. Amuso, 21 F.3d 1251, 1264 (2d Cir.), cert. denied, 130 L. Ed. 2d 286, 115 S. Ct. 326 (1994). Nonetheless, when a defendant's interests are outweighed by the jurors' interest in remaining free from real or threatened violence and the public's interest in having the jury render a fair and impartial verdict, the use of an anonymous jury is appropriate. See Wong, 40 F.3d at 1376; Amuso, 21 F.3d at 1264. The Court of Appeals for the Second Circuit has explained the rationale for the use of an anonymous jury as follows:

 
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.

 United States v. Barnes, 604 F.2d 121, 140-41 (2d Cir. 1979), cert. denied, 446 U.S. 907, 64 L. Ed. 2d 260, 100 S. Ct. 1833 (1980); see also United States v. Thomas, 757 F.2d 1359, 1364 (2d Cir.) ("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."), cert. denied, 474 U.S. 819, 88 L. Ed. 2d 54, 106 S. Ct. 66, 106 S. Ct. 67 (1985).

 The decision to empanel an anonymous jury is within the broad discretion of the District Court. See Wong, 40 F.3d at 1376; United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991), cert. denied, 505 U.S. 1220, 120 L. Ed. 2d 900, 112 S. Ct. 3029 (1992); United States v. Maldonado-Rivera, 922 F.2d 934, 971 (2d Cir. 1990), cert. denied, 501 U.S. 1233, 111 S. Ct. 2858, 115 L. Ed. 2d 1026 (1991). The empaneling of an anonymous jury is appropriate when: (a) there is strong reason to believe that the jury needs protection; and (b) the District Court takes reasonable precautions to minimize any prejudicial effects on the defendants and to ensure the protection of the defendants' fundamental rights. See United States v. Aulicino, 44 F.3d 1102, 1116 (2d Cir. 1995); Wong, 40 F.3d at 1376; United States v. Thai, 29 F.3d 785, 801 (2d Cir.), cert. denied, 130 L. Ed. 2d 364, 115 S. Ct. 456 (1994); Amuso, 21 F.3d at 1264; Paccione, 949 F.2d at 1192; United States v. Vario, 943 F.2d 236, 239 (2d Cir. 1991), cert. denied, 502 U.S. 1036, 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 (1990); Thomas, 757 F.2d at 1365.

 A. Strong Reason to Believe the Jury Needs Protection

 In determining whether there is strong reason to believe that the empaneling of an anonymous jury is necessary, the District Court should consider the following factors: (1) the seriousness of the charges against the defendants; (2) the potential threat of corruption to the judicial process; and (3) the nature and degree of pretrial and expected trial publicity. United States v. Gambino, 809 F. Supp. 1061, 1065 (S.D.N.Y. 1992) (quoting United States v. Melendez, 743 F. Supp. 134, 137 (E.D.N.Y. 1990)); see Aulicino, 44 F.3d at 1116 (anonymous jury appropriate when defendants attempted to tamper with witnesses); Wong, 40 F.3d at 1376-77 (anonymous jury appropriate when defendants' gang demonstrated willingness to obstruct justice and case had attracted publicity); Thai, 29 F.3d at 801 (anonymous jury appropriate when indictment charged crimes of violence, defendants attempted to subvert judicial process through intimidation and murder, and case was likely to attract media coverage); Amuso, 21 F.3d at 1264-65 (anonymous jury appropriate when indictment charged crimes of extreme violence and defendant had shown willingness to interfere with the judicial process); Paccione, 949 F.2d at 1192-93 (anonymous jury appropriate when defendants were charged with serious crimes with "potential for long prison terms," witness had received anonymous threat, and "trial could be expected to be the subject of extensive publicity"); Vario, 943 F.2d at 240 (anonymous jury appropriate when codefendant had been charged with grand jury tampering and trial expected to attract publicity); Tutino, 883 F.2d at 1132-33 (anonymous jury appropriate when defendant had history of jury tampering and serious criminal record); United States v. Persico, 832 F.2d 705, 717 (2d Cir. 1987) (anonymous jury appropriate when indictment charged violent crimes, defendants demonstrated willingness to obstruct justice, and trial expected to attract publicity), cert. denied, 486 U.S. 1022, 100 L. Ed. 2d 227, 108 S. Ct. 1995, 108 S. Ct. 1996 (1988); United States v. Ferguson, 758 F.2d 843, 854 (2d Cir. 1979) (anonymous jury appropriate when evidence at trial would include discussions of killing government witnesses), cert. denied, 474 U.S. 841, 88 L. Ed. 2d 102, 106 S. Ct. 124 (1985); Barnes, 604 F.2d at 141 (anonymous jury appropriate when there were allegations of dangerous and unscrupulous conduct and there had been extensive pretrial publicity).

 These well-established principles lead the Court to conclude that a semi-sequestered, anonymous jury is appropriate in this case. *fn4" The defendants are charged with serious offenses that carry long sentences and involve acts of extreme brutality; there is evidence that the defendants and their gang pose a threat to the judicial process; and this case has already attracted pretrial media attention which the Government reasonably predicts will continue during the trial.

 1. Seriousness of the Charges

 Even a cursory review of the indictment reveals the serious nature of the charges in the present case. Each defendant is charged with offenses that carry a statutory maximum sentence of life imprisonment plus additional mandatory consecutive terms of incarceration. If convicted on all counts, William Delvalle, faces a minimum sentence ranging from 32 to 39 years in prison without parole, and all of the other moving defendants must be sentenced to life without parole. The indictment names the defendants as members of an alleged violent narcotics trafficking organization, and charges six of the seven defendants with committing acts of violence, including attempted murder and murder, to protect, maintain and further their criminal enterprise. In total, the indictment charges those six defendants with eleven murders, and an additional three attempted murders and conspiracies to commit murder.

 The evidence at trial will depict an extensive pattern of violence. For example, Jose Muyet, Pedro Narvaez and Julio Matias are charged with the murder of Angel Luis Rivera and his two companions. According to the Government, the evidence will show that Juan Machin, another member of the Nasty Boys, shot Rivera on the order of Jose Muyet. See Finnegan Affirmation P 6 (hereinafter "Finnegan Aff."). *fn5" When Machin's gun jammed, he beat Rivera's head with the butt of his gun. See id. Julio Matias then shot Rivera several times as he lay prone on the ground. See id. When the attack began, Rivera's companions attempted to flee, but Narvaez allegedly hunted them both down and shot them to death. See id. The indictment charges Jose Muyet, Julio Matias and Frank Sosa with the murder of Antonio Flores. The defendants allegedly lured Flores, whom Muyet suspected of disloyalty, to a Nasty Boys meeting in Crotona Park in the Bronx. See id. P 9.a. As Muyet began to talk to Flores, another member of the gang shot Flores in the head. See id. Thereafter, the Government contends, members of the Nasty Boys passed the gun around and fired additional shots into the victim's body. See id.

 The Court finds that these and the other acts of violence charged in the indictment strongly support the empaneling of an anonymous jury because they "would cause a juror to reasonably fear for his [or her] own safety." Vario, 943 F.2d at 241. The Court "cannot expect jurors to 'take their chances' on what might happen to them as a result of a guilty verdict . . . [and] even a general fear of retaliation could well affect the jury's ability to render a fair and ...


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