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September 24, 1998

LAURA GAROFALO, Plaintiff, against SALVATORE GRAVANO, Defendant.

The opinion of the court was delivered by: GLASSER


 GLASSER, United States District Judge

 The plaintiff has moved this court pursuant to 28 U.S.C. § 455(a) to disqualify himself in the above captioned case relying upon the direction of the statute that provides "Any . . . judge . . . of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Plaintiff contends that statements made by this court at the proceeding at which the defendant was sentenced provide a basis for reasonably questioning his impartiality. It is appropriate, therefore, that the statements made by the Court to which plaintiff points in advancing her motion, be considered and, more importantly, be considered in the context in which they were made.


 The rather extended statement made prior to pronouncing sentence was with a consciousness of the extensive media and public attention devoted to the trial of John Gotti and to be devoted to the impending sentence of the defendant. I deemed it important, therefore, that the proceeding be placed in a perspective which I believed would convey to the community at large, a sensitive appreciation of the relationship between the sentence of Salvatore Gravano and the realities of organized crime. "Too much effort has been spent," I said, "in glamorizing [the] polluted environment [of organized crime] by what many might regard as the questionable, if not irresponsible, portrayal of smiling gangsters attired in expensive suits, making Chuchillian 'V' signs as they clamber in and out of their expensive limousines which are driven by, and the doors of which are obsequiously held open by other gangsters." (Tr. 49-50) *fn1" I went on to describe the structure of an organized crime family and the ceremony at which members of such a family are "made" or inducted. I explained that "made" members are named by the Boss of the family to whom they pledge absolute loyalty and a willingness to murder on behalf of the family. They take an oath of "omerta" - silence - and with a picture of a saint set afire in the palm of their hands, intone that they shall burn like that saint should they violate that oath. That oath also includes obedience to many rules among which are never to cooperate with law enforcement; to generate income for the family through crime; respecting and not harming other members of organized crime without permission from the Boss to do so, with death the sanction for violating the rules. (Tr. 50-51)

 "What has made the Mafia so little understood and in many respects romanticized," I said, "is the cupidity of its victim which is society at large and the folk-hero proportions in which its leaders have been portrayed. They have been portrayed as Godfathers, as Teflon Dons, as neighborhood benefactors. The public hasn't fully understood the pernicious influence that organized crime has exerted and still exerts in countless ways that affect our daily lives." (Tr. 51-52)

 The criminal history of Gravano was recounted as was the extensive assistance he provided to the United States Senate Committee on Governmental Affairs and its Permanent Sub-Committee on Investigations *fn2" and to the government in the prosecution of significant criminals. In that regard the government wrote that he was "the most significant witness in the history of organized crime in the United States." (Tr. 60)

 The criminal history of Salvatore Gravano was discussed by the government against the backdrop of La Cosa Nostra within which that history was made. Much of that history was revealed to the government for the first time and, but for his telling of it, would never have been known (Tr. 24). Much has been written about his involvement in 19 murders with respect to which "there are plenty of nuances." (Tr. 20) An appreciation and understanding of those "nuances" can be had only by a reading of the transcript of the testimony of Salvatore Gravano at the trial of John Gotti and Frank LoCascio which extended over many days.

 Deeming it important to convey to the court some aspects of his cooperation which are sometimes overlooked, the government recounted that he was interviewed by approximately 100 people (Tr. 23) and that the "overarching theme or principle that . . . emanates from his debriefings, from his course of cooperation is this: He did have a dedication to organized crime. At the beginning of his course of cooperation he had a dedication not to the government, he had a dedication to his agreement, he abided by that agreement from day one. And told us about criminal activity including many of the murders . . . that we not only did not know about, but I represent to the court, we would never have found out about, but for his telling us that. It was a commitment to the agreement and over time and this is what's important, I think, to the Court, it was certainly important to us, over time that dedication became a dedication not just to the agreement but to a different organization, to the United States, United States government, in an effort to do what he could just by telling the truth, to combat organized crime. It's my belief that his dedication to that objective at least equals, if it doesn't surpass, the dedication he had to La Cosa Nostra. I think it's an important factor and I respectfully submit it should be an important factor to the court in fashioning or imposing an appropriate sentence (Tr. 24-25).

 On the day Gravano was to be sentenced there were "37 convictions, nine people awaiting trial, eight people resigned from the unions as a result of Gravano's cooperation." (Tr. 45) and the government recounted and explained the enormous significance of each to law enforcement and to society. I again quote from the government's presentation to the court: "What we have learned from the cooperation of Gravano, and this should have been no surprise to us, but in this instance it was a surprise to me and to those of us on the prosecution team, that organized crime's influences in the communities in this city in unbelievably vast." (Tr. 30)

 The government related the collateral impact of Gravano's cooperation upon people who came to testify against organized crime "influenced by the fact that Salvatore Gravano turned his back on the mob . . . . What we heard from informants, what we heard from the people who followed Gravano in to become a cooperating witness was that when Salvatore Gravano cooperated, it did not indicate that there was something wrong with Salvatore Gravano, but it indicated that there was something very wrong with the mob . . ." (Tr. 47-48)

 Finally, the government emphasized the importance to organized crime that a failure to reward the cooperation of Salvatore Gravano would be. "This sentence will be used or not, depending on what the sentence is. It will be used in the street or not be used, depending on how convincing a case these people, the Jackie Noses, John Gotti, Jr., how convincing a case that, look at what Salvatore Gravano did, he ruined his future in the mob, he's going to be hunted, he ruined his own family. He ruined his future, a rich man in organized crime. And look what happened to him, he got banged by the government. I don't intend by this argument to suggest to the court that that's the factor that is decisive in this. The court has a very difficult decision. It has multiple other factors before it. That's a critical one. It is the respect in which this sentence will have a bearing on law enforcement efforts against the mob in the future." (Tr. 48-49)

 The foregoing synopsis of the government's presentation was made in support of its motion pursuant to § 5K1.1 of the United States Sentencing Guidelines which, if granted, empowered the court to impose a sentence without regard to the Guidelines and even without regard to mandatory minimum sentences were such mandatory minimums applicable.

 The factors considered by the court in imposing sentence were stated in some detail in discharge of the requirement of 18 U.S.C. § 3553(c) that the reasons for the sentence imposed shall be given by the court. Those factors were: (1) the significance and usefulness of his assistance as related by and based upon the government's extensive recitation of it and upon my own assessment of it in five trials over which I presided and in which he testified on direct and cross-examination for days (Tr. 62-68); (2) the truthfulness, completeness and reliability of his information and testimony; (3) any danger or risk of injury to Gravano or to his family resulting from his assistance; and (4) the timeliness of his assistance. A consideration of each of those factors, however, still left unanswered the difficult questions - by what yardstick should his sentence be measured? To what extent should the sentence that might otherwise be imposed be reduced? The answer to those questions believed to be the correct one was "by the extent to which society has benefitted by that cooperation and assistance" which was given to be as follows:

 "The benefit to society has been the incarceration of major criminals; the disarray of organized crime families; the cleansing of corrupt labor unions; the impetus which his decision to cooperate has given to others to do the same and the beneficial consequences of the domino effect of that decision and many other benefits which, although not presently identifiable, are certain to follow." (Tr. 70)

 Adverting to the benefits realized by society as a result of his cooperation, a series of questions were believed to provide a more focused assessment of that.

"Would society be better served if he hadn't cooperated and John Gotti and the Gambino organized crime family continued undisturbed?
Would society be better served if he hadn't cooperated and the construction industry continued to be dominated by organized crime?
Would society be better served if he hadn't cooperated and organized crime's involvement in heroin trafficking were to continue undetected?
Would society be better served if he hadn't cooperated and it had never learned that juries were tampered with in major criminal cases so that that pernicious endeavor can continue?
Would society be better served if he hadn't cooperated and it had never learned of a mole in the New York Police Department who was undermining the efforts of conscientious police officers to combat organized crime?
Would society be better served if he hadn't cooperated and they never learned of the influence of organized crime over the carting industry; the garment center; the docks; the teamster's union; ...

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