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IDA v. U.S.

March 27, 2002

JAMES IDA, MOVANT,
V.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge.

MEMORANDUM OPINION

Movant, reputedly the former consigliere of the Genovese organized crime family, was convicted after a lengthy jury trial of racketeering conspiracy, racketeering, eight substantive crimes which were alleged also as acts of racketeering, and conspiracy to defraud the United States. Three of the acts of racketeering, two of which were alleged also as substantive counts, were murders or conspiracies to commit murder. He was sentenced to a term of life imprisonment, five years of supervised release, a mandatory special assessment, and a $1 million forfeiture. On April 30, 1999, the Second Circuit substantially affirmed the convictions, reversing only racketeering act 2(a) and count nine, the DeSimone murder conspiracy.*fn1

On October 15, 1999, Ida moved for a new trial based on allegedly newly discovered evidence. The Court denied the motion on December 14, 1999, and the Second Circuit affirmed on September 14, 2000.*fn2

Ida now moves pursuant to 28 U.S.C. § 2255 to vacate his conviction. Much of the application focuses on allegedly newly-discovered evidence concerning the murder of Hickey Dilorenzo and the conspiracy to murder Dominic Tucci. The relevant evidence is summarized in the Second Circuit's opinion and need not be repeated here.*fn3 Movant alleges also that the government violated its disclosure obligations under Brady v. Maryland*fn4 and Giglio v. United States;*fn5 that he was deprived of the effective assistance of counsel; that Apprendi v. New Jersey*fn6 requires reversal of the criminal forfeiture verdict; and that the testimony of two of the government's witnesses should have been excluded under United States v. Singleton.*fn7 At the heart of the motion, however, are claims of jury tampering and juror misconduct as to which Ida seeks discovery and a hearing. Since all or substantially all of his motion would be mooted if he were entitled to relief on either of these theories, the Court deals with them first.

I. Facts

Ida seeks relief on the basis of a combination of a mention late in the trial of an investigation concerning possible jury tampering, an affidavit of a former bar owner who claims to recall statements made during and after the trial by someone who allegedly claimed to have been a member of the anonymous jury in this case, and the acquittal of codefendant Louis Ruggiero.

A. The Trial Record

Just after the start of this eight week long trial, one of the jurors wrote the Court regarding an incident involving his car. The transcript contains the following colloquy:

"THE COURT: Good morning, folks.

"I came on the bench because we have two notes from jurors. Juror in seat number 3 writes, `Just wanted to bring to your attention my car windshield was smashed on day one of trial. Maybe a coincidence, but I wanted it to go on record in case of any other event.' * * *

"Do counsel wish to be heard on what, if any response should be made?

"MR. HOFFMAN [IDA'S COUNSEL]: I do. I would ask the Court to ask that witness, I am sorry, that juror if this activity has in any way, shape or form prejudiced or concerned or caused any bias in their thinking. And the reason I say that is particularly the way in which the note was phrased `in case there are any other incidents,' as though it was not something random but perhaps as a result of participation in the trial. And I would ask the Court to inquire if that is the thinking of that juror because, obviously, if it is, I would have some concern."*fn8

The juror then was brought in, and the following exchange occurred:

"THE COURT: Come on in. Why don't you come up here by where the cart is and we want to talk to you briefly about your note. Right up here, no great formality.
"My question to you is this: Do you feel as a result of this incident with your windshield that you have a bias one way or the other in this case?
"A JUROR: No, not at this point. If it happens a couple of times I might. But not at this point. I thought it was just a coincidence, but I thought it would be wise just to let you know, just to go on the record.
"THE COURT: You are confident you can judge the case fairly and impartially without regard to that incident at this point.

"A JUROR: Yes. At this point."*fn9

There was no request to strike the juror and no request for further questioning by any party. There is no suggestion of any further incidents of this nature involving this or any other juror.

Many weeks later, just before the government presented its rebuttal summation, defendant Ruggiero's attorney brought the following to the Court's attention:

"MR. JACOBS: . . . Your Honor, at 8:15 this morning I received a phone call from one of Mr. Ruggiero's daughters, Ida Ruggiero, telling me that she had been subpoenaed by the FBI at about 11:30 last night for jury tampering. I assume it is with regard to this case. I know nothing about this situation, your Honor, and possibly we should be enlightened as to what is going on.
"[AUSA] BOXER: Your Honor, I know nothing about the situation either respecting Ms. Ruggiero.

"MR. JACOBS: Yes. Doug Lankler is the assistant. I called the assistant.

I left a message on his phone. I didn't hear back from him.

"THE COURT: I suggest that you try to get in touch with the assistant. All right."*fn10

The record reveals nothing further on this issue.

None of the defendants made any claim regarding either of these matters either in their post-trial motions, on direct appeal, ...


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