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