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U.S. v. GOTTI

June 22, 2004.

UNITED STATES OF AMERICA,
v.
PETER GOTTI, ANTHONY CICCONE, also known as "Sonny," RICHARD V. GOTTI, PRIMO CASSARINO, JEROME BRANCATO, also known as "Jerry," RICHARD G. GOTTI, PETER PIACENTI, also known as "Pete 17," RICHARD BONDI, FRANK SCOLLO, also known as "Red" and "the little guy," VINCENT NASSO, also known as "Dr. Nasso," JULIUS NASSO, also known as "Jules," ANTHONY PANSINI, SALVATORE CANNATA, ANNA EYLENKRIG, THOMAS LISI, CARMINE MALARA and JEROME ORSINO, JR., Defendants.



The opinion of the court was delivered by: FREDERIC BLOCK, District Judge

MEMORANDUM & ORDER

Subsequent to the commencement of the sentencing proceeding of Peter Gotti on March 26, 2004, the Court received requests from members of the press to make public all sentencing letters the Court had received, which included letters from one Marjorie Alexander, whose name surfaced at the start of the proceeding when the Court identified her, as well as the defendant's wife, and his son, Peter Gotti, Jr., as having written such letters.*fn1 Because the press is entitled to a response from the Court and because the manner in which the Court views and processes letters to the Court addressing the sentence of a convicted criminal defendant, and counsels' responsibilities regarding such letters, are matters of public concern, the Court has decided to address these important matters in a written opinion.

FACTUAL OVERVIEW

  I. The Sentencing Proceeding

  At the commencement of the sentencing proceeding on March 26th, which was a Friday, the Court announced that because of its complexity, the proceeding would not be completed that day. Before the Court turned to its sentencing calculations, the Court, as is its custom, identified the papers contained in its sentencing file. After the Court referenced the presentence report and addenda (the "PSR") prepared by the Probation Office and various submissions from counsel, and elicited assurances from defendant's counsel, Gerald Shargel, and from the principal Assistant United States Attorney ("AUSA") representing the government, that they had received the PSR and their opposing counsel's submissions, the following exchange occurred:
THE COURT: Now I have the following additional submissions. I have a number of letters. For example, the top one is from Marjorie Alexander, I think. Also, I have Mrs. Gotti — I have a letter from Marjorie Alexander dated May 4th. The first one I reference[d] is dated August 4th. I have one from Marjorie Alexander dated March 22d 2003. I have a card here from Ms. Alexander. I have a letter from Margie Romano dated January 4, 2004. Ms. Alexander is very supportive of Mr. Gotti and has written many times to me. I have a letter from Peter Gotti, Jr. I have more letters from Marjorie Alexander; February 26, 2004. Is there anything else I should have?
MR. SHARGEL: I don't think so, Judge.
[AUSA]: Judge, I don't think we have seen those letters. Perhaps at some point we could get copies of them. I don't think it is going to affect our ability to go forward.
THE COURT: It is up to you. That's why I go through the protocol. If you would like to take some time to look at them now, they are basically supportive letters. They really don't deal with sentencing issues.
[AUSA]: I don't think we need to take the time now. I think for our records to be complete we should have them at some point
THE COURT: You can certainly look at them if you like.
[AUSA]: Thank you.
THE COURT: Now let's go to . . . making our sentencing calculations.
  During a break in the proceeding late in the afternoon, the Court's courtroom deputy, Michael Innelli, advised the Court that a reporter from the New York Daily News had asked him whether the press could see the letters. The Court told Mr. Innelli to advise the reporter that they would not be released.

  II. The Release of the Letters by the AUSA to a New York Post Reporter

  As recounted to the Court by Mr. Innelli, the AUSA called him on Monday morning, March 29th, at about 11:00 a.m., to obtain a copy of the letters. Mr. Innelli copied them and had them delivered at about 3:00 p.m. to the AUSA's office by interoffice mail. He also left a voice mail message at the AUSA's office at that time stating that the letters were not for public consumption and were only being furnished pursuant to the AUSA's request.

  Mr. Innelli left work at about 4:30 p.m. that day, but at 6:00 p.m. he checked his voice mail; there was a message from a New York Post ("the Post") reporter asking whether the letters would be made available to the press. Mr. Innelli returned the reporter's call at about 10:00 a.m. the next morning, Tuesday, March 30th. The Post reporter asked whether the Court had sealed the letters; Mr. Innelli informed her that the Court had not, but that they were not public and remained in the Court's sentencing file. Mr. Innelli then informed the Court that he had sent a copy of the letters to the AUSA in response to his request, and that the press continued to inquire about the letters.

  At about noon that day Mr. Innelli received a phone call from the AUSA. According to Mr. Innelli, the following transpired: The AUSA told him that the First Amendment entitled the press to the letters; Mr. Innelli disagreed and advised the AUSA that the Court's normal practice was that personal letters to the Court in respect to sentencing were not routinely docketed with the Clerk's Office and remained in the Court's sentencing file. Mr. Innelli told the AUSA that he would inform the Court of the AUSA's contention; the AUSA said he would do "whatever the judge said."

  Mr. Innelli immediately related this conversation to the Court and, at the Court's direction, called the AUSA to tell him that the Court was taking the matter under advisement and that Mr. Innelli would inform the AUSA of the Court's decision as soon as it was rendered. The next day, Wednesday, March 31st, Mr. Innelli retrieved a voice mail message from the Post reporter inquiring about whether the Court had made its decision. Meanwhile, the Court had learned that there was no uniform practice by its colleagues as to when, if at all, sentencing letters should be docketed and made public, and was in the throes of researching the issue.

  III. Ms. Alexander's Suicide and the Disclosure of Her Letters by the Post

  On Wednesday night, the Court learned that Ms. Alexander had committed suicide. The next morning, Thursday, April 1st, the suicide was reported in the papers, and the Post printed excerpts from Ms. Alexander's letters, as well as an excerpt from Mrs. Gotti's letter. The excerpts from Ms. Alexander's letters spoke of her personal relationship with the defendant over fourteen years, railed against his being accused of being a crime boss, and spoke about her broken spirit and her need for anti-depressant medication. The excerpt from Mrs. Gotti's letter appeared under the caption: "Don's Venomous Wife Penned Poison Letter Asking Judge For Max." New York Post, April 2, 2004, p. 2.

  That afternoon the Court called the U.S. Attorney's office to speak to the AUSA about whether he had any knowledge as to how the Post had obtained the letters, but reached Sam Noel, the AUSA's paralegal who had been at the sentencing proceeding. Mr. Noel candidly told the Court that he had been instructed by the AUSA in a phone call on Monday that he should copy the letters once he received them from the Court and give them to the Post reporter.

  On Monday morning, April 5th, the AUSA spoke to Mr. Innelli by telephone and told him that he wished to apologize to the Court for his behavior. Thereafter, the Court conducted a hearing with the AUSA in chambers on May 26th, at which time the AUSA appeared with AUSA Daniel Alonso, representing the Eastern District of New York's United States Attorney's Office.*fn2

  IV. The AUSA's Explanation

  The AUSA acknowledged, as Mr. Innelli had reported, that he did indeed call Mr. Innelli at about 11:00 o'clock on Monday morning, March 29th, to request that a copy of the letters be sent to his office. The AUSA explained that he was not in his office at that time and that the letters should be sent to his paralegal, Mr. Noel. The AUSA did not tell Mr. Innelli that just before their conversation, the AUSA had received a call from the Post reporter. As he recounted: "she called and told me she wanted to do an article and if I had copies of those letters, could I make them available to her and I said I would." Hearing Transcript, May 26, 2004, at 12. His explanation for thereafter asking the Court for a copy of the letters was as follows:
I had wanted to get copies so that I could review them before the sentencing was completed and to have our file complete. So the two, I mean, her call prompted me to do what I intended to do anyway, which was to make sure I got a copy of the set. So that's when I called over to Mr. Innelli.
Id.

  The AUSA offered that he was "always careful not to turn anything over [to the press] that wasn't in the public record," but that "in [his] mind" the letters were "part of the public record" and that he "didn't even imagine there was some special status to these letters." Id. at 16. The AUSA had personally never "encountered the situation" where "letters were sent directly to the Court and that there was some different legal status perhaps to such letters." Id.

  Nonetheless, right after the AUSA had asked Mr. Innelli to make a copy of the letters available to him, he had "reflected some more on it" and "decided it would be prudent to confirm in fact [that] the letters were . . . filed with the Clerk of Court and part of the public record"; consequently, he called Mr. Innelli again, at around 12:30 or 1:00 p.m. that day, and "left a voice mail for Mr. Innelli saying [he] just wanted to confirm that these letters were docketed in the Clerk's Office." Id. at 20-21. However, the AUSA told the Court that before his second call to Mr. Innelli, the following had occurred: He had called Mr. Noel and told him that "we are getting copies of the sentencing letters," and that he should copy them and "give [them] to the Court Security Officer on the 19th floor so that a reporter from the Post can pick it up"; he then immediately called the Post reporter to tell her "that she would be able to pick up copies later in the day from Mr. Noel." Id. at 22.

  The AUSA acknowledged that as soon as he had these second thoughts about authorizing the release of the letters to the Post reporter without first ascertaining if they had been docketed in the Clerk's office, he should have called Mr. Noel at once to tell him not to release the letters. As he explained:
I viewed this as sort of my big mistake in this situation because I guess my thought process was that I would hear back from Mr. Innelli relatively quickly and that it would take some time before the letters were copied, routed, sent over to the U.S. Attorney's Office and that I had a little bit of comfort zone so if there was a problem, which I certainly didn't expect there would be, to tell Mr. Noel not to turn the letters over. I realize now the far better thing to have done was to have called Mr. Noel immediately and say "don't turn them over until I hear back from the Court." And that course of action was something that just didn't occur to me at that time.
Id. at 21-22.

  The AUSA told the Court that he heard Mr. Innelli's voice mail message that the letters were not to be released at around 4:45 p.m. on Monday afternoon. Id. at 26. He immediately called the Court Security Officer, who told him that the Post reporter had picked up the letters about 10-15 minutes earlier. Id. at 28. The AUSA then called the reporter and asked her "to return the letters or destroy them because they were given to her by mistake" and that "the Court wanted them to be confidential." Id. at 29-30. After checking with her editors, the reporter called the AUSA back that same day and told him that "she agreed she would not write anything about this and she would return the letters and that she would keep it confidential." Id.

  The AUSA acknowledged that he spoke to Mr. Innelli the next day, Tuesday, March 30th, and told him that he "would do whatever the judge wants." Id. at 35. The AUSA did not recall whether he told Mr. Innelli during that conversation "that the First Amendment entitled the press to have the letters." Id. at 36. His recollection was that he told Mr. Innelli "that it was my understanding of the law that there is an independent public interest in proceedings being open and that it was strange to [him] that there would be this category of letters that could be sort of neither in the public record nor formally placed under seal that the judge would have in his personal file in chambers." Id.

  In response to the Court's comment that the AUSA knew at that time that he had already turned the letters over to the Post reporter, the AUSA told the Court that he was "deeply sorry I didn't mention to Mr. Innelli I had turned the letters over." Id. at 37. The AUSA's rationale for not doing so was his belief "that there was no risk that these letters would get out" because he "had that promise [from the Post reporter] and [he] just believed that the problem was solved and there was no issue." Id. As he explained:
I couldn't imagine that [the Post reporter] would violate her promise knowing that the Court wanted them to be confidential, knowing that she — there were a couple of things. I mean, she is a reporter, has an ongoing relationship with the U.S. Attorney's Office because we do make courtesy copies of things available. And the bottom line is I put faith in her promise. I believed that she would not write those articles and disseminate those letters.
Id. at 37-38.
  Mr. Alonso "shed some light on the background" bearing on the AUSA's "state of mind," as follows:
The press has a relationship with public offices that is basically as good as their word. And so when a reporter says "what you say is off the record or background," those are their buzz words, essentially the person talking to them is accepting their promise it's not going to be quoted in the newspaper the next day. If they break that promise, it violates that trust and no one will ever trust them again.
An assistant who received such a promise, again, acknowledging he should have told [Mr. Innelli], he apologizes, we apologize, but an assistant who received such a promise would have good reason to think that he had undone the damage, whatever damage had been done, because a reporter would never cut off their nose to spite their face by breaking such a promise.
It's shocking that she did. But that's another issue between other parties.
Id. at 38.

  The AUSA added: "[The Post reporter] would have had to have known if she were going to violate the promise that she would put me in the incredibly difficult position I'm in now and I did not believe she would do that." Id. at 38-39.

  The AUSA told the Court that after learning on Wednesday that Ms. Alexander had committed suicide, the Post reporter told him that night that "the suicide of Ms. Alexander ha[d] created intense pressure in her newspaper to publish an article about these letters and that they were going to do it." Id. at 40.

  In conclusion, the AUSA summed up his thought process as follows:
Your honor, from my point of view this whole thing has been very . . . traumatizing. I never intended to do anything to cause matters that shouldn't have been disclosed to be disclosed. I never intended to have a lack of candor to the Court. I view this from my point of view as the result of some mistakes and some misunderstandings about the status ...

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