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U.S. v. GOTTI

May 13, 2005.

UNITED STATES OF AMERICA
v.
JOHN A. GOTTI, et al., Defendants.



The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

I. INTRODUCTION

  On July 21, 2004, a grand jury in the Southern District of New York indicted John A. Gotti, Jr. ("Gotti") on a number of charges, including alleged violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"). Among the predicate acts charged in the indictment are the kidnaping and attempted murder of Curtis Sliwa in 1992, two additional attempted murders in 1990 and 1991, a conspiracy to commit securities fraud by using the mail and wires from 1995 to 2002, a conspiracy to extort construction contractors from 1991 to 2002, and loansharking from 1991 to 2002. The indictment also alleges the securities fraud, extortion, and loansharking charges as substantive counts. Gotti has moved to dismiss the indictment, at least partially, on the grounds that the charges are barred by the terms of his 1999 plea agreement.*fn1 In the alternative, Gotti moves to preclude the Government from using any evidence in his upcoming trial that was known to the Government at the time of his 1999 guilty plea.

  II. BACKGROUND

  On April 5, 1999, Gotti pled guilty in the Southern District of New York to RICO, loansharking and tax charges pursuant to a written plea agreement with the United States Attorneys' offices for both the Southern and Eastern Districts of New York. The plea agreement contained the following provision (hereinafter, the "coverage provision"):
The Offices have no present intention to indict defendant Gotti for additional crimes based on the evidence currently known to the Offices. Nothing in this agreement, however, precludes indictment if any additional evidence or information whatsoever comes to the Offices' attention, including but not limited to as a result of any pending investigation.*fn2
In addition, the agreement contained a generic integration clause, which stated that the agreement "supercede[d] any prior understandings, promises, or conditions between the Offices . . . and the defendant [Gotti]" and further stated that "[n]o additional understandings, promises, or conditions have been entered into other than those set forth in this Agreement, and none will be entered into unless in writing and signed by all parties."*fn3
  At the Rule 11 proceeding, the Honorable Barrington D. Parker, who was at that time a United States District Judge in the Southern District of New York, asked Assistant United States Attorney Carol Sipperly to summarize the agreement's "salient terms," while stating that "[t]he written document is the agreement."*fn4 When Sipperly reached the coverage provision that is quoted in full above, Gotti's attorney Gerald Shargel asked the Court for permission to be heard on that subject. Shargel then stated:
I want to report to the Court that this plea that's being taken this evening is being taken in the interest of finality and closure, and the language of the plea agreement gives Mr. Gotti closure as to all present investigations, and that's something that we want to put on the record and is being put on the record with the knowledge and consent of the Government as reported by Mr. [Mark] Pomerantz [a former AUSA who was at that time the Chief of the Criminal Division in the United States Attorney's Office in the Southern District].*fn5
When asked by the Court what language he was referring to, Shargel replied, "[I]t's the language that appears on Page 2, in the last paragraph of the agreement, as amplified by what I just reported as my conversation with Mr. Pomerantz, representing both his district and the Eastern District."*fn6
  Sipperly then responded, "When Mr. Shargel said that to us this afternoon, we said yes, and the sentences say what the sentences say, that we negotiated this paragraph. It was very heavy negotiations and those are the two sentences that have been agreed upon, and they say what they say."*fn7 Pomerantz added:
The language of the plea agreement states the agreement of the parties. To the extent Mr. Shargel's statement is intended to change the substance of the protection that is afforded by the plea agreement, which was negotiated, as everyone here well knows, it is the language of the plea agreement that governs. We fully respect Mr. Gotti's desire to have closure with regard to any pending investigations. He has the closure provided for in the agreement, and I had understood that was agreeable to all parties.*fn8
Thereupon, Shargel again insisted that the language in question "gives Mr. Gotti closure as to all present investigations."*fn9 In addition, Shargel reiterated that Pomerantz gave him permission to state on the record his view as to the meaning of the coverage provision and suggested that the words "closure as to all present investigations" came from Pomerantz himself.*fn10
  After conferring with Pomerantz, Sipperly made the following statement:
What Mr. Shargel said and what the Government agreed to was this: Mr. Gotti asked for this language, and it was his desire to find closure with this disposition and he asked for that language. We understand that . . . what he wants is closure. In the meantime, the agreement speaks for itself. [Gotti] cannot be indicted unless there is additional evidence that comes to the attention of the offices, and that's the agreement of the parties.*fn11
Pomerantz then "elaborate[d]" on Sipperly's statement as follows: "We believe that the language of the agreement gives [Shargel] and his client the closure that they sought in our negotiations, but the language is the language. I think that's clear."*fn12
  After acknowledging that "the language of the agreement . . . was the subject and product of continued negotiations," Shargel again offered "a statement of interpretation":
I would like to state again that the language of the agreement gives Mr. Gotti closure as to all present investigations. I think we are trying to achieve the same thing, and I think that we don't really — I think that we are — I won't say drowning in semantics, but we are troubled by semantics. I think both sides agree that the purpose of this plea or one of the key purposes of this plea, one of the key considerations for this plea is Mr. Gotti's desire to have all this put behind him, so he can move on with his life. . . . [O]ne of the essential reasons for this plea this evening is finality and closure, and Mr. Pomerantz has given me the comfort of being able to make this statement for the Court, and I will rest on the statement.*fn13
Pomerantz replied to this, "Very well, Judge."*fn14

  Later in the proceeding, Judge Parker asked Gotti whether he believed that he had "reached any understanding or deal or agreement with the Government that's not set forth in the letter," to which Gotti replied, "No, Your Honor."*fn15 Shargel then stated, "I think the purpose of Your Honor reviewing the agreement is that it's Mr. Gotti's understanding of the language as amplified by [AUSA] Sipperly, as amplified by myself with what I said."*fn16 Thereupon, Gotti indicated that his understanding "[i]nclud[ed] Mr. Shargel's statement."*fn17 The Government made no response to this statement. Shortly thereafter, Gotti formally entered his guilty plea.

  III. APPLICABLE LAW

  The Second Circuit has stated, "[w]e have long interpreted plea agreements under principles of contract law . . . but have noted that plea agreements are unique contracts in which special due process concerns for fairness and the adequacy of procedural safeguards obtain."*fn18 Consequently, courts are required to "hold the Government to the most meticulous standards of both promise and performance."*fn19 In keeping with these principles, the Second Circuit has instructed that in determining whether a plea agreement has been breached, a court should look to the reasonable understanding of the parties as to the terms of the agreement and resolve any ambiguities against the Government.*fn20 Furthermore, the Second Circuit has stated that "in appropriate circumstances, we might consider relaxing the parole evidence rule in order to hold the Government `to the most meticulous standards of promise.'"*fn21

  IV. DISCUSSION

  In his motion papers, Gotti contends that several charges in the present indictment violate the "language and spirit" of the plea agreement as "supplemented in the oral plea colloquy."*fn22 At oral argument, Gotti acknowledged, however, that the written agreement, on its own, does not provide him the protection he seeks.*fn23 Gotti's argument therefore hinges on whether Pomerantz made an oral ...


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