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December 9, 2005.

JOHN A. GOTTI, Defendant.

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



John A. Gotti's motion under Rule 29 of the Federal Rules of Criminal Procedure presents an issue of first impression for this Court, and quite possibly for all courts. At the end of Gotti's trial, the jury deadlocked on three of the four predicate acts charged in support of the substantive racketeering offense.*fn1 In the ensuing colloquy, the Government argued that the jurors had to be unanimous as to unproven acts as well as proven acts and because their verdict was not unanimous I should declare a mistrial. Gotti argued that the Government's failure to prove two predicate acts should result in a judgment of acquittal on the substantive racketeering charge. Gotti agreed to the entry of a mistrial, but reserved his right to move post-trial for a judgment of partial acquittal. Gotti now brings that motion.

  For the reasons set forth below, Gotti's motion is denied. Thus, the Government will get a second chance to do what it failed to do at the first trial — prove an essential element of the offense — namely a pattern of racketeering. Ordinarily, this is not the least bit unusual. The Government is entitled to try again unless a jury unanimously agrees that the defendant is not guilty. The difficult question raised here is whether a jury should be instructed that unless they unanimously conclude that the defendant committed at least two related acts of racketeering, they must acquit the defendant of racketeering. This jury was not so instructed. Whether a jury should be so instructed is a question for another day and inevitably a higher court.


  Gotti was charged with a substantive violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO") for conducting the affairs of the Gambino Organized Crime Family. See Count One of Indictment S2 04 CR 690 (SAS) ("Indictment") (charging a violation of 18 U.S.C. § 1962(c)). Gotti was also charged with RICO conspiracy in violation of 18 U.S.C. § 1962(d). See Count Two of Indictment.*fn2 A trial on these charges was held in August and September of 2005. Because the jury did not unanimously find two predicate acts supporting the substantive RICO violation to be proven, and because the jury announced that it was deadlocked on the RICO conspiracy count, Gotti now moves under Rule 29 of the Federal Rules of Criminal Procedure for a judgment of partial acquittal on Counts One and Two.

  In support of the substantive RICO offense, the Government charged Gotti with four predicate acts. Racketeering Act One charged Gotti with conspiring to kidnap and kidnaping Curtis Sliwa. See Indictment ¶¶ 14(a) & (b). Racketeering Act Four*fn3 charged Gotti with conspiring to commit two types of securities fraud: (1) fraud in the offer and sale of securities and (2) fraud in connection with the purchase and sale of securities. See id. ¶ 17. Racketeering Act Five charged Gotti with conspiring to commit extortion in the construction industry. See id. ¶ 18. Finally, Racketeering Act Six contains three charges involving loansharking: (1) financing extortionate extensions of credit; (2) conspiring to make extortionate extensions of credit; and (3) conspiring to collect extensions of credit through extortionate means. See id. ¶ 19.

  On September 19, 2005, the Court received a note from the jury which read: "[I]n Count One, what do we do if one of the racketeering acts [is] deadlocked and it is the deciding factor in whether the defendant is guilty or not guilty for Count One?" Trial Transcript ("Tr.") at 5265. In response to this note, Marc Fernich, one of Gotti's attorneys, stated that "[T]he answer to question two should in our view be if you cannot agree unanimously . . . that [an] act has been proven then you must find that particular[] act not proved or unproven." See id. at 5269-70.*fn4 The Government objected to Fernich's interpretation, arguing that the jury had to be unanimous in order to check the "Proved" box or the "Not Proved" box on the Verdict Sheet. See id. at 5271, 5278 (Assistant United States Attorney Michael McGovern requesting that the Court "specifically inform the jury that they must be unanimous as to proved or not proved."). Over an objection by defense counsel Fernich, the Court adopted the Government's interpretation. See id. at 5278 ("What Mr. McGovern asked me to say was not that they have to be unanimous as to proved, but if they are deadlocked then they should not check either proved or not proved. That is like a third line, we can't decide. I think he is right about that."). Defense counsel Lichtman ultimately conceded the point. See id. After giving an Allen charge, I instructed the jury as follows:
I want to add one other thing just so it is clear with respect to question two in your note. If you are not unanimous with respect to a predicate act then you can't check off proved or not proved. You will just have to leave it blank. So if you are not unanimous on a particular act, I guess you could add undecided, we couldn't decide. Don't check proved and not proved unless you are unanimous. Just check, we couldn't decide. That is important.
Id. at 5282.

  The next day, the jury returned a note, enclosing the completed Verdict Sheet, stating that they had reached a verdict. After reviewing the Verdict Sheet, I informed the parties that the jury did not check guilty or not guilty on Count One as to any defendant because they did not unanimously find that the Government proved two predicate acts against any defendant. See id. at 5289. I asked the parties for guidance as to whether this constitutes an acquittal or a hung jury. See id. at 5292. After much colloquy, Gotti agreed to accept a mistrial on the deadlocked counts. See id. at 5309.

  Subject to post-trial motions, I then took a partial verdict on the remaining counts. See id. at 5295-97. Although I instructed the jury to refrain from revealing the actual vote on the Verdict Sheet, they nonetheless provided that information where their verdict was not unanimous. The following chart depicts the jury's verdict. COUNT ONE: RICO Substantive

  Proved NotProved

 Racketeering Act #1

 Conspiracy to Kidnap Curtis Sliwa 10 2

 Kidnaping of Curtis Sliwa ...

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