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United States v. Tomero

May 15, 2007

UNITED STATES OF AMERICA,
v.
JOHN TOMERO, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

The superseding indictment charges various acts in connection with the Genovese organized crime family, one of the six "mafia" families that are said to dominate organized crime in the New York and New Jersey areas.*fn1 The government moves for an anonymous and partially sequestered jury.

Facts

The core of the indictment are charges under the Racketeer Influenced and Corrupt Organizations Act ("RICO").*fn2 The enterprise is the alleged Genovese family, of which six defendants are said to be members or associates.*fn3 Five of those defendants -- Liborio Bellomo, Pasquale DeLuca, Arthur Nigro, Ralph Balsamo, and Gerald Fiorino -- are charged in Counts One and Two with conspiring to conduct and with conducting the affairs of the enterprise through a pattern of racketeering activity including, among other things, murder and conspiracy to murder,*fn4 extortion and conspiracy to extort,*fn5 obstruction of justice by lying to a grand jury,*fn6 and witness tampering by means of intimidation and threats.*fn7 Other counts of the indictment charge these defendants with a wide variety of substantive offenses, most of which are alleged as RICO predicate offenses in the first two. They include also, inter alia, charges of conspiracy to distribute cocaine,*fn8 possession of a firearm in relation to a crime of violence,*fn9 and conspiracy to traffic in firearms.*fn10

The three remaining defendants are not named in the RICO counts. Louis Moscatiello, also an alleged member of the Genovese family, is charged in Counts Six and Seven with extortion conspiracy and extortion. Walter Galiano and Anthony Negri, Sr., are charged in Counts TwentyTwo and Twenty-Three respectively with making false statements to the FBI.

The government asks the Court to order that "(1) all prospective jurors on the voir dire panel, as well as the jurors and alternates ultimately selected, not . . . reveal their names, addresses, or places of employment; (2) the jurors be kept together during recesses and that the United States Marshals Service take the jurors to lunch, or provide them lunch, as a group each day throughout the trial; and (3) the United States Marshals transport the jurors together from the Courthouse each day to an undisclosed central location, from which they can leave for their respective communities."*fn11

Defendants oppose the motion, but seek permission to use a juror questionnaire in the event it is granted.

Discussion

In this Circuit, "a court may order the empaneling of an anonymous jury upon '(a) concluding that there is strong reason to believe the jury needs protection, and (b) taking reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected.'"*fn12

I. Strong Reason for Protection

In determining whether there is a "strong reason" to believe a jury needs protection, courts consider whether (1) the charges against the defendants are serious, (2) there is a substantial potential threat of corruption to the judicial process, and (3) considerable media coverage of the trial is anticipated.*fn13

In United States v. Gotti,*fn14 the Second Circuit held that an anonymous jury was warranted where (1) the defendants were charged with membership in the Gambino family, a powerful crime organization, (2) the defendants included the alleged head of the family and another high ranking member whose pretrial detention had been ordered on the ground that he was dangerous, (3) the indictment charged two defendants with witness tampering in connection with grand jury testimony, and (4) intense media coverage and public interest in the trial was expected.*fn15

The facts of this case are closely similar to those of Gotti. Defendants are charged with membership in the Genovese family, a powerful organization that allegedly operates through fear, intimidation, assault, and murder.*fn16 Bellomo is alleged to have been the "acting boss" of the family and other defendants are alleged to be high ranking members.*fn17

Two of the defendants already have been found to be dangers to the community. Bellomo pleaded guilty in 1997 before this Court to two counts of extortion conspiracy*fn18 and received upward departures at sentencing because of his position as acting boss of the Genovese family and his involvement in a conspiracy to commit a Genovese-related murder.*fn19 Balsamo -- allegedly a soldier in the Genovese family who carried messages to and from Bellomo while he was incarcerated*fn20 -- was denied bail on the ground that his release likely would present a danger to the community.*fn21 Furthermore, the charges in the indictment against these and other defendants are quite ...


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