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United States v. Gammarano

July 18, 2007

UNITED STATES OF AMERICA
v.
JOHN GAMMARANO AND WILLIAM SCOTTO, DEFENDANTS.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

Defendants John Gammarano and William Scotto were indicted on November 30, 2006*fn1 and charged with one count of racketeering, in violation of 18 U.S.C. § 1962(c),*fn2 one count of racketeering conspiracy, in violation of 18 U.S.C. § 1962(d),*fn3 and one count of securities fraud conspiracy, in violation of Securities and Exchange Commission Rule 10b-5 (17 CFR § 240.10b-5),*fn4 15 U.S.C. § 78j(b),*fn5 15 U.S.C. § 78ff,*fn6 and 18 U.S.C. § 371. Now before this Court are (1) the government's motion for an anonymous and partially sequestered jury; (2) defendant Scotto's motion for severance; and (3) both defendants' motion for production of a bill of particulars.*fn7 For the reasons set forth below, (1) the government's motion for an anonymous and partially sequestered jury is granted; (2) defendant Scotto's motion for severance is denied; and (3) both defendants' motion for production of a bill of particulars is denied.

Background

The following facts are derived from the indictment and from the submissions of the parties in connection with these motions. Disputes are noted.

According to the government, defendants are members of the Gambino crime family*fn8 and between them committed five predicate acts of racketeering between 1982 and 2003 which underlie the three charges in the indictment.*fn9

Racketeering Act One alleged in the indictment has two parts. The first part is defendants' participation, between 1995 and 2003, in a securities fraud conspiracy organized by associates of the Gambino family, in violation of Rule 10b-5. As part of the conspiracy, stock was fraudulently marketed to customers by lying about the real value of the securities and by failing to disclose that the sellers were being paid illegal commissions to sell the stock. Customers who purchased stock were then prevented from selling; when the stock later dropped in value, customers lost their investments. The indictment refers to three overt acts committed in furtherance of this securities fraud conspiracy: (1) between February 2000 and March 2000, undisclosed co-conspirator #1,*fn10 who owned over 100,000 shares of a company called GlobalNet, Inc., paid brokers undisclosed cash commissions to sell shares of GlobalNet stock in order to inflate the value of the stock; (2) in March 2003, Gammarano was paid $5,000 by undisclosed co-conspirator #2,*fn11 which was a portion of the proceeds from a fraudulent securities deal involving an entity known as "Jaguar"; and (3) in June 2003, Gammarano and Scotto attended a meeting at which they discussed with co-conspirator #2 and others a dispute which had arisen among the conspirators regarding the Jaguar deal. The second part of Racketeering Act One alleges defendants' participation in an extortion conspiracy, in violation of 18 U.S.C. § 1951(a) (interference with commerce by threats or violence). According to the indictment, in 1995 Gammarano caused threats of violence to be made to John Fiero, a stockbroker whose purchases and sales of stock were frustrating the goals of the securities fraud conspiracy, by ordering Scotto to threaten violence against Fiero, which Scotto did.

Racketeering Act Two in the indictment alleges that Gammarano participated in an extortion conspiracy in 1995. According to the government, Gammarano demanded that the partners of First Hanover Securities, Inc., pay him money and threatened violence if they did not comply, in violation of 18 U.S.C. § 1951(a). This demand was the culmination of a dispute that one of the First Hanover partners had with another individual who was 'backed' by organized crime figures.

Racketeering Act Three alleges that Scotto attempted to extort John Doe*fn12 in 1994 and then assaulted John Doe after John Doe refused Scotto's demand to pay him money, in violation of 18 U.S.C. § 1951(a). According to the government, a member of the Gambino organization subsequently told John Doe not to tell the truth about the incident.

Racketeering Act Four in the indictment alleges that Gammarano participated in a conspiracy between 1988 and 1991, which extorted money from DeLuxe Homes of Pennsylvania, Inc. with respect to work at three different job sites. The conspiracy was allegedly a joint effort by five organized crime families in New York with Gammarano representing the Gambino family's interests. According to the indictment, DeLuxe's consent to pay money was to be induced through threats of violence, in violation of 18 U.S.C. § 1951(a). In 1995, Gammarano admitted during a guilty plea that he had conspired to extort money from DeLuxe Homes.

Racketeering Act Five in the indictment alleges that Gammarano used extortion to collect on an extension of credit in 1982, when he met with George Foronjy, an individual who was having trouble repaying a debt, and made "veiled threats" regarding his failure to repay the loan, in violation of 18 U.S.C. § 894(a)(1) (collection of extensions of credit by extortionate means). In 1993, Gammarano admitted during a guilty plea that he had met with Foronjy in order to pressure him to make payments on the loan.

Gambino Family's History of Obstruction of Justice

The government cites several cases to demonstrate that the Gambino crime family has frequently engaged in jury and witness tampering.

The first case cited by the government is U.S. v. Gotti, No. 85-CR-0178, in which John Gotti, Jr., the alleged head of the Gambino family, and several co-defendants were tried on racketeering charges. After an anonymous jury was selected, juror George Pape conspired with members of the Gambino family to secure Gotti's acquittal.*fn13 Pape was later convicted of obstruction of justice. See U.S. v. Radonjich, 1 F.3d 117 (2d Cir. 1993).

The government also cites U.S. v. Gotti, No. 02-CR-0606, a multi-defendant case in which two members of the Gambino family were convicted of witness tampering. According to the government, the evidence in that case demonstrated that defendant Anthony Ciccone, a Gambino captain, ordered defendant Primo Cassarino, a soldier in his 'crew', to instruct a witness to take the fifth and refuse to testify before the Grand Jury since his testimony would not have been favorable to Ciccone. According to the government, another witness who testified before the Grand Jury recanted his testimony at trial and explained, after later being indicted for perjury (U.S. v. Molfetta, No. 04-CR-0453), that he had received calls after his Grand Jury testimony from people he believed were associates of the defendants and that he feared for his life.

In U.S. v. Ambrosio, No. 03-CR-0725, a prosecution against Gambino family members on loansharking charges, one of the defendants visited a witnesses, who was a victim of the loansharking activity, and told the witness that, should he be called to testify, he should testify that the loan he received was not from defendants. The witness told the defendant that he understood and subsequently left the country until after the case was resolved.

During the second retrial of Gene Gotti, a Gambino family soldier offered a juror $25,000 to vote for acquittal.*fn14 See U.S. v. Ruggiero, 83-CR-0412. That juror later informed the court that he felt threatened after two men appeared at his house and asked him about his participation in the trial, after which he was dismissed from the jury.*fn15

The government also notes that a defense attorney not involved in this case was indicted in 2005 for helping an alleged Gambino associate engage in threatening and bribing witnesses, both during the Grand Jury phase and at trial. See U.S. v. Bronson, No. 05-CR-0714.*fn16

Defendant Gammarano's History of Jury Tampering

According to the government, defendant Gammarano himself participated in a scheme to influence jurors during the prosecution of Gene Gotti. The first trial in that prosecution resulted in a mistrial after the government learned that Mel Rosenberg, a friend of Gene Gotti, had been tampering with the jury. See U.S. v. Ruggiero, 678 F.Supp 46 (E.D.N.Y. 1988) ("Ruggiero I").*fn17 In that case, Rosenberg called an individual he knew personally and believed to be a juror*fn18 and arranged a meeting. During that meeting, Rosenberg explained that he was a friend of the Gotti family and offered to buy that juror a new car if he would provide insight into the jury's inclinations. The juror refused the offer. According to the government, Rosenberg called Gammarano and reported on the failed bribe and Gammarano later helped Rosenberg find legal representation when he was served with a Grand Jury subpoena. According to the government, taped conversations that took place after Gene Gotti was convicted confirm Gammarano's involvement. Specifically, in December 1989, John Gotti told Frank Locascio that "[Johnny G.]'s one of the reasons Genie's in jail," which the government says is a reference to the failed bribe.*fn19 Defendant Gammarano says that he was involved in no such attempt to bribe a juror, noting that Gammarano himself was never charged with any wrongdoing and that the comment by John Gotti is taken out of context and cannot be credited as evidence of Gammarano's involvement. In addition, defendant points out that the only established connection between Gammarano and Rosenberg is that they share an attorney, who Gammarano supposedly referred to Rosenberg. Defendant further notes that Rosenberg was acquitted at trial.

According to the government, Gammarano has also demonstrated his disregard of the judicial process by violating the terms of his supervised release*fn20 when he made false statements to the Probation Department about his employment status and income in early 2000, resulting in the revocation of his supervised release.*fn21 See U.S. v. Gammarano, No. 93-CR-0506.

Discussion

I. Anonymous and Partially ...


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