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Gotti v. United States

April 15, 2009


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge


Peter Gotti ("Petitioner") petitions this Court, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. Petitioner claims that (1) the Government impermissibly suppressed favorable evidence that was material to the jury's finding of guilt; (2) the trial judge inadequately investigated a juror's attempt to recant his vote of guilty after the verdict was rendered; and (3) the holding in the United States Supreme Court's recent decision in United States v. Santos, 128 S.Ct. 2020 (2008), has invalidated a previous conviction that formed the basis of the jury's verdict and the Court's sentence. For the reasons that follow, the petition is denied.


At Petitioner's trial, the Government's evidence included extensive proof of the nature and structure of the Gambino Organized Crime Family, a project of the FBI at least since Robert Kennedy was Attorney General.The Gambino Familyhad been headed by Petitioner's brother, John Gotti Sr., until the latter was convicted and imprisoned, in part through the testimony of the former Family Underboss Salvatore Gravano. At the trial of the Petitioner, several othermembers of the Gambino Family also cooperated and testified for the Government. Their testimony, among other things, establishedthatafter the conviction of John Gotti Sr., the family and its criminal endeavorswas directedby a Ruling Panel. The panelincluded Petitioner, who shortly assumed the role of Acting Boss.

The cooperators further testified thatwhen Petitioner visited John Gotti Sr. in prison in 1996, the latter urged his brother to kill Gravano, andcomplained that Gravano's testimony had crippled the family and was"a bill that's gotta be paid." Petitioner orderedtwo family members -- Thomas Carbonaro and Eddie Garafola -- to kill Gravano, whose location had been disclosed in a newspaper article. Over the course of several months, Petitioner provided approximately $70,000 for elaborate preparations for the murder, including surveillance, travel to Arizona, assumption of disguises, and equipment expenses. However, before the two would-be assassins could complete their assignment, their plan was foiled when Arizona police arrested Gravano and charged him withdistribution of a controlled substance. At Petitioner's trial, the Government substantiated the plot to murder Gravano with hotel receipts, false identification documents, surveillance, and travel manifests related to the two would-be assassins' numerous "stake-out" missions to Arizona.

At Petitioner's trial, FBI Special Agent Bruce Mouw, who oversaw Gravano's protective detention in Arizona, testified about Gambino Family personnel and activities. Mouw testified to the existence of a criminal enterprise.He identified individuals, described FBI procedures, and authenticated union records. Petitioner later learned that, as a part of its drug investigation into Gravano's drug distribution, the Phoenix police had recorded conversations between Mouw and Gravano (the "Mouw-Gravano tapes"). In these recordings, Mouw informed Gravano about Bosco Radonjich, a leader of another criminal organization. Gravano reciprocated by informing Mouw about the FBI's investigation of their prior conversations. Gravano stated that they "better get our stories straight." However, these recordings, which Petitioner now claims contained exculpatory evidence, were not introduced at Petitioner's trial, nor were they turned over as Brady material as Petitioner urges was appropriate. The Government opines that whilethe existence of the Phoenix police department's wiretaps had appeared in the media and was therefore knownto the public, none of theAssistant United States Attorneys or FBI agents that worked on Petitioner's case possessed the recordings at the time of trial. Affidavit of Elie Honig ("Honig Aff.") at ¶ 6.

In addition to the testimony surrounding the plot to kill Gravano orchestrated by the Petitioner, two members of the Gambino Family testified that Petitioner was a member of the Construction Panel, which was made up of ranking Gambino family members and allowed its members toextort money and "cushy" no-work jobs from construction companies,andallowed construction companies to hire non-union workers and pay non-union wageswithout trouble from the unions. The Gambino Family witnesses testified that the Construction Panel extorted tens of millions of dollars in this manner. The witnesses further testified to Petitioner's personal participationandextortioninthe construction industry through his role on the Panel.

Petitioner was convicted of racketeering, conspiracy to racketeer, conspiracy to murder, and extortion and was sentenced to 25 years in prison, 3 years of supervised release, and a$400 special assessment. On the day after the jury convicted Petitioner, but before the Court passedsentence, Petitioner claimed that one juror, "Juror Seven," attempted to recant his guilty verdict. Judge Casey, who presided over the trial, interviewed the juror in the presence of the attorneys, but determined that an evidentiary hearing was not necessary. No further inquiry was conducted regarding Juror Seven's alleged attempt to recant.

Following his conviction, Gotti appealed to the Court of Appeals for the Second Circuit, in which he raised numerous arguments, including challenges to the receipt in evidence of uncharged crimes, expert testimony, and recordings of jailhouse conversations; challenges to the constitutionality and reasonableness of his sentence; and challenges relating to the venue of the prosecutions and to the allegedly ineffective assistance of his counsel. See United States v. Matera, 489 F.3d 115, 118-25 (2d Cir. 2007). On May 30, 2007, the Second Circuit denied all of Petitioner's claims and affirmed the judgment of the District Court. Id. Subsequently, the United States Supreme Court denied hispetitionfor certiorari. Matera v. United States, 128 S.Ct. 424 (2007).


The court will grant a petition for habeas corpus under 28 U.S.C. § 2255, only if (1) the Petitioner's sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; or (3) the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. See Woodard v. United States, No. 04 Civ. 9695,2005 U.S. Dist. LEXIS 26802, at *6 (S.D.N.Y. Nov. 8, 2005) (citing Johnson v. United States, 313 F.3d 815, 817 (2d Cir. 2002)); see also United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) ("[A] collateral attack on a final judgment in a federal criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes 'a fundamental defect which inherently results in a complete miscarriage of justice'") (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). On a petition for habeas corpus, the petitioner bears the burden to prove his allegations by a preponderance of the evidence. Whitaker v. Meachum, 123 F.3d 714, 716 (2d Cir. 1997) (citing, inter alia, Walker v. Johnston, 312 U.S. 275, 286 (1941)); see also United States v. Frady, 456 U.S. 152, 166 (1982), reh'g denied, 456 U.S. 1001 ("We reaffirm the well-settled principle that to obtain collateral relief [under § 2255] a prisoner must clear a significantly higher hurdle than would exist on direct appeal.").


A. Each of Petitioner's Claims is Procedurally Barred

As noted above, Petitioner raises three distinct grounds ascollateral challenges to his sentence: (1) failure to produceallegedly exculpatory information in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) failure to conduct an evidentiary hearing following a juror's attempted recantation of a vote of guilty; and (3) the violation by the Government of ...

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