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United States of America v. Vincent Basciano

January 19, 2011

UNITED STATES OF AMERICA
v.
VINCENT BASCIANO, DEFENDANT.



The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.

MEMORANDUM & ORDER

The Government moves for an order to empanel an anonymous and partially sequestered jury. (Gov‟t‟s Mem. in Support of the Gov‟t‟s Motion for an Anonymous and Partially Sequestered Jury ("Gov‟t Mem.") (Docket Entry # 1016).) Defendant Vincent Basciano ("Basciano") objects to this motion in its entirety. (Def.‟s Mem. in Opp. to Gov‟t‟s Motion for an Anonymous and Partially Sequestered Jury (Def. Opp.) (Docket Entry # 1021).) In a separate motion, Basciano moves for counsel to be permitted to "question jurors individually in a sequestered setting." (Def.‟s Mem. in Support of Def.‟s Motion that the Court Follow Certain Methods and Means in Conducting Voir Dire ("Def. Voir Dire Mem.") (Docket Entry # 1020) at 22.) The court grants the Government‟s motion and denies Defendant‟s motion as set forth below.

I. BACKGROUND

The court assumes familiarity with the background facts set forth in the Court‟s omnibus pretrial order of January 12, 2011. ("Pretrial Order" (Docket Entry # 1018) at 1-5.) As the court stated in that opinion, the current criminal action is referred to in this opinion as "Basciano II." United States v. Basciano, 05-CR-060 (NGG) (E.D.N.Y.). Basciano was also a defendant in an earlier criminal action before this court ("Basciano I"), which is relevant to this opinion. United States v. Basciano, No. 03-CR-929 (NGG) (E.D.N.Y.). Following the return of the Eleventh Superseding Indictment ("S-11 Indictment") (Docket Entry # 1022) on January 13, 2011, Basciano is no longer charged with conspiring to murder Patrick DeFillipo. (See Pretrial Order at 4.) Consequently, Basciano is now charged in Counts One and Two of the S-11 Indictment with allegedly conspiring to murder and murdering Randolph Pizzolo in aid of racketeering in violation of 18 U.S.C. § 1959(a) and in Count Three with knowingly and intentionally possessing a firearm in relation to the crimes of violence charged in Counts One and Two, in violation of 18 U.S.C. § 924(c). (S-11 Indictment ¶¶ 21-26.)

The Government moves to empanel an anonymous and partially sequestered jury, requesting that "(1) the identities of all prospective jurors - including names, addresses, and places of employment - not be revealed to either the parties or their attorneys; and (2) from the time each juror is empanelled until the conclusion of the trial, the jurors be escorted by representatives of the United States Marshals Service to and from the courthouse each day and at all times during recesses." (Gov‟t Mem. at 1.)

The Government argues that an anonymous and partially sequestered jury is necessary in this case and is supported by at least five separate concerns. (Gov‟t Mem at 17.) First, Basciano is already sentenced to life in prison and now faces the death penalty, "create[ing] significant incentives to threaten jurors." (Id. at 17-18.) Second, the evidence at trial will expose the jury to allegations that defendant was acting boss of the Bonanno crime family and will "depict a pattern of violence by the defendant and his associates such as would cause a juror to reasonably fear for his own safety." (Id. at 18.) Third, members and associates of the Bonanno crime family, in general, have the "ability to tamper with the jury and witnesses on behalf of Basciano, and may choose to do so due to Basciano‟s status as an influential member of the Bonanno family or for pecuniary gain," and the Government represents that it will introduce evidence that, after his arrest, Basciano continued to send "messages from prison to members and associates of the Bonanno family regarding the maintenance and ongoing operation of the Bonanno family." (Id. at 18-20.) Fourth, the Government alleges that Basciano has "previously engaged in violence and other acts in an effort to obstruct justice" that were set forth in the Government‟s motion for an anonymous and sequestered jury in Basciano I. (Id. at 20-21.) Fifth, there has already been substantial media attention in this case, which is likely to continue, and "the expectation of publicity is a legitimate basis for empanelling an anonymous jury because such publicity can "enhance the possibility that jurors‟ names could become public and thus expose them to intimidation by a defendant‟s friends or enemies, or harassment by the public." (Id. at 20.)

The Government also points to the fact that this court granted the Government‟s motion for an anonymous and partially sequestered jury in Basciano‟s previous two trials in Basciano I. (Id. at 4.) In Basciano I, the Government made allegations that Basciano had attempted to obstruct justice both in the aftermath of his attempted murder of David Nunez and that "Basciano sought permission to murder family members of cooperating witnesses who testified at the 2004 trial of Bonanno family boss Joseph Massino." (Basciano I, Order of Nov. 17, 2005 (Docket Entry # 354) at 3.) The court found that Basciano had "a history of obstruction of justice, that the trial evidence will depict a pattern of violence that could cause a juror to reasonably fear for his or her own safety, and that media attention may jeopardize the jurors‟ privacy. As a result, the public interest in a fair trial will be best served by empanelling an anonymous and partially sequestered jury." (Id. at 3.)

In response, Basciano argues generally that "[e]mpaneling an anonymous jury in this case would be to impose a procedure recognized to endanger the presumption of innocence and deny Basciano a fair trial guaranteed by the United States Constitution." (Def. Opp. at 2.) Defendant argues that "[t]he invocation of words such as "organized crime,‟ "mob,‟ and "the Mafia,‟ unless there is something more, does not warrant an anonymous jury." (Id. (quoting United States v. Vario, 943 F.2d 236, 241 (2d Cir. 1991).) Basciano points to the fact that much of the obstruction of justice by the Bonanno crime family that is cited by the Government was committed by members of the Bonanno crime family, other than Basciano; however, Basciano does little to address why the specific facts of his case do not justify ordering an anonymous and partially sequestered jury. Basciano also argues that an anonymous jury should not be ordered because 18 U.S.C. § 3432 requires a person charged with a capital offense be provided, at least three entire days before commencement of trial . . . with a copy of the indictment and a list of the veniremen, and of the witnesses to be produced on the trial for proving the indictment, stating the place of abode of each venireman and witness, except that such list of the veniremen and witnesses need not be furnished if the court finds by a preponderance of the evidence that providing the list may jeopardize the life or safety of any person. (See Def. Opp. at 2 (quoting 18 U.S.C. § 3432).)

II. DISCUSSION

A. Applicable Law

It is well settled that "when genuinely called for and when properly used, anonymous juries do not infringe a defendant‟s constitutional rights." United States v. Quinones, 511 F.3d 289, 295 (2d Cir. 2007) (citation and internal quotation marks omitted). An anonymous jury may be empanelled 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." United States v. Gotti, 459 F.3d 296, 345 (2d Cir. 2006) (citation omitted). In reaching its conclusion, a district court must "balance the defendant‟s interest in conducting meaningful voir dire and in maintaining the presumption of innocence, against the jury‟s interest in remaining free from real or threatened violence and the public interest in having the jury render a fair and impartial verdict." Quinones, 511 F.3d at 295 (internal citation omitted).

The Second Circuit has identified certain factors for the court to consider in this balancing, including (1) the dangerousness of the defendant as demonstrated by the seriousness of the charged crimes, the defendant‟s criminal history, and whether the defendant or his associates have engaged in past attempts to interfere with the judicial process, for example through jury tampering and threatening or killing witnesses, that would demonstrate a willingness to commit such acts in the present case, see e.g., Thai, 29 F.3d at 801; Paccione, 949 F.2d at 1192; (2) whether the defendant has access to means to harm the jury, see e.g., United States v. Melendez, 743 F. Supp. 134, 137 (E.D.N.Y. 1990); and (3) whether the trial is likely to attract media attention, as may be illustrated by the nature and degree of pretrial publicity, see e.g., Paccione, 949 F. 2d at 1192; United States v. Vario, 943 F.2d 236, 240 (2d Cir. 1991). The decision whether or not to empanel an anonymous and partially sequestered jury is left to the district court‟s discretion. See Quinones, 511 F.3d at 295.

As the Second Circuit in Vario held,

The invocation of the words "organized crime," "mob," or "Mafia," unless there is something more, does not warrant an anonymous jury. This "something more" can be a demonstrable history or likelihood of obstruction of justice on the part of the defendant or others acting on his behalf or a showing that trial evidence will depict a pattern of violence by the defendant[] and his associates such as would cause a juror to reasonably fear for his own safety. Such proof would be sufficient in and of itself in an appropriate case to ...


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