United States v. Gaggi

Full title: UNITED STATES of America v. Anthony Frank GAGGI, a/k/a “Nino”; Joseph…

Court: United States District Court, S.D. New York

Date published: Mar 10, 1986

Facts

On December 17, 1985, the day after Castellano was killed, I conducted a separate voir dire of each juror. They were asked several questions regarding what, if anything, they had heard or seen about Castellano’s death and whether they believed they could still be fair and impartial as to the remaining defendants. All of the jurors knew of Castellano’s death and basically how it came about. Approximately six of the jurors also had heard something to the effect that Castellano had been the head of organized crime. Without exception, however, none of the jurors had heard anything about the remaining nine defendants or about the trial, other than the fact that Castellano had been a defendant in it. The jurors all stated that they would still be able to decide the case fairly and impartially and that what they had learned about Castellano would in no way affect their ability to judge the other defendants.

Following the voir dire, I requested defense counsel to gather together the transcripts of the T.V. and radio broadcasts that some of the jurors had indicated they had seen or heard. Defense counsel informed me that it would take at least a few days to get this material to me. Accordingly, as it had always been my intention to suspend the trial over Christmas and New Year’s weeks, I adjourned all proceedings until January 6, 1986, at which time I heard arguments on the mistrial motion. In the interim, there were numerous newspaper articles and T.V. and radio reports regarding Castellano’s murder. This publicity included details about the killings and speculation about Castellano’s background and the cause and possible ramifications of his death. The publicity surrounding Castellano’s death did not abate for quite a few days, in part due to the fact that certain law enforcement personnel considered it appropriate to be highly visible and conduct numerous interviews wherein they discussed their various theories for Castellano’s death, and also because the media reported that the Archdiocese of New York denied a Mass. of Christian Burial for Castellano.

At oral argument on January 6, 1986, defense counsel highlighted the following areas of publicity which they considered to be the most prejudicial: (1) references to Castellano’s position as the alleged leader of the Mafia; (2) references to the fact that the defendants in the instant case are to be tried on many other charges in later trials; (3) discussions regarding the costs of organized crime to the community; (4) coverage of the fact that the Catholic Church, through Cardinal John J. O’Connor, assertedly denied a Mass. of Christian Burial for Castellano; (5) allusions to other defendants on trial; (6) references to electronic surveillance in Castellano’s home; and (7) suggestions that Castellano may have been killed because it was feared that he was about to become an informant or that he was going to be found guilty in this trial. As I stated at the January 6, 1986 hearing,  this publicity was clearly harmful. However, that there has been prejudicial publicity regarding an ongoing criminal trial is not the determinative factor when considering whether to declare a mistrial. Rather, it is only the first element of a multi-step procedure that a district judge must follow when deciding a mistrial motion.

Issue

Decision

I denied the defendants’ mistrial motion on January 8, 1986, because I found the jurors in this case to be sincere in their proclamations that their impartiality had been unaffected by the publicity and because I adhered to the Supreme Court’s observation that “[o]ne may not know or altogether understand the imponderables which cause one to think what he thinks, but surely one who is trying as an honest man to live up  to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter.” Dennis v. United States,339 U.S. 162, 17170 S.Ct. 519, 52394 L.Ed. 734 (1950), quoted in Smith v. Phillips,455 U.S. at 217 n. 7, 102 S.Ct. at 946 n. 7.

After the January 8, 1986 denial of defense counsel’s mistrial motion, the publicity regarding this case was minimal through to the time the jury began deliberations on February 13, 1986. On February 17, 1986, however, while the jury was still deliberating, there were radio reports and newspaper articles detailing the circumstances of the apparent suicide of Frederick DiNome, one of the government’s major witnesses during the trial. That same day, I conducted a general inquiry of the jury to determine whether they had been exposed to this publicity to which they indicated that they had not. I went on to emphasize to the jury, as I had done repeatedly throughout the trial, that they were “to avoid at all costs newspapers and radio programs.” Tr. 7306.

Thereafter, over the next few days, there were additional articles in the local newspapers regarding DiNome’s death. During this time, at the jury’s request, the jury was deliberating an average of twelve hours a day, from 10:00 a.m. to 10:00 p.m. They were, without question, one of the most responsible and conscientious groups of people I have ever encountered. Throughout the remainder of their deliberations, I reminded the jury again and again of the importance of avoiding the news in any form. On several occasions, defense counsel requested that because of the publicity about DiNome, I declare a mistrial or conduct an individual voir dire of the jurors. I denied these requests, however, because the jurors had already sufficiently demonstrated their steadfast allegiance to the court and its instructions. I concluded that subjecting the jurors to the “third degree” amid their deliberations was unwarranted and, if anything, would simply fuel speculation that something significant relating to the case had happened and thus only served to distract the jurors from the arduous task already before them.

Perhaps the most significant evidence that the jury had not been affected by any of the publicity generated during the trial was the jury’s verdict and the length of its deliberations. The verdict ran the gamut from fifty-eight findings of guilty to ninety findings of not guilty to being deadlocked on two defendants on one count. The jury deliberated from February 13 through March 5, 1986, and sent out fifty-six notes asking for many hours of testimony to be read back, exhibits, stipulations, and rereadings of the jury charge. After the trial was over, members of the jury were heard to say, inter alia, that Castellano’s death and anything they had heard regarding Castellano did not enter into their deliberations at all and that the defendants could not have had a more fair jury. Although, of course, I cannot personally verify the former statement, as to the latter, in my view, there can be no doubt.

In sum, for the reasons set forth above, all of the defendants’ applications for a mistrial due to prejudicial publicity were denied.

SO ORDERED.

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