Defendants Gaggi, LaFroscia, Ustica, Turekian and Rendini appeal their judgments of conviction for conspiracy in violation of 18 U.S.C. § 371 entered in the United States District Court for the Southern District of New York (Duffy, J.) on April 9 and 11, 1986. Defendants Borelli, Ustica and Rendini appeal their convictions entered that same day under 18 U.S.C. § 2314 for transporting stolen property in interstate and foreign commerce. Defendants Ustica and Borelli similarly appeal their 18 U.S.C. § 241 convictions; and defendant Turekian appeals his 18 U.S.C. § 1341 conviction. Affirmed in part; reversed in part.
Before: CARDAMONE and PIERCE, Circuit Judges, and BONSAL, District Judge.*fn*
CARDAMONE, Circuit Judge:
This appeal presents a trial record of a malevolent group of defendants, in the accomplishment of whose violent conspiracies no one was suffered to standin the way. The problems raised by their trial are varied and complex, not merely on account on the number of those accused, but because two events-one unexpected, one designed-complicated the proceedings immeasurably. Unanticipated was the murder of defendant Paul Castellano on the streets of New York City, during the trial. The planned action was the government's decision to indict two defendants for conspiracy to murder two "persons" under a statute originally enacted in 1870 to protect citizens from discrimination. Although there is no charge that constancy be Congress' guiding star, it has for over 115 years steadfastly resisted all attempts to change the meaning of the word "citizen".
Defendants Anthony Gaggi, Henry Borelli, Peter LeFroscia, Ronald Ustica, Ronald Turekian and Edward Rendini appeal their judgments of conviction entered in the United States District Court for the Southern District of New York (Duffy, J.) on April 9 and 11, 1986, after a five and one-half month jury trial. On October 4, 1984, the government filed a 78 count indictment naming 24 defendants and alleging 11 different conspiracies. On September 9, 1985, Judge Duffy severed the indictment for the separate trials.*fn1 The trial at issue on this appeal comprises 23 counts of the original indictment relating to the defendants' stolen car ring involving ten individuals, six of whom are the defendants presently before us.*fn2
The six defendants were variously charged with and convicted of one or more violations of 18 U.S.C. §§ 241, 371, 1341 and 2314. Section 371 makes illegal a conspiracy to transport stolen property in interstate and foreign commerce, and § 2314 proscribes the substantive crime of actually transporting such property. Section 241 makes it a crime to deprive any citizen of any right or privilege guaranteed by the Constitution or laws of the United States. Finally, § 1341 proscribes frauds perpetrated through the use of the United States.
The defendants, the various crimes with which they were charged, and the dispositions of the charges are as follows. The conspiracy under § 371 charged defendants with combining to ship late-model automobiles stolen on the streets of New York to Kuwait and other parts of the Middle East, Puerto Rico and other states in the United States. Gaggi, Ustica, LaFroscia, Rendini and Turekian were convicted of this conspiracy. Ustica, Borelli and Rendini were also convicted on a number of § 2314 counts; while Gaggi, LaFroscia and Turekian were acquitted on these counts. Borelli and Ustica were additionally convicted of conspiracy to deny citizens their civil rights in violation of § 241 for the murders of Ronald Falcaro and Khaled Fahd Darwish Daoud. Finally, Turekian was convicted of mail fraud in violation of § 1341 for submitting fraudulent claims to Aetna Insurance Company. An appendix included at the end of the opinion shows the charges for which each defendant was indicted, whether the charge resulted in a conviction or an acquittal; and the sentence imposed.
Two of the six issues raised have already been alluded to-the effect of publicity generated by a murder during trial and the conspiracy to commit murder. For organizational purposes the issues raised by appellants will be discussed in the following order: (I) publicity during trial, (II) civil rights murder conspiracy, (III) government's claimed misconduct under Brady and Mooney, (IV) evidentiary contentions, (V) jury instructions, and (VI) sentences.
I. The Publicity During Trial
Two deaths occurred at different time during this lengthy trial prompting motions for mistrial, which were denied on each occasion. Appellants argue that the continued impartiality of the jury was destroyed by these events, and they urge further that the measures taken by the district court were inadequate to protect their rights to a fair trial.
It is not an uncommon occurrence for a notorious trial held in Metropolitan New York to engender extensive publicity. The strong public interest in such trials has resulted in procedures to protect defendants' rights to a fair trial. In United States v. Lord, 565 F.2d 831 (2d Cir. 1977), we established guidelines for a district court to follow when the problem of widely disseminated publicity may prejudicially impact an ongoing criminal trial. The simple three-step process is, first, to determine whether the coverage has a potential for unfair prejudice, second, to canvass the jury to find out if they have learned of the potentially prejudicial publicity and, third, to examine individually exposed jurors-outside the presence of the other jurors-to ascertain how much they know of the distracting publicity and what effect, if any, it has had on that juror's ability to decide the case fairly. Id. at 838-39. Ultimately, the trial judge must examine the "'special facts" of each case, United States v. Persico, 425 F.2d 1375, 1382 (2d Cir.), cert. denied, 400 U.S. 869, 91 S. CT. 102, 27 L. ED. 2D 108, (1970) (quoting Marshall v. United States, 360 U.S. 310, 312, 3 L. Ed. 2d 1250, 79 S. Ct. 1171 (1959)(per curiam)), to determine whether the jurors remained impartial. United States v. Gigante, 729 F.2d 78, 82 (2d Cir.), cert. denied, 467 U.S. 1206, 81 L. Ed. 2d 348, 104 S. Ct. 2390 (1984). Absent a clear abuse of the trial court's discretion, its finding that the jury was impartial should be upheld. United States v. Moon, 718 F.2d 1210, 1219 (2d Cir. 1983), cert. denied, 466 U.S. 971, 80 L. Ed. 2d 817, 104 S. Ct. 2343 (1984); see Marshall, 360 U.S. at 312 (trial judge has large discretion in ruling on the issue of prejudice resulting from publicity). With these standards in mind, we turn to the events that occurred during trial and the safeguards taken by the district court.
A. The Murder of Paul Castellano
On December 16, 1985 two and one-half months into the trial, Paul Castellano-the lead-named defendant in the indictment and one of the named defendants on trial-was gunned down and killed in mid-town Manhattan while out on bail. Almost immediately news of the murder appeared in virtually every newspaper, radio, and television report in New York City. Two leading newspaper reported the incident, for example, as Mafia's Number One Blown Away, N.Y. Post, Dec. 17, 1985 at 2 and Organized-Crime Chief Shot Dead Stepping From Car on E. 46th St., N.Y. Times, Dec. 17, 1985 at Al, col.2. the reports of this killing and subsequent investigation did not subside for several weeks. Appellants contend, as they did below, that the jury's exposure to the concededly broad media coverage of this event required a mistrial.
The day after Castellano's death Judge Duffy conducted a separate voir dire of each juror, asking a number of questions regarding what, if anything, the jury had heard or seen about the murder. All of the jurors knew of it, and approximately six also had heard that Castellano had been a head of an organized crime family. None had heard any comments regarding the nine remaining defendants or about the trial, except that Castellano was a defendant before them. All of the jurors stated that they would be able to decide the case fairly and impartially. United States v. Gaggi, 632 F. Supp. 1019, 1020-21 (S.D.N.Y. 1986).
Following arguments heard January 6, 1986, on defendants' motion for mistrial, Judge Duffy found that the publicity had "a potential for unfair prejudice," and therefore conducted a second individual voir dire of each juror, including questions suggested by defense counsel. Id. at 1021-22. The trial court concluded that the publicity was collateral in nature, and specifically found that none of the jurors had heard or read anything concerning the remaining defendants. All of the jurors stated unequivocally that their judgment would not be affected by the media reports and that their judgment would not be affected by the media reports and that they could decide the case solely on the evidence presented. Id. at 1022-23. As a result, the court ruled-based in part on the jurors' responses and in part on its own assessment of the jurors' awareness of their responsibilities and obligations-that the jury had not been prejudiced by the media reports.
The record thus reveals that the trial court complied in every respect with this Circuit's guidelines. For instance, in Lord, we held that the district court should not rely solely on repetitive admonitions when widespread publicity created a strong possibility that some jurors might have been exposed to prejudicial publicity. 565 F.2d at 838. In contrast, the district court here took prompt and effective corrective action. Once it saw "a potential for unfair prejudice," it held, not but two, voir dires of each juror outside the presence of other jurors, to determine the extent of the juror's exposure to the reports and its effect on his or her attitude toward the remaining defendants. Under these circumstances, the measures taken by the district court were adequate to insure a fair trial.
Nevertheless, appellants, relying on Marshall v. United States, 360 U.S. 310, 3 L. Ed. 2d 1250, 79 S. Ct. 1171 (1959) (per curiam) and its progeny, insist that given the scope and intensity of the media coverage and despite the precautions taken, nothing short of a mistrial could have preserved their fair trial rights. Appellants stress in particular that the district court had been especially careful throughout the trial to avoid the introduction of references to the "Mafia", "Gambino family" and "organized crime". That precaution was shattered, appellants contend, by the jurors' exposure to those references in the media reports following Castellano's murder. We cannot agree.
It is the impartiality of the jurors-not the quantum of publicity-that determines whether the trial proceedings may be fairly conducted. Dobbert v. Florida, 432 U.S. 282, 303, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977). Further, while appellants correctly observe that the jurors were exposed to references that Judge Duffy had properly sought to avoid, they fail to demonstrate how these concerns were not ameliorated by the two individual voir dires. As the Supreme Court has cautioned, "the Constitution 'does not require a new trial every time a juror has been placed in a potentially compromising situation.'" Rushen v. Spain, 464 U.S. 114, 118, 78 L. Ed. 2d 267, 104 S. Ct. 453 (1983)(per curiam) (quoting Smith v. Phillips, 455 U.S. 209, 217, 71 L. Ed. 2d 78, 102 S. Ct. 940 (1982)); see United States v. Williams, 568 F.2d 464, 470 (5th Cir. 1978)("Obviously, reversal is not required in every case in which a news story containing facts inadmissible in evidence reaches the jury.").
Marshall is inapposite. There the Supreme Court held that the jurors' exposure to media coverage regarding the defendant's own prior criminal conviction, which the trial court had ruled was inadmissible because of its prejudicial effect, mandated a new trial despite assurances by the jurors that they would not be influenced by the information. 360 U.S. at 312-13. Years later, the Supreme Court restated the Marshall rationale as: "persons who have learned from news sources of a defendant's prior criminal record are presumed to be prejudiced." Murphy v. Florida, 421 U.S. 794, 798, 44 L. Ed. 2d 589, 95 S. Ct. 2031 (1975). Here the district court made a clear finding that not a single juror had been exposed to information regarding the remaining defendants, and that the publicity therefore was collateral in nature. On that basis it concluded that the jurors were capable of deciding the issues before them fairly and impartially. Appellants' counsel conceded at oral argument that the publicity generated by the Castellano murder did not relate directly to the issues at stake in the ongoing trial. In contrast with Marshall, the publicity in the instant case did not relate to the remaining defendants' guilt with respect to the charges against them. The trial court took prompt action to determine the effect of that publicity and gave the jury repeated cautionary instructions. See Gigante, 729 F.2d at 82. Because the trial court is in a much better position to assess the partiality of a juror, it is inappropriate for an assess the partiality of a juror, it is inappropriate for an appellate court to court to second-guess that face to face appraisal.
B. The Death of Frederick DiNome
On February 17, 1986, about two months after Castellano's death-after the trial had been concluded and while the jury was deliberating-there were news reports detailing the apparent suicide of Frederick DiNome, one of the government's major witnesses who had testified earlier in the trial. As a result, defense counsel again moved for a mistrial or, alternatively, an individual voir dire of the jurors. The district court denied these applications and conducted instead a general inquiry of the jury. In response to the question whether any of them had seen a newspaper that day, the jurors responded by shaking their heads "no". The court then emphasized repeatedly that they were to avoid media reports "at all costs." The trial judge believed that a deeper inquiry would only "fuel speculation" and "district the jurors" from their deliberations. 632 F. Supp at 1024.
Appellants now argue that the district court abused its discretion by not examining each juror individually. In support of this argument they mistakenly rely upon cases in which actual exposure to demonstrated prejudicial publicity required the district court to conduct an individualized voir dire of the jury. See, e.g., United States v. Betner, 489 F.2d 116, 118 (5th Cir. 1974). United States v. Rattenni, 480 F.2d 195, 197 (2d Cir. 1973); United States ex rel. Owen v. McMann, 435 F.2d 813, 815 (2d Cir. 1970), cert. denied, 402 U.S. 906, 91 S. Ct. 1373, 28 L. Ed. 2d 646 (1971); United States v. Kum Seng Seo, 300 F.2d 623, 624 (3d Cir. 1962); Coppedge v. United States, 106 U.S. App. D.C. 275, 272 F.2d 504, 507-08 (D.C. Cir. 1959), cert. denied, 368 U.S. 855, 82 S. Ct. 92, 7 L. Ed. 2d 52 (1961); United States v. Titsworth, 422 F. Supp. 587, 589-90 (D. Neb. 1976). Yet, appellants also point to Lord where only a "strong possibility" of exposure existed, 565 F.2d at 838, and where we noted that in such cases something more than mere admonitions was required. Id. Here, the district court did "something more". It conducted a general inquiry satisfying itself that no actual jury exposure to prejudicial information had occurred. Thus, under our three-step process an individualized voir dire was unnecessary.
Moreover, we agree with the district court, 632 F. Supp. at 1024, that the jury's ability to render an impartial verdict is confirmed by the care which it took in its deliberations. See United States v. Aiello, 771 F.2d 621, 631 (2d Cir. 1985); Gigante, 729 F.2d at 82. Deliberations continued from February 13 through March 5, 1986. The jury made 56 requests asking for rereadings of testimony, exhibits, stipulations, and instructions. Its verdict "ran the gamut" with 58 findings of guilty, 90 findings of not guilty, and a deadlock on two defendants on one count. 632 F. Supp. at 1024. Such a record reveals both an impartial and meticulous jury. Hence, we see no reason to disturb the district court's discretion in refusing to make more than a general inquiry regarding DiNome's death.
II The Civil Rights Conspiracy
Appellants Borelli and Ustica were convicted under 18 U.S.C. § 241 (1982) of conspiracy to deprive Ronald Falcaro and Khaled Fahd Darwish Daoud of the right to be federal witnesses. The jury found that the conspiracy caused the death of both men. Appellants claim that § 241 applies only to conspiracies to deny citizens their constitutional rights, and that Falcaro and Daoud were not proven to be citizens beyond a reasonable doubt. Consequently, they maintain that there is insufficient evidence as a matter of law to sustain their convictions. The government responds that the district court properly ruled that this statute does not limit its protection to citizens. For the reasons that follow, we conclude that United States citizenship is a necessary element under § 241.
"Federal crimes, of course, 'are solely creatures of statute" Dowling v. United States, 473 U.S. 207, 105 S. Ct. 3127, 3131, 87 L. Ed. 2d 152 (1985), (quoting Liparota v. United States, 471 U.S. 419, 424, 105 S. Ct. 2084, 2087, 85 L. Ed. 2d 434 (1985)). For this reason, when analyzing the range of a federal criminal statute close heed must be paid to its language, construction, legislative history, and purpose in order to determine the scope of conduct the enactment forbids. The best starting point for examination of § 241 is-as that familiar canon of statutory construction instructs-the language of the statute itself. Landreth Timber Co. v. Landreth, 471 U.S. 681, 105 S. Ct. 2297, 2301, 85 L. Ed. 2d 692 (1985); Watt v. Alaska, 451 U.S. 259, 265, 68 L. Ed. 2d 80, 101 S. Ct. 1673 (1981). "Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980).
Entitled "Conspiracy against rights of citizens", § 241 makes it unlawful for "two or more persons [to] conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States ...." 18 U.S.C. § 241 (1982) (emphasis added). The statute specifically protects "citizens" against interference with their constitutional or federal statutory rights. Its language does not address harm aimed at "persons", "inhabitants", "residents", or "domiciles". When called upon to construe this statute, the Supreme Court stated that "§ 241 must be read as it is written." United States v. Price, 383 U.S. 787, 798, 16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966). As a matter of common usage the term "citizen" is properly understood as a native of naturalized person who owes allegiance to a government and who is entitled to reciprocal protection from it. Thus, "following the axiom that words used in a statute are to be given their ordinary meaning," Burns v. Alcala, 420 U.S. 575, 580-81, 43 L. Ed. 2d 469, 95 S. Ct. 1180 (1975), (citing Minor v. Mechanics Bank, 26 U.S. 46, 63, 1 Peters 46, 64, 7 L. Ed. 47 (1828)), § 241 is plainly limited by its language to redressing conspiracies against citizens.
B. Judicial Construction of § 241
As the Supreme Court has observed, inquiry into the proper constitution of a statute does not necessarily end after ascertaining the plain meaning drawn from the face of the statute. Watt v. Alaska, 451 U.S. at 266; Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 10, 48 L. Ed. 2d 434, 96 S. Ct. 1938 (1976). An examination of the caselaw construing § 241 is also appropriate.
A century ago, the Supreme Court answered the precise question before us today. In Baldwin v. Franks, 120 U.S. 678, 30 L. Ed. 766, 7 S. Ct. 656 (1887), the Court had before it a charge under § 241's identical predecessor statute based on a conspiracy to drive certain Chinese aliens from their California residence. Because the conspiracy was aimed at "alien" victims, the question arose: Who are the citizens of the United States to which the statute refers? The Supreme Court concluded: "it is everywhere apparent that Congress had it in mind to legislate for citizens, as citizens, and not as mere persons, residents or inhabitants." Id at 691. See also Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 661-62 n.36, 60 L. Ed. 2d 508, 99 S. Ct. 1905 (1979) (White, J. concurring) (discussing Baldwin); United States v. Williams 341 U.S. 70, 81 n.7, 95 L. Ed. 758, 71 S. Ct. 581 (1951) (Frankfurter, J.)(reiterating the holding of Baldwin). The Baldwin court further explained:
This section is highly penal in its character, .... it is, therefore, to be construed strictly; .... doubtful words are not to be extended beyond their natural meaning in the connection in which they are used.
Here the doubtful word is "citizen", and it is used in connection with the rights and privileges pertaining to a man as a citizen, and not as a person only or an inhabitant.... For these reasons we are satisfied that the word citizen, as used in this statute, must be given the same meaning it has in the Fourteenth Amendment of the Constitution, and that to constitute the offense which is there provided for, the wrong must be done to one is a citizen in that sense.
120 U.S. 691-92, 7 S. Ct. 656, 30 L. Ed. 766.
Thus, the Supreme Court believed that since § 241 had been enacted in the wake of the Fourteenth and Fifteenth Amendments, it must be interpreted consistently with those Amendments. Section 1 of the Fourteenth Amendment defines "citizen" as "all persons born or naturalized in the United States". U.S. Const. amend. XIV, § 1. Reading the Fourteenth Amendment alongside Baldwin, we are persuaded that Congress meant to ...