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UNITED STATES v. COFFEY

March 16, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL J. COFFEY, TIMOTHY J. BURNS, JOSEPH DIFRONZO, JOSEPH DUENSER, MICHAEL E. FUSCO, RICHARD A. GELSOMINO, THEODORE M. KOTSOVOS, RICHARD C. LANTINI, ANTHONY J. SANELLO, WILLIAM L. SLABY, BRUCE P. VENTURA, and DAVID L. WUTZEN, Defendants.


PLUNKETT


The opinion of the court was delivered by: PAUL E. PLUNKETT

The seven-count indictment in this case, involving the Outfit and members of an outlaw motorcycle gang, charges the twelve Defendants with a conspiring to manufacture and distribute marihuana. It also charges several of the Defendants with obstruction of justice and intimidation of witnesses. Earlier, the Defendants filed approximately fifty pretrial motions which we resolved in a lengthy Memorandum Opinion and Order, United States v. Coffee, 1993 U.S. Dist. LEXIS 14741, No. 92 CR 203 (N.D. Ill. Oct. 15, 1993), and we have returned to this matter on several occasions since then. See United States v. Ventura, 1993 U.S. Dist. LEXIS 17959, No. 92 CR 203 (N.D. Ill. Nov. 30, 1993); United States v. Burns, No. 92 CR 203 (N.D. Ill. Feb. 3, 1994); United States v. Deunser, No. 93 CR 203 (N.D. Ill. Feb. 14, 1994). Now before us is yet another round of pretrial motions. First is a motion filed by Defendant Gelsomino, and joined by all other Defendants, to dismiss the Indictment in this case. Second is a similar motion filed by Defendant Lantini and joined by Defendant Fusco, accompanied by motions by Lantini for disclosure of grand jury material, identification of the panel members, and for leave to interview grand jurors as well as a motion for an evidentiary hearing. For the reasons stated below, the motions are denied.

 Background

 Before us is an issue that can best be described as the classic tempest in a teapot. Robert Girardi was a member of the Special October 1992-I Grand Jury that indicted this case on July 22, 1993. Unfortunately, Girardi was also a lifelong friend of a target of the grand jury investigation, Defendant Richard Gelsomino. During the early summer of 1993, Girardi began meeting with Gelsomino at area restaurants. At those meetings, Girardi discussed the grand jury proceedings involving Gelsomino and other persons of interest to Gelsomino. Gelsomino took coded notes of this information and shared it with his friend and co-defendant, Richard Lantini, who apparently felt that it was a set up and went to his attorney with the information.

 Eventually, this information was shared with the government and Gelsomino agreed to cooperate in nailing his friend Girardi. Gelsomino turned over the notes he had taken and agreed to continue his meetings with Girardi wearing a wire. Several conversations between Gelsomino and Girardi were recorded with Gelsomino's consent. In those conversations, Girardi disclosed information about the grand jury proceedings, including the identity of witnesses and the content of their testimony.

 The meeting was held in December 1993, in a McDonald's parking lot in the western suburbs. Girardi told the agent that he did not want to get in trouble, but that he "felt good about helping people, especially Italians." The agent offered Girardi $ 1,000 up front to help Girardi buy Christmas presents for his children. Thereafter, Girardi was to receive $ 500 dollars per week as long as the information he provided merited it. The meeting was recorded.

 Soon thereafter, Girardi was arrested. Though he initially denied any wrongdoing, when confronted with the tapes, Girardi quickly admitted talking to Gelsomino. However, he emphatically denied ever approaching any other grand jurors about participating in his scheme. Girardi was indicted on January 20, 1994, for contempt of court, bribery, and obstruction of justice.

 Like bees to honey, this information drew the rapt attention of the defense in this case. Mr. Gelsomino has moved to dismiss the indictment based upon his contacts with Mr. Girardi, arguing that the grand jury was indelibly tainted, and the other Defendants have joined in that motion. In support of his motion, Mr. Gelsomino claims that Girardi told him that three other grand jurors were willing to vote against any indictment naming Gelsomino or Lantini in exchange for $ 10,000 and airfare to Hawaii. Raising the same issue, Defendant Lantini has filed his own barrage of motions.

 Discussion

 Rule 6(e) provides that "[a] grand juror . . . to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury. . . . A knowing violation of Rule 6 may be punished as a contempt of court." Fed. R. Crim. P. 6(e)(2). The Defendants argue that Mr. Girardi's contacts with Gelsomino have so tainted the grand jury proceedings in this case that the Indictment must be dismissed.

 However, "the text of Rule 6(e) contains no hint that a governmental violation of its prescriptions gives rise to a right not to stand trial." Midland Asphalt Corp. v. United States, 489 U.S. 794, 802, 103 L. Ed. 2d 879, 109 S. Ct. 1494 (1989). Rather, Rule 52(a) provides that "any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Fed. R. Crim. P. 52(a). It is clear that Rule 52(a) applies to errors, defects, and irregularities occurring before the grand jury. Bank of Nova Scotia v. United States, 487 U.S. 250, 255, 101 L. Ed. 2d 228, 108 S. Ct. 2369 (1988) (citing United States v. Mechanik, 475 U.S. 66, 71-72, 89 L. Ed. 2d 50, 106 S. Ct. 938 (1986)).

 Applying Rule 52(a) to a claim of irregularities before the grand jury, the Supreme Court recently held that a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants. Bank of Nova Scotia, 487 U.S. at 254. Thus, dismissal of the indictment is only appropriate "'if it is established that the violation substantially influenced the grand jury's decision to indict,' or if there is 'grave doubt' that the decision to indict was free from the substantial influence of such violations." Bank of Nova Scotia, 487 U.S. at 256 (citing Mechanik, 475 U.S. at 78). An exception to this rule applies in cases where "the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair . . . ." Id. at 257. However, that exception has been applied exclusively by the Court in cases where discrimination affected the composition of the grand jury panel. Id. (citations omitted).

 Applying the harmless error standard of Rule 52(a) to the present case, it is clear that the Defendants' motions to dismiss the Indictment must be denied. The facts merely indicate that a single grand juror who had been a lifelong friend of a Defendant leaked information about the proceedings to that Defendant in violation of Rule 6(e). There is no prejudice inherent in such a situation under the facts of the present case. Indeed, how having advance notice that one is about to be indicted constitutes prejudice escapes us. *fn1" ...


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