United States v. Mauro

Citations: 846 F. Supp. 245; 1994 U.S. Dist. LEXIS 2258; 1994 WL 62823Docket: 1:92-cr-00015

Court: District Court, W.D. New York; February 23, 1994; Federal District Court

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Defendant Ben Rogers filed a pre-trial motion to suppress evidence obtained through his testimony, which was given under a grant of use and derivative-use immunity as per 18 U.S.C. § 6002. He argued that such evidence should be inadmissible based on the principles established in Kastigar v. United States, which protects against the use of immunized testimony in prosecutions. The government countered that its evidence was derived from legitimate independent sources unrelated to Rogers' immunized testimony.

Supporting his motion, Rogers submitted various documents, including a Motion in Limine and a Memorandum of Authorities. In response, the government filed a series of documents, including a motion for a Kastigar hearing. A hearing took place on February 8, 1994, where the government presented its case through Assistant U.S. Attorney Martin J. Littlefield, who called witnesses to testify, including FBI Agent Dean G. Naum.

During the hearing, the government introduced multiple exhibits, such as Rogers' previous immunized grand jury testimony, a transcript of his trial testimony against Nicholas Mauro, and several wiretap applications. Although the government did not provide a witness list for the upcoming trial, it was included as an exhibit in an affidavit submitted by Littlefield.

After reviewing the evidence and hearing testimonies, the Court denied Rogers' motion to suppress, indicating that the government had established legitimate independent sources for its evidence against him. The background included a 1982 federal grand jury investigation leading to an indictment against Mauro for tax fraud and conspiracy-related charges.

On July 9, 1984, defendant Rogers testified about sports gambling and his relationship with Nicholas Mauro during Mauro's trial, under a court-ordered grant of immunity as per 18 U.S.C. § 6002. Assistant U.S. Attorney Anthony M. Bruce presented Rogers' testimony to the grand jury and represented the government at Mauro's trial, where Mauro was convicted on all counts. On January 16, 1992, a federal grand jury indicted Rogers, Mauro, and five others for conducting an illegal gambling business and conspiracy from April 16, 1981, to March 1, 1990, violating 18 U.S.C. §§ 1955, 371, and 2. Counts IX and X charged Mauro under RICO for his gambling activities, with one predicate offense linked to the conspiracy charge. After Mauro filed a motion to dismiss on double jeopardy grounds, a Superseding Indictment was issued on September 17, 1992, adjusting the timeframe in Counts I and II to start on July 18, 1985, thus excluding the period of Rogers' immunized testimony. FBI Special Agent Naum, who led the investigation for the Superseding Indictment beginning in late 1988, stated he was unaware of Rogers' prior testimonies until the Kastigar motion and had not reviewed them. He also confirmed that Rogers' immunized testimony was not referenced in wiretap or search warrant applications. Bruce further detailed his past involvement with Rogers and Mauro, including information regarding Mauro's hotel ownership and connections to Ben Rogers, a known bookmaker. The investigation initially focused on Mauro and his associates in Western New York.

An investigative file was opened regarding Nicholas Mauro, who was preparing to regain control of his bookmaking operations following his release from jail. The investigation involved wiretaps of phones associated with Mauro's operation and the execution of search warrants, though Bruce, who worked for the Organized Crime Strike Force in Rochester, New York, was not directly involved and had only a vague awareness of the case. Initially, Rogers was not a target, but became one after being overheard in wiretapped conversations about Mauro's activities, identified through pen registers on Mauro's phones. Bruce noted that Peter Spero, an associate of Mauro with extensive knowledge of his operations, and Dana Iser were also implicated through the investigation, but none of this information derived from Ben Rogers' prior Grand Jury or trial testimonies from 1982 and 1984. Both Bruce and Knapp, who supervised the early investigation, confirmed that Rogers' immunized testimony was never used or discussed and that the wiretap applications made no reference to it. The evidence against Ben Rogers includes wiretap data from 1989-1990, physical evidence from a February 1990 search warrant, pen register information linking Rogers to Mauro, and testimony from Spero about his long-standing connection with Mauro and their communication regarding betting operations.

Witness Dana Iser will testify about his role in the Mauro organization and his communications with Ben Rogers regarding Nicholas Mauro's betting activities during 1988-1989. Littlefield argues that Rogers' immunized testimony was limited to general gambling and bookmaking topics, lacking specific evidentiary leads such as names or contact information. He contends that Kastigar principles protect witnesses from using immunized testimony only for crimes committed before such testimony; however, the government asserts that the alleged criminal activity in Counts I and II of the Superseding Indictment began after Rogers' immunized testimony, indicating Kastigar does not apply.

During a Kastigar hearing, Naum and Bruce provided testimony relevant to the case. Naum mentioned obtaining information about Rogers' involvement in Mauro's operations from intercepted conversations referencing a person named 'Homer.' An FBI report revealed extensive investigative matters concerning Ben 'Sonny' Rogers, whose criminal history includes multiple gambling-related offenses and interactions with known bookmakers and drug dealers over 15-20 years. Rogers' personal details were documented, including prior arrests and the nature of his sentencing, which typically involved fines without incarceration due to Kentucky's gambling laws.

Naum's affidavits, prepared in late 1989 and early 1990 in support of wiretap and search warrant applications, indicated that Rogers was recorded discussing new telephone numbers during a January 1990 wiretap, which built upon information from a December 1989 wiretap. The details about Rogers are referenced in Naum's December 6, 1989 affidavit, which does not mention Rogers' immunized testimony. The investigation into Rogers' activities is ongoing, with coordination between Louisville and Buffalo offices for further verification.

Naum's knowledge of Rogers' relationship with Nicholas Mauro originated from a 1983 wiretap by the New York State Police, which captured conversations between Mauro in Niagara Falls, NY, and Rogers in Louisville, KY. Naum's 1990 search warrant affidavit did not mention Rogers' immunized testimony. During the Kastigar hearing, Bruce confirmed details from his affidavit and stated he first accessed Rogers' 1982 grand jury testimony shortly after it was given, reviewing it before Mauro's 1984 trial but not thereafter, except for sharing it with Rogers' attorneys for the current case. The transcript has remained secured in the United States Attorney's Office and unexamined since. Bruce had attended Rogers' 1984 trial and reviewed its transcript in late 1984 or early 1985 for Mauro's appeal but did not revisit it for Rogers' Kastigar motion. 

Bruce became involved in the investigation in early 1990, asserting he did not discuss Rogers' immunized testimony with Naum and was unaware if Rogers was an initial target when the investigation commenced in 1988. He indicated that all evidence against Rogers was derived from wiretaps or search warrants, with no disclosure of immunized testimony in the government's application for pen registers. Bruce had long known about Peter Spero's involvement with Mauro, independent of Rogers' immunized testimony, and did not learn of Dana Iser's involvement through it. On cross-examination, Bruce stated that Rogers' grand jury testimony provided no new information and that the government was already aware of 'Homer' through the Louisville IRS office prior to his involvement. He learned of Rogers' role by reviewing intercepted wiretap conversations.

The legal standards state that Rogers' grand jury and trial testimony were obtained under a court-ordered grant of immunity per 18 U.S.C. § 6002, which protects witnesses from self-incrimination while ensuring that any compelled testimony cannot be used against them in future criminal cases, except for prosecution related to perjury or false statements. The statute's constitutionality was affirmed in Kastigar v. United States, which upheld the prohibition on using immunized testimony against a witness in subsequent prosecutions.

The Court determined that the immunity granted by 6002 aligns with the protections of the Fifth Amendment, placing the witness in a position equivalent to having invoked their privilege against self-incrimination. Petitioners contended that use and derivative-use immunity inadequately safeguards witnesses against potential incrimination from compelled testimony, such as leads or witness identities that could lead to prosecution. However, the Court dismissed this concern, asserting that the statute imposes a comprehensive ban on any use of compelled testimony and derived information, effectively preventing it from serving as an investigatory lead.

The Court clarified that a witness with immunity under 6002 does not rely on the government's good faith for protection; instead, the burden shifts to the government to prove that evidence it intends to use comes from independent sources, not from the immunized testimony. The government must provide nonconclusory affidavits to satisfy this burden, rather than merely asserting compliance. Moreover, the government can demonstrate legitimate independent sources if it shows prior knowledge of information disclosed in the immunized testimony.

The Second Circuit highlighted that the focus of Kastigar's prohibition is primarily on evidentiary use of immunized testimony. It declined to adopt a broader interpretation that would preclude prosecution based on indirect influences of the immunized testimony on prosecutorial thought processes. Consequently, speculative claims regarding subtle impacts of the testimony do not obstruct prosecution. The government argued that 6002 applies only to past criminal activities related to the testimony, while the Second Circuit interpreted it more expansively, especially in cases indicating ongoing criminal conduct. This was illustrated in the case of United States v. Gallo, where defendant Miron, convicted of racketeering and related offenses, moved to dismiss his indictment claiming prior immunized testimony under 6002.

Miron testified before a federal grand jury about Teamsters official John Cody's connections with the Gambino Crime Family, specifically mentioning Paul Castellano. Following Miron's testimony, Cody was indicted and convicted. Miron was later indicted in the Gallo case, with Castellano and two other union officials identified as unindicted coconspirators. The Assistant United States Attorney (AUSA) who secured Miron's testimony shared it with Cody's probation officer for Cody's presentence report, which suggested that Miron's account supported FBI informant information regarding Cody's ties to Castellano. Around Cody's sentencing, the government sought electronic surveillance of Castellano's home, with an FBI agent referencing Miron's testimony to imply Castellano's involvement in illegal activities.

In his motion to dismiss the indictment, Miron contended that his grand jury testimony was improperly used by the government to target him. The trial court denied the motion, reasoning that the conspiracy Miron was alleged to have joined commenced after his testimony and that there was ample independent evidence justifying the government's actions. The court noted that if the grand jury was investigating past crimes rather than ongoing criminality of the immunized witness, such testimony could still be admissible in future prosecutions. The court found no violation of Miron's rights, asserting that the government would have pursued the same investigative actions regardless of his testimony.

However, the Second Circuit later affirmed the district court's ruling but found that using Miron's immunized testimony to secure his indictment violated 18 U.S.C. § 6002 and the Fifth Amendment. Judge Winter stated that the government’s position—that Miron's crimes occurred after his testimony and thus did not violate the statute or constitutional protections—was not supported by relevant Supreme Court precedents. The court argued that Miron's testimony, which related to ongoing criminal activity, provided links in evidence that could implicate him in both past and future crimes. The court cautioned against a strict chronological approach, which could allow the government to immunize witnesses to gather incriminating testimony for ongoing investigations, particularly in contexts like labor racketeering that are inherently ongoing.

The court concluded that the use of Miron's immunized testimony violated the use-immunity statute and the Fifth Amendment but upheld Miron's conviction, determining that this violation did not impact the indictment or conviction, rendering the error harmless. The case relates to the Superseding Indictment, which alleges that defendant Rogers was involved in ongoing criminal activity, including a conspiracy to engage in illegal gambling dating back to April 16, 1981, prior to his compelled testimony. The government intends to use conduct from 1981 to July 16, 1985, which is uncharged in the superseding indictment, to establish motive, opportunity, intent, preparation, plan, knowledge, and identity.

The court expressed heightened scrutiny regarding the use of Rogers' testimony, particularly due to the involvement of prosecutor Bruce, who had exposure to the immunized testimony. Although the court did not bar Bruce from prosecuting the case, this factor significantly influenced its consideration of Rogers' Kastigar motion. The court noted that in future cases, the government should consider implementing a "Chinese Wall" to prevent the appearance of impropriety among prosecutors exposed to immunized testimony. This recommendation aligns with the Second Circuit's prior suggestions, emphasizing the need for careful handling of such cases to avoid potential conflicts. The U.S. Attorneys' Manual advises that an attorney must obtain approval before prosecuting someone who has provided immunized testimony, ensuring no non-evidentiary use of that testimony occurs. While this manual serves as an internal guideline, the government is encouraged to adhere to this policy in future prosecutions.

The Court concludes that the government has satisfied its burden of establishing that the evidence against defendant Rogers is derived from legitimate sources, independent of his compelled testimony. Key findings include that Special Agent Naum and Assistant U.S. Attorney Knapp were unaware of Rogers' immunized testimony until his Kastigar motion was filed. Bruce, who later became involved in the investigation, had no prior knowledge of Rogers' testimony and could not recall its details, further supporting the government's position. Evidence pertinent to Rogers' activities was obtained through prior investigations, including intercepted communications and a wiretap conducted by the New York State Police, which occurred before Rogers became a target in late 1989 or early 1990. The search warrant applications and wiretap requests made no reference to Rogers' immunized testimony, affirming that Naum and Knapp were not informed about it. Additionally, the government’s application for pen registers did not disclose Rogers' testimony, and the anticipated testimonies of witnesses Spero and Iser were not derived from that testimony. Overall, the Court finds the government's evidence credible and independent of any compelled disclosures from Rogers.

The court concluded that the government has successfully demonstrated that the evidence against defendant Rogers was obtained from legitimate sources, separate from his immunized testimony. Bruce was aware of Peter Spero's connection to Nicholas Mauro before receiving Rogers' testimony, which reinforced the court's determination that Rogers' Fifth Amendment rights and protections under 18 U.S.C. 6002 were not violated. The defendant's claims regarding potential misuse of his immunized testimony due to Bruce's knowledge were deemed speculative and unsubstantiated, lacking direct relation to the evidence to be presented. Consequently, Rogers' Motion in Limine was denied, although he may renew it post-trial if warranted by the evidence. Additional notes indicate that Nicholas Mauro faced separate charges, Peter Spero entered a plea agreement and is expected to testify against Mauro, and clarifications were made regarding the limitations of wiretap evidence. The court referenced the precedent set in Rivieccio regarding remedies for misuse of immunized testimony.

Immunity testimony before a grand jury, particularly if disclosed to that grand jury or if the indictment is primarily based on improperly obtained evidence, can be grounds for challenging an indictment. In this case, the government did not present the grand jury minutes related to defendant Rogers, and the evidence indicated that neither of these conditions applied. During the Kastigar hearing, defense counsel questioned witness Bruce about his knowledge of Rogers' residences and connections to a gambling operation. Bruce clarified that he mistakenly referred to Kentucky when he should have mentioned Nevada, acknowledging his awareness of Rogers’ prior residence in Kentucky. However, the court concluded that this testimony did not undermine the government's independent basis for its evidence against Rogers. Even assuming Bruce recalled aspects of Rogers' immunized testimony, any resulting speculation about its effects was insufficient to warrant suppression of the government's evidence.