Saturday, April 18, 2009
Pursuant to the tax day ruling of the United States District Court for the Southern District of New York in Gotti v. United States, 2009 1010498 (S.D.N.Y. 2009), the 2004 conviction and sentencing of Peter Gotti, a/k/a "One Eyed Pete" and the brother of John Gotti, will stand, at least for now. Back in 2004, Gotti was convicted of racketeering, conspiracy to racketeer, conspiracy to murder, and extortion and was sentenced to 25 years in prison, 3 years of supervised release, and a $400 special assessment based upon his ordering a hit on mob rat Salvatore "Sammy Bull" Gravano. This was not Gotti's first appeal, but it might be his last.
Gotti petitioned the Southern District of New York, pursuant to 28 U.S.C. Section 2255 to vacate, set aside, or correct his sentence. One of the grounds for Gotti's appeal was that, following the jury's verdict, Juror Seven approached the Court and attempted to change his vote. According to Gotti, this entitled him to an evidentiary hearing to inquire into what led Juror Seven to vote one way and then change his mind.
But according to the court, the problem for Gotti was that the trial court "did inquire into the reason for Juror Seven's attempted recantation in an interview in chambers in the presence of all attorneys," and Gotti did not produce a transcript of he meeting with the juror. This was problematic because Federal Rule of Evidence 606(b) indicates that
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
In other words, a petitioner can only procure an evidentiary hearing to inquire into alleged juror misconduct if he can provide some scintilla of evidence that external evidence or influence improperly tainted the jury deliberation process (or provide some evidence of a jury transcription error). And, by failing to produce the transcript or presenting any other evidence of external evidence of influence, Gotti failed to establish that he was entitled to an evidentiary hearing.