(p) Wilbert Cox, of Dowco Painting, will testify about work he did on the Local 54 project. (Tr. 11/2/83, 69:4-7.) Cox was identified as a principal of Dowco when Agent Chance served a subpoena (Exhibit K-136) on that company. (Tr. 11/3/82, 88:1-11.) Dowco was identified as a subcontractor in the Toro records. (Tr. 11/3/83, 68:19 -- 69:25.)
(q) Warren Patterson, of Dunn-rite Drywall, will testify about work he did at the union hall and about documents pertaining to that work. Mr. Patterson was identified by Agent Chance when he served the subpoena to Dunn-rite (Exhibit K-135). (Tr. 11/3/83, 88:12-17.) Dunn-rite was identified as a subcontractor from the records of Toro and Local 54. (Tr. 11/3/83, 68:4-14.)
(r) Frederick English will testify about his sale of the defendant's residence and the effect on the sale of the renovations to the house. (Tr. 11/2/83, 69:16-22.) English had been subpoenaed (Exhibit K-139) after Agent Chance learned from the occupants of the defendant's former house that his (English's) company had sold it. (Tr. 11/3/83, 71:17 -- 72:3.) Agent Chance learned that this house was the defendant's former residence from the records of Toro. (Tr. 11/3/83, 71:9-15.)
(s) Joanne Toffinetti may identify records from Marandino Construction Company. (Tr. 11/2/83, 69:23 -- 70:8.) The Marandino records were received in 1981. (Tr. 11/2/83, 69:23-25; Exhibit K-120.)
(t) Harry Goldenberg, the attorney who handled the estate of Robert Lumio (who died in 1981), will identify probate and accounting records he prepared in the course of the settling of the estate. (Tr. 11/2/83, 70:9-13.) Mr. Goldenberg was subpoenaed during the investigation (Exhibit K-134) on June 9, 1982. He was subpoenaed after Robert LoCicero testified that he had instructed an attorney to file a claim against Lumio's estate for the renovation work done by Toro on Lumio's residence. Agent Chance identified Mr. Goldenberg as the estate attorney by reviewing back issues of a newspaper -- The Atlantic City Press -- and finding the notice of probate, which listed Mr. Goldenberg as the attorney. (Tr. 11/3/83, 66:10 -- 67:9.)
(u) Robert Stablini, of the accounting firm of Stablini and Petlev (Exhibit K-156), and Joseph Asselta, of the accounting firm of Mandino and Asselta (Exhibit K-153), are from two accounting firms that at various times did the accounting work for Toro Construction. They will testify about records of their firms relating to the accounting treatment of transactions which occurred in 1979, (Tr. 11/2/83, 71:17 -- 72:5), specifically, the $10,000 check issued by Toro to Donald Martinelli at the conclusion of the Local 54 job. (Tr. 11/3/83, 79:19 -- 80:19; 82:22 -- 83:10.)
Finally, Special Agent Ronald Chance, the Labor Department investigative agent who participated in this investigation (Tr. 11/3/83, 40:17-21), was aware, as early as December 1980, of allegations that companies who performed services for Local 54 had to pay bribes and kickbacks in order to obtain that business. (Tr. 11/3/83, 53:2 -- 54:22.) And in July 1981, Joseph Salerno told Chance that Philip Leonetti had told him that inflated bills were going to be submitted to Local 54 in connection with renovation work being done on the union's office building; that officers of Local 54 would approve the bills; and that Toro had done renovation work on Robert Lumio's apartment for which he did not pay.
The Government exposed its entire case and took great pains to establish the sources of all its evidence. The court is convinced that the Government's proposed evidence is derived from legitimate, independent sources.
B. Extent of Any Access to the Deposition Testimony and Subsequent Use in Preparing for Trial.
Where the Government can establish an independent source for all of the testimony which it proposes to use at trial, it has gone a long way in carrying its burden. Nonetheless, such a showing alone is not sufficient where it appears on the record that the Government had access to the testimony. In that case, the court must consider the extent of the access and the use of the testimony in the preparation for the trial. See United States v. Semkiw, 712 F.2d 891 (3d Cir. 1983).
Here, there was considerable doubt before the hearing began that the Government had access to and thus could make any use of the immunized testimony. After reviewing the evidence, the court finds that, although the Government has been unable to construct an impenetrable "Chinese wall" around the testimony and thus cannot thoroughly negate the possibility of taint, there was no affirmative evidence of access and consequently none of any taint whatsoever; and all the evidence adduced at the hearing supports the finding that no use, either direct or indirect, was made of the immunized testimony.
The persons present during all or part of the deposition were New Jersey Deputy Attorneys General Mitchell Schwefel and Eugene Schwartz; New Jersey State Police Detective Henry Giancaterino; the defendant; his attorney, Ronald Kidd; attorney Michael Katz, who represented Local 54; Albert Daidone, a representative of Local 54; and the court reporters. (Exhibits K-107 -- K-112.) Acting Director Robert Sturges and Deputy Attorney General Gary Ehrlich saw the deposition transcripts. (Tr. 10/31/83, 9:20 -- 10:1.) Prior to the taking of the deposition, Deputy Attorneys General Schwefel, Schwartz and Ehrlich, Acting Director Sturges and Detective Giancaterino were aware of the federal investigation and the need to avoid any disclosure of the testimony. (Tr. 10/31/83, 21:3 -- 22:7; Id. at 126:2 -- 127:4; Id. at 103:15 -- 104:16; Tr. 11/3/83, 4:16 -- 6:13; and Tr. 11/1/83, 60:16 -- 61:7.) Specifically, Acting Director Sturges instructed each of the others verbally and in writing not to disclose the contents of the testimony to anyone other than the investigating team without first clearing the disclosure with him. (Tr. 11/3/83, 6:14 -- 12:3, Exhibits K-162, 163, 164 and 165.)
The Commission ordered that the transcripts of the deposition be sealed and that the parties to the proceeding and their counsel be prohibited from disclosing any part of the testimony to anyone. (Exhibit D-K-1.) The transcripts remained in the custody of Schwefel and Ehrlich for little over a month following the deposition, at which time they were given to Detective Giancaterino. (Tr. 11/1/83, 67:18 -- 68:10.) Detective Giancaterino did not place the transcripts in a special envelope or file marked confidential. He placed it in a filing cabinet right outside his office where all files involving the Local 54 case were placed. (Tr. 11/1/83, 68:23 -- 69:6; 72:7-22; 82:18-20.) Detective Giancaterino had a key to that cabinet, id. at 69:13-14, and so did the secretary of Lt. Robert Kent, Supervisor of the Casino Licensing Section of the Division of Gaming Enforcement (DGE). (Id. at 69:16 -- 71:4.) The cabinet remained opened during the day after the detective unlocked it (id. at 78:18 -- 79:20), and it is possible that other agents of the DGE could have gained access to the file. But at the time the deposition was placed in the file cabinet, the DGE investigation into Local 54 had concluded. (Id. at 75:10 -- 76:5.)
The section of the Richard J. Hughes Justice Complex in which the file cabinet is stored is not open to the public, id. at 80:3-5, and there was no public disclosure of the defendant's testimony to the Casino Control Commission or to any other group. (Tr. 10/31/83, 14:6-14.) Schwartz, Tr. 10/31/82, 127:5-10; Schwefel, id. at 26:4-24; Ehrlich, id. at 105:10-14; Giancaterino, Tr. 11/1/83, 61:21-23; and Sturges, Tr. 11/3/83, 20:11-14, all testified that they did not disclose the testimony to anyone except to Special Attorney Robert Waller of the federal Strike Force after he had obtained an order from the Casino Control Commission allowing him to receive it in order to respond to defendant's Kastigar motion.
Special Attorney Wilson is the only attorney who participated in the federal investigation leading to the indictment of Gerace (Tr. 11/2/83, 25:12-13), and he will be the trial attorney for the United States. (Tr. 11/2/83, 3:10.) He was aware, prior to May 28, 1982, that the New Jersey Casino Control Commission was going to immunize the defendant, and the DGE would then depose him. (Tr. 11/2/83, 3:11 -- 6:4, Exhibits K-103, 105, 106.) From previous investigations, he was familiar with the requirements of Kastigar v. United States, (Tr. 11/2/83, 10:25 -- 15:5), and prior to the deposition he informed Robert Sturges, the acting director of DGE, that should the defendant testify pursuant to an immunity grant, he, the federal attorney, and the investigators would not be able to have any contact with DGE personnel about investigations of the defendant. (Tr. 11/2/83, 6:23 -- 7:18.) Furthermore, prior to May 28, 1982, Wilson spoke with Agent Ronald Chance and other agents in the office about DGE's intention: he explained the Kastigar opinion to them, (Tr. 11/2/83, 15:7 -- 16:11), told them to avoid contact with DGE personnel and explained that both direct and derivative use of immunized testimony was forbidden. (Tr. 11/2/83, 28:4 -- 30:18; 11/3/83, 41:14 -- 42:16.) Special Attorney Wilson has not had any conversations with DGE personnel about investigations into Local 54 or the defendant since before May 28, 1982. (Tr. 11/2/83, 33:18-22.)
Wilson testified that he has no knowledge of the content of the defendant's deposition, (Tr. 11/2/83, 30:20-22), and that neither the deposition nor the fact that the defendant was immunized had any effect on Wilson's approach to the case. (Tr. 11/2/83, 33:23 -- 34:19.) The court has no reason to doubt that testimony.
Special Agent Chance was the principal Labor Department investigative agent who participated in this investigation. (Tr. 11/3/83, 40:17-21.) Other Labor Department agents played minor roles in the investigation.
(Tr. 11/3/83, 43:11-24.) Prior to May 28, 1982, he was aware of the fact that he could not learn of the contents of the defendant's deposition nor make any direct or derivative use of it. (Tr. 11/3/83, 4:14 -- 42:16.) Since that time, he has learned nothing of the contents of the defendant's testimony. (Tr. 11/3/83, 44:16-19.)
None of the DGE personnel who are known to have learned of the deposition's contents disclosed those contents to anyone else. Neither the federal attorney nor the agents working on the federal investigation of the defendant learned of the deposition's contents from any of the persons known to have heard or seen it. It is true that a remote possibility exists that someone not involved in the case had access to and did read the deposition transcripts: the Government did not produce all of the people from the DGE who potentially had access to defendant's deposition transcripts. And thus it is further possible, as the defendant's proposed conclusions of law imply, that some agent from the DGE disclosed the deposition contents to one of the witnesses who testified before the grand jury in this matter: the Government did not eliminate this possibility by producing evidence that the witnesses who testified before the grand jury, subsequent to Gerace's deposition, were not aware of the contents of Gerace's deposition. This is not dispositive of the court's determination of this matter.
Although the quality of the burden of proof in Kastigar matters has not been refined beyond being characterized as "heavy" -- and this court does not now attempt to further refine it -- the court does not believe that the Government must eliminate even the remotest possibilities of doubt in order to carry its burden. Where those most intimately involved in the federal investigation have had no access to the immunized testimony and thus are incapable of making use of it in any manner whatsoever, and have satisfied the court that they derived their evidence from sources independent of the testimony itself, the Government has met its burden. The chance that an agent of the DGE other than one involved in the Local 54 investigation would seek to learn the contents of the deposition -- which it appears were virtually worthless to the investigators -- and then to divulge that information to a person scheduled to appear as a witness before the grand jury is so unlikely as not to be worth serious consideration.
Accordingly, the defendant's motion to dismiss the indictment by reason of Kastigar v. United States is denied. The accompanying order will be entered.
To the extent required, the foregoing constitutes this court's findings of fact and conclusions of law.