Vincent Gigante led the Genovese crime family in New York through the 1980s and into the 1990s. In July 1997 a federal jury in Brooklyn convicted him of racketeering, racketeering conspiracy, a conspiracy to commit murder in aid of racketeering, a conspiracy to commit extortion and a conspiracy to make payoffs to labor union officers. The murder conspiracy of which he stands convicted concerned Peter Savino, a former associate of the family who had become a government witness; the plan did not succeed. No court convicted Gigante of carrying out a killing. The jury found that the government had not proved four of the murders charged against him as racketeering acts, and it could not agree on four further murder conspiracies. A guilty verdict on a second murder conspiracy count, directed at John Gotti and Gene Gotti, was set aside by the trial judge because it had been brought too late.
The case was about whether he could be tried at all as much as about what he had done. From 1990 onward his lawyers argued that he was not competent to stand trial, and psychiatrists called by both sides first agreed that he was not. Two federal judges, hearing the evidence separately, concluded that he was feigning mental illness and was competent. He was sentenced on December 18, 1997 to twelve years in prison, and the Second Circuit upheld the judgment in January 1999. In April 2003 he pleaded guilty to obstruction of justice and admitted that, between May 1990 and December 1997, he had knowingly misled the doctors who evaluated his competency. The plea carried a further three years. He died in federal custody in Missouri on December 19, 2005, at the age of 77.
The federal courts that tried Gigante described the family he led in some detail. A judge who heard the pretrial evidence in 1996 found that Gigante had held high positions in the Genovese family from at least the early 1970s until September 1991, and that from at least 1970 he had been a forceful and active leader of it. By that account he rose to be the family's counselor and the unseen leader behind the then boss, and after that boss's arrest in 1985 he became the boss in title as well as in fact. A witness quoted in the findings said he had made all ultimate decisions for the family, including who was made a member or a captain. A later ruling put it that he used street bosses to hide behind and was the boss of the family since at least 1985.
His first appearance in the public record as a defendant in a violent case came in 1957, when an attempt was made on the life of Frank Costello in New York. A cooperating witness later said that the family's then leader sent Gigante to carry it out. The intended victim survived. Gigante was charged, tried and acquitted. The 1957 episode played no part in the 1997 case.
A New Jersey state court had also dealt with him earlier: in 1971 a judge in Bergen County found him not competent to be tried on bribery charges. That ruling is the first of the competency findings that run through the rest of the case.
On May 30, 1990 Gigante and fourteen others were charged in a sixty-nine count indictment in the Eastern District of New York. He was named in 35 of the counts. It alleged 109 racketeering acts and an enterprise that reached members of four New York crime families and union representatives. The charges concerned labor payoffs, extortions and mail frauds between 1980 and 1991. Gigante was arrested that day.
The scheme at the center of the 1990 case was known as the "windows" case. The court later described it this way: window replacement companies run by or connected to the Genovese family made payments to the Lucchese family and to others who influenced local union decisions, and those decisions allowed cheaper non-union labor to install windows. The companies won contracts, including work for the New York City Housing Authority, that would otherwise have gone to union crews. The labor payoffs were alleged to have been made to officers and employees of Local 580 of the Architectural and Ornamental Ironworkers Union.
On June 10, 1993 the government filed a superseding indictment of six counts. Its allegations went well beyond the windows case. It charged that Gigante and others murdered six persons between July 10, 1980 and March 15, 1982, and that they engaged in conspiracies to murder three other persons between June 1982 and 1991, alongside further labor payoffs and extortion. As tried, the six counts were these. Count one charged racketeering under 18 U.S.C. section 1962(c) and count two racketeering conspiracy under section 1962(d). Count three charged the conspiracy to murder Peter Savino, and count four a conspiracy to murder two members of another crime family. Count five charged conspiracy to commit extortion under section 1951, and count six a conspiracy to make labor payoffs under section 371. The government relied on 41 racketeering acts, numbered one to forty-one, eight of which concerned murders or murder conspiracies in the early 1980s.
Gigante's defense raised the question of his mental competency almost at once. On June 13, 1990 the court ordered psychiatric examinations, and on June 20, 1990 appointed two psychiatrists; two more were retained by the defense. All four found him not competent.
In 1996 the case was before another judge, who held extensive hearings that included testimony from former members of the Genovese family. In a ruling dated May 15, 1996 the judge made findings of fact and sent them to the testifying psychiatrists, who were to accept them as true and say whether they changed their assessments. The findings included that Gigante's motive for a "crazy act" kept up for years was to avoid apprehension by law enforcement, and that the evidence established clearly and convincingly that, during the years 1970 to 1991, he was not the demented person he portrayed himself to be. One of the psychiatrists had written in 1991 that, if shown the evidence, he would conclude that Gigante was malingering and fit to proceed. Two of the four psychiatrists changed their opinions after the findings; one said Gigante was competent and the other that it was quite possible he was. The other two kept to their views.
On August 28, 1996 the judge ruled that, given the weight of medical opinion, Gigante was mentally competent to stand trial, that he was physically competent, and that he must appear for arraignment on the indictments. When Gigante renewed the claim, the judge stepped aside and the case went to a second judge. The defense offered further medical evidence, which the government contested. The trial judge found him competent and ordered the trial to proceed.
The trial was held in Brooklyn. The government's case rested mainly on six former members of the Mafia who had become cooperating witnesses, together with recorded surveillance tapes and testimony from law enforcement. The cooperators described Gigante's place in the family's hierarchy and his efforts, in the Second Circuit's later words, to hide his complicity through continuous public demonstrations of mental instability. Testimony at the pretrial stage had been that his conduct differed according to whether he thought he was observed.
The former associate who was the intended victim of the count three conspiracy had cooperated with the government since 1987 and was in the federal Witness Protection Program, at an undisclosed location. Before trial the government applied for him to testify by closed-circuit television. After a hearing, the trial judge found by clear and convincing proof that the witness could not appear in court. The system was two-way: the jurors, counsel, the judge and Gigante could see him on screens, and he could see and hear the courtroom. He was sworn and cross-examined. He described to the jury an occasion on which Gigante ran water in a sink at full force and whispered to him about the windows scheme. The government's position, set out later in its brief to the Supreme Court, was that the plan to kill him did not succeed because he entered the Witness Protection Program, and that Gigante believed he had begun cooperating with law enforcement.
The jury returned its verdict on July 25, 1997 after deliberating for several days. It found Gigante guilty of all six counts of the 1993 indictment. On the racketeering counts it found 32 of the 41 racketeering acts proven, the court recorded: the count three murder conspiracy (act nine), the conspiracy to murder the two men named in count four (act ten), the labor payoffs (acts eleven to forty) and the extortion conspiracy (act forty-one). It found the conspiracy periods to have ended in June 1993 for racketeering conspiracy, July 1991 for the count three conspiracy, January 1988 for the count four conspiracy, June 1989 for extortion and June 1988 for the labor payoffs.
On the early-1980s murder allegations the verdict was divided. The jury agreed that the government had failed to prove racketeering acts one, six, seven and eight, which concerned the murders of Jerry Pappa, Frank Narducci, Rocco Marinucci and Enrico Carini. It could not agree on acts two to five, which alleged conspiracies to murder Anthony Caponigro, Fred Salerno, John Simone and Frank Sindone, and the court declared a mistrial on those acts. The Second Circuit summarized the result as the jury having acquitted Gigante or failed to reach a verdict on all charges surrounding the murders of those eight men. The trial judge's own opinion records no verdict of guilty on any of them.
Count four was treated differently. The jury found Gigante guilty of count four, but that count appeared only in the 1993 indictment, not the 1990 one, and the five-year limitation period for the conspiracy, which the jury found ended in January 1988, had expired before it was filed. The trial judge granted the defense motion for acquittal on that count and dismissed it. That conspiracy, charged as racketeering act ten, was not dismissed, because it fell within the period that could support the racketeering counts.
After the verdict Gigante was remanded to the custody of the Attorney General and was allowed 24 hours to report to a federal correctional facility in North Carolina, where he was evaluated and an evaluation report was delivered to the court and the parties on September 16, 1997. The defense used the report to seek a new competency determination and other relief. On October 29, 1997 the court denied the motion, except for dismissing count four and declaring the mistrial on acts two to five.
The trial judge sentenced Gigante on December 18, 1997 to twelve years in prison, five years of supervised release and a fine of $1,250,000. Before sentencing the court had again examined whether he was competent to be sentenced. In an amended ruling dated January 5, 1998 it concluded that he could distinguish between right and wrong, understood why and how he was being punished, and could take part in a sentencing hearing. It found that feigning was the predominant cause of his displayed behavior and that he was competent to be sentenced.
Gigante appealed on three grounds: that the closed-circuit testimony violated his Sixth Amendment right to confront the witness; that statements by alleged co-conspirators had been wrongly admitted; and that he had been tried while not competent. The Second Circuit heard argument on October 20, 1998 and decided on January 22, 1999.
On confrontation, the court held that the two-way procedure did not deprive Gigante of the right to confront his accuser. It compared the procedure to a deposition under Rule 15 of the Federal Rules of Criminal Procedure, which may be taken in exceptional circumstances, and held that a trial court may allow two-way closed-circuit testimony on a showing of exceptional circumstances: the witness was in protective custody at a secret location, could not appear in court, and Gigante could not attend a distant deposition. It warned that such testimony should not be considered a commonplace substitute for in-court testimony.
On hearsay, the court found error. The trial judge had announced a finding of a general overriding conspiracy among the Mafia groups and had admitted some evidence on that basis alone. The Second Circuit held that a court must find a specific criminal conspiracy beyond the general existence of the Mafia, and that membership alone does not suffice. It held that an exchange recorded on a tape among members of another family, about a different plan, had been admitted in error. It held the errors harmless: some statements were admissible on other grounds, the jury's split verdicts showed it could distinguish among the counts, and there was substantial direct and circumstantial evidence on each crime of conviction.
On competency, the court noted that the finding was reviewed only for clear error. Both judges, after separate hearings, had concluded that Gigante was malingering and competent, and the Second Circuit held that this conclusion was permissible and not clearly erroneous. The judgment was affirmed. Rehearing was denied on March 11, 1999, and a petition to the Supreme Court was filed on June 9, 1999; the Solicitor General's opposition brief is dated November 1999.
In April 2003 Gigante was before the same district court in Brooklyn on a further indictment. It accused him of directing the Genovese family from federal custody; prosecutors had argued that recorded conversations with visitors showed he directed the family's business in a coherent, careful and intelligent manner. His son, whom prosecutors said carried his orders, was also charged and pleaded guilty. On Monday April 7, 2003 Gigante pleaded guilty to obstruction of justice. Asked by the judge whether it was true that between May 1990 and December 1997 he had "knowingly, intentionally misled doctors" evaluating his mental competency to stand trial, he answered, "Yes, your honor." The terms of the plea were three years in prison followed by three years of supervised release; the charge carried a maximum of twenty years. The sentence was to be served after the twelve-year term from 1997. A federal prosecutor's later announcement of guilty pleas by other members of the family described Gigante as convicted in April 2003 in connection with the same investigation.
Gigante died on December 19, 2005, in federal custody in Missouri, aged 77. At that time his release was due in June 2010.
After he was imprisoned in 1997, leadership of the family passed to a committee known as the administration. On October 18, 2005 the United States Attorney's Office in Brooklyn announced that four members, an acting boss and three captains, had pleaded guilty to racketeering charges in Brooklyn on an indictment unsealed in April 2005. Its predicate acts included murder conspiracy, extortion, loansharking and witness tampering. The same announcement described two men used by Gigante as acting or street bosses for about a decade.
Several rulings in the case turned on federal rules that explain why the verdict looks as it does.
Racketeering. A defendant is guilty under section 1962(c) if he conducts the affairs of a criminal enterprise through a pattern of racketeering activity, and under section 1962(d) if he conspires to do so. The "racketeering acts" are the individual offenses that make up the pattern, and a jury may find some proven and others not. That is why Gigante could be convicted on the racketeering counts while the jury found acts one, six, seven and eight not proven and could not agree on acts two to five. A conspiracy to murder in aid of racketeering is a separate offense under section 1959(a)(5); it is complete when the agreement is made and does not require that anyone be killed, which is how the count three conspiracy could support a conviction although the plan did not succeed.
Time limits. Under 18 U.S.C. section 3282 a conspiracy charge must be brought within five years of the date the conspiracy ended. A superseding indictment can relate back to an earlier one only if the new charges are not substantially broader than the old ones, and the trial judge asked whether a reasonable defendant would have been surprised. The labor payoff and extortion counts in 1993 were held to relate back to the 1990 windows indictment; the count four conspiracy, which was not in the 1990 indictment, was not. The same act remained available as a racketeering act, because a pattern may reach back ten years from a timely act.
Testimony by video. Rule 15 allows a deposition in exceptional circumstances, and the Second Circuit used it as the yardstick for the video testimony.
Co-conspirator statements. Under Federal Rule of Evidence 801(d)(2)(E), a statement by a co-conspirator during the course and in furtherance of the conspiracy is not hearsay. The trial court must find by a preponderance of the evidence that a conspiracy existed that included both the defendant and the speaker. The appeal court's limit in this case was that a specific criminal conspiracy is required beyond the existence of the Mafia.
Competency. Under 18 U.S.C. section 4241 a court holds a hearing if there is reasonable cause to believe a defendant cannot understand the proceedings or help in his defense, and a defendant is tried only if found competent. The question is one of fact, reviewed on appeal for clear error. A defendant who deliberately misleads the doctors examining him can also face a separate charge of obstruction of justice, which is what the 2003 plea resolved.
The jury found no murder proven against Gigante. The four murders charged as racketeering acts one, six, seven and eight were found not proven, and the four conspiracies to murder charged as acts two to five were left undecided by the jury, so that no verdict exists on them. Those allegations remain allegations only.
The 1957 charge ended in acquittal.
The competency question was decided by the courts against him in 1996, 1997 and 1999, and he admitted in 2003 that he had misled the doctors between May 1990 and December 1997. Defense experts argued the contrary, and the federal courts rejected their findings as unreliable. The 1996 federal findings concern the years 1970 to 1991; the 2003 admission covers May 1990 to December 1997.
1957: Gigante is charged over an attempt on the life of another New York crime-family leader (May 1957); he is later acquitted.
1971: A New Jersey court in Bergen County finds him not competent to be tried on bribery charges.
May 30, 1990: Indicted with fourteen others in a 69-count indictment in the Eastern District of New York and arrested.
June 1990: The court orders psychiatric examinations; four psychiatrists find him not competent.
June 10, 1993: Six-count superseding indictment filed.
May 15, 1996: A federal judge issues findings of fact on competency.
August 28, 1996: The judge rules him competent to stand trial.
July 25, 1997: Jury verdict in Brooklyn; guilty on all six counts, murder racketeering acts one, six, seven and eight not proven, mistrial on acts two to five.
October 29, 1997: Post-verdict ruling dismisses count four as time-barred.
December 18, 1997: Sentenced to twelve years, five years of supervised release and a $1,250,000 fine.
January 5, 1998: Amended ruling finds him competent to be sentenced.
January 22, 1999: The Second Circuit affirms the judgment.
March 11, 1999: Rehearing denied.
June 9, 1999: Petition to the Supreme Court filed.
April 7, 2003: Pleads guilty to obstruction of justice; three further years.
October 18, 2005: Four family members plead guilty to racketeering charges in Brooklyn.
December 19, 2005: Dies in federal custody in Missouri, aged 77.