Mob trials often have a scene in which an FBI agent takes the stand and tells the court all about the accused gangster's many dirty deeds. But turnabout is always fair play, and in Gotti IV - the upcoming trial of John (Junior) Gotti - the defense is planning to grill a top agent about his own misbehavior.
Gotti has never served in the U.S. armed forces but the onetime acting mob boss's strategy is straight out of the military manual: The best defense is a good offense.
In Gotti IV, the former Junior Don will take the offensive against an FBI agent who has been on his case for five years. He will paint the veteran G-man, Theodore Otto, as the real villain in a misconduct-filled, "win at all costs" campaign against him by the federal government.
As he did at three prior trials, Gotti contends that he quit the mob in 1999 and is thus innocent of the current racketeering charges that link him to Gambino family activity after July, 2003. But in court papers filed early this month, Junior signaled his intention to conduct an all out assault against Otto - the "case agent" in Gotti's pending indictment and a key player at his three trials in 2005 and 2006.
In addition to previously aired accusations of improper media leaks and allegations that Otto placed Junior in danger from Gambino family mobsters, Gotti added a new charge that the feds have not denied: Otto was fired for undisclosed reasons after Junior's third trial but was mysteriously re-instated in time for him to become the case agent in Gotti IV.
Neither the FBI nor the Manhattan U.S. Attorney's office would discuss the circumstances surrounding Otto's firing - and his subsequent rehiring - occurrences that knowledgeable Gang Land sources have confirmed.
FBI spokesman Jim Margolin, who has labeled prior allegations of wrongdoing by Otto from Gotti's lawyers as "preposterous," issued a brief, measured statement regarding the dismissal, and the implication by Gotti lawyers Charles Carnesi and John Meringolo that it was related to misconduct in Gotti's case.
"The defense contention is wrong," said Margolin. "Ted Otto has never been suspended, terminated or disciplined for misconduct in connection with any case."
Sources tell Gang Land that Otto, who has been an FBI agent for more than 20 years and has worked on the squad that monitors the Gambino family about 10 years, was fired in late 2007 or early 2008 for tax problems relating to undeclared profits on stock investments that predated his tenure on the Gambino family squad.
"The firing was totally off the wall," said one former Gambino squad colleague. "It was rescinded as soon as OPR learned that the so-called profits were really money that a shady broker had stolen from him back in the '90s," said the source, using FBI shorthand for the agency's Office of Professional Responsibility, the division that investigates allegations against agents.
The broker, the source added, was one of scores of mob-connected traders who were nailed in the massive "Mob On Wall Street" case in which a total of 120 mobsters, associates, brokers and others were charged with making millions of dollars in classic "pump and dump" scams and other schemes in June, 2000.
All told, sources say, Otto was "fired" for about "three or four months."
In papers filed with Manhattan Federal Judge P. Kevin Castel, Gotti contends that Otto's conduct in recent years - which includes "false and misleading testimony" at Junior's third trial - is "far more egregious" than the prosecutorial misconduct that led the Justice Department to dismiss its case against U.S. Senator Ted Stevens following his conviction on corruption charges last year. At a minimum, say Carnesi and Meringolo, the judge should hold a hearing to resolve the numerous misconduct issues they have raised.
Following his second mistrial in March, 2006, the lawyers say, as Otto served subpoenas to "Gotti's enemies" in the Gambino family, he "made it a point to state: 'You can thank John (Junior) for this.' Shortly thereafter, and certainly as calculated by the serving agent, a credible death threat was generated against Mr. Gotti and his defense team."
Otto's words and actions had "the intended result," say the lawyers. They combined to "incite these individuals against Mr. Gotti. Had this set of circumstances transpired outside the 'hallowed halls' of the prosecution, surely the person responsible would be involved in a conspiracy to commit murder."
The defense also reached out to U.S. Attorney General Eric Holder for help. In light of a decision he made last month to seek the release of two convicted Alaska politicians because favorable information was withheld from them before their trial, Gotti's lawyers asked Holder to review the conduct of Otto and others with a view toward tossing the current indictment against their client.
Prosecutors insist it's much ado about nothing. Even if Gotti's misconduct allegations are all true, they are old news and have no bearing or impact on the evidence that the government plans to introduce in Gotti IV, say prosecutors Elie Honig, Jay Trezevant and Steve Kwok. They paint the defense motion for a hearing as nothing more than a "fishing expedition" designed to discover "helpful facts" in advance of the trial that is set to begin on September 14.