The opinion of the court was delivered by: SOFAER
The seventy-eight count indictment in this case names twenty-four defendants, twenty-one of whom are before the court and scheduled for trial. Count l of the indictment names all the defendants, along with others, and alleges that they participated in a racketeering enterprise of extensive scope and variety. 18 U.S.C. § 1962(c) (1982) ("RICO"). The enterprise alleged is termed a "crew," of which Roy DeMeo acted as street leader" until he was murdered, and over which the defendants Anthony Frank Gaggi and Paul Castellano acted respectively as "captain" and "boss." These leaders and the other defendants are alleged to have engaged in eighty acts of racketeering in furtherance of the enterprise, including twenty-six murders, bribery, extortion, narcotics violations, thefts from interstate shipments, mail and wire fraud, obstruction of justice, transportation of stolen property, and transportation of women for purposes of prostitution. The enterprise is alleged to have existed from on or about January l, 1972 until February 28, 1983, in the Southern District of New York and elsewhere. The acts of racketeering include several alleged conspiracies and schemes.
Count 2 alleges a "racketeering conspiracy," 18 U.S.C. § 1962(d) (1982), in which all the defendants, and others, conspired to conduct or participate in the enterprise alleged in count 1. Count 2 incorporates by reference virtually all of the allegations and racketeering acts described in the first count. The remaining seventy-six counts include substantive offenses and conspiracies, all of which are either charged as, or are claimed by the government to be related to, the racketeering acts charged in count 1.
Defendants jointly filed a 21-point Omnibus Motion. In addition, fourteen defendants filed individual motions. These challenges to the indictment are grouped into four broad categories. Part l of this opinion addresses jurisdictional challenges to the indictment which, if granted, would result in dismissal of counts. Part II examines the government's use of RICO with respect to both the sufficiency of its theory of the case and to its decision to join all these defendants for trial. Part III concerns motions to dismiss particular counts or strike specific acts of racketeering. Part IV addresses evidentiary claims and other, miscellaneous individual motions.
1. Jurisdictional Challanges
A. Statute of Limitations and Preindictment Delay.
The general federal statute of limitations bars prosecution of a noncapital offense unless an indictment is found within five years of its commission. 18 U.S.C. § 3282 (1982) ("section 3282"). Defendants claim that section 3282 prevents the government from prosecuting a violation of the substantive RICO provision, 18 U.S.C. § 1962(c), by proving the commission of acts of racketeering that occurred more than five years prior to a RICO indictment. Second, they claim that section 3282 bars the prosecution of other, unenumerated counts of the indictment. Finally, defendants argue that the due process clause should preclude proof of certain acts of racketeering in connection with the RICO substantive count, and should preclude the prosecution of various other counts, even if prosecution is not barred by section 3282.
The first indictment in this case, captioned United States v. Richard DiNome and Ronald Ustica, 84 Cr. 63, was filed on January 20, 1984. That indictment charged only one of the defendants named in the present indictment, Ronald Ustica, and concerned only offenses relating to automobile thefts. (Current acts of racketeering 55-71 and counts 31-47 can be traced back to the first indictment.) On March 29, 1984, the first superseding indictment, captioned United States v. Paul Castellano et al., S 84 Cr. 63, was filed. That indictment added twenty defendants and deleted one defendant, Richard DiNome, because he had been murdered in early February 1984. It also added thirty three counts. Among those counts were two multidefendant RICO counts, one for a violation of the substantive RICO provision, section 1962(c), and one for conspiracy to violate RICO, section 1962(d). Seventy-three acts of racketeering were specified in count one of the first superseding indictment; these appear as acts of racketeering 1-27, 29-36, 38-48, 52-74, and 77-80 in the present indictment. In addition to the two main RICO counts, twenty-nine other offenses were charged; with two exceptions, discussed in the next paragraph, these appear as counts 3-4, 7-22, 30-53, 55-56, and 66-69 of the present indictment.
On September 19, 1984, a second superseding indictment was filed. United States v. Paul Castellano et al., SS 84 Cr. 63. This second superseder added three additional defendants - Carlo Profeta, Dennis Testa, and Abdullah Mohammad Hassan Hussain -- who were all named in counts l and 2. It also added acts of racketeering 28, 37, 49-51, and 75-76 to the substantive RICO count; named additional defendants with respect to acts of racketeering 3, 29, 41, 54-72, and 77-78; changed the dates of acts of racketeering 38, 41, 44-48, 53-55, 72, 74, 77, and 78; and removed defendant Patrick Testa's name from acts of racketeering 16 (where the name of the victim was changed from Vincent Ragucci to Dominick Ragucci) and 78. In addition, the second superseder added counts 5-6, 23-29, 54, 57-65, and 70-78, and changed count 68 from a substantive count to a conspiracy count; named additional defendants in connection with counts 7-8, 30-48, 55-56, and 66-68; and changed the dates alleged in counts 7-8, 30, 48, 55-56, and 66-69. Finally, it deleted count 39 of S 84 Cr. 63, which charged a conspiracy to transport stolen property involving fourteen of the defendants.
The pending indictment was filed on October 4, 1984. United States v. Paul Castellano et al., SSS 84 Cr. 63. It apparently made one change, adding defendant Profeta to act of racketeering 27, and it is the indictment in reference to which the current motions have been made.
1. The Statute of Limitations and Non-RICO Counts
Each of the seventy-six non-RICO counts of the current indictment stands alone as an independent charge, which the government seeks to join at trial pursuant to Fed. R. Crim. P. 8. Each one must satisfy the time limitation of section 3282.
Normally, "[o]once an indictment is brought, the statute of limitations is tolled as to the charges contained in that indictment." United States v. Grady, 544 F.2d 598, 601 (2d Cir. 1976). If a superseding indictment is brought while the original indictment is still validly pending, the superseder can adopt the original indictment's date of filing, "if and only if it dos not broaden the charges made in the first indictment ... ." Id. at 602. In this case, four possible dates exist for establishing the outside limit under section 3282: January 30, 1979; March 29, 1979; September 19, 1979; and October 4, 1979, five years, respectively, before the filling of each of the indictments.
The January 30, 1979 limitation date is appropriate only as to defendant Ustica, and only with regard to counts 31-47 of the present indictment. No other present defendant was named in the first indictment, and no other criminal activity was then charged against Ustica. The changes made in the first superseding indictment therefore cannot be viewed as "trivial" or "innocuous." Grady, 544 F.2d at 602 (quoting Stirone v. United States, 361 U.S. 212, 217, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960) (dealing with variance between indictment and charge to jury)). Similarly, with respect to defendants Profeta, Dennis Testa, and Hussain, the March 29, 1979 date is inappropriate, since they were not named as defendants until the September 19, 1984 indictment. Thus, until September 19, they were not "put on timely notice .. . that they [would] be called to account for their activities and should prepare a defense." Grady, 544 F.2d at 601. Finally, the October 4 superseder made only one change, adding defendant Profeta as to act of racketeering 27. This change has no relevant effect on the statute of limitations question, since Profeta was charged with committing several acts of racketeering (28, 41, 44, and 54) within five years of the September 19 indictment and because the act of racketeering first charged on October 4 -- a conspiracy to murder James Bennett -- was not completed until April 29, 1981, and would therefore be chargeable under either indictment.
Based on the foregoing history, any charge concerning a crime committed after September 19, 1979 poses no statute of limitations problem. Those counts charging substantive offenses that allege their commission within five years of indictment therefore satisfy the requirements of section 3282. See counts 9-12, 14-29, 33-47, 59-64, and 69. Counts 57 and 58 allege that defendant Gaggi willfully attempted to evade taxes and willfully made a false declaration in connection with his 1979 tax return. 26 U.S.C. §§ 7201 and 7206(1) (1982). These crimes allegedly occurred in April 1979 and were not charged until the September 19, 1984 superseder, but their inclusion poses no limitation difficulty because the special statute for tax offenses provides that a prosecution may be instituted within six years of the commission of the offense. Id. § 6531(2) and (5)(1982).
With respect to conspiracy counts, an offense is properly charged, for statute of limitations purposes, if, for those conspiracy counts that require overt acts, at least one overt act was committed within five years of the indictment, Grunewald v. United States, 353 U.S. 391, 396-97, 1 L. Ed. 2d 931, 77 S. Ct. 963 (1957), and, for those conspiracy counts that require no overt act, the conspiracy was not terminated before that date, United States v. Tolub, 187 F. Supp. 705, 709 (S.D.N.Y. 1960). Thus, counts 4-8, 30, 54, 65, 68, and 70 are properly charged.
An analogous rule for calculating the cut-off date applies to continuing offenses, such as 18 U.S.C. § 1962(b) (1982), the Travel Act, 18 U.S.C. § 1952 (1982), or the Hobbs Act, 18 U.S.C. § 1951 (1982). See, e.g., United States v. Provenzano, 334 F.2d 678, 684-85 (3d Cir.), cert. denied, 379 U.S. 947, 13 L. Ed. 2d 544, 85 S. Ct. 440 (1964). Counts 3, 49-53, and 55 are covered by this principle and therefore are properly charged. Defendants must be provided with proper notice, either through informal discovery or through a bill of particulars, of the specific activities charged against them, and the government will have the burden of proving beyond a reasonable doubt at trial that the conspiracies were still in existence or that the continuing offenses were still being committed within the relevant period. But the indictment is sufficient to permit the government that opportunity.
The propriety of prosecution on the remaining counts turns, initially, on whether March 29, 1979 or September 19, 1979 is the proper cut-off date for limitations purposes. Any defendant charged in a particular count in the March 29 superseder may properly be required to stand trial on that count as long as the activity alleged took place after March 29, 1979, even if it took place before September 19, 1979. On the other hand, a defendant named with regard to a particular count only in the September 19 indictment cannot be required to stand trial for that charge if he was not named in the March 29 indictment, and the crime is alleged to have been committed after March 29, 1979 but before September 19, 1979. Cf. Grady, 544 F.2d at 602-03 & n.5 (if correlative count in later indictment differs in respect to dates and specific names "it might accordingly constitute an improper amendment"). To the extent that the running of the statute of limitations frees potential defendants from the anxiety of potential prosecution, those defendants are entitled to repose. When an indictment containing particular charges has been filed, the fact that a potential defendant was not named may "serve to draw [his] attention away" from the necessity of preserving evidence and preparing to defend himself. United States v. O'Neill, 463 F. Supp. 1205, 1207 (E.D.Pa. 1979). The same principle applies, of course, to totally new counts in the second superseder.
The complexity of the indictment requires that we consider the remaining counts individually. Count 13 charges defendant Rega with mail fraud involving a mailing on approximately, March 5, 1979, more than five years before the first superseder. That the scheme of which this count is one manifestation allegedly existed until February 1983 does not cure the deficiency in this count, since the only act charged in the count did not occur within the period set by section 3282. See United States v. Allen, 554 F.2d 398, 408-09 (10th Cir.) (setting aside mail fraud conviction on counts where matter was not mailed within five years of indictment), cert. denied, 434 U.S. 836, 54 L. Ed. 2d 97, 98 S. Ct. 124 (1977). Count 13 must therefore be dismissed.
Counts 31 and 32 charge defendants Castellano, Gaggi, Joseph Testa, Patrick Testa, Borelli, LaFroscia, Senter, Ustica, Mastrangelo, Turekian, Weisberger, Rendini, Guglielmo, Dennis Testa, and Hussain with violations of 18 U.S.C. §§ 2314 and 2 (1982). They allege that, "on or about the dates specified," these defendants illegally transported stolen cars and false automobile certificates of title in interstate and foreign commerce. The date specified in the two counts is August 20, 1979. To satisfy section 3282, therefore, a defendant must have been indicted on or before August 20, 1984. Defendant Ustica was first charged with this count in the original indictment, on January 30, 1984; defendants Castellano, Gaggi, Joseph Testa, Patrick Testa, Borelli, LaFroscia, Senter, Mastrangelo, Turekian, Weisberger, Rendini, and Guglielmo were added to these counts in the first superseder, on March 29, 1984. They all were thus properly charged. But defendants Dennis Testa and Hussain were first named in these counts in the second superseder, on September 19, 1984, roughly one month after the five-year period had run. As to them, therefore, counts 31 and 32 must be dismissed, if these two defendants are alive and appear for trial.
Count 48 of the present indictment charges defendants Joseph Testa, Patrick Testa, Borelli, LaFroscia, Senter, Ustica, Mastrangelo, Turekian, Weisberger, Rendini, and Rodriguez with transporting and aiding and abetting the transportation of stolen automobiles and engines, and counterfeit automobile certificates of title in violation of 18 U.S.C. § 2314 (1982). It alleges that this offense took place "[f]rom on or about January l, 1972, up to and including February 28, 1983 . . . ." It traces its origin back to count 39 of the first superseding indictment, which charged defendants Castellano, Gaggi, Joseph Testa, Patrick Testa, Borelli, La Froscia, Senter, Ustica, Mastrangelo, Turekian, Weisberger, Rendini, Guglielmo, and Rodriguez with conspiring to violate section 2314 during the period June 1, 1977 to June 30, 1982. That count alleged overt acts in 1980 by defendants Weisberger and Rodriguez.
Unlike count 39 of the first superseder, however, current count 48 does not allege a conspiracy, but simply the commission of the substantive offense by a large number of defendants, over a long period of time. Similar charges are made in counts 56, 66, and 67. As discussed below, all these counts violate the rule against charging multiple offenses in a single count. These misjoinders of offenses, known as duplicity, also create problems with respect to the statute of limitations. If count 48, for example, were alleged as a conspiracy, it would pose no statute of limitations problem, since it charges an offense that continued until 1983. Conspiracies are continuing offenses and thus section 3282 does not begin to run in conspiracy cases until the commission of the last overt act alleged in the indictment. Grunewald, 353 U.S. at 396-97. In this case, however, the manner in which the offenses in the counts involved are charged precludes treating them as continuing ones under either prong of the test enunciated in Toussie v. United States, 397 U.S. 112, 115, 25 L. Ed. 2d 156, 90 S. Ct. 858 (1970). See Infra Section III.D. All these counts must therefore be dismissed, since some of the charges contained in them extend beyond the statutory period.
Count 48 by its terms alleges the commission of offenses during the period from January l, 1972 to March 29, 1979, and section 3282 bars prosecution of such stale charges. Count 56 charges defendants Gaggi, Joseph Testa, Kalevas, and Profeta with violating the Mann Act, 18 U.S.C § 2421 (1982), "[f]rom on or about January l, 1972, up to and including [October 4, 1984.]". Charges against defendants Gaggi and Kalevas concerning the transportation of women before March 29, 1979, and against defendants Testa and Profeta concerning crimes before September 19, 1979 are prohibited by section 3282. Moreover, to the extent that this count intimates a conspiracy, it leaves unclear: (a) whether any particular defendant violated section 2421 within five years of the indictment, or (b) that any violations of section 2421 occurred during the applicable period. For a conspiracy to have existed, only an overt act -- even one innocent in itself -- need have been committed within five years. Count 66 charges defendants Dordal, Mastrangelo, Profeta, and Dennis Testa with criminal liability for the period April l, 1979 to October 4, 1984. The period April l through September 19, 1979, however, is barred by section 3282, since they were not named in count 66 until the second superseding indictment. Moreover, count 66 incorporates by reference a number of other counts in the indictment. Counts 13 and 48, which are both incorporated, are themselves defective on statute of limitations grounds. Count 67 contains no external reference to suggest when any particular defendant did any of the acts alleged. By its terms, count 67 could charge defendant Dordal, for example, with altering a weapon on April 1, 1979. Since he was first named in this count on September 19, 1984, however, the statute of limitations prohibits prosecuting him for such an act.
Finally, counts 71 through 78 allege that defendants Patrick Testa and Weisberger rolled back odometers in violation of 15 U.S.C. § 1984 (1982) and 18 U.S.C. § 2 (1982). Aside from the overall vagueness of the prefatory language -- although each count alleges alteration in connection with a single vehicle, the counts are supposedly "not limited to the motor vehicles specified" -- the crimes were allegedly committed "[f]rom in or about 1979, up through and including in or about 1982 . . . ." To the extent that the crimes were committed during the period January l to September 19, 1979, prosecution is barred by section 3282. The government must provide, in a bill of particulars, details about the actual dates on which these crimes are alleged to have been committed that are sufficient to ensure that only crimes allegedly committed after September 19, 1979 are being prosecuted.
2. The Statute of Limitations and RICO.
Count one -- the substantive RICO count -- charges the defendants with participating in the affairs of an enterprise -- the DeMeo crew -- through a pattern of racketeering activities. A defendant can be convicted on count one if the jury finds that he committed at least two acts of racketeering with which he is charged. In considering the statute of limitations, the relevant question is whether a charge of participating in the enterprise, and not whether particular acts of racketeering could still be charged under applicable state or federal law. Thus, if a defendant committed two acts of racketeering, as defined by section 1961(1)(A) in 1980, he could not escape a RICO prosecution on the ground that the state statute of limitations applicable to those acts had expired. The applicable statute of limitations in a RICO prosecution is section 3282, which is five years. See United States v. Davis 576 F.2d 1065, 1066-67 (3d Cir.), cert. denied, 439 U.S. 836, 58 L. Ed. 2d 132, 99 S. Ct. 119 (1978).
Section 3282 does require that each defendant be named in at least one act of racketeering which is alleged to have occurred in the last five years. See United States v. Field, 432 F. Supp. 55, 59 (S.D.N.Y. 1977) (Lasker, J.), summarily aff'd, 578 F.2d 1371 (2d Cir.), cert. denied, 439 U.S. 801, 58 L. Ed. 2d 94, 99 S. Ct. 43 (1978). In this respect, RICO resembles conspiracy law, where at least one overt act within the limitations period must be alleged. Thus, " the statute of limitations for violations of the Act runs from the date of the last alleged act of racketeering activity." Id. RICO also resembles other continuing offense statutes; if a part of the continuing course of conduct falls within the limitation period, the defendant may be prosecuted for the entire course of conduct.
In this case, every defendant is named in connection with at least one act of racketeering allegedly committed within five years of the first indictment in which it was included. That other acts of racketeering have been charged which did not occur within this five year period is inconsequential. The statute contemplates "pattern[s] of racketeering activity" involving such acts. Section 1961(5) defines such patterns as consisting of "at least two acts of racketeering activity, .. . the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity." Under the statute, then, a defendant could be convicted of a pattern in which he committed one armed robbery in January 1980 and one in March 1985 even though the state statute of limitations might preclude prosecuting him on the earlier crime. Moreover, a defendant who committed an armed robbery in 1960, served twenty years in prison, and then committed another armed robbery in 1985 would also have engaged in a pattern of racketeering activity under section 1961(5). By its explicit language, section 1961(c) encompasses patterns of racketeering activity in which prior acts of racketeering may be separated from the most recent act by more than five years. In such cases, the earlier acts will always fall outside the five-year limit of section 3282. Defendants' reading of section 3282 therefore contradicts the explicit intent of Congress and would render section 1961(5) meaningless. See United States v. Boffa, 513 F. Supp. 444, 480 (D. Del. 1980).
Defendants raise an additional argument. They claim that the indictment improperly charges a single "enterprise," and that "at the very least, a series of separate and unrelated 'enterprises'" is alleged, Defendants' Memorandum at 89, many of which presumably terminated more than five years prior to indictment. The indictment in this case, however, does adequately charge a single enterprise, see infra Section II.A., so a defendant's culpability can be established by proving a pattern of racketeering stretching back before the limitations period. Whether the government has adequately proved the existence of a single enterprise rather than multiple enterprises is a question for the jury. See United States v. Bagaric, 706 F.2d 42, 63 n.18 (2d Cir.), cert. denied, 464 U.S. 840, 104 S. Ct. 133, 78 L. Ed. 2d 128 (1983); United States v. Alessi, 638 F.2d 466, 472-76 (2d Cir. 1980). If the evidence at trial fails in fact to prove a single enterprise, the government will be barred from proving a defendant's participation in a given enterprise if the only acts of racketeering a defendant committed in connection with that enterprise occurred more than five years prior to indictment.
Count 2 -- the RICO conspiracy count -- poses no statute of limitations problem. When a conviction for conspiracy requires no proof of an overt act, as is true with respect to section 1962(d), see United States v. Ivic, 700 F.2d 51, 59 (2d Cir. 1983), the limitations period begins to run only when the agreement itself is terminated. See United States v. Tolub, 187 F. Supp. at 709. The government's position appears to be that the enterprise terminated after the murder of Roy DeMeo on approximately January 10, 1983, when [the] organization of [the] crew changed extensively . . . ." Transcript of Oral Argument at 9 (Mar. 7, 1985). Count 2 incorporates by reference a number of acts alleged in count l to have been committed within the past five years. E.g., acts of racketeering 22, 25, 28(a), 29-37. This satisfies the limitations requirement in that it implicitly alleges that the agreement continued into the statutory period.
3. Due Process Constraints on Pre-lndictment Delay.
In United States v. Lovasco, 431 U.S. 783, 789, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977), the Supreme Court stated:
[S]tatutes of limitations, which provide predictable, legislatively enacted limits on prosecutorial delay, provide '"the primary guarantee against bringing overly stale criminal charges."' . . . [Nevertheless], the statute of limitations does not define [defendants'] rights with respect to the events occurring prior to indictment" ... [T]he Due Process Clause has a limited role to play in protecting against oppressive delay.
(quoting United States v. Marion, 404 U.S. 307, 322, 324, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971) and United States v. Ewell, 383 U.S. 116, 122, 15 L. Ed. 2d 627, 86 S. Ct. 773 (1966); second interpolation in original). Defendants argue that the indictment in this case involves an "inordinate delay" that has substantially prejudiced their ability to defend themselves, and should therefore be dismissed. Defendants' Memorandum at 91.
To establish a violation of the due process clause, a defendant "must carry [the] heavy burden" of showing both "actual prejudice to the defendant's right to a fair trial and unjustifiable Government conduct." United States v. Elsbery, 602 F.2d 1054, 1059 (2d Cir.), cert. denied, 444 U.S. 994, 62 L. Ed. 2d 425, 100 S. Ct. 529 (1979) (emphasis in original). See United States v. Gouveia, 467 U.S. 180, 104 S. Ct. 2292, 2300, 81 L. Ed. 2d 146 (1984) (fifth amendment applies "if the defendants can prove that the government's delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him actual prejudice"). Defendants have failed to meet this burden.
a. Actual Prejudice. Defendants claim, with respect to counts 4, 7-8, 30-49, 54-55, 57-60, and 65-69, that the delay in prosecution is so substantial that actual prejudice should be inferred. The delays claimed range from three to twelve years, but in fact defendants frequently misrepresent the actual delay involved. They often list the date of occurrence as the date on which a conspiracy or continuing offense began, and ignore the government's allegation that these offenses continued throughout the existence of the enterprise alleged in count l or until the date of the indictment itself. See, e.g., counts 7-8, 30, 48, 54-55, 55-58. Defendants also claim actual prejudice due to the difficulties they allegedly face with regard to various homicide allegations.
"Actual prejudice" is a "fairly stringent" standard. Stoner v. Graddick, 751 F.2d 1535, 1544 (11th Cir. 1985) (per curiam); cf. Lovasco, 431 U.S. at 796-97 (in five years between Marion and Lovasco, "so few defendants have established that they were prejudiced by delay that neither this Court nor any lower court has had a sustained opportunity to consider the constitutional significance of various reasons for delay"). The passage of time, and the attendant loss of evidence and dimming of witnesses' memories, is insufficient by itself to show prejudice. Elsbery, 602 F.2d at 1059. Courts have refused to infer prejudice from delays of five years, United States v. Slochowsky, 575 F. Supp. 1562 (E.D.N.Y. 1983); United States v. Puma, 521 F. Supp. 258 (E.D.N.Y. 1981), of six years, United States v. Ruggiero, 726 F.2d 913 (2d Cir.), cert. denied, 469 U.S. 831, 105 S. Ct. 118, 83 L. Ed. 2d 60 (1984), and even, in one case, of nineteen-and-a-half years, Stoner 751 F.2d 1535. Nor is the death or absence of potential witnesses or the loss of documentary evidence sufficient to establish actual prejudice. See, e.g., United States v. Solomon, 688 F.2d 1171, 1179 (7th Cir. 1982); United States v. Surface, 624 F.2d 23, 25 (5th Cir. 1980); United States v. Partyka, 561 F.2d 118, 123 (8th Cir. 1977), cert. denied, 434 U.S. 1037, 54 L. Ed. 2d 785, 98 S. Ct. 773 (1978); United States v. King 560 F.2d 122, 131 (2d Cir.) cert. denied, 434 U.S. 925, 54 L. Ed. 2d 283, 98 S. Ct. 404 (1977).
To prevail, defendants must show that material, admissible evidence has been lost by the passage of time. See, e.g., United States v. Brown, 742 F.2d 359, 362 (7th Cir. 1984) (defendant failed to show actual prejudice when he made no effort to find missing witnesses); United States v. Kidd, 734 F.2d 409, 413 (9th Cir. 1984) (defendant must demonstrate substance of missing witnesses' testimony and efforts to locate them); United States v. Radue, 707 F.2d 493, 495-96 (11th Cir. 1983) (per curiam) (defendant must make proffer of testimony and show its substantiality); United States v. Heldon, 479 F. Supp. 316, 320 (E.D.Pa. 1979) (defendant must provide details about missing evidence). Otherwise, defendants may attempt to rely on "conveniently unavailable" witnesses as tools for dismissing proper indictments. See United States v. Williams, 738 F.2d 172, 176 (7th Cir. 1984).
In this case, defendants have failed to make sufficiently particularized claims. They argue that "it is virtually impossible for the defendants to come forward and show specific examples of how the delay has prejudiced them [because] [t]he extreme delay in the case itself frustrates production of that kind of evidence." Defendants' Memorandum at 93. But the cases make clear that the passage of time, however damaging, is inadequate to sustain a due process challenge when the applicable statute of limitations allows indictment. The presumption of legitimacy provided by compliance with the statute of limitations outweighs a nonspecific claim of prejudice. If defendants' claims of prejudice become more definite as the trial progresses, the court retains the right to dismiss those counts on which actual prejudice is shown. "Events of the trial may demonstrate. actual prejudice, but at the present time, [defendants'] due process claims are speculative and premature." United States v. Marion, 404 U.S. at 326.
Defendants' arguments concerning the unfairness of using state crimes on which acquittals were obtained are particularly weak. To the extent that evidence marshalled several years ago was instrumental in obtaining an acquittal, either that evidence is still present and usable or it has disappeared, in which case defendants should be able to demonstrate prejudice with the requisite specificity. If the evidence was not discovered and used at earlier trials, however, the delay in indictment in this case cannot automatically be viewed as the cause of its disappearance, since it never appeared in the past. Cf. United States v. Ewell, 383 U.S. at 122 (defendants' earlier prosecution on similar charges "might well have enhanced [their] ability to defend themselves, for they were at the very least put on early notice that the Government intended to prosecute them for [the crimes] for which they were then and are now charged"). Defendants' claim with regard to those alleged murders with which they were not previously charged -- that "when a series of homicides occurred seven, eight, or nine years ago" no one should expect to have to defend himself against such accusations -- is undermined by New York's statute of limitations which permits prosecutions for such murders to be "commenced at any time." N.Y. Crim. Proc. L. § 30.10(2)(a) (McKinney 1981). Thus, defendants have failed to satisfy the threshold requirement of showing actual prejudice due to the permissible delay in indicting them.
b. Impermissible Government Conduct. "Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." Lovasco, 431 U.S. at 790. Defendants have failed to show that the delay in indicting them was in any way caused by unjustifiable prosecutorial conduct, the second prong of the due process test. They mistakenly suggest that the burden lies on the government to provide a justifiable reason for the delay. Defendants' Memorandum at 92. But "the burden [is] on [defendants] to establish .. . that the delay was an intentional device to gain tactical advantage over the accused." United States v. Mejias, 552 F.2d 435, 443 (2d Cir.), cert. denied, 434 U.S. 847, 98 S. Ct. 154, 54 L. Ed. 2d 115 (1977), (quoting Marion, 404 U.S. at 325).
Prosecutors are under no duty to file charges before becoming satisfied that they will be able to prove guilt at trial. Lovasco, 431 U.S. at 791. Even after a prosecutor has obtained enough evidence to ensure a conviction, no constitutional requirement to commence prosecution exists:
[C]ompellig a prosecutor to file public charges as soon as the requisite proof has been developed against one participant on one charge would cause numerous problems in those cases in which a criminal transaction involves more than one person or more than one illegal act. In some instances, an immediate arrest or indictment would impair the prosecutor's ability to continue his investigation, thereby preventing society from bringing lawbreakers to justice. In other cases, the prosecutor would be able to obtain additional indictments despite an early prosecution, but the necessary result would be multiple trials involving a single set of facts. Such trials place needless burdens on defendants, law enforcement officials, and courts.
Id. at 792-93. A "fundamental" difference exists between "investigative delay" and "delay undertaken by the Government solely 'to gain tactical advantage over the accused . . . .'" Id. at 795 (quoting Marion, 404 U.S. at 324).
In this case the metamorphoses of the indictment suggest continuing investigation by the government. Given the scope of the criminal activity alleged, and therefore of the investigation involved, the delay in this case appears to have been necessary to allow the government to assess the effect of prior state proceedings, complete its investigation, determine the need for and breadth of the federal charges, and obtain the evidence to present to the grand jury. See United States v. Mejias, 552 F.2d at 443 (two-year delay for such purposes permissible); see also, e.g., United States v. Mastroianni, 749 F.2d 900, 911 (1st Cir. 1984) (seven-month delay permissible while investigating scope of continuing criminal enterprise); United States v. Surface, 624 F.2d at 25 (fifteen-month delay permissible when government thought defendant might be part of a larger conspiracy); United States v. Slochowsky, 575 F. Supp. at 1569 (six-month delay is "not an unreasonable amount of time given the scope of the investigation" but rather is "good faith investigative delay").
Moreover, the court is aware that significant evidence and testimony became available only after the demise of the enterprise alleged in the RICO counts, in mid-winter 1983. The recent availability of such evidence also explains and justifies the pre-indictment delay in this case. See United States v. Ricco, 549 F.2d 264, 272 (2d Cir.) (when witness began cooperating only one year before indictment, 2-1/2 year delay was acceptable), cert. denied, 431 U.S. 905, 97 S. Ct. 1697, 52 L. Ed. 2d 389 (1977); United States v. Slochowsky, 575 F. Supp. at 1564, 1569 (six-month delay after major witness began cooperating and government's attempt to obtain more witnesses justified almost five-year delay in bringing some parts of RICO indictment); United States v. Puma, 521 F. Supp. at 260 (five-year delay permissible in case involving informant) cf. United States v. Partyka, 561 F.2d at 123 (government's desire to protect informant can provide legitimate reason for delay).
No obvious explanation exists for the pre-indictment delay related to some of the counts of the indictment. E.g., counts 57-60 (tax violations by defendant Gaggi in 1979 and 1980). Such counts cannot, however, be viewed in isolation for due process/pre-indictment delay purposes. To the extent that unfair prejudice results from the government's decision to try this case in one proceeding, that issue is better addressed with reference to the motions for severance, discussed below. Lovasco establishes that the passage of time attributable to governmental decisionmaking about whether to bring prosecutions -- because of either evidentiary or resource-management concerns -- is legitimate delay. In any event, those counts as to which the pre-indictment delay seems the least readily explicable also seem to be those counts in which the potential for actual prejudice is least likely.
Defendants have moved to dismiss the entire indictment, as well as many individual counts, on the ground that venue is improper in the Southern District of New York. A criminal case must be tried "in a district in which the crime was committed." Fed. R. Crim. P. 18. Where the crime is committed depends upon the nature of the crime alleged, and the location of the act or acts constituting it. See United States v. Anderson, 328 U.S. 699, 703, 90 L. Ed. 1529, 66 S. Ct. 1213 (1946); United States v. Candella, 487 F.2d 1223, 1227-28 (2d Cir. 1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1563, 39 L. Ed. 2d 872 (1974). The government may prosecute a case involving a "continuing offense" in any district in which such an offense was begun, continued, or completed. 18 U.S.C. § 3237(a) (1982). Venue is an essential part of the government's case in a criminal prosecution, see United States v. Buckhanon, 505 F.2d 1079, 1083 (8th Cir. 1974), and the government must prove at trial by a preponderance of the evidence that venue is proper, United States v. Grammatikos, 633 F.2d 1013, 1022 (2d Cir. 1980). At this stage of the proceedings, however, the government need only allege, with sufficient specificity, that venue is appropriate by reason of the commission of the charged acts in the Southern District. See United States v. Valle, 16 F.R.D. 519, 521-22 (S.D.N.Y. 1955). Where the indictment is insufficient on its face, moreover, the government may meet this burden either by amending the indictment to reflect the commission of the charged acts in the Southern District, or through a sworn bill of particulars. See United States v. Honneus, 508 F.2d 566, 570 (1st Cir. 1974) (holding that an indictment is not legally insufficient for failure to allege where the offense took place, but noting that defendant would have been entitled to the information had he sought a bill of particulars), cert. denied, 421 U.S. 948, 44 L. Ed. 2d 101, 95 S. Ct. 1677 (1975). "[S]ince defendants have a constitutional right to be tried in the proper forum, not the right to be charged with the proper venue, a pleading is sufficient that contains no statement of the place of the crime, although in such a case defendant should be advised of the place by a bill of particulars in order to avoid any possibility of prejudicial surprise." C. Wright, Federal Practice and Procedure: Criminal 2d § 125, at 380-81 (1982) [hereinafter cited as Federal Practice and Procedure: Criminal 2d].
In this case, the government has sufficiently alleged venue with respect to counts 1-2, 5-22, 30-49, 51, 54, 57, 59, and 68. The first count, which charges defendants with participating in a racketeering enterprise, alleges a continuing offense. As such, this RICO count may be prosecuted in any district in which the criminal activity was begun, continued, or completed. 18 U.S.C. § 3237(a) (1982). In charging a pattern of racketeering activity, the government has alleged 80 racketeering acts, several of which are alleged in general terms to have occurred in the Southern District, and with respect to a few of which the government has alleged concrete details supporting venue in this district. See, e.g., acts of racketeering 42 (extortionate extension of credit to theatre in Westchester County) 45-48 (matter alleged to have been mailed to Manhattan and Yonkers). In count 2, which charges defendants with a conspiracy to violate RICO, the government has properly alleged venue in the Southern District inasmuch as the underlying substantive offense is alleged to have occurred, at least in part, in the Southern District.
Defendants accurately argue that virtually every significant racketeering act alleged in the indictment occurred in the Eastern District of New York. They contend that, even if the technical requirements of Rule 18 are satisfied by a handful of relatively insignificant contacts with the Southern District, venue has constitutional and supervisory dimensions which require this trial to be held in the Eastern District. See generally United States v. Fernandez, 480 F.2d 726, 729-35 (2d Cir. 1973). Questions of venue sometimes raise "deep issues of public policy," United States v. Johnson, 323 U.S. 273, 276, 89 L. Ed. 236, 65 S. Ct. 249 (1944), but not here. No unfairness or hardship has been identified as having been created by the trial of this case at the Manhattan end of the Brooklyn Bridge as opposed to the Brooklyn end. Nor has any reason been advanced to suggest that this district is more favorable to the prosecution than the Eastern District would be. Defendants' venue contentions as to Counts l and 2 are, in fact, based on the technical requirements of Rule 18, and lose their strength entirely when examined in terms of the policies underlying truly substantive questions of venue.
Count 3 charges defendant Sol Hellman with unlawfully acquiring and maintaining an interest in and control of an enterprise, the Glenwood Flea Market in Brooklyn, which affected interstate and foreign commerce. The indictment alleges that the offense occurred in the Eastern District, but the government asserts in a Memorandum of Law that Hellman "acquired the Glenwood Flea Market at the offices of Saxe, Bacon & Bolan in Manhattan." See Government's Memorandum of Law in Opposition to Defendants' Joint Omnibus and Individual Motions at 85 (hereinafter cited as "Government's Memorandum"). The government must make this claim in a sworn bill of particulars. Counts 58, 60, 62, and 64 charge Gaggi or Sol Hellman with signing false tax returns in the Southern and Eastern Districts, respectively. The government has conceded these counts must be dismissed for lack of venue, absent a waiver by the defendants, because all the returns involved were signed in the Eastern District. No other charge in the indictment fails on its face to include an allegation of venue that could at least be construed to include the Southern District.
Several counts of the indictment allege that the crimes charged occurred in some district other than the Southern District of New York, but add the words "and elsewhere." For example, counts 23-29 charge Judith and Wayne Hellman with mail or wire fraud "in the District of New Jersey and elsewhere." These counts suggest no basis for placing venue in the Southern District of New York, apart from the possibility that "elsewhere" was meant to include this district. The government claims that it will establish venue with respect to these counts through expert testimony to the effect that the mail involved traveled through this district. This claim must be made in a sworn bill of particulars, based on actual knowledge that such testimony will be offered on each of the counts at issue. Similar allegations are contained in counts 50 (Turekian and Guglielmo extorted property from no-show jobs in Brooklyn); 52 (Sol and Wayne Hellman extorted property from business in Brooklyn); 53 (Gaggi and Kalevas extorted property from house of prostitution in New Jersey); 61 (Sol Hellman evaded taxes for 1980); and 63 (Sol Hellman evaded taxes for 1981). The government claims it will establish venue in the Southern District for each of these counts, and has made some representations as to the proof they will offer. But the government's claims respecting these counts must be made in a bill of particulars. The claim regarding counts 61 and 63 is particularly vague; the government must allege under oath the existence of evidence that Hellman committed acts of attempted evasion in the Southern District during 1980 and 1981 sufficient to confer venue, or the counts must be dismissed.
Other counts of the indictment allege that the crimes took place "in the Southern District of New York," but provide no basis for this allegation. For example, counts 31-47 charge many defendants with transporting stolen automobiles and engines and counterfeit certificates of title in interstate commerce, "in the Southern District of New York and elsewhere," but the crimes alleged apparently took place primarily in Brooklyn and nothing in the charges suggests a connection to the Southern District. The government claims, however, that it will prove venue by showing that the invoices involved in these crimes were mailed to or through this district, that the cars involved were shipped over waters within the district, and in other ways. Any of the bases for venue claimed by the government to exist is sufficient in principle, but a basis for venue must be alleged in a bill of particulars for each of the counts at issue. This form of possible insufficiency is also present in connection with counts 55, 57, 59, 69 and 71-78. The government has made sufficient oral or written representations concerning most of these counts to satisfy the venue requirement at this stage. See, e.g., Government's Memorandum at 86-87. The government must, however, make its representations formal through a bill of particulars. (Counts 48, 56, 66, and 67 would also fall into this category of venue problems, but for reasons given below they must be dismissed for duplicity.) The representations concerning counts 57 and 59 seem insufficient as a matter of law; here, as in connection with counts 61 and 63, the government must affirm the existence of evidence sufficient to prove acts of attempted evasion of taxes by Gaggi, in this district, during 1978 and 1979, or the counts should be dismissed.
Counts 9-22 charge various defendants with certain schemes or artifices to defraud. These offenses are continuing offenses. The government has properly alleged venue with respect to counts 9-13, 18, and 21-22 on the ground that matter was mailed from or to the Southern District in furtherance of the schemes charged. With respect to counts 14-17 and 19-20, the government must provide information in a bill of particulars similar to that required with respect to counts 23-29.
In Counts 4-8, 30, 54, 65, 68, and 70, the government charges certain defendants with various conspiracies. Prosecutions for conspiracy may be had in a district in which an agreement was formed or in any district in which an overt act in furtherance of the conspiracy occurred. Bellard v. United States, 356 F.2d 437, 438 (5th Cir.), cert. denied, 385 U.S. 856, 17 L. Ed. 2d 83, 87 S. Ct. 103 (1966). In each of these counts, the government has alleged that at least one overt act was performed in the Southern District. Count 4 presents a special problem. It charges defendants Joseph Testa, Senter, Ustica, Borelli, and Guglielmo with conspiring to deprive Ronald Falcaro and Khaled Daoud of their right to be witnesses against the defendants. On its face, the count explicitly alleges venue "in the Southern District of New York and elsewhere," and it charges in overt act 2 that that Ustica completed freight forwarding invoices in Manhattan. Defendants argue, however, that Ustica's preparation of invoices had nothing to do with the deaths of Falcaro and Daoud, and they claim that the government has no other basis for placing venue in this district. Acts that may appear innocuous can suffice to establish venue in a conspiracy count, but they must be acts undertaken in furtherance of the conspiracy charged. In this case, the invoices allegedly prepared by Ustica played a part in the illegal automobile scheme in which the defendants are claimed to have participated, and concerning which the two dead men may have wanted to testify. But the government must demonstrate how the invoices were part of the scheme by which defendants conspired to deprive the deceased of their civil rights; more specifically, the government must show that the completion of the invoices accompanied or followed the formation of the conspiratorial agreement and that this act was undertaken in furtherance of the plan to deprive Falcaro and Daoud of their right to be witnesses against the defendants. See Williams v. United States, 271 F.2d 703 (4th Cir. 1959). The government must present its theory for justifying venue for trying count 4 in this district before a final determination of its propriety is made.
Similar claims as to the sufficiency of the venue allegations in counts 5 and 6 are meritless, since the meetings alleged in those counts to have occurred in this district are claimed by the government to have been part of the scheme by defendants to determine whether their alleged victims were cooperating. Count 54 arguably poses a problem similar to that posed by count 4. The charge properly alleges venue as to a prostitution scheme, and asserts as an overt act that Kalevas "held an interest in the 'Roxy Theater' located on 42nd Street, in Manhattan." The government has adequately met this argument, however, by representing that the interest allegedly held by Kalevas was an aspect of the conspiracy charged. The government should also make clear in its bill of particulars that in counts 49, 55 and 56 the term "New York" means Manhattan or the Bronx.
C. Grand Jury Irregularities.
Defendants move to dismiss the entire indictment because of possible irregularities before the grand jury. Defendants have presented no evidence to support their claim of irregularities, contending instead that "experience has taught us that the areas of due process earmarked in this application are well-identified sectors where serious abuses have occurred in the past." Defendants' Memorandum at 115. Essentially, defendants seek discovery, requesting a list of all persons who appeared before the grand jury during the course of its investigation in order to determine whether any unauthorized person appeared before the grand jury in violation of Fed. R. Crim. P. 6, and a full inspection of the grand jury minutes to determine whether hearsay was relied upon exclusively, whether the grand jurors who actually voted the indictment against the defendants heard all the evidence presented, whether the government failed to disclose favorable or exculpatory evidence, and. whether the government presented irrelevant and prejudicial evidence.
A presumption of regularity attaches to grand jury proceedings and, as Judge Weinfeld stated in United States v. Wilson, 565 F. Supp. 1416, 1436 (S.D.N.Y. 1983), "[c]counsel's unsupported view that abuses may have occurred ... with respect to the grand jury system is insufficient ... to overcome the presumption of regularity of the grand jury proceedings and does not justify disturbing the traditional secrecy surrounding such proceedings." As a precautionary measure, this court requested the government to review the grand jury proceedings in this case and to certify that the proceedings complied with the relevant rules in all respects. Assistant United States Attorney Walter Mack has stated in a sworn affidavit, inter alia, that (1) no unauthorized person was present during the grand jury proceedings or deliberations; (2) the government warned the grand jury of the differences between hearsay and non-hearsay testimony; (3) the government did not knowingly withhold exculpatory materials from the grand jury; (4) the government made no statement or argument calculated to inflame the grand jury unfairly against defendants; and (5) twelve or more grand jurors concurred in the filing of the indictment. Affidavit of Walter S. Mack, Jr. at 1-2 (Dec. 31, 1984) (reprinted in Appendix to Defendants' Memorandum). This procedure helps ensure that the government has not unintentionally overlooked any irregularity that may have occurred in the grand jury proceedings without materially disturbing the presumption of regularity that avoids needless and wasteful judicial inquiry when no evidence of any impropriety has been presented.
No basis exists on this record for dismissing the indictment on the ground of "possible" irregularities in the grand jury proceedings.
II. The Government's Use of RICO.
A. Alleged Failure to Charge a Single Enterprise.
Defendants claim that the substantive RICO count must be dismissed because it fails adequately to charge a single enterprise and a common pattern of illegal activity. The indictment does, however, charge that defendants are a group of persons who associated for a common business purpose. See United States v. Turkette, 452 U.S. 576, 583, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981). The "crew" they formed is alleged to have had a street leader, above whom was a "captain," who in turn took direction from a "boss." This is a structure, with a hierarchy and an ongoing core of members sharing the common interest in profiting from certain illegal activities. Some defendants are not claimed to have been long-term members, but the allegations about the core group with continuing, joint activities satisfactorily alleges an enterprise.
The statutory requirement of a "pattern of racketeering activity" is defined only as "at least two acts of racketeering . .. within ten years . ..." 18 U.S.C. § 1961(5) (1982). The Second Circuit has expressly rejected the defendants' contention that the acts charged must have some relationship to one another. United States v. Weisman, 624 F.2d 1118, 1121-23 (2d Cir. 1980). Chief Judge Feinberg pointed out in Weisman that, since "the predicate acts constituting a 'pattern of racketeering activity' must all be done in the conduct of the affairs of an 'enterprise' ..., [t]he enterprise itself supplies a significant unifying link between the various predicate acts specified in section 1961(1) that may constitute a 'pattern of racketeering activity."' Id. at 1122. Furthermore, the government's arguments in this case, and to an extent the indictment, reflect that most of the enterprise members charged operated as a stereotypical organized crime group, engaging in the conventional variety of illegal activities, with the added role of serving in effect as a death squad. This is "pattern" enough to satisfy the statute; indeed, it is the pattern that most influenced Congress' decision to adopt RICO.
B. Claimed Multiplicity and Merger of Counts One and Two.
Defendants claim that counts l and 2 of the indictment, which respectively allege violations of a substantive provision ofRICO, 18 U.S.C. § 1962(c), and of the conspiracy provision, id. § 1962(d), charge the same offense and are therefore multiplicitous. "Traditionally the law has considered conspiracy and the completed substantive offense to be separate crimes." Iannelli v. United States, 420 U.S. 770, 777, 43 L. Ed. 2d 616, 95 S. Ct. 1284 (1975). To negate the normal presumption that an indictment can charge a substantive offense and a conspiracy to commit that substantive offense, defendants rely on two, similar tools of statutory analysis -- Wharton's Rule and the Blockburger test. Wharton's Rule provides that "[a]n agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission." Id. at 773 n.5 (quoting l R. Anderson, Wharton's Criminal Law and Procedure § 89, at 91 (1957)). Under the Blockburger test, a single act can be prosecuted and punished as a violation of two statutes if "each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932).
Defendants' argument focuses on the indictment's identification of the alleged enterprise as the "DeMeo crew," "a group of individuals associated in fact to conduct, participate in and commit acts of racketeering activity . ..." Indictment P2. Defendants contend that, because the government has defined the enterprise as a group of individuals united for the purpose of committing acts of racketeering, the enterprise itself is an agreement. Thus, "[i]f the Government proves Count One, perforce it necessarily proves Count Two. Count Two is thus the 'same offense' as Count One because it requires proof of no fact that Count One does not." Defendants' Memorandum at 25.
Defendants' argument is flawed in two fundamental respects. First, both Wharton's Rule and the Blockburger test are '"rule[s] of statutory construction," and because "[they] serv[e] as a means of discerning congressional purpose the rule[s] should not be controlling where, for example, there is a clear indication of contrary legislative intent." Albernaz v. United States, 450 U.S. 333, 340, 67 L. Ed. 2d 275, 101 S. Ct. 1137 (1981); see Iannelli, 420 U.S. at 782. Second, even if the Blockburger test does apply to this case, the indictment satisfies Blockburger's requirements.
The Second Circuit has suggested that the "plain language and different elements of § 1962(c) and § 1962(d) combined with the absence of a contrary legislative intention, support[s] the imposition of consecutive sentences for violations of both subsections." United States v. Bagaric, 706 F.2d 42, 63 n.18 (2d Cir.), cert. denied, 464 U.S. 840, 104 S. Ct. 133, 78 L. Ed. 2d 128 (1983). The language and structure of section 1962 in fact manifest affirmatively Congress' intention to allow dual prosecutions, rather than simply the absence of an intention to forbid them. Contrary to defendants' claims, Congress did not intend to create a group offense by enacting section 1962(c) -- the substantive RICO provision involved in count one. Section 1962(c) contains no language suggesting that its violation requires any proof of group activity. It penalizes individuals for participating in the affairs of an enterprise through a pattern of racketeering activity. Furthermore, the definition of "enterprise" explicitly recognizes that an individual may constitute an enterprise for purposes ofRICO. 18 U.S.C. § 1961(4) (1982). Therefore, that the enterprise involved in a particular RICO may be a group -- either formal or informal, either legitimate or wholly illegal -- has nothing to do with the question whether an individual committed racketeering activities while participating in the affairs of that enterprise. Conversely, an individual who in fact engages in group activity by participating in a RICO conspiracy cannot be prosecuted and punished under section 1962(c) unless the government proves that he alone committed two acts of racketeering.
In addition, the enactment of section 1962(d) itself strongly suggests that Congress viewed it as distinct from section 1962(c). Normally, conspiracies to violate particular substantive provisions of Title 18 are prosecuted under the general federal conspiracy statute, 18 U.S.C. § 371 (1982). RICO, however, contains its own conspiracy provision, section 1962(d). Congress' decision to enact a new conspiracy statute at the same time that it created a substantive offense that might often involve an enterprise which was simply "a group of persons associated together for a common purpose of engaging in a course of [criminal] conduct," United States v. Turkette, 452 U.S. at 583, is "persuasive evidence" that Congress viewed sections 1962(c) and 1962(d) as separate crimes. United States v. Ohlson, 552 F.2d 1347, 1349 (9th Cir. 1977) (per curiam). See United States v. Hawkins, 516 F. Supp. 1204, 1207 (M.D.Ga. 1981).
Finally, the ways in which section 1962(d) differs from traditional conspiracy law suggest that Congress did not intend its enactment to subvert the normal. presumption that both substantive and conspiracy counts could be charged in the same indictment. First, unlike section 371, section 1962(d) does not require proof of overt acts in furtherance of the conspiracy. See United States v. Barton, 647 F.2d 224, 237 (2d Cir.), cert. denied, 454 U.S. 857, 70 L. Ed. 2d 152, 102 S. Ct. 307 (1981). More importantly, section 1962(d) was designed both to permit the prosecution of agreements that would not be reachable under traditional conspiracy doctrine, see United States v. Elliott, 571 F.2d 880, 902-04 (5th Cir.), cert. denied, 439 U.S. 953, 99 S. Ct. 349, 58 L. Ed. 344 (1978); United States v. Loften, 518 F. Supp. 839, 853 (S.D.N.Y. 1981), and to provide harsher penalties than those attached to section 371, see Barton, 647 F.2d at 237-38. The thrust of section 1962(d) is "to establish 'new penal prohibitions, and . . . enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime. " United States v. Boylan, 620 F.2d 359, 361 (2d Cir.) (quoting Statement of Findings and Purpose of Organized Crime Control Act of 1970), cert. denied, 449 U.S. 833, 66 L. Ed. 2d 38, 101 S. Ct. 103 (1980). Like the enactment of multiple statutory schemes for controlling narcotics trafficking, the enactment of sections 1962(c) and 1962(d) may be said to "reveal[l] the determination of Congress to turn the screw of the criminal machinery -- detection, prosecution and punishment -- tighter and tighter." Albernaz, 450 U.S. at 343 (quoting Gore v. United States, 357 U.S. 386, 390, 2 L. Ed. 2d 1405, 78 S. Ct. 1280 (1958)). A reading of sections 1962(c) and 1962(d) that permits prosecution under both statutes better comports with this clear congressional purpose.
Wharton's Rule requires a "focus[s] on the statutory requirements of the substantive offense rather than the evidence [that may be] offered to prove those elements at trial . . . ." Iannelli, 420 U.S. at 780. It "applies only to offenses that require concerted criminal activity, a plurality of criminal agents." Id. at 785 (emphasis in original). Section 1962(c) does not require concerted criminal activity. It requires only that an individual commit at least two acts of racketeering while participating in the conduct of an enterprise. This distinction is clearer, of course, when the enterprise charged has an existence wholly unrelated to any agreement to commit acts of racketeering, as the government's example of a corporate officer who commits two murders to benefit the corporation suggests. Defendants concede that under such circumstances prosecution under both RICO provisions might be permissible, but they argue that the nature of the enterprise alleged is relevant to whether acts of racketeering committed in the conduct of its affairs can support a RICO prosecution. The Supreme Court has already rejected this argument, however. In Turkette, the Court held that an enterprise that was a group of individuals associated in fact for the purpose of violating the narcotics laws is within RICO's iambic. See 452 U.S. at 590-91. The Court found that it would be "incongruous" to insulate the wholly criminal enterprise from prosecution under RICO . .. ." Id. at 587. Defendants' contention in this case would have a similar incongruous result. It would permit consecutive sentences for defendants who committed their acts of racketeering in the conduct of legitimate businesses while preventing such sentences in cases involving wholly criminal enterprises. Congress cannot be said to have intended such a result.
Blockburger requires a similar conclusion. Like Wharton's Rule, the Blockburger test "focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes." Iannelli, 420 U.S. at 785 n.17; see Illinois v. Vitale, 447 U.S. 410, 416, 65 L. Ed. 2d 228, 100 S. Ct. 2260 (1980). Section 1962(c) requires proof that a defendant actually committed two acts of racketeering. The heart of a section 1962(c) offense is participation in the affairs of an enterprise through acts of racketeering. Section 1962(d), however, requires no proof of any act -- of racketeering or otherwise.
Conversely, section 1962(d) requires proof that a defendant agreed with other persons to participate in the affairs of an enterprise through the commission of acts of racketeering. United States v. Ruggiero, 726 F.2d 913, 923 (2d Cir.), cert. denied, 469 U.S. 831, 105 S. Ct. 118, 83 L. Ed. 2d 60 (1984). Proof of a conspiratorial agreement is not a necessary element of a prosecution under section 1962(c). Defendants claim this rationale is inappropriate when the enterprise alleged is an association "in fact" rather than a formal entity of some kind. An association in fact can exist, defendants argue, only when two or more persons combine together, and proof of such a combination will always and necessarily establish the existence of a conspiracy under section 1962(d). The short answer to this contention is that Blockburger turns on the elements of a crime, and not on the potential proof at trial. Furthermore, proof of a defendant's participation in an association in fact will not necessarily establish his membership in a conspiracy. To prove that a defendant participated in a de facto enterprise through a pattern of racketeering, the government need prove only that the defendant was aware that such an enterprise existed and that he engaged in two acts of racketeering that were related to the activities of, or affected, that enterprise. See United States v. Scotto, 641 F.2d 47, 54 (2d Cir. 1980) cert. denied, 452 U.S. 961, 69 L. Ed. 2d 971, 101 S. Ct. 3109 (1981). Thus, for example, once the government proves that some "members" formed the DeMeo crew, it will not be required to do more concerning other "members" or "associates" than to show that each defendant performed two acts of racketeering that affected the enterprise. United States v. Ruggiero, 726 F.2d at 921. See also infra Section II.D. To prove that a defendant joined a conspiracy to participate in the affairs of an enterprise through acts of racketeering, however, the government must prove that a defendant himself has "objectively manifested an agreement to participate, directly or indirectly, in the affairs of an enterprise [through a pattern of racketeering.]" Laterza v. American Broadcasting Co., 581 F. Supp. 408, 413 (S.D.N.Y. 1984) (emphasis added) (quoting Elliott, 571 F.2d at 903).
The Second Circuit stated in Scotto that "[w] e have no reason to believe, .. . from the words of the statute or from general criminal law doctrine, that the quantum of mens rea required for a RICO conspiracy conviction should be different from or greater than that required for a substantive RICO offense." 641 F.2d at 56. This statement, however, must be taken in context. First, Scotto's holding concerning the quantum of mens rea required to prove a violation of section 1962(c) -- that no proof of scienter beyond that required to prove the underlying acts of racketeering is necessary, id. at 55-56 -- was made in response to the claim that some specific intent to violate RICO must be shown. Scotto explicitly acknowledged that "[s]imply committing predicate acts which are unrelated to the enterprise or to one's position within it would be insufficient" to establish a violation of RICO. Id. at 54. This suggests a requirement that some level of awareness of the existence of an enterprise be shown. The Second Circuit also recently approved instructions that permit the jury to find a defendant guilty of a RICO conspiracy only if they find that the defendant "conspired to participate in the affairs of the [enterprise] by engaging in the predicate offenses." Ruggiero, 726 F.2d at 923 (emphasis added). This ruling suggests that more than an agreement to commit acts of racketeering, without any connection to an enterprise, is required. In addition, Scotto's clear reference to "general criminal law doctrine" undermines any suggestion that Scotto meant to eliminate the traditional requirement that a conspirator have manifested a deliberate agreement to join the conspiracy. Although RICO conspiracies may not require proof of overt acts, and may allow charging more diffuse agreements than section 371 would permit, the essential requirement that the government prove a conspirator knowingly became part of a criminal enterprise remains.
The preceding analysis also shows why count one is not a lesser-included offense of count two. If count one were a lesser-included offense of count two, then application of the Blockburger test would have shown that count two requires proof of an element for which count one does not, but that proof of count two necessarily results in proof of count one. But, as we have seen, count one does require proof of an element -- the actual commission of two acts of racketeering in the conduct of the affairs of the enterprise -- that is not required for conviction on count two. Thus, proof sufficient to establish count 2 would not necessarily establish count l, so the counts do not merge.
C. Claimed Multiplicity of Count 2 and Non-RICO Conspiracies.
Defendants also argue that the non-RICO conspiracies alleged in the indictment -- counts 4-8, 30, 54, 65, 68 and 70 -- are all multiplicitous with the RICO conspiracy charged in count two. Proof of some of those conspiracies, however, requires proof of an overt act, an element not required to prove conspiracy under section 1962(d). In addition, the RICO conspiracy differs from the other conspiracies in that a defendant can only be convicted if the government proves that he personally agreed to commit at least two of the predicate acts of racketeering alleged in count one. The Second Circuit has ruled that Congress intended to enhance the penalties faced by persons who conspire to violate RICO beyond those available to punish people who violate other conspiracy provisions. Barton, 647 F.2d at 234-38.
Several individual defendants claim that their joinder with all the other defendants in counts l and 2 violates Fed. R. Crim. P. 8(b), because the RICO charges against them are legally insufficient, or because those charges should be tried separately. In addition, some defendants raise joinder arguments concerning the joinder of substantive counts with the two RICO counts. Finally, counts 48, 56, 66, and 67 improperly join more than one offense, and are therefore invalid as duplicitous.
1. Joinder of Defendants in the RICO Counts.
The indictment on its face satisfies the requirements of Rule 8(b) with respect to the RICO counts. The rule permits two or more defendants to be charged in the same indictment "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." The limitations on the government's charging power imposed by this language are largely eliminated when a conspiracy is alleged. The mere allegation of a conspiracy presumptively satisfies Rule 8(b), since the allegation implies that the defendants named have engaged in the same series of acts or transactions constituting an offense. The presence of a substantive RICO count under 18 U.S.C. § 1962(c), and of a RICO conspiracy count under 18 U.S.C. § 1962(d), further broadens the government's power to charge multiple defendants together. A RICO charge under § 1962(c) necessarily incorporates allegations that each of the defendants named was associated with or employed by the same enterprise, and participated in the enterprise by engaging in at least two acts of racketeering related to the enterprise. In short, by loosening the statutory requirements for what constitutes joint criminal activity, Congress limited the force of Rule 8(b) in such situations. Indeed, even if a defendant is not named in a conspiracy or RICO count, he may be charged in a separate count, in the same indictment, if he is alleged to have participated in the same series of acts or transactions that constituted the conspiracy or RICO offense, despite the fact that his participation may have been too limited to permit his being included as a co-conspirator or co-racketeer. See, e.g., Barton, 647 F.2d at 240; Weisman, 624 F.2d at 1129.
The present indictment meets the requirements of Rule 8(b), since all the defendants are alleged to have participated in, or to have conspired to participate in, the enterprise charged in counts l and 2. Defendants seem to recognize this fact, but argue that, in the circumstances presented here, the court should require the government to show in advance of trial that it has at least a prima facie case for trying each of the moving defendants along with the "crew" members. The government rejects this claim, properly treating it as a motion to dismiss and arguing therefore that, so long as the indictment is sufficient on its face, defendants must make this claim at the end of the government's case, under Fed. R. Crim. P. 29. The government argues that the RICO counts and acts of racketeering may be dismissed against a particular defendant only "if the Count or Act is legally insufficient on its face," for example, "if the Act charged a state law misdemeanor .. . or a federal crime not within the specified list . .. ." Government's Supplemental Memorandum of Law in Opposition to Defendants' Joint Omnibus and Individual Motions at 2 n.* [hereinafter cited as "Supplemental Memorandum"]. The government is correct in contending that defendants generally may not move to dismiss criminal charges that are facially sufficient. See Costello v. United States 350 U.S. 359, 362-63, 100 L. Ed. 397, 76 S. Ct. 406 (1956). Here, some defendants are attempting to do just that, because their claims of misjoinder are based on the proposition that, whatever is alleged, the government lacks sufficient evidence to justify prosecuting them on the RICO counts under any legally sufficient theory.
The established process for evaluating a motion under Rule 8(b) is to determine whether the defendants "are alleged" to have participated in the same series of transactions constituting an offense. The rule anticipates only that the government will, through the grand jury, proceed in good faith. As construed in this Circuit, the government acts in good faith unless it knowingly relies on a theory of joinder which has previously been held insufficient, or acts without a reasonable expectation that sufficient proof will be forthcoming at trial," United States v. Ong, 541 F.2d 331, 337 (2d Cir. 1976), cert. denied, 429 U.S. 1075, 50 L. Ed. 2d 793, 97 S. Ct. 814 (1977); see United States v. Aiken, 373 F.2d 294, 299 (2d Cir.), cert. denied, 389 U.S. 833, 19 L. Ed. 2d 93, 88 S. Ct. 32 (1967). These determinations have usually -- though not invariably -- been made after trial.
No authority appears to exist, however, that prohibits pretrial scrutiny of the sufficiency of the government's theory, and of the evidence it represents it expects to be able to introduce at a joint trial. This process differs from an examination of the sufficiency of the government's evidence, which would greatly and improperly burden the government's right to prosecute persons duly indicted by a grand jury. Pretrial scrutiny can be strictly limited to testing the theory the government espouses and the sufficiency of its expected proof. This exception to the general rule barring a pretrial test of the sufficiency of the government's case is supported by the language of Fed. R. Crim. P. 12(b)(1), which provides that "[a]ny defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion." The sufficiency of the government's theory, or of the facts it represents its evidence will prove, can both be determined without a trial. And this limited review enables a court to protect persons from the enormous burdens and risks of a major trial, without significantly or improperly limiting the government's right to prosecute.
A recent Second Circuit decision, United States v. Travisano, 724 F.2d 341 (2d Cir. 1983), illustrates the operation of the limited review appropriate in the circumstances of this case. Judge Eginton had granted defendant's pretrial motion to dismiss both counts of an indictment, one of which charged the defendant as a prior felon with possession of a firearm that had affected commerce. See 18 U.S.C. § 1202(a) (1982). On appeal, the government argued that, while it had no evidence that the shotgun involved had actually traveled in interstate commerce, it could prove that the gun's manufacture itself had had a substantial impact on commerce. The Second Circuit affirmed Judge Egnton's ruling, and concluded that the facts which the government represented it could prove through its evidence would be insufficient to establish a violation of the statute. See 724 F.2d at 347-48. Similar rulings have been rendered in RICO cases. See United States v. Kaye, 586 F. Supp. 1395, 1400 (N.D. Ill. 1984); United States v. Cryan, 490 F. Supp. 1234, 1243-44 (D.N.J.), aff'd, 636 F.2d 1211 (3d Cir. 1980).
a. The Government's Theory. Several defendants challenge the sufficiency of the RICO claims against them, and the common argument they raise is that the government will be unable to prove that they were "associated with" or "employed by," or that they conspired with, the enterprise alleged in the indictment. Thus, the Hellmans claim that, even if they participated in a scheme with some crew members to enable Gaggi to avoid conviction for murder, and even if they engaged in other illegal conduct with the money the enterprise paid them, they cannot be shown to have become associated with the DeMeo crew's central activities of murder, car theft, narcotics dealings, loansharking, and prostitution. At most, they contend, they were bribed to perform a service to some crew members, and were unaware of even the existence of the enterprise alleged. The indictment charges them in only a few of the 80 acts of racketeering, and the government claims that the Hellmans first became associated with the crew in 1980, some eight years after the crew's activities commenced. Similar arguments are made by defendants Rega, Mangialino, Kalevas, and Rodriguez, each of whom claims that the government cannot show that his alleged dealings with crew members constitute a legally sufficient association with the crew.
The government claims it has no obligation to prove that any defendant actually became a member of the enterprise alleged in the indictment, or that he or she possessed any particular degree of knowledge about the enterprise or its activities. The government argues that the elements of proof under 18 U.S.C. § 1962(c) are:
2. That the enterprise affected interstate or foreign commerce;
3. That the defendant was associated with or employed by the enterprise;
4. That the defendant conducted or participated in the affairs of the enterprise; and
5. That this conduct or participation by the defendant was through a pattern of ...