The opinion of the court was delivered by: KEENAN
JOHN F. KEENAN, United States District Judge:
The fourteen defendants are alleged to be members and associates of the Colombo Family of La Cosa Nostra ("Colombo Family"). The Colombo Family allegedly is a criminal enterprise that systematically engaged in a wide-range of criminal activities including payoffs, embezzlement and extortion in connection with its control and domination of local labor unions; theft; sale of stolen goods; loansharking; illegal distribution of naroctics; operation of an illegal gambling business; bribery of public officials; and, intimidation by threats, beatings and murder. Counts one and two of the 51-count indictment, which constitute the heart of the government's case, charge all fourteen defendants with substantive violations of, and conspiracy to violate, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) and (d).
In connection with the indictment, defendants have filed a wide variety of motions. Each shall be dealt with below.
Defendants Langella, Scarpati and Melli contend they are improperly joined in this indictment under Rule 8(b) of the Federal Rules of Criminal Procedure ("F.R.Cr.P."). In the alternative, these defendants, together with defendants Alphonse Persico, Russo, McIntosh, Pitta and Scopo, seek a severance pursuant to F.R.Cr.P. 14. Defendants Carmine Persico, Langella and Scopo move for an order pursuant to F.R.Cr.P. 13 severing a portion of the indictment and joining it for trial with the indictment in United States v. Salerno, S 85 Cr. 139 (RO). For the reasons stated below, these motions are denied.
Rule 8(b) of the Federal Rules of Criminal Procedure governs joinder in multiple defendant cases, e.g., United States v. Turbide, 558 F.2d 1053, 1061 n.7 (2d Cir.), cert. denied, 434 U.S. 934, 98 S. Ct. 421, 54 L. Ed. 2d 293 (1977). It provides:
Two or more defendants may 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. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
Rule 8(b) permits joinder of crimes arising out of a common scheme or plan. See, e.g., United States v. Weisman, 624 F.2d 1118, 1129 (2d Cir.), cert. denied, 449 U.S. 871, 66 L. Ed. 2d 91, 101 S. Ct. 209 (1980); United States v. Ricco, 549 F.2d 264, 271 (2d Cir.), cert. denied, 431 U.S. 905, 97 S. Ct. 1697, 52 L. Ed. 2d 389 (1977); United States v. Bernstein, 533 F.2d 775, 789 (2d Cir.), cert. denied, 429 U.S. 998, 50 L. Ed. 2d 608, 97 S. Ct. 523 (1976); United States v. Scott, 413 F.2d 932, 935 (7th Cir. 1969), cert. denied, 396 U.S. 1006, 24 L. Ed. 2d 498, 90 S. Ct. 560 (1970); United States v. Clemente, 494 F. Supp. 1310, 1324 (S.D.N.Y. 1980). It applies to substantive offenses, as well as to conspiracies. Two or more conspiracies may be joined under Rule 8 so long as they are related as part of a common scheme. United States v. Borelli, 336 F.2d 376, 387 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S. Ct. 647, 13 L. Ed. 2d 555 (1965). A conspiracy charge "provides a common link and demonstrates the existence of a common plan" for purposes of Rule 8(b). Bernstein, 533 F.2d at 789. Joinder of otherwise separate acts may be allowed when the acts are properly linked by means of a conspiracy charge. United States v. Welch, 656 F.2d 1039, 1051 (5th Cir. 1981), cert. denied, 456 U.S. 915, 102 S. Ct. 1767, 72 L. Ed. 2d 173 (1982); United States v. Luna, 585 F.2d 1, 4 (1st Cir.), cert, denied, 439 U.S. 852, 58 L. Ed. 2d 157, 99 S. Ct. 160 (1978); United States v. Adams, 581 F.2d 193, 197 (9th Cir.), cert. denied, 439 U.S. 1006, 58 L. Ed. 2d 683, 99 S. Ct. 621 (1978).
In much the same way, a RICO charge provides the unifying link among the substantive crimes making up a pattern of racketeering activity for purposes of their joinder under Rule 8(b). United States v. Tashjian, 660 F.2d 829, 833 (1st Cir.), cert. denied, 454 U.S. 1102, 102 S. Ct. 681, 70 L. Ed. 2d 646 (1981); Welch, 656 F.2d at 1051; see Weisman, 624 F.2d at 1129; United States v. Napolitano, 552 F. Supp. 465, 478 (S.D.N.Y. 1982). The racketeering counts almost by definition constitute "a 'series of acts or transactions' sufficiently intertwined to permit a joint trial of all defendants" under Rule 8(b). United States v. Bagaric, 706 F.2d 42, 69 (2d Cir. 1983). The Second Circuit has observed:
If . . . the [predicate acts] could properly be considered part of a "pattern of racketeering activity," we see no reason why they could not similarly constitute part of a "series of acts or transactions constituting an offense" within the meaning of Rule 8(b). Indeed, a construction of Rule 8(b) that required a closer relationship between transactions than that necessary to establish a "pattern of racketeering activity" under RICO might possibly prohibit joinder in circumstances where Congress clearly envisioned a single trial.
Weisman, 624 F.2d at 1129.
All the defendants are charged in the RICO substantive and conspiracy counts (counts one and two) and all are charged with participating in the affairs of the same illegal enterprise, to wit, the Colombo Family. Accordingly, joinder appears proper in this case.
Concededly, each defendant is not charged in every count of the indictment. Rule 8(b), however, expressly provides that "all defendants need not be charged in each count." See United States v. Barton, 647 F.2d 224, 239-40 (2d Cir.), cert. denied, 454 U.S. 857, 70 L. Ed. 2d 152, 102 S. Ct. 307 (1981); United States v. Scotto, 641 F.2d 47, 58 (2d Cir. 1980), cert. denied, 452 U.S. 961, 69 L. Ed. 2d 971, 101 S. Ct. 3109 (1981); Weisman, 624 F.2d at 1129. Nor is it significant that each defendant is not charged with committing or agreeing to commit every predicate act in the RICO counts. Even in the case of a non-racketeering conspiracy, an indictment need not allege that every defendant participated in each act or transaction, Scott, 413 F.2d at 934-35, and joinder is proper even if different defendants participate in different parts of an overall scheme or conspiracy. United States v. Perez, 489 F.2d 51, 62 (5th Cir. 1973), cert. denied, 417 U.S. 945, 94 S. Ct. 3067, 41 L. Ed. 2d 664 (1974); Borelli, 336 F.2d at 387; United States v. Mandel, 415 F. Supp. 1033, 1047 (D. Md. 1976).
Accordingly, defendants' motion for dismissal or severance based on misjoinder under Rule 8(b) is denied.
It is well settled that "persons jointly indicted may be jointly tried . . . .'to [conserve] judicial resources, [alleviate] the burdens on citizens serving as jurors, and [avoid] the necessity of having witnesses reiterate testimony in a series of trials.'" United States v. Lyles, 593 F.2d 182, 191 (2d Cir.) quoting United States v. Borelli, 435 F.2d 500, 502 (2d Cir. 1970), cert. denied, 401 U.S. 946, 28 L. Ed. 2d 229, 91 S. Ct. 963 (1971)), cert. denied, 440 U.S. 972, 99 S. Ct. 1537, 59 L. Ed. 2d 789 (1979); see United States v. Ventura, 724 F.2d 305, 312 (2d Cir. 1983); Weisman, 624 F.2d at 1129-30. This presumption in favor of joint trials is particularly strong where, as here, "the crime[s] charged involve a common scheme or plan." United States v. Girard, 601 F.2d 69, 72 (2d Cir.), cert. denied, 444 U.S. 871, 62 L. Ed. 2d 96, 100 S. Ct. 148 (1979).
Defendants argue that the danger of "prejudicial spillover" and "guilt by association" counsel in favor of abandoning the general joint indictment-joint trial rule. The Court does not dispute that there exists some risk of prejudicial spillover in any multi-defendant trial. The degree of risk depends on the particular facts and circumstances of the case. In a case such as this, where all the defendants are charged with substantive racketeering offenses and participation in a racketeering conspiracy, the government would be entitled to offer evidence of the entire pattern of racketeering activity at each separate trial. This militates against defendants' claims of "prejudicial spillover." United States v. Cunningham, 723 F.2d 217, 230 (2d Cir. 1983), cert. denied, 466 U.S. 951, 104 S. Ct. 2154, 80 L. Ed. 2d 540 (1984).
A joint trial serves several purposes. First, in a complex case like this, a joint trial permits the jury to see a comprehensive presentation of the entire enterprise and the role played by each participant therein. Second, a joint trial prevents the delay associated with separate, successive trials, thus serving the interests of "both the government and the accused." United States v. McGrath, 558 F.2d 1102, 1106 (2d Cir. 1977); cert. denied, 434 U.S. 1064, 55 L. Ed. 2d 765, 98 S. Ct. 1239 (1978). Third, the Court must consider the safety of witnesses who, according to the government, would have to be called at each successive trial to repeat testimony. Inconvenience aside, the government has offered, through ex parte submissions, evidence that once the identity of its witnesses was revealed at the first trial, their safety could no longer be insured.
Thus, to justify a severance, a defendant must meet the "heavy burden," United States v. Sotomayor, 592 F.2d 1219, 1227 (2d Cir.), cert. denied sub nom. Crespo v. United States, 442 U.S. 919, 61 L. Ed. 2d 286, 99 S. Ct. 2842 (1979), of showing that "he would be so prejudiced by a joint trial that he would in effect be denied a constitutionally fair trial in a joint proceeding." United States v. King, 49 F.R.D. 51, 53 (S.D.N.Y. 1970); accord United States v. Wilkinson, 754 F.2d 1427, 1435 (2d Cir.), cert. denied sub nom. Shipp v. United States, 472 U.S. 1019, 105 S. Ct. 3482, 87 L. Ed. 2d 617 (1985). He must show that the prejudice resulting from joinder is "real," United States v. Kahn, 381 F.2d 824, 840 (7th Cir.), cert. denied, 389 U.S. 1015, 19 L. Ed. 2d 661, 88 S. Ct. 591 (1967), and "substantial," Ricco, 549 F.2d at 274. In a case such as this, the showing of prejudice must be particularly cogent "to justify the disintegration of a trial . . . in which there is cohesion of crime alleged, defendants charged and proof adduced." Kahn, 381 F.2d at 840. As Judge Weinfeld wrote in United States v. Kahaner, 203 F. Supp. 78, 81-82 (S.D.N.Y. 1962), aff'd, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 836, 11 L. Ed. 2d 65, 84 S. Ct. 74 (1963):
The ultimate question is whether, under all the circumstances of the particular case, as a practical matter, it is within the capacity of the jurors to follow the court's admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant's own acts, statements and conduct. In sum, can the jury keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted.
See, e.g., United States v. Uroquiza, 575 F. Supp. 1538, 1540 (S.D.N.Y. 1983) (Weinfeld, J.); United States v. Shipp, 578 F. Supp. 980, 995-96 (S.D.N.Y. 1984) (Weinfeld, J.), aff'd, No. 84-1108, slip op. at 1389 (2d Cir. Jan. 16, 1985); United States v. Kornblau, 586 F. Supp. 614, 628 (S.D.N.Y. 1984); United States v. Mejia, 578 F. Supp. 1541, 1551 (E.D.N.Y.), aff'd mem. sub nom. United States v. Bermudez, 751 F.2d 371 (2d Cir. 1984).
Separate trials are not justified simply because (i) in a joint trial evidence will be offered against one defendant which is not relevant to, or otherwise admissible against, another defendant, Hanger v. United States, 398 F.2d 91, 99-100 (8th Cir. 1968), cert. denied, 393 U.S. 1119, 22 L. Ed. 2d 124, 89 S. Ct. 995 (1969); Weisman, 624 F.2d at 1130; or (ii) the defendants' roles in the conspiracy vary in scope or importance, United States v. Aloi, 511 F.2d 585, 598 (2d Cir.), cert. denied, 423 U.S. 1015, 46 L. Ed. 2d 386, 96 S. Ct. 447 (1975); United States v. Vega, 458 F.2d 1234, 1236 (2d Cir. 1972), cert. denied, 410 U.S. 982, 93 S. Ct. 1494, 93 S. Ct. 1506, 36 L. Ed. 2d 177 (1973). The question is whether the jury can "as a practical matter . . . follow the court's admonitory instructions and accordingly . . . collate and appraise the independent evidence against each defendant." United States v. Campanale, 518 F.2d 352, 359 (9th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S. Ct. 777, 46 L. Ed. 2d 638 (1976).
In this case, the Court sees no substantial danger that the jury will be misled as to what charges pertain to a particular defendant. The charges in this case can be readily broken down into twelve distinct areas of criminal activity. (See Government Memorandum, dated July 3, 1985, at iii-iv). These areas relate to the same enterprise, but are readily segregable. Moreover, the Court can instruct the jury to consider the guilt of each defendant individually. Such instructions, and the compartmentalization of the indictment, will adequately protect the defendants from "prejudicial spillover." See, e.g., United States v. Opper, 348 U.S. 84, 95, 99 L. Ed. 101, 75 S. Ct. 158 (1954); Barton, 647 F.2d at 239-41; Weisman, 624 F.2d at 1130; United States v. Papadakis, 510 F.2d 287, 300 (2d Cir.), cert. denied, 400 U.S. 869, 27 L. Ed. 2d 108, 91 S. Ct. 102 (1975); United States v. DeSapio, 435 F.2d 272, 280 (2d Cir. 1970), cert. denied, 402 U.S. 999, 91 S. Ct. 2170, 29 L. Ed. 2d 166 (1971); Kahaner, 203 F. Supp. at 81-82; United States v. Lev, 22 F.R.D. 490, 493 (S.D.N.Y. 1958), aff'd, 276 F.2d 605 (2d Cir.), cert. denied, 363 U.S. 812, 4 L. Ed. 2d 1153, 80 S. Ct. 1248 (1960). Defendants' arguments to the contrary "take insufficient account of the intelligence and conscientiousness of the jury, the effective efforts of the judge to keep it on the beam, [and] the skill of defense counsel." Lyles, 593 F.2d at 190 (quoting DeSapio, 435 F.2d at 280).
Langella is alleged to have been the acting Boss of the Colombo Family. He is named in more racketeering acts and substantive counts than any other defendant. Langella is alleged to have participated in such diverse activities as loansharking, gambling, bribery, labor payoffs, and embezzlement. If any defendants in this case were to be prejudiced by being tried together, it would be those that had to stand trial with Langella, not Langella himself. His severance motion has no merit.
Alphonse Persico is alleged to be a "made member" of the Colombo Family and, as the son of Carmine Persico, the alleged Boss of the Family, he supposedly occupies a special position of influence therein. Alphonse Persico is charged with participating in the Ashland, Kentucky bribery of a prison official. Alphonse Persico's bare allegation of "prejudicial spillover" is insufficient to justify severance, in view of his alleged position in the Family.
Melli is alleged to be a "Capo" in the Colombo Family. He is charged with participating in labor payoffs, loansharking and interstate transportation of stolen property. Melli is not involved in any of the Title III intercepted conversations. His position in the Family and the broad range of illegal activities he is alleged to have participated in, however, counsel against his severance.
Like Melli, Scarpati is alleged to be a "Capo" in the Colombo Family. He is charged with loansharking. As with the defendants named above, his position in the Family would permit introduction of a broad range of evidence against him. To sever his trial would create needlessly duplicative presentations of evidence and might endanger witnesses.
Russo is also alleged to be a "Capo" in the Colombo Family. He is charged with bribery and loansharking in connection with the racketeering enterprise. He has failed to allege any real or substantial risk of "prejudicial spillover" and therefore his motion for severance is without merit.
McIntosh is alleged to be an associate of the Colombo Family. He is charged with bribery of public officials designed to benefit certain Family members. He makes only a bare allegation of "prejudicial spillover," with no specific showing of a real and substantial danger of prejudice absent severance. Thus, severance of his trial is unjustified.
The indictment alleges that Pitta was an associate of the Colombo Family and that he used his position as a union official to further the business of that enterprise. Pitta is named in eight substantive counts and in ten acts of racketeering activity. Pitta's co-defendants in those counts -- DeRoss, Falanga, DiBella, and Melli -- are named in virtually all of the other areas of criminal activity charged in this case.
Pitta portrays himself as a union official charged with participating in a simple extortion and payoff scheme. While this is true, he depicts only a small part of the picture. Pitta is charged with engaging in the above-mentioned conduct on behalf of the Colombo Family. According to the government, Pitta owes his position in the union, and therefore his power to extort payoffs, to his relationship with the Family. Thus, whether Pitta is tried separately or with the other defendants, the government would be entitled to demonstrate the existence of the enterprise and Pitta's role therein in proving its RICO charges. Since the same evidence would be admitted at separate or joint trials, Pitta's claim of "prejudicial spillover" is unconvincing.
While Pitta was not the focal point of the Colombo Family, the indictment alleges that he played a significant role in the organization. Concededly, Pitta's role in the Family is somewhat distinct from the organization's alleged narcotics or gambling activities. But the government is attempting to root out an organization whose business it claims is crime. This is what Congress intended in enacting RICO. To compel the government to attack this alleged organization through seriatim trials would frustrate the intent of RICO by failing to provide juries with a complete picture of the business or needlessly compel duplicate presentations of evidence and endanger witnesses. The Court finds neither result tolerable or necessary. If the evidence against Pitta is as distinct from that against the other defendants as Pitta contends, then the Court is confident the jury can follow the Court's instruction to consider Pitta's culpability based solely on the evidence offered against him. His motion for severance is denied.
Like Pitta, Scopo is charged with racketeering arising out of payoff demands and extortion engaged in as a union official. He is alleged to be a "made member" of the Colombo Family. The extortion and payoff charges against Scopo relate directly to Langella and Montemarano, who the government contends are two of the principal actors. Several taped conversations that will be offered in evidence relate directly to Scopo. A separate trial as to him would be unduly burdensome to the government and the Court. Scopo's motion for severance is without merit and is denied.
Considerations of judicial economy, safety of witnesses and the government's asserted need to try the defendants together to provide the jury a fair picture of the criminal activity of the Colombo Family, require a joint trial of all defendants. No defendant has demonstrated a real and substantial likelihood of "prejudicial spillover," not subject to a curative instruction. Accordingly, defendants' motions for severance are denied.
3. Rule 13 -- Joinder for Trial
Defendants Carmine Persico, Langella and Scopo move for an order, pursuant to Rule 13, severing racketeering act one, "Conspiracy to Extort Payoffs from Construction Companies," and count three, "Concrete Workers Extortion," and joining them for trial with the indictment in United States v. Salerno, S 85 Cr. 139 (RO). Under Rule 13, the court may order that separate indictments be tried together if the offenses and defendants could properly have been joined in one indictment. F.R.Cr.P. 13. The standard for consolidation of indictments against multiple defendants is Rule 8(b). United States v. Cannington, 729 F.2d 702, 710 (11th Cir. 1984); United States v. Martinez, 686 F.2d 334, 338 (5th Cir. 1982); Daley v. United States, 231 F.2d 123, 125 (1st Cir.) (per curiam), cert. denied, 351 U.S. 964, 100 L. Ed. 1484, 76 S. Ct. 1028 (1956). Accordingly, joinder of racketeering act one and count three with the indictment in Salerno would be proper if all are part of a single series of transactions, or arise out of a common scheme or plan. As the bill of particulars provided by the government makes clear, however, no such relation exists between the offenses charged in this case and those in the Salerno indictment.
Racketeering act one of the indictment in this case is alleged to be part of a pattern of racketeering through which the enterprise known as the Colombo Organized Crime Family was conducted. All of the defendants are charged in the RICO substantive and conspiracy counts of which racketeering act one is a predicate act. The Salerno indictment, however, alleges a different pattern of racketeering activity through which a separate and distinct enterprise known as the Commission of La Cosa Nostra was conducted. Only three of the defendants in this case are also defendants in Salerno. Conversely, seven defendants charged in Salerno with being members of the Commission are not defendants in this case. The enterprises alleged being distinct, separate entities, joint trial is unwarranted. Cf. United States v. Russotti, 717 F.2d 27, 32-34 (2d Cir. 1983), cert. denied, 465 U.S. 1022, 104 S. Ct. 1273, 79 L. Ed. 2d 678 (1984) (double jeopardy does not bar prosecution unless both enterprise and pattern of activity alleged in two indictments were the same).
Moreover, the conduct which forms the basis of racketeering act one and count three of the indictment in this case is not the conduct underlying the Salerno indictment. Each indictment alleges extortion of construction contractors in violation of the Hobbs Act, 18 U.S.C. § 1951. The Salerno indictment, however, alleges that the defendants in that case established a "Club" of contractors who cooperated, under coercion, with the allocation of construction contracts among them, and that the defendants therein extorted money from that "Club." The allegations in this case, on the other hand, do not involve such a group of contractors. Moreover, the conspiracy charged in this case was allegedly confined to extorting payoffs in connection with concrete pouring contracts of values less than two million dollars each; that alleged in Salerno involved contracts with values in excess of that amount. Finally, the money allegedly extorted by the defendants in this case was not divided among other organized crime families, remaining within the Colombo Family, while that in Salerno was allegedly divided among the Commission.
When these facts are combined with the difference in the membership of the alleged conspiracies in the two cases, it becomes clear that the offenses alleged do not arise from a common scheme or plan, or constitute a single series of transactions. They would not be properly joined in a single indictment and are not, therefore, properly tried together. Accordingly, the defendants' motion pursuant to Rule 13 is denied.
B. Duplicitous Indictment
Defendants Langella, DiBella, Scarpati and McIntosh contend that the indictment is duplicitous, in that it impermissibly charges multiple conspiracies. They rely on Kotteakos v. United States, 328 U.S. 750, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946), which prohibits conviction of multiple conspiracies under an indictment charging a single conspiracy.
Their reliance is misplaced. Kotteakos arose under the general conspiracy statute, 18 U.S.C. § 371, while this case is brought under RICO. A RICO conspiracy is substantially broader than an ordinary § 371 conspiracy. United States v. Riccobene, 709 F.2d 214, 224-25 (3d Cir.), cert. denied, 464 U.S. 849, 104 S. Ct. 157, 78 L. Ed. 2d 145 (1983); United States v. Sutherland, 656 F.2d 1181, 1189-95 (5th Cir. 1981), cert. denied, 455 U.S. 949, 71 L. Ed. 2d 663, 102 S. Ct. 1451 (1982); United States v. Sutton, 642 F.2d 1001, 1017 (6th Cir. 1980) (en banc), cert. denied, 453 U.S. 912, 101 S. Ct. 3144, 69 L. Ed. 2d 995 (1981); United States v. Elliott, 571 F.2d 880, 902-03 (5th Cir.), cert. denied, 439 U.S. 953, 99 S. Ct. 349, 58 L. Ed. 2d 344 (1978).
In 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), the racketeering conspiracy alleged consisted of an agreement to operate the Bonnano crime family through a pattern of racketeering activity that "consisted of 13 separate conspiracies to violate various state and federal laws involving the defendants in various combinations." Id. at 915. The Second Circuit rejected the defendants' claim that this constituted multiple conspiracies:
Nor does a RICO conspiracy under 18 U.S.C. § 1962(d), supported by predicate acts of racketeering activity that in themselves are conspiracies, violate the prohibition of Kotteakos v. United States, [328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 2d 1557 (1946)], which prohibits conviction of multiple conspiracies under an indictment charging a single conspiracy. United States v. Elliott, 571 F.2d at 900-902. A RICO conspiracy under § 1962(d) based on separate conspiracies as predicate offenses is not merely a 'conspiracy to conspire' as alleged by appellants, but is an overall conspiracy to violate a substantive provision of RICO, in this case § 1962(c), which makes it unlawful for any person associated with an interstate enterprise to 'participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity.' See, United States v. Zemek, 634 F.2d 1159, 1170 n.15 (9th Cir. 1980), cert. denied, [450 U.S. 916, 101 S. Ct. 1359, 67 L. Ed. 2d 341 (1981)].
Ruggiero demonstrates that a RICO conspiracy is broader than a conspiracy to commit a particular crime. See also United States v. Barton, 647 F.2d 224, 236-38 (2d Cir.), cert. denied, 454 U.S. 857, 70 L. Ed. 2d 152, 102 S. Ct. 307 (1981). Ruggiero also demonstrates that the fact that different persons agree, as part of the conspiracy, to commit different crimes, does not convert the single agreement to conduct the affairs of an enterprise through a pattern of racketeering activity into multiple conspiracies.
The indictment is, on its face, valid. It alleges one conspiracy to commit one crime -- conducting the affairs of an enterprise through a pattern of racketeering activity. Moreover, the indictment charges the existence of a single enterprise -- the Colombo Family of La Cosa Nostra. Such an organized crime family is the prototype of the kind of enterprise the RICO statute was intended to cover. United States v. Bledsoe, 674 F.2d 647, 664-65 (8th Cir.), cert. denied, 459 U.S. 1040, 103 S. Ct. 456, 74 L. Ed. 2d 608 (1982); Napolitano, 564 F. Supp. at 953-54.
In any event, the issue of multiple conspiracies cannot be resolved at this pretrial stage. Rather, the Second Circuit has repeatedly made clear that whether there is a single or multiple conspiracies is a "question of fact for a properly instructed jury," e.g., United States v. Alessi, 638 F.2d 466, 472 (2d Cir. 1980), and is "singularly well-suited to resolution by the jury." United States v. Potamitis, 739 F.2d 784, 787 (2d Cir.) (quoting United States v. McGrath, 613 F.2d 361, 367 (2d Cir. 1979), cert. denied, 446 U.S. 967, 100 S. Ct. 2946, 64 L. Ed. 2d 827 (1980)), cert. denied, 469 U.S. 918, 105 S. Ct. 297, 83 L. Ed. 2d 232 (1984). If the government fails to establish the existence of the single conspiracy charged in the indictment, defendants may raise the issue at the close of the government's case or request a jury instruction on multiple conspiracies. There is no basis, however, for the challenge to the properly pleaded indictment at this time.
Accordingly, defendants' motion to dismiss the indictment as duplicitous is denied.
Defendants Langella, DiBella, Alphonse Persico, Scarpati and McIntosh move this Court for an order changing venue from the Southern District of New York to the Eastern District. They ground their motion on the mandatory provisions of F.R.Cr.P. 18 and the discretionary provisions of F.R.Cr.P. 21(b). For the reasons stated below, the motion is denied.
1. Improper Venue -- Rule 18
The Constitution, in both the sixth amendment and article III, section 2, provides that a defendant must be tried in the state and district where the crime was committed. F.R.Cr.P. 18 requires that "the prosecution shall be had in a district in which the offense was committed." The propriety of venue depends on "whether any part of the crime was committed within the district." United States v. Panebianco, 543 F.2d 447, 455 (2d Cir. 1976) (emphasis added), cert. denied, 429 U.S. 1103, 97 S. Ct. 1128, 97 S. Ct. 1129, 51 L. Ed. 2d 553 (1977); see United States v. Silvestri, 719 F.2d 577, 582 (2d Cir. 1983); United States v. Busic, 549 F.2d 252, 258 (2d Cir. 1977).
When Congress makes no specific provision for venue, as with the crimes charged against the moving defendants, venue depends on "the nature of the crime alleged and the location of the act or acts constituting it." United States v. Cores, 356 U.S. 405, 408, 2 L. Ed. 2d 873, 78 S. Ct. 875 (1958) (quoting United States v. Anderson, 328 U.S. 699, 703, 90 L. Ed. 1529, 66 S. Ct. 1213 (1946)); accord United States v. Chestnut, 533 F.2d 40, 46 (2d Cir.), cert. denied, 429 U.S. 829, 50 L. Ed. 2d 93, 97 S. Ct. 88 (1976). In the case of "continuing offenses," such as the crimes charged in the indictment, see 18 U.S.C. § 3237, "the locality of [the] crime shall extend over the whole area through which force propelled by an offender operates." United States v. Johnson, 323 U.S. 273, 275, 89 L. Ed. 236, 65 S. Ct. 249 (1944); accord Busic, 549 F.2d at 259 (offense may be tried "wherever it was 'begun, continued or completed'" and "wherever sufficient purposeful acts occurred"); United States v. Gilboe, 684 F.2d 235, 239 (2d Cir. 1982), cert. denied, 459 U.S. 1201, 75 L. Ed. 2d 432, 103 S. Ct. 1185 (1983); United States v. Candella, 487 F.2d 1223, 1227-28 (2d Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 872, 94 S. Ct. 1563 (1974).
With respect to the conspiracy charges, the government need only prove the occurrence of overt acts by one or more of the co-conspirators in furtherance of the conspiracy in the Southern District of New York. E.g., Hyde v. United States, 225 U.S. 347, 367, 32 S. Ct. 793, 56 L. Ed. 1114 (1912); United States v. Valle, 16 F.R.D. 519, 522 (S.D.N.Y. 1955) (Kaufman, J.) (venue in conspiracy case proper in any district in which overt act taken, even where some conspirators never physically present in district). Similarly, a substantive RICO violation is properly venued in any district where the enterprise conducted business. Napolitano, 552 F. Supp. at 482; cf. United States v. Fry, 413 F. Supp. 1269, 1272-73 (E.D. Mich. 1976) (broad venue to prosecute a continuing criminal enterprise), aff'd, 559 F.2d 1221 (6th Cir. 1977). It is of no moment that any individual moving defendant was not in this District, Chestnut, 533 F.2d at 47, so long as the government establishes that the defendant participated in an enterprise that conducted illegal activities in the Southern District.
The government claims it will prove a wide variety of connections between the operations of the Colombo Family and the Southern District. These include, but are not limited to: (i) meetings and telephone calls among the defendants and their associates in furtherance of the enterprise; (ii) all of the restaurants which were extorted; (iii) several of the construction firms which were extorted, and the job sites on which they worked; (iv) the headquarters of several of the unions through which the enterprise carried out its extortionate activities; (v) acts in furtherance of the defendants' loansharking activities; (vi) art objects valued at $700,000, later "fenced" by members of the enterprise, were stolen from an art gallery located in this District; (vii) defendant Carmine Persico was physically in this District, incarcerated in the Metropolitan Correctional Center, when he allegedly performed a number of the acts charged in the indictment; (viii) a portion of the scheme to commit bribery at the Ashland Federal Correctional Institution was carried out here; and (ix) the enterprise's gambling business was carried on, in part, here.
Accordingly, venue in the Southern District is appropriate within the meaning of Rule 18.
2. Inappropriate Venue -- Rule 21(b)
Defendants argue that even if venue is proper in the Southern District, it would be more convenient to the parties and witnesses, and in the interests of justice, to transfer this case to the Eastern District of New York. Federal Rule of Criminal Procedure 21(b) permits a Court to exercise its discretion to transfer a criminal case from one district to another "[f]or the convenience of the parties and witnesses, and in the interest of justice." The burden of setting forth facts sufficient to warrant transfer is, of course, on the moving party. United States v. Aronoff, 463 F. Supp. 454, 460 (S.D.N.Y. 1978). The factors to be considered include the location of the defendant and of possible witnesses, counsel, documents and records and the events at issue, the expense to the parties and the relative accessibility of the place of trial. United States v. Keuylian, 602 F.2d 1033, 1038 (2d Cir. 1979); Aronoff, 463 F. Supp. at 460. None of the defendants has demonstrated that transfer of the trial one mile from the Southern District Courthouse to the Eastern District Courthouse in Brooklyn serves any of the interests underlying the rule. See Napolitano, 552 F. Supp. at 482. It is clear that, at this point, transfer would only serve to delay the trial.
Assuming arguendo that Brooklyn is in fact the locus of the Colombo Family's criminal operations, this does not justify transfer of the case. When a racketeering case is properly venued in either of two adjacent districts -- whose courthouses are only one mile apart -- it is difficult to imagine convenience interests that would compel transfer of the case. As between the two districts, the situs of prosecution is generally a decision more properly within the province of the Attorney General than a federal district judge.
Since the prosecution has already been brought here, the grand jury which heard evidence is located here, the government's attorneys are located here, and a large number of documents and other evidence accumulated by the government to support its charges are located here, it would be imprudent to transfer the case to Brooklyn. Accordingly, the defendants' motion to transfer the case to the Eastern District is denied.
Defendant Pitta asserts that the Hobbs Act and Taft-Hartley Act charges contained in Counts Twenty-Six through Thirty-Three of the indictment fail to provide sufficient notice of the charges against him. It is settled law "that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974). Applying this test, the Second Circuit "has 'consistently sustained indictments which track the language of a statute and, in addition, do little more than state time and place in approximate terms.'" United States v. Trotta, 525 F.2d 1096, 1099 (2d Cir. 1975) quoting United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir. 1973), cert. denied, 415 U.S. 985, 39 L. Ed. 2d 882, 94 S. Ct. 1579 (1974)), cert. denied, 425 U.S. 971, 96 S. Ct. 2167, 48 L. Ed. 2d 794 (1976).
Defendant Pitta's assertions notwithstanding, Hobbs Act and Taft-Hartley Act counts need not allege with exactitude the dates on which money was demanded, United States v. Dierker, 164 F. Supp. 304, 305 (W.D. Pa. 1958), the location where the extortions took place, see e.g., Trotta, 525 F.2d at 1097 n.1 1099; United States v. Palmiotti, 254 F.2d 491, 494-95 (2d Cir. 1958); the amounts of money obtained, see e.g., United States v. Addonizio, 451 F.2d 49, 60 (3d Cir. 1971), cert. denied, 405 U.S. 936, 30 L. Ed. 2d 812, 92 S. Ct. 949 (1972); United States v. Holt, 333 F.2d 455, 457 (2d Cir. 1964), cert. denied, 380 U.S. 942, 85 S. Ct. 1020, 13 L. Ed. 2d 961 (1965); or the names of the individuals who made payments on behalf of the victim business, see United States v. McMaster, 343 F.2d 176, 181 (6th Cir.), cert. denied, 382 U.S. 818, 15 L. Ed. 2d 65, 86 S. Ct. 42 (1965); see, e.g., United States v. Craig, 573 F.2d 513, 517-18 (7th Cir.) (indictment charged extortion of "the registered lobbyist, officers, members of and companies belonging to the Illinois Car and Truck Renting and Leasing Association"), cert. ...