The opinion of the court was delivered by: NICKERSON
NICKERSON, District Judge
Defendants have asked the court to rule inadmissible certain tapes of conversations recorded in the house of Aniello Dellacroce, a defendant named in the indictment but now deceased.
The indictment, filed March 25, 1985 and alleging violations of the so-called RICO statute, 18 U.S.C. §§ 1962(c) and 1962(d), charged ten defendants with participating and conspiring to participate in the affairs of an "enterprise" through a pattern of racketeering activity. The racketeering acts alleged are theft, illegal gambling, extortion, robbery, trafficking in contraband cigarettes, and acts and threats involving murder and robbery.
The indictment recites in its introduction, in substance, that the "Gambino Organized Crime Family" is an hierarchical organization which managed and supervised illegal activities generating money and other economic advantage, and that Paul Castellano is the "boss" of the Gambino Family and Aniello Dellacroce the "underboss" who supervised certain of the Gambino Family's "crews," each headed by a "capo" or "captain." The alleged "enterprise" is said to be a "segment" of the Gambino Family and to consist of Dellacroce as supervisor and two crews, one run by Charles Fatico and later defendant John Gotti, assisted by his "lieutenant" Angelo Ruggiero (not named as a defendant), the other run by defendants Leonard DiMaria and Nicholas Corozzo.
Count one charges that the defendants conspired to conduct and participate in the conduct of the affairs of the enterprise through a pattern of racketeering activity. Count two charges that the defendants conducted and participated in the conduct of the affairs of the enterprise by committing the racketeering acts. There are now seven defendants, Dellacroce having died, another defendant being a fugitive, and a third having pleaded guilty and then fled.
The government proposes to offer tapes of four conversations intercepted at Dellacroce's house in June 1985, after the filing of the indictment. According to the government all four conversations concern chiefly Dellacroce's expulsion of Michael Caiazza (not named as a defendant) from the Gambino Family. Caiazza had been named by Dellacroce some years earlier as the capo of a crew other than the two referred to in the indictment.
The chief participants in the first conversation, held on June 3, 1985, are Dellacroce, Ruggiero, and Caiazza. The transcript shows that Caiazza before going into the hospital for treatment had named as acting captain Joseph (Buddy) LaForte, Jr. (whose father, apparently not on good terms with his son, is also present at the conversation). Before doing this Caiazza had not checked with Dellacroce but had consulted directly with Paul Castellano.
Both Dellacroce and Ruggiero rebuke Caiazza for not respecting Dellacroce's position. Finally Dellacroce tells Caiazza he has no more authority in the Gambino Family and is expelled from it.
The second conversation, held on June 6, 1985, is between Dellacroce and Ruggiero. Much of this conversation relates to persons apparently not immediately involved in the Caiazza incident. The participants make several references to the need to obey the "underboss," to "Paul" (evidently Castellano), and to Joe Gallo, Jimmy Brown, Paulie Vario, Joe Bruster, John Carneglia, Tommy Bilotti, Mike Tally, Frank DeCicco, and others. In the absence of explanation many of the references are obscure to the court. Ruggiero appears to be reporting to Dellacroce on occurences and activities within the Gambino Family. Some of the conversation apparently refers to Caiazza and to Joseph LaForte, Jr., to their future relationship with the Gambino Family, and to Ruggiero's telling others in the Gambino Family of Dellacroce's decision as to Caiazza.
In the third conversation, occurring on June 9, 1986, Dellacroce, Ruggiero, and Jimmy Failla (not named as a defendant) participate. Dellacroce informs Failla of Caiazza's expulsion from the Family and tells Failla to have nothing to do with Caiazza and to tell others of the expulsion.
The fourth conversation, also on June 9, 1986, is between Dellacroce, Ruggiero, and Joseph LaForte, Sr. (not named as a defendant). The three take turns criticizing Joseph laForte, Jr. for what he did to Dellacroce and to his father, evidently by undertaking to assume the position of an acting captain. they also discuss what could have been done, as well as what should or should not be done or said, to Joseph LaForte, Jr. They also talk about the murder of James McBratney some years earlier.
The admissibility of the statements made in the taped conversations depends first on their relevancy, that is, whether they have "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would ...