The opinion of the court was delivered by: Goettel, District Judge:
This action already possesses a well-worn procedural history.
Suffice it to say that four defendants remain named in a single
thirty-six count indictment, with various other previously
named defendants having already pled or agreed to plead guilty.
Presently before this court are motions to sever brought by
each of the remaining defendants. Additionally, Anthony
Carrozza has moved to dismiss certain counts of the indictment
based on multiplicity.*fn1 At this juncture, we note that
the government has consented to sever Jusuf Cekic from the
action. Consequently, we will not address the merits of his
The government's primary allegations are rather
straightforward. Principally, it claims that Carrozza was
engaged in various gambling activities and that he, as well as
the other defendants, was also involved in extortionate
extensions and collections of credit. There is substantial
disagreement and confusion, however, as to whether the
defendants' activities were part of a common scheme or merely
independent, albeit similar, actions.
The government alleges the existence of only one conspiracy
involving each of the three defendants. It claims that Dominick
Fava arranged for an extension of credit to Walter Sprague and
Sprague's friends ("the Sprague group") at an interest rate of
four percent per week. When defaults in payment occurred, Fava
allegedly threatened Sprague. At a later meeting held with
Sprague, Fava apparently brought Rocco DiMatteo along with him.
DiMatteo, in turn, is claimed to have made additional threats
At the same time as these activities were occurring, Peter
Sgrulletta, who has since pled guilty to various offenses,
began his attempt to enforce outstanding loans made to Fava.
When Fava failed to pay, Sgrulletta allegedly sought the advice
of Carrozza, with whom he ran a numbers gambling business.
Carrozza allegedly recommended that Sgrulletta use Anthony
Carr, who also has pled guilty, to enforce the debt. Carr
previously had been used by Carrozza to enforce debts resulting
from Carrozza's sports gambling business, which, we note, the
government claims is distinct from the numbers gambling
business.*fn3 Carrozza then introduced Sgrulletta to Carr
and Carr subsequently met with Fava. Fava then began paying.
Fava was apparently so impressed with Carr's collection methods
that he requested permission from Sgrulletta to use Carr to
collect his debt from Sprague. Sgrulletta and Carrozza
discussed the matter and agreed that Carr could collect from
Carr then began enforcing the debt against Sprague. Carr
remained, however, under the control of Carrozza and Sgrulletta
since they feared he might turn against them. In fact, Carr and
Carrozza allegedly spoke about Sprague on thirty-seven separate
occasions. Moreover, while Carr was actually collecting for
Fava with respect to Sprague, at various times Fava was able to
directly repay his debt to Sgrulletta by allowing Carr to
collect from Sprague and turn the money over to Sgrulletta,
thereby eliminating the middleman.
The government alleges that the foregoing facts permit the
joinder of Carrozza, Fava, and DiMatteo in one indictment.
Based on these facts, the three defendants are named in counts
four and five of the
indictment, one count for the substantive offense of extortion
under 18 U.S.C. § 894 (1988), and one count for conspiracy
under the same statute. These are the only counts of the
indictment naming each of the defendants. The other thirty-four
counts are joined based on the government's contention that
they are part of a common scheme. Specifically, it is alleged
that besides the Sprague conspiracy, the various defendants,
either individually or, in certain instances, with Fava and
DiMatteo acting concertedly, made usurious loans followed by
illicit collection activities. The purported link between these
acts is that each of the defendants always used Carr to collect
on the debts.
Carrozza is not named in conjunction with either of the other
defendants in any counts besides counts four and five noted
above. Of the nineteen additional counts against him, one count
is for sports gambling and one for numbers gambling, both under
18 U.S.C. § 1955 (1988). The crimes are linked to the extortion
crimes because many of the debts Carrozza was using Carr to
collect on resulted from these enterprises. The remaining
counts against Carrozza relate to extensions and collections of
credit, along with conspiracies underlying these activities. Of
the twenty-one counts naming Carrozza, he is sole named
defendant in nineteen of them.
Fava, in turn, is named in fourteen counts of the indictment.
All the counts against him relate to either extensions or
collections of credit, in addition to related conspiracies. He,
however, in addition to being named with Carrozza and DiMatteo
in counts four and five, is named with DiMatteo in five
additional counts. Therefore, of the fourteen counts in which
Fava is named, he is named with Carrozza and DiMatteo together
in two counts and with DiMatteo alone in five counts. Moreover,
we note that two of the counts in which he is named
independently concern further loans to the Sprague group.
Finally, DiMatteo is named in ten counts of the indictment.
Each of the counts against him also alleges either illegal
extensions or collections of credit, along with related
conspiracies. Of these ten counts, DiMatteo is named with
Carrozza and Fava in the aforementioned counts four and five,
and with Fava alone in five of the remaining eight counts.
Therefore, he is independently named in three counts. One of
these independent allegations, however, relates to the illegal
extension of credit to a party who is later subjected to the
illegal collection efforts of DiMatteo and Fava acting
With these facts before us, we now turn to the merits of the
defendants' motions. We will first discuss the severance issues
and then turn to the question of multiplicity raised by