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January 25, 1990


The opinion of the court was delivered by: Leisure, District Judge:


On December 14, 1989, the Grand Jury returned the sixth superseding indictment (hereinafter, the "indictment," the "pending indictment," or the "1989 indictment") against the defendants in this case.*fn1 The evidence presented to the Grand Jury was the result of a long-term investigation by the federal government into an international organization known as "the mafia" or "la cosa nostra." According to the government, this organization, or system of organizations, is responsible for the importation and distribution of large quantities of narcotics in violation of federal law. To supplement its income from the narcotics trade, the organization also allegedly participates in gambling, loansharking, and extortion. The government charges that murder and other acts of violence are carried out by members of the organization to facilitate its operations.

Certain of the defendants have moved the Court to dismiss the charges against them under the double jeopardy clause of the fifth amendment to the U.S. Constitution, to block the government from introducing specific evidence to the jury under the principle of collateral estoppel, to sever the defendants into separate trials, to dismiss certain counts of the indictment as being duplicitous or multiplicitous, and to suppress physical evidence seized by government agents from the homes of the defendants.*fn2 Rather than burden the record with an overview of the alleged facts uncovered by the government investigation, the Court will discuss specific facts in regard to the motions made by each particular defendant. First, however, a brief summary of the charges in the pending indictment is in order.

The first count of the sixth superseding indictment charges that all defendants participated in a fourteen-year conspiracy to import heroin and cocaine into the United States in violation of Sections 802, 812, 951, 952, 960(a)(1), 960(b)(1)(A) and (B), and 963 of Title 21, and Section 2 of Title 18, of the U.S. Code. This conspiracy existed and functioned from January 1, 1975, to the date of the filing of the indictment. The Grand Jury charges that responsibilities in the importation conspiracy — such as investment, international smuggling, domestic reception, storage, and primary and secondary wholesale distribution of the narcotics — were divided between defendants. Count one lists 172 alleged overt acts which refer to specific narcotics transactions, meetings and communications between defendants and other co-conspirators.

Count two of the indictment incorporates the overt acts and alleged methods employed by the conspiracy as set out in count one, and charges all defendants with a conspiracy to distribute or to possess with intent to distribute heroin and cocaine in violation of Sections 802, 812, 841(a)(1) and (b)(1)(A), and 846 of Title 21, and Section 2 of Title 18, of the U.S.Code.

Count three of the pending indictment charges defendant Giuseppe Gambino with the organization and supervision of a continuing criminal enterprise in violation of 21 U.S.C. § 848(a) and (b). The indictment alleges numerous substantive violations of the narcotics laws and incorporates the violations set out in counts one and two. Defendant Gambino allegedly supervised this continuing criminal enterprise from January 1, 1975 to the date of the indictment. In count four of the indictment, defendant Rosario Naimo is charged under Section 848 in a similar fashion. Defendant Naimo is a fugitive at this time.

Count five of the indictment charges defendants Gambino, Naimo, LoBuglio, and Salvatore D'Amico with a single substantive distribution of over 100 grams of heroin on March 15, 1988. Count six charges defendants Gambino and Mannino with obstruction of justice in violation of Sections 1512 and 2 of Title 18. During the period from December 1, 1988 up through the filing of the indictment, defendants Gambino and Mannino allegedly took action to intimidate and interfere with the testimony of a government informant, Giovanni Zarbano.

Count seven of the indictment charges all defendants with participating in a criminal enterprise in violation of the RICO statute, 18 U.S.C. § 1961-62. This enterprise allegedly existed from January 1, 1970 up to the date of the indictment. The Grand Jury charges that defendants engaged in a pattern of racketeering activity consisting of forty-two predicate acts. These acts describe alleged narcotics transactions, bribery of public officials, violations of the Travel Act, extortion, gambling, murder, and obstruction of justice.

This order and opinion is divided into three parts. First, the Court will consider the unique and complex motions of defendants Gambino, Romano, and Adamita based on the double jeopardy clause of the fifth amendment to the U.S. Constitution and the principle of collateral estoppel. Second, the Court will turn to the severance motions brought by certain of the defendants, and will discuss how the group of defendants should be divided up for trial purposes. Third, the Court will consider several motions brought by individual defendants — defendant LoBuglio's motion to suppress physical evidence, and LoBuglio's and defendant LaRosa's motions to dismiss the first two counts of the indictment as being duplicitous and multiplicitous.


The double jeopardy clause of the fifth amendment to the U.S. Constitution provides that "[n]o person . . . shall be subject for the same offence to be twice put in jeopardy of life or limb." Courts should grant a motion for double jeopardy and thus bar the subsequent prosecution when the offenses charged appear in fact and law the same. United States v. Nersesian, 824 F.2d 1294, 1319 (2d Cir.), cert. denied, 484 U.S. 958, 108 S.Ct. 357, 98 L.Ed.2d 382 (1987).

The Second Circuit has held that a court must examine the totality of the circumstances in ruling on a double jeopardy motion regarding successive conspiracy prosecutions. The following factors should be considered:

  (1) the criminal offenses charged in successive
  indictments; (2) the overlap of participants; (3)
  the overlap of time; (4) similarity of operation;
  (5) the existence of common overt acts; (6) the
  geographic scope of the alleged conspiracies or
  location where overt acts occurred; (7) common
  objectives; and (8) the degree of interdependence
  between alleged distinct conspiracies.

United States v. Reiter, 848 F.2d 336, 340 (2d Cir. 1988); United States v. Korfant, 771 F.2d 660, 662 (2d Cir. 1985) (per curiam).*fn3 The Second Circuit has applied similar factors in determining whether successive RICO prosecutions violate the double jeopardy clause. United States v. Russotti, 717 F.2d 27, 33 (2d Cir.), cert. denied sub nom. Manino v. United States, 465 U.S. 1022, 104 S.Ct. 1273, 79 L.Ed.2d 678 (1984).

The nature of the crime of conspiracy complicates the double jeopardy inquiry. Whether the object of the conspiracy is to commit one or many crimes, it is the unlawful agreement between co-conspirators that the federal statutes punish. Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942). A court must keep in mind that the same conspiracy may be established by different aggregations of proof. United States v. Mallah, 503 F.2d 971, 985 (2d Cir. 1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975). While overt acts may be the most concrete clues in an indictment as to the nature of the underlying conspiracy, too much reliance on overt acts may confuse the proper aims of the judicial inquiry. See id. (citing Short v. United States, 91 F.2d 614, 624 (4th Cir. 1937)). The government should not be permitted to divide overt acts stemming from the same conspiracy into different conspiracy prosecutions. See United States v. Papa, 533 F.2d 815, 820 (2d Cir.), cert. denied, 429 U.S. 961, 97 S.Ct. 387, 50 L.Ed.2d 329 (1976).

The moving defendant bears the burden of proof that a subsequent government prosecution violates the double jeopardy clause. However, the burden may switch to the government to prove distinct conspiracies if the defendant makes a sufficient showing of overlap.

  Where the Government alleges that defendants
  conspired with others, and there is evidence that
  participants of one conspiracy are acquainted
  with personnel in the other, that the conspiracy
  cannot operate without a larger organization
  backing it up, and that dates and geographic
  areas overlap, the burden of proving separate
  conspiracies shifts to the prosecution.

Reiter, supra, 848 F.2d at 341; United States v. Abbamonte, 759 F.2d 1065, 1069 (2d Cir. 1985). In short, if a movant makes a sufficient showing under the Korfant factors, then the burden of proof switches to the government.

1. Defendant Gambino's Motions

Giuseppe Gambino argues that counts one, two, and three of the indictment should be dismissed under the double jeopardy clause. Those counts allege, respectively, that Gambino conspired from January 1, 1975 to December 14, 1988 to import and distribute narcotics, and that he engaged in and supervised a continuing criminal enterprise. In 1981, Gambino was acquitted by a jury in the Eastern District of New York on charges that he had conspired from August 1, 1979 to March 18, 1980 to import heroin into the United States. United States v. Gambino, 80 Cr. 131 (E.D.N.Y.) (Neaher, J.).*fn4 Gambino was charged with violating 21 U.S.C. § 952(a) and 960(a)(1) and was acquitted after several days of trial.

Gambino relies on a combination of double jeopardy and collateral estoppel arguments in urging dismissal of the first three counts of the 1989 indictment. First, he argues that count one should be dismissed on "traditional" double jeopardy grounds, as it charges certain overt acts which were central to the 1981 trial and therefore alleges the same conspiracy. Second, he claims that the principle of collateral estoppel bars prosecution on count two. Third, Gambino argues that the third count of the 1989 indictment should be dismissed under the double jeopardy clause, because conspiracy to import heroin is a lesser included offense of a continuing criminal enterprise. Each of these will be considered in turn.

A. Gambino's Motions as to Count One

i. Double Jeopardy

With regard to count one, Gambino argues that "[r]arely has there ever been a case where a double jeopardy claim on a conspiracy charge is so plain." Gambino's Memorandum of Law at 10. The fact that the 1989 indictment alleges certain overt acts which were central to the government's failed proof in the 1981 trial, Gambino claims, is indisputable proof that both indictments allege the same conspiracy.*fn5 In his reply memorandum of law, Gambino argues that the multi-factor test of Reiter and Korfant is irrelevant, because the conspiracies are the same on the faces of the indictments.

The Court does not accept Gambino's contentions in this regard and will apply the Korfant factors in its analysis of Gambino's motion. To start, one of the Korfant factors, and therefore one of the concerns the Court must weigh, is the existence of common overt acts. Reiter, supra, 848 F.2d at 340; Korfant, supra, 771 F.2d at 662. This factor is but one of eight which the Court must consider, and is not dispositive of the entire motion. Accepting Gambino's legal position would create a large and irrational loophole in the multi-factor test.*fn6

Application of the Korfant factors to Gambino's double jeopardy motion on count one of the 1989 indictment shows insufficient similarity between the two alleged conspiracies to dismiss that count. Several of the factors do show a close relationship between the two prosecutions: both charge the importation of heroin into the United States under 21 U.S.C. § 952 and 960(a)(1); both involve Emanuele Adamita, as a co-conspirator in the 1981 trial and as a co-defendant in the 1989 indictment; the timeframe of the 1980 indictment is contained within the timeframe of 1989 indictment; the modes of operations alleged are similar; some overt acts charged in the 1989 indictment were part of the evidence at the 1981 trial; the geographic areas alleged in the 1980 indictment are contained within those alleged in the 1989 indictment; and there were common objectives, to wit, the importation of narcotics for financial profit. Given such a showing by Gambino, the burden has indeed shifted to the government to show distinct conspiracies. See Reiter, supra, 848 F.2d at 341. But the Court finds that the government has sustained this burden.

Count one of the 1989 indictment charges a fourteen-year conspiracy to import both heroin and cocaine, while the 1981 prosecution alleged an eight-month conspiracy to import heroin only. The 1989 indictment lists 172 overt acts in furtherance of the conspiracy, 39 of which mention Giuseppe Gambino by name. Of those 39 acts, only 2 concern events covered in the 1981 trial. Many of the 39 acts set out in the 1989 indictment allege conversations and meetings among co-conspirators the contents and evidentiary value of which the Court is unaware. But there are also detailed allegations of narcotics transactions having no relation to the 1981 trial, including a scheme to transfer cocaine from Florida to New York undertaken after Gambino's 1981 acquittal.*fn7 Of the 15 co-defendants and 27 co-conspirators in the 1989 indictment, only three, one of whom was Gambino and another a government informant, were involved in the 1981 trial.

Despite the insertion of certain overt acts in Gambino's 1989 indictment which were central to the 1981 trial, the Court believes that the situation at bar presents two conspiracies more distinct than Reiter II and Reiter III. In brief, the magnitude of the conspiracy alleged in the 1989 indictment overwhelms the scale of the conspiracy alleged in the 1980 indictment. The differences between Reiter II and Reiter III are less drastic. It would be a gross extension of double jeopardy protection to dismiss all of count one of the 1989 indictment, which charges fifteen defendants with a fourteen-year conspiracy to import narcotics, based on Gambino's 1981 acquittal.

ii. Collateral Estoppel

Defendant Gambino argues that if the Court decides to deny his motion to dismiss count one of the indictment on double jeopardy grounds, which the Court has done, then the Court should prevent the government from introducing any evidence of Gambino's alleged involvement in the 1980 heroin importation scheme under the principle of collateral estoppel. With regard to collateral estoppel, Judge Friendly has written:

  Application of the principle inevitably has two
  phases. The first is to determine what the first
  judgment determined, a process in which . . . the
  court must look not simply to the pleadings but
  to the record in the prior trial. The second is
  to examine how that determination bears on the
  second case.

United States v. Jackson, 778 F.2d 933, 938-39 (2d Cir.), cert. denied, 479 U.S. 910, 107 S.Ct. 308, 93 L.Ed.2d 282 (1986); United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961). A defendant asserting collateral estoppel bears the burden of establishing what factual issues the jury necessarily resolved during the first trial. United States v. Medina, 709 F.2d 155, 156 n. ** (2d Cir. 1983). "This burden is particularly onerous where the acquittal in the first trial involves the crime of conspiracy." United States v. Clark, 613 F.2d 391, 400 (2d Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980); United States v. Nenadich, 689 F. Supp. 285, 292 (S.D.N.Y. 1988).

The Court is sensitive to the language of the U.S. Supreme Court which has stated that

  [t]he federal decisions have made clear that the
  rule of collateral estoppel in criminal cases is
  not to be applied with the hypertechnical and
  archaic approach of a 19th century ...

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