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U.S. v. PACCIONE

April 30, 1990

UNITED STATES OF AMERICA,
v.
ANGELO PACCIONE, ANTHONY VULPIS, JOHN MCDONALD, A & A LAND DEVELOPMENT, W & W PROPERTIES, AUGUST RECYCLING, INC., NATIONAL CARTING, INC., STAGE CARTING, INC., NEW YORK ENVIRONMENTAL CONTRACTORS, INC., ROSEDALE CARTING, INC., AND VULPIS BROTHERS, LTD., DEFENDANTS.



The opinion of the court was delivered by:  Motley, District Judge. Background
  OPINION ON DEFENDANTS' MOTIONS TO DISMISS

Indictment 89 Cr. 446 was filed on June 15, 1989. A superseding indictment adding Defendant McDonald was filed on August 24, 1989. The superseding indictment charges defendants with the following: substantive and conspiracy violations of the Racketeer Influenced and Corrupt Organizations ("RICO") statute, 18 U.S.C. §§ 1962(c) and (d), through a "pattern of racketeering activity" and mail and wire fraud violations of 18 U.S.C. § 1341. The RICO counts of that superseding indictment alleged twenty-two racketeering acts, including mail fraud on New York City and State government agencies, mail and wire fraud on CSX Transportation Inc. ("CSX") and mail fraud on doctors and medical care facilities. A superseding indictment removing, inter alia, Racketeering Acts 19-22, alleging acts of mail fraud on several doctors and a nursing home, was filed on February 6, 1990. A further superseding indictment, removing Racketeering Act 1(d) and the corresponding Count 6 — an alleged act of mail fraud against the City of New York — and adding two mailings to Racketeering Act 4, Acts 4(a) and (b) corresponding to new Counts 8 and 9 — alleging acts of mail fraud against CSX Realty, was filed on March 8, 1990.*fn*

Defendants have moved pursuant to Fed.R.Crim.P. 12 and 41 for the following:

1) dismissal of Counts One and Two of the indictment (the RICO counts) on the grounds that they are unconstitutionally vague;

2) dismissal of the RICO counts or striking of Racketeering Acts 1-2 and 5-22 on the grounds that environmental crimes are not authorized RICO predicate acts;

3) dismissal of Counts 3-8 of the indictment, alleging mail fraud against the City of New York on the grounds that they are based on insufficient evidence;

4) dismissal of Racketeering Acts 1-2 and 5-22 and Counts 3-8 of the indictment on the grounds that the conduct alleged does not constitute mail fraud;

5) dismissal of the RICO counts on the grounds that there is no separation alleged between the enterprise and the persons conducting the affairs of the enterprise;

6) dismissal of the RICO counts on the grounds that the indictment does not allege a proper enterprise;

7) severance of the trial of Angelo Paccione and Anthony Vulpis from John McDonald on the grounds that severance is required under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) and that their defenses will be antagonistic and mutually exclusive;

8) suppression of the evidence seized pursuant to the search warrants on the grounds that the warrants authorized a general search in violation of the Fourth Amendment's particularity clause;

9) suppression of evidence seized pursuant to allegedly warrantless searches.

Defendant John McDonald has also moved pursuant to Fed.R.Crim.P. 12(b)(3) for suppression of statements allegedly made by Defendant McDonald on or about July 19, 1989.

For the following reasons, these motions are denied.

ANALYSIS

1. The RICO Statute Is Not ...


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