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UNITED STATES v. GAMBINO

February 18, 1992

UNITED STATES OF AMERICA against GIUSEPPE GAMBINO, et al., Defendants.


The opinion of the court was delivered by: PETER K. LEISURE

 LEISURE, District Judge :

 On January 3, 1990, a Grand Jury filed the seventh superseding indictment (the "indictment") against the defendants in this case. The evidence presented to the Grand Jury was the result of a long-term investigation by the Government into various activities of an international organization known as "the Mafia" or "La Cosa Nostra." According to the Government, this organization, or systems 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, loan sharking, and extortion. The Government charges that murder and other acts of violence are carried out by members of the organization to facilitate its operations.

 Four defendants charged in the indictment -- Joseph LaRosa ("LaRosa"), Emanuele Adamita ("Adamita"), Francesco Inzerillo ("Inzerillo"), and Lorenzo Mannino ("Mannino") (collectively, the "moving defendants") -- have moved this Court pursuant to Fed. R. Crim. P. 14 for severance, and/or for an immediate trial. In support of their motions, the defendants argue that they will suffer "prejudicial spillover" if they are tried along with the remaining defendants and that the delay in their trial, pending a Supreme Court decision on a Double Jeopardy Clause issue originally raised by one of their codefendants, is unreasonable and inconsistent with the provisions of the Speedy Trial Act. For the reasons stated below, the defendants' motions are denied in their entirety.

 The indictment in this case contains seven counts. Count One charges the defendants with conspiracy to import heroin and cocaine into the United States in violation of 21 U.S.C. § 963. Count Two charges the defendants with conspiracy to distribute heroin and cocaine in violation of 21 U.S.C. § 846. Count Three charges defendant Giuseppe Gambino with a Continuing Criminal Enterprise in violation of 21 U.S.C. § 848(a) and (b). Count Four charges defendant Rosario Naimo with a Continuing Criminal Enterprise in violation of 21 U.S.C. § 848(a) and (b). Count Five charges that defendants Giuseppe Gambino, Giovanni Gambino, Rosario Naimo, Salvatore LoBuglio, and Salvatore D'Amico distributed and possessed with intent to distribute heroin on March 15, 1988, in violation of 21 U.S.C. §§ 802, 812, 841(a) (1) and 841(b) (1) (B), and 18 U.S.C. § 2. Count Six charges defendants Giuseppe Gambino and Mannino with obstruction of justice in violation of 18 U.S.C. §§ 1512 and 2. Count Seven charges all defendants with participation in a criminal enterprise in violation of the Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. §§ 1961 and 1962.

 Previously, after the sixth superseding indictment in this case was returned by the Grand Jury, *fn1" the defendants in this case brought a number of motions, which the Court decided in an Order and Opinion issued on January 25, 1990. United States v. Gambino, 729 F. Supp. 954 (S.D.N.Y. 1990). Nine defendants moved for severance from the main trial, and therefore for individual prosecutions, pursuant to Fed. R. Crim. P. 14. *fn2" The Court declined to order separate trials for each of the defendants then before the Court; rather, the Court divided the defendants into two groups for purposes of trial. United States v. Gambino, 729 F. Supp. at 969-71. "Group A" consisted of defendants Giuseppe Gambino and Matteo Romano, as well as Mannino, Inzerillo, and Adamita. "Group B" consisted of defendants LaRosa, *fn3" Salvatore LoBuglio, Giuseppe D'Amico, Salvatore D'Amico, Francesco Cipriano, Salvatore Candela, and Carmelo Guarnera. In making the division, "[a] major concern of the Court was to divide the defendants into groups which would minimize the quantity of evidence not pertaining to a particular defendant which that defendant would have to sit through." Id. at 971. The Court therefore "grouped defendants depending on the extent of overlapping evidence based on the face of the indictment, especially the overt acts," with Group A "consisting of individuals alleged to be leaders of the conspiracy and active from its start in the mid-1970s," and Group B consisting of what the Government referred to as "'secondary wholesale distributors' or those who 'oversaw and facilitated the transportation, smuggling and storage of multiple kilogram quantities of narcotics.'" Id.

 On May 7, 1990, the trial of the Group B defendants began. On July 24, 1990, the jury returned a verdict finding Salvatore LoBuglio and Salvatore D'Amico guilty on Counts One, Two, and Five. The other Group B defendants who were tried were acquitted on all charges. The Second Circuit recently affirmed the convictions of LoBuglio and D'Amico. United States v. Gambino, 951 F.2d 498 (2d Cir.1991). The trial of the Group A defendants is now tentatively scheduled to begin in the Fall of 1992. *fn4"

  As part of the January 25, 1990 Order and Opinion, the Court also ruled on, inter alia, Double Jeopardy motions brought by defendants Giuseppe Gambino, Matteo Romano, and Emanuele Adamita. The Court denied Gambino's motions to dismiss Counts One, Two and Three of the indictment against him; denied Romano's motions to dismiss Counts One, Two and Seven of the indictment against him; and denied Adamita's motions to dismiss the indictment against him. United States v. Gambino, 729 F. Supp. at 957-69. Gambino and Romano appealed the Court's rulings to the Second Circuit, and on December 10, 1990, a panel of the Second Circuit issued a decision relating to the Double Jeopardy claims of Gambino and Romano. United States v. Gambino, 920 F.2d 1108 (2d Cir. 1990). The Second Circuit noted that on May 29, 1990, the Supreme Court issued its decision in Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), which, the Second Circuit concluded, "significantly altered the jurisprudential landscape of double jeopardy." United States v. Gambino, 920 F.2d at 1112. In light of the Supreme Court's Grady decision, the Second Circuit reversed this Court's decision on Gambino's Double Jeopardy claims as to Counts One and Two of the indictment, holding that the prosecution of Gambino on Counts One and Two is barred by the Double Jeopardy Clause, but affirmed the remainder of this Court's Order and Opinion.

 On July 9, 1990, Adamita -- whose Double Jeopardy claims were also rejected in this Court's January 25, 1990 Order and Opinion, United States v. Gambino, 729 F. Supp. at 968-69 -- renewed his motion to dismiss the indictment pursuant to the Double Jeopardy Clause after the Supreme Court issued its Grady decision. On August 22, 1990, this Court issued an Order an Opinion denying Adamita's motion to dismiss the indictment. United States v. Gambino, 742 F. Supp. 855 (S.D.N.Y. 1990). Adamita appealed the Court's denial of his motion to dismiss the indictment to the Second Circuit, on December 18, 1990, the Second Circuit affirmed this Court's denial of Adamita's motion in an unpublished opinion. United States v. Gambino, 923 F.2d 846 (2d Cir. 1990).

 Subsequently, both the Government and defendants Gambino and Romano petitioned the Supreme Court for a writ of certiorari with respect to those portions of the Second Circuit's December 10, 1990 decision that had been resolved adversely to each of them. Similarly, Adamita petitioned the Supreme Court for a writ of certiorari with respect to the Second Circuit's decision affirming this Court's denial of his Double Jeopardy motions. On June 10, 1991, the Supreme Court denied Adamita's petition for a writ of certiorari. See 111 S. Ct. 2810 (1991). On October 7, 1991, the Supreme Court denied Gambino and Romano's petitions for a writ of certiorari. See 112 S. Ct. 54 (1991). The Government's petition for a writ of certiorari, however, has remained pending. Also on October 7, 1991, the Supreme Court granted the Government's petition for a writ of certiorari from the decision of the Tenth Circuit in United States v. Felix, 926 F.2d 1522 (10th Cir. 1991), a case raising issues very similar to those considered by the Second Circuit in holding that the prosecution of Gambino on Counts One and Two is barred by the Double Jeopardy Clause. See 112 S. Ct. 47.

 Defendants LaRosa, Adamita, Inzerillo, and Mannino have each now moved this Court for severance and/or for an immediate trial. LaRosa has moved, pursuant to Fed. R. Crim. P. 14, for severance of his trial from those of his codefendants "to avoid prejudicial spillover which would inevitably result from a joint trial." LaRosa also seeks to join in the motions filed by his codefendants, to the extent that they are applicable to him. Affirmation of Mitchell A. Golub, Esq., counsel for LaRosa, dated November 24, 1991 ("Golub Aff."), at 1-2. Adamita has moved, pursuant to Fed. R. Crim. P. 14, for severance of his trial in order to avoid "prejudicial spillover," as well as so-called "prejudicial taint." Adamita Memorandum of Law at 2-4. Inzerillo has moved, pursuant to Fed. R. Crim. P. 14, for severance from the joint trial, and also claims that the delay in the trial of the Group A defendants is "unreasonable" and inconsistent with the Speedy Trial Act. Affidavit of Ira J. Friedman, Esq., counsel for Inzerillo, sworn to on November 27, 1991 ("Friedman Aff."), at 1-4. Mannino has moved "for a severance and for a trial forthwith," claiming that the delay in trial is inconsistent with the Speedy Trial Act. Affidavit of John M. Apicella, Esq., counsel for Mannino, sworn to on November 27, 1991 ("Apicella Aff."), para. 3. The Court will address first the defendants' arguments relating to severance and second the defendants' arguments relating to the Speedy Trial Act.

 Discussion

 I. Severance

 A. General Considerations

 Rule 14 of the Federal Rules of Criminal Procedure provides in part that:

 If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.

 Generally, "defendants who are jointly indicted should be jointly tried." United States v. Ventura, 724 F.2d 305, 312 (2d Cir. 1983). There is a strong "policy favoring joinder of trials, especially when the underlying crime involves a common plan or scheme and defendants have been jointly indicted." United States v. Cardascia, 951 F.2d 474, (2d Cir.1991). The Supreme Court has recognized that "joint trials play a vital role in the criminal justice system," and that "joint trials generally serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." Richardson v. Marsh, 481 U.S. 200, 209-10, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987) (Scalia, J.); see also United States v. Casamento, 887 F.2d 1141, 1150 (2d Cir. 1989) ("by and large, joinder promotes judicial efficiency"), cert. denied, 493 U.S. 1081, 110 S. Ct. 1138, 107 L. Ed. 2d 1043 (1990).

 "A trial court has wide discretion in considering a motion to sever pursuant to Fed. R. Crim. P. 14." United States v. Gallo, 863 F.2d 185, 194 (2d Cir. 1988) (citing United States v. Sliker, 751 F.2d 477, 492 (2d Cir. 1984), cert. denied, 470 U.S. 1058, 105 S. Ct. 1772, 84 L. Ed. 2d 832 (1985)), cert. denied, 489 U.S. 1083 (1989); see also United States v. Casamento, 887 F.2d at 1149 ("Motions to sever are committed to the sound discretion of the trial judge.") (citing United States v. Chang An-Lo, 851 F.2d 547, 556 (2d Cir.), cert. denied, 488 U.S. 966, 102 L. Ed. 2d 530, 109 S. Ct. 493 (1988)). It is well-established in the Second Circuit that:

 In order to demonstrate an abuse of this discretion, a defendant bears the "extremely difficult burden" of showing that substantial prejudice resulted from the denial of the motion. United States v. Werner, 620 F.2d 922, 928 (2d Cir. 1980). It must further be shown that the prejudice resulted from the joinder, not merely that the defendant "might have had a better chance ...


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