crimes charged. See United States v. Doran, 328 F. Supp. at 1263 ("We ought to care more -- and we do in fact care more -- about resolving charges of large-scale crime or of grave crimes than we do about relatively minor individual cases (however troublesome in their total impact)." The ninth superseding indictment charges John Gambino with being a "captain" in a large-scale organized crime association known as the Gambino Crime Family. It is alleged that John Gambino, in connection with this enterprise, committed various acts of racketeering including distribution of narcotics, murder, extortion, loansharking, and illegal gambling.
John Gambino was arrested almost two years ago. In light of the magnitude of the crimes charged, the public clearly has an interest in avoiding any delay or total preclusion of John Gambino's trial on these serious charges. The Court is sensitive to the need to avoid unnecessary delay and disruption to the trial process. Thus, the public interest weighs heavily in favor of denying the severance motion in the instant case.
As the Second Circuit has noted:
Whether a defendant's physical condition is so poor as to require a continuance or severance is not only a difficult determination for a judge to make, but it is one which carries with it the tremendous responsibility of weighing the invariably unpredictable factor of a defendant's health against the Government's, indeed the public's, legitimate interest in a fair and speedy disposition. Troublesome though it may be, however, that decision, as we have repeatedly held, is one reserved to the sound discretion of the district judge.
Bernstein v. Travia, 495 F.2d at 1182 (footnote and citations omitted). After careful consideration of the medical evidence with respect to John Gambino's physical and mental ailments and all of the other relevant factors, the Court finds that a medical severance is not required in the instant case. Moreover, the Court has determined that a hearing on this issue is unwarranted under these circumstances. Having reached this decision, the Court would like to ascertain the type of additional precautionary measures, if any, which should be taken during the course of the trial in order to alleviate any potential problems concerning John Gambino's physical and mental health. However, the Court recognizes that the data compiled in the current record is over two years old. Accordingly, the Court will order that the Government arrange a medical examination of John Gambino, which should be conducted in advance of trial, in order to determine the current status of his mental and physical condition and decide what type of precautionary measures, if any, are warranted during the trial in the instant case.
VIII. ROMANO'S MOTION TO DISMISS THE RACKETEERING CHARGES
Defendant Romano has moved to dismiss the racketeering counts brought against him (i.e. Counts One and Two) because the indictment fails to allege either a pattern of racketeering or any continuity of a pattern against him. In these RICO counts, the Government alleges five acts of racketeering against Romano. Romano argues that the time period separating these acts illustrate that they were random, isolated acts that do not constitute a "pattern" of racketeering and are therefore beyond the reach of the RICO statute.
It is axiomatic that, in a criminal case, a defendant may not challenge a facially valid indictment prior to trial for insufficient evidence. Instead, a defendant must await a Rule 29 proceeding or the jury's verdict before he may argue evidentiary insufficiency. See Costello v. United States, 350 U.S. 359, 363, 100 L. Ed. 397, 76 S. Ct. 406, (1956) ("an indictment returned by a legally constituted and unbiased grand jury . . ., if valid on its face, is enough to call for trial of the charge on the merits") (footnote omitted); United States v. Massino, 605 F. Supp. 1565, 1581 (S.D.N.Y. 1985) ("[a] motion to dismiss for insufficient evidence can be decided only at trial, after the government has been put to its test, not before trial, based merely on assumptions of what the government's proof will be"), rev'd in part on other grounds, 784 F.2d 153 (2d Cir. 1986); United States v. Cafaro, 480 F. Supp. 511, 520 (S.D.N.Y. 1979) ("It would be premature to dismiss an indictment based on a claim of insufficient evidence. . . . An indictment, valid on its face and returned by a properly constituted grand jury, is sufficient to require trial of the charge on the merits.").
In the instant case, the indictment clearly alleges that Romano participated in a pattern of racketeering activity and alleges that at least two acts by him constituted that pattern. Since the indictment is facially valid, Romano's motion to dismiss the RICO counts, based upon insufficient evidence of a pattern, is premature. Accordingly, Romano's motion to dismiss is denied without prejudice and with leave to renew at the close of the Government's case.
IX. ROMANO'S MOTION IN LIMINE TO PRECLUDE EVIDENCE RELATING TO THE EXISTENCE OF A NARCOTICS CONSPIRACY
Defendant Romano also seeks to bar the Government from offering proof of his involvement in certain narcotics transactions apart from the specific narcotics racketeering acts alleged in Counts One and Two. While Romano is not charged in the narcotics conspiracy alleged in Count Three, he is named as a co-conspirator. According to the indictment, the Government plans to introduce evidence of Romano's alleged participation in narcotics trafficking in the years 1982 and 1987, as well as certain items of physical evidence recovered during a search of his business premises at Concord Furniture on March 31, 1988, and a telephone conversation between Romano and his employee and relative, Salvatore D'Amico on May 24, 1988.
Romano argues that his alleged participation in an uncharged narcotics conspiracy is not relevant to the racketeering charges against him in Counts One and Two. Romano contends that this evidence concerning the narcotics conspiracy simply is being used to bolster the racketeering charges against him. The Court finds this argument to be without merit. In United States v. Bagaric, 706 F.2d 42 (2d Cir.), cert. denied, 464 U.S. 840, 78 L. Ed. 2d 128, 104 S. Ct. 133 (1983), the defendant argued that the district court improperly admitted evidence of an act not alleged in the indictment as one of the predicate acts of racketeering. The Second Circuit held that "it is clear the Government may offer proof of acts not included within the indictment, as long as they are within the scope of the conspiracy." Id. at 64 (citing United States v. Cohen, 518 F.2d 727, 733 (2d Cir.), cert. denied, 423 U.S. 926, 46 L. Ed. 2d 252, 96 S. Ct. 270 (1975)); see also United States v. Towne, 870 F.2d 880, 886 (2d Cir.), cert. denied, 490 U.S. 1101, 104 L. Ed. 2d 1010, 109 S. Ct. 2456 (1989). Applying this principle, the Court found that the evidence was properly admitted "as proof of [the defendant's] membership in the racketeering enterprise, and was clearly relevant to the alleged acts of racketeering." Id.
Even though Romano is not included as a defendant in the narcotics conspiracy charged in Count Three, his participation in that conspiracy clearly is relevant to the racketeering charges brought against him in Counts One and Two. Romano is charged in Counts One and Two with having been a long-term participant in a racketeering enterprise, which was involved in a massive narcotics trafficking operation. Defendant Romano cannot limit the Government's proof to the enumerated racketeering acts set forth in Counts One and Two; rather, the Government, in order to avoid Rule 29 dismissal, is entitled to use these other acts to prove that his membership in the racketeering enterprise, as well as to show that the racketeering acts were not isolated incidents. The acts relating to Romano in Count Three are within the scope of the alleged RICO conspiracy charged against Romano in Count One and are relevant to the racketeering acts charged in both Counts One and Two. The Court therefore denies the motion in limine to exclude the evidence relating to Romano's alleged involvement in the narcotics conspiracy alleged in Count Three.
For the reasons stated above, the Court grants the Government's motion for an anonymous jury and hereby orders that: (1) voir dire of prospective jurors should be limited so that a venireman's name, address, and name of employer or place of employment is not disclosed; (2) during trial, the jurors should be kept together during recesses and taken to lunch as a group each day by the United States Marshal's Service; and (3) at the end of each trial day, the jurors should be transported together by the United States Marshal's Service from the courthouse to an undisclosed central location, from which they can leave for their respective communities.
The pretrial motions brought by the moving defendants are denied in their entirety. First, the following motions brought by defendants John and Joseph Gambino are denied: (1) the motion to suppress the evidence resulting from the electronic surveillance at the Ravenite Social Club in Manhattan; (2) the demand for a bill of particulars; (3) a renewed demand for Brady materials; (4) the motion for severance of the bail jumping charge; and (5) the motion for medical severance of John Gambino's trial.
Second, the Court denies defendant Mannino's motion to sever his trial and his demand for a bill of particulars.
Third, the Court denies defendant Inzerillo's motion to sever his trial and his demand for a bill of particulars.
Fourth, the Court denies defendant Romano's motions to: (1) dismiss the racketeering charges against him; (2) motion in limine to preclude evidence relating to Romano's alleged participation in an uncharged narcotics conspiracy; and (3) motion to sever his trial.
Moreover, to the extent that the individual defendants have joined in the motions made by all other co-defendants, those motions similarly are denied for the reasons stated above.
Finally, the Court orders that the Government conduct a mental and physical examination of defendant John Gambino to update his condition and assist the Court in determining what precautionary measures, if any, the Court should take during the course of the trial with respect to John Gambino's mental and physical health.
Dated: December 21, 1992
New York, New York
Peter K. Leisure