of Scopo, supra (members of the Colombo Family Strike Force stop and search after traffic infractions). The court will hold a hearing as to the disputed traffic violations to determine whether there was probable cause for the arrests.
Defendants DeMartino, Scianna, Spataro, and Iannaci claim that forcing them to stand trial on Count Five would violate the protections of the Double Jeopardy clause. That count charges that each of the defendants "used and carried firearms during and in relation to a crime of violence" in violation of 18 U.S.C. § 924(c)(1). DeMartino and Scianna have been convicted of possession of a firearm having previously been convicted of a felony. 18 U.S.C. § 922(g)(1). Spataro and Iannaci were previously convicted of attempted possession of a loaded firearm. N.Y. Penal Law § 265.02(4).
These four defendants say that their prior convictions were for lesser included offenses of the crime charged in Count Five.
Double jeopardy bars additional punishment and prosecution for an offense unless "each offense contains an element not contained in the other." United States v. Dixon, U.S. , 113 S. Ct. 2849, 2856, 125 L. Ed. 2d 556 (1993). The present charges against these four defendants require proof that their weapon possession was in connection with a crime of violence, an element not present in their prior convictions. To obtain the prior convictions the prosecution was required to prove that DeMartino and Scianna were convicted felons and that Spataro and Iannaci possessed loaded weapons. Those are not elements of the current charges. This prosecution is thus not barred by double jeopardy.
Scianna and DeMartino raise an additional double jeopardy claim. The Second Circuit Court of Appeals has held that prosecution "for conduct that was already incorporated into [a previous] sentence would be a second punishment, Congress did not intend to allow multiple punishments for this type of conduct, and the availability of concurrent sentences does not eliminate this double jeopardy problem." United States v. McCormick, 992 F.2d 437, 439 (2d Cir. 1993).
When Scianna was sentenced on the gun possession charge by Judge Korman, his Presentence Investigation Report listed as relevant conduct the facts surrounding this prosecution. The Probation Department noted that Judge Korman could upwardly depart from the Sentencing Guideline range based on this conduct. He did not depart, and it does not appear that he considered that information to be an important factor in choosing the high end of the guideline range when he sentenced Scianna.
Because Scianna was not punished for this conduct in the prior case, the multiple punishment aspect of double jeopardy does not apply. His claim that he was "in jeopardy" because Judge Korman could have increased his sentence is incorrect. He was neither prosecuted nor punished for the relevant conduct before.
Likewise, when DeMartino was sentenced Judge Korman similarly refused to upwardly depart based on the allegations in the Presentence Investigation Report relating to this case. Judge Korman selected the high end of the guideline range because of DeMartino's decision to associate with an organized crime family immediately after leaving jail, not because of the specific allegations of the Colombo Family war.
Cutolo moves to suppress statements he allegedly made while in police custody on August 28, 1993. The government concedes that if Cutolo claims that these statements were in response to interrogation there should be a hearing to determine the circumstances under which they were made. The court will hold such a hearing.
Campanella moves to suppress a statement he made to a detective in January of 1992. The government says it does not intend to use that statement at trial. This motion is thus moot.
Iannaci moves pursuant to Rules 8(b) and 14 of the Federal Rules of Criminal Procedure for severance of his trial from that of his codefendants.
Rule 8(b) provides, in pertinent part,
Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series or acts or transactions . . . . Such defendants may be charged in one or more counts together or separately and all defendants need not be charged in each count.
Iannaci notes that William Cutolo alone is charged in Counts One, Two and Four, based on acts that took place in November 1988 -- namely the murder of Vincent Angellino. Counts Three and Five, involving all of the defendants, are based on acts taking place starting in June 1991. Iannaci says the time separating these offenses, combined with the indictment's allegation that the war did not begin until around June of 1991, shows that the so-called war counts are not connected to the Angellino counts.
The government has submitted the testimony of Carmine Sessa in United States v. Persico, 92 CR 351 (S-9), to support its claim that the counts are connected. It argues that the Angellino murder was an early attempt by Victor Orena to take control of the Colombo Family. It says that the outbreak of the internal war cannot be clearly understood without explaining the circumstances of the Angellino murder.
These allegations show that the defendants actions in each of the counts are related enough to warrant a joint trial. See United States v. Turoff, 853 F.2d 1037, 1043 (2d Cir. 1988). Furthermore, the bulk of proof regarding the various defendants' roles in the Colombo Family as well as the nature of the Family and its activities will be the same for all counts. See id. at 1044 (overlapping facts or issues may warrant joinder).
Rule 14 gives the court discretion to order separate trials for properly joined defendants if necessary to avoid prejudice. Here it is unlikely that the jury will conflate the facts about the Angellino murder with any actions by Iannaci. To the extent that evidence is not admissible against all defendants the court will instruct the jury accordingly.
Scianna makes a number of additional motions. To the extent they are not identical to the motions made on behalf of all defendants, above, they are addressed below.
Scianna wishes access to any confidential sources the government does not intend to produce at trial. His reliance on United States v. Saa, 859 F.2d 1067 (2d Cir. 1988), cert. denied, 489 U.S. 1089, 109 S. Ct. 1555, 103 L. Ed. 2d 858 (1989), is misplaced. As that case makes clear, the defendant must make a showing that disclosure of the confidential source is relevant to the defense and that the source can provide testimony "significant in determining guilt or innocence" before the informant's privilege will give way. Id. at 1073 (citing United States v. Russotti, 746 F.2d 945, 950 (2d Cir. 1984), and Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1057)). Scianna has made no such showing.
Scianna seeks notice of the government's intent to introduce evidence of prior misconduct pursuant to Rule 404(b). There is no reason to believe the government will not comply with the provisions of that rule. Scianna also seeks an order instructing the government not to refer to extraneous crimes of his or any defense witness. In the alternative, he seeks a hearing in limine reviewing all such possible misconduct. This motion is overbroad and will be denied.
Scianna also seeks an exhibit list, allegedly pursuant to Rule 16 of the Federal Rules of Criminal Procedure. He cites no specific authority for such a request. This motion is denied.
Defendants' motions are denied except to the extent indicated above.
Dated: Brooklyn, New York
August 5, 1994
Eugene H. Nickerson, U.S.D.J.
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