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UNITED STATES v. CONESA

October 2, 1995

UNITED STATES OF AMERICA against CARLOS CONESA, a/k/a "Carlos Qonesa," a/k/a "Carlos Perez," a/k/a "Luis Gutierrez," HECTOR AQUINO, a/k/a "Rudy Peguero," a/k/a "Rudy Ortiz," a/k/a "Papito Banao," PAULIE DAVILLA, ROBERTO DAVILLA, a/k/a "Robertico," JIMMY DAVILLA, and DOMINGO MONEGRO, a/k/a "Kunke or Kunky," Defendants.


The opinion of the court was delivered by: BATTS

 DEBORAH A. BATTS, United States District Judge.

 In this multi-defendant criminal RICO and narcotics conspiracy case, defendant Paulie Davilla moves for dismissal of certain enumerated racketeering predicate acts and indictment counts on the grounds of duplicity, for severance, for a bill of particulars, and for certain discovery. Defendant Jimmy Davilla moves to sever the cocaine-related charges from the heroin-related charges, thereby severing the Davilla brothers' *fn1" trial from that of the other defendants, for a bill of particulars, and for certain discovery. For the following reasons, the motions are granted in part and denied in part.

 DISCUSSION

 I. Duplicitousness of the Heroin and Cocaine Conspiracy Charges

 Counts One and Two of the twenty count superseding Indictment charge all Defendants, including Paulie, Roberto, and Jimmy Davilla (together "the Davilla brothers"), with RICO violations, premised upon seventeen enumerated racketeering acts. Five of the seventeen racketeering acts name some or all of the Davilla brothers. The first of the racketeering acts alleges a heroin and cocaine conspiracy involving all of the defendants and lasting from roughly 1987 to 1994.

 Counts Three through Nineteen appear to charge the racketeering acts of Counts One and Two as substantive offenses. Accordingly, Count Twelve of the Indictment separately charges as a substantive offense the heroin and cocaine conspiracy contained in Racketeering Act One.

 Defendant Paulie Davilla moves to dismiss Racketeering Act One and Count Twelve on the basis of duplicity, arguing that the conspiracy allegations contained in those paragraphs improperly charge multiple conspiracies in a single count. Specifically, Paulie Davilla argues that these paragraphs charge four separate conspiracies, only one of which involves him.

 According to Paulie Davilla, the four separate conspiracies are: one conspiracy involving Paulie, Roberto, and Jimmy Davilla in the distribution of "Platoon" heroin in the Bronx from late 1989 to early 1990; another involving Roberto and Jimmy Davilla in the distribution of "Platoon" heroin in the Bronx in 1993 and 1994; a third involving Carlos Conesa and others in the distribution of "Volcano" heroin in Rhode Island; and a fourth involving defendants Conesa, Aquino, and Monegro in the distribution of cocaine.

 A duplicitous indictment combines two or more distinct crimes into a single count. United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir. 1992). However, "[a] conspiracy indictment presents 'unique issues' in the duplicity analysis because 'a single agreement may encompass multiple illegal objects.'" Id. (quoting United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980)).

 It is firmly established in this Circuit that an indictment count may allege a conspiracy to commit multiple crimes. Id.; Murray, 618 F.2d at 896. This Circuit, in the face of contrary authority, has explicitly held that "acts that could be charged as separate counts of an indictment may instead be charged in a single count if those acts could be characterized as part of a single continuing scheme." Aracri, 968 F.2d at 1518 (quoting United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 107 L. Ed. 2d 1044, 110 S. Ct. 1139 (1990)). Further, "whether the government has proven the existence of the conspiracy charged in the indictment and each defendant's membership in it, or instead, has proven several independent conspiracies is a question of fact for a properly instructed jury." United States v. Johansen, 56 F.3d 347, 350 (2d Cir. 1995); see also United States v. Alessi, 638 F.2d 466, 472 (2d Cir. 1980).

 Applying this authority, defendant's motion for dismissal of the conspiracy counts must be denied. The Government's indictment charges, and the Government maintains that the evidence will prove, a single conspiracy. The charge that defendants engaged in varied illegal activities, through varied phases, does not of itself disprove the existence of a single conspiracy, so long as there is sufficient proof of mutual dependence and assistance among the defendants. Aracri, 968 F.2d at 1521; United States v. Maldonado-Rivera, 922 F.2d 934, 963 (2d Cir.), cert. denied, 501 U.S. 1233 (1990).

 Accordingly, the fact that defense counsel chooses to characterize the alleged conduct as constituting four conspiracies, rather than one, does not vitiate the fact that the Government seeks to prove to a petit jury that a single conspiracy underlies the entire course of conduct of these defendants. The grand jury's concurrence in the factual propriety of the Government's charge precludes this Court from ordering a contrary result at this preliminary stage. Cf. Johansen, supra (reversing and remanding for new trial a conspiracy conviction where defendant was prejudiced by variance between single conspiracy charged and proof at ...


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