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UNITED STATES v. GIGANTE

September 2, 1997

UNITED STATES OF AMERICA,
v.
MARIO GIGANTE, et al., Defendants.



The opinion of the court was delivered by: RAKOFF

 JED S. RAKOFF, U.S.D.J.

 Upon consideration of the parties' written submissions, their oral arguments heard on July 14, 1997, an ex parte in camera hearing held on July 15, 1997, *fn1" and the entire record herein, defendants' pending pretrial motions are hereby decided as follows:

 (2) the motion to dismiss Counts One and Two of the Superseding Information is denied;

 (3) the motion to suppress the fruits of a 1993 electronic surveillance of Suburban Carting Corp. ("Suburban") is denied;

 (4) the motion to suppress the wiretap evidence obtained pursuant to a June 7, 1989 eavesdropping warrant is denied;

 (5) the motion to suppress the fruits of the searches and seizures conducted in 1990 at the premises of Suburban and of All-Waste Systems, Inc. ("All-Waste") is granted as to the records of defendants Enviro Express Inc., Trottown Transfer Inc., DMF Excavating Corp., and Al Turi Landfill Inc., and is denied in all other respects; and

 (6) the motion to suppress the tape-recorded evidence derived from electronic surveillance conducted at various times at C&I Trading Co. ("C&I") and at the Palma Boy Social Club ("Palma Boy") is granted as to the C&I tapes and denied as to the Palma Boy tapes. *fn2"

 In addition to the grounds already apparent from the in-court colloquy on July 14, 1997, see transcript, the following considerations led to these rulings.

 I. Severance

 "There is a preference in the federal system for the joint trial of defendants indicted together, making severance inappropriate unless a joint trial would compromise a trial right of the moving defendant or prevent the jury from making a reliable judgment about guilt or innocence." United States v. Aulicino, 44 F.3d 1102, 1116 (2d Cir.1995). Thus, in considering the motion to sever the two lead defendants, Mario and Salvatore Gigante, from the other nineteen defendants charged in the Superseding Information, the Court is obliged to "pay heed to the powerful institutional interests in judicial economy favoring joint rather than separate trials." United States v. Henry, 861 F. Supp. 1190, 1199 (S.D.N.Y. 1994). As the Supreme Court explained in Richardson v. Marsh, 481 U.S. 200, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987):

 
It would impair both the efficiency and the fairness of the criminal justice system to require ... that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last tried defendants who have the advantage of knowing the prosecution's case beforehand. Joint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability -- advantages which sometimes operate to the defendant's benefit. Even apart from these tactical considerations, joint trials generally serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.

 Id. at 210; see also Zafiro v. United States, 506 U.S. 534, 537, 122 L. Ed. 2d 317, 113 S. Ct. 933 (1993).

 Against all this, defendants offer precious little in support of their request to sever, not some peripheral defendant, but the two lead defendants, who are named as conspirators in each of the four conspiracies charged against the other nineteen defendants in the Superseding Information. Thus, although there are many defendants in this case and the crimes alleged are large in number, severance would not meaningfully simplify or shorten the presentation ...


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