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United States District Court, Eastern District of New York

January 13, 2003


The opinion of the court was delivered by: I. Leo Glasser, United States District Judge.


The defendant has moved this Court for an order that would:

(1) Sever counts and the defendant from the indictment:

(2) Preclude the government from introducing evidence pursuant to Rule 404(b) Fed. R. Ev.:
(3) Preclude the government from introducing tape recorded conversations which, he argues, runs afoul of the hearsay rule, and
(4) For such other relief the Court may deem to be just and proper.

Imbrieco was indicted along with Angelo Cerasulo, Mario Fortunato and Carmine Polito. Cerasulo has since pleaded guilty. The indictment alleges that the defendants were associates of the Genovese Organized Crime Family, which is characterized as an "Enterprise" within the meaning of 18 U.S.C. § 1961 (4).*fn1

Count One of the indictment charges the defendants with conspiring to violate the RICO statute, 18 U.S.C. § 1962 (c).

Count Two charges Cerasulo, Fortunato and others with violating the RICO statute, 18 U.S.C. § 1962 (c) and, (1) the predicate act of conspiring to murder Sabatino Lombardi and Michael Durso (Racketeering Act One); (2) knowingly and intentionally murdering Lombardi (Racketeering Act Two); (3) knowingly and intentionally attempting to murder Michael Durso (Racketeering Act Three); (4) charging Cerasulo and others with obstruction of justice by endeavoring to influence the testimony before the grand jury of John Doe 1 (Racketeering Act Four); (5) charging Fortunato and others with obstruction of justice by endeavoring to influence the grand jury testimony of John Doe 2 (Racketeering Act Five): (6) charging Fortunato and others with conspiracy to rob a bank and robbing a bank (Racketeering Act Six).

Count Three charges all the defendants with murdering Lombardi in aid of racketeering in violation of 18 U.S.C. § 1959 (a)(1) and (2).

Count Four charges all the defendants with conspiracy to make false statements to the F.B.I. and corruptly endeavoring to obstruct justice in violation of 18 U.S.C. § 1001 (a)(2) and 1503.

Count Five charges all the defendants with making false statements on October 19, 2001, to the F.B.I. in violation of 18 U.S.C. § 2 and 1001(a)(2).

Count Six charges all the defendants with making false statements on January 15, 2002, to the F.B.I. in violation of 18 U.S.C. § 2 and 1001(a)(2).

Count Seven charges all the defendants with corruptly endeavoring to influence the testimony of John Doe 1 before the grand jury in violation of 18 U.S.C. § 2, 1503(a), 1503(b)(3).

Count Eight charges all the defendants with corruptly endeavoring to influence the testimony of John Doe 2 before the grand jury in violation of 18 U.S.C. § 2, 1503(a), 1503(b)(3).

The indictment, as outlined above, thus reveals that except for Count Two and the predicate acts alleged, Imbrieco is named in each count.


I. Motion for Severance

Imbrieco asserts that he should either be severed from his co-defendants or that the bank robbery charges alleged as Racketeering Act Six be severed from the other charges. The premise of this assertion is that the offenses and the defendants have been misjoined and as a consequence he will be irreparably harmed by the prejudicial spillover from those charges. He is mistaken.

The resolution of this severance motion has been dictated by well-settled principles which have been recounted frequently. This Court had occasion to recount them relatively recently in United States v. Rucker, 32 F. Supp.2d 545 (E.D.N.Y. 1999). One begins with the acknowledgment that multiple defendants are properly joined if Rules 8(b) and 14 of the Federal Rules of Criminal Procedure are satisfied.

Rule 8(b) permits charging two or more defendants in the same indictment "if they are alleged to have participated in the same series of acts or transactions constituting an offense or offenses." That Imbrieco is alleged to have participated in the same criminal acts, being named together with his co-defendants in seven of the eight counts of the indictment, is beyond cavil.

Participating in the same act or series of acts or transactions has been construed to mean that they must be unified by some substantial identity of facts or participants "or arise out of a common plan or scheme" and that is determined from the face of the indictment. This indictment fits squarely within the ambit of Rule 8(b). See also United States v. Attanasio, 870 F.2d 809 (2d Cir. 1989) and United States v. Teitler, 802 F.2d 606 (2d Cir. 1986). (every defendant need not be charged in every count or participate in every transaction).

It should be noted that, although not named in the RICO count, Count Two, he is named in the RICO conspiracy count, Count One. That being said, it would be superfluous to cite Zafiro v. United States, 506 U.S. 534 (1993). Richardson v. Marsh, 481 U.S. 200 (1987) and the countless others announcing a preference for trying jointly defendants who have been indicted together because doing so promotes efficiency and "serves the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." 481 U.S. at 210. The relevant precedents also teach that joint trials minimize inconvenience to witnesses, bring defendants to trial without delay and enable a single jury to hear the entire story. See, e.g., United States v. Stillo 57 F.3d 553, 556-57 (7th Cir.) cert. denied, 516 U.S. 945 (1995).

Imbrieco having been properly joined in accordance with Rule 8(b), we proceed to Rule 14 which provides in relevant part that, "If it appears that a defendant . . . is prejudiced by joinder of . . . defendants . . . for trial together, the Court may order . . . separate trials of counts, grant a severance of defendants or provide whatever relief justice requires." Severance, resting entirely in the Court's discretion, United States v. Lasanta, 978 F.2d 1300, 1306 (2d Cir. 1992), it should be granted "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539. Being charged as an employee and associate of the enterprise, the Genovese Organized Crime Family in Count One and in seven of the eight counts of the indictment there is, in this Court's view, no serious risk that Imbrieco's trial right would be compromised in any way by being tried jointly with his co-defendants nor would the jury be hampered in any way from making a reliable judgment about his guilt or innocence. Should it be necessary or properly requested during the course of the trial, appropriate limiting instructions will be given. For all of those reasons, Imbrieco's motion for a severance is denied.

II. Motion to Exclude 404(b) Evidence

Imbrieco seeks an order that would exclude evidence of (a) ammunition found in his home when he was arrested and that he bought and sold guns in the early 1990's and (b) that he committed a robbery with a cooperating witness in the early 1990's. In its Memorandum in Opposition to his motions, the government withdraws its intention to offer the evidence described in (a) pertaining to ammunition and the dealing in guns (Gov. Mem. at 9-10). Imbrieco's motion as to that is, therefore, moot.

As regards the robbery evidence, Imbrieco contends that the crime is not similar to the crimes charged here and, therefore, cannot be received for the purpose of establishing knowledge, intent, opportunity or motive to commit the crimes for which he was indicted. In defense of its intent to offer that evidence, the government disclaims a 404(b) basis for doing so. The government's view of the facts it will establish at trial is, in part, that a cooperating witness shot Durso in the back of the head; that Imbrieco then shot Lombardi who died, but Durso survived. From that it follows, the government contends, that evidence that Imbrieco committed the robbery with the cooperating witness is relevant to establish the relationship of trust between them which gave comfort to Imbrieco that his robbery confederate could be asked to participate in shooting Lombardi without fear that he will be compromised. United States v. Pitre, 960 F.2d 1112 (2d Cir. 1992). The government also supports its offer of that evidence by reference to cases such as United States v. Rosa, 11 F.3d 315 (2d Cir. 1993) which held such evidence to be admissible to help explain to the jury how the illegal relationship between participants in the crime developed as well as to explain the mutual trust that existed between them. Balancing the probative relevance of that evidence against its prejudicial potential, the Court finds that its probative value substantially outweighs the danger of unfair prejudice and the defendant's motion to exclude it is denied.

III. Motion to Exclude Tape Recorded Conversations

Imbrieco seeks to exclude the conversations he summarizes in his notice of motion for the reason that they are hearsay, do not fall within the hearsay exception of 801(d)(2)(E) of the Federal Rules of Evidence, are "laced with conjecture and speculation" and are irrelevant. Although conceding that the conversations may be received to prove the existence of the enterprise, i.e., the Genovese Organized Crime Family and the internal operations of that enterprise, it is "ludicrous" to believe, he contends, that a jury will follow the Court's instruction that the evidence is being received for that limited purpose. (Def. Memo at 22).

To begin with, if the evidence is indeed offered and received for a limited purpose it is not ludicrous to presume that a jury will obey a limiting instruction given by the Court. The precedential authority for that presumption is virtually unanimous.

The admissibility or exclusion of the excerpts of seven conversations in issue implicates several exceptions to the hearsay rule.

The parties focus primarily upon 801(d)(2)(E) of Fed.R. Ev. which provides in essence that "a statement of a co-conspirator of a party during the course and in furtherance of the conspiracy" is not hearsay and admissible. The government also makes reference to Rule 804(b)(3) Fed.R. Ev. to support the admissibility of those conversations. Returning to Rule 801(d)(2)(E), it is no exaggeration to say that the Rule has been the subject of literally countless judicial elaborations. See Weinstein's Federal Evidence §§ 801.34[1]-[5].

As is almost always the case, intercepted conversations between persons alleged to be members or associates of organized crime families are invariably elliptical and require interpretation or explanation by a party to the conversation. One of the parties to those conversations, Michael Durso, will be a witness at this trial and will thus be available for cross-examination regarding his statements and his explanation of the conversations he had with Salvatore Aparo. Aparo was a captain in the Genovese organized crime family and Durso was an associate in the family who, unbeknownst to Aparo, was cooperating with the government at the time and recording the conversations by way of a "body wire." That fact would not preclude his testimony. United States v. Ruggiero, 726 F.2d 913, 924 (2d Cir. 1954). If Aparo and a party against whom the statement is offered were members of a conspiracy at the time the statements were made, any witness (Durso) who heard it, even if he would not be regarded a member of the conspiracy at the time, may testify to it. Weinstein's Federal Evidence § 801.34[3][a]. It should be noted that other exceptions to the hearsay rule might properly be applied to those conversations. For example, if the conversations were offered to show the context within which the parties were acting or to show a relationship, link, or other connection with persons named in the statement, they are not hearsay and not offered for the truth.

The Court is not unmindful of United States v. Gigante, 166 F.3d 75 (2d Cir. 1999); United States v. Bellomo, 176 F.3d 580 (2d Cir. 1999) and United States v. Russo, 302 F.3d 37 (2d Cir. 2002), in each of which the court held that ". . . [E]ven in the context of organized crime, there is a limit to the proper use of Rule 801(d)(2)(E) to admit co-conspirator testimony. The district court in each instance must find the existence of a specific criminal conspiracy beyond the general existence of the Mafia."

But the statements offered here do not run afoul of that teaching. In this case which charges the defendants with violation of 18 U.S.C. § 1962 (c) and (d), the "Enterprise" alleged is not the Mafia at large. It is alleged to be the Genovese organized crime family, one segment of the generic "Mafia." The organizational structure of such an enterprise and the rules by which the members and associates of such an enterprise must abide have been frequently recounted. See e.g. Bellomo supra at 585-86. The members and associates of that enterprise functioned as a continuing unit and the objective of that enterprise was to make money for its members and associates by the commission of a wide variety of crimes. The definition of a conspiracy, namely, an agreement between or among two or more persons to commit a crime, applies precisely to the enterprise alleged in this indictment to be the Genovese organized crime family. The defendants are alleged to be associates of the Genovese family. Having associated themselves with that enterprise, it follows that they agreed to abide by its rules and to participate in its activities and further its objectives. In its essence, this enterprise — this association of the defendants and the declarants in fact in what is alleged to be the Genovese family, is the paradigm of a partnership or joint venture for criminal purposes. The objection to the introduction of the seven intercepted conversations between Salvatore Aparo. a captain in that enterprise and Michael Durso, an enterprise associate, is bottomed upon the holding cited above regarding the necessity of finding "a specific criminal conspiracy beyond the general existence of the Mafia," initially announced in Gigante, supra. In Russo, however, the Court wrote at 302 F.3d at 44:

Seizing on an isolated statement in Gigante, taken out of context, defendants interpret the discussion as narrowing the co-conspirator exception providing that joint membership in a criminal organization can never serve as its basis. This misunderstands the nature of the exception and misreads the Gigante opinion. Gigante did not purport to establish an arbitrary rule excluding conspiracies to operate a criminal organization from eligibility to serve as the basis for the co-conspirator — in furtherance exception.
The Russo court also observed that:

[T]he defendant and the declarant were involved together in a conspiracy to maintain an organized crime syndicate, and the declarant's statement furthered the maintenance of the syndicate by giving associated persons information about its membership. Such an organization cannot function properly unless its members and persons who do business with it understand its membership, leadership and structure. The operation of such a syndicate requires that information be passed among interested persons, advising them of the membership and its hierarchy." 302 F.3d at 46.
The declarant's statements were deemed admissible notwithstanding that they "were not made in furtherance of a particular criminal act and were not made in furtherance of the conspiracy" charged in the indictment. 302 F.3d at 46 at n. 3.

The government, in its Memorandum in Opposition, at pages 12-19, parses each of the intercepted conversations which are the subject of this motion in which his co-defendants have joined, and convincingly brings them within the embrace of Russo or, in the alternative, as declarations against penal interest, admissible pursuant to F. R. Ev. 804(b)(3).

On additional observation in Russo requires consideration. At 303 F.3d at 47, the Court wrote:

Furthermore, because the evidence here received is only of membership or structure of an organization, and does not identify defendant as participating in a crime charged, the use of the co-conspirator exception to the hearsay rule in such circumstances does not cause the problem we noted in Gigante . . . the use of hearsay to identify a person as a participant in a crime solely by the declarant's membership together with the defendant in a criminal organization. 166 F.3d at 83.
A cursory reading would lead to the conclusion that Gigante was never identified as participating in a charged crime in the course of conversations relating membership or structure of an organization and those conversations were, therefore, admissible. A reading of the Gigante opinion, 166 F.3d at 75, would indicate that conclusion to be erroneous.

Following a trial by jury, Gigante was convicted of violating the RICO and RICO conspiracy statutes, 18 U.S.C. § 1962 (c) and (d); conspiracy to murder in violation of 18 U.S.C. § 1959 (a)(5); an extortion conspiracy in violation of 18 U.S.C. § 1951; and, a labor payoff conspiracy in violation of 18 U.S.C. § 371. Admitted in evidence was testimony by D'Arco that Ida told D'Aarco that Gigante wanted him to find and murder Savino. Also admitted was D'Arco's testimony that Amuso told him that Gigante approved a plot to murder John Gotti.

What was deemed to be error, was the admission under 801(d)(2)(E) of a tape recording of Gotti, Gravano and D'Amato discussing a conspiracy to murder Vastola and saying that Gigante's permission was needed to use a specific person to murder Vastola. Gigante refused that permission. The Court held the discussion among those three "should have been excluded because there was no evidence that Gigante ever joined in a conspiracy with those figures to murder Vastola." 166 F.3d at 83.

It is in that context that the Russo court referred to the "problem we noted in Gigante . . . the use of hearsay to identify . . . a participant in a crime solely by the declarant's membership together with the defendant in a criminal organization."

The admission of the conversations which are the subject of this motion, to the extent that they make mention of the defendants it is not solely because they and the declarant are associated in a criminal organization.

Instructive in this regard are the words which fell from Judge Friendly's pen in United States v. Costello, 352 F.2d 848, 853-54 (2d Cir. 1965).

Evidence of an act (or a statement offered other than for its truth) has no special evidentiary hurdle to overcome and, whether the act is by a co-conspirator or third person and whether it occurs during the period of a conspiracy or not, the evidence is admissible so long as the act is probative of a crime charged against the defendant and the evidence is not excludable on some special ground. Thus, the acts of others not involving the defendant directly may come in against him merely to show the existence of a conspiracy with which he is to be linked by quite separate proof. An act of any other conspirator during the alleged conspiracy and in furtherance of it almost invariably meets this test, and, . . . acts by such others even before or after the period of the conspiracy may still be relevant in suggesting its existence and its aims . . . . (internal citations omitted).
For all of the foregoing reasons, the defendant's motions are denied.


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