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United States District Court, Eastern District of New York

January 29, 2003


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


The defendant, Vincent Gigante, has moved this Court for an order that would (1) dismiss Counts One and Two or, in the alternative, strike Racketeering Act Six from Count One: (2) require the government to elect between Counts Six and Seven for purposes of trial, and (3) sever his trial from the trial of his co-defendants.

This Memorandum and Order will address his severance motion only, for the reasons advanced in a letter dated January 21st and received on January 23rd, 2003, from defense counsel to the Court.

This defendant is named in six counts of a fourteen count superseding indictment in which he is charged with Racketeering (18 U.S.C. § 1962(c)); Racketeering Conspiracy (18 U.S.C. § 1962(d)); Extortion Conspiracy (18 U.S.C. § 1951); Extortion (18 U.S.C. § 1951 and 2); Obstruction of Justice (18 U.S.C. § 1512(b)(1)) and Obstruction of Justice (18 U.S.C. § 1503 and 2). His severance motion is bottomed, essentially, upon the added strain upon his health that he would endure in a trial together with 7 co-defendants which would be concluded in less time were he to be tried separately. The statutory underpinnings of his motion are Rules 8(b) and 14 of the Federal Rules of Criminal Procedure.


A determination of this motion must necessarily begin with the acknowledgment that the referenced Federal Rules of Criminal Procedure inform that determination. In substance. Rule 8(b) provides that two or more defendants may be charged together if they are alleged to be participants in the same crime or crimes. Rule 14 provides in substance that a court may order separate trials if a defendant is prejudiced "by a joinder of offenses or of defendants in an indictment."

In 1993, the Supreme Court decided Zafiro v. United States, 506 U.S. 534, the teachings of which have guided the determination of severance motions ever since. A brief summary of those teachings will similarly guide the determination of this motion for all ese would be commentary.

At the outset, the Court taught that there is a preference in the federal system for trying jointly defendants who are indicted together for the reasons that joint vials promote efficience and avoid "the scandal and inequity of inconsistent verdicts" to which separate trials might give rise. 506 U.S. at 537. Severance should be granted "only if there is a serious risk that a joint trial would compromise a [defendant's] specific trial right or prevent the jury from making a reliable judgment about guilt or innocence." 506 U.S. at 539. Examples of how such risks may occur hypothesized by the Court are not here (although the examples are surely not exclusive) nor has the defendant articulated any reason that would compromise a Sixth Amendment right or disable a jury from returning a just verdict

I would merely add that the relevant precedents also teach that joint trials are preferred because they minimize inconvenience to witnesses, bring defendants to trial without delay. and permit 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).

Conscious of my obligation to heed the teachings of the Supreme Court, I deny this motion.

Other matters addressed in the letter to which reference has been made, having no dispositive effect upon this motion, are left for another day.



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