10. For an Order pertaining to forfeiture issues should he be convicted which will be addressed at a future time should that be warranted.
A. The defendant's motion numbered "1" above, asserting that Counts One, Two and Ten and the RAs are legally defective and should be dismissed for the additional reason that it is impossible to determine the basis upon which the grand jury relied in returning an indictment. This motion is denied. The Counts and RAs that are the targets of this motion contain "a plain, concise and definite written statement of the essential facts constituting the offense charged" Rule 7(c) Fed.R.Cr.P. and are not legally defective. As regards the second object of this motion, it ignores the well settled teaching of Costello v. United States, 350 U.S. 359, 363 (1956) that "An indictment returned by a legally constituted and unbiased grand jury, . . . if valid on its face, is enough to call for trial of the charge on the merits." To hold indictments open to challenge for the reason advanced by the defendant would enhance "the abuses of criminal practice." Id. This motion is denied.
B. The defendant's motion numbered "2" above is denied. Advisory Committee Note 3 to Subdivision (c) of Rule 7, Fed.R.Cr.P. states that "The law at present regards citations to statutes . . . as not part of the indictment" citing Williams v. United States, 168 U.S. 382 (1891) and United States v. Hutcheson, 312 U.S. 219 (1941). That sentence in Rule 7(c)(1) which requires an indictment to "state for each count the official . . . citation of the statute, . . . which the defendant is alleged to have violated" is, as stated in the Adviser's Notes "for the benefit of the defendant and is not intended to cause a dismissal of the indictment, but simply to provide a means by which he can be property informed without danger to the prosecution."
C. The defendant's motion numbered "3" above, is denied. The premise upon which this motion is made has been rejected in United States v. Hickey, 16 F. Supp.2d 223, 227-29 (E.D.N.Y.) 1998) and in United States v. Indelicato, 865 F.2d 1370 (2d Cir. 1989) and United States v. DiNome, 954 F.2d 839 (2d Cir. 1992).
D. The defendant's motion numbered "4" above is denied as meritless. The assumption in this motion that "the grand jury was misled" is based upon nothing more than that the defendant alleges it.
E. The defendant's motions numbered "5," "6," "7," and "9" are denied as meritless.
F. The defendant's motion numbered "8" is granted to the extent that should the government intend to offer conversations in its direct case that would otherwise be admissible, but might implicate Bruton v. United States, 391 U.S. 123 (1968), it is hereby directed to identify those conversations.
G. The defendant's motion numbered "10" above is premature and may be renewed should there be a conviction.
V. Bellomo, Cafaro and Ragusa
These defendants by motion and correspondence seek an order directing the government to provide a bill of particulars in accordance with Rule 7(f) Fed.R.Cr.P. A motion for a Bill of Particulars is ubiquitous, made in virtually every criminal case and has spawned liberally thousands of pages, mostly repetitive, in which the purpose to be served by Rule 7(f) is recited. This Court has had more than one occasion to give such recitals. See, e.g., United States v. Crozzoli, 698 F. Supp. 430, 435-36 (E.D.N.Y. 1988); United States v. Gotti, 784 F. Supp. 1017, 1018 (E.D.N.Y. 1991), aff'd. sub nom United States v. LoCascio, 6 F.3d 924 794, 797-98 (E.D.N.Y. 1992); United States v. Rucker, 32 F. Supp.2d 545, 561 (E.D.N.Y. 1999). To do so yet again, repeating what has been written in the cited cases and the countless cases left un-cited would neither enlighten nor inform experienced defense counsel nor contribute to the development of the law. It will suffice to note that the indictment together with the voluminous discovery provided them, describes with sufficient specificity the crimes with which they are charged to enable them to prepare for trial, avoid surprise and assert a claim of double jeopardy should they be prosecuted again for the same crimes.
In its Memorandum in Opposition to these motions (Gov. Mem. Opp.), the government describes the extensive discovery previously provided in response to demands which, in large part, are boilerplate. On pages 5-8, the government represents that it has "produced voluminous discovery, along with multiple indices . . . setting forth, for hundreds of tapes, each tape in which a defendant is mentioned. The government also has supplied numerous transcripts of these tapes, most on computer disks, which can be searched for references to a defendant." The government has also "provided an index of documentary discovery, numbering and describing discovery items."
The decision whether to grant defendants' request for the names of unindicted conspirators, as with requests for Bills of Particulars generally, rests in the sound discretion of the Court and given the voluminous discovery already provided, together with a clear description in the indictment of the crimes with which they are charged, the purposes intended to be served by a Bill of Particulars have been more than met and in the exercise of its discretion this request is denied.
For all the foregoing reasons, these motions are denied. The decisions on motions which have already been decided in which these defendants simply joined are hereby deemed to be applicable to them as well.
VI. Charles Tuzzo
The motions filed on behalf of this defendant will be addressed in order.
1. Motion for Severance
For all the reasons advanced for denying similar motions on behalf of other defendants, this motion is also denied.
2. Motion to Dismiss the Indictment and to Obtain the Grand Jury Minutes
(a) This motion is predicated upon the assertion that the government possesses insufficient evidence warranting his prosecution. The mere citation of Costello v. United States, 350 U.S. 359 (1956) without more should and does suffice to deny it.
(b) His request for the minutes of the grand jury is so that he can determine whether there are additional reasons to be found there to support his motion to dismiss the indictment. This motion is meritless and is denied. Costello v. United States, supra; United States v. Williams, 504 U.S. 36 (1992).
Motion to Strike Surplusage
The defendants have moved pursuant to Rule 7(d), Fed.R.Cr.P. for an order that would strike surplusage from the indictment. The paragraphs they regard as surplusage are the first 16 which are captioned "Introduction to all Counts" and which are largely devoted to an overview of the Genovese Organized Crime Family which is alleged to be the "enterprise" that is the object of the RICO Counts. The settled principles of law addressing this issue compel the denial.
In United States v. Rastelli, 653 F. Supp. 1034, 1055 (E.D.N.Y. 1986), Judge Sifton summarized the law relevant to a Rule 7(d) motion to strike as follows:
Courts in this circuit have held that "[a] motion to
strike surplusage will be granted only where it is
clear that the allegations are not relevant to the
crime charged, and are inflammatory and prejudicial."
United States v. DePalma, 461 F. Supp. 778, 797
(S.D.N.Y. 1979); see also United States v. Pilnick,
267 F. Supp. 791, 795 (S.D.N.Y. 1967); United States
v. Chas. Pfizer & Co., 217 F. Supp. 199, 201
(S.D.N.Y. 1963). This standard has been described as
"exacting" and, therefore, "only rarely" satisfied.
DePalma, 461 F. Supp. at 797. Furthermore, it has been
held that, although both relevancy and prejudice are
pertinent considerations under a Rule 7(d) motion to
strike, "if evidence of the allegation is admissible
and relevant to the charge, then regardless of how
prejudicial the language is, it may not be stricken."
DePalma, supra at 797.
Rastelli was cited with approval in United States v. Scarpa, 913 F.2d 993, 1013 (1990). ("In RICO cases, courts have refused to strike allegations of organized crime connections that `serve to identify the enterprise' and the means by which its members and associates conduct various criminal activities.") See also United States v. Napolitano, 552 F. Supp. 465, 480 (S.D.N.Y. 1982); United States v. Santoro, 647 F. Supp. 153, 176-77 (E.D.N.Y. 1986), aff'd. mem. 880 F.2d 1319 (2d Cir. 1989). The paragraphs the defendant seeks to strike serve to identify the put poses which made them relevant and property alleged in Scarpa.