The opinion of the court was delivered by: I. Leo Glasser
Eight defendants named in a fourteen count indictment have moved this Court to issue orders granting them broad relief, entitlement to which they claim is warranted by Statute, Rule or precedent. The motions of each will be addressed separately with the exception of those in which two or more defendants have joined.
A. This defendant is named in six counts as follows:
Count One: Racketeering in violation of 18 U.S.C. § 1962(c) (hereafter RICO). He is then named in the following Racketeering Acts (hereafter RA):
RA One: Extortion Conspiracy in violation of 18 U.S.C. § 1951.
RA Two: Extortion in violation of 18 U.S.C. § 1951 and 2.
RA Six (A) and (B): Obstruction of Justice in violation of 18 U.S.C. § 1512(b)(1); 1503 and 2.
Count Two: Racketeering Conspiracy in violation of 18 U.S.C. § 1962(d).
Count Three: Extortion Conspiracy in violation of 18 U.S.C. § 1951.
Count Four: Extortion in violation of 18 U.S.C. § 1951 and 2.
Count Six: Obstruction of Justice in violation of 18 U.S.C. § 1512(b)(1).
Count Seven: Obstruction of Justice in violation of 18 U.S.C. § 1503 and 2.
1. He has moved this Court for an order pursuant to Fed.R.Cr.Pr. 12(b)(2) that would dismiss Counts One and Two or, in the alternative, strike from it RA Six.
Rule 12(b)(2) permits a party to raise, pretrial, "any defense, objection, or request that the court can determine without a trial" and his motion to dismiss Counts One and Two are appropriately made in accordance with that Rule. Before discussing the basis for making it, an understanding of the backdrop against which it is made is crucial.
The Counts of the indictment are preceded by sixteen introductory paragraphs which are surely familiar to courts, prosecutors and the criminal defense bar in cases in which the RICO enterprise is alleged to be an organized crime family. The enterprise alleged here is the Genovese Organized Crime Family whose leaders, members and associates engaged in a variety of racketeering activities defined in 18 U.S.C. § 1961(1), some of which are identified as illustrative. The structure of that enterprise is then described and hardly needs elaboration beyond simply referring to the boss, the underboss, the consigliere, captains of crews, members and associates. The principal purpose of this enterprise is alleged to be making money for its members and associates through racketeering activity.
Vincent Gigante is alleged to be and since the 1980's has been the boss of the Genovese Organized Crime Family. Liborio "Barney" Bellomo is alleged to have been the acting boss of the Family between 1988 and 1996. Ernest Muscarella is alleged to have been the acting boss of the Family between the fall of 2000 and the date of filing this indictment, February 1, 2002, and prior thereto was a captain. Charles Tuzzo is alleged to be a captain, Pasquale Falcetti and Michael Ragusa are alleged to be members and Thomas Cafaro and Andrew Gigante are alleged to be associates of the Family.
The bases upon which the motion is made are (1) RAs Six (A) and (B), the Obstruction of Justice charges, fail to satisfy the requirements of the "relatedness" necessary to sustain a RICO charge given that the purpose of the enterprise is alleged to be to make money for its leaders, members and associates, and (2) RAs One and Two, the Extortion and Extortion Conspiracy charges, "for purposes of racketeering activity, actually amount to one inseparable act." Def's. Mem. at 2. Each of those bases will be discussed in turn.
(a) The "relatedness" issue:
Section 1962(c) provides, in a nutshell, that it is unlawful for a person associated with an enterprise to participate in conducting the affairs of the enterprise through a pattern of racketeering activity. It is one thing to put § 1962(c) in a nutshell, it is another thing to keep it there. Every word of that statute — "affairs," "participate," "conduct," "through," "pattern," has been the subject of microscopic scrutiny, judicial and extrajudicial, which already fills volumes and will, confidently, fill still more. This exploration of the etymological derivation of each of those words and the semanticism surrounding them have given birth to a dizzying array of sophisticated rules qualified by subtle nuances and Talmudic distinctions which have provided grist for the searching minds of judges, lawyers and commentators all with a view towards divining an assumed intent in the mind of the legislative draftsman of the statute. A cursory view of a computerized "Shepard's" of that statute revealed upwards of 10,000 reported cases.
To collect and recite even a minute sampling of those cases which either announced or grappled with proclaimed prerequisites such as "nexus," "horizontal relatedness," "vertical relatedness," "continuity," "pattern of racketeering activity," "conduct or participation in the affairs of," would be an ambitious exercise if not an exercise in intellectual frustration and provide such guidance as the Court may wish them to provide in arriving at a decision.*fn1
A realistic, common sense appraisal of the allegations of the indictment and the assertion advanced by this defendant for the relief he seeks, uncluttered by a variegated string of citations, will more directly and swiftly lead to a conclusion.
(b) His view is that "given the specific purpose of the enterprise alleged, which is to make money, it is clear that the claimed obstruction of justice [RAs 6A and B] fails to satisfy the requisite criteria of relatedness, both to the enterprise and to the remaining acts of racketeering." Def's. Mem. at 2. This view is as unpersuasive as it is disingenuous.
The introductory paragraphs of this indictment allege that Vincent Gigante was the boss of the Genovese family from the 1980's through the filing of it. ¶ 5. It alleges that the boss sets policy, resolves disputes between members of the Genovese family and members of other criminal organizations and approves all significant actions by members of the Genovese family. ¶ 4. Even while imprisoned, Vincent Gigante remained the boss although the day to day leadership of the family passed to a committee (the "Administration") with whom Vincent Gigante communicated through intermediaries and whose approval was required in administering the affairs of the family. ¶¶ 5 and 6.
It requires no leap of logic to conclude that if Vincent Gigante had succeeded in obstructing justice and thus avoided a conviction of the serious crimes with which he was charged, he would have been able to continue to function as the hands-on boss of the Genovese family, unimpeded by the bars of a prison cell and the other limitations imprisonment imposes upon the free, unfettered and unsupervised conduct of one's affairs. That the presence of every conceivable prerequisite for a RICO violation whether it be "relatedness," "nexus," "continuity," "participation in the affairs of," which his obstruction of justice would have satisfied requires no elaboration simply because every facet of the affairs of the enterprise are dominated by the boss and that attempt to avoid prosecution was inter-related horizontally, vertically and diagonally, should that be added to the list of prerequisites on another day.
(c) He contends that RAs One and Two, Extortion Conspiracy and Extortion, are acts "which, as a result, at least for purposes of racketeering activity, actually amount to one inseparable act" citing United States v. Long, 917 F.2d 691, 698 fn. 7 (2d Cir. 1990). Assuming that RAs One and Two are deemed one inseparable act, it would follow that there would remain just one RA and, therefore, the "pattern" requisite would not be satisfied and the dismissal of Counts One and Two would be compelled.
Having concluded that the predicate acts of Obstruction of Justice satisfy all the necessary prerequisites, the "pattern" prerequisite is also satisfied. The alleged status of Vincent Gigante as boss of the Genovese Organized Crime Family makes him the sun around which all the planetary criminal activities revolve and makes Counts One and Two viable.
(d) His request for relief in the alternative, namely, that RA 6 should be stricken, is premised upon the inability to prove that Vincent Gigante "would have agreed to commit at least two racketeering acts which are `vertically related' to the theorized enterprise — a clear prerequisite to a valid RICO conspiracy charge . . . Count Two also cannot stand" and "Alternatively for the same reasons, . . . Racketeering Act Six should be stricken from the RICO charges." This assertion is unpersuasive and meritless. The assertion of precisely what the government will be unable to prove is as much wishful as it is premature.
For the reasons given, this motion is denied.
2. His motion to require the government to elect between Counts Six and Seven for purposes of trial.
Count Six incorporates the introductory paragraphs and charges that:
In or about and between May 1990 and December 18,
1997, both dates being approximate and inclusive,
within the Eastern District of New York and
elsewhere, the defendant VINCENT GIGANTE, also known
as "Chin," knowingly and intentionally engaged in
misleading conduct toward other persons, to wit:
doctors evaluating his mental competence, with intent
to influence the testimony of such doctors in official
proceedings, to wit: United States v. Vincent
Gigante, 90 Cr 446 and 93 Cr 368.
(Title 18, United States Code, §§ 1512(b)(1) and 3551 et seq.)
Count Seven incorporates the introductory paragraphs and charges that:
In or about and between May 1990 and December 18,
1997, both dates being approximate and inclusive, the
defendant, VINCENT GIGANTE, also known as "Chin,"
together with others, within the Eastern District of
New York and elsewhere, knowing, intentionally and
corruptly obstructed and impeded and endeavored to
obstruct and impede the due administration of
justice, to wit: by feigning diminished capacity
during the prosecution of United States v. Vincent
Gigante, 90 Cr 446 and 93 Cr 368.
(Title 18, United States Code, §§ 1503, 2 and 3551 et seq.)
The premise upon which this motion is based is that "Realistically, . . . these two theories of obstruction in fact allege only one offense, since an analysis of the two statutory provisions reveals that they do not each contain operative elements that are not contained in the other. . . . Accordingly, separating the two theories into distinct counts results in multiplicitous charges, which are properly the subject of a pretrial motion." Def. Mem. at 10.
The statutes alleged to be violated, provide in relevant part as follows:
(a) Whoever . . . corruptly . . . obstructs, or
impedes, or endeavors to . . . obstruct, or impede the
due administration of justice, shall be punished as
provided in subsection (b) (b)(3) imprisonment for not
more than ten years, a fine . . . or both
18 U.S.C. § 1512
(b) Whoever knowingly . . . engages in misleading
conduct toward another person, with intent to (1)
influence, . . . the testimony of any person in a
judicial proceeding shall be fined or imprisoned not
more than ten years or both.
It is important to note that § 1512(1) provides:
If the offense under this section occurs in connection
with a trial of a criminal case, the maximum term of
imprisonment which may be imposed for the offense
shall be the highest of that otherwise provided by law
or the maximum term that could have been imposed for
any offense charged in such case.
Since an offense charged in the cases referenced in Count Six included a violation of the racketeering statute, 18 U.S.C. § 1962(c), which is punishable by imprisonment for twenty years, it follows that Congress provided a punishment for the violation of § 1512 charged here which is more severe than it provided for the violation of § 1503. This difference alone, would suffice to drive the Court to conclude that Congress did not intend the offense complained of in one count to be the same as that charged in the other.
"[A]n indictment is multiplitous when it charges a
single offense multiple times, in separate counts
when, in law and fact, only one crime has been
United States v. Chacko, 169 F.3d 140
, 145 (2d Cir. 1999). Multiplicity is egregious because it violates the Double Jeopardy clause of the Constitution by subjecting a person to punishment for the same crime twice.
The defendant's claim for relief is predicated upon his contention that "the government is taking essentially the same crime, arising out of a single course of conduct and segmenting it into artificial units." His reliance in this regard, upon United States v. Seda, 978 F.2d 779 (2d Cir. 1999) and cases of that genre, such as United States v. Holmes, 441 F.3d 1150 (2d Cir. 1995); United States v. Zvi, 168 F.3d 49 (2d Cir. 1999) cert. denied 52 U.S. 878 (1992) and United States v. Handakas, 286 F.3d 92 (2d Cir. 2002) is misplaced.
In the light of the statutory provisions set about above, with particular emphasis of § 1512(1), the conclusion that Counts Six and Seven are not impermissibly duplicitous is required by this exquisitely apposite teaching of United States v. Chacko, 169 F.3d 140, 146 (2d Cir. 1999):
In assessing whether a defendant is impermissibly
charged with essentially the same offense more than
once in violation of the Double Jeopardy clause of the
Constitution, the touchstone is whether Congress
intended to authorize separate punishments for the
offensive conduct under separate statutes. It is not
determinative whether the same conduct underlies the
counts; rather, it is critical whether the "offense"
— in the legal sense, as defined by Congress
— complained of in one count is the same as that
charged in another (emphasis added) (internal
The Court went on to hold in Chacko that:
To assess whether the two offenses charged separately
in the indictment are really one offense charged
twice, the "same elements" test or the "Blockburger"
test is applied . . . The Blockburger test examines
whether each charged offense contains an element not
contained in the other charged offense . . . If there
is an element in each offense that is not contained in
the other, they are not the same offense for double
jeopardy, and they can both be prosecuted.
168 F.3d at 146.
The Blockburger test, announced in Blockburger v. United States, 284 U.S. 299 (1931) is as follows:
"The applicable rule is that, where the same act or
transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to
determine whether there are two offenses or only one
is whether each provision requires proof of an
additional fact which the other does not." 284 U.S. at
To begin with, even a cursory examination of Counts Six and Seven readily reveals that each does not charge the same act or transaction. Count Six charges conduct aimed at another for the purpose of influencing his testimony whereas Count Seven charges the conduct of the defendant himself. Each contains an element the other does not, viz. The elements of the offense charged in Count Six the government will have to prove beyond a reasonable doubt are that the defendant:
(1) knowingly engaged in misleading conduct toward another person, and
(2) intended to influence the testimony of that person in a judicial proceeding. The elements of the offense charged in Count Seven the government will have to prove beyond a reasonable doubt are that the defendant:
(1) corruptly obstructed or impeded or endeavored to obstruct or impede
(2) the due administration of justice.
The defendant in Blockburger was convicted of three counts charging a sale of morphine to the same buyer. One count charged a sale on a specified day; another count charged a sale on the following day; and the third count charged that the latter sale was not made pursuant to a written order of the person to whom the drugs were sold in violation of a then existing statute. The defendant contended that the two sales made to the same person constituted a single offense and the latter sale not made pursuant to a written order all constituted a single continuing offense. In rejecting this contention the Court distinguished the drug sales in the case from an offense that is continuous in its character by referring to In re Snow, 120 U.S. 274 (1887). In that case, the Court held that the offense of cohabiting with more than one woman was a continuous offense which was committed by living together as husband and wife. In the case before it, the Court held, each successive sale constituted a separate offense regardless of how closely they followed each other. Then, the Court quoted from Wharton's Criminal Law (11th Ed.) fn. 3: "The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately, . . . If the latter there can be but one penalty." The "test" described in that venerable treatise is echoed in the recent Chacko opinion previously cited — "[I]t is not determinative ...