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January 5, 2004.


The opinion of the court was delivered by: RICHARD CASEY, District Judge

Defendants Louis Vallario, Frank Fappiano, and Edward Garafola (together, "Moving Defendants"), along with three other codefendants, are charged in an eight-count indictment alleging various violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c)-(d).*fn1 Moving Defendants move: (1) to dismiss certain charges in the indictment, (2) to sever certain charges, and (3) to compel the Government to provide a bill of particulars and discovery. In addition, Moving Defendants move to strike all references to "organized crime" in the indictment and move to inspect jury lists. Defendant Vallario also moves to compel the Government to provide him with a bill of particulars and to sever the charges against him from those against his codefendants. The Court DENIES the motions with the exception of the motion to inspect jury-selection Page 2 materials, which the Court GRANTS IN PART AND DENIES IN PART.*fn2

I. Challenges to Count One: Pattern of Racketeering

  Count One consists of fifteen acts constituting a pattern of racketeering. Moving Defendants challenge the indictment with regard to Racketeering Acts One through Four, and Eight through Ten. Racketeering Act One of the indictment charges Moving Defendants with: (a) conspiracy to murder Frederick Weiss, and (b) the murder, and aiding and abetting the murder, of Weiss. Racketeering Act Two charges Fappiano with the murder, and aiding abetting the murder, of Frank Parasole. Racketeering Acts Three and Four charge Fappiano with witness tampering. Racketeering Act Eight alleges that Vallario and Fappiano engaged in a loansharking business by (a) financing extortionate extensions of credit, (b) conspiring to make extortionate extensions of credit, and (c) conspiring to collect extensions of credit through extortionate means. Acts Nine and Ten charge Garafola with operating a loansharking business by (a) conspiring to make extortionate extensions of credit, and (b) conspiring to collect extensions of credit through extortionate means.

  A. Racketeering Act One: Murder of Frederick Weiss

  Moving Defendants argue that: (1) the allegations of murder or aiding and abetting the murder of Frederick Weiss must be dismissed because the facts proffered do not constitute the crimes charged; (2) all the allegations with regard to Weiss's murder should be dismissed due to prejudicial pre-indictment delay; and (3) the charge of conspiring to murder Weiss should be dismissed because there is no allegation of an overt act. Page 3

  1. Sufficiency of Murder and Aiding and Abetting Charges

  The grand jury indicted Moving Defendants for the September 11, 1989 murder of Frederick Weiss. The indictment states that Moving Defendants and others, "unlawfully, intentionally, and knowingly did commit an act involving murder and aided and abetted the murder" of Frederick Weiss in violation of New York State Penal Law, sections 125.25 and 20.00. (Fourth Superseding Indictment ("Indict.") ¶ 13.) According to Moving Defendants, the Government has claimed elsewhere that members of the New Jersey-based DeCavalcante family murdered Weiss on the order of John Gotti because members of the Gambino family, Moving Defendants included, could not get close enough to Weiss. Moving Defendants note that members of the DeCavalcante family have also been prosecuted for Weiss's murder. See United States v. Riggi, S8 00 Cr. 118 (MBM). Their argument is essentially that the Government does not possess sufficient evidence to convict them of murdering or aiding and abetting the murder of Weiss. They assert that the Government's own position in this case is diametrically opposed to the position it took in prosecuting members of the DeCavalcante family for Weiss's murder. This argument is premature and must be rejected.

  The Government need not reveal all its evidence in an indictment but must simply (a) state the elements of the offense, (b) give notice to the defendant of the charges, and (c) provide sufficient information to protect the defendant against double jeopardy. United States v. Bailey, 444 U.S. 392, 414 (1980); see also United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998). The Court must look to the indictment itself to determine whether it is sufficient, but no further. Alfonso, 143 F.3d at 777. Here, the indictment need only track the language of the New York murder and accessorial liability statutes. See United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir. 1975 ("[A]n indictment need do little more than track the language of the statute charged and state the time and Page 4 place (in approximate terms) of the alleged crimes.").

  New York Penal Law section 125.25 provides that a person is guilty of murder in the second degree when, "with intent to cause the death of another person, he causes the death of that person or a third person." N.Y. Penal Law § 125.25. New York Penal Law section 20.00, the state accessorial liability statute, makes a person guilty of the underlying offense if that person acts with the required mental culpability and "solicits, requests, commands, importunes, or intentionally aids" another to commit the offense. N.Y. Penal Law § 20.00. The indictment charges Moving Defendants with acting intentionally in murdering and aiding and abetting the murder of Weiss. The indictment's charges of murder and aiding and abetting the murder of Weiss are therefore facially valid. The indictment adequately informs Moving Defendants of that which they are accused and enables them to avoid double jeopardy. See Alfonso, 143 F.3d at 776.

  Moving Defendants will have other opportunities to contest the sufficiency of the Government's evidence, but a pretrial motion to dismiss part of the indictment is not the time nor the proper occasion. Id. at 777 (holding that "sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment"). If the Government fails to introduce sufficient evidence to sustain a conviction on the Weiss murder, Moving Defendants may move for a judgment of acquittal at the close of the Government's case or after the close of all evidence. Fed.R.Crim.P. 29(a). Rule 29 is the proper mechanism to guard against unsubstantiated charges going to the jury. See United States v. Heredia, No. 02 Cr. 1246, 2003 WL 21524008, at *5 (S.D.N.Y. July 3, 2003); United States v. Luguis, 166 F. Supp.2d 776, 779 (S.D.N.Y. 2001). Thus, Moving Defendants are not deprived of the chance to assert that the Government has insufficient evidence to convict them for the Weiss murder based on the Government's position in prosecuting the Page 5 DeCavalcantes or on any other argument. Therefore, the motion to dismiss Racketeering Act One relating to the murder of Weiss is denied.

  2. Prejudicial Pre-Indictment Delay

  Moving Defendants assert that all of Count One should be dismissed due to prejudicial pre-indictment delay. A defendant claiming a Fifth Amendment due process violation for pre-indictment delay bears a "heavy burden" of demonstrating "actual prejudice" to his right to a fair trial and "unjustifiable Government conduct." United States v. Elsbery, 602 F.2d 1054, 1059 (2d Cir. 1979). The defendant must show that the delay violated "fundamental conceptions of justice." United States v. Lovasco, 431 U.S. 783, 790 (1977).

  "[T]he applicable statute of limitations is the primary guarantee against bringing overly stale criminal charges." United States v. Marion, 404 U.S. 307, 321 (1971) (citations omitted). Timely brought criminal prosecutions are only rarely dismissed. See United States v. Lawson, 683 F.2d 688, 694 (2d Cir. 1982). An indictment brought within the time constraints of the statute may nevertheless violate due process where pre-indictment delay has been shown to cause "substantial prejudice" to the defendant's ability to present his defense and "the delay was an intentional device to gain [a] tactical advantage over the accused." Marion, 404 U.S. at 324.

  In the instant case, Moving Defendants do not argue that the statute of limitations has expired, but that the Government delayed indicting them for a 1989 murder to gain a strategic and unfair advantage at trial. They also argue that they are prejudiced because, by virtue of the Government's delay, they are unable to call as trial witnesses John Gotti, who died in 2002, and Salvatore Gravano, who has since been convicted of federal drug offenses.

  First, Moving Defendants have not shown that the Government intentionally delayed to gain Page 6 a tactical advantage. Moving Defendants assert that the Government had knowledge of the Weiss murder since 1989 when it was committed, and that "it is inexplicable why the defendants herein would not have been prosecuted for the Weiss murder a decade ago, unless there was an illegitimate reason for the delay." (footnote omitted) (Defendants' Joint Memorandum of Law in Support of Pretrial Motions ["Defs. Joint Mem."] at 15.) According to Moving Defendants, the Government learned that Gravano was involved in the Weiss murder soon after it occurred, and so it delayed prosecution for the murder in order to preserve Gravano's credibility when he testified against John Gotti. Alternatively, Moving Defendants suggest that Gravano never implicated them in the Weiss murder and that this testimony would have come out at an earlier trial because Gravano was obligated to testify truthfully under a cooperation agreement with the Government. However, when Gravano was indicted on federal drug charges, he was relieved of his obligations under the cooperation agreement.

  Neither of these arguments establish that the Government acted intentionally to gain a tactical advantage over Moving Defendants. The contention that the Government delayed charging Moving Defendants with the Weiss murder to preserve the case against John Gotti says nothing about the Government's intent to disadvantage Moving Defendants, but rather is an argument that the Government intended to disadvantage John Gotti. In addition, Moving Defendants fail to convince the Court that the Government did not seek to indict them immediately after the murder because somehow the Government knew that Gravano would commit federal drug offenses and thus break the cooperation agreement under which Gravano was compelled to testify truthfully. The fact that Gravano may now, as a result of his actions after testifying in various trials in the 1990s, lack some incentive to tell the truth if called to the stand suggests nothing about the Government's alleged Page 7 decision in the early 1990s to delay charging Moving Defendants with Weiss's murder. It is the Government's decision not to seek an indictment against Moving Defendants earlier than it did that is relevant in this analysis.

  Second, Moving Defendants fail to meet their heavy burden of establishing actual, as opposed to possible, prejudice. Moving Defendants speculate that if Gotti or Gravano were to testify, they would pro vide exculpatory testimony. However, Moving Defendants do not provide any details as to how the witnesses would exculpate them and therefore do not offer any particularity as to how they have been prejudiced. It is Moving Defendants' burden to establish how the lack of Gravano's or Gotti's testimony deprives them of a fair trial. See United States v. Walker, No. 99 Cr. 379, 1999 WL 777885, at *2 (S.D.N.Y. Sept. 29, 1999) (denying motion to dismiss based on pre-indictment delay when defendants did not show how unavailability of witness deprived them of fair trial). Moving Defendants offer no explanation for what exculpatory testimony Gotti might have provided, and only suggest that Gravano might have testified that they were not involved in the Weiss murder if he were still subject to the cooperation agreement. Such speculation, utterly devoid of a factual or legal basis, cannot satisfy Moving Defendants' "heavy burden." See Elsbery, 602 F.2d at 1059.

  Moreover, Moving Defendants have not argued that Gravano is unavailable to testify; they merely state that his credibility will be easily undermined given his federal drug conviction, or that he would likely assert his Fifth Amendment privilege against self-incrimination if called to testify. Even if Gravano were to be unavailable, the Supreme Court has instructed that dimmed memories, inaccessible witnesses, and lost evidence are not enough to prove substantial prejudice. Marion, 404 U.S. at 325-26 (emphasis added). Again, Moving Defendants offer no explanation as to why they Page 8 cannot receive a fair trial or why they are entitled to dismissal of the indictment. This motion is accordingly denied.

  3. Overt Act Requirement for Conspiracy Charge

  Moving Defendants assert that the indictment fails to allege an overt act regarding the conspiracy to murder Weiss, and that therefore the conspiracy charge must be dismissed. In so moving, they rely on United States v. Carillo, 229 F.3d 177 (2d Cir. 2000). However, Carillo does not support Moving Defendants' argument. The Carillo court confronted the question whether the district court erred in not charging the jury that the Government had to prove an overt act as an element of conspiracy under New York law as part of a federal RICO prosecution. Id. at 182. This issue is different than whether an overt act must be alleged in a RICO indictment, a difference that the Carillo court recognized. See id. at 183 ("[T]he proposition that the indictment need not recite all elements of the state law offense . . . does not, without further explanation, lead to the conclusion that the government is excused from proving those elements."). Indeed, the Carillo court itself noted that the Government is not required to allege an overt act in a conspiracy charge that forms the basis for a predicate crime under RICO. Id. (citing United States v. ...

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