United States District Court, S.D. New York
January 5, 2004.
UNITED STATES OF AMERICA, Government, -against- PETER GOTTI, LOUIS VALLARIO, FRANK FAPPIANO, EDWARD GARAFOLA, THOMAS CARBONARO, and JOHN MATERA, Defendants
The opinion of the court was delivered by: RICHARD CASEY, District Judge
OPINION & ORDER
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
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
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
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
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
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
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
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
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
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
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. Orena, 32 F.3d 704, 713-14 (2d Cir. 1994)). Moving
Defendants somehow overlook Orena despite the fact that it is cited and
discussed in Carillo, on which they rely. Because there is no requirement
that an indictment allege an overt act as part of a conspiracy charge,
this motion is denied.
B. Racketeering Act Two: Murder of Frank Parasole
Moving Defendants maintain that Count Two must be dismissed because the
alleged conduct cannot constitute murder or aiding and abetting murder,
and because the New York depraved indifference statute under which
Fappiano is charged is unconstitutionally vague and denies equal
protection of the laws.
1. Sufficiency of Allegations
Moving Defendants' argument on Racketeering Act Two is identical to
their argument regarding the Weiss murder charge; both fail for the same
reason. The indictment charges that in January 1997, Fappiano, in the
Southern and Eastern Districts> of New York, "unlawfully, recklessly, and
knowingly murdered, and aided and abetted the murder, of Frank Parasole
in violation of New York Penal Law, Sections 125.25(2) and 20.00, by
recklessly engaging in conduct creating a grave risk of death . . .
under circumstances evincing a depraved indifference to human life."
(Indict, ¶ 14.) The indictment goes on to accuse Fappiano of ordering
associates in the Gambino family to physically assault and injure
Parasole, and alleges that the assault resulted in Parasole's death.
According to Moving Defendants, this charge is invalid because the
Government alleges that Fappiano ordered Parasole beaten, while
Parasole's death actually resulted from a gunshot wound. Moving
Defendants ask the Court to look beyond the indictment, make findings of
fact and then conclusions of law, all of which are improper on a motion
to dismiss the indictment. See Alfonso, 143 F.3d at 776-77 (holding that
district court improperly looked beyond face of indictment when
government did not make full proffer of evidence it intended to introduce
at trial). The charge against Fappiano is facially valid; it fairly
tracks the language of the New York State reckless murder and accessorial
liability statutes, and generally states the time and place of the
offense. See United States v. Grossman, 843 F.2d 78, 84 (2d Cir. 1988).
Thus, the motion to dismiss Racketeering Act Two on the grounds of
insufficient allegations is denied.
2. Constitutionality of New York Depraved Indifference Statute
Moving Defendants next maintain that the New York State statute under
which Fappiano is
charged for the murder of Parasole is unconstitutionally vague and that
it denies equal protection of the laws. New York Penal Law section
125.25(2) states that a person is guilty of second degree murder when,
"[u]nder circumstances evincing a depraved indifference to human life, he
recklessly engages in conduct which creates a grave risk of death to
another person, and thereby causes the death of another person." N.Y.
Penal Law § 125.25(2). A law denies due process if it "fails to give
a person of ordinary intelligence fair notice that his contemplated
conduct is forbidden." Richmond Bros. Gun Club, Inc. v. City of New
York, 97 F.3d 681, 684 (2d Cir. 1996). Moving Defendants argue that New
York Penal Law section 125.25(2) fails to meet this standard because the
law has been construed by New York courts in such a way as to threaten
defendants with conviction for depraved indifference murder when their
conduct only constitutes the lesser offense of "reckless manslaughter."
(See Defs. Joint Mem. at 21.) While the Court has serious doubts as to
the merit of this argument, it denies the motion because it is
Moving Defendants must challenge the New York depraved indifference
statute as it applies to the facts of this case, rather than on its
face. See Chapman v. United States, 500 U.S. 453, 467 (1991) (noting that
vagueness challenges to statutes not implicating First Amendment rights
must be as applied to facts of case) (citing United States v. Powell,
423 U.S. 87, 92 (1975)). Arguments that a statute is unconstitutionally
vague as applied to the facts of the case necessarily must be made after
those facts emerge. See United States v. Bastian, 112 F. Supp.2d 378, 380
(S.D.N.Y. 2000). The Bastian court rejected an as-applied challenge on
vagueness grounds to a federal firearms statute made in a pre-trial
motion to dismiss. Id. The court there stated, "Heeding the Supreme
Court's admonition that a vagueness challenge to a statute may only be
examined in light of the facts of the case at hand, this Court cannot
conduct a proper examination of the application of . . . [the statute]
on the basis of the indictment alone." Id. Similarly, the only facts
before this Court are those presented by the indictment, which are
insufficient to carry out the required fact-intensive analysis. Thus, the
Court denies the motion to dismiss the charges against Fappiano for the
murder of Parasole on the ground that it is prematurely made.*fn3
C. Severance of Racketeering Acts Three and Four: Witness Tampering
Moving Defendants also seek to sever Racketeering Acts Three and Four
alleging witness tampering relating to the investigation and prosecution
of the Parasole murder. According to Moving Defendants, trying Fappiano
on the witness tampering charges in the same proceeding as he is tried
for the murder of Parasole would be unduly prejudicial.*fn4 They seek
this severance pursuant to Federal Rule of Criminal Procedure 14, which
gives the Court discretion to order separate trials of counts if a
defendant is prejudiced by the joinder of offenses in a single
indictment. Fed.R.Crim.P. 14.
Moving Defendants explain that a jury might be unduly influenced to
believe that Fappiano
murdered Parasole if the jury hears evidence that Fappiano tampered with
witnesses who were going to testify regarding Parasole's murder,
especially because the indictment charges Fappiano with attempting to
persuade witnesses to withhold truthful testimony. Moving Defendants argue
that the use of the term "truthful" will unduly influence a jury because
it suggests "that a grand jury has already found the testimony . . .
concerning the death of Parasole to be truthful," and thus the jury
trying Fappiano would be more likely to think that Fappiano is guilty of
Parasole's murder (Defs. Joint Mem. at 43.) This argument is without
First, the witness tampering charges are properly joined in this
indictment. See Fed.R.Crim.P. 8(a). Charges are properly joined when they
are based on "acts or transactions connected together or constituting
parts of a common scheme or plan." Id. Here, the indictment accuses
Fappiano of participating in Parasole's murder and then attempting to
cover it up by tampering with witnesses. In addition, the witness
tampering charges are predicate acts in the overarching RICO
prosecution, involving allegations that all of the defendants possessed a
common criminal purpose as members of the Gambino family. See United
States v. Bagaric, 706 F.2d 42, 69 (2d Cir. 1983), overruled on other
grounds by Nat'l Ore, of Women, Inc. v. Scheidler, 510 U.S. 249, 259-60
(1994) ("[Virtually] by definition, the pattern of racketeering . . .
constituted a `series of acts or transactions' sufficiently intertwined
to permit joinder of defendants."). Thus, the murder and subsequent
witness tampering charges are part of the same scheme or plan involving
all of the defendants in this case.
Second, the Court rejects the argument that there will be undue
prejudice to Fappiano, and prejudicial spillover effect on Garafola and
Vallario, if the witness tampering and murder charges are tried together.
The Court shall instruct the jury on the elements of each crime charged
and is confident that a proper limiting instruction would cure any danger
of prejudice. See United States v. Nunez,
No. 00 Cr. 121 (RCC), 2001 WL 91708, at *3 (S.D.N.Y. Feb. 1, 2001).
Therefore, the motion to sever the witness tampering charges is denied.
D. Racketeering Acts Eight, Nine, and Ten: Loansharking
Moving Defendants argue that Acts Eight and Nine must be dismissed
because the loansharking allegations are so devoid of facts as to violate
their right to notice of the charges against them. According to Moving
Defendants, the indictment fails to contain any factual particularity,
such as the names of the victims. (See Defs. Joint Mem. at 26.) Moving
Defendants rely on United States v. Tomasetta, 429 F.2d 978 (1st Cir.
1970), in which the court dismissed an indictment because it failed to
name the victims of a single act of extortion. Id. at 979. This case is
inapposite for several reasons.
Tomasetta was decided over thirty years ago, has never been relied on
by the Second Circuit in dismissing an indictment, and appears at odds
with the Second Circuit's decision in Alfonso. See 143 F.3d at 776.*fn5
The Alfonso court held an indictment was sufficient when it did no more
than accurately state the elements of the crime and provide an
approximate date and location of the alleged robbery. Id. The fact that
the indictment in Alfonso did not allege what the defendants conspired to
steal did not render it insufficient. Id. The information in the
indictment was adequate to protect the defendants against any threat of
double jeopardy. Id.
The indictment in this case alleges that Moving Defendants were members
of the Gambino family, an organization that engaged in widespread
criminal activity. The indictment provides a detailed factual recitation
of the grand jury's findings regarding the Gambino enterprise, its means,
purposes, and the role of each defendant in it. (See Indict, ¶¶ 1-10.)
Thus, the allegations in the indictment are more detailed than they were
in Tomasetta, in which the indictment lacked such factual allegations.
See 429 F.2d at 979.
In addition, the challenge here is to the sufficiency of predicate-act
allegations that, taken with the other racketeering charges, constituted
a pattern of racketeering activity in violation of RICO. See 18U.S.C.
§ 1961(1)(B) (defining "racketeering activity" to include violations
of federal statutes relating to extortionate credit transactions). In
Tomasetta, however, the defendants were charged with direct violations of
the federal statute prohibiting extortionate credit transactions. See 429
F.2d at 979. Other courts have noted the difference between direct
charges of violations of federal and state laws and RICO indictments
alleging those crimes as predicate acts. See, e.g., Orena, 32 F.3d at
714; Bagaric, 706 F.2d at 62-63; United States v. Reale, No. 96 Cr.
1069, 1997 WL 580778, at *7-8 (S.D.N.Y. Sept. 17, 1997); United States
v. Triumph Capital Group, Inc., 260 F. Supp.2d 444, 456 (D. Conn. 2002).
The court in Reale held that "generic references" to predicate crimes in
a RICO indictment are sufficient. See 1997 WL 580778, at *7 ("It is well
established that an indictment charging RICO offenses need only define
the underlying predicate state crimes `genetically.'"). This is so
because references in the RICO statute to predicate state and federal
crimes serve a definitional purpose, that is, to generally identify the
illegal activities covered under RICO. See id. (citing Bagaric, 706 F.2d
at 62-63). Thus, the allegations for a RICO predicate act need not be
more than generic references to the proscribed activity.
To be sufficient, the loansharking charges only need be facially
valid; there is no requirement that the indictment supply sufficient
evidence to convict. See Alfonso, 143 F.3d at 776-77. Here, the
loansharking charges are facially valid both because they track the
language of the applicable
federal statutes relating to extortionate extensions of credit and
because they are only predicate acts that are part of an overarching
pattern of racketeering activity adequately detailed in the indictment.
Therefore, the motion to dismiss Racketeering Acts Eight, Nine, and Ten
of the indictment is denied.*fn6
II. Demand for Bill of Particulars and Discovery
Moving Defendants argue that they are entitled to a bill of particulars
and to disclosure of evidence pursuant to Federal Rule of Criminal
Procedure 16, Federal Rule of Evidence 404(b), and Brady v. Maryland,
373 U.S. 83 (1963).*fn7
A. Bill of Particulars
Moving Defendants, in their motions and in subsequent letters to the
Court, contend that they are entitled to a bill of particulars providing,
among other things, the identity of alleged co-conspirators, witnesses,
and victims, the dates and locations of certain acts, and specific false
and fraudulent statements alleged.
Federal Rule of Criminal Procedure 7(f) permits a district court to
order a bill of particulars. "A bill of particulars should be required
only where the charges of the indictment are so general that they do not
advise the defendant of the specific acts of which he is accused." United
States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990) (quoting United States
v. Feola, 651 F. Supp. 1068, 1132
(S.D.N.Y. 1987)) (internal quotation marks omitted). "A bill of
particulars is not a general investigative tool, a discovery device or a
means to compel the government to disclose evidence or witnesses to be
offered prior to trial." United States v. Gibson, 175 F. Supp.2d 532, 537
(S.D.N.Y. 2001). Instead, its purpose is to supplement the facts
contained in the indictment when necessary to enable defendants to
identify with sufficient particularity the nature of the charges against
them. See United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987)
(per curiam); Gibson, 175 F. Supp.2d at 536.
In exercising its discretion to grant a demand for a bill of
particulars, the Court must examine the totality of the information
available to the defendants, including the indictment and pretrial
discovery, and view the demand in light of the charges that the
defendants must meet. See United States v. Bin Laden, 92 F. Supp.2d 225,
233 (S.D.N.Y. 2000). Here, the indictment: is facially sufficient to
advise Moving Defendants of the conduct with which they are charged. It
contains a detailed description of the allegations that Moving Defendants
were active participants in the Gambino Organized Crime Family, including
a description of the structure of that organization, its purposes, and
the unlawful means by which it allegedly met its goals. (Indict, ¶¶
1-11.) In addition, the Government proffers that it has made available to
Moving Defendants substantial discovery, including documents and audio
tapes related to wiretaps; consensual recordings of conversations;
surveillance photographs and videos; documentation relating to pen
registers and caller identification devices; and bank and telephone
records. Moving Defendants do not dispute that they have received this
discovery. Thus, Moving Defendants have more than just the facts provided
to them in the indictment to aid them in preparing their defense and in
avoiding any possibility of double jeopardy.
The particulars that Moving Defendants request primarily pertain to the
individuals. Moving Defendants are not entitled, at this time, to the
names of co-conspirators, witnesses, and victims. See United States v.
Kevin, No. 97 Cr. 763, 1999 WL 194749, at *12 (S.D.N.Y. Apr. 7, 1999)
(holding defendants not entitled to names of witnesses when charged with
violent crimes because witnesses might be endangered). The Government has
a legitimate concern about the safety of those individuals it intends to
call at trial, a factor that this Court takes into consideration. See
United States v. Sindone, 01 Cr. 517, 2002 WL 48604, at *1 (S.D.N.Y.
Jan. 14, 2002). As Judge Mukasey noted in Sindone, "The stakes in a
criminal case are high, and temptations of perjury, subornation and
intimidation are ever present. The government is not required to turn
over information that will permit a defendant to preview the government's
case and tempt him . . . to see to it that the government's proof is not
presented." Id. This is especially the case here, as the indictment
includes acts such as murder, attempted murder, and witness tampering,
allegedly in order to prevent individuals from cooperating with the
Government. Therefore, the Court declines to exercise its discretion to
order that the names of any individual co-conspirators, witnesses., or
victims be turned over to Moving Defendants. The motion for a bill of
particulars is denied.
Moving Defendants ask the Court to order the Government to provide them
with discovery on a number of grounds. First, they move for discovery
under Federal Rule of Criminal Procedure 16, including disclosure
relating to expert opinion testimony. Second, they ask the Court to set a
date by which the Government must disclose any evidence it intends to
offer under Federal Rule of Evidence 404(b) relating to other crimes or
wrongful acts allegedly committed by the defendants. Finally, Moving
Defendants request any evidence in the possession of the Government that
is favorable to them, pursuant to Brady v. Maryland, 373 U.S. 83 (1963).
Federal Rule of Criminal Procedure 16 provides various grounds on which
the Government must disclose evidence. Moving Defendants ask the Court to
order the Government to disclose information to which they are entitled
under Rule 16 to the extent that the Government has not yet done so. The
Government submits that it turned over substantial discovery on August 2,
2002, and that it recognizes its ongoing duty to provide discovery as it
becomes available. Therefore, the Court declines to issue an order
regarding Rule 16 material at this time.
Moving Defendants also request that the Government disclose, or that
the Court set a deadline for disclosure of, evidence that it plans to
introduce under Federal Rule of Evidence 404(b). Rule 404(b) permits
evidence of prior crimes, wrongs, or acts to show, among other things,
motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake. Fed.R.Evid. 404(b). The Government responds that it
intends to make detailed motions concerning Rule 404(b) evidence, and
assures the Court that it will provide sufficient notice in advance of
trial as required by Rule 404(b). See ID. (requiring reasonable notice in
advance of trial of the general nature of such evidence). The Court
therefore denies Moving Defendants' motion as it has no reason to doubt
the sincerity of the Government's assurances.
Finally, Moving Defendants' motion for disclosure under Brady is now
moot. Since these motions were filed, the Court ordered the Government to
produce two Federal Bureau of Investigation ("FBI") Reports under Brady.
See Order of Nov. 17, 2003. This Order addresses most of Moving
Defendants' concerns expressed in their motion. Therefore, the Court
declines to inquire if the Government possesses any arguably favorable
evidence, as requested by Moving Defendants. The Court does, however,
remind the Government of its continuing Brady obligations.
III. Motion to Strike Term "Organized Crime"
The indictment alleges that the Moving Defendants were part of a
criminal organization known as the "Gambino Organized Crime Family."
Moving Defendants argue that the term "organized crime" should be
stricken from the indictment as mere surplusage because (1) there is no
evidence that Moving Defendants or their alleged co-conspirators referred
to themselves by this term, (2) the term was invented by law enforcement
officials, and (3) the term is inherently prejudicial. None of these
reasons are grounds for striking the term under Federal Rule of Criminal
"Motions to strike surplusage from an indictment will be granted only
where the challenged allegations are "`not relevant to the crime charged
and are inflammatory and prejudicial.'" United States v. Scarpa,
913 F.2d 993, 1013 (2d Cir. 1990) (quoting United States v. DePalma,
461 F. Supp. 778, 797 (S.D.N. Y. 1978)). Moving Defendants must meet an
"exacting standard" to be successful in their motion. Id. The Second
Circuit in Scarpa held that the term "Colombo Organized Crime Family" was
relevant when used in an indictment to identify the criminal enterprise
and the means by which its members committed criminal acts. Id. Moving
Defendants' attempt to distinguish Scarpa is unavailing. Here, the
indictment alleges that Moving Defendants were members of the "Gambino
Organized Crime Family," just as in Scarpa the indictment referred to the
defendants' participation in the "Colombo Organized Crime Family." Moving
Defendants offer no persuasive explanation for how the term "Organized
Crime" is irrelevant and prejudicial as used in reference to the Gambino
Family when the Second Circuit held that it was neither when referring to
the Colombo Family. Thus, Moving Defendants have failed to meet their
burden, and this motion is denied.
IV. Motion to Inspect Juror Lists
Moving Defendants request to inspect the lists from which the grand
jury was selected and from which the petit jury in this case will be
selected pursuant to 28 U.S.C. § 1867(f). That statute provides in
The contents of records or papers used by the jury
commission or clerk in connection with the jury
selection process shall not be disclosed, except . .
. as may be necessary in the preparation or
presentation of a motion (challenging compliance with
selection procedures) under . . . this section. . . .
The parties in a case shall be allowed to inspect,
reproduce, and copy such records or papers at all
reasonable times during the preparation and pendency
of such a motion. . . .
28 U.S.C. § 1867(f). The plain language of the statute suggests that
the Court may only permit juror lists to be disclosed when "necessary in
the preparation or presentation of a motion" to challenge compliance with
juror-selection procedures. Id.; see also Test v. United States,
420 U.S. 28
, 30 (1975). In Test, the Supreme Court held that litigants
have an unqualified right to access jury lists "to aid parties in the
`preparation' of motions challenging jury-selection procedures." 420 U.S.
at 30. Moving Defendants state that they need access to the records to
determine whether "because of race, gender, ethnic background, religion,
or other immutable characteristic, persons were systematically and
disproportionately excluded from the grand jury . . . or will be [so]
. . . excluded from their prospective petit jury." (Defs. Joint Mem. at
41-42.) However, no jury list yet exists for the petit jury in this
case. Therefore, the motion to inspect the jury lists from which the
petit jury will be selected is denied as premature.
Moving Defendants do not have an absolute right of access to all
materials relating to the grand jury selection; numerous courts have held
that only the Master List from which the grand jury was selected need be
turned over, not the names of specific jurors selected from the grand
See, e.g. United States v. Davenport, 824 F.2d 1511 1515 (7th Cir.
1987); United States v. Harvey, 756 F.2d 636, 642-43 (8th Cir.), cert.
denied 434 U.S. 831 (1985); United States v. McLernon, 746 F.2d 1098,
1123 (6th Cir. 1984); United States v. Nichols, 248 F. Supp.2d 1027, 1034
(D. Kan. 2003); United States v. Van Pelt, Nos. 92-40042-01-SAC through
92-40042-07-SAC, 1993 WL 23730, at *8 (D. Kan. Jan. 13, 1993); United
States v. Carlock, 606 F. Supp. 491, 493 (W.D. La. 1985). The Master List
is sufficient to comply with the Supreme Court's decision in Test because
"[i]t is not the actual selection of the grand jury which would
constitute the violation but whether the jury was selected `at random
from a fair cross section of the community.'" Nichols, 248 F. Supp.2d at
1034 (quoting 28 U.S.C. § 1861).
Additionally, the Government has an interest in maintaining the secrecy
and sanctity of the grand jury proceeding. See Davenport, 824 F.2d at
1515; United States v. Swan, No. Grim. 03-36-01 B, 2003 WL 21799915, at
*1 (D.N.H. July 22, 2003); United States v. Shapiro, 994 F. Supp. 146,
148 (E.D.N.Y. 1998). This is especially so in cases involving allegations
of violent crimes. See Shapiro, 994 F. Supp. at 148. The Second Circuit
has held that a district court may deny access to the names and personal
information of grand jurors without violating the defendant's right to
challenge the grand jury-selection process. United States v. Hansel,
70 F.3d 6, 8 (2d Cir. 1996).
Therefore, the Court orders that Moving Defendants shall have access to
the materials from which the grand jury that returned the fourth
superseding indictment in this case was selected. They are denied access
to the names and addresses of individuals on the Master List and on the
grand jury itself. See Harvey, 756 F.2d at 643 (holding district court
did not err by allowing access to "data relating to the constituency and
method of the grand jury selection," without the names and addresses of
the jurors on master list).
V. Vallario's Motion for Severance
Vallario moves to sever his prosecution from that of his codefendants
because they will be presenting substantially antagonistic defenses.
Federal Rule of Criminal Procedure 14 gives district courts the
discretion to sever a properly joined defendant if it appears that the
defendant or the government is prejudiced by joinder. Vallario carries a
heavy burden to succeed on this motion. See United States v. Rosa,
11 F.3d 315, 341 (2d Cir. 1993). As the Supreme Court has explained,
district courts should order severance "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 v. United States, 506 U.S. 534, 539 (1993).
Thus, the existence of mutually antagonistic defenses does not
automatically require severance. Id.
Vallario argues that he will seek to use at trial the contents of an
FBI report recording the statements of Dominic Borghese, a cooperating
witness and someone, according to the Government, with personal knowledge
of the Weiss murder. According to Vallario, Borghese does not mention
Vallario in his statements to the FBI, although he does name some of
Vallario's codefendants. Therefore, Vallario intends to use Borghese's
statements to demonstrate that his codefendants were involved in killing
Weiss, but that he was not.
The Court does not believe that Borghese's failure to name Vallario
creates mutually antagonistic defenses between Vallario and his
codefendants. Vallario can present this evidence to exculpate himself
without reference to his codefendants' role in the murder. Vallario need
not argue that his codefendants actually committed the murder to show
that Borghese's statements are exculpatory as to him.
Vallario states that, if the trials were severed, he "would inform the
jury at the very earliest
opportunity that a conspiracy to murder Fred Weiss in fact existed. . . .
The acknowledgment of this murder conspiracy as part of Mr. Vallario's
defense is of no consequence to the defendant." (Memorandum of Law in
Support of Louis Vallario's Pre-Trial Motions at 19.) (emphasis added).
Vallario's actual defense, judging from his arguments, is that the
Government does not possess the evidence to prove that Vallario was a
member of a conspiracy to kill Weiss. Thus, there are no mutually
antagonistic defenses: Vallario can certainly point out the deficiency of
evidence without pointing the finger of accusation at his codefendants.
Vallario admits as much when he says the existence of a conspiracy is of
no consequence to his defense. If admitting it is of no consequence, then
it logically follows that denial, or not opposing his codefendants'
denial, of its existence also has no effect on Vallario's defense.
Vallario's reliance on United States v. Serpoosh, 919 F.2d 835 (2d
Cir. 1990), is misplaced. The Serpoosh court held that severance was
warranted when the codefendants "each characterized the other defendant
as a liar who concocted his story to escape blame." Id. at 838. In that
case, the defenses were mutually antagonistic because one defendant
argued that the other framed him and that the codefendant was the one who
actually committed the crime. Id. The Government responded by arguing
that both defendants were not telling the truth, and that both were in
fact guilty. See id. Here, in contrast, Vallario's asserted defense will
be that he did not participate in any conspiracy to murder Weiss, whether
or not such a conspiracy actually existed. To argue his innocence he need
not make liars out of his codefendants, unlike the situation in
The other arguments Vallario proffers similarly fail. He maintains that
other Government cooperating witnesses told the FBI that other members of
the Gambino family conspired to murder Weiss, but that Vallario only knew
about the murder after it occurred. Vallario demonstrates no link,
however, between this argument and the contention that the trials must be
severed. Again, Vallario can argue to the jury that the failure of the
FBI witnesses to implicate him in the Weiss murder is exculpatory
evidence without needing to argue that those witnesses' naming his
codefendants is evidence of their guilt. Thus, the jury will not have to
disbelieve the testimony offered by the codefendants to believe the
testimony offered on Vallario's behalf. See United States v. Potamitis,
739 F.2d 784, 790 (2d Cir. 1984). Nor will the jury infer that all the
defendants are guilty due to the conflict that Vallario claims to exist.
See Serpoosh, 919 F.2d at 838 (quoting United States v. Herring,
602 F.2d 1220, 1225 (5th Cir. 1979)). Therefore, Vallario's motion to
sever is denied.
For the foregoing reasons, Moving Defendants' motions are DENIED,
except for the motion to inspect jury-selection materials which is
GRANTED IN PART AND DENIED IN PART.