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. ...