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March 25, 2004.


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

Defendants Peter Gotti, Louis Vallario, Frank Fappiano, Edward Garafola, Thomas Carbonaro, and John Matera, are charged in an eight-count indictment alleging various violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. Presently before the Court are Defendants' second set of pretrial motions.*fn1 Gotti and Matera move to sever themselves from their codefendants. In addition, Defendants move to dismiss certain counts of the indictment: Matera moves to dismiss various counts, or in the alternative, moves for a factual showing by the Government, based on improper venue, failure to allege an overt act with regard to a conspiracy charge, and on the ground that a statute under which he is charge is unconstitutional; Carbonaro moves to dismiss a charge based on double jeopardy; and Fappiano moves to dismiss a charge due to government misconduct. Page 2

Fappiano moves for disclosure of the identities of government informants. Gotti, Matera, Carbonaro, and Fappiano all move for disclosure of various evidentiary material. The motions are GRANTED IN PART AND DENIED IN PART.

 I. The Indictment

  At the time of these motions, the case was proceeding on the fourth superseding indictment. Since the date of filing, a grand jury returned a fifth superseding indictment. The Court has indicated that Defendants may make motions based on the new charges added in the most recent indictment; this decision only addresses the arguments made regarding the fourth superseding indictment, but references to paragraph numbers are to the fifth superseding indictment. As the Court has already described the charges with some detail, see generally Gotti, 2004 WL 32858, the indictment is only briefly summarized here.

  The grand jury indicted Defendants on eight counts relating to their alleged participation in the "Gambino Organized Crime Family of La Cosa Nostra," an enterprise as defined in 18 U.S.C. § 1961(4). (See Indict. ¶¶ 1-2.) Count One charges Gotti, Vallario, Fappiano, Garafola, and Carbonaro with various criminal acts constituting a pattern of racketeering, although not all of those defendants are named in each racketeering act. Count Two charges those same defendants with conspiracy to commit racketeering. Counts Three and Four charge Carbonaro and Matera with conspiracy to murder, aiding and abetting murder, and murder of Frank Hydell. Count Five charges Gotti and Garafola with conspiracy to murder Salvatore Gravano. Count Six charges Carbonaro and Matera with witness tampering, stemming from the Hydell murder. Count Seven alleges that Carbonaro and Matera used, carried, and caused another to use and carry a firearm during the Hydell murder. Finally, Count Eight charges Gotti, Fappiano, Garafola, and Carbonaro with conspiracy to Page 3 commit extortion related to the construction industry.

 II. Discussion

  A. Motions to Sever

  Defendant Matera maintains that he was improperly joined with his codefendants. In addition, Defendants Gotti and Matera argue that they should be severed from their codefendants because a joint trial would cause them undue prejudice.*fn2

  1. Propriety of Matera's Joinder

  Matera argues that he is improperly joined with his codefendants because he is not charged with any racketeering acts in Counts One and Two. Matera is alleged to be an "Associate in the Gambino Organized Crime Family," and he allegedly participated in the Hydell murder "for the purpose of gaining entrance to and maintaining and increasing" his position in the Gambino Family. (Indict. ¶¶ 8(f), 33, 35.) According to Matera, these allegations are too tenuous to connect him to his codefendants because Matera was previously charged as an associate of the Colombo Organized Crime Family for his actions during the period of 1995 through 1999, a period which includes the date of Hydell's murder. Thus, Matera argues that the Government's theory connecting him to the Gambino Family is contrived. Matera therefore requests that the Court demand a factual proffer from the Government to determine if there is any evidence to show that Matera committed the Hydell murder to gain entrance into or increase his position in the Gambino Family.

  The Government responds that Matera is properly joined because of the indictment's Page 4 allegation that he committed the offenses to gain entrance to, or further his membership in, the Gambino Family, and because he is alleged to have committed the crimes in conjunction with Carbonaro, who is charged in the RICO counts. The Government also contends that Matera participated in the same series of acts or transactions as his codefendants because the alleged motive for Hydell's murder was to prevent Hydell from testifying regarding the murder of Frank Parasole, for which Matera's codefendant, Frank Fappiano, is charged.

  Federal Rule of Criminal Procedure 8(b) applies when there are joint defendants and joint offenses. See United States v. Turoff, 853 F.2d 1037, 1043 (2d Cir. 1988). Rule 8(b) permits joinder of charges and defendants when the defendants allegedly have "participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Fed.R.Crim.P. 8(b). In this Circuit, joinder under Rule 8(b) is proper when "the alleged acts are `unified by some substantial identity of facts or participants, or arise out of a common plan or scheme.'" United States v. Fewer, 333 F.3d 110, 114 (2d Cir. 2003) (quoting United States v. Attanasio, 870 F.2d 809, 815 (2d Cir. 1989)).

  The Court must accept as true allegations in an indictment made in good faith. See United States v. Biaggi, 672 F. Supp. 112, 116 n.8 (S.D.N.Y. 1987); United States v. Jones, 652 F. Supp. 1561, 1564 (S.D.N.Y. 1986). Matera argues that the allegations were made in bad faith because the Government has now prosecuted him as both a member of the Colombo Family and as a member of the Gambino Family. "Bad faith" means an allegation made without a reasonable expectation that sufficient proof would be forthcoming at trial. See United States v. Ong, 541 F.2d 331, 337 (2d Cir. 1976); United States v. Aiken, 373 F.2d 294, 299 (2d Cir. 1967); United States v. Castellano, 610 F. Supp. 1359, 1397 (S.D.N.Y. 1985). Page 5

  Matera points to a finding of Judge Weinstein in the Eastern District of New York, following an extensive hearing, that there was credible evidence that Matera was an associate of the Colombo Family during the time period for which the indictment in this case charges him with being associated with the Gambino Family. (See Def. John Matera's Mem. in Support of Pretrial Motions ["Matera's Mem."] at 10.) In support of his argument that the Government should have to make a factual showing to the Court regarding Matera's connections to the Gambino Family, Matera primarily relies on Judge Haight's decision in United States v. Camacho, 939 F. Supp. 203 (S.D.N.Y. 1996).

  In Camacho, three defendants moved to sever counts from the rest of the indictment. Id. at 204. The defendants were charged with, among other things, murder in aid of racketeering under 18 U.S.C. § 1959(a), the same statute under which Matera is charged. See id That statute states:
Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished. . . .
18 U.S.C. § 1959(a). In the twelfth superseding indictment, the government alleged that the defendants committed a murder, which was not charged in the previous indictments, "for the purpose of gaining entrance to and maintaining and increasing their positions in the Nasty Boys, and for the purpose of gaining entrance to and maintaining and increasing their positions in C & C [Organization]." United States v. Camacho, No. S12 94 Cr. 313 (CSH), 1996 WL 137318, at *2 (S.D.N.Y. Mar. 26, 1996) (emphasis omitted). The defendants allegedly committed the murder in exchange for consideration from the Nasty Boys. Id. All of the other charges in the indictment Page 6 related solely to the C & C Organization. Id. at * 1. One of the defendants, however, was not alleged to be a member of the C & C Organization, and had been added to the case in the twelfth superseding indictment. Id

  Judge Haight was concerned that the new murder charge related solely to the Nasty Boys and not to the C & C Organization, the racketeering enterprise charged in the indictment. See id. Judge Haight therefore ordered the Government to produce for in camera review pertinent grand jury testimony to determine if any evidence supported the contention that the defendants committed the murder to gain entrance into or increase their positions in the C & C Organization. 939 F. Supp. at 205. After examining the grand jury minutes, Judge Haight concluded that the defendants participated in the murder as associates of the Nasty Boys to curry favor with the leader of that enterprise. Id. at 207-08. Because the grand jury testimony indicated no evidence that the murder had any connection to the C & C Organization, Judge Haight concluded that joinder of the murder charge was improper. See id at 209.

  There are important differences between this case and Camacho. In Camacho, the Government added the murder charge and alleged that the defendants were members and associates of the Nasty Boys, not the C & C Organization, the sole enterprise included in the remainder of the twelfth superseding indictment and throughout the prior eleven superseding indictments. See 1996 WL137318, at * 1. No facts in the indictment connected the murder to the C & C Organization. See id at *2. As explained below, however, that is not the situation presented here. There are multiple connections between the Hydell murder and the Gambino conspiracy.

  First, Matera is charged on the Hydell murder counts together with Carbonaro, who is charged in the RICO counts. Second, the Hydell murder allegedly occurred to prevent testimony Page 7 about the murder of Parasole, with which Matera's codefendant Fappiano is charged. Even if the Court assumes for the moment that the murder in aid of racketeering charge cannot, on its own, sustain joinder under Rule 8(b) because Matera has accused the Government of bad faith, Matera is still charged with witness tampering relating to the murder of Parasole. The Court does not agree with Matera that he could not be joined under Rule 8(b) solely on the basis of the witness tampering charge. The Parasole murder and witness tampering are part of the same series of transactions. See United States v. Volpe, 42 F. Supp.2d 204, 213 (E.D.N.Y. 1999) (holding assault and witness tampering meant to cover up the assault are part of same series of transactions).

  In addition, the Second Circuit has held on more than one occasion that joinder is proper under Rule 8(b) when a defendant in a RICO indictment is charged only with the predicate acts as independent offenses and not with violating the RICO statute. See United States v. Cervone, 907 F.2d 332, 341 (2d Cir. 1990); United States v. Garcia, 848 F.2d 1324, 1333 (2d Cir. 1987); United States v. Weisman, 624 F.2d 1118, 1129 (2d Cir. 1980). Those cases apply here.

  The defendants in Cervone were charged in a 102-count indictment, which included RICO charges. 907 F.2d at 336. The pattern of racketeering activity included acts of labor bribery. Id. A defendant named Perna was charged on one count of bribery and one count of making false statements to law enforcement officials, but not in the RICO counts. See id at 337. The Second Circuit held that because a codefendant was charged with accepting Perna's bribe in a different count of the indictment as a RICO predicate, Perna was properly joined; the codefendant and Perna were common defendants in the common scheme of bribery. Id. at 341. Here, Matera is charged in the Hydell murder counts but not for RICO violations. He is charged with conspiring with his codefendant Carbonaro in the murder of Hydell, and the Hydell murder is charged as a predicate act Page 8 in the RICO counts. Thus, just as in Cervone, Matera and Carbonaro are common defendants allegedly involved in a common scheme to murder.

  In fact, there is even more of a connection between Matera and other charges in the indictment than what was present in Cervone. In Cervone the Second Circuit described Perna's connection to his codefendants as "somewhat tenuous" because he was not charged in any count of the indictment with any other defendant who was charged in the RICO count. Id, In contrast, Matera is charged with Carbonaro in the counts relative to the Hydell murder, and Carbonaro is charged throughout the indictment on various RICO predicate acts, including the Hydell murder. Matera is also named, but not charged, in the RICO counts. The Government explained that this is because a pattern of racketeering requires at least two predicate acts, and the indictment only charges Matera with one. See 18 U.S.C. § 1961(5). Under the principle established in Cervone, Matera's joinder is proper.

  Applying the Second Circuit's decision in Weisman yields the same result. In Weisman, one of the defendants was charged with various counts of bankruptcy fraud, which were also charged as RICO predicate acts against some of his codefendants. See 624 F.2d at 1129. The court held that joinder under Rule 8(b) was appropriate because the bankruptcy fraud charges were part of the same pattern of racketeering activity; it did not matter that the defendant at issue was not named in the RICO counts. See id Rule 8(b) specifically permits joinder when "individual defendants are charged with some but not all counts of the indictment." Id. The fact that the Hydell murder is alleged to be part of the same racketeering pattern as Matera's codefendants' acts charged in Counts One and Two makes joinder of .the RICO counts and the charges against Matera permissible.

  Finally, the Government has provided an adequate response as to why Matera was previously Page 9 charged as a Colombo associate and is now charged as a Gambino associate. The Government represented that it will call expert witnesses to establish that an individual can be an associate of multiple organized crime families at the same time. In Camacho, on the other hand, the face of the indictment suggested that joinder of the murder charge was solely done for "strategic or tactical reasons of the government's own devising." 1996 WL 137318, at *2.

  The connections between the Hydell and Parasole murders, between Matera and Carbonaro, and the Government's proffered explanations serve to distinguish this case from Camacho. Matera's motion to sever, or in the alternative, require a showing of proof, is therefore denied.

  2. Prejudicial Joinder of Gotti and Matera

  Defendants Gotti and Matera request that their trials be severed from those of their codefendants due to the purported spillover effect of evidence that may taint the jury's perception of their guilt or innocence. They so move pursuant to Federal Rule of Criminal Procedure 14(a). That rule states: "If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Fed.R.Crim.P. 14(a). Severance is left to the discretion of the ...

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