United States District Court, S.D. New York
March 25, 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 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
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
commit extortion related to the construction industry.
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
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).
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
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
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
in the RICO counts. Thus, just as in Cervone, Matera and
Carbonaro are common defendants allegedly involved in a common scheme to
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
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 trial court. United States v. Blout,
291 F.3d 201, 209 (2d Cir. 2002); United States v. Sanchez, S1
01 Cr. 277 (RCC), 2003 WL 1900851, at *3 (S.D.N.Y. Apr. 17, 2003).
"A defendant raising a claim of prejudicial spillover bears an
extremely heavy burden." United States v. Friedman, 854 F.2d 535.563 (2d
Cir. 1988). The Court should only order severance under Rule 14(a) "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). Here, Gotti and Matera argue that they would be impermissibly
prejudiced by a joint trial.
Gotti raises three arguments in support of his motion to sever. First,
he asserts that his codefendants are charged with violent, criminal
activity, which would allow the Government to introduce evidence that is
both highly prejudicial to, and that would otherwise be inadmissible
against, Gotti. Second, Gotti contends that the jury's repeated exposure
to the name John Gotti in connection with his codefendants' alleged
crimes would unduly prejudice him. Defendant Gotti here is John Gotti's
brother. He cites, as an illustration, the allegation that John Gotti
ordered the murder of Frederick Weiss, a crime in which Defendant Gotti
is not implicated. Third, Gotti argues that the jury may wrongly imply
from evidence regarding his membership in the Gambino Family's ruling
panel, that he oversaw, and thus was accountable for, his codefendants'
alleged crimes. In sum, Gotti submits that a joint trial here would
prevent the jury from making a reliable judgment about his guilt or
Gotti's arguments are all unavailing. There is a strong presumption
against severance when, as here, the defendants are indicted as part of a
common scheme or plan. See United States v. Biaggi,
672 F. Supp. 112, 122 (S.D.N.Y. 1987) (citing United States v. Girard.
601 F.2d 69, 72 (2d Cir. 1979)). Gotti and his codefendants are charged with
participation in a RICO conspiracy. Thus, the evidence of which Gotti
complains would be admissible against him in a separate trial as acts of
coconspirators. See United States v. DiNome, 954 F.2d 839, 843
(2d Cir. 1992); United States v. Friedman, 854 F.2d 535, 563 (2d
Cir. 1988); United States v. Bari, 750 F.2d 1169, 1178 (2d Cir.
1984). As the court in DiNome explained:
[T]he government must prove an enterprise and a pattern of racketeering
activity as elements
of a RICO violation. 18 U.S.C. § 1962(c).
Proof of these elements may well entail evidence
of numerous criminal acts by a variety of persons,
and each defendant in a RICO case may reasonably
claim no direct participation in some of those
acts. Nevertheless, evidence of those acts is
relevant to the RICO charges against each
defendant, and the claim that separate trials
would eliminate the so-called spillover prejudice
is at least overstated if not entirely meritless.
954 F.2d at 843.
Even though Gotti is not charged with specific acts such as murder,
witness tampering, and other violent crimes, he is alleged to be part of
the Gambino Family, an enterprise that allegedly engaged in a pattern of
racketeering activity including the violent acts of his codefendants.
Thus, a separate trial would not shield Gotti from evidence of his
codefendants7 acts that are relevant to prove both an enterprise and a
pattern of racketeering under RICO. Such evidence includes the violent
acts charged in the indictment, the participation and role of John Gotti
in the Gambino Family, and Defendant Gotti's own position in the
At oral argument, Gotti's counsel maintained that Federal Rule of
Evidence 403 would limit the enterprise evidence that would be admissible
against Gotti at a separate trial. Rule 403 requires district courts to
weigh the danger of unfair prejudice to a defendant against the
evidence's probative value. See Fed.R.Evid. 403. It maybe
that some evidence admissible against Gotti's codefendants in a joint
trial would not be admitted against Gotti at a separate trial; however,
"[t]he fact that evidence may be admissible against one defendant but not
against others does not require separate trials." United States v.
Rucker, 586 F.2d 899, 902 (2d Cir. 1978); see also United
States v. Arbelaez, No. 00 Cr. 1260 (RWS), 2001 WL 727017, at *2
(S.D.N.Y. June 28, 2001). Proper limiting instructions by the Court, not
a separate trial, are the remedy for varying degrees of evidence against
codefendants. See United States v. Potamitis, 739 F.2d 784, 790
(2d Cir. 1984); United
States v. Kaplan, 510 F.2d 606, 611 (2d Or.
1974). The Court therefore denies Gotti's motion to sever.
Matera's motion to sever under Rule 14(a) fails for similar reasons.
Matera contends that the Government's case will be lengthy and
sensational, but very little of it will relate to him. He maintains that
a minority of the evidence regarding the ongoing criminal activity and
hierarchy of the Gambino Family would be admissible against him in a
Matera, like Gotti, is not entitled to a separate trial just because
there will be evidence regarding his codefendants' criminal activities in
which he took no part. Weisman, 624 F.2d at 1129-30: United
States v. Guerrerio.670 F. Supp. 1215, 1222 (S.D.N.Y. 1987). The issue is
whether a jury will be able to compartmentalize the evidence and
attribute it only to those defendants to which it applies. See
United States v. Corr, 543 F.2d 1042, 1052-53 (2d Cir. 1976);
United States v. Abrams, 539 F. Supp. 378.381 (S.D.N.Y. 1982).
The jury in this case will not be overly burdened with complexity of
issues or a plethora of defendants. There are only six defendants and a
series of criminal acts, which includes the charges relating to the
Hydell murder. The Court is confident that the jury will be able to
distinguish evidence of acts allegedly committed by Matera from evidence
against his codefendants.
It is also far from clear that the Government would not be able to
introduce evidence concerning the Gambino Family and its hierarchy and
protocol against Matera at a separate trial. The indictment charges
Matera with conspiring to commit murder in exchange for compensation from
a racketeering enterprise and for the purpose of gaining entrance to,
maintaining, and increasing his position in a racketeering enterprise in
violation of 18 U.S.C. § 1959(a). (Indict. ¶¶ 33, 35.) To
prove charges of violent crimes in aid of racketeering, the Government
may introduce "proof of
crimes committed by other individuals in a RICO conspiracy . . . to show
the nature and existence of the enterprise." United States v.
Brady, 26 F.3d 282, 287 (2d Cir. 1994). Evidence relating to the
extent and existence of the Gambino Family, including the activities that
make it an enterprise as defined in the RICO statute, would be admissible
against Matera at a separate trial.
Finally, the Court can provide a limiting instruction to the jury to
counter any possible spillover effects. Therefore, Matera's motion to
sever based on prejudicial spillover effect is also denied.
B. Matera's Motion for a Factual Proffer Based on Improper
Matera moves for a factual proffer by the Government to establish that
venue is proper in this district. He argues that the events leading to
the charges of murder and conspiracy to murder in aid of racketeering,
use of a firearm in connection with the Hydell murder, and witness
tampering all occurred outside this district. According to Matera, Hydell
was murdered in Staten Island, allegedly to prevent him from testifying
about the murder of Frank Parasole, who was killed in Brooklyn. Both
Staten Island and Brooklyn are located in the Eastern District of New
Criminal defendants have both a constitutional and statutory right to
be tried in the district where the crimes occurred. See U.S.
Const, amend. VI; Fed.R.Crim.P. 18. When the alleged conduct is
continuing rather than a discrete incident, venue is proper in any
district where the offense was "begun, continued or completed."
18 U.S.C. § 3237(a); United States v. Saavedra, 223 F.3d 85, 91 (2d
Cir. 2000) (holding that 18 U.S.C. § 1959 is a continuing offense for
purposes of § 3237(a)). Prior to trial, the Government need only
allege with specificity the acts that support venue in this district.
United States v. Martino, No. 00 Cr. 389 (RCC), 2000 WL
1843233, at *1 (S.D.N.Y. Dec. 14, 2000); United States v. Long,
697 F. Supp. 651, 655 (S.D.N.Y. 1988).
The indictment states, "From in or about January 1998, up to and
including on or about April 28, 1998, in the Southern District of New
York, the Eastern District of New York, and elsewhere," Matera conspired
with Carbonaro and others to murder Hydell. (Indict. ¶ 33.) The
indictment further alleges that Matera committed "an act involving murder
and aided and abetted murder" in the Southern District, the Eastern
District, and elsewhere. (Id. ¶ 35.) The same allegation of venue is
repeated for the witness tampering and firearm charges. (See
id. ¶¶ 38, 39.)
These allegations are sufficient, at the pretrial stage, to support
venue in this district. Similarly general statements of venue have
repeatedly been held sufficient by judges in this Circuit. See,
e.g., United States v. Bellomo, 263 F. Supp.2d 561, 579 (E.D.N.Y.
2003) ("[T]the indictment, alleging on its face that the offenses
occurred `within the Eastern District of New York and elsewhere,'
suffices to sustain it against this pretrial attack on venue.");
United States v. Szur, No. 97 Cr. 108, 1998 WL132942, at
*9(S.D.N.Y. Mar. 20, 1998) ("[O]n its face, the indictment alleges that
the offense occurred `in the Southern District of New York,' which is
sufficient to resist a motion to dismiss."). The Government will need to
prove venue at trial, but its allegations that some part of the charged
crimes occurred in the Southern District of New York must be taken as
true at this stage of the proceedings. See United States v.
Heredia, 02 Cr. 1246 (SWK), 2003 WL 2154008, at *5 (S.D.N.Y. July 3,
2003); Bellomo, 263 F. Supp.2d at 579; Szur, 1998 WL
132942, at *9.
The Court concludes that the indictment sufficiently alleges venue and
will not require a factual showing at this stage. Matera's motion is
C. Constitutionality of 18 U.S.C. § 1512
Matera moves to dismiss Count Six of the indictment on the ground that
Congress exceeded its authority under the Necessary and Proper Clause,
U.S. Const, art. I, § 8, cl. 18, when it enacted
the federal witness tampering statute, 18 U.S.C. § 1512. The
indictment charges Matera with murdering and aiding abetting the murder
of Hydell "with the intent to prevent Hydell from testifying at an
official proceeding or communicating to a law enforcement officer
information relating to the commission and possible commission of Federal
offenses," in violation of § 1512(a)(1), (a)(3)(A), and 2. Matera
maintains that the statute is unconstitutional on its face.
Section 1512(a)(1) provides in pertinent part:
Whoever kills or attempts to kill another person,
with intent to
(A) prevent the attendance or testimony of any
person in an official proceeding or
(C) prevent the communication by any person to a
law enforcement officer or judge of the United
States of information relating to the commission
or possible commission of a Federal offense . . .
shall [be guilty of a crime].
18 U.S.C. § 1512(a)(1). Subsection (g) provides, "[N]o state of
mind need be proved with respect to the circumstance-(1) that the
official proceeding . . . is before a judge or court of the United
States . . . or (2) that the judge . . . or law enforcement officer is an
officer or employee of the Federal Government. . . ." Id. §
1512(g). In addition, subsection (f)(1) states that "an official
proceeding need not be pending or about to be instituted at the time of
the offense." Id. § 1512(f)(1).
Matera argues that these provisions go beyond Congress's authority to
enact "laws necessary and proper for carrying into Execution" powers
vested by the Constitution in the federal government. U.S. Const, art. I,
§ 8, cl. 18. The crux of his argument is that the language of the
statute, coupled with the Second Circuit's broad interpretation of it,
render the federal nexus illusory. In United States v. Romero,
54 F.3d 56 (2d Cir. 1995), the court held that the Government need only
the defendant intended to prevent communications but not that the
victim had actually agreed to cooperate with any federal authorities. Id.
at 62. According to Matera, this language and precedent leaves the
statute "devoid of anything but a hypothetical federal connection."
(Matera's Mem. at 24.) The Court disagrees.
First, the Third Circuit rejected a facial challenge to § 1512 on
the same grounds asserted by Matera. See United States v.
Tyler, 281 F.3d 84, 92-93 (3d Cir. 2002). The defendant in
Tyler argued that the statute permits convictions even when no
federal interest is implicated. Id. at 92. The court held that
the statute focuses on "private conduct substantially affecting federal
law enforcement." Id. at 93. The Third Circuit was satisfied
that a sufficient federal nexus exists.
Second, the terms "official proceeding" and "law enforcement officer"
are both defined to establish a federal nexus. "Official proceeding"
means a proceeding before a federal judge or magistrate, federal grand
jury, the Congress, a federal agency, or a proceeding before an insurance
regulatory entity involving an insurance business that affects interstate
commerce. See 18 U.S.C. § 1515(a)(1). "Law enforcement
officer" refers only to an officer or employee of the federal government
or one authorized to act on behalf of a federal officer or employee.
See id § 1515(a)(4). The statutory language, then, only
proscribes conduct that affects federal interests.
Third, Congress has the authority to enact criminal statutes "to
protect the integrity of federal functions and the safety of federal
officers." United States v. Feola, 420 U.S. 671, 676 n.9 (1975).
This statute is intended to protect the integrity of federal proceedings
and facilitate the administration of justice in federal courts by
deterring interference with witnesses. It is within the purview of the
Necessary and Proper Clause. See Tyler, 281 F.3d at 92.
Finally, Matera's reliance on Jones v. United States,
529 U.S. 848 (2000), is misplaced. In
Jones, the Supreme Court held that the federal arson statute,
18 U.S.C. § 844(i), would be unconstitutional if it were construed to
cover arson of an owner-occupied private home. 539 U.S. at 858. Such an
expansive interpretation would render traditionally local criminal
conduct a federal offense. See id While federalizing all acts
of arson might exceed Congress's limited powers, criminalizing violence,
intimidation, and corrupt persuasion of witnesses only in
federal proceedings does not.
Matera's constitutional challenge to § 1512 is without merit. It is
D. Matera's Motion to Dismiss for Failure to Allege an Overt
Matera also seeks dismissal of the conspiracy charge against him on the
ground that the indictment fails to allege an overt act. In its previous
Memorandum Opinion & Order, the Court denied similar motions made by
Vallario, Fappiano, and Garafola. See 2004 WL 32858, at *4. The
Court denies Matera's motion for the same reasons explained in that
opinion. The Second Circuit has held that "only a `generic definition' of
an underlying state crime is required in a RICO indictment." United
States v. Orena, 32 F.3d 704, 714 (2d Cir. 1994). No allegation of
an overt act is required in a RICO indictment charging conspiracy.
See Gotti, 2000 WL 32858, at *4.
E. Carbonaro's Motion to Dismiss on Double Jeopardy Grounds
Defendant Carbonaro moves to strike Racketeering Act Five of the
indictment, which charges him with participating in a conspiracy to
murder Salvatore Gravano. (See Indict. ¶ 17.) Carbonaro was
previously convicted in the Eastern District of New York for conspiring
to kill Gravano in aid of racketeering. He contends that his prosecution
in this case violates the prohibition on double jeopardy because he is
again charged with the predicate act of conspiring to murder Gravano in
furtherance of the alleged Gambino criminal enterprise.
Because "Congress sought to permit cumulative sentences for a RICO
conviction and the predicate offenses upon which the RICO violation is
premised," a defendant may be prosecuted "both under RICO for engaging in
a pattern of racketeering activity and also under § 1959 for violent
crimes intended to maintain or increase the defendant's position in the
RICO enterprise." United States v. Polanco, 145 F.3d 536, 542
(2d Cir. 1998). Carbonaro was convicted under § 1959; he is now being
prosecuted under RICO for engaging in a pattern of racketeering activity,
of which the conspiracy to murder Gravano was allegedly a part. Thus,
Carbonaro has not been "twice put in jeopardy of life or limb" for the
same offense. U.S. Const, art. V; see Polanco, 145 F.3d at 542;
United States v. Persico, 832 F.2d 705, 711-12 (2d Cir. 1987);
Bellomo, 954 F. Supp. 630, 647 (S.D.N.Y. 1997). Carbonaro's
motion is therefore denied.
F. Fappiano's Motion to Dismiss the Weiss Murder Charge
In its previous Memorandum Opinion & Order, the Court denied
motions brought by Fappiano, Vallario, and Garafola to dismiss the
indictment due to prejudicial pre-indictment delay. See Gotti,
2004 WL 32858, at *4. Fappiano does not raise any new arguments here that
would cause the Court to reconsider its earlier decision. He again
maintains that the Government's delay in indicting him for the 1989
murder of Frederick Weiss violates his Fifth Amendment right to due
process. Fappiano claims that a Federal Bureau of Investigation report
about a interview with Salvatore Gravano, released to him after he filed
his first set of motions, proves that the Government knew in 1990 who
actually killed Weiss. As the Court stated in its previous opinion,
Fappiano fails to meet his heavy burden of demonstrating actual prejudice
to his right to a fair trial and unjustifiable government conduct. See id
at *3-4 (citing United States v. Elsbery, 602 F.2d 1054, 1059
(2d Cir. 1979)).
Fappiano also contends that the Weiss murder charges should be
dismissed because of the Government's delay in prosecuting other
individuals who have already been convicted for their participation
in the murder; he requests an evidentiary hearing regarding this issue.
The basis of the motion appears to be that these individuals were
permitted to commit other violent crimes because the Government did not
immediately indict them. (See Fappiano's Mem. at 9.)
Fappiano does not cite any legal authority for the doubtful proposition
that the Government's failure to immediately indict other individuals,
who then commit subsequent crimes, violates Fappiano's due process
rights. Federal courts have the power and duty to supervise the
administration of criminal justice. See United States v.
Toscanino, 500 F.2d 267, 272-73 (2d Cir. 1974). And they can
exercise their supervisory authority to prevent government actions that
are so outrageous as to violate fundamental notions of due process.
See United States v. Russell 411 U.S. 423, 431-32 (1973).
However, that scenario requires some causal link between the defendant's
prosecution and the Government's outrageous conduct. See
Toscanino, 500 F.2d at 275 ("Accordingly we view due process as now
requiring a court to divest itself of jurisdiction over the person of a
defendant where it has been acquired as the result of the government's
deliberate, unnecessary and unreasonable invasion of the accused's
constitutional rights.") Here, Fappiano would have the Court apply the
severe remedy of dismissal based on the Government's conduct which
purportedly caused harm not to Fappiano, but to the victims of the
subsequent crimes and perhaps the public at large. A federal indictment
does not empower a criminal defendant to assert the interests of the
Fappiano's motion to dismiss for prejudicial pre-indictment delay is
denied; no evidentiary hearing is required.
G. Defendants' Demands for Discovery and Bills of
Matera, Fappiano, Carbonaro, and Gotti raise various arguments
concerning their entitlement to disclosure of evidence, pretrial
evidentiary hearings, and bills of particulars detailing the charges in
1. Matera's Motion for Hearing Regarding Photographic
Matera argues that the Court should hold an evidentiary hearing,
pursuant to United States v. Wade, 388 U.S. 218 (1967), to
determine whether the procedures by which two eyewitnesses who identified
him from a photo array were unduly suggestive. "A defendant's right to
due process includes the right not to be the object of suggestive police
identification procedures that `create a very substantial likelihood of
irreparable misidentification"' United States v. Conception,
983 F.2d 369, 377 (2d Cir. 1994) (quoting Simmons v. United States,
390 U.S. 377, 384 (1968)).
Matera requests a Wade hearing immediately, or, in the
alternative, requests that the Court set a date by which the Government
will need to provide the circumstances of any pretrial identification
procedures used in this case. The Government responds that it is common
practice for courts to hold Wade hearings on the eve of, or
during, trial. The Court agrees that a Wade hearing is not
necessary now. At the same time, it would unduly prejudice Matera in
preparing his defense if the Government were not to reveal the
circumstances of any photographic identifications until the trial.
Therefore, the Court denies Matera's motion for a Wade hearing
now, but instructs the Government to provide information about the
circumstances of any photo identification of Matera
at least two weeks prior to trial. Matera has leave to renew his
application for a Wade hearing after that information has been
2. Matera's Motion Regarding Codefendants' Statements that
In his papers, Matera moved for pretrial hearing or offer of proof to
determine whether he is entitled to a severance pursuant to Bruton
v. United States, 391 U.S. 123 (1968). In Bruton, the
Supreme Court held that an out-of-court statement by a defendant that
implicated a codefendant is inadmissible in a joint trial when the
defendant who made the statement does not testify at the trial. Id. at
125. At oral argument, Matera's counsel requested that the Court set a
date by which the Government would need to make a pretrial motion to
determine the admissibility of any coconspirator statements. The Court
grants that request and directs the Government to submit a pretrial
motion three weeks before trial regarding the admissibility of any
coconspirators statements it intends to offer at trial.
3. Fappiano's Motion for Disclosure of Confidential Informants
Defendant Fappiano moves for disclosure of the names, current
addresses, and all reports relating to confidential informants and
sources. "A defendant is not automatically entitled as a matter of right
or under the Federal Rules of Criminal Procedure to a list of the names
and addresses of the Government's witnesses prior to trial." United
States v. Washington, 947 F. Supp. 87, 88 (S.D.N.Y. 1996). The
Supreme Court has stated, "Where the disclosure of an informant's
identity, or of the contents of his communication, is relevant and
helpful to the defense of an accused, or is essential to the fair
determination of a cause, the [informant's] privilege must give way."
Roviaro v. United States, 353 U.S. 53, 60-61 (1957). However,
the Court fashioned no bright-line rule;
instead, "[t]he problem is one that calls for balancing the public
interest in protecting the flow of information against the individual's
right to prepare his defense." Id. at 62. Whether the trial
court should order disclosure depends on the circumstances of the case,
"taking into consideration the crime charged, the possible defenses, the
possible significance of the informer's testimony, and other relevant
A defendant is "generally able to establish a right to disclosure
`where the informant is a key witness or participant in the crime
charged, someone whose testimony would be significant in determining
guilt or innocence.'" United States v. Saa, 859 F.2d 1067, 1073
(2d Cir. 1988) (quoting United States v. Russotti, 746 F.2d 945,
950 (2d Cir. 1984)). It is Fappiano's burden to establish the materiality
of the informant's testimony to his defense. See id
Fappiano argues that the identities of at least fifteen informants are
necessary here. First, Fappiano states that Confidential Informant ("CI")
1*fn4 told Federal Bureau of Investigation ("FBI") agents that John
Gotti had ordered the Weiss murder because Weiss was susceptible to
cooperating with the Government, and ordered the murder of Edward
Garofalo because Garofalo had become too strong and was allied with Paul
Castellano's faction of the family.*fn5 Fappiano maintains that CI-1
must have been extremely close to the Gambino leadership because he
knew who ordered the murders and why they were ordered so soon after
they occurred. According to Fappiano, CI-1 would be able to support
Fappiano's defense that he was a part of a conspiracy that failed in
its goal of murdering Weiss, while a separate conspiracy in which
Fappiano played no role was actually
responsible for Weiss's death,
Fappiano contends that CI-2 told the FBI about seven murder
conspiracies and details about succession in the Gambino Family. CI-3
purportedly possesses information related to Michael DiLeonardo's
entrance into the Gambino Family. Fappiano expects DiLeonardo's testimony
to be important to the Weiss and Parasole murder charges. Fappiano
further states that CI-4 will say that Salvatore Gravano murdered
CI-5 through CI-14 are sources that provided the FBI with information
on which an application for a wiretap was based. Fappiano only specifies
what information one of these sources might possess. That source
allegedly informed the FBI of meetings between John Gotti and an
individual named Joe Watts, who may have been a coconspirator in the
Weiss murder. This informant's identity is claimed to be material because
some Government witnesses have stated that John Gotti ordered Weiss
killed to protect Watts's illegal activities.
CI-15 supposedly advised the FBI that the DeCavalcante Family was
responsible for murdering Weiss. Fappiano contends that CI-15's identity
is material because Fappiano would call him to testify at trial that
there were two distinct conspiracies to kill Weiss and Fappiano was not
among the successful group. Finally, Fappiano states that he seeks the
identities of all other confidential informants who participated in the
enterprise and have direct knowledge of the crimes charged.
Fappiano has not shown that any of the informants' identities should be
revealed to him. First, the charges here weigh against disclosure. The
indictment charges Fappiano with, among other things, multiple murders,
attempted murder, and witness tampering. (Indict. ¶¶ 13-15,
18-20.) These allegations reflect a potential threat to the Government's
informants that must be considered under
the balancing test established in Roviaro. See 353 U.S.
at 62. "[W]here there is a concern about the confidential informants' and
witnesses' safety . . . it furthers the public interest in effective law
enforcement for any informant's or witness's identity to be concealed
unless the defense demonstrates that disclosure is essential."
Nunez, 2001 WL 91708, at *9.
Second, the large majority of Fappiano's contentions are based on
speculation. "Mere speculation . . . that the informant may possibly be of
some assistance does not overcome the strong public interest in
protecting informants." United States v. Martinez, 634 F. Supp. 1144,
1150 (S.D.N.Y. 1986). Fappiano generalizes about the informants'
knowledge, and speculates that such knowledge would prove helpful to his
defense. For example, he states that CI-1 and CM 5 maybe able to support
his dual-conspiracy theory, but he puts no flesh on that speculative
bone. The Court is not informed about what specific knowledge the
informants might possess that would establish Fappiano's innocence,
beyond the fact that they might know something about the conspiracy to
kill Weiss derived from their proximity to John Gotti. Such bare
speculation cannot be the basis of disclosure, especially in light of the
potential danger to the informants.
Third, the information that Fappiano claims the informants possess does
not rise to the level of materiality as defined in Saa. In that
case, the informant was a participant in many of the events that formed
the basis of the four defendants' convictions. See
Saa, 859 F.2d at 1073. However, the Second Circuit held that
only one of the defendants demonstrated that the informant's testimony
was material to her defense. See id. That defendant had argued
at trial that she was not present in an apartment when her codefendants
consummated a drug transaction with two undercover officers and the
informant. See id. at 1073-74. One undercover officer testified
that the defendant was not present; the other stated that she was.
Id. at 1074. The Second Circuit held that the testimony of the
informant was material to the defense that the defendant was not
present, especially in light of the undercover officers' contradictory
statements.*fn6 See id
In contrast, Fappiano simply posits that the enumerated informants have
intimate knowledge of the conspiracy to kill Weiss or of the Gambino
Family in general. These informants' potential knowledge about the
circumstances of the crimes do not approach the level of materiality
required by Saa. Fappiano has not established that anything
they would have to say "would be significant in determining guilt or
innocence." Id. at 1073.
The bare threads with which Fappiano attempts to tie the informants to
his articulated defense are insufficient to overcome the weighty concerns
about the informants' safety and the integrity of the trial process. The
motion for disclosure of confidential informants is therefore denied.
4. Motions for Bills of Particulars, Production of 3500
Material, Rule 404(b) Evidence, Expert Witnesses, Witness Lists, and
Audio/Video Tape Evidence
Defendants Gotti, Carbonaro, Fappiano, and Matera also move for bills
of particulars and various forms of discovery. Carbonaro was particularly
thorough on these matters-he submitted to the Court an eighteen-page list
of specific discovery requests.
First, the Court has already denied similar motions for bills of
particulars in its previous opinion with regard to the charges against
Fappiano and Carbonaro. See Gotti, 2004 WL 32858, at *8. No
arguments raised by Defendants here require a different result as to the
charges against them. The requests are denied for the reasons explained
in the Court's previous opinion. See id at *8-*9.
Second, the Court accepts that the Government's suggestion regarding
production of discovery will provide Defendants sufficient time to make
use of the disclosed material. Therefore: (1) the Government shall
produce all 3500 material and material under Giglio v. United
States, 405 U.S. 667 (1972), on a rolling basis beginning four weeks
before trial to be completed at least two weeks prior to trial; (2)
expert witnesses and the audio and video evidence that the Government
intends to introduce at trial shall be identified at least two weeks
before trial; and (3) pretrial motions regarding Rule 404(b) evidence
shall be filed with the Court three weeks prior to trial.
For the foregoing reasons, Defendants' motions are DENIED IN PART
AND GRANTED IN PART.