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United States District Court, S.D. New York

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 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 Page 10 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 innocence.

  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 Page 11


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 enterprise.

  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 Page 12 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 separate trial.

  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 Page 13 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 Venue

  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 York.

  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). Page 14

  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 therefore denied.

  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 Page 15

  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 prove that Page 16 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 Page 17 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 accordingly denied.

  D. Matera's Motion to Dismiss for Failure to Allege an Overt Act

  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. Page 18

  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)). Page 19

  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 community.

  Fappiano's motion to dismiss for prejudicial pre-indictment delay is denied; no evidentiary hearing is required. Page 20

  G. Defendants' Demands for Discovery and Bills of Particulars

  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 the indictment.*fn3

  1. Matera's Motion for Hearing Regarding Photographic Identification Procedures

  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 Page 21 at least two weeks prior to trial. Matera has leave to renew his application for a Wade hearing after that information has been produced.

  2. Matera's Motion Regarding Codefendants' Statements that Implicate Him

  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 and Sources

  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; Page 22 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 factors." Id.

  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 Page 23 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 Garofalo.

  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 Page 24 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 Page 25 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. Page 26

  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.

  III. Conclusion

  For the foregoing reasons, Defendants' motions are DENIED IN PART AND GRANTED IN PART.


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