The opinion of the court was delivered by: SHIRLEY KRAM, Senior District Judge
Pursuant to Rules 8(b) and 14 of the Federal Rules of Criminal
Procedure ("Rule 8(b)" and "Rule 14"), several of the defendants
move to sever certain counts and certain defendants. In addition,
three defendants move for dismissal of Count 10 of the
Indictment. Finally, several defendants make evidentiary and
discovery-related applications. For the reasons set forth below,
the motions are denied.
The charged offenses in the Indictment can be organized into
four groups. The counts in Group One Counts One through Eleven
all relate to an alleged broad scheme, involving all of the
defendants,*fn1 to extort money from a victim (the "Victim")
during the Summer of 2001. The counts in Group Two Counts Twelve and Thirteen consist of
charges against Angelo DiPietro for his alleged role in an
attempted robbery of a home in Eastchester, New York on July 18,
2001. The count in Group Three Count Fourteen consists of a
single charge against Angelo Capalbo for his alleged role in a
burglary in Florida on July 18, 2001. Finally, the counts in
Group Four Counts Fifteen through Seventeen consist of
charges against DiPietro and Harold Bringman for their alleged
participation in loansharking activities in 2002 and 2003.
Because significant factual background is required to address the
issues of joinder and severance, more detail on the allegations
contained in each group of counts follows.
Counts One through Eleven (Group One)
According to the Government, the extortion conspiracies alleged
in Group One involved a fraudulent Ponzi, or pyramid, investment
scheme that was managed by the Victim. Government's Memorandum Of
Law In Opposition To The Defendants' Pretrial Motions ("Gov't
Memo") at 4. At the time the pyramid began to collapse in the
Spring and early Summer of 2001, two of the defendants, Michael
Pizzutti and Harold Bringman, had already received payments that
exceeded their initial investments, but both men allegedly still
expected additional payments. Id. at 5. Two other defendant investors, Angelo Capalbo and Maurizio
Sanginiti, were at risk to possibly lose their entire
investments. Id. One additional defendant investor, Nicola
Murdocca, who had received initial payments on his investment
with the Victim, was also concerned about the prospect of not
receiving additional payments. Id. at 5.
According to the Government, each of the above defendants,
throughout the Summer of 2001, put significant pressure on the
Victim to make payments. Id. The Government alleges that this
pressure involved both threats of physical violence and actual
violence against the victim. Id. The Government also contends
that the evidence will show that Bringman, Capalbo and Murdocca
spoke regularly with Pizzuti about their efforts to obtain
payments from the Victim. Id. at 5-6.
It is alleged that throughout the Summer of 2001, Pizzuti
continued to obtain payments from the Victim. Id. at 6. In
addition, he allegedly arranged with Bringman to keep the Victim
under close surveillance in order to ensure that Pizzuti and
Bringman would be the first to learn of any new money obtained by
the Victim. Id.
The Government further alleges that Capalbo and Sanginiti
believed that the Victim was giving too much money to Pizzuti.
Id. Accordingly, Capablo and Sanginiti enlisted Angelo DiPietro, Joseph Genua and others to assist in
their effort to obtain more money from the Victim. Id.
Ultimately, the Government alleges that the Victim was kidnapped,
stripped and tortured by a group of individuals including
Capalbo, DiPietro, Sanginiti and Genua. Id.
In the following weeks, several confrontations allegedly
occurred between the Pizzuti/Bringman group and the
DiPietro/Capablo group regarding obtaining payments from the
Victim. Id. at 7. In the end, the Government contends that
these conflicts were amicably resolved and both groups agreed to
work together to obtain and divide any money they received from
the Victim. Id.
Counts Twelve and Thirteen (Group Two)
The Government alleges that while Defendants DiPietro, Capalbo
and Sanginiti were extorting the Victim, they were also planning
burglaries in Westchester County. Id. at 9. According to the
Government, DiPietro, Capalbo and Sanginiti enlisted CC-1 and
CC-2 (who they had also recruited in the alleged extortion of the
Victim) to assist them with the burglaries alleged in Counts
Twelve and Thirteen. Id.
It is alleged that on July 18, 2001, CC-1, CC-2 and two others,
at the behest of DiPietro, entered a home, carrying firearms, for
the purpose of burglarizing it. Id. As it turned out, the home was occupied, the burglary went bad,
and CC-2 and two others were arrested in the vicinity of the
home. Id. at 10. CC-1 escaped, fled to Capalbo's restaurant,
Angelina's, and arrangements were allegedly made for CC-1 to go
to Florida. Id. The Government contends that there were two
purposes of CC-1's trip to Florida: 1) to get out of Westchester
County; and 2) to burglarize a home in Florida. Id.
Count Fourteen (Group Three)
Defendant Capalbo allegedly believed that Al Mosiello, a
now-deceased Yonkers attorney and former investor with the
Victim, was hiding money that he received from the Victim in a
safe in his home in Florida. Id. Accordingly, Capalbo allegedly
arranged for CC-1 and ...