United States District Court, S.D. New York
April 6, 2005.
UNITED STATES OF AMERICA,
ANGELO DiPIETRO ET. AL., Defendant.
The opinion of the court was delivered by: SHIRLEY KRAM, Senior District Judge
OPINION & ORDER
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 another individual to fly to Florida and
break into Mosiello's house. Id.
Counts Fifteen through Seventeen (Group Four)
DiPietro and Bringman allegedly used threats of violence to
extort loansharking payments from a government cooperating
witness ("CW"). Id. at 11. The tactics DiPietro and Bringman
allegedly used were similar to those allegedly used to extort the
The following defendants move for severance of the trial of
various defendants or counts in the Indictment on the grounds
indicated. Angelo DiPietro
DiPietro moves for: 1) severance of DiPietro from Pizzuti and
Bringman on all of the counts in Group One; 2) severance of
Counts One through Eleven and Fourteen (Groups One and Three)
from Counts Twelve, Thirteen, and Fifteen through Seventeen
(Groups Two and Four); and 3) severance of DiPietro from Pizzuti,
Capalbo and Genua on Bruton grounds. See generally DiPietro
Capalbo moves for: 1) severance of Capalbo from all other
defendants; 2) severance of all counts that do not name Capalbo
from all counts that do name Capalbo; and 3) severance of Capalbo
from Pizzuti and Bringman. See Capalbo Sev. Memo at 7-13.
Michael Pizzuti and Harold Bringman
Pizzuti and Bringman move for: 1) severance of Counts One
through Eleven (Group One) from Counts Twelve through Seventeen
(Groups Two through Four); and 2) severance of Pizzuti and
Bringman from all other defendants. See Pizzuti Sev. Memo at
2-18.*fn2 Joseph Genua
Genua moves for severance of Counts One and Three from Counts
Two and Four through Seventeen. See generally Genua Sev.
I. Joinder is Proper Under Rule 8
"Joint trials play a vital role in the criminal justice
system." Richardson v. Marsh, 481 U.S. 200, 209 (1987). Among
other advantages, joint trials "conserve state funds, diminish
inconvenience to witnesses and public authorities, and avoid
delays in bringing those accused of crime to trial." Bruton v.
United States, 391 U.S. 123, 134 (1968). Additionally, joint
trials "serve the interests of justice by avoiding the scandal
and inequity of inconsistent verdicts." Richardson,
481 U.S. at 210.
Federal Rule of Criminal Procedure 8 provides for joinder of
offenses and joinder of defendants: Rule 8(a) governs the joinder
of offenses, while Rule 8(b) governs the joinder of parties.
See Fed.R.Crim.P. 8. When multiple parties are charged with
multiple offenses, joinder must be proper under the more
restrictive test of Rule 8(b). United States v. Turoff,
853 F.2d 1037, 1043 (2d Cir. 1988). That is, "multiple defendants may
be charged with and tried for multiple offenses only if the offenses are . . . part of a series of acts or transactions
constituting . . . offenses." Id. Offenses and defendants are
properly joined under Rule 8(b) where the criminal acts of two or
more persons are "`unified by some substantial identity of facts
or participants' or `arise out of a common plan or scheme.'"
United States v. Attansio, 870 F.2d 809, 815 (2d Cir. 1989).
The Indictment in this case is properly joined under Rule 8(b).
With respect to the counts contained in Group One, all of the
offenses were part of an ongoing scheme to extort money from the
Victim, all of the defendants allegedly participated in the
scheme, all of the charged offenses occurred in Westchester
County in the Summer of 2001, and all of the defendants allegedly
believed they were entitled to recoup money from the Victim as a
result of the same failed Ponzi scheme.*fn3 Accordingly, the
counts charged in Group One are properly joined.
The offenses charged in Group Two, i.e., the Eastchester Home
Invasion, share a substantial commonality of participants with
the offenses charged in Group One. First, both groups of offenses
allegedly involved DiPietro, Capalbo, Sanginiti, CC-1, CC-2, and DiPietro's son, Anthony
DiPietro. In addition, the offenses occurred in the same area of
Westchester County during the same time period, July 2001, as the
offenses charged in Group One. In both groups of offenses,
meetings related to the charges allegedly took place at Capalbo's
restaurant, Angelina's. As such, these offenses are unified by a
substantial identity of facts and participants and joinder is
The offense charged in Group Three is directly related to the
offenses in Group One and Group Two; more importantly, the count
in Group Three inextricably links the counts in Group One to the
counts in Group Two. As discussed earlier, it is alleged that the
motivation for the Florida burglary derived directly from the
offenses charged in Groups One and Two. Specifically, Capalbo
allegedly sent CC-1 to the Florida home of Al Mosiello for two
reasons: 1) to get CC-1 out of town because the Eastchester
attempted robbery went bad; and 2) to steal money from Mosiello
that Capalbo believed Mosiello had received from the Victim. The
first reason, getting CC-1 out of town, ties the count in Group
Three directly to the counts in Group Two.*fn4 The second reason, to steal from
Mosiello's proceeds of the Victim's Ponzi scheme, directly ties
the offense to the extortion charged in Group One. Accordingly,
because they are unified by a substantial identity of facts and
participants, the offenses charged in Groups One, Two and Three,
Counts One through Fourteen, are properly joined.
The extortion allegations in Group Four share substantial
commonality of participants with the offenses in Group One:
DiPietro and Bringman are charged in both groups, while Sanginiti
and Anthony DiPietro are also allegedly involved in both groups.
In addition, the extortion charged in Group Four, like the
extortion charged in Group One, occurred in Westchester County
and, at times, at Capalbo's restaurant, Angelina's.
In sum, all of the offenses charged in the Indictment are
unified by a substantial identity of facts and participants;
joinder, therefore, is proper.*fn5
II. Because The Defendants Have Not Shown Prejudice
Sufficiently Severe To Outweigh The Judicial Economy Of Joinder, Severance Pursuant to Rule 14(a) Is Not Warranted
Fed.R.Crim.P. 14(a) permits the district court to "order
separate trials of counts, [or] sever the defendants' trials" if
it appears that a defendant or the government is prejudiced by
the joinder of defendants or counts. Severance may be granted as
a matter of the district court's discretion under Rule 14 even if
joinder was proper under Rule 8; however, unless there has been a
misjoinder, a defendant must show that the prejudice from a joint
trial "is sufficiently severe to outweigh the judicial economy
that would be realized by avoiding multiple lengthy trials."
United States v. Walker, 142 F.3d 103, 110 (2d Cir. 1998).
A defendant seeking to sever his case from that of a
co-defendant must shoulder an "`extremely difficult burden.'"
United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir. 1989).
To obtain severance, the defendant must satisfy the heavy burden
of demonstrating that he is substantially prejudiced by joinder
and that he will be denied a fair trial. United States v.
Losada, 674 F.2d 167, 171 (2d Cir. 1982), cert. denied,
457 U.S. 1125, 102 S. Ct. 2945 (1982). Several of the defendants move for severance under Rule 14. The
Rule 14 motions are based on two separate grounds: 1) spillover
prejudice; and 2) mutually antagonistic defenses.
A. The Potential For Spillover Prejudice Does Not Provide A
Basis For Severance
Capalbo, Pizzuti, Bringman and Genua move for severance on the
ground that a single trial of all of the defendants and counts in
the Indictment will result in unfair spillover prejudice because
evidence will be introduced by the Government against other
defendants that is not related to charges brought against them.
See Genua Sev. Memo ¶¶ 13-22; Pizzuti Sev. Memo at 15-18;
Capablo Sev. Memo at 8-10. The Court disagrees.
"Joint trials involving defendants who are only marginally
involved alongside those heavily involved are constitutionally
permissible." United States v. Carson, 702 F.2d 351, 366-367
(2d Cir. 1983). Further, "differing levels of culpability and
proof are inevitable in any multi-defendant trial and, standing
alone, are insufficient grounds for separate trials." United
States v. Scarpa, 913 F.2d 993, 1015 (2d Cir. 1990). Here, the
defendants' conclusive assertions regarding potentially
prejudicial spillover simply fail to satisfy their heavy burden
of demonstrating substantial prejudice that will result in an unfair
trial. Further, to the extent that Capalbo, Pizzuti, Bringman and
Genua might be prejudiced by evidence admitted against other
defendants an outcome that, based on the allegations in the
Indictment, seems unlikely "less drastic measures, such as
limiting instructions, . . . will suffice to cure the risk of
prejudice." Zafiro v. United States, 506 U.S. 534, 539 (1993).
Accordingly, Capalbo's, Pizzuti's, Bringman's and Genua's motions
for severance based on incurable spillover prejudice are denied.
B. The Potential For Mutually Antagonistic Defenses Does Not
Provide A Basis For Severance
Some of the defendants move for severance of various counts
within Group One on the ground that they intend to present
mutually antagonistic defenses.*fn6 Specifically, DiPietro
contends that at trial, the rival "factions" that are alleged to
have extorted the Victim, "would assert completely antagonistic
defenses," because DiPietro will argue that he was protecting the
Victim from Pizzuti and Bringman at the Victim's request. See
DiPietro Sev. Memo at 1, 4-5. DiPietro then speculates that the "Pizzuti and
Bringman defense . . . will be that they were not extorting [the
Victim], but rather were protecting him from Sanginiti, DiPietro,
and Capalbo." Id. at 4-5.
Even if DiPietro's speculation regarding his defense theory
vis-à-vis his co-defendants' theories is correct, such defenses
are not mutually antagonistic. In order to "make a showing of
`mutually antagonistic' or `irreconcilable' defenses, the
defendant must make a factual demonstration that acceptance of
one party's defense would tend to preclude the acquittal of the
other." United States v. Salameh, 152 F.3d 88, 116 (2d Cir.
1998) (per curiam). That is not the case here. The suggestion
that some of the defendants may have been acting to "protect the
Victim" is simply a denial of criminal intent; to the extent that
two "factions" simultaneously deny criminal intent, such defenses
are not mutually antagonistic. Furthermore, even if the alleged
defense theories of the case were mutually antagonistic, which
they clearly are not, such mutual antagonism would not result in
an unfair trial or a miscarriage of justice. Therefore, the
defendants' motions for severance based on mutually antagonistic
defenses are denied. C. Bruton v. United States Does Not Provide A Basis For
Defendant DiPietro claims that severance is appropriate
pursuant to Bruton because "it is believed that none of the
statements made by [co-defendants] Pizzuti, Genua, and Capalbo
are capable of being redacted sufficiently to remove reference to
Mr. DiPietro, and that their introduction at a joint trial will
therefore violate Mr. DiPietro's Confrontation rights." DiPietro
Sev. Memo at 11.
At the Court's request, pursuant to Fed R. Crim. P. 14(b), both
unedited defendant statements and proposed Brutonized versions of
those same statements were provided to chambers for in-camera
review.*fn7 While the Court understands that the parties are
in the process of discussing the versions of the statements that
will ultimately be introduced at trial, it is clear at this point
that severance will not be necessary to ensure that DiPietro's
Confrontation rights are preserved. As a result, DiPietro's
motion to sever on Bruton grounds is denied.*fn8 III. The Motion To Dismiss Count 10 Is Denied
Defendants Capalbo, Bringman and Pizzuti move to dismiss Count
10 of the Indictment.
Pursuant to Fed.R.Crim.P. 7(c), an indictment must contain a
"plain, concise and definite written statement of the essential
facts constituting the offense charged." To be legally
sufficient, an indictment must: (1) adequately charge the
elements of an offense; (2) fairly inform the defendant of the
charges he must meet; and (3) contain enough detail to permit the
defendant to plead double jeopardy in a future prosecution based
on the same set of events. United States v. Walsh, 194 F.3d 37,
44 (2d Cir. 1999). Count 10 of the Indictment plainly satisfies
both Rule 7(c) and Walsh; as such, Count 10 is valid on its
face and the motion to dismiss is denied.
IV. Murdocca's Motion To Suppress Is Denied
Defendant Murdocca moves to suppress Government wiretaps and
the tapes, CDs, notes and records of same. Murdocca Suppression
Memo ("Murdocca Memo") at 1. Specifically, Murdocca moves to
suppress the following categories of wiretaps: (a) those in which
Murdocca was not a party to the conversations; (b) those in which
personal conversations not related to discovery of any appropriate
"evidence" were recorded; and (c) those which were done on
telephones not belonging to the defendant. Id. Murdocca states
that "this motion is made on the grounds that the constitutional
and statutory rights of the defendant were interfered with and
Even if the Court were willing to infer which particular
"constitutional and statutory rights" Murdocca may be referring
to, which it is not, the fact remains that Murdocca, by his own
admission, is without standing to challenge categories (a) and
(c), since in category (a) Murdocca was not a party to the
conversation and in category (c) the wiretaps were on phones not
belonging to Murdocca. See United States v. Ruggiero,
928 F.2d 1289, 1303 (2d Cir.), cert. denied, 502 U.S. 938 (1991)
(only individuals with a possessory or proprietary interest in
the premises on which the subject telephone is located have
standing to contest the lawfulness of the wiretaps). Murdocca's
motion to suppress is denied.
V. The Motion For a Bill of Particulars Is Denied
Defendant Angelo Capalbo claims that he is entitled to a bill
of particulars. Capalbo Sev. Memo at 2-4. Mr. Capalbo is wrong. His request has no legal basis and it is
VI. The Request For Early Production of 3500 and
Brady/Giglio Material Is Denied
Several of the defendants move for early production of Brady,
Giglio and 3500 material. The requests have no basis in the law
and are hereby denied. As is common among the courts of this
Circuit, the Court accepts the Government's representation that,
consistent with its longstanding practice, it will make
impeachment and 3500 material available on the Friday prior to
trial. See, e.g., United States v. Numisgroup Intern.
Corp., 128 F. Supp. 2d 136, 150 (E.D.N.Y. 2001).
VII. Defendants' Request To Compel The Government To Provide
404(b) Evidence 30 Days Prior to Trial Is Denied
Certain defendants have moved for the Government to produce all
evidence it intends to offer pursuant to Rule 404(b) no later
than 30 days prior to trial. These applications are denied. The Government represents, and the Court
accepts, that the 404(b) evidence will be provided to defense
counsel at least two weeks prior to trial.