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U.S. v. DiPIETRO

April 6, 2005.

UNITED STATES OF AMERICA,
v.
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.

FACTUAL BACKGROUND

  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 ...


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