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U.S. v. GOTTI

April 15, 2005.

UNITED STATES OF AMERICA
v.
JOHN A. GOTTI, JOSEPH D'ANGELO, MICHAEL YANNOTTI, and LOUIS MARIANI, Defendants.



The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

MEMORANDUM OPINION & ORDER

I. INTRODUCTION

  The Court held a conference in this case on April 12, 2005, to hear oral arguments on various motions made by the defendants. My decisions as to the majority of these motions follows.

  Defendant John A. Gotti, Jr. ("Gotti") has moved for the following relief: (1) a bill of particulars; (2) a Franks hearing regarding an April 2004 application to extend a wiretap order; (3) dismissal of some or all of the charges in the pending indictment on the grounds that they are barred by the terms of his 1999 plea agreement; and (4) suppression of electronic surveillance evidence.

  Defendant Joseph D'Angelo ("D'Angelo") has moved for the following relief: (1) severance; (2) dismissal of all counts of the indictment on statute of limitations grounds; (3) a bill of particulars; (4) change of venue; (5) disclosure of various materials; (6) an order requiring the Bureau of Federal Prisons to preserve all tape recordings of telephone conversations as well as any other recordings, pen registers, and visiting logs relating to incarcerated individuals who were debriefed by the Government concerning the charges in this indictment; (7) an order directing the Government to provide defendants access to all physical evidence in its possession; (8) disclosure of the medical records of the Government's cooperating witness Frank Fappiano; (9) a Simmons hearing regarding Curtis Sliwa's prior identification of D'Angelo; and (10) leave to make certain motions in limine.

  Defendant Michael Yannotti ("Yannotti") has moved for the following relief: (1) dismissal of Count One of the indictment on the grounds that it violates the statute of limitations; (2) dismissal of Racketeering Act Six of Count One as unrelated to the charged racketeering enterprise; (3) severance; and (4) suppression of the fruits of electronic surveillance.

  Defendant Louis Mariani ("Mariani") has moved to sever his trial from his co-defendants'.

  II. THE INDICTMENT

  On July 21, 2004, a grand jury in the Southern District of New York returned an eight-count indictment against defendants Gotti, D'Angelo, Yannotti, and Mariani. The indictment charges D'Angelo and Mariani in all eight counts, and Yannotti in two of the eight counts.

  Count One alleges that all four defendants participated in a racketeering enterprise known as the Gambino Organized Crime Family of La Cosa Nostra ("Gambino Crime Family") in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"). Count One further alleges that the defendants committed the following eleven racketeering acts: (1) conspiracy to kidnap and murder, kidnaping, and attempted murder of Curtis Sliwa on or about June 19, 1992 [Gotti, D'Angelo, and Yannotti]; (2) conspiracy to murder and murders of Robert Arena and Thomas Marenga on or about January 26, 1996 [Yannotti]; (3) conspiracy to murder and murder of Edward Garafalo in or about July and August 1990 [D'Angelo]; (4) conspiracy to murder and attempted murder of Victim #1 in or about 1990 and 1991 [Gotti]; (5) conspiracy to murder and attempted murder of Victim #2 in or about 1991 [Gotti]; (6) attempted murder of Victim #3 in or about 1987 [Yannotti]; (7) conspiracy to commit securities fraud and mail and wire fraud from in or about 1995 up through and including in or about 2002 [Gotti, D'Angelo, and Mariani]; (8) conspiracy to extort and extortion of construction contractors from in or about 1991 up through and including in or about 2002 [Gotti, D'Angelo, and Mariani]; (9) loansharking from in or about 1991 up through and including in or about 2002 [Gotti, D'Angelo, and Mariani]; (10) loansharking from in or about 1993 up through and including in or about 2002 [Yannotti]; and (11) illegal gambling from in or about the mid-1990s up through and including in or about May 2002 [D'Angelo].

  Count Two charges all four defendants with participating in a racketeering conspiracy from in or about the mid-1980s up through and including in or about 2004 also in violation of RICO. The aforementioned racketeering acts are realleged in connection with Count Two. Counts Three through Seven respectively charge Gotti, D'Angelo, and Mariani with (1) conspiracy to commit securities fraud, (2) fraud in connection with the offer and sale of securities, (3) fraud in connection with the purchase and sale of securities, (4) mail fraud, and (5) wire fraud from in or about 1995 up through and including 2002. Count Eight charges Gotti, D'Angelo, and Mariani with conspiracy to extort and extortion of construction contractors from in or about 1991 up though and including 2002.

  III. DISCUSSION

  A. Motions to Sever

  D'Angelo, Yannotti, and Mariani have each moved for separate trials.*fn1 Federal Rule of Criminal Procedure 14 provides in relevant part: "If the joinder of offenses or defendants in an indictment . . . appears to prejudice a defendant or the Government, the court may . . . sever the defendants' trials." "The decision whether to sever is committed to the sound discretion of the trial judge."*fn2 "There is a preference in the federal system for the joint trial of defendants indicted together, making severance inappropriate unless a joint trial would compromise a trial right of the moving defendant or prevent the jury from making a reliable judgment about guilt or innocence."*fn3 Put another way, "a defendant seeking severance must show that the prejudice to him from joinder is sufficiently severe to outweigh the judicial economy that would be realized by avoiding multiple lengthy trials."*fn4

  D'Angelo contends that he is entitled to severance "because of the nature of the charges against others in this case and the likelihood of spillover prejudice."*fn5 However, in view of the fact that the indictment in this case charges D'Angelo in every count and alleges that he committed crimes of violence, including murder, there is little risk of prejudicial spillover from a joint trial. In addition, the notoriety of the Gotti name is irrelevant to the question of severance because a searching voir dire and emphatic jury instructions will ensure that Gotti and his co-defendants receive a fair trial before an impartial jury. Thus, D'Angelo has failed to demonstrate that a joint trial will compromise any trial right or prevent the jury from making a reliable judgment and, consequently, his motion for a separate trial is DENIED.

  Yannotti argues that Gotti's notoriety mandates a separate trial. As stated earlier, this contention is without merit, and Yannotti's motion to sever is also DENIED.

  B. Motions to Dismiss on Statute of Limitations Grounds

  As noted earlier, D'Angelo and Yannotti have made motions to dismiss on statute of limitations grounds. For the reasons stated on the record at the April 12th conference, both motions to dismiss on these grounds are DENIED as being premature.*fn6

  C. Motions for a Bill of Particulars

  Gotti and D'Angelo have each requested a bill of particulars. For the reasons stated on the record at the April 12th conference, these motions are GRANTED in part and DENIED in part.*fn7

  D. Gotti's Other Motions

  1. Request for a ...


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