The opinion of the court was delivered by: NICHOLAS G. GARAUFIS, District Judge
Oral argument was heard on April 8, 2005 on the pre-trial
motions of defendants Baldassare Amato, Anthony Basile, Michael
Cardello, Peter Cosoleto, Joseph Desimone and John Palazzolo.
These defendants have been slated for joint trial under the
Government's proposed grouping of the remaining twelve defendants
under the instant indictment, which charges each of the remaining
defendants with violations of 18 U.S.C. § 1962(d), the RICO
conspiracy statute, among other counts. The motions filed by the
defendants in this trial group can be roughly divided between
substantive challenges to the indictment on one hand, and
discovery-related motions on the other. For the reasons set forth
below, the substantive motions made by the defendants are granted
in part and denied in part. The defendants' discovery-related
motions are likewise granted in part and denied in part, with
consideration of several of the defendants' discovery-related
motions held in abeyance until a definitive trial date is set. SUBSTANTIVE MOTIONS
Amato moves to dismiss of Count One of the indictment, which
charges RICO Conspiracy, and to sever Racketeering Acts 32 and 43
from the indictment.*fn1 These motions for pretrial relief
are denied for the reasons set forth below.
(A) Amato's Motion to Dismiss
Amato's motion to dismiss is denied because in each of its
facets, it contests the factual sufficiency of the government's
case. A defendant may not contest the sufficiency of the
government's proof in a pre-trial motion "[u]nless the government
has made what can fairly be described as a full proffer of the
evidence it intends to present at trial." United States v.
Alfonso, 143 F.3d 772, 776-77 (2d Cir. 1998) (quoting United
States v. Doe, 63 F.3d 121, 125 (2d Cir. 1995)) (internal
citations and quotation marks omitted).
Here, the government has made only a limited proffer of its
evidence. That limited proffer was made in a memorandum submitted
in support of the government's motion for pre-trial detention of
a number of the defendants in this indictment. With respect to
Amato, the memorandum briefly summarizes, typically in a single
sentence, the testimony that each of a string of cooperating
witnesses is expected to give, and the physical evidence that the
government expects to present to the jury. This brief preview of
the government's evidence cannot be fairly characterized as a
"full proffer." To the contrary, it is clear that the
government's memorandum was submitted for the sole purpose of supporting its motion for pre-trial detention, and
thus was tailored to satisfy the detention analysis set forth in
the Bail Reform Act, 18 U.S.C. § 3142(g), without revealing
further details of the government's case not necessary for that
purpose. Accordingly, Amato's motion to dismiss must be denied to
the extent that it challenges the sufficiency of the government's
Even a cursory review of Amato's motion to dismiss reveals that
he is challenging the sufficiency of the government's proof at
every turn. Amato variously argues that the indictment must be
dismissed because it "fails to allege a sufficient structure"
(Amato Br. at 4), that certain predicate acts were committed on
behalf of other, unrelated, enterprises (Id. at 5), that the
acts which Amato is alleged to have committed were not
meaningfully related, and therefore do not constitute a pattern
of racketeering activity (Id. at 6), that he was not involved
in illegal gambling (Id. at 7), and that he did not conduct or
participate in the Massino family enterprise. (Id.). These
claims all present direct challenges to the sufficiency of the
government's proof, and therefore are premature under Alfonso.
Indeed, Amato's papers are replete with assertions that "the
facts . . . show that the murders of Sebastian DiFalco and
Robert Perrino were committed for personal and other reasons
unrelated to the Massino family, . . . that the murders were
committed by [persons other than Amato and] that the shootings . . .
conflicted with [the] Massino family's rules and interest."
(Amato Br. at 2-3) (emphasis added). Amato also argues that the
government's "post hoc racketeering theory . . . is belied by
the established facts," and that "the facts show that
[Racketeering Acts 32 and 43] were actually committed by a
separate `enterprise' called the Ridgewood Boys." (Id. at 3, 5)
Amato makes several attempts to circumvent the bar against
pre-trial evidentiary sufficiency challenges, each of which is
ultimately fruitless. First, he suggests that "the established
facts set out in the transcripts" of several criminal proceedings in the
Eastern District demonstrate that the Bonnano family is not an
enterprise. (Id. at 3). However, the sole trial cited by Amato
for this proposition is United States v. Joseph Massino, 02 Cr.
307 (E.D.N.Y.) (NGG). The jury empaneled for that trial clearly
accepted the government's contention that the Bonnano crime
family exists, and agreed that it constitutes an enterprise
within the meaning of the RICO statute in finding Massino guilty
of both racketeering conspiracy and a substantive RICO offense.
This court is therefore at a loss to understand how the evidence
presented at that trial supports Amato's contention that the
government has insufficiently alleged a structure in the present
Amato next argues that his motion should be entertained
notwithstanding the prohibition against pre-trial sufficiency
challenges because "six years ago the Government posited a theory
concerning the murder of Sebastian DiFalco, which is inconsistent
[with] its present claim that DiFalco was murdered in support
[of] the aims of the Massino Family." (Amato Reply Br. at 4-5).
This assertion is without merit. The statement cited by Amato is
the following assertion made by a government prosecutor during a
bail hearing: "[A]lthough Mr. Amato was charged only with the
conspiracy and not the substantive murder, clearly there is a
Pinkerton theory there on which the Government may seek to
supercede the indictment." (Exhibit 1 to Amato Reply Br. p.
7:13-22). According to Amato, this statement demonstrates that
"in 1999 the Government advocated the position that Mr. Amato was
not involved [in] the substantive murder of DiFalco, but was, at
best a conspirator" who could be held liable as a principal for
foreseeable acts of his co-conspirators. (Amato Reply Br. at 4).
The government's 1999 position is not in conflict with its
present position. In 1999, the government suggested that Amato
might be liable as a principal for the DiFalco murder because of
his role in the conspiracy to kill DiFalco. Today, the government
alleges that Amato violated New York's murder statute through his involvement in
that murder, and thus committed a racketeering act within the
meaning of 18 U.S.C. § 1961(1)(A). The government has now done
what it intimated six years ago that it was entitled to do.
Amato's assertion that the government's current prosecution is
inconsistent with the theory that it suggested six years ago is
therefore without merit, even assuming arguendo that an
individual prosecutor's conjecture at a bail hearing as to
whether the government would pursue a superceding indictment is
at all relevant here.
Finally, Amato refers to another statement made by the
government at the same 1999 bail hearing in suggesting that the
government has proffered sufficient evidence such that his claims
can be considered on a motion to dismiss. At the hearing, the
government asserted that it would produce witnesses at trial who
would testify "about Mr. Amato's direction that they murder Mr.
DiFalco, in sum and substance, because of a dispute that Mr.
Amato had with Mr. DiFalco." (Exhibit 1 to Amato Reply Br. p.
7:23-8:1). Amato now asserts that the foregoing statement proves
that "the murder occurred because of a dispute unrelated to the
Massino Family." (Id. at 4.) (emphasis added). The problem for
Amato, of course, is that the government merely stated that the
murder occurred "because of a dispute." Just how Amato divines
the phrase "dispute unrelated to the Massino Family" from the
word "dispute," standing alone, is a mystery to this court. Even
without resolving this mystery, however, it is evident that the
government's earlier, unadorned statement that the DiFalco murder
resulted from a dispute does not convey the meaning that Amato
has attempted to ascribe to it. And in any case, that statement
does not constitute a full proffer of the government's proof in
Each of Amato's arguments is therefore premature under Rule
12(b). Accordingly, Amato's motion for dismissal of the
allegations in Count One is denied. (B) Double Jeopardy
Amato next contends that the inclusion of Racketeering Acts 32
and 43 in the indictment gives rise to a double jeopardy claim
because these alleged crimes were charged against him as
predicate acts in a 1999 RICO prosecution in which the charged
enterprise was a group known as the "Ridgewood Boys." (Amato Br.
at 9). This argument is without merit. In this Circuit, "it is
neither the enterprise standing alone nor the pattern of
racketeering activity by itself which RICO criminalizes. Rather,
the combination of these two elements is the object of punishment
under RICO. Therefore, in order for the present indictment to
give rise to a valid claim of double jeopardy, both the
enterprise and the pattern of activity alleged in the [earlier]
indictment must be the same as those alleged in the [present]
indictment. If either is different, there is no infirmity under
the double jeopardy clause." United States v. Russotti,
717 F.2d 27, 33 (2d Cir. 1983) (internal citations omitted). Accord
United States v. Langella, 804 F.2d 185, 189 (2d Cir. 1986);
United States v. Ciancaglini, 858 F.2d 923, 928 (3rd Cir.
1988); United States v. Ruggiero, 754 F.2d 927, 931 (11th Cir.
The present indictment is not barred by the double jeopardy
doctrine because both the enterprise and the pattern of
racketeering activity now charged are different than those
charged in the earlier indictment. The enterprise charged in the
instant indictment is the Bonnano Crime Family; the enterprise
charged in the 1999 indictment was the Ridgewood Boys. The
question of whether Amato has a viable double jeopardy claim
might be a closer one if Amato alleged that the Ridgewood Boys
and the Bonnano Crime Family were actually the same enterprise.
However, Amato insists that the two alleged enterprises were
"separate." (Amato Br. at 5). Moreoever, while the two
racketeering acts are common to both indictments, the two
indictments charge additional racketeering acts as well, and thus charge different patterns of racketeering activity.
Accordingly, under the clear precedent of this Circuit, the
Double Jeopardy Clause does not prevent the government from
prosecuting under this indictment the allegations described in
Racketeering Acts 32 and 43.
(C) Motion to Sever Racketeering Acts 32 and 43
Amato's motion to sever Racketeering Acts 32 and 43 from this
trial also lacks merit. Amato asserts that these Racketeering
Acts are "misjoined" because "the connection between them and the
Massino family are [sic] tenuous at best." (Amato Br. at 13).
Amato cites no precedent whatsoever in support of the
extraordinary proposition that some racketeering acts may be
severed from the other racketeering acts charged under a single
count of racketeering conspiracy. This court also has not found
any cases that support Amato's position. The fact that no federal
court appears to have granted the relief that Amato seeks here is
hardly surprising. For starters, Fed.R.Crim.P. 14 authorizes
district courts to "order separate trials of counts . . . or
provide any other relief that justice requires." A predicate act
of racketeering, of course, is not a count. Moreover, the manner
in which a racketeering act differs from a count suggests that it
might never be appropriate for a court to sever a racketeering
act from the rest of the allegations against a defendant in an
indictment, the broadly permissive language of Rule 14
notwithstanding. Unlike a count, a racketeering act alleged
pursuant to 18 U.S.C. § 1962 may not be tried in a separate
proceeding. This is because in order to win a conviction under
the RICO statute, the government is required to prove that the
defendant engaged in a pattern of racketeering activity, i.e.:
"(1) the defendant committed at least two predicate acts of
racketeering within ten years of one another; (2) that these
racketeering predicates are interrelated; and (3) that they
reveal continued, or the threat of continued, racketeering
activity." United States v. Diaz, 176 F.3d 52, 93 (2d Cir.
1999) (citation omitted). Because a single racketeering act
cannot, by definition, constitute a pattern, that single racketeering act
may not be tried alone under the RICO statute. Additionally, the
severance of multiple racketeering acts from a broader RICO
indictment would significantly prejudice the government's chances
of winning a conviction by forcing the government to bifurcate
the very pattern that it is its burden to prove, and then
demonstrate that each resulting piece of the pattern nonetheless
constitutes a separate pattern that bears a relationship to the
charged enterprise. Far from furthering the interests of justice,
this outcome would unduly burden the government's efforts to
prosecute crime under the RICO statute.
Mr. Amato will have every opportunity to argue to the jury that
neither the murder of Sebastian DiFalco nor the robbery of Caffe
Vienna was related to the activities of the Bonnano crime family
(or indeed, that there is no Bonnano crime family, or that he did
not commit these acts). However, the government is clearly
entitled to try these alleged predicate acts as part of a single
RICO conspiracy count. Amato's motion on this point is denied.
Defendant Anthony Basile seeks the dismissal of Racketeering
Acts 27 and 49, and thus of the racketeering conspiracy charge
against him, as well as the dismissal of Counts 15 and 16, which
allege that Basile participated in loansharking activities. For
the reasons that follow below, Basile's motion to dismiss Counts
15 and 16 is granted. His remaining substantive motions are
(A) Motion to Dismiss Racketeering Act 27
Racketeering Act 27 charges that Basile was involved in a
marijuana trafficking conspiracy from January 1990 to May 1993.
Basile argues that this Racketeering Act should be dismissed
because he was tried for racketeering conspiracy in conjunction
with a different enterprise, allegedly headed by Frederick
Puglisi, in a 1995 prosecution in the Southern District of New
York in which the government charged that Basile had been involved in a conspiracy
to distribute marijuana from January 1990 to September 9,
1992.*fn2 (Basile Br. at 5). Basile contends that because
the government asserted in the 1995 trial that his marijuana
trafficking activities were related to the Puglisi enterprise,
the government should now be estopped from arguing that these
same acts were related to the activities of the Bonnano crime
family. This argument is without merit.
There is no clear consensus in the federal courts on whether a
prosecutor may be precluded from raising an argument at a
criminal trial because the government has asserted a factually
incompatible argument in pursuing a conviction against another
defendant at another trial. Compare Thompson v. Calderon,
120 F.3d 1045, 1058 (9th Cir. 1997) (plurality op. for an en banc
panel) (concluding that the pursuit of a conviction in a second
trial by way of a theory irreconcilable with the government's
theory at an earlier trial violates due process); Smith v.
Groose, 205 F.3d 1045, 1051-52 (8th Cir. 2000) (same); Stumpf
v. Mitchell, 367 F.3d 594, 611 (6th Cir. 2004) (same); Drake v.
Kemp, 762 F.2d 1449, 1472 (11th Cir. 1985) (Clark, J.
concurring) (same) with Calderon, 120 F.3d at 1070 (Kozinski,
J. dissenting) (collecting cases questioning the continued
viability of the judicial estoppel doctrine and stating that
judicial estoppel has never been applied against the government
in a criminal case); Shaw v. Terhune, 353 F.3d 697, 704-05 (9th
Cir. 2003) (pursuit of inconsistent theories does not violate due
process unless the prosecutor knowingly employs evidence that he
knows to be false or otherwise acts in bad faith); Nguyen v.
Lindsey, 232 F.3d 1236, 1240 (9th Cir. 2000) (same). However,
there is a clear consensus that among the courts that have
applied the doctrine of judicial estoppel to criminal proceedings
that prosecutors should be barred from arguing a different theory of liability in a second prosecution only where
the government's trial theories are "inherently factually
contradictory" and thus are "irreconcilable." See, e.g.,
Stumpf, 367 F.3d at 611; Groose, 205 F.3d at 1052. In other
words, judicial estoppel may be applied to prevent a due process
violation, if ever, only where there is a clear and categorical
repugnance between the government's two theories of the case.
See, e.g., Nguyen, 232 F.3d at 1241.
Basile's claim here is fatally flawed because the government's
dual theories are not categorically inconsistent. On the
contrary, both logic and well-established law suggest the
permissibility of the government's implicit accusation that
Basile's alleged marijuana dealings during the period charged in
the instant indictment were related to both the Puglisi and
Bonnano enterprises. There are a number of plausible scenarios
under which Basile's marijuana trafficking activities might be
considered substantially related to both charged enterprises. For
example, the government might introduce evidence suggesting that
Basile procured some shipments of marijuana for the Puglisi
enterprise and other shipments for the Bonnano enterprise.
Alternately, the government might assert that one enterprise
might have invested money or resources through Basile that was
utilized by the other in carrying out marijuana trafficking. Yet
another possibility is that one enterprise may have protected the
drug-related activities of the other in return for drugs, money,
or other consideration. These hypothetical examples suggest that
there is a clear distinction between the instant case, and one in
which the evidence indicates that either A or B, but not both,
could have committed a crime, and the government nevertheless
prosecutes both A and B for the crime under incompatible
theories. The situation facing Basile is akin to one in which the
government alleges in successive prosecutions ...