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U.S. v. URSO

May 3, 2005.

ANTHONY URSO, et al., Defendants.

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

I. Baldassare Amato

  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 evidence.

  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) (emphasis added).

  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 indictment.

  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 this case.

  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. 1985).

  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.

  II. Anthony Basile

  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 denied.

  (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 ...

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