The opinion of the court was delivered by: Garaufis, United States District Judge.
Defendants Vincent Basciano ("Basciano") and Patrick DeFilippo ("DeFilippo") have each moved under Fed. R. Crim. Proc. 14 for severance in their trial scheduled to begin January 17, 2006;*fn1 Basciano further moves for severance under the Due Process Clause. (See Spirito & DeFilippo Mem. Support Mot. Sever Basciano ("DeFilippo Mem., May 2005"); DeFilippo & Spirito Mem. Support Pretrial Mot. 16-23 ("DeFilippo Mem., Sept. 2005"); Basciano Mem. Support Pretrial Mot. 10-21 ("Basciano Mem.").) In their respective pre-trial motions, submitted September 16, 2005, Defendants argue that a joint trial would be unduly prejudicial because they have mutually antagonistic defenses and because DeFilippo seeks to admit evidence that is likely inadmissible by the Government against Basciano. (Basciano Mem. at 10-16, DeFilippo Mem., May 2005, at 16-23.) In additional briefings requested by the court, Basciano asserts that the admittance of the "Massino tapes"*fn2 by DeFilippo would violate Basciano's Sixth Amendment right to counsel (Basciano Letter Br., Nov. 29, 2005), and DeFilippo identifies specific portions of the Massino tapes that he considers vital to his defense and argues that the tapes are admissible under the Federal Rules of Evidence (DeFilippo Letter Br., December 2, 2005).
The Government opposes the Defendants' motions for severance. In its response, the Government argues that the Defendants fail to meet the standard of mutually antagonistic defenses or severability due to prejudice, and that hostility between co-defendants does not merit severance. (Gov't Resp. at 26-62.) Furthermore, the Government argues that judicial economy and a strong federal court preference for joint trials compel a joint trial in this case. (Id. at 63.) In further briefing requested by the court, the Government concedes that if the Massino tapes were introduced by DeFilippo in a joint trial, Basciano could suffer a potential violation of his Sixth Amendment right to counsel,*fn3 but argues that, under the Federal Rules of Evidence, DeFilippo is barred from introducing the tapes. (Gov't Letter Br., Nov. 29, 2005) The Government moves, in limine, for the exclusion of the Massino tapes. (Id.)
The court heard extensive oral argument on these and other pre-trial motions on December 2, 2005. At that time, I reserved decision on all motions. I now rule on the question of severance and the admissibility of the Massino tapes. I will rule later on the remaining motions. For the reasons set forth below, Defendants' motions for severance are DENIED on all grounds; the Government's motion for the exclusion of the Massino tapes is GRANTED in part and DENIED in part.
In the most recent superseding indictment, the grand jury charges Basciano and/or DeFilippo with participating in a total of fifteen racketeering acts and eleven substantive counts of illegal activity in the furtherance of the Bonanno crime family's operations, including illegal gambling, loansharking, arson, attempted murder, and murder. (See generally Basciano I (S-4).)*fn4
Seven other co-defendants have pled guilty before this court and consequently do not face trial in January. DeFilippo first moved to sever his trial from that of Basciano's in May 2005. (DeFilippo Mem., May 2005.) After DeFilippo and the Government completed their briefing on that motion, I adjourned all pre-trial motions until September 2005. (Scheduling Order, June 6, 2005.)
Among the other counts, and relevant to the issue of severance, DeFilippo is accused of having participated in the murder of Gerlando Sciascia a/k/a George from Canada ("Sciascia") in the furtherance of the Bonanno crime family enterprise. (Basciano I (S-4 ¶¶ 34-36, 49-54).) Joseph Massino, who pled guilty to ordering the murder of Sciascia in or around March 1999, allocuted that DeFilippo participated in the killing. (Massino Sentencing Tr.18, June 23, 2005.) John Spirito, also charged in this case, has pled guilty to having cooperated with other individuals in the murder of Sciascia, specifically to driving Sciascia to the place where he was killed, and then to hauling off his body to dispose of it. (Spirito Allocution Tr. 30-39, Sept. 27, 2005.) Basciano is neither charged with, nor alleged by the Government to have participated in, the killing of Sciascia. DeFilippo is also charged in the attempted murder of David Nunez, as well as with illegal gambling and loan sharking. (Basciano I (S-4).) And, although not charged in this case, the Government submitted evidence to the court supporting the proposition that Basciano and DeFilippo have each sought or conspired to murder the other. (See Gov't Opp. Def's' Pretrial Mot., at 32, n.15.)
Basciano is charged with racketeering acts that include the attempted murder of David Nunez, the attempted murder of Nardino "Lenny" Collotti, the murder of Frank Santoro, and solicitation to murder of Joe Martino. (Basciano I (S-4).) He is additionally charged with racketeering acts of arson and loan sharking and a substantive count of illegal gambling. (Id.)
While in prison awaiting trial in this case and after being found guilty in a prior case before this court (Docket No. 02-cr-307), Joseph Massino, the then-head of the Bonanno crime family, agreed to become a government informant and taped two conversations in prison that he had with Basciano.*fn5 (See Massino tapes.) Basciano was already indicted in this case at the time Massino recorded their conversations. Mindful of these facts, the Government has advised the court that it has no plans to introduce the Massino tapes in the upcoming trial, because introduction of such evidence could violate Basciano's Sixth Amendment right to counsel. See Massiah v. United States, 377 U.S. 201 (1964); Maine v. Moulton, 474 U.S. 159 (1985). After DeFilippo filed a motion to sever his trial from Basciano's in May 2005, arguing that the Massino tapes were relevant to the question of severance, I ordered the release of copies of the Massino tapes to both defendants. (DeFilippo Mem., May 2005.) This allowed them time to determine and/or explain to the court what, if any, specific statements on the tapes would support their motions for severance.
Rule 8(b) of the Federal Rules of Criminal Procedure allows the Government to charge defendants together when "they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Rule 14 of the Federal Rules of Criminal Procedure, in contrast, permits a district court to grant severance of defendants when, "it appears that a defendant or the government is prejudiced by a joinder." Rule 14 is limited by the strong preference in the federal system for defendants who have been indicted together to be tried jointly. Zafiro v. United States, 506 U.S. 534, 537 (1993) ("Rules 8(b) and 14 are designed to promote economy and efficiency.") "[I]t is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials." Id. at 540 (internal citations and quotations omitted).
Where a defendant or the government is prejudiced in a joint trial, the decision whether to sever is "committed to the sound discretion of the trial judge." United States v. Diaz, 176 F.3d 52, 102 (2d. Cir. 1991) (internal quotations omitted). Severance is justified "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt." Zafiro, 506 U.S. at 539. "Acknowledged in this policy [favoring joint trials] is the inevitable tolerance of some slight prejudice to co-defendants, which is deemed outweighed by the judicial economies resulting from the avoidance of duplicative trials." United States v. Cardascia, 951 F.2d 474, 482-83 (2d Cir. 1991) (further noting that "the risk of inconsistent verdicts resulting from separate trials, and the favorable position that later tried defendants obtain from familiarity with the prosecution's strategy is obviated through multidefendant trials." Id. at 483.) This court has a preference for joint trials of defendants alleged to have participated in the same RICO conspiracy. United States v. Urso, 369 F. Supp. 2d 254, 269-70 (E.D.N.Y. 2005) (Garaufis, J.).
Because of this strong preference for joint trials, and the discretion granted district court judges, the "denial of a severance motion should be reversed only when a defendant can show prejudice so severe as to amount to a denial of a constitutionally fair trial, or so severe that his conviction constituted a miscarriage of justice." United States v. Blount, 291 F.3d 201, 209 (2d Cir. 2002) (internal citations and quotations omitted); see also United States v. Yousef, 327 F.3d 56, 150 (2d Cir. 2003) ("[A] district court order denying a Rule 14 motion is considered virtually unreviewable and will be overturned only if a defendant can show prejudice so severe that his conviction constituted a miscarriage of justice and that the denial of his motion constituted an abuse of discretion.") (internal citations and quotations omitted).
The court briefly considers two rationales for severance that are raised by DeFilippo in his May 2005 submission to the court and only alluded to in his September 2005 motion. (DeFillippo Mem. 16-17, Sept. 2005) I then will thoroughly examine three additional grounds for severance argued by DeFilippo and Basciano and consider the Government's motion to exclude the Massino tapes in limine. In his May 2005 motion for severance, DeFilippo asserts that he should be granted a severance from Basciano because of "spillover prejudice" as a result of Basciano's more serious charges, and to preserve his right to a speedy trial. (See DeFilippo Mem., May 2005.) I then consider DeFilippo's and Basciano's contentions that their defenses are mutually antagonistic, (DeFilippo Mem.17-20, Sept. 2005; Basciano Mem. 13-15), and DeFilippo's contention that the hostility between the parties is grounds for severance (DeFilippo Mem.18-20, Sept. 2005). I will additionally consider whether a joint trial would impinge on Basciano's Sixth Amendment right to counsel or DeFilippo's Fifth Amendment due process right to present a defense. Finally, I consider the Government's motion to exclude the Massino tapes on evidentiary grounds.
I find spillover prejudice to be an insufficient rationale for severance. Both Basciano and DeFilippo are charged with being captains or "capos" of the Bonanno crime family, participating in loan sharking and illegal gambling, attempted murder, and murder. The only category of major offense that Basciano, but not DeFilippo, is charged with is arson. (S-4 ¶¶ 24-26.) This does not meet the high burden to show that spillover prejudice requires severance in RICO cases, where evidence produced against other co-defendants is often admissible against all of these defendants to show evidence of the conspiracy, even if each had been tried separately. Diaz, 176 F.3d at 103. Furthermore, DeFilippo's original arguments for spillover prejudice focus on the prejudice that DeFilippo would suffer if the Government were to introduce the Massino tapes against Basciano at a joint trial. (DeFilippo Mem.16-20, May 2005) This argument seems to have been replaced with the opposite argument: that DeFilippo needs to introduce the Massino tapes, but such evidence might prejudice Basciano. (DeFilippo's Letter Br., Nov. 30, 2005)
In his May 2005 motion for severance, DeFilippo also asserts that he should be granted a severance from Basciano to preserve his right to a speedy trial. (DeFilippo Mem. 67, May 2005.) DeFilippo's speedy trial argument is irrelevant. Since the Government stated at a status conference on November 23, 2005 that it would proceed with DeFilippo's case first in the event of a severance, DeFilippo's trial will commence within the next six weeks, irrespective of the court's decision on severance.*fn6
III. Antagonistic Defenses
"[A]ntagonistic defenses may conflict to such a degree that co-defendants are denied a fair trial," United States v. Cardascia, 951 F.2d 474, 484 (2d. Cir 1991)), although "[m]utually antagonistic defenses are not prejudicial per se . . . ." Zafiro v. United States, 506 U.S. 534, 538 (1993). The "defenses must conflict to the point of being so irreconcilable as to be mutually exclusive before we will find such prejudice as denies defendants a fair trial." Cardascia, 951 F.2d at 484 (explaining that "[d]efenses are mutually exclusive or irreconcilable if, in order to accept the defense of one defendant, the jury must of necessity convict a second defendant"). Alternately, antagonistic defenses can merit severance where "antagonism at the essence of the defenses prevails to such a degree -- even without being mutually exclusive -- that the jury unjustifiably infers that the conflict alone indicated that both defendants were guilty." Id. Mere finger pointing is not sufficient to warrant severance. United States v. Haynes, 16 F.3d 29, 31-32 (2d Cir. 1994).
DeFilippo first argues that the defenses are antagonistic in their essence, because Basciano I (S-3) charged Basciano with conspiring to kill DeFilippo. (DeFilippo Mem.17-18, Sept. 2005.) Defilippo argues this puts him in "the unique position of being not merely hostile to, but in fact the government's 'complainant' and a defendant in the same trial." (Id. at 18-19.) While such an occurrence would provide a strong rationale for severance, in this case it is factually incorrect. Basciano has not been charged with conspiring to kill DeFilippo in any of the superseding indictments in Basciano I.*fn7 Basciano's indictment in Basciano II, effectively severed the offending charge from this case and so DeFilippo's argument need not be considered here.
DeFilippo further argues that his defense is antagonistic toward Basciano because he plans to introduce, "either (a) portions of the Basciano-Massino tapes (inadmissible against Basciano), or (b) non-tape evidence that shifts responsibility for the Sciascia murder from DeFilippo to Basciano." (DeFilippo Reply Letter Br. 3, Nov. 16, 2005 ("DeFilippo Letter, Nov. 2005").) DeFilippo maintains that his defense strategy is to show that John Spirito pulled the trigger in the Sciascia murder, instead of DeFilippo, and that Basciano ordered the killing, instead of Joseph Massino. DeFilippo asserts that establishing this scenario will help him to discredit government witnesses and also to cast doubt on government allegations of his role in the murder. In order to do so, DeFilippo wants to admit Rule 404(b) evidence establishing Basciano's position within the Bonanno crime family and his violent nature. (DeFilippo Letter Br., Dec. 2, 2005)
In a similar vein, Basciano argues that he will be unduly prejudiced by the presentation of DeFilippo's antagonistic defense, "blaming Mr. Basciano for instigating and perpetrating the crimes for which [DeFilippo is] charged and serving, in effect, as a second prosecutor to advance the government's case against Mr. Basciano." (Basciano Mem. 10, Sept. 2005.) Basciano further argues that since the Government probably could not admit the Massino tapes in a separate trial against Basciano, DeFilippo's admission of the "highly prejudicial" tapes provide grounds for severance because of antagonistic defenses. Basciano asserts that this prejudice may rise to the level of a violation of his due process rights.*fn8
I first consider Defendants' motions through the framework provided by Cardascia, requiring that either the defenses be mutually exclusive or the antagonism prevails to a high degree at the essence of the defenses. Cardascia, 951 F.2d at 484. Under the first prong of the Cardascia analysis, I conclude that the Defendants' defenses are not mutually exclusive. Even assuming that DeFilippo plans to offer all the evidence that he has asserted, the defenses (on a scale of antagonism) are no more than merely inconsistent or conflicting. DeFilippo seeks to show that Basciano was involved in the Sciascia murder, but Basciano is not charged in that murder, and cannot be found guilty of it. DeFilippo also plans to adduce evidence that would reveal Basciano's power and ambition within the Bonanno crime family. While such evidence would support the Government's case in Count 1 ("Racketeering") of Basciano I (S-4), standing alone it is insufficient to convict Basciano on Count 1. Furthermore, the Government asserts that ...