The opinion of the court was delivered by: Garaufis, United States District Judge.
On January 23, 2006, I held a status conference with all defendants who remain under indictment to discuss the trial groupings and schedules of defendants in the above matter. Before the court are also two motions that relate to defendants' trials. Defendant Riccardi has moved that this court revoke Riccardi's pretrial detention, arguing that his pretrial detention violates his due process rights, and defendant Romanello has moved to have his trial severed from all other co-defendants.
For the reasons set forth in this Memorandum and Order: (1) Defendant Riccardi's and Defendant Romanello's motions are denied; (2) I consolidate Baldassare Amato, Anthony Basile, Michael Cardello, Peter Cosoleto, Joseph DeSimone, Steven LoCurto, John Palazzolo, and Richard Riccardi into the first trial group ("Urso I"); and (3) I consolidate Louis Attanasio, Robert Attansio, Peter Calabrese, and Patrick Romanello into the second trial group ("Urso II").
Urso is a multi-defendant prosecution of alleged members of the Bonanno crime family under, inter alia, the Racketeer Influenced and Corrupt Organizations Act, 8 U.S.C. §§ 1961 et seq. ("RICO"). The Urso superseding indictment, dated January 20, 2004, alleges that the 28 charged defendants participated in a RICO conspiracy involving, inter alia, loansharking, illegal gambling, mail fraud, and murder, in furtherance of the Bonanno organized crime family ("Bonanno OCF"). (See Superseding Indictment ("S-1") ¶¶ 1-12.) In a letter dated June 21, 2004, after accepting pleas from all defendants not charged with murder, the Government requested dividing the remaining sixteen defendants into five different trial groups. (Gov't Ltr., dated June 21, 2004.) Since that time, four more defendants have pled guilty, leaving a total of twelve defendants: Baldassare Amato and Anthony Basile (charged with the predicate act murders of Infanti, Tomasulo, DiFalco, and Perrino); Michael Cardello, Peter Cosoleto, Joseph DeSimone, and John Palazzolo (charged with the predicate act murders of Coglitore, Mauro, and Perrino); Steven LoCurto and Richard Riccardi (charged with the predicate act murders of Napolitano, Capasio and Platia); Patrick Romanello (charged with the predicate act murders of Mazzeo and Tuzzio); and Louis Attanasio, Robert Attanasio, and Peter Calabrese (charged with the predicate act murder of Bonventre). (See id.)
Six of these defendants have been separated at the government's request into the first trial group, which contains Amato, Basile, Cardello, Cosoleto, DeSimone, and Palazzolo. The remaining defendants are LoCurto, Riccardi, Romanello, Louis Attanasio, Robert Attanasio, and Calabrese, the trial(s) of whom the court has not yet scheduled.
In April 2005 Urso I defendants Barbieri, Cosoleto, DeSimone and Palazzolo moved for severance from the trial of co-defendants Amato, Basile and Cardello, because they are charged with different predicate acts of murder. In my Memorandum and Order, dated May 3, 2005 ("May 3, 2005 M&O"), I denied those motions, finding that the jury will be capable of "sorting out what evidence bears on the guilt of any single defendant," that the trial will be relatively small and uncomplicated, and that as all defendants are charged with participation in at least one murder, that the danger of the jury imputing the culpability of defendants "charged with especially serious crimes to others charged with less serious crimes is absent here." (Urso slip op., May 3, 2005, at 20.)
On January 11, 2006, I issued an order directing the parties to discuss whether the trials of defendants should be consolidated into one joint trial, scheduled to begin on or about May 8, 2006. (Order, dated January 11, 2006.) Prior to the status conference, the government proposed consolidating all defendants into a single trial, estimating that such a trial would last up to three and a half months. (Gov't Ltr., dated Jan. 20, 2006, at 3.)
At the January 21, 2006 status conference, a number of defendants put their objections to consolidation on the record. Defendants argued that the joinder of all defendants in a single trial would prejudice defendants because the resulting proceeding would be an unmanageable "mega-trial" disapproved of by the Second Circuit, and cause undue "spillover" evidence which would substantially prejudice the defendants. (Transcript of Status Conference, dated Jan. 23, 2006 ("S.C. Tr."), at 8-10, 14-15, 16-17, 21, 28.) Defense counsel for Louis Attanasio, Robert Attanasio, Calabrese, DeSimone,*fn1 and Romanello said that the change in the scope of representation of a defendant in such a trial might require them to withdraw if defendants were tried jointly. (S.C. Tr. 10-11, 14-16).
After the status conference, counsel for Romanello wrote to the court and moved for a separate trial from other Urso defendants, arguing that Romanello is the only defendant implicated in the Mazzeo and Tuzzio murder predicate acts, and stating that if the trial of Romanello were consolidated with any other defendant, that counsel may need to withdraw. (Romanello Ltr., dated Jan. 24, 2006, at 1-2.)
Related to the trial schedule of Urso defendants, on January 6, 2006, Riccardi moved for this court to reconsider the pretrial detention order of Magistrate Judge Robert M. Levy, issued December 3, 2004. (Riccardi Ltr., dated Jan. 6, 2006, at 1.) In his motion, defense counsel argues that Riccardi's pretrial detention, which began in January, 2005, is excessive and violative of his due process rights. (Id. at 1-2.)
A. Consolidation of Defendants into Two Trial Groups
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." Fed. R. Crim. P. 8(b). 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." Fed. R. Crim. P. 14. The trial judge's discretion provided for in 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). Accordingly, "it 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.).
Despite the Second Circuit's deference to the consolidation decisions of trial courts, the Second Circuit has admonished district courts to avoid large, complicated, multi-defendant "mega-trials" whenever possible. United States v. Casamento, 887 F.2d 1141, 1152-53 (2d Cir. 1989). A trial judge considering whether to consolidate the trials of a large number of defendants should obtain from the government an estimate of the trial length, and if the prosecutor provides a good faith estimate that the trial will exceed four months, the judge "should oblige the prosecutor to present a reasoned basis to support a conclusion that a joint trial of all the defendants is more consistent with the fair administration of justice than some manageable division of the case into separate trials for groups of ...