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United States v. Urso

March 16, 2006

UNITED STATES OF AMERICA,
v.
ANTHONY URSO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Garaufis, United States District Judge.

MEMORANDUM & ORDER

Defendant Anthony Basile is charged with violations of 18 U.S.C. § 1962(d), the RICO conspiracy statute, alleging that he conspired to murder and murdered Robert Perrino, conspired to distribute marijuana, and engaged in loansharking in furtherance of a RICO enterprise. (Indictment (S-1) ¶¶ 13-15, 72, 108.) Basile moves (1) to preclude evidence of his prior marijuana conviction pursuant to Federal Rules of Evidence 401 and 403; (2) to dismiss Racketeering Acts 27 (Conspiracy to Distribute Marijuana) and 49 (Loansharking Conspiracy) of the RICO conspiracy; and (3) to open the grand jury minutes, or in the alternative for in camera review of the minutes. For the reasons set forth below, Basile's motion for in camera review of the grand jury minutes is GRANTED, and his motions to preclude evidence of a prior conviction, to dismiss Racketeering Acts 27 and 49 , and to open the grand jury minutes are DENIED.

I. Factual Background

Anthony Basile is a defendant in a multi-defendant prosecution in which the Government alleges that Basile was involved in a number of illegal acts, including murder, marijuana distribution, and loansharking in furtherance of the Bonanno organized crime family ("OCF"). In the current indictment, he is alleged to have participated in three racketeering predicate acts in furtherance of the Bonanno OCF: Racketeering Act ("RA") 27 (conspiracy to distribute marijuana from 1990 to 1993), RA 33 (conspiracy to murder and murder of Robert Perrino in 1992), and RA 49 (extortionate extension and collection of credit ("loansharking") from 2002 to 2003). (S-1 ¶¶ 13-15, 72, 108.) The relevant facts of the marijuana distribution and loansharking predicate acts that are the basis of Basile's instant motions follow.

A. Marijuana Distribution

Basile is charged in Racketeering Act 27 with the following: In or about and between January 1990 and May 1993, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendant ANTHONY BASILE, together with others, knowingly and intentionally conspired to distribute and possess with intent to distribute a controlled substance, which offense involved a substance containing marijuana . . . . (S-1 ¶ 72.) This indictment mirrors the indictment in United States v. Puglisi, No. 92-CR-1008 (E.D.N.Y. 1995) (Seybert, J.), in which Basile and two co-defendants were convicted of conspiracy to distribute marijuana. In Puglisi, the government alleged that:

In or about and between January 1990 and October 1992, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendants FREDERICK PUGLISI, SILVERIO ROMANO, also known as "Sal," ANTHONY BASILE, and others, did knowingly and intentionally conspire to possess with the intent to distribute 1000 kilograms or more of a substance containing a detectable amount of marijuana . . . . (Basile's Mot. Preclude, dated Sept. 22, 2005, at 5-6; see also App., at 3.)

On April 6, 2005, Basile moved to dismiss the marijuana distribution conspiracy predicate act (RA 27) on due process grounds, arguing that the Puglisi conviction involved a different conspiracy than the conspiracy alleged in the instant indictment, and that the government's theory that the marijuana distribution scheme in Puglisi furthered the Bonanno OCF was irreconcilable with the government's theory in Puglisi. By Memorandum and Order dated May 3, 2005, I denied Basile's motion, ruling that the Puglisi and current indictments were reconcilable on the theory that the marijuana distribution advanced both the Puglisi and Bonanno enterprises. (Memorandum and Order, dated May 3, 2005 ("May 3, 2005 M&O"), at 10-11.)

B. Loansharking

The Urso indictment charges Basile with loansharking as a predicate act and in two substantive counts. The racketeering act and substantive counts charge Basile with the same allegation under different criminal statutes: "In or about and between January 2002 and December 2003, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendant ANTHONY BASILE, together with others, knowingly and intentionally [extended and collected extortionate] extensions of credit." (S-1 ¶¶ 109-10, 126-27.)

On Basile's motion, I dismissed the substantive counts as unconstitutionally vague, because the allegation did not specify the loansharking victim(s), the location(s) in which the extortionate act(s) occurred, the dates of the alleged offenses, the amount(s) of the loan(s), or the nature of the threat(s) used to collect payment. (May 3, 2005 M&O, at 13.) However, noting the less stringent pleading requirements in conspiracy cases, I found RA 49 to have been adequately pled, because it places Basile on notice of "the crime which Basile is accused of having conspired to commit." (Id. at 17.) Basile has not been re-indicted on the substantive loansharking counts.

II. DISCUSSION

A. Motion to Preclude

Basile moves this court to preclude evidence of the Puglisi conviction as irrelevant under Federal Rule of Evidence 401 to the allegations in the Urso indictment. Federal Rule of Evidence 401 considers relevant all "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. The Supreme Court explains that:

Rules 401 and 403 establish the broad principle that relevant evidence - evidence that makes the existence of any fact at issue more or less probable - is admissible unless the Rules provide otherwise. Rule 403 allows the trial judge to exclude relevant evidence if, among other things, 'its ...


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