The opinion of the court was delivered by: Garaufis, United States District Judge.
On May 11, 2007, Defendants Anthony Aiello ("Aiello"), Anthony Donato ("Donato"), Anthony Indelicato ("Indelicato"), and Michael Mancuso ("Mancuso") (collectively "Co-defendants" or "Non-capital Defendants") moved to sever their upcoming joint trial from that of Defendant Vincent Basciano ("Basciano"). (Docket Entry #295.) On May 22, 2007, Basciano joined the motion (Docket Entry #299); on July 9, 2007, the Government responded in opposition (Docket Entry #308); and on October 5, 2007, Co-defendants filed their reply (Docket Entry #322). The parties attended a conference before this court on October 9, 2007, at which, among other issues, the motion to sever was discussed and the parties offered brief additional argument in support of their positions. For the reasons set forth below, Defendants' motion to sever is GRANTED.
In 2004, Basciano and Donato were indicted by superseding indictment under docket number 03-cr-929 on several counts of racketeering. (Docket Entry #165 (November 18, 2004 Superseding Indictment).) Basciano alone was charged with conspiracy to murder and with the murder of Frank Santoro. (Id.) Donato pleaded guilty and Basciano proceeded to trial. On May 9, 2006 a jury found Basciano guilty of racketeering conspiracy but deadlocked on the conspiracy to murder and the murder of Frank Santoro charges. At a July 2007 retrial, a jury found Basciano guilty of all charges pertaining to the Santoro murder.
In the meantime, on January 26, 2005, the Government indicted Basciano and Dominick Cicale under docket number 05-060, which initiated the instant case. (Docket Entry #1, January 26, 2005 Indictment.) The Indictment charged Basciano and Cicale with murder in aid of racketeering of Randolph Pizzolo and charged Basciano with solicitation to murder Assistant United States Attorney Greg Andres ("Andres"), who prosecuted the 03-cr-929 case. (Id.) Both allegations were based upon consensually recorded conversations with Joseph Massino, then-Boss of the Bonanno crime family. (Id.) After Cicale pleaded guilty pursuant to a cooperation agreement, the Government filed an 18-count superseding indictment against the current defendants. (Docket Entry #170.)
Count One of the Superseding Indictment charged Basciano, Indelicato, and Aiello with racketeering. (Id. at 9.) As racketeering acts in support of Count One, the indictment charged, inter alia, Indelicato with the Santoro murder, Basciano and Aiello with the murder of Randolph Pizzolo, and Basciano alone with solicitation to murder Andres. (Id. at 10-11.) In separate counts, Basciano, Mancuso, and Aiello were charged with conspiring to murder and murdering Pizzolo in aid of racketeering, and Indelicato and Donato were charged with murdering Santoro in aid of racketeering. (Id. at 20-24.) Basciano, of course, has not been charged in connection with the Santoro murder in this case due to his prior conviction for that murder. All five defendants were eligible to receive the death penalty.
On April 2, 2007, the Government informed the court that the Attorney General had decided to pursue the death penalty against Basciano but would not do so against any of the other defendants. (Docket Entry #284.)
Rule 14 of the Federal Rules of Criminal Procedure allows a trial court to grant a severance "if it appears that a defendant or the prosecution is prejudiced by a joinder . . . of defendants . . . for trial together," Fed. R. Crim. P. 14, and that decision is within the "sound discretion" of the district court, United States v. Lasanta, 978 F.2d 1300, 1306 (2d Cir. 1992). Nevertheless, "[t]here is a preference in the federal system for joint trials of defendants who are indicted together" because, in general, they promote efficiency and serve the interests of justice. Zafiro v. United States, 506 U.S. 534, 537 (1993); see also United States v. Cardascia, 951 F.2d 474, 483 (2d. Cir. 1991) (noting that the risk of some slight prejudice to co-defendants is deemed outweighed by concerns for judicial economy, 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). Joint trials are "often particularly appropriate in circumstances where the defendants are charged with participating in the same criminal conspiracy." United States v. Spinelli, 352 F.3d 48, 55 (2d Cir. 2003).
The Supreme Court has instructed that a district court should grant severance under Rule 14 "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 or innocence." Id. at 539; see also United States v. Sampson, 385 F.3d 183, 190 (2d Cir. 2004) ("[I]n order to prevail, the defendant must show not simply some prejudice but substantial prejudice" (emphasis in original) (internal quotation marks and citation omitted). The Zafiro Court identified a non-exhaustive set of situations in which such a risk might occur:
Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a co-defendant. For example, evidence of a co-defendant's wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened. Evidence that is probative of a defendant's guilt but technically admissible only against a co-defendant also might present a risk of prejudice. Conversely, a defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial.
Zafiro, 506 U.S. at 539 (citations omitted).
The Court also noted that a determination of prejudice requires a case by case determination and that limiting instructions "often will suffice" to cure the risk of prejudice.*fn1 Id. Even so, this circuit has counseled that the presumption that jurors will adhere to limiting instructions "fades when there is an overwhelming probability that the jury will be called upon to perform humanly impossible feats of mental dexterity." United States v. McDermott, 245 F.3d 133, 139-40 (2d. Cir. 2001) (noting that in a case where prejudicial spillover is "overwhelming," jury instructions cannot be presumed to be effective). Finally, in a racketeering conspiracy case, evidence produced against other co-defendants is often admissible against all defendants to show evidence of the conspiracy, even when certain ...