The opinion of the court was delivered by: Townes, United States District Judge
The government has filed a second superseding indictment in which defendants Michael Angelo Souza, Michael Bolino, Shelton Willis, Emanuel Ruta, and Stuart Dugan are charged.
The defendants filed a number of pretrial motions. Although the filing of defendants' motions preceded the return of the superseding indictment, the substance of those motions and the indictment remain unaffected by the supersedure. The Court held oral argument on February 19, 2008.
Certain defendants seek to have the pretrial motions and other forms of relief filed by the remaining defendants attributed to them as well. To ensure that all defendants may raise every feasible motion on their respective behalf, such request is granted, provided that the motions sought to be subsumed are not inconsistent with the issues already posed by the requesting defendants.
The introduction to the indictment describes and identifies the alleged enterprise, pursuant to 18 U.S.C. §1961(4), as the Colombo Crime Family. The Colombo family is described as a violent criminal enterprise which is part of La Cosa Nostra, the Mafia, or the Mob.
Count One charges the substantive count of racketeering against Souza and lists five predicate acts: the extortionate extension of credit conspiracy; marijuana distribution conspiracy; and extortionate collections of credit against three victims.
Count Two charges a racketeering conspiracy against Souza.
Count Three charges defendants Bolino, Willis, and Souza with conspiracy to commit assault in aid of racketeering against John Doe # 4.
Count Four accuses Souza of using, carrying, and possessing a firearm in connection with the conspiracy to commit assault in aid of racketeering.
Count Five charges Souza, Bolino, and Ruta with conspiring to make extortionate extensions of credit.
Count Six charges Bolino with illegal gambling, specifically sports betting in violation of New York state law.
Count Seven charges Souza with conspiring to distribute and to possess with intent to distribute marijuana.
Count Eight charges Willis and Dugan with conspiracy to commit robbery of an individual at a Staten Island home.
Count Nine charges Willis and Dugan with using, carrying, and possessing a firearm in connection with the Staten Island robbery.
Count Ten charges Bolino with bank robbery conspiracy.
Count Eleven charges Willis with robbery conspiracy.
Count Twelve charges Willis with using, carrying, and possessing a firearm in connection with the attempted robbery of an individual at a Connecticut residence.
Count Thirteen charges Souza, Bolino, and Ruta with conspiring to use extortionate means to collect extensions of credit from John Doe # 1.
Count Fourteen charges Souza, Bolino, and Ruta with using extortionate means to attempt to collect extensions of credit from John Doe # 1.
Count Fifteen charges Souza with using extortionate means to collect and attempt to collect extensions of credit from John Doe # 2.
Count Sixteen charges Souza with using extortionate means to collect and attempt to collect extensions of credit from John Doe # 3.
Count Seventeen charges Willis with conspiring to distribute 50 grams or more of a mixture or substance containing cocaine base.
I. DISCOVERY AND INSPECTION PURSUANT TO RULE 16 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
Defendants make numerous requests for discovery from the government of certain documents and other items. These motions are granted, in part, and denied, in part.
A. The government is ordered to disclose any documents and tangible objects which belong to or were taken from defendants. Rule 16(a)(1)(E).
B. The government is ordered to disclose defendants' prior convictions, if any. Rule 16(a)(1)(D).
C. The government is ordered to disclose "any relevant written or recorded statements made by the defendants . . . within the possession, custody or control of the government." Rule 16(a)(1)(B).
D. Defendants' motion for pretrial disclosure of the substance of any hearsay statements the government intends to offer at trial is denied. The Court will resolve any dispute concerning the admissibility of any co-conspirator statement at trial, consistent with well-established practice.
E. Defendants' request that the Court order the government to disclose before trial any hearsay statements made by defendants' ostensible co-conspirators is denied. See In re U.S., 834 F.2d 283, 286-87 (2d Cir. 1987).
F. Notice of intent to use Rule 404(b) evidence: See paragraph VII, infra.
G. Defendants move generally, pursuant to Rule 16(a)(1)(E)(i), for an order requiring the government to disclose documents and tangible objects material to the preparation of their defense. The motion is denied. Defendants have the burden to make a prima facie showing that the evidence sought is material. United States v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991). Defendants' claims that the unidentified items they seek are material is not sufficient to satisfy their burden. See United States v. Persico, 447 F.Supp.2d 213, 217-18 (E.D.N.Y. 2006).
Motions for discovery of documents and objects that the government intends to offer as evidence in its case-in-chief are granted. See Rule 16(a)(1)(E)(ii).
H. Defendants' motions for discovery of written statements of all persons the government does not intend to call as witnesses at trial are denied. A defendant is only entitled to disclosure of statements expressly authorized by Rule 16 or otherwise discoverable as exculpatory under Brady, or as impeaching under 18 U.S.C. § 3500.
A criminal defendant is not entitled to know everything that the government investigation has unearthed when such information is not used against him at trial. United States v. Arroyo-Angulo, 580 F.2d 1137 (2d Cir. 1978), cert. denied, 439 U.S. 913 (1978). The government is duty-bound to disclose to defendant exculpatory evidence if it exists. See United States v. Ruggiero, 472 F.2d 590 (2d Cir. 1973), cert. denied, 412 U.S. 939 (1973).
I. Defendants seek copies of "any and all written reports of any scientific analysis or chemical analysis conducted by the government" or its agents. Their motion is granted in that the government is ordered to provide to defendants copies of all reports of examinations and tests encompassed by Fed. R. Crim. P. 16(a)(1)(F) conducted by or at the direction of the government or its agent. Additionally, the government is directed to provide the object, item, or substance tested for independent expert analysis by defendants.
J. Motions for reports of handwriting or voice exemplars or tests, and fingerprint impression comparisons, which the government intends to offer in evidence or use at trial, are granted to the same extent as the motion is granted in paragraph I, above.
K. Defendants' request for grand jury testimony is granted to the extent that a defendant seeks a transcript of his own grand jury testimony. See Fed. R. Crim P. 16(a)(1)(A). In addition, defendants have the right to the grand jury testimony of any witness the government calls at trial after the witness has testified on direct examination. See 18 U.S.C. § 3500; Fed. R. Crim. P. 26.2(f)(3). On the basis of their applications, defendants are not otherwise entitled to inspect grand jury minutes.
II. MOTIONS TO DISMISS THE INDICTMENT; DEMAND FOR A BILL OF PARTICULARS
A. Motions to Dismiss the Indictment by Ruta and Souza are Denied
Ruta moves to dismiss the three charges against him, or, in the alternative, for a bill of particulars. The superseding indictment charges Ruta with one count of Extortionate Extension of Credit Conspiracy in violation of 18 U.S.C. §§ 892(a) and 3551 (Count 5); one count of Extortionate Collection of Credit Conspiracy in violation of 18 U.S.C. §§ 894 (a)(1) and 3551 (Count 13); and one count of Extortionate Collection of Credit in violation of 18 U.S.C. §§ 894 (a)(1), 2 and 3551 et seq. The victim in Counts 13 and 14 is identified as John Doe # 1.
In or about and between January 2004 and September 2006, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendants Souza, . . ., Bolino, . . ., Ruta, . . . together with others, knowingly and intentionally conspired to make extortionate extensions of credit.
In or about and between August 2006 and September 2006, . . ., within the Eastern District of New York and elsewhere, the defendants Souza . . ., Bolino, . . ., and Ruta, . . . together with others, did knowingly and intentionally conspire to use extortionate means to collect and attempt to collect extensions of credit from John Doe # 1, an individual whose identity is known to the grand jury. Count Fourteen reads:
In or about and between August 2006 and September 2006, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendants [Souza, Bolino and Ruta], together with others, knowingly and intentionally used extortionate means to attempt to collect extensions of credit from John Doe # 1, an individual whose identity is known to the grand jury.
Ruta principally argues that the loansharking charges "do not state facts sufficient to constitute an offense against the United States, do not state in plain, concise, and definite language the essential facts constituting the offenses charged, and do not inform the defendant of the nature of the accusation against him in such a manner as to enable him to prepare a defense." (Ruta Mot. at 11). Ruta principally relies on United States v. Urso, 369 F.Supp.2d 254 (E.D.N.Y 2005). There the district court dismissed two counts of an Indictment alleging loansharking violations. Urso, 369 F.Supp.2d at 266.
It is firmly established that "an indictment is sufficient when it charges a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events." United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992). The Second Circuit "requires that an indictment contain some amount of factual particularity to ensure that the prosecution will not fill in elements of its case with facts other than those considered by the grand jury." United States v. Walsh, 194 F.3d 37, 45 (2d Cir. 1999) (quoting United States v. Abrams, 539 F. Supp. 378, 384 (S.D.N.Y. 1982)). A criminal defendant is entitled to an indictment that is "a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(C).
Ruta's motion to dismiss the charges against him fails. Here, unlike the indictment found to be deficient in Urso, the charges against Ruta name the victim, John Doe #1 and identify Ruta's co-conspirators in the charged crimes. Recently, the government identified John Doe # 1, a gentlemen whom the government states is "referenced in wiretap call 492, among other calls." At this point, all defendants know the identity of John Doe # 1. Moreover, the indictment adequately tracks the ...