The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge
Defendants Michael Mancuso, Anthony Indelicato, Anthony Donato, and Anthony Aiello are charged in a seventeen-count Superseding Indictment ("the Indictment")*fn1 with, inter alia, racketeering, racketeering conspiracy, murder-in-aid-of-racketeering, murder-in-aid-of-racketeering conspiracy, assault-in-aid-of-racketeering, and extortionate collection of credit. Defendants are currently scheduled to proceed to trial on these charges in mid-September 2008. Defendants' various pre-trial motions and the Government's motion to empanel an anonymous and partially sequestered jury are now before the court.
The court considers each of the pending motions in turn. While some of Defendants' motions are joined by all Defendants, others are joined by only some Defendants or are made individually by a single Defendant. For the sake of clarity, I will address the motions in the order presented in the Government's response brief, which is responsive to all Defendants' motions. I will then address the Government's motion for a sequestered jury.
For the reasons set forth below, Defendants' motions are denied except where the court has deferred decision. The Government's motion for an anonymous and partially sequestered jury is granted.
I. Motions to Dismiss Counts of the Indictment
Both Indelicato and Donato move to dismiss certain counts of the Indictment. An indictment is sufficient if it (1) contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and (2) enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998) (citation omitted). "An indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." Id. The court must accept all factual allegations in the Indictment as true on a pre-trial motion to dismiss, and such a motion is not the appropriate vehicle to address the sufficiency of the Government's evidence. Id. at 777.
A. Indelicato's Motion to Dismiss Count One (Racketeering)
Indelicato contends that the racketeering count against him should be dismissed because the first racketeering act in support of that count - conspiracy to murder and murder of Frank Santoro - is not related to the affairs of the enterprise as required by 18 U.S.C. § 1962(c).*fn2
(Defendant Anthony Indelicato's Memorandum in Support of Motion to Dismiss Count One of the Indictment ("Indelicato's Br.") at Unnumbered 2.) More specifically, Indelicato argues that the Government has not alleged that the Santoro murder was an approved activity of the Bonanno enterprise, but instead has alleged that it was motivated by Vincent Basciano's personal desire to protect his son from a possible kidnapping. (Id. at Unnumbered 3-4.)
To prove racketeering under the Racketeering Influenced Corrupt Organizations Act ("RICO"), the Government must prove, among other things, a "pattern of racketeering activity" which requires a showing of "at least two acts of racketeering activity, one of which occurred after the effective date of this [statute] and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity." 18 U.S.C. § 1961(5). To prove a pattern of racketeering activity, "a . . . prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity." United States v. Daidone, 471 F.3d 371, 375 (2d Cir. 2006) (citation omitted). The concept of relatedness requires that the predicate acts be related to one another ("horizontal" relatedness) and that they be related to the enterprise ("vertical" relatedness). Id. To show vertical relation to the RICO enterprise, the government must establish (1) that the defendant "was enabled to commit the predicate offenses solely by virtue of his position in the enterprise or involvement in or control over the affairs of the enterprise," or (2) that "the predicate offenses are related to the activities of that enterprise." Id.
The Indictment alleges in Count One that Indelicato, as an associate of the Bonanno family enterprise, "knowingly and intentionally conducted and participated, directly and indirectly, in the conduct of the affairs of [the Bonanno family] enterprise through a pattern of racketeering activity . . . consisting of the racketeering acts set forth below." (S-9 at ¶ 25.) The Indictment then alleges in racketeering act two that Indelicato conspired to murder and murdered Frank Santoro. (Id. at ¶¶ 29-31.) Taking these allegations as true, as the court must, they sufficiently allege the required element that the Santoro murder was related to the affairs of the Bonanno family enterprise. Thus, the allegations satisfy the minimal requirements for the sufficiency of an indictment. See Alfonso, 143 F.3d at 776.
Indelicato's argument that dismissal is required because the murder was motivated at least in part by Basciano's personal animus and because it was unsanctioned by the enterprise is unavailing. First, the court may not attempt to predict or assess, at the pre-trial stage, what the Government's evidence regarding the Santoro murder's relatedness to the Bonanno family enterprise will be in this case. See United States v. Dellacroce, 625 F.Supp. 1387, 1390 (E.D.N.Y. 1986) (government need not prove until trial that defendants' racketeering acts were done in the conduct of the affairs of the enterprise); see also United States v. Pisani, 590 F. Supp. 1326, 1333 (S.D.N.Y. 1984) ("If the indictment is sufficient on its face, that is, if it alleges each of the necessary elements of the offense charged, then it is not subject to dismissal on the basis of factual questions, the resolution of which must await trial.") (citation and internal quotation marks omitted). Second, in this Circuit, a conclusion that the Santoro murder was unsanctioned by the enterprise and performed to pursue an individual's own agenda does not preclude a conclusion that the act was "related" to the enterprise. See Unites States v. Locascio, 6 F.3d 924, 943 (2d Cir. 1993) ("[U]nder the law of this Circuit, it is not determinative that the defendant committed the crime to further his own agenda, if indeed he was only able to commit the crime by virtue of his position within the enterprise.").
Accordingly, Indelicato's motion to dismiss count one of the Indictment is denied.
B. Donato's Motion to Dismiss Counts Six through Eight
Counts Six through Eight charge Donato with conspiring to murder and murdering Frank Santoro in aid of racketeering, specifically "for the purpose of gaining entrance to and maintaining and increasing position in the Bonanno family," in violation of 18 U.S.C. § 1959(a)(5). Donato argues that "there is no evidence (and that the government will be unable to show) that the alleged murder had been so-motivated or even had any linkage to racketeering activity." (Defendant Anthony Donato's Memorandum of Law in Support of His and His Co-Defendants' Motions ("Donato's Br.") at 2.) Donato's argument is predicated on his view that the evidence offered by the Government against Vincent Basciano in prior trials failed to establish that the Santoro murder plot was based upon § 1959 purposes and that, as a result, no jury could "infer properly" in this case that Donato's alleged involvement was motivated by such purposes. (Id. at 3-7.)
Donato, like Indelicato, asks the court to assess the sufficiency of the Government's evidence well before any evidence against Donato has been presented. The court declines to do so. Even assuming, arguendo, that evidence of the Santoro murder presented in prior trials against Basciano was insufficient to establish § 1959 purposes, the fact has no bearing on whether the Government will be able to establish those purposes with respect to Donato and the Santoro murder in this case. Donato's reliance on United States v. Thai is unavailing because the court's conclusion that the evidence against the defendant was insufficient to support a § 1959 purpose was based upon a post-trial assessment of the evidence that had been presented at trial.
29 F.3d 785, 819 (2d Cir. 1994). It was not a pre-trial assessment based upon evidence presented against other defendants in previous trials.
Accordingly, Donato's motion to dismiss Counts Six through Eight of the indictment based upon the Government's purported inability to ...