The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.
Defendant Vincent Basciano ("Basciano") is charged in a superseding indictment with various crimes stemming from his alleged participation in the activities of the Bonanno organized crime family. (See S-9 Superseding Indictment ("S-9 Indictment") (Docket Entry # 464).)*fn1 The Government seeks the death penalty. On June 26, 2009, the court heard five-and-a-half-hours of oral argument on the dozens of pretrial motions made by the Defendant. (See ("Arg. Tr.") Docket Entry # 723.) The motions fall into three broad categories: general pretrial motions, discovery motions, and penalty-phase specific motions.*fn2 As set forth below, Basciano‟s motions are granted in part and denied in part.
For the purpose of these motions, the current criminal action against Basciano is referred to as "Basciano II." United States v. Basciano, 05-CR-060 (NGG) (E.D.N.Y.). Basciano was also a defendant in an earlier criminal action before this court, which is referred to throughout this opinion as "Basciano I." United States v. Basciano, No. 03-CR-929 (NGG) (E.D.N.Y.). The fact that Basciano was previously tried and convicted in Basciano I is relevant to a number of the Basciano II motions addressed herein.
The court cites to the following submissions by Basciano: Def.‟s Mem. in Support of Basciano‟s Motions to Dismiss the Aggravating Factors Noticed by the Gov‟t and to Preclude the Gov‟t from Seeking the Death Penalty ("Def. Death Penalty Mem.") (Docket Entry # 311); Def.‟s Mem. in Support of Motion to Suppress the "Massino" Tapes and to Dismiss the Indictment ("Def.‟s Massino Suppression Motion") (Docket Entry # 502); Def.‟s Reply Mem. in Support of Motions to Suppress ("Def.‟s Massino Suppression Reply") (Docket Entry # 527); Def.‟s Mem. in Support of Motion to Supplement Motion to Suppress ("Def. Suppression Supp. Motion Mem.") (Docket Entry # 576); Def.‟s Motion for Material Witness Orders and Warrants of Jan. 11, 2009 (Docket Entry # 601); Affirmation of Lawrence Mark Stern of Jan. 11, 2009 ("Stern Aff.") (Docket Entry # 601); Def.‟s Mem. in Support of Def.‟s Motion for Material Witness Orders and Warrants of Jan. 11, 2009 ("Def. Witness Mem.") (Docket Entry # 601); Def.‟s Letter of Jan. 30, 2009 ("Def.‟s Massino Reply Letter") (Docket Entry # 622); Def.‟s Mem. in Support of Pretrial Motions ("Def. Pretrial Mem.") (Docket Entry # 631); Def.‟s Letter of May, 19, 2009 (Docket Entry # 689); Def.‟s Reply Mem. in Support of Pretrial Motions ("Def. Pretrial Reply") (Docket Entry # 694); Def.‟s Letter of May 31, 2009 (Docket Entry # 702); Transcript of Oral Argument on June 26, 2009 ("Arg. Tr."); Def.‟s Letter of July 13, 2009 (Docket Entry # 726); Attorney‟s Supporting Declaration of Aug. 19, 2009 ("Goltzer Reyes Decl.") (Docket Entry # 770); Def.‟s Mem. in Support of His Motion to Compel Immunity for D. Reyes ("Def. Reyes Immunity Motion") (Docket Entry # 770); Def.‟s Letter of Sept. 16, 2009 (Docket Entry # 785); Def.‟s Supplemental Mem. in Support of Pretrial Motions ("Def. Supp. Pretrial Mem.") (Docket Entry # 907-2); Reply Mem. in Support of Pretrial Motions ("Def. Supp. Pretrial Reply") (Docket Entry # 934.); Def.‟s Letter in Opp. to the Gov‟t‟s Letter Regarding Def.‟s Request to be Transferred to the MDC (Docket Entry # 971); Def.‟s Letter Motion that Vincent Basciano be Immediately Returned to MDC (Docket Entry # 973); Def.‟s Letter Addendum to Motion for Transfer (Docket Entry # 975); Def.‟s Letter in Further Support of an Order Directing the Def. be Transferred Back to the MDC ("Def. Nov. 29, 2010 Letter") (Docket Entry # 976); Def.‟s Motion to Compel Vacatur of SAM, Hearing, and Bill of Particulars ("Def. Vacatur Motion") (Docket Entry # 979); Def.‟s Letter of December 28, 2010 (Docket Entry # 1009); Def.‟s Reply to Motion to Compel (Docket Entry # 1015); Def‟s Letter of Jan. 10, 2011 (not yet filed on ECF).
The court cites to the following submissions by the Government: Gov‟t‟s Mem. in Opp. to Def.‟s Motion to Suppress the "Massino Tapes" and Dismiss the Indictment ("Gov. Massino Suppression Opp.") (Docket Entry # 516); (Gov‟t‟s Letter of Sept. 22, 2008 ("Voluntary Disclosure") (Docket Entry # 528); Gov‟t‟s Letter of Jan. 23, 2009 ("Massino Opp. Letter") (Docket Entry # 611); Gov‟t‟s Letter of Feb. 19, 2009 ("Particulars Production") (Docket Entry # 639); Gov‟t‟s Mem. in Opp. to Def.‟s Pretrial Motions ("Gov. Pretrial Opp.") (Docket Entry # 668)); Gov‟t‟s Letter of June 29, 2009 (Docket Entry # 715); Gov‟t‟s Mem. in Opp. to Supplemental Pretrial Motions ("Gov. Supp. Pretrial Opp.") (Docket Entry # 923); Gov‟t‟s Motion In Limine to Admit Certain Evidence and to Preclude Certain Evidence and Arguments at Trial ("Gov. In Limine") (Docket Entry # 945); Gov‟t‟s Letter in Response to the Def.‟s Letter Application Directing Basciano‟s Transfer to MDC (Docket Entry # 967); Gov‟t‟s Letter Regarding the MCC‟s Legal Visiting Conditions (Docket Entry # 978); Gov‟t‟s Response to Motion to Compel (Docket Entry # 1012); Gov‟t‟s Letter of Jan. 5, 2011 (Docket Entry # 1013).
In the current operative indictment, the S-9 Indictment, Basciano is charged with numerous criminal acts arising from his actions as the "acting boss" of the Bonanno organized crime family. (See S-9 Indictment.) The charges in the S-9 Indictment relate to Basciano‟s continued involvement in the Bonanno crime family during his incarceration, following his arrest in Basciano I on November 19, 2004. (See Memorandum & Order of Oct. 14, 2008 ("Double Jeopardy Order") (Docket Entry # 540) at 6.)
In Basciano I, Basciano was twice tried and convicted by jury. The charges in that case stemmed from his participation in the Bonanno organized crime family from 1979 through 2004. (See Double Jeopardy Order at 2-3.) On May 9, 2006, a jury found Basciano guilty of a racketeering conspiracy in violation of 18 U.S.C. § 1962(d), including predicate acts of illegal gambling and the attempted murder of David Nunez. (See Jury Verdict, Basciano I (Docket Entry # 749).) Under a superseding indictment, Basciano was re-tried on charges for which no verdict had been reached in the first trial. A second jury found him guilty of substantive racketeering, including predicate acts of illegal gambling, conspiracy to distribute marijuana, solicitation to murder Salvatore Vitale and Dominick Martino, and conspiring to murder and murdering of Frank Santoro. (See Basciano I, Jury Verdict (Docket Entry # 981).) The jury also found Basciano guilty of three counts of illegal gambling and one count of conspiracy to distribute marijuana. (Id.) The various charges in the indictments in Basciano I related to Basciano‟s "expansive involvement in the livelihood of the Bonanno organization." (See Double Jeopardy Order at 11; see also id. at 2-3.) On April 7, 2008, the court entered judgment against Basciano, sentencing him to a term of life imprisonment. (See Basciano I, Docket Entry # 1073.) Basciano is designated by the Bureau of Prisons to serve his life sentence in the Administrative Maximum Facility of the Florence Federal Correctional Complex ("Florence Supermax").
(Docket Entry # 889.) The Second Circuit has thus far upheld Basciano‟s conviction. See United States v. Basciano, 384 F. App‟x. 28 (2d Cir. 2010); (Basciano I, Docket Entry # 1075, 1164).
Here, in Basciano II, the indictment was first filed on January 26, 2005. (Indictment (Docket Entry #1).) Over the course of this case, the indictment has been superseded several times. The current operative indictment, the S-9 Indictment, charges Basciano with four separate crimes. Counts Three and Four of the S-9 Indictment charge Basciano with allegedly conspiring to murder and murdering Randolph Pizzolo in aid of racketeering in violation of 18 U.S.C. § 1959(a). (Id. ¶¶ 52-56.) Pizzolo was killed on or about November 30, 2004. (Id. ¶ 56.) The Government has filed a Notice of Intent to Seek the Death Penalty ("Notice of Intent") against Basciano, should he be convicted of murdering Pizzolo in aid of racketeering under Count Four.*fn3
(See Docket Entries ## 284, 294, 938; S-9 Indictment ¶¶ 73-74.) The Eighth Superseding Indictment ("S-8 Indictment"), which was filed on November 15, 2007, was the first indictment to include the Notice of Special Findings, which sets forth the Statutory Aggravators and Gateway Factors that must be found by the jury at the penalty phase of the capital trial. (Docket Entry # 358.) Count Five charges Basciano with knowingly and intentionally possessing a firearm in relation to the crimes of violence charged in Counts Three and Four, in violation of 18 U.S.C. § 924(c). (See S-9 Indictment ¶ 57.) Finally, Count Nine charges Basciano with conspiring to murder Patrick DeFilippo in aid of racketeering in violation of 18 U.S.C. § 1959(a)(5). (See id. ¶¶ 63-64.)*fn4
Basciano previously moved to dismiss several of the charges against him in this case on double jeopardy grounds, claiming that they "constitute a second prosecution for offenses already tried by the Government" in Basciano I. (See Double Jeopardy Order at 1.) On October 14, 2008, the court denied Basciano‟s motion, concluding that "double jeopardy does not raise a bar" to the charges in this case. (Id.) The court later denied Basciano‟s motion to reconsider its decision (see Docket Entry # 607), and Basciano took an interlocutory appeal to the Second Circuit. (See Docket Entry ## 612, 613; United States v. Basciano, No. 09-0281-cr (2d Cir.).) Basciano subsequently cited this appeal as a basis for postponing his trial date in this matter, which was scheduled to begin in September 2009. (See Order of Apr. 24, 2009 (Docket Entry # 671) at 1, 3.) To avoid "dual jurisdiction" between this court and the Court of Appeals, the court granted Basciano‟s continuance request and postponed the trial until "no sooner than 30 days after a decision by the Second Circuit in the pending appeal." (Order of June 4, 2009 ("June 4 Order") (Docket Entry # 708) at 1, 3.)*fn5 The Court of Appeals affirmed this court‟s denial of Basciano‟s motion to dismiss Counts Three and Nine of the S-9 Indictment (conspiracy to commit murder in aid of racketeering) but reversed this court‟s denial of dismissal of Count One of the S-9 Indictment (charging substantive racketeering), finding it to be barred on double jeopardy grounds. See United States v. Basciano, 599 F.3d 184 (2d Cir. 2010).
II.GENERAL PRETRIAL MOTIONS
The motions addressed in this section cover five challenges made by Basciano: (1) the disqualification of the United States Attorney‟s Office for the Eastern District of New York, and various other issues relating to alleged prosecutorial misconduct; (2) issues relating to the inclusion of the "AUSA Andres solicitation" in the S-9 Indictment; (3) Basciano‟s request to admit evidence relating to a list of names he wrote (the "List"); (4) a request to suppress conversations and tapes of conversations between Basciano and former Bonanno family crime boss Joseph Massino; and (5) renewed requests relating to the conditions of Basciano‟s confinement. The court addresses each issue in turn.
A.Alleged Prosecutorial Misconduct
Several of the issues raised by Basciano are based on what the court previously referred to as "free-wheeling theories of sinister prosecutorial motives." (See Double Jeopardy Order at 13-14 n.4.) The following facts are essential to understanding Basciano‟s prosecutorial misconduct arguments.
In Basciano I, Assistant United States Attorney Greg Andres ("AUSA Andres") served as the lead prosecutor. The court takes judicial notice that over the course of Basciano I and much of the history of Basciano II, AUSA Andres served in senior positions in the United States Attorney‟s Office for the Eastern District of New York (the "Office"), including Chief of the Criminal Division. The reason that AUSA Andres is relevant to these motions is that prior to Count One of Basciano II being stricken from the Indictment on double jeopardy grounds, Basciano was charged with a racketeering predicate act of solicitation to murder AUSA Andres. (S-9 Indictment ¶ 32.) The alleged solicitation to murder AUSA Andres occurred on or about November 23, 2004, following Defendant‟s November 19, 2004 arrest in Basciano I. (Id. ¶¶ 20, 22, 32.) Then, in May 2006, the Government alleges, though it did not charge Basciano in any version of the Basciano II indictment, that Basciano authored the List in prison which contained my name, the name of AUSA Andres, and the names of three cooperating witnesses. The Government asserts that the List was a hit list, and that Basciano had solicited the murder of those named on the list. Basciano claims that it was a "Santeria" list. Basciano‟s prosecutorial misconduct arguments rely upon these facts to challenge the impartiality of the Office and the role AUSA Andres played in the Basciano II prosecution.
1. Request to the Disqualify U.S. Attorney‟s Office
Basciano moves for the court to disqualify the Office from prosecuting this case. (See Def.‟s Mem. in Support of Pretrial Motions ("Def. Pretrial Mem.") (Docket Entry # 631) at 14-18.) Defendant argues that the entire Office is not disinterested and has "an axe to grind" with him because of the "untested allegation of Joseph Massino that Basciano solicited" the murder of AUSA Greg Andres, one of "their own." (Def. Pretrial Mem. at 14-15.) Basciano argues that every Assistant United States Attorney ("AUSA") in the Office "is subordinate to Andres and under his influence." (Def. Pretrial Mem. at 14.) Further, Basciano attempts to show the "untoward interest" of the Office‟s prosecutors, "their overly zealous pursuit of the death penalty against" him, by alleging various improprieties. (Def. Pretrial Mem. at 15-18.) Basciano contends that the "appearance of partiality and lack of disinterestedness on the part of [the Office] require their removal." (Def. Pretrial Mem. at 18.) The Government opposes this motion and rebuts Basciano‟s various claims of misconduct on the part of the Office. (See Gov‟t‟s Mem. in Opp. to Def.‟s Pretrial Motions ("Gov. Pretrial Opp.") (Docket Entry # 668) at 20-33.)
The primary asserted basis for disqualifying the Office is that Basciano was, until the Second Circuit‟s double jeopardy decision, charged in this case with a substantive racketeering predicate of soliciting the murder of a member of the Office, AUSA Andres. Basciano‟s argument for recusal of the Office is similar to his multiple arguments for my recusal which have been repeatedly rejected by both this court and the Court of Appeals.*fn6 See United States v. Basciano, 08-1699-cr, 2010 WL 2802566, at *3-4 (2d Cir. July 16, 2010); In re Basciano, 542 F.3d 950, 956-58 (2d Cir. 2008).
The Office has repeatedly represented that AUSA Andres has not participated in Basciano II. The disqualification of the entire U.S. Attorney‟s Office because AUSA Andres was the target of a crime would compromise the efficient administration of justice. See Grand Jury Subpoena of Ford v. United States, 756 F.2d 249, 254 (2d Cir. 1985) ("[I]f the disqualification of one government attorney could serve as the predicate for the disqualification of the entire United States Attorney‟s Office, the administration of justice would be irreparably damaged."). In fact, the overwhelming weight of authority counsels against disqualification of an entire U.S. Attorney‟s Office.*fn7 "[E]very circuit court that has considered the disqualification of an entire United States Attorney‟s office has reversed the disqualification." United States v. Bolden, 353 F.3d 870, 879 (10th Cir. 2003) (internal citations and quotation omitted); see also United States v. Hasarafally, 529 F.3d 125, 128 (2d Cir. 2008) ("While a private attorney‟s conflict of interest may require disqualification of that attorney‟s law firm in certain cases, such an approach is not favored when it comes to the office of a United States Attorney, or, a fortiori, to the Department of Justice as a whole.") (internal citations omitted); Cope v. United States, 272 F. App‟x 445, 449 (6th Cir. 2008) (rejecting ineffective assistance of counsel claim for failure to move to recuse prosecutor‟s office after murder threat against prosecutor, explaining that "[d]isqualifying an entire United States Attorney‟s office is almost always reversible error, regardless of the underlying merits of the case") (quoting Bolden, 353 F.3d at 876)). This strongly counsels against disqualification in this case.
An entire U.S. Attorney‟s Office should only be disqualified, if ever, when special circumstances demonstrate that the interest of justice could only be advanced by this drastic remedy. Basciano argues that special circumstances exist here, listing instances of purported Government misconduct and suggesting that these instances were motivated by the Office‟s belief that Basciano attempted to murder AUSA Andres. (See Def. Pretrial Mem. at 15-18; Transcript of Oral Argument on June 26, 2009 ("Arg. Tr.") at 24-37.) The court does not set out Basciano‟s various challenges to the Government‟s conduct here, but having reviewed them carefully, the court finds that none of them assert any particular act of bad faith or unethical conduct. They fail to rise to the level of creating the special circumstances required for recusal. Basciano has not shown that the Office possesses anything more than "the appropriate interest that members of society have in bringing a defendant to justice with respect to the crime with which he is charged." Wright v. United States, 732 F.2d 1048, 1056 (2d Cir. 1984). In this case, the drastic remedy of disqualifying an entire prosecutor‟s office is not justified.*fn8 Accordingly, Basciano‟s motion is DENIED.
2. Motion to Dismiss Indictment or to Compel Production of Grand Jury Minutes
Basciano argues that the grand jury proceedings were tainted by Government misconduct. (Def. Pretrial Mem. at 19-20.) Basciano asserts that because of this alleged Government misconduct it is appropriate for the court to review the minutes of the grand jury proceedings or to dismiss the S-9 Indictment. (Def. Pretrial Mem. at 19-20.)
Basciano alleges three different acts of Government misconduct before the grand jury. First, Basciano contends that because AUSA Andres had an interest in the prosecution, it is likely that he must have been involved in pursuing the indictment and presenting it to the grand jury. (Id. at 31-33.) Second, Basciano alleges that the grand jury to which AUSA Andres presented Basciano I was the same grand jury that indicted Basciano on charges in Basciano II. (Def.‟s Mem. in Support of Motion to Suppress the "Massino" Tapes and to Dismiss the Indictment ("Def.‟s Massino Suppression Motion") (Docket Entry # 502) at 33-36.) Because this indictment included the charge of soliciting the murder of AUSA Andres, Basciano argues that the grand jury, who may have developed a working relationship with AUSA Andres, may have been impermissibly prejudiced against Basciano. (Id.) Third, Basciano asserts that the Government Government may have "impermissibly" presented evidence of the List to the grand jury, in obtaining at least some of the Superseding Indictments in this case. (Def. Pretrial Mem. at 19-20.) Basciano contends that if the Government presented the List and argued that Basciano intended to have a federal judge and AUSA Andres killed, this would inflame the grand jury and cause prejudice. (Id.)
In response, the Government contends that Basciano‟s motion is based entirely on speculation about what may have occurred before the grand jury. (Gov‟t‟s Mem. in Opp. to Def.‟s Motion to Suppress the "Massino Tapes" and Dismiss the Indictment ("Gov. Massino Suppression Opp.") (Docket Entry # 516) at 15-19.) It also asserts that it erected a conflict wall between the prosecution teams in Basciano I and Basciano II. (Id. at 4-5, 16.) Further, the Government argues that it had no obligation to impanel a new grand jury to hear the Basciano II indictments, and that no basis has been provided to disclose the minutes of those grand jury proceedings. (Id. at 17-19.) Finally, the Government argues that Basciano offers nothing more than speculation that the List was actually shown to the grand jury, or that doing so would have been improper. (Gov. Pretrial Opp. at 33-35.)
The record does not make clear whether, in fact, the same grand jury heard both cases. Even if the Government presented both cases to the same grand jury, this in no way resolves the issue of whether the grand jury minutes should be produced or the indictment should be dismissed.
"It is axiomatic that "grand jury proceedings are accorded a presumption of regularity, which generally may be dispelled only upon particularized proof of irregularities in the grand jury process." United States v. Tranquillo, 606 F. Supp. 2d 370, 381 (S.D.N.Y. 2009) (quoting United States v. Mechanik, 475 U.S. 66, 75 (1986). "Also clear is the principle that "an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence.‟" Id. (quoting United States v. Calandra, 414 U.S. 338, 345 (1974)). There is "a tradition in the United States," codified by Federal Rule of Criminal Procedure 6, "that proceedings before a grand jury shall generally remain secret." In re Petition of Craig, 131 F.3d 99, 101 (2d Cir. 1997). Under that rule, a court may order disclosure of grand jury materials to a criminal defendant "who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." Fed. R. Crim. P. 6(e)(3)(E)(ii). To make this showing, the defendant "must demonstrate a "particularized need‟ for the materials." United States v. Ordaz-Gallardo, 520 F. Supp. 2d 516, 519 (S.D.N.Y. 2007) (citing United States v. Moten, 582 F.2d 654, 662 (2d Cir. 1978)). This is a heavy burden, since the "review of grand jury minutes is rarely permitted without specific factual allegations of government misconduct." United States v. Torres, 901 F.2d 205, 232 (2d Cir. 1990). Furthermore, "as a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants." Id. at 233 (quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988)). "[D]ismissal of the indictment is appropriate only if it is established that the violation substantially influenced the grand jury‟s decision to indict, or if there is grave doubt that the decision to indict was free from the substantial influence of such violations." Bank of Nova Scotia, 487 U.S. at 256 (internal quotation marks omitted).
Basciano‟s allegations of "government misconduct" before the grand jury are insufficient to require dismissal of the S-9 Indictment or disclosure of the grand jury minutes because they are based entirely on speculation rather than fact. As a purported example of government misconduct, Basciano speculates that AUSA Andres might also have been involved in supervising the presentation of the Government‟s case to the grand jury in Basciano II. In lieu of factual support for this allegation, Basciano makes a number of unfounded assumptions and provides a series of conjectural statements about Andres‟s possible role in Basciano II. (Def.‟s Massino Suppression Motion at 30-31.) This conjecture about AUSA Andres‟s role in the presentation of Basciano II is based almost entirely upon speculation about what it is "natural to assume" given Defendant‟s characterization of the workings of the U.S. Attorney‟s Office and AUSA Andres‟s interest in this prosecution. (Id. at 32.)
Basciano‟s argument is entirely speculative and thus is insufficient to satisfy the particularized showing required to overcome grand jury secrecy, let alone to require the dismissal of the indictment. See Ordaz-Gallardo, 520 F. Supp. 2d at 519-20 ("Defendants offer little more than speculation that some impropriety may have occurred before the grand jury that would require this case to be dismissed. Such speculation falls well short of the "particularized need‟ Defendants must show to obtain disclosure of grand jury materials."). The Government has repeatedly stated that AUSA Andres has not participated in Basciano II (see, e.g., Gov. Massino Suppression Opp. at 15-17, 15 n.2; Arg. Tr. at 38), and the Defendant has failed to make any showing sufficient for the court to reject the Government‟s representation. Accordingly, there are insufficient grounds to dismiss the charges or grant access to grand jury materials.
Basciano also argues that the indictment must be dismissed because the grand jury would have been biased by the introduction of evidence of the solicitation to murder Andres in Basciano II, because Andres had presented Basciano I to that same grand jury. (Def.‟s Massino Suppression Motion at 33-34.) Without citing any authority for the proposition, Basciano argues that the indictment should be dismissed because the "Eastern District prosecutors failed in this obligation when, instead of impaneling a separate grand jury to consider the charges ultimately brought in the "05 case, they presented the evidence relating to the Andres matter . . . to the same grand jury that had returned the indictment in the "03 case." (Def.‟s Massino Suppression Motion at 33-36.) The court finds no support for the proposition that dismissal of the indictment is required under the circumstances.
Here the Andres murder solicitation was only one predicate act included in one count of S-9 indictment, which alleges numerous serious crimes. Defendant has failed to establish a reasonable basis from which this court could conclude that, in light of the vast evidence of the Defendant‟s criminal activity that must have been considered by the grand jury, that presentation of the evidence of the Andres murder solicitation "substantially influenced the grand jury‟s decision to indict, or [that] there is grave doubt that the decision to indict was free from the substantial influence of such violations." Bank of Nova Scotia, 487 U.S. at 256 (internal quotation marks omitted). Moreover, in light of the fact that the substantive racketeering charge containing the solicitation to murder Andres has been dropped from the indictment, see Basciano, 599 F.3d 184, the concerns that prejudice infected the S-9 Indictment is further minimized.
Finally, Basciano‟s argument that the possible presentation of the List to the grand jury requires the court to dismiss the S-9 Indictment or inspect the grand jury minutes is similarly unavailing. Basciano speculates that the Government presented evidence of the List to the grand jury, thereby impermissibly prejudicing him. (Def. Pretrial Mem. at 19-20.) For support, Defendant points to the fact that the Government relied upon evidence of the List in seeking a Special Administrative Measures detention order against Basciano, and that the Government "presumably" relied upon it in deciding to seek the death penalty. (Id. at 19.) But Basciano does not explain how these other uses of the List lead to his conclusion that "it is reasonable to assume that the prosecutors deemed it important enough to present it to the grand jury that was being asked to return not only the latest superseding indictments . . . but also the special findings necessary for a death verdict." (Id. at 19-20.) Just because the Government may have deemed the List relevant in determining the appropriate conditions of confinement for Basciano, or as a factor supporting the decision to pursue the death penalty, it does not necessarily follow that the Government also must have presented the List to the grand jury.*fn9
Basciano concedes that the List was discovered after the grand jury had already charged him with every count and every predicate he is currently facing under the S-9 Indictment. (Def. Pretrial Reply at 15.) The List, therefore, could not have affected the grand jury‟s determination on the substantive charges. The only part of the S-9 indictment that Basciano claims is affected by the possible introduction of the List is the "Notice of Special Findings" included in the S-8 and S-9 Indictments. (Id.)*fn10 These Findings relate exclusively to the Pizzolo murder, charged in Count Four, and Basciano‟s past conviction of crimes "involving the use or attempted or threatened use of a firearm against another person. (S-9 Indictment ¶¶ 73-74.) Basciano, therefore, offers wholly insufficient support for his assertion that the Government must have presented the List. The court declines to examine the grand jury minutes based upon speculative theories of government overreaching. Ordering the extraordinary remedy of inspecting the minutes of the grand jury proceedings, or the more extreme remedy of dismissing the S-9 Indictment, on the basis of mere speculation about the use of the List is not warranted in this case. Further, even if the List were presented to the grand jury, Defendant could not establish that it "substantially influenced the grand jury‟s decision to indict." Bank of Nova Scotia, 487 U.S. at 256 (internal quotation marks omitted).
For the foregoing reasons, Basciano‟s motion is DENIED.
3. Motion to Strike Charges and Death Penalty Notice
Basciano argues that the S-9 Indictment should be dismissed because the Government improperly manipulated the charges against him in Basciano I and Basciano II. Specifically, he claims that the Government brought a separate indictment in Basciano I charging him with murdering Santoro, even though the Government could have included that charge in Basciano II, which was already pending at the time. (Def. Pretrial Mem. at 12.) This charging decision, according to Basciano, enabled the Government to use the conviction for Santoro‟s murder in Basciano I as a death penalty aggravator in Basciano II. (Id.) Basciano refers to this as a "stepladder prosecution." (Id.) Basciano argues that, as part of this manipulation, the Government delayed trial in Basciano II until after obtaining a conviction for the Santoro murder in Basciano I. (Id.)
Basciano has previously offered -- and the court has rejected -- similarly broad-brushed theories of prosecutorial manipulation. (See Double Jeopardy Order at 13-14 n.4.) As a factual matter, Basciano‟s theory of manipulation is not plausible because the timeline of events contradicts it. The Government charged Basciano with Santoro‟s murder in Basciano I on November 18, 2004; Pizzolo was not killed until November 30, 2004. (See Gov. Pretrial Opp. 2-4; see also Basciano I, S-2 Superseding Indictment of Nov. 18, 2004 ("Basciano I S-2 Indictment") (Docket Entry # 165) ¶¶ 43-45 (including murder of Santoro); S-9 Indictment ¶ 56 (charging Pizzolo murder as occurring on or about November 30, 2004).) Therefore, when the Government charged Basciano with the Santoro murder, it could not have made a decision to delay the prosecution of the death-eligible Pizzolo murder, because Pizzolo was still alive. Accordingly, Basciano is asking the court to conclude that "the government charged the Santoro murder to createan aggravator for a death-eligible murder that had not yet occurred." (Gov. Pretrial Opp. at 3.) The court rejects Basciano‟s illogical argument.
Basciano also argues that once the Government had sufficient evidence on which to charge the Pizzolo murder, it should have prosecuted that murder as part of its case for Basciano I, rather than as a separate case under Basciano II. Alternatively, he argues that the Government should have included the Santoro murder as part of Basciano II. These arguments are essentially identical to the argument in his double jeopardy challenge -- that the two cases are actually one case, and that the Government impermissibly split the charges into two indictments. This court previously rejected that argument, the Court of Appeals has ruled on the double jeopardy challenges to the indictment, and the court will not disturb those rulings here. See Basciano, 599 F.3d 184. The court will not invade the Government‟s prosecutorial discretion by interfering with its decisions to separately charge conduct that is distinct. The Government was within the bounds of its discretion to try the Santoro murder as part of Basciano I.
Furthermore, as a legal matter, Basciano fails to cite any authority -- and this court can find none -- for the proposition that a "stepladder" prosecution strategy, even if proven, would provide a basis for dismissal of claims. Defendant attempts to distinguish this case from United States v. Scarpa, 913 F.2d 993, 1013-14 (2d Cir. 1990), where the Court of Appeals for the Second Circuit rejected a challenge to this form of prosecutorial conduct. The Scarpa court rejected the defendants‟ arguments under two separate frameworks: double jeopardy and prejudicial preindictment delay. Any possible double jeopardy concerns in the present case have been fully resolved by the Court of Appeals in Basciano, 599 F.3d 184, so they need not be addressed here.
In regard to preindictment delay, the court in Scarpa held that to "[t]o establish denial of due process based on excessive pre-indictment delay [a defendant] bears the heavy burden . . . of showing not only that he was prejudiced by the delay but that it was so unfair as to violate fundamental concepts of fair play and decency, such as would occur if the prosecutor deliberately used the delay to achieve a substantial tactical advantage." 913 F.2d at 1014. Prejudice in this context requires a showing of the "sort of deprivation that impairs a defendant‟s right to a fair trial. This kind of prejudice is commonly demonstrated by the loss of documentary evidence or the unavailability of a key witness." United States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999). For the tactical advantage to be impermissible it must be "a course intentionally pursued by the government for an improper purpose." Id. Basciano fails to provide any support for his claim that the Government has proceeded with a deliberate strategy of delay, let alone one pursued for an improper purpose. (Def. Pretrial Mem. at 13-14.) Indeed, this court has presided over this case for several years and observes that there has not been any delay on the part of the Government that could give rise to an inference of strategic manipulation. Basciano has been responsible for a significant portion of the delay in bringing this case to trial. Furthermore, Basciano has failed to establish that his right to a fair trial has been prejudiced by the Government‟s delay. Even if the Government did intentionally separate the charges for a tactical advantage, the conspiracy to murder and murder of Frank Santoro was found beyond a reasonable doubt by a jury in Basciano I. (Basciano I, Jury Verdict (Docket Entry # 981).) It is unclear how use of this prior conviction at the present trial is impermissible or would prejudice Basciano‟s right to a fair trial.
Consequently, Basciano‟s motion to dismiss the case or, alternatively, to strike the Notice of Intent to Seek the Death Penalty is DENIED.
B.Issues Relating to the Indictment
1. Motion to Strike Surplus from the Indictment
Basciano argues that the court should strike the allegations against his co-defendants, as well as the introductory language relating to the solicitation to murder AUSA Andres, from the S-9 Indictment. (Def. Pretrial Mem. at 6-8.) Basciano argues that this material is "surplusage" that the court may strike pursuant to Federal Rule of Criminal Procedure 7(d). See Fed. R. Crim. P. 7(d) ("Upon the defendant‟s motion, the court may strike surplusage from the indictment or information."). The Government does not oppose Basciano‟s request and has stated that it will "return a superseding indictment eliminating the objected to introductory language and the reference to other defendants who have pleaded guilty" or redact the S-9 indictment with Basciano‟s consent. (Gov. Pretrial Opp. at 14 n.2; Arg. Tr. at 60.)
The motion is GRANTED as unopposed.
2. Request to Sever Count One for Separate Trial
Basciano asks the court to sever Count One from the S-9 Indictment and to try that charge separately from the other counts pending in the Indictment. (See Def. Pretrial Mem. at 1-5.) As discussed above, the Court of Appeals ordered Count One, the substantive racketeering charge, dismissed based on double jeopardy grounds. Basciano, 599 F.3d 184. Consequently, this motion is DENIED as moot.
As discussed above, in or around May 2006 Basciano authored a list including the names of five individuals: me, AUSA Andres, and three cooperating witnesses who had testified against Basciano in his 2006 trial. See, e.g., Basciano v. Lindsay, 530 F. Supp. 2d 435, 439 (E.D.N.Y. 2008) ("Basciano Habeas"). According to the Government, Basciano provided the List to another inmate because he wanted the five individuals murdered. See, e.g., Id.*fn11 Basciano contends that the List was actually a Santeria list (see, e.g., Arg. Tr. at 97), meaning that Basciano wrote the names down as part of ritual stemming from the religious tradition of Santeria. (See, e.g., Andres Disqualification Order at 3) ("Basciano claimed that he was told to write the May 2006 list, place it in his right shoe and stamp five times every day during the trial.") (internal quotation marks omitted).) Basciano seeks to introduce evidence concerning the List in the guilt phase of the proceedings.
1. Request to Admit the List at the Guilt Phase
Basciano seeks "an in limine ruling to allow [him] to introduce evidence relating to the [List] and the government‟s investigation of it in the guilt phase." (Def. Pretrial Mem. at 60.) Basciano argues that the List should be admitted to show his state of mind (see, e.g., Def. Response at 57) and to show that the Government‟s investigation of him was tainted by the Government‟s willingness to accept the story of an allegedly unreliable witness, Joseph Massino. (See Def. Pretrial Mem. at 59-65.) Basciano argues that "[t]he list and surrounding events are relevant as part of the defense to the alleged solicitation to murder Andres, and an attack on the thoroughness and good faith of the government‟s investigation . . . an investigation that relied on unreliable informants whose unreliability the government either failed to recognize, ignored or consciously avoided." (See Def. Pretrial Mem. at 60.) Defendant argues that discrediting the quality of the Government‟s investigation is a valid defense tactic. (See Def. Pretrial Mem. at 61-65.) In response, the Government argues that the List is hearsay, that it is not relevant to the charged crimes, and that, even if it were relevant, it would cause jury confusion and would unduly prejudice Basciano. (See Gov. Pretrial Opp. at 35-37.) The Government does not plan to introduce the List at the guilt phase. (See id.)
The court finds that admission of the List at the guilt phase is inappropriate. Basciano asserts that the List is relevant to the formerly charged solicitation to murder AUSA Andres in November 2004, which Government seeks to introduce as an uncharged crime admissible under Federal Rule of Evidence 404(b) and as direct evidence of the charged crimes. (See Def. Pretrial Mem. at 60; see also S-9 Indictment ¶ 32.; Gov‟t‟s Motion In Limine to Admit Certain Evidence and to Preclude Certain Evidence and Arguments at Trial ("Gov. In Limine") (Docket Entry # 945).) Yet, the List was authored by Basciano in approximately May 2006 -- nearly eighteen months after the alleged solicitation to murder AUSA Andres. (See, e.g., Andres Disqualification Order at 3.) The government has not charged Basciano with any crime relating to the creation of the List, nor does the government intend to introduce the List at the guilt phase of the trial. (See Gov. In Limine.) Its creation, therefore, is conduct that is not charged and is not at issue in this case.
Basciano, nonetheless, argues that the List is relevant to his "state of mind" in soliciting the murder of AUSA Andres eighteen months earlier, because it shows that his intent was actually to perform a religious ritual. (See, e.g., Attorney‟s Supporting Declaration of Aug. 19, 2009 ("Goltzer Reyes Decl.") (Docket Entry # 770) ¶ 16.) This argument is without merit. Whether Basciano intended to practice a Santeria ritual involving five individuals, including Andres, in the middle of 2006 does not tend to prove or disprove anything about his state of mind when he allegedly solicited the murder of AUSA Andres in 2004, in a conversation with another inmate. Nor does evidence of the Government‟s investigation techniques in 2006 tend to prove or disprove whether the Government was using proper investigative techniques in 2004. Consequently, the List evidence is not relevant to the crimes at issue in this case. See Fed. R. Evid. 401.
In any event, any relevance this evidence has to the alleged AUSA Andres solicitation -- whether for state of mind or otherwise -- is far outweighed by the significant probability that it could cause confusion of the issues at trial, mislead the jury, and cause undue delay by creating a protracted side trial. See United States v. Aboumoussallem, 726 F.2d 906, 912 (2d Cir. 1984) ("[R]elevant evidence may be excluded under Rule 403 if its probative value is substantially outweighed by "the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay.‟") (quoting Fed. R. Evid. 403). Evidence relating to the List could improperly confuse the jury‟s consideration of the serious charges of murder, solicitation, and attempt that are actually at issue in this case. Moreover, should Basciano attempt to prove that the List is not a "hit list" but, rather, a Santeria list and that the Government did not investigate the List in good faith, the proceedings would almost certainly turn into a trial within a trial about the circumstances surrounding the List‟s creation and whether Basciano intended to solicit the killing of the individuals on the list or perform a religious ceremony. Accordingly, the court declines to allow the diversion Basciano‟s introduction of the List would create.
Basciano‟s motion to admit evidence of the List at the guilt phase is DENIED.
2. Request to Grant Immunity to Danny Reyes
Following oral argument, Basciano requested that the court compel the Government to grant immunity to Danny Reyes ("Reyes") so that he might "provide critical defense testimony to contradict the notion that the [List] was a "hit list‟ as alleged by the government." (Goltzer Reyes Decl. ¶ 14; see also Def.‟s Letter of Sept. 16, 2009 (Docket Entry # 785).) He asserts that Reyes would provide testimony showing that the List was actually a Santeria list. (See, e.g., Goltzer Reyes Decl. ¶ 15.) Basciano argues that if Reyes does not testify, Basciano "will be unable to fairly demonstrate that an alleged "hit‟ list was nothing more than an innocent piece of paper to be utilized in a Santeria ritual." (Def.‟s Mem. in Support of His Motion to Compel Immunity for D. Reyes ("Def. Reyes Immunity Motion") (Docket Entry # 770) at 2.)
On May 5, 2009, the court granted Basciano‟s request to depose Reyes. (See Order (Docket Entry # 682).) On May 18, 2009, the parties were present for the deposition, but Reyes invoked his Fifth Amendment right against self-incrimination in response to defense counsel‟s questioning. (See Minute Entry of May 18, 2009 (Docket Entry # 699).) Defense counsel objected to this invocation of the privilege, challenging it as an invalid assertion of the Fifth Amendment. (See, e.g., id.; Def.‟s Letter of May, 19, 2009 (Docket Entry # 689).) On May 21, 2009, the court held a conference with the parties to discuss the issue of Reyes‟s invocation of the Fifth Amendment privilege. (See Minute Entry of May 21, 2009 (Docket Entry # 700).) Reyes‟s counsel was present. (See id.)
The court conducted an in camera, ex parte hearing with Reyes and his counsel, on May 21, 2009, to determine whether his invocation of the privilege had been valid. The in camera hearing was sealed and assigned a miscellaneous docket number. See In re Reyes, No. 09-Misc-0280 (NGG) (E.D.N.Y.). The court announced in open court its conclusion that Reyes‟s invocation of the Fifth Amendment had been valid, and subsequently filed an Order memorializing its decision. (See Order of May 26, 2009 (Docket Entry # 697).) A supplemental memorandum was filed in the sealed case that further elaborated the court‟s reasons for its conclusion. (See id. at 3.) Basciano‟s motion to compel the Government to grant immunity to Reyes followed.
"[T]he fifth amendment does not require that defense witness immunity must be ordered whenever it seems fair to grant it." United States v. Bahadar, 954 F.2d 821, 825 (2d Cir. 1992) (internal citation and quotation marks omitted). "The government is under no general obligation to grant use immunity to witnesses the defense designates as potentially helpful to its cause but who will invoke the Fifth Amendment if not immunized." United States v. Ebbers, 458 F.3d 110, 118 (2d Cir. 2006). Moreover, decisions regarding immunity have long been considered "preeminently a function of the Executive Branch." Bahadar, 954 F.2d at 825 (internal citation and quotation marks omitted). Accordingly, a trial court should order a prosecutor to grant a defense witness immunity "only in extraordinary circumstances." Blissett v. Lefevre, 924 F.2d 434, 441 (2d Cir. 1991).
The Second Circuit has ruled that such extraordinary circumstances exist only when a defendant can show that: "(1) the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the Fifth Amendment"; and "(2) the witness‟ testimony will be material, exculpatory and not cumulative and is not obtainable from any other source." Ebbers, 458 F.3d at 118 (quoting United States v. Burns, 684 F.2d 1066, 1077 (2d Cir. 1982). The Second Circuit, however, has never found a case in which such extraordinary circumstances existed so as to require a court to compel the Government to grant immunity. See Gordon Mehler, John Gleeson & David C. James, Federal Criminal Practice: Second Circuit Handbook, 414 (2010).
As set forth above, the evidence of the List will not be permitted at the guilt phase. Because the List and related evidence is being excluded in the guilt phase, Reyes‟s testimony about the List‟s creation is not material to any question at issue in the guilt phase. Accordingly, Basciano fails to make the showing required under Ebbers to compel the Government to grant immunity.
To the extent Reyes‟s testimony could be used at the penalty phase or for another purpose such as showing that "during the time period that Basciano is speaking over a recorded prison phone call with Ms. Kalb regarding his animus towards AUSA Andres, he is engaging in Santeria practice to ward off negativity; not solicitation to murder," (Def.‟s Letter of Sept. 16, 2009 (Docket Entry # 785) at 3), his request must also be denied. Even assuming Reyes‟s testimony would be relevant, Basciano has not met his burden under the Second Circuit‟s test for compelled immunity. He has made no showing that the Government engaged in the "discriminatory use of immunity to gain a tactical advantage" or that the Government has improperly "forced [Reyes] to invoke the Fifth Amendment." Ebbers, 458 F.3d at 118. Instead, it appears simply that Basciano would like Reyes to testify about the List, but that, on advice of counsel, Reyes has declined to do so in fear of self-incrimination. No discriminatory or manipulative actions by the Government are presented, let alone manipulative actions that approach the standard set forth by the Second Circuit. These circumstances do not justify the extraordinary measure of forcing the Government to grant him immunity.
Basciano‟s motion to compel the immunity of Danny Reyes at any stage of the trial is DENIED.
"While in prison awaiting trial in [Basciano I] and after being found guilty in a prior case before this court, Joseph Massino, the then-head of the Bonanno crime family, agreed to become a government informant and taped conversations in prison that he had with Basciano." (Basciano I, Memorandum & Order of Dec. 12, 2005 ("Basciano I December Order") (Docket Entry # 389) at 4 (internal citation omitted).) Basciano spoke with Massino on multiple occasions between the November 23, 2004 and January 6, 2005. The first two conversations that Massino had with Basciano in prison were not recorded (the "Massino Conversations"). The Massino Conversations "have been identified by Basciano as taking place in the bullpen of the U.S. Marshal detention facility at the Brooklyn federal courthouse on November 23, 2004, and during a co-defendant meeting on December 3, 2004." (Basciano I, Memorandum & Order of Jan. 3, 2006 (Docket Entry # 420) ("Basciano I January 2006 Order"), at 5 n. 5; see also Def.‟s Mem. in Support of Motion to Supplement Motion to Suppress ("Def. Suppression Supp. Motion Mem.") (Docket Entry # 576) at 1.) Later, Basciano and Massino had conversations which were recorded by Massino (the "Massino Tapes"). "Joseph Massino recorded two January 2005 conversations he had with Basciano in the Metropolitan Detention Center, where they both were held awaiting trial in [Basciano I]." Basciano I January Order 4 n.2. These recorded conversations occurred on January 3, 2005 and January 7, 2005. (S-9 Indictment) at 21.)
In this case, Basciano moves to suppress the Massino Conversations and the Massino Tapes. He argues that Massino was acting as a government agent and that these statements were obtained in violation of his Fifth and Sixth Amendment rights. (See Def. Pretrial Mem. at 8-11.) Basciano presents his arguments in a variety of briefs, and, indeed, some of these arguments were previously made and ruled upon in Basciano I.*fn12
1. The Massino Conversations
Under Massiah v. United States, 377 U.S. 201 (1964), "the Sixth Amendment right to counsel is violated when a private individual, acting as a government agent, "deliberately elicits‟ incriminating statements from an accused in the absence of his counsel." United States v. Miller, 116 F.3d 641, 665 (2d Cir. 1997) (quoting Massiah, 377 U.S. at 206). "The primary concern of the government informant rule is to avoid secret interrogation by investigatory techniques that are the equivalent of direct police interrogation." United States v. Birbal, 113 F.3d 342, 346 (2d Cir. 1997) (internal citation and quotation marks omitted). In Basciano I, Basciano requested a Massiah hearing "to determine whether Joseph Massino‟s testimony about unrecorded jailhouse conversations [was] admissible at trial, or whether the admission of such testimony [would] violate Basciano‟s Sixth Amendment right to counsel." (Basciano I January 3006 Order at 7-8.)
The court found that a Massiah hearing was warranted to determine "whether Joseph Massino was a government agent at the time of his unrecorded jailhouse conversations with Basciano." Id. at 10. The conversations "took place less than a month before the Government claims that Massino agreed to record conversations with Basciano, and more than three months after Massino began to talk with the Government." (Basciano I January 2006 Order at 10.) The court held the Massiah hearing in Basciano I on January 17-18, 2006. (See Gov‟t‟s Letter of June 29, 2009 (Docket Entry # 715) (attaching hearing transcript ("Massiah Tr.")).) Following the hearing, the court announced its decision in open court:
As I ruled in my memorandum and order on January 3, 2006, Mr. Basciano met the burden to be afforded a M[a]ssiah hearing on the issue of whether Mr. Massino‟s testimony at trial about two unrecorded conversations between Massino and Basciano would violate Mr. Basciano‟s Sixth Amendment right to counsel.
At that time I had before me the evidence that Joseph Massino had worn a government wire, [and had] recorded a conversation with Basciano a month after the conversations at issue. This was sufficient to raise a suggestion that Massino may have been ...