The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.
On October 8, 2010, the Government moved in limine to admit evidence of misconduct committed by Defendant Vincent Basciano ("Basciano") and to preclude the defense from referring to previous trials during the guilt phase of his upcoming trial. (Gov't Mot. Admit Certain Evid. ("Gov't Mem.") (Docket Entry # 945).) The Government's motions are considered in turn. They are granted in part and denied in part. Because the Government's motions can be decided on the papers alone, Basciano's request for a hearing is denied.
Basciano is charged in the Ninth Superseding Indictment ("S-9 Indictment" (Docket Entry # 464)) with conspiring to murder Randolph Pizzolo in aid of racketeering in November 2004, in violation of 18 U.S.C. § 1959(a)(5) (S-9 Indictment, Count Three, ¶¶ 52-54); murdering Pizzolo in aid of racketeering on November 30, 2004, in violation of 18 U.S.C. § 1959(a)(1) (S-9 Indictment, Count Four, ¶¶ 55-56); a related firearms offense, in violation of 18 U.S.C. § 924(c) (S-9 Indictment, Count Five, ¶ 57); and conspiring to murder Patrick DeFilippo in aid of racketeering, between August 2003 and November 19, 2004, in violation of 18 U.S.C. § 1959(a)(5) (S-9 Indictment, Count Nine, ¶¶ 63-64). Basciano is charged with having committed most of these crimes while serving as the "acting boss" of the Bonanno crime family, a position he allegedly held from January 20, 2004 until his arrest on November 19, 2004. (S-9 Indictment ¶¶ 12-13.)
Basciano has already been convicted, after two jury trials before this court in United Statesv.Basciano, No. 03-CR-929 (E.D.N.Y.), on charges stemming from his participation in the Bonanno organized crime family from 1979 through 2004. 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, States v. Basciano, No. 03-CR-929 (E.D.N.Y. May 9, 2006).) Under a superseding indictment, Basciano was re-tried on charges for which no verdict had been reached in the first trial. On July 31, 2007, 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 Frank Santoro. (See Jury Verdict, States v. Basciano, No. 03-CR-929 (E.D.N.Y. July 31, 2007).) The jury also convicted Basciano on three counts of illegal gambling and one count of conspiracy to distribute marijuana. (Id.)
A. Motion to Admit Evidence of Uncharged Acts
The Government seeks to admit evidence of several crimes allegedly committed by Basciano, but not charged in the S-9 Indictment. In particular, the Government seeks to introduce evidence of Basciano's involvement in: (1) the conspiracy to murder and the murder of Frank Santoro; (2) the solicitation of the murder of Salvatore Vitale; (3) the solicitation of the murder of Assistant United States Attorney Greg Andres; (4) the conspiracy to murder Joseph Bonelli; (5) the extortion of vendors at the Feast of San Gennaro Festival; (6) illegal gambling and loansharking; (7) the conspiracy to murder and the attempted murder of Frank Nunez; and (8) the assault of Frank Porco.*fn1
The Government seeks to prove that Basciano committed the charged murder of Randolph Pizzolo and the charged conspiracies to murder Pizzolo and Patrick DeFilippo "for the purpose of . . . maintaining or increasing position in an enterprise engaged in racketeering activity." 18 U.S.C. § 1959(a) (the violent crimes in aid of racketeering statute, or "VICAR"). Thus, the Government must prove, in addition to the charged murder and conspiracies to murder themselves: (1)the existence of an "enterprise" engaged in "racketeering activity," *fn2 (2) that Basciano had some position within the enterprise, and (3) that Basciano committed the charged murder and conspiracies to murder in order to "maintain or increase" that position. See United States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992). "[T]he motive requirement is satisfied if the jury could properly infer that the defendant committed his violent crime because he knew it was expected of him by reason of his membership in the enterprise or that he committed it in furtherance of that membership." United States v. Payne, 591 F.3d 46, 63 (2d Cir. 2010).
b. Permissible Purposes of Uncharged Crime Evidence
Evidence of uncharged crimes or misconduct is admissible, subject to the limitations imposed by Federal Rule of Evidence 403, discussed infra, in order to prove the existence and nature of the charged enterprise -- here, the Bonanno crime family -- its involvement in racketeering activity, and its effect on interstate commerce. See United States v. Mejia, 545 F.3d 179, 206 (2d Cir. 2008); United States v. Baez, 349 F.3d 90, 93 (2d Cir. 2003). Such evidence, since it directly proves an element of the charged crime, is not considered "prior act evidence" under Federal Rule of Evidence 404(b). See Mejia, 545 F.3d at 206.
Other acts evidence that shows the defendant's participation, position, or role in the charged enterprise is also admissible as direct evidence of the charged crime, and does not fall under the aegis of Rule 404(b). See United States v. Wong, 40 F.3d 1347, 1378 (2d Cir. 1994); United States v. Thai, 29 F.3d 785, 813 (2d Cir. 1994).
Evidence of uncharged acts is also admissible, outside of the strictures of Rule 404(b), where such acts "arose out of the same transaction or series of transactions as the charged offense," i.e., conduct "inextricably intertwined with the evidence regarding the charged offense." United States v. Gonzalez, 110 F.3d 936, 943 (2d Cir. 1997). Accordingly, in conspiracy cases, any act "that is alleged to have been done in furtherance of the alleged conspiracy" is considered "part of the very act charged." United States v. Diaz, 176 F.3d 52, 79 (2d Cir. 1999) (internal quotation marks and alterations omitted).
ii. Admissibility Under Rule 404(b)
Under Federal Rule of Evidence 404(b): Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in ...