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United States of America v. Neil Messina

February 13, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
NEIL MESSINA, DEFENDANT.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM & ORDER

Presently before the court are pretrial motions by defendant Neil Messina ("Messina" or "defendant") seeking (i) dismissal of Count One of the Indictment; (ii) suppression of recordings obtained as a result of wiretaps; (iii) a bill of particulars; and (iv) additional discovery. For the reasons set forth below, defendant's motions are denied.

BACKGROUND

On January 12, 2011, Messina was charged in all eight counts of an eight-count indictment alleging, inter alia, a racketeering conspiracy, loansharking, and illegal gambling. (See ECF No. 1, Sealed Indictment, filed 1/12/2011 ("Ind't"); see also ECF No. 2, Order to Unseal Indictment, filed 1/24/2011.)

Count One charges Messina and John Porcello ("Porcello"), together with others, with a racketeering conspiracy in violation of 18 U.S.C. § 1962(d), and alleges four predicate acts. Racketeering Act One charges Messina with conspiring to rob and murder Joseph Pistone ("Pistone") on or about August 17, 1992. (ECF No. 1, Ind't ¶¶ 16-18.) Racketeering Act Two charges Messina with conspiring to use extortionate means to collect an extension of credit from John Doe #1 in or about and between December 2009 and March 2010. (Id. ¶¶ 19-21.) Racketeering Act Three charges Messina and Porcello with engaging in an illegal gambling business in or about and between April 2010 and December 2010. (Id. ¶¶ 22-24.) Racketeering Act Four charges Messina and Porcello with conspiring to use extortionate means to collect an extension of credit from John Doe #2 in or about and between April 2010 and January 2011. (Id. ¶¶ 25-29.)

Count Two charges Messina, Nicolo Valenti, and Benito Valenti with conspiring to use extortionate means to collect and attempt to collect an extension of credit from John Doe #1, in violation of 18 U.S.C. § 894(a)(1). (Id. ¶¶ 30-31.) Count Three charges Messina and Porcello with using wire communication facilities to transmit in interstate commerce information in the placing of bets and wagers on one or more sporting events and contests, in violation of 18 U.S.C. § 1084(a). (Id. ¶¶ 32-33.) Count Four charges Messina and Porcello with using the mail and one or more facilities in interstate commerce, with the intent to promote, manage, establish, carry on, and facilitate an illegal gambling business, and thereafter promoting, managing, establishing, carrying on, and facilitating such unlawful activity, in violation of 18 U.S.C. § 1952(a)(2)(A). (Id. ¶¶ 34-35.) Count Five charges Messina and Porcello with conspiring to make an extortionate extension of credit to John Doe #2, in violation of 18 U.S.C. § 892(a). (Id. ¶¶ 36-37.) Count Six charges Messina and Porcello with making an extortionate extension of credit to John Doe #2, in violation of 18 U.S.C. § 892(a). (Id. ¶¶ 38-39.) Count Seven charges Messina and Porcello with conspiring to use extortionate means to collect and attempt to collect an extortionate extension of credit from John Doe #2, in violation of 18 U.S.C. § 894(a)(1). (Id. ¶¶ 40-41.) Count Eight charges Messina and Porcello with using extortionate means to collect and attempt to collect an extension of credit from John Doe #2, in violation of 18 U.S.C. § 894(a)(1). (Id. ¶¶ 42-43.)

On August 1, 2011, Nicolo Valenti and Benito Valenti pled guilty to Count Five. On August 2, 2011, Porcello pled guilty to Count Two.

During a status conference on September 8, 2011, Messina's counsel sought leave to file an omnibus motion regarding numerous pretrial matters. (See Minute Entry dated 9/8/2011.) The motions were filed on December 5, 2011. (See ECF No. 117, Notice of Motion, filed 12/5/2011; ECF No. 118, Declaration of Gerald J. McMahon, filed 12/5/2011 ("McMahon Decl."); ECF No. 119, Defendant Neil Messina's Memorandum of Law in Support of His Motion for Omnibus Relief, filed 12/5/2011 ("Def. Mem.").) The government filed its opposition on January 10, 2012. (See ECF No. 132, The Government's Memorandum of Law in Opposition to the Defendant's Pretrial Motion, filed 1/10/2012 ("Gov't Opp.").) Defendant filed a reply on January 17, 2012. (See ECF No. 138, Reply to Response, filed 1/17/2012 ("Def. Reply").) At the court's request, the parties filed supplemental submissions on February 3, 2012. (See ECF No. 143, Defendant's Response in Support re Motion for Bill of Particulars, filed 2/3/2012 ("Def. Response"); ECF No. 144, Government's Response in Opposition re Motion for Bill of Particulars, filed 2/3/2012 ("Gov't Response").) The court held oral argument on the motions on February 8, 2012.

DISCUSSION

I.Motion to Dismiss Count One of the Indictment

Defendant seeks dismissal of Count One of the Indictment, pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B). Defendant argues that Count One fails sufficiently to allege a violation of 18 U.S.C. § 1962(d) in that it fails to discuss defendant's "role in the La Cosa Nostra Enterprise (as opposed to the Bonnano [sic] Family)"; fails to plead a "common course of conduct or unity of purpose . . . with respect to the charged defendants"; and "fails to show any meaningful relationship between the four racketeering acts defendant is alleged to have committed." (ECF No. 119, Def. Mem. at 3-4.)

a.Legal Standard

Federal Rule of Criminal Procedure 7(c)(1) requires that an indictment contain a "plain, concise, and definite written statement of the essential facts constituting the offense charged . . . ." Fed. R. Crim. P. 7(c)(1); see United States v. Fruchter, 104 F. Supp. 2d 289, 296 (S.D.N.Y. 2000). It is well settled that "[a]n 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.), cert. denied, 500 U.S. 926 (1992). To survive a motion to dismiss pursuant to Federal Rule of Criminal Procedure 12(b)(3), the 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." Stavroulakis, 952 F.2d at 693 (quoting United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir.), cert. denied, 423 U.S. 832 (1975)).

Pursuant to 18 U.S.C. § 1962(d), the statute under which defendant is charged in Count One, it is "unlawful for any person to conspire to violate" the substantive provisions of 18 U.S.C. § 1962(c), which, in turn, makes it unlawful for "any person employed by or associated with any enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." To satisfy the "pattern of racketeering activity" element, the statute requires "at least two acts of racketeering activity . . . the last of which occurred within ten years . . . after the commission of a prior act of racketeering activity."

18 U.S.C. § 1961(5).

b.Application

Count One contains all the essential elements of the charged racketeering conspiracy. It identifies and describes the racketeering enterprise as La Cosa Nostra, a group that operated through five organized crime families, including the Bonanno and Genovese crime families. (ECF No. 1, Ind't ¶¶ 1-11, 14-15.) It also alleges that defendant was an associate within the Bonanno organized crime family and associated with La Cosa Nostra. (Id. ¶¶ 12, 15.) Count One tracks the statutory language of 18 U.S.C. § 1962(c), and sets forth the time and place of the alleged crime. In particular, paragraph 15 of the Indictment alleges:

In or about and between January 1992 and January 2011 . . . within the Eastern District of New York and elsewhere, the defendants Neil Messina and John Porcello . . . together with others, being persons employed by and associated with La Cosa Nostra, an enterprise that engaged in, and the activities of which affected, interstate and foreign commerce, did knowingly and intentionally conspire to violate Title 18, United States Code, Section 1962(c), that is, to conduct and participate, directly and indirectly, in the conduct of the affairs of that enterprise through a pattern of racketeering activity, as defined in Title 18, United States Code, Sections 1961(1) and 1961(5), consisting of the racketeering acts set forth below. (Id. ¶ 15.) Further, Count One charges that "[e]ach defendant agreed that a conspirator would commit at least two acts of racketeering activity in the conduct of the affairs of the enterprise" (id.), and sets forth four racketeering acts between 1992 and 2011 that defendant allegedly agreed that he and/or his co-conspirators would commit (id. ¶¶ 16-29). Each of these four predicate acts is alleged to have been committed in furtherance of the enterprise's principal purpose, namely, "to generate money for [the enterprise's] members and associates." (Id. ¶ 8.) Racketeering Acts Two, Three, and Four, are alleged to have occurred within ten years of each other. (Id. ¶¶ 19-29.)

Defendant's assertions that the Indictment fails to discuss his role in the La Cosa Nostra enterprise and fails to plead a "common course of conduct or unity of purpose" are incorrect. As noted, the Indictment clearly identifies the alleged enterprise and states that defendant and his co- defendant were associates of certain organized crime families through which La Cosa Nostra operated. Further, the Indictment states that "[t]he principal purpose of La Cosa Nostra and each of its crime families was to generate money for its members and associates." (Id. ¶ 8.) These specific allegations adequately "inform the defendant of the charges he must meet" and provide him with enough detail to enable him to plead double jeopardy in any future prosecution based on the same events. Stavroulakis, 952 F.2d at 693. Thus, the language of Count One is sufficient to allege a violation of 18 U.S.C. § 1962(d). See United States v. Torres, No. S2 94 Cr. 466, 1995 U.S. Dist. LEXIS 5853, at *6 (S.D.N.Y. May 3, 1995) (finding sufficient indictment that tracked the language of the statute).

Moreover, defendant's arguments that the Indictment "fails to show any meaningful relationship between the four racketeering acts" and "attempt[s] to rope together a series of separate mini-conspiracies committed by isolated actors" are premature, as they confuse the standards of pleading with standards of proof. (ECF No. 119, Def. Mem. at 4.) In essence, rather than challenging the sufficiency of the Indictment alone, defendant's arguments focus on whether the prosecution will be able to prove a racketeering "enterprise" and a "pattern of racketeering activity" at trial.*fn1

It is well settled that "an indictment that is valid on its face . . . may not be dismissed on the ground that it is based on inadequate or insufficient evidence." Fruchter, 104 F. Supp. 2d at 298; accord United States v. Reale, No. S4 96 Cr. 1069, 1997 U.S. Dist. LEXIS 14167, at *18 (S.D.N.Y. Sept. 17, 1997). "Unless the government has made what can fairly be described as a full proffer of the evidence it intends to present at trial . . . , the sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss the indictment." United States v. Alfonso, 143 F.3d 772, 776-77 (2d Cir. 1998) (holding that the district court erred in dismissing the indictment based on insufficiency of the evidence); accord United States v. Triumph Capital Grp., Inc., 260 F. Supp. 2d 444, 448 (D. Conn. 2002) ("A technically sufficient indictment is not subject to dismissal on the basis of factual questions, the resolution of which must await trial." (internal quotation marks omitted)). Further, "whether the evidence in a case establishes single or multiple conspiracies is a question of fact to be resolved by a properly instructed jury." Torres, 1995 U.S. Dist. LEXIS 5853, at *6 (quoting United States v. Friedman, 854 F.2d 535, 561 (2d Cir. 1988), cert. denied, 490 U.S. 1004 (1989)). Thus, if defendant wishes to challenge the sufficiency of the government's evidence, he must wait until after the government has presented its case, and then he may file a motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. United States v. Cassese, 273 F. Supp. 2d 481, 484-85 (S.D.N.Y. 2003); accord Fruchter, 104 F. Supp. 2d at 298.

Accordingly, defendant's motion to dismiss Count One of the Indictment for failure to allege an offense is denied.

II.Motion to Dismiss Racketeering Act One of Count One of the Indictment

Defendant asserts that Racketeering Act One of Count One of the Indictment, which alleges a conspiracy to rob and murder Joseph Pistone, should be dismissed pursuant to Federal Rule of Criminal Procedure 12(b)(3)(A) and the Due Process Clause of the Fifth Amendment, as a result of pre-indictment delay.*fn2 According to the Indictment, the robbery and murder alleged in Racketeering Act One occurred "[o]n or about August 17, 1992," over 18 years before defendant was charged on January 12, 2011. Defendant asserts that at least six years ago, a cooperating witness informed the government that defendant was involved in that criminal activity. (ECF No. 119, Def. Mem. at 5; ECF No. 118, McMahon Decl. ¶ 15.)

a.Legal Standard

A defendant seeking dismissal of an indictment based on pre-indictment delay must show that (1) the defendant suffered actual and substantial prejudice as a result of the delay; and (2) the government intentionally caused the delay in order to obtain a "tactical advantage" over the defendant. United States v. Marion, 404 U.S. 307, 324 (1971); see also United States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999) ("An indictment brought within the time constraints of the statute [of limitations] may nevertheless violate due process where pre-indictment delay has been shown to cause 'substantial prejudice' to the defendant's ability to present his defense and 'the delay was an intentional device to gain [a] tactical advantage over the accused.'" (quoting Marion, 404 U.S. at 324)); United States v. Carbonaro, No. S5 02 CR 743, 2004 U.S. Dist. LEXIS 19895, at *4 (S.D.N.Y. Sept. 30, 2004) ("Proof of prejudice alone is insufficient to establish a due process violation because 'the inquiry focuses not only on prejudice to the accused but also on the reasons for the claimed oppressive delay.'" ...


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