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denying bill of particulars in a case with voluminous discovery because the defendants had time before trial to review the discovery
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04 Cr. 273 (NRB).
July 18, 2006
MEMORANDUM AND ORDER
The Indictment in this case was filed against nineteen defendants, seven of whom are alleged to have been members of a RICO enterprise referred to as the Columbo Brothers Crew. To date, ten defendants charged with gambling offenses have pled guilty. The twenty-seven counts of the Indictment are organized into five general categories: (1) "Racketeering Charges" (Counts One and Two); (2) "Gambling Charges" (Counts Three to Seven); (3) "Loansharking Charges" (Counts Eight to Nineteen); (4) "EDP Extortion and Related Fraud Charges" (Counts Twenty to Twenty-Four); and (5) the "DoubleClick Charges" (Counts Twenty-Five to Twenty-Seven).
One of these defendants, Philip Dioguardi, is deceased.
The ten defendants who have pled guilty are: Paul Siepman, Leo Caldera, Eddie Robinson, Anthony DeFranco, Anthony Sedia, Vincent Larosa, Bryan Kelly, Geoffrey Hawthorne, Robert DiMartino and Joseph Hernandez. The trial of the remaining eight defendants will commence on January 3, 2007.
Presently before this Court are a large number of defense pretrial motions, the bulk of which fall into the following categories: (1) motions for severance; (2) demands for bills of particulars; (3) motions to inspect grand jury materials; (4) motions to strike surplusage from the Indictment; (5) motions to suppress evidence; (6) motions seeking additional discovery and pretrial disclosures; and (7) in limine motions seeking advance evidentiary rulings. For the reasons that follow, the defendants' motions are granted in part and denied in part.
Anthony Columbo filed an Omnibus Motion on behalf of all defendants. Most of the defendants have filed motions requesting permission to join in the motions of their co-defendants to the extent applicable. These pro forma motions are granted.
THE INDICTMENT
The RICO enterprise in this case, the Columbo Brothers Crew, is alleged to have been an "off-shoot" of the Columbo Organized Crime Family ("Columbo crime family"), formed by members of a losing faction after a power struggle within the Columbo crime family during the early 1990s. See Ind. at ¶ 9-10. The founding members of the enterprise allegedly include Anthony Columbo, Christopher Columbo and Gerard Clemenza ("Clemenza"). See Ind. at ¶¶ 1, 8-10. Defendants John Contino ("Contino"), the late Philip Dioguardi ("Dioguardi"), John Berlingieri ("Berlingieri") and Joseph Flaccavento are also alleged to have been members of the Columbo Brothers Crew. The substantive RICO and RICO conspiracy charges are set forth in Counts One and Two of the Indictment. See Ind. at ¶¶ 17-28.The remainder of the Indictment charges the RICO defendants and twelve additional defendants, in various combinations, with predicate crimes and conspiracies related to illegal gambling, loan sharking, mail fraud, extortion and commercial bribery offenses. The racketeering acts set forth in Count One and the non-RICO Counts of the Indictment appear to arise from the same or similar factual circumstances.
Count Three charges Anthony Columbo, Christopher Columbo, Dioguardi, Berlingieri, Paul Siepman, Leo Caldera, Eddie Robinson, Anthony DeFranco, Anthony Sedia, Vincent LaRosa, Bryan Kelly, Geoffrey Hawthorne, Robert DiMartino and Joseph Hernandez with a conspiracy to operate an illegal gambling business and to transmit wagering information. Ind. at ¶¶ 29-32. Counts Four through Six charge these same defendants with operating an illegal gambling business and illegally transmitting wagering information. Ind. at ¶¶ 33-36.
Counts Eight through Nineteen charge various combinations of the RICO defendants as well as defendant Nunzio Flaccavento with loan sharking offenses. Ind. at ¶¶ 37-48.
Counts Twenty through Twenty-Four charge Anthony Columbo, Christopher Columbo, Contino and Dioguardi with extortion and fraud offenses. Ind. at ¶¶ 41-58.
Counts Twenty-Five through Twenty-Seven charge Anthony Columbo, Contino and defendant Francis Altieri ("Altieri") with conspiracy to commit, and the substantive offenses of, commercial bribery and mail fraud. See Ind. at ¶¶ 59-69. Altieri, an employee of a company called DoubleClick, allegedly received kickback payments from Columbo and Contino in exchange for approving fraudulent invoices submitted to DoubleClick. Id.
DISCUSSION
I. Motions for Severance
This Court previously denied Francis Altieri's motion for severance. See United States v. Columbo, 418 F. Supp. 2d 385 (S.D.N.Y. 2005). However, three additional defendants, Joseph Flaccavento, Clemenza and Berlingieri, have also moved for severance. The legal standards applicable to severance motions were discussed at length in this Court's prior decision, and we will not repeat them here. See Columbo, 418 F. Supp. 2d at 388-89.
Joseph Flaccavento and Clemenza contend that joinder in this case is improper under Fed.R.Crim.P. 8 or, alternatively, that this Court should exercise its discretion to grant severance under Fed.R.Crim.P. 14. See J. Flaccavento Mem. at 7-11; Clemenza Mem. filed 7/22/05 at 15-21. Clemenza primarily argues that severance is required because his co-defendants face charges "wholly unrelated" to those against Clemenza and because joinder will force him to sit through a lengthy trial. Flaccavento contends that the loansharking charges should be tried separately from the remaining counts of the Indictment because "there is little or no commonality of dates, participants, purpose or methods" and that joinder is therefore inappropriate under Fed.R.Crim.P. 8. Flaccavento Mem. at 8. Flaccavento also argues that severance from his co-defendants is appropriate because he is "a minor defendant with a minimal alleged role in an alleged criminal enterprise" and that a joint trial will inevitably result in spill-over prejudice. Id. at 9-10.
Clemenza has also argued that an extended trial involving nineteen defendants would violate the guidelines set forth by the Second Circuit in United States v. Casamento, 887 F.2d 1141 (2d Cir. 1989). We note that Clemenza's motion was filed before this Court divided the case into two trials.
As an initial matter, we note that Flaccavento and Clemenza are both alleged to have been members of the RICO enterprise that is central to this case. See Ind. at ¶¶ 1, 11(b), 11(g). It is therefore entirely consistent with Fed.R.Crim.P. 8, and certainly more efficient, that they be tried together with other defendants who are alleged to have been members of the same enterprise. We also reject defendants' arguments because there is a significant overlap in the alleged participants and proof relevant to the RICO and non-RICO counts that will be resolved in the joint trial. Finally, this Court has no reason to believe that a jury would be unable to make a reliable judgment about the guilt or innocence of the individual defendants in the joint trial contemplated. See Zafiro v. United States, 506 U.S. 534, 539 (1993). Because Flaccavento and Clemenza fail to make the requisite showing needed to justify severance, their motions are denied.
Berlingieri moves for severance on grounds of poor health.See Berlingieri Mem. at 26-27. Counsel has represented on numerous occasions that Berlingieri's health problems compromise his ability to participate in a lengthy trial. However, despite repeated requests from this Court, counsel has not yet submitted an affidavit or report from a treating physician verifying the extent of these medical problems or Berlingieri's prognosis going forward. Under these circumstances, Berlingieri's motion is denied without prejudice to renewal once reliable evidence documenting Berlingieri's medical problems is provided to the Court.
II. Motion to Dismiss Indictment and Inspect Grand Jury Instructions
Anthony Columbo moves to dismiss the Indictment based on unsupported allegations that the grand jury received improper instructions. Columbo also requests access to the general empanelment instructions and "all grand jury transcripts relating to or affecting his case." See A. Columbo Omnibus Mot. at 12-18.
Grand jury proceedings are entitled to a presumption of regularity. See, e.g., United States v. Torres, 901 F.2d 205, 232 (2d Cir. 1990) (citations omitted). Moreover, grand jury proceedings are traditionally shielded from the public. See United States v. Henry, 861 F. Supp. 1190, 1193 (S.D.N.Y. 1994) (citing United States v. Procter Gamble, 356 U.S. 677, 682 (1958)). See also United States v. Sells Engineering, 463 U.S. 418, 443 (1983) (stating that defendants must demonstrate "particularized need" to warrant disclosure of grand jury materials).
Anthony Columbo first claims that the grand jury was instructed that they were "bound to indict" upon a finding of probable cause. See A. Columbo Omnibus Mot. at 16. Columbo also implausibly suggests that the grand jury was instructed that "the probable cause determination ha[d] already been made by a magistrate judge after a preliminary hearing, and that it, the Grand Jury, will be asked to determine whether there should be an indictment." Id. at 17. These allegations are based solely on counsel's unsupported "information and belief." See id. at 12 n. 1, 17. Such allegations do not satisfy the stringent standard applicable to requests to inspect grand jury materials. See Henry, 861 F. Supp. at 1194 ("[D]efendant's mere speculation as to what occurred in front of the Grand Jury does not warrant inspection of the minutes by defense counsel.") (citing cases); United States v. Burford, 755 F. Supp. 607, 614 (S.D.N.Y. 1991) ("Before a court will disrupt the traditional secrecy surrounding grand jury proceeding[s], a defendant must show evidence of an irregularity and not merely make a statement on information and belief.") (citation omitted).
Columbo claims that these imagined instructions misled the grand jury about its role and compromised the grand jury's independence in violation of the Fifth Amendment. Id. at 16-17.
In a reply submission, Columbo's counsel explained that the allegations are based on his familiarity with "inappropriate" pattern grand jury instructions produced by the Department of Justice and "used throughout all districts of the United States."See A. Columbo Reply Mem. at 4-5. However, counsel has not provided a citation or a copy of the pattern jury instructions in question.
Because we find Anthony Columbo's allegations concerning the grand jury instructions to be incredible and completely unsupported, his motion to inspect grand jury materials and dismiss the Indictment is denied.
See United States v. Spy Factory, Inc., 960 F. Supp. 684, 690 (S.D.N.Y. 1997) (concluding that judicial inspection of grand jury materials is inappropriate without particularized proof of irregularity).
III. Motions to Strike Surplusage from Indictment
Defendants also move to strike portions of the Indictment pursuant to Fed.R.Crim.P. 7(d). See C. Columbo Mem. at 51-54; A. Columbo Omnibus Mot. at 46-48; J. Flaccavento Mem. at 2-6. Essentially, defendants argue that portions of the Indictment discussing the history, structure and activities of the Columbo crime family and La Cosa Nostra ("LCN"), as well as any other references to the Mafia, "should be stricken as surplusage because they are irrelevant, inflammatory and potentially confusing to the jury." C. Columbo Mem. at 54. See also A. Columbo Omnibus Mot. at 46-48 (requesting that all references to "La Cosa Nostra," "Columbo Organized Crime Family" and "Columbo Brothers Crew" be stricken from the Indictment and precluded at trial); J. Flaccavento Mem. at 2-5 (arguing that Paragraphs 3-10 of the Indictment should be stricken in their entirety).
A motion to strike surplusage will be granted "only where the challenged allegations are not relevant to the crime charged and are inflammatory and prejudicial." United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990) (quoting United States v. Napolitano, 552 F. Supp. 465, 480 (S.D.N.Y. 1982)). Such motions are rarely granted. See, e.g., United States v. Jiminez, 824 F. Supp. 351, 369 (S.D.N.Y. 1993) ("It has long been the policy of courts within the Southern District to refrain from tampering with indictments.").
In this case, the portions of the Indictment that defendants contend are surplusage are, in fact, relevant to the charges. Evidence concerning the history and structure of the Columbo crime family and LCN are relevant to proving the RICO enterprise alleged in this case. As the Government has explained:
[T]he Columbo Brothers Crew's association to organized crime helps explains why the enterprise developed (because of the split that was created by the Columbo wars in the 1990s); who its members were (many of whom were members and associated of the Columbo Crime Family and who comprised the losing faction in the Columbo wars); how these members are organized . . . and with whom it committed and coordinated its criminal activities (crews of other LCN families).
Gov't Mem. at 92. While defendants correctly emphasize that the Columbo Brothers Crew is not alleged to have been directly linked to an organized crime family, the Government contends that the enterprise was an "off-shoot" of the Columbo crime family and was modeled after it in certain respects. Despite the fact that such references may cast defendants in a negative light, we find that they "serve to identify the `enterprise' and the means by which its members and associates conduct various criminal activities." Scarpa, 913 F.2d at 1013. Accordingly, defendants' motions to strike portions of the Indictment are denied.
The Government also argues that the contested portions of the Indictment will be relevant in proving the extortion charges because a threat of violence must be proved at trial. See Gov't Mem. at 93. See also United States v. Madori, 419 F.3d 159, 167 (2d Cir. 2005) (stating that a "debtor's belief that a creditor is connected to organized crime may be introduced since it evidences the debtor's understanding that a threat of violence exists").
IV. Demands for Bills of Particulars
Defendants also request bills of particulars. See A. Columbo Omnibus Mot. at 48-51; Clemenza Mem. filed 7/22/05 at 5-13; Altieri Mem. filed 6/27/05 at 9-12; Altieri Reply Decl. at 10-22. The Government opposes these requests and contends that the Indictment, together with produced discovery, provide sufficient information to allow defendants to adequately prepare for trial. See Gov't Mem. at 77-87; Gov't Ltr. dated 4/28/06.
Joseph Flaccavento's motion combines demands for additional discovery and a bill of particulars. See J. Flaccavento Mem. 2-4. Because the supporting Memorandum of Law also fails to address the request for a bill of particulars, it is unclear what information is specifically sought in the form of a bill of particulars.
Legal Standards
In exercising our discretion under Rule 7(f) of the Federal Rules of Criminal Procedure, this Court is guided by the purpose a bill of particulars is designed to serve, namely, to enable a defendant "to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988). To obtain a bill of particulars, a defendant must show that "the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990). A bill of particulars is not intended to function as an investigative tool for the defense, and requests seeking evidentiary detail or a preview of the Government's legal theories must be denied. See, e.g., United States v. Heatley, 994 F. Supp. 483, 488 (S.D.N.Y. 1998); United States v. Strawberry, 892 F. Supp. 519, 526 (S.D.N.Y. 1995).
Anthony Columbo
The particulars sought by Anthony Columbo include: (1) the date, time and place he joined each of the charged conspiracies as well as acts or statements indicating that he joined the conspiracies; (2) the exact acts and dates of acts attributable to him and committed in furtherance of the conspiracies and substantive offenses charged; and (3) a full accounting of how the Government arrived at the $10,000,000 forfeiture allegation.See A. Columbo Omnibus Mot. at 50-51.
In summarizing this motion, we have combined some of the requested categories of information where appropriate.
These requests seek evidentiary detail beyond what is required to give Columbo fair notice of the charges against him. Moreover, requests in the first two categories routinely have been denied.See, e.g., United States v. Nachamie, 91 F. Supp. 2d 565, 574-76 (S.D.N.Y. 2000) (denying requests for dates each conspirator joined conspiracy and information about overt acts);United States v. Jimenez, 824 F. Supp. 351, 363 (S.D.N.Y. 1993) (observing that requests for "whens" "wheres" and "with whoms" are routinely denied) (citing cases). See also United States v. Carroll, 510 F.2d 507, 509 (2d Cir. 1975) (stating that "[t]here is no general requirement that the government disclose in a bill of particulars all the overt acts it will prove in establishing a conspiracy charge"). The third request seeks information relating to the forfeiture allegation which is not necessary for trial preparation and would only be relevant at sentencing. For these reasons, Anthony Columbo's motion is denied.
We find the Government's proposal of sending a letter to defendants detailing the basis for the forfeiture allegations to be reasonable. See Gov't Mem. at 77-78.
Clemenza
Clemenza requests that the Government identify: (1) "Victim 3" and "Victim 4" referenced in two charged instances of loansharking and the "various individuals" alleged to have been victims of the broader loansharking conspiracy; (2) unindicted co-conspirators; (3) "specific acts of violence and extortionate means" used in loansharking; (4) details of the loans including the identity of the individuals extending and collecting loans, the means used to collect loans, as well as relevant dates, amounts and locations; (5) the names of individuals present when the relevant acts occurred; and (6) the means and methods by which the enterprise operated. See Clemenza Mem. filed 7/22/05 at 5-15. Requests (3) through (6) seek evidentiary detail that is clearly beyond the proper scope of a bill of particulars. However, Clemenza's requests for identification of victims and unindicted co-conspirators deserve more extended consideration.
See also Motion and Affirmation dated 8/25/04; Letter to Court dated 12/2/05; Letter Mem. in Support of Request for In Limine Motion dated 3/13/06; Letter Mem. dated 3/29/06; Letter dated 6/29/06. Instead of submitting a single pretrial motion and reply brief, Clemenza's counsel has elected to send a stream of largely repetitious submissions to this Court.
Clemenza also moves to dismiss the Indictment on the ground that the Government's failure to identify the victims renders it legally insufficient under Fed.R.Crim.P. 7(c).See, e.g., Clemenza Mem. filed 7/22/05 at 3-5. This motion is denied. To satisfy the requirements of Fed.R.Crim.P. 7(c) and the Constitution, an indictment "need do little more than track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992) (internal quotations and citations omitted). The Indictment in this case satisfies that standard.
In determining whether a bill of particulars is required, we first must consider the sufficiency of the Indictment. Clemenza, together with named defendants and "others known and unknown," is charged with loansharking Victim 3 and Victim 4 during a relatively brief period between June 1999 and January 2000. See Ind. ¶¶ 20-21 (Racketeering Acts 5 and 6); ¶¶ 43-46 (substantive violations of 18 U.S.C. § 894(2) and § 892(2)). The Indictment further alleges that Clemenza was a member of the Columbo Brothers Crew and that he conspired with co-defendants Anthony Columbo, Christopher Columbo, Dioguardi, Berlingieri, Joseph Flaccavento, Nunzio Flaccavento and "others known and unknown" over an eight-year period to loanshark "various individuals." Ind. at ¶¶ 1, 37-38.
The Government contends that the Indictment, together with discovery produced to the defendants, provides sufficient notice of the conduct charged and the identity of alleged victims and co-conspirators. See Gov't Mem. at 77-87. While defendants claim that the quantity of audio tapes and documents produced in this case is voluminous and overwhelming, we note that they will have had more than a year to review discovery prior to trial. Moreover, the Government's brief supplies information that should allow Clemenza to easily identify audio tapes relevant to the two charged instances of loansharking and to ascertain the identities of Victim 3 and Victim 4. See Gov't Mem. at 84-86. Under these circumstances, we conclude that a bill of particulars identifying Victim 3 and Victim 4 is not required. See United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987) (recognizing that where "information sought by defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars is required.").
Unfortunately, neither the Government nor defense counsel has provided this Court with precise estimates of the quantity of documents and audiotapes produced in this case. Clemenza's counsel states that discovery has included "hundreds and hundreds of tape recordings" as well as wiretap applications and line sheets. Clemenza Mem. filed 7/22/05 at 10. See also C. Columbo Mem. at 31 (representing that discovery has included "hundreds" of audio tapes and "thousands" of pages of linesheets); J. Flaccavento Mem. at 16 (referencing "countless boxes" of documents and eight boxes of audio tapes representing "hundreds of hours").
This Court also concludes that early identification of the "various individuals" alleged to have been victims of the loansharking conspiracy is not necessary to prepare Clemenza's defense. Any chance of prejudicial surprise related to unidentified victims is eliminated by the fact that the pretrial schedule adopted by this Court requires the Government to provide advance notice of its trial exhibits and testifying witnesses.
The Indictment charges Christopher Columbo and Joseph Flaccavento with loansharking "Victim 1" and "Victim 2." Ind. at ¶¶ 39-40. Joseph Flaccavento and Nunzio Flaccavento are charged with loansharking an undercover officer. Id. at ¶¶ 41-42. Berlingieri and Christopher Columbo are charged with loansharking "Victim-5." Id. ¶¶ 47-48.
Discovery produced by the Government should assist defendants in identifying unnamed victims before trial. We note that Mr. Goldberg's letter to this Court dated March 29, 2006 concerning Frank Prevete and Sonny Colella suggests that counsel's review of discovery has, in fact, allowed him to identify some of the unnamed victims of the loansharking conspiracy.
Finally, we consider Clemenza's request for the identification of unindicted co-conspirators. While we recognize that such requests occasionally have been granted in this District, this is not an appropriate case to require the Government to identify unindicted co-conspirators significantly in advance of trial. First, the discovery produced by the Government, which the defendants will have ample time to review prior to trial, is likely to provide the defendants with adequate notice of unindicted co-conspirators. Second, because some of the defendants allegedly have ties to the Columbo crime family and the charged offenses include extortion, concern about a possibility of witness tampering is not inappropriate. See United States v. Santiago, 174 F. Supp. 2d 16, 35 (S.D.N.Y. 2001) (observing that "the identities of unindicted coconspirators have been disclosed primarily in cases in which violence was not alleged"). Finally, the adopted pretrial schedule addresses any remaining concerns about unfair surprise. For these reasons, Clemenza's motion for a bill of particulars is denied.
Compare United States v. Nachamie, 91 F.Supp. 2d 565, 572-73 (S.D.N.Y. 2000) (granting request and proposing six-factor test); United States v. Lino, No. 00 Cr. 632 (WHP), 2001 WL 8356, at *12-13 (S.D.N.Y. Dec. 29, 2000) (granting request) withUnited States v. Santiago, 174 F. Supp. 2d 16, 36 (S.D.N.Y. 2001) (denying request as to three defendants and granting one defendant's request) and United States v. Sindone, No. 01 Cr. 517 (MBM), 2002 WL 48604, at *1 (S.D.N.Y. Jan. 14, 2002) (denying request). Our review of the case law suggests that requests for bills of particulars have rarely been granted in cases involving defendants charged with violent offenses.
Altieri
Altieri requests a laundry list of particulars. With respect to Count 25, Altieri seeks: (1) the date he allegedly joined the conspiracy; (2) the names of all known coconspirators; (3) the date and location of each overt act; (4) the date, invoice number and amount of each alleged fraudulent invoice; (5) the "various contracts" referenced in paragraph 61 of the Indictment; (6) an explanation of the "fraudulent aspect" of each of the fraudulent invoices; and (7) the date and amount of each alleged kickback. See Altieri Mem. filed 6/27/05 at 9-10.
Where appropriate, we combine related requests in our summary of Altieri's motion.
The Government failed to address Altieri's motion in its initial opposition. However, in a letter to this Court dated April 28, 2006, the Government explained that this was an oversight and opposed Altieri's motion for a bill of particulars in its entirety. Altieri filed a reply in the form of a letter to this Court dated May 4, 2006.
With respect to Count 26, Altieri requests: (1) the date and place of each action he is alleged to have taken "to promote, manage, establish, carry on and facilitate" unlawful activity; (2) the date and place of each act of commercial bribery; (3) identification of each of the "multiple payments for the same services" alleged in paragraph 67 of the Indictment; and (4) the date and amount of each kickback. Id. at 10. Finally, with respect to Count 27, Altieri seeks: (1) identification of each "false and fraudulent" invoice together with an explanation of what portion of each invoice is fraudulent and how they are fraudulent; (2) identification of the "checks and other documents" referred to in paragraph 69 of the Indictment; and (3) the date and contents of "each false writing or document." Id. See also Altieri Reply Decl. dated 2/17/06 ("Altieri Reply Decl.").
Altieri's requests must be evaluated in the context of the Indictment. As an initial matter, this Court observes that the charges against Altieri are actually quite limited. He is not charged in the RICO counts, and is only alleged to have conspired with Anthony Columbo and Contino in a fraudulent scheme while he was employed as a facilities manager by DoubleClick, Inc. ("DoubleClick"). See Ind. at ¶¶ 59-69. According to the Indictment, Altieri approved duplicative invoices submitted to DoubleClick by companies allegedly controlled by Contino and Anthony Columbo (the "EDP Entities") in exchange for at least $90,000 in kickback payments between 1999 and 2002. See id. See also Ind. at ¶ 61 (stating that fraudulent invoices included bills to DoubleClick for "construction, cleaning, and maintenance services that had been previously submitted by the EDP Entities"). The Indictment specifically alleges that one of the fraudulent invoices was approved by Altieri on January 7, 2000. See Ind. at ¶ 65. This information is sufficient to allow Altieri to prepare for trial and interpose a plea of double jeopardy in the event of a second prosecution.
Most of the particulars sought by Altieri amount to requests that the Government identify the fraudulent invoices, duplicative payments and kickback payments at issue before trial. Altieri relies on United States v. Bortnovsky, 820 F.2d 572 (2d Cir. 1987) to argue that, in the absence of such particularization, he will be unable to prepare for trial and will somehow assume the burden of establishing at trial that "hundreds and hundreds" of invoice documents and payment documents were not false or fraudulent. Altieri Reply Decl. at ¶ 23.
See Altieri Reply Decl. at ¶ 19 ("Distilled to their simplest expression, Mr. Altieri simply seeks particularization of the false and fraudulent invoices he personally approved for multiple payments by DoubleClick in return for kickbacks by cash payments and wire transfers.") (internal quotations omitted).
In Bortnovsky, the defendant was charged with submitting false insurance claims for burglary losses. The district court denied defendant's motion for a bill of particulars identifying the falsified burglaries and claim forms and permitted the Government to introduce evidence related to twelve burglaries at trial although only four burglaries were alleged to have been fabricated. See 820 F.2d at 574. The Second Circuit reversed the conviction after finding that defense counsel confronted "mountains of documents" in discovery and that the burden of proof impermissibly shifted to the defense at trial to prove that eight of the twelve burglaries had actually occurred. Id. at 575.
This case is distinguishable from Bortnovsky. First, the quantity of discovery that Altieri must review before trial is limited to a relatively modest collection of documents produced by the EDP Entities and DoubleClick as well as certain banking records. Second, we assume that with the assistance of a spreadsheet, Altieri can analyze the documents produced and determine which suggest that duplicative invoices or payments were made for the same services. Double-billing is ordinarily not a complex financial crime and should be relatively easy to detect from the discovery produced in this case. Finally, there is no basis whatsoever for Altieri's contention that the lack of particularization will improperly shift the burden of proof to the defense to demonstrate that most of the invoices prepared by the EDP Entities and paid by DoubleClick were legitimate. Rather, this Court expects that the evidence introduced at trial will generally focus on the allegedly fraudulent invoices, duplicative payments and kickback payments that support the charges against Altieri. As a result, the task confronting Altieri's counsel at trial will be much more limited than that facing the defense in Bortnovsky.
We are particularly skeptical of Mr. Cagney's assertions that the quantity of discovery is overwhelming since his representations to this Court on the subject have varied. In a letter dated October 3, 2005 related to the severance motion, Mr. Cagney described the relevant discovery as being limited to "a half dozen banking documents and a number of invoices" and emphasized that most of the Government's "huge volume of evidence" was completely unrelated to the charges against Altieri. In contrast, when requesting the bill of particulars, Mr. Cagney complained about the burden imposed by the Government's production of "full but jumbled boxes of hundreds and hundreds of invoices, [and] many hundreds of invoice and payment documents." Altieri Reply Decl. at 13-14.
The discovery produced in Bortnovsky was more voluminous, including approximately 4,000 documents. See 820 F.2d at 574.
Altieri also relies on United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988) and United States v. Nachamie, 91 F. Supp. 2d 565 (S.D.N.Y. 2000) to support his motion. See Altieri Reply Decl. at ¶¶ 25-28. His reliance on these cases is also misplaced.
In Davidoff, the Second Circuit reversed because the district court both denied defendant's motion for a bill of particulars identifying victims of a RICO scheme and allowed the Government to introduce evidence at trial related to uncharged RICO offenses and the extortion of companies other than those specifically named in the Indictment. See 845 F.2d at 1154. In this case, Altieri is not charged with RICO offenses and the Indictment clearly specifies that the only victim of the double-billing scheme was DoubleClick.
Nachamie is distinguishable because it involved a much larger universe of discovery and a relatively complex medical insurance fraud scheme. In Nachamie, there was a legitimate concern about surprise at trial. See 91 F. Supp. 2d at 571 (focusing on fact that discovery included more than 200,000 pages related to 2,000 Medicare claims that could have been fraudulent in five different ways).
Altieri also requests particulars concerning the kickbacks, cash payments and wire transfers referenced in the Indictment.See Altieri Reply Decl. at ¶ 28. Altieri suggests that the Government has produced no evidence of kickback payments in discovery other than "limited wire transfer documentation, which obviously was not a criminal kickback." See id. As noted earlier, this Court has concluded that the content of the Indictment is sufficient to inform Altieri of the charges against him since it clearly alleges that he received kickback payments of at least $90,000 from Anthony Columbo and Contino during the period between 1999 and 2002 in exchange for his approval of fraudulent invoices while employed at DoubleClick.See especially Ind. at ¶¶ 60-61.
Because we find that the Indictment, together with the discovery produced in this case, contain sufficient information to allow Altieri to prepare for trial, avoid surprise and interpose a plea of double jeopardy in the future, the motion for a bill of particulars is denied in its entirety.
While Altieri has requested additional particulars such as the date he allegedly joined the conspiracy, the names of all coconspirators, and the date and location of overt acts, these requests seek evidentiary detail that is clearly beyond the proper scope of a bill of particulars. This Court therefore denies them without further discussion.
V. Motions to Suppress Wiretap Evidence
Anthony Columbo, Christopher Columbo and Berlingieri have each filed separate motions to suppress wiretap evidence. Generally, their arguments fall into three categories. Defendants argue that: (1) the affidavits supporting the warrant application failed to establish probable cause; (2) the affidavits did not establish the necessity of eavesdropping; and (3) law enforcement officers failed to take appropriate steps to minimize non-pertinent calls. Standing
As mentioned earlier, various other defendants join in the suppression motions.
Anthony Columbo also argues that suppression is appropriate because a "great number" of the line sheets provided during the course of discovery are "utterly unintelligible." A. Columbo Omnibus Mot. at 29. Since this argument clearly does not present a valid legal basis for suppression, it is summarily rejected. See Gov't Mem. at 47-48.
As an initial matter, we must consider the issue of standing. Under Title III, only an "aggrieved person" has standing to challenge the validity of a wiretap. See 18 U.S.C. § 2518 (10)(a). An aggrieved person is defined as a "person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed." See 18 U.S.C. § 2510(11). "Standing to challenge evidence obtained through the use of electronic surveillance techniques requires a showing by a defendant that his or her voice was heard on the wire or that his or her telephone was tapped." United States v. Burford, 755 F. Supp. 607, 609 (S.D.N.Y. 1991) (citing United States v. Fury, 554 F.2d 522, 525 (2d Cir. 1977)). While any confirmed interceptee or target of a wiretap has standing to seek suppression on probable cause or necessity grounds, only individuals with a proprietary or possessory interest in the premises on which the subject telephone is located have standing to challenge minimization procedures. See United States v. Ruggiero, 928 F.2d 1289, 1303 (2d Cir. 1991); United States v. Gallo, 863 F.2d 185, 192 (2d Cir. 1988).
The Government correctly emphasizes that most of the defendants moving to suppress wiretap evidence in this case have not submitted sworn affidavits confirming that they have listened to tapes of intercepted calls and heard their own voices. See Gov't Mem. at 18. However, the August 8, 2000 affidavits submitted in support of the eavesdropping warrants for the home phones of Anthony Columbo, Christopher Columbo and Berlingieri as well as the home phone and a cell phone used by Dioguardi, confirm that all four defendants were named targets of the surveillance. See Gov't App., Exs. A-D. These defendants therefore have standing to challenge the wiretaps on their respective telephones on both probable cause and necessity grounds. The only other defendant with such standing is Joseph Flaccavento, who has submitted a sworn affidavit confirming that his conversations were intercepted during the course of surveillance on Christopher Columbo's phone. See J. Flaccavento Aff. dated 6/21/05.
An affidavit from New York State Police Investigator Joseph McCabe supported the application for eavesdropping warrants for the home phones of Anthony Columbo, Christopher Columbo and Dioguardi as well as the cell phone used by Dioguardi, and is included as Exhibit A to the Government's Appendix (hereafter "Gov't App., Ex. A"). An affidavit from Assistant Deputy Attorney General Meryl Lutsky supporting the same eavesdropping application is included as Exhibit B to the Government's Appendix (hereafter "Gov't App., Ex. B"). Similar affidavits from McCabe and Lutsky were also submitted to support an eavesdropping warrant for the home phone of John Berlingieri (son of "Theresa Ferrara"), and they are included as Exhibits C and D to the Government's Appendix (hereafter "Gov't App., Ex. C" and "Gov't App., Ex. D").
The affidavits actually identified the target as "John Ferrara," but law enforcement officers later learned that the target's proper name was John Berlingieri. Berlingieri apparently lived at home with his mother, Theresa Ferrara, at 420 East 115th Street, 3rd Floor, New York, NY. See Gov't App., Ex. C; Berlingieri Mem. at 11.
While Anthony Columbo was the registered subscriber of the cellular phone at 914-443-8182, the phone was apparently billed to, and used by, Dioguardi. As noted earlier, Dioguardi is deceased.
We also conclude that Anthony Columbo has standing to challenge minimization procedures used in the interception of calls from his home telephone located at 25 Horton Road, Blooming Grove, New York. See A. Columbo Aff. dated 2/15/06. Similarly, Christopher Columbo and Berlingieri have standing to challenge minimization procedures used in the interception of their home telephone lines. Berlingieri has standing to challenge minimization procedures used in the interception of his cellular phone. Probable Cause
Although the Government suggests that sworn affidavits from Anthony Columbo, Christopher Columbo and Berlingieri are necessary to establish their standing to challenge minimization procedures, see Gov't Mem. at 18-19, we reject this contention since the applications for the eavesdropping warrants confirm that the subject phones were located in these defendants' homes.See Gov't App., Ex. A at ¶ 30.
Before authorizing a wiretap, a judicial officer "must determine, based on the facts in the [Government's] affidavit, that there is probable cause to believe that a crime has been, is being, or is about to be committed; probable cause to believe that communications about the crime will be obtained through the wiretap; . . . and probable cause that the premises to be wiretapped are being used for criminal purposes or are used or owned by the target of the wiretap." United States v. Wagner, 989 F.2d 69, 71 (2d Cir. 1993). See also 18 U.S.C. § 2518(3).
A reviewing court must accord substantial deference to the issuing officer, limiting its inquiry to the question of whether there was a "substantial basis" for the requisite determinations.Wagner, 989 F.2d at 72 (citing Illinois v. Gates, 462 U.S. 213, 236 (1983)). Moreover, we must consider the "totality of circumstances" presented in supporting affidavits which should be "read as a whole and construed in a realistic and common-sense manner." United States v. Ambrosio, 898 F. Supp. 177, 181 (S.D.N.Y. 1995) (citations and internal quotes omitted). The fact that potentially incriminating information contained in an affidavit may also have an innocent explanation does not necessarily defeat probable cause. See United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985); United States v. Gomez, 758 F. Supp. 145, 149 (S.D.N.Y. 1991).
Although we are required to accord substantial deference to the issuing officer, this Court would reach the same conclusions regarding probable cause and necessity if it were to apply a de novo standard of review.
The eavesdropping warrants in this case were supported by lengthy affidavits from Joseph McCabe ("McCabe"), an investigator working with the New York State Organized Crime Task Force ("OCTF"), and Meryl Lutsky ("Lutsky"), an Assistant Deputy Attorney General with the OCTF. See generally Gov't App., Exs. A-D; A. Columbo Omnibus Mot., Ex. B.
An affidavit dated September 7, 2000 in support of an extension of the eavesdropping warrant on the home telephones of Philip Dioguardi and Christopher Columbo and the cell phone of Philip Dioguardi is included as an exhibit to Anthony Columbo's motion. See A. Columbo Omnibus Mot., Ex. B.
Among other things, McCabe's affidavits analyze pen register data and toll records documenting telephone calls between various defendants and explain why those patterns are consistent with the operation of an illegal bookmaking operation. See Gov't App., Ex. A at ¶¶ 30-33, 35-37, 48, 56-57; Gov't App., Ex. C at ¶¶ 30-37, 48, 55-57, 62-63. Pen register data and toll records also confirmed telephone calls from some of the defendants to a number of suspected gambling locations. See Gov't App., Ex. A at ¶¶ 32, 42, 44-45; Gov't App., Ex. C at ¶¶ 44-47, 57. Additionally, physical surveillance documented frequent meetings between Dioguardi, Christopher Columbo and Anthony Columbo as well as frequent meetings and telephone calls between Dioguardi and John Ferrara (later identified as Berlingieri). See Gov't App., Ex. A at ¶¶ 32, 36-37; Gov't App., Ex. C at ¶¶ 29, 32, 43, 58, 64. Surveillance confirmed various combinations of the defendants meeting with convicted gamblers in the vicinity of a known gambling wire room and "policy drop" locations. See Gov't App., Ex. A at ¶ 29. A confidential informant, a sports bettor, had also informed investigators that he had been told that Christopher Columbo was the head of a gambling operation. See Gov't App., Ex. A at ¶ 49; Gov't App., Ex. E at ¶ 9.
McCabe has significant expertise investigating illegal bookmaking operations and therefore his opinions are an important factor in determining whether the pattern of telephone calls and meetings is suggestive of an illegal gambling operation. See Gov't Mem., Ex. A at ¶ 1. See also United States v. Ambrosio, 898 F. Supp. 177, 183 (S.D.N.Y. 1995) (citing cases).
When these facts are considered together with other information included in the affidavits, we easily conclude that there was a substantial basis for the state court's probable cause determinations. Defendants' motions to suppress on this ground are therefore denied.
Necessity
Christopher Columbo and Berlingieri also move to suppress on the ground that the supporting affidavits did not demonstrate that alternative investigative methods were inadequate. See generally C. Columbo Mem. at 13-18; Berlingieri Mem. at 17-24. Title III simply requires the Government to provide a "full and complete statement as to whether or not other investigative measures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(1) (c). See also Wagner, 989 F.2d at 71 (issuing officer must be satisfied "that alternative means have been tried and failed or appear too dangerous or unlikely to succeed"). Exhaustion of every alternative investigative method, or any particular method, is not required before law enforcement officers seek authorization for a wiretap.See United States v. Torres, 901 F.2d 205, 231 (2d Cir. 1990); United States v. Burford, 755 F. Supp. 607, 613 (S.D.N.Y. 1991).
We analyze the state-authorized warrants in this case under the federal statute because the New York statute's requirements track those of the federal statute. See United States v. Scala, 388 F. Supp. 2d 396, 403 n. 28 (S.D.N.Y. 2005) (citing United States v. Lilla, 699 F.2d 99, 102 (2d Cir. 1983)).
The affidavits supporting the eavesdropping applications in this case describe, in considerable detail, prior investigative efforts including the use of physical surveillance, pen registers, trap and trace devices, toll records and an informant. The affidavits also explain why these investigative techniques could produce only limited evidence of the illegal gambling operation, and why electronic surveillance was needed to gather critical evidence concerning the identities of individuals participating in the gambling operation, the roles of particular participants, and how gambling activities were conducted. See Gov't App., Ex. A at ¶¶ 64-71; Gov't App., Ex. B at ¶¶ 8-18; Gov't App., Ex. C at ¶¶ 64-71. We find these statements more than sufficient to satisfy the requirements of 18 U.S.C. § 2518(1), and defendants' motions to suppress on this ground are denied.
Request for Franks Hearing
Christopher Columbo, Anthony Columbo and Berlingieri also suggest that material omissions or misrepresentations in the affidavits supporting the eavesdropping applications necessitate a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). Neither Berlingieri nor Anthony Columbo identifies any particular misrepresentations or omissions. See Berlingieri Mem. at 16-17, 25-26; A. Columbo Omnibus Mot. at 34-35. Christopher Columbo, however, argues that the following constituted material omissions: (1) the affidavit did not explain that the gambling conviction referenced was Columbo's only criminal conviction; (2) the affidavit mentions that Columbo was known to be an "associate" of the Columbo crime family and therefore misleadingly implied that Columbo had an "official position" in the family; (3) the affidavit failed to explain that Columbo was no longer involved in the day-to-day operations of the Columbo crime family. C. Columbo Mem. at 20-21. See also Gov't App., Ex. A. at ¶¶ 23-26.
Defendants completely fail to make a "substantial preliminary showing" that the affidavits contained inaccuracies that were the result of "deliberate falsehood or of reckless disregard for the truth." Franks, 438 U.S. at 171. Consequently, defendants' request for a Franks hearing is denied.
Minimization
Anthony Columbo and Christopher Columbo also argue that suppression is required in this case because law enforcement officers failed to take appropriate steps to minimize the interception of non-pertinent calls. A. Columbo Omnibus Mot. at 26-29; C. Columbo Mem. at 22-26. Title III requires that eavesdropping "be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter." 18 U.S.C. § 2518(5). The statute does not prohibit the interception of any non-pertinent conversations and instead simply requires law enforcement officers to make reasonable efforts to minimize such interceptions. See Scott v. United States, 436 U.S. 128, 140 (1978); United States v. McGuinness, 764 F. Supp. 888, 900 (S.D.N.Y. 1991).
As discussed earlier, Anthony Columbo and Christopher Columbo only have standing to challenge minimization procedures used in wiretaps of their own home phones.
Once the Government makes a prima facie showing of compliance with Title III, the burden shifts to the defendant to demonstrate that "a substantial number of nonpertinent conversations have been intercepted unreasonably." United States v. Menendez, No. 04 Cr. 219 (DAB), 2005 WL 1384027, at *3 (S.D.N.Y. June 8, 2005) (citing cases). In this case, the Government has made the requisite showing of good faith compliance by representing that the New York Attorney General's Office: (1) provided comprehensive minimization instructions to monitoring personnel and required them to read and sign the instructions; (2) required officers to maintain monitoring logs; and (3) submitted periodic progress reports to supervising judicial officers. See Gov't Mem. at 44, Gov't App., Ex. F. Moreover, a review of the sample of line sheets submitted by Christopher Columbo indicates that the vast majority of the calls recorded were less than two minutes long. See C. Columbo Mem., Ex. A (including line sheets for period between October 1 and October 24, 2000); Gov't Mem. at 74 (explaining how to determine length of calls). See also United States v. Capra, 501 F.2d 267, 275-76 (2d Cir. 1974) (holding that minimization requirement does not apply to calls less than two minutes). These line sheets also include notations confirming that non-pertinent interceptions were regularly cut short by monitoring officers.See Gov't Mem. at 46-47, Gov't App., Ex. G.
Having determined that defendants failed to meet their burden of demonstrating that minimization efforts were unreasonable or that a substantial number of non-pertinent calls were intercepted, neither a hearing nor suppression is appropriate. Thus, defendants' motions to suppress based on alleged failures to minimize are denied.
VI. Motion to Suppress Evidence from "Broad Options-The Gold Depot"
We are frankly puzzled by Joseph Flaccavento's motion to suppress evidence gathered from a search of his jewelry store, "Broad Options-The Gold Depot." See J. Flaccavento Mem. at 12-13. From the limited information provided, the search and seizure appears to have been authorized by a warrant and no specific legal insufficiency argument has been advanced. See id., J. Flaccavento Aff. dated 6/21/05. While counsel only vaguely discusses the grounds for suppression, the motion seems to rest on the assertion that defense counsel has had a difficult time scheduling an appointment with Lutsky or her colleagues to inspect seized materials. See J. Flaccavento Mem. at 12.
Flaccavento asserts only that "the applications for the wiretaps and the search warrants were inadequate and defective for a variety of reasons." J. Flaccavento Mem. at 13.
The Government has stated that only one box of documents was seized from the store and that these materials are available for inspection and will not be used at trial. See Gov't Mem. at 116.
In response, the Government has represented that the materials are, in fact, available for defense counsel's inspection. Id. Given the lengthy pendency of proceedings in this case, we trust that counsel can agree on a mutually convenient time for the inspection to occur. For these reasons, Flaccavento's motion to suppress materials seized from the Broad Options-The Gold Depot is denied.
VII. Motion to Suppress Statements of Philip Dioguardi
Anthony Columbo argues that the recorded statements of Philip Dioguardi should be suppressed for two reasons. First, Columbo contends that Dioguardi's statements are testimonial and that their admission at trial would violate Crawford v. Washington, 541 U.S. 36 (2004). Second, Columbo argues that the statements are inadmissible hearsay. See A. Columbo Omnibus Mot. at 36-42, A. Columbo Reply at 9-11. Both of Columbo's arguments are apparently premised on his erroneous belief that Dioguardi was a Government cooperator. See A. Columbo Omnibus Mot. at 40-41. While conceding that the recorded statements of a cooperator would not be admissible for their truth, the Government has represented to this Court that Dioguardi was not a cooperating witness during the course of the investigation. See Gov't Mem. at 76.
In Crawford, the Court held that the Confrontation Clause prohibits a prior testimonial statement from being admitted at trial, unless the declarant is unavailable to testify and defendant has had a prior opportunity to cross-examine the declarant. 534 U.S. at 59. While the Court declined to exhaustively define what statements should be viewed as "testimonial," it did explain that such statements include prior testimony, interrogations involving government officers or statements "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 51-52.
Columbo's suggestion that the Government indicted Dioguardi, despite knowledge of his death, so that his statements would be admissible under Fed.R.Evid. 801(d) (2) (E) makes little sense since the statements of co-conspirators, whether indicted or not, are admissible under the Rule if they are made in furtherance of the conspiracy.
Since Dioguardi was not cooperating with the Government, Columbo's motion must be denied. First, statements recorded during the course of a wiretap without Dioguardi's knowledge are clearly not testimonial within the meaning of Crawford. See United States v. Goldstein, 442 F.3d 777, 785 (2d Cir. 2006) (stating that declarant must have some awareness that his statement might be used in future judicial proceedings in order to be testimonial within the meaning of Crawford); United States v. Saget, 377 F.3d 223, 228-29 (2d Cir. 2004) (same). Second, Dioguardi's statements would not be hearsay if they satisfied the requirements of Fed.R.Evid. 801(d) (2) (E) or might be admissible hearsay under Fed.R.Evid. 804(b) (3). See Saget, 377 F.3d at 227 ("If the statements are not testimonial, their admission [does] not violate the Confrontation Clause so long as the statements fall within a firmly rooted hearsay exception or demonstrate particularized guarantees of trustworthiness."). For these reasons, defendants' motion is denied.
Of course, this Court cannot definitively rule on the admissibility of Dioguardi's recorded statements in the abstract.
VIII. Discovery and Pretrial Disclosures
Defendants request an array of additional discovery and pretrial disclosures. See A. Columbo Omnibus Mot. at 45-79; C. Columbo Mem. at 31-50; J. Flaccavento Mot. at 2-4; Altieri Supplemental Motion filed 8/25/05. The Government has represented that it has complied with its obligations under Rule 16, Brady and Giglio and produced some of the discovery requested, but that the majority of the requested discovery and pretrial disclosures exceed what defendants are entitled to before trial. See Gov't Mem. at 103-27. We agree. Because the motions are largely boilerplate and without merit only a handful of the motions will be discussed individually.
Specifically, Christopher Columbo requests that the Government produce a list of trial exhibits, a witness list, a list of unindicted co-conspirators, prior statements of co-conspirators, a summary of expert testimony, and notice of any uncharged crimes and prior bad act evidence to the defense thirty days before trial. C. Columbo Mem. at 41-50. With the exception of the request for identification of unindicted co-conspirators and prior statements of co-conspirators, to which the defense is not entitled, Columbo's requests are addressed by the pretrial schedule.
Anthony Columbo requests pretrial disclosures including: (1) a summary of expert testimony related to reputation evidence, (2) notice of 404(b) evidence, (3) the identity of informants and an opportunity to interview them, (4) full disclosure of Brady andGiglio material, and (5) early disclosure of Jencks Act material. See A. Columbo Omnibus Mot. at 45-46, 51, 62-70. Most of these requests are addressed by the pretrial schedule.
Anthony Columbo also seeks additional discovery. See A. Columbo Mem. at 70-79. The Government has already produced some of the requested discovery and contends that other requests fall outside the scope of Fed.R.Crim.P. 16. See Gov't Mem. at 115-127. We agree and therefore deny Anthony Columbo's requests for discovery of all evidence the Government intends to use at trial, written statements of non-witnesses, grand jury transcripts and the substance of any hearsay statements that the Government intends to introduce under Rule 801(d) (2) (E).
Joseph Flaccavento requests that the Government designate "forthwith" the documents it plans to introduce at trial and/or be "precluded from introducing any supporting documents or tape recordings at trial." See J. Flaccavento Mem. at 16-17. Invoking Fed.R. Crim P. 12(b) (4), Flaccavento's motion also requests discovery that generally exceeds the scope of what the Government is required to produce under either Rule 12 or Rule 16. See J. Flaccavento Mot. at 2-4. Flaccavento's motion for additional discovery is granted to the extent his requests are consistent with the pretrial schedule adopted by this Court, and denied in all other respects.
Altieri requests that the Government be required to produce: trial exhibits 30 days before trial, demonstrative aids 20 days before trial, proposed jury charges 15 days before trial, voir dire 10 days before trial, declarations affirming the Government's compliance with obligations under Brady andGiglio, and advance notice of any prior statements made by Altieri that the Government intends to use at trial. See Altieri Suppl. Motion filed 8/25/05.
As an initial matter, we set out the pretrial schedule because it resolves a significant portion of defendants' motions. In limine motions, including the Government's notice of Rule 404(b) material, proposed Bruton redactions and so-called "reputation evidence," should be submitted to this Court no later than November 27, 2006. Responses to such motions are due on December 5, 2006 and any replies must be submitted by December 8, 2006. The parties will submit proposed jury questionnaires and any supplemental voir dire questions no later than December 11, 2006. The parties will submit proposed jury charges by December 21, 2006. Only because it has volunteered to do so, the Government will provide notice to defendants of any statements it intends to introduce pursuant to Fed.R.Evid. 807 by December 29, 2006. See Gov't Mem. at 115. The Government will also provide a preliminary exhibit list, including relevant audio and video tapes, and expert disclosures by December 29, 2006. The Government should turn over a witness list for the first week of expected testimony no later than January 2, 2007. For the remainder of trial, witness lists for each week should be produced on the preceding Friday. The Government's production of Giglio and Jencks Act material will also commence on January 2, 2007, and the presumptive date for additional disclosures will be one week before the witness is expected to testify. Trial will commence on January 3, 2007 with the distribution of the jury questionnaire.
Generally, the pretrial schedule requires submissions and disclosures to be made somewhat earlier than might otherwise be the case to accommodate the fact that the trial starts shortly after a significant holiday period.
While this Court encourages dialogue between the parties about questions for the jury, we will not automatically adopt an agreed-upon jury questionnaire.
The Government may supplement, in good faith, its exhibit list at any time, including trial.
Anthony Columbo's motion requesting that the Government be required to immediately disclose expert witnesses who will testify about "coded" conversations recorded in wire intercepts is denied. See A. Columbo Omnibus Mot. at 59-60. We note that the expert notice required by the pretrial schedule allows plenty of time for defendants to request hearings on specific expert issues.
If the Government is genuinely concerned that such disclosure will endanger witnesses or lead to witness tampering, it may submit an ex parte application explaining the reasons for withholding disclosure.
We agree with the Government that in some instances defendants have misconstrued what materials fall within the scope of Giglio. See Gov't Mem. at 105, A. Columbo Omnibus Mot. at 65-66 (requesting information about "potential witnesses" and deceased cooperators).
While this Court has no authority to order early disclosure of such material under 18 U.S.C. § 3500, the Government has volunteered to provide early disclosure. See Gov't Mem. at 104-105; United States v. Coppa, 267 F.3d 132, 145 (2d Cir. 2001).
To the extent that defendants have moved for disclosures and discovery beyond what is required under the pretrial schedule, the motions are denied.
Brady and Giglio Material
The Second Circuit requires Brady and Giglio disclosures to be made "no later than the point at which a reasonable probability will exist that the outcome would have been different if an earlier disclosure had been made." See United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001). Defendants have submitted a number of motions related to the disclosure of material pursuant to Brady v. Maryland, 373 U.S. 83 (1963). In response, the Government has represented that it is currently unaware of any Brady material, but that it understands its obligations and will disclose any material it discovers in a timely fashion. See Gov't Mem. at 104. We accept the Government's good-faith representations and deny the defendants' motions concerning Brady materials. See, e.g., United States v. Perez, 940 F. Supp. 540, 543 (S.D.N.Y. 1996) ("Courts in this Circuit have repeatedly denied pretrial requests for discovery orders pursuant to Brady where the Government . . . has made a good-faith representation to the court and defense counsel that it recognizes and has complied with its disclosure obligations under Brady.").
See, e.g., C. Columbo Mem. 47-50, A. Columbo Omnibus Mot. at 64-68, Altieri Suppl. Mot. filed 8/25/05, Goldberg Aff. dated 8/25/05 at 6-9; Clemenza Letter dated 3/29/06.
With respect to defendants' motions related to Giglio material, the pretrial schedule provides defendants with ample notice of impeachment material for Government witnesses. To the extent defendants seek earlier disclosures or material related to individuals other than the Government's witnesses at trial, those motions are denied.
Requests for Audibility Hearings and Transcription of Tapes
Defendants have also submitted motions requesting hearings on the audibility of tapes and accuracy of associated line sheets as well as motions requesting the Government to transcribe and index the audio tapes. See C. Columbo Mem. at 28-40, A. Columbo Omnibus Mot. at 61. The request for an audibility hearing is premature. Once the Government has designated the tapes it intends to use at trial, defendants should identify any specific audibility issues and bring them to the Court's attention promptly. There is no basis whatsoever for this Court to inquire into the accuracy of line sheets since they will not be considered by the jury. Finally, the Government has no obligation to transcribe or index audio tapes for the defense. These motions are therefore denied, although defendants may renew their request for an audibility hearing once the Government has identified the audio tapes it intends to use at trial.
Confidential Informants
Defendants also request that the Government be required to identify confidential informants and provide defense counsel with an opportunity to question informants who will not be called at trial. See, e.g., A. Columbo Omnibus Mot. at 62-64, J. Flaccavento Mot. at 3. The Government contends that defendants have not met their burden of demonstrating that a particular informant's testimony is material to the defense as required by the Second Circuit's decision in United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988). See Gov't Mem. at 101-02. The Government also contends that disclosure of confidential informants is inappropriate because some of the defendants are alleged to have had connections with the Columbo crime family and are charged with violent crimes involving extortion. See id. at 102-03.
See also Roviaro v. United States, 350 U.S. 53, 67 (1957) (holding that the informant privilege must yield "[w]here the disclosure of an informant's identity . . . is relevant and helpful to the defense of an accused, or is essential to the fair determination of a case"); United States v. Russotti, 746 F.2d 945, 950 (2d Cir. 1984) (stating that disclosure appropriate "where the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence").
As the Second Circuit has established, "[s]peculation that disclosure of the informant's identity will be of assistance is not sufficient to meet the defendant's burden; instead, the district court must be satisfied . . . that the defendant's need for disclosure outweighs the government's interest in shielding the informant's identity." United States v. Fields, 113 F.3d 313, 324 (2d Cir. 1997) (citing Roviaro v. United States, 350 U.S. 53, 62 (1957)). We find that defendants have not met their burden of proffering specific arguments demonstrating the materiality of a particular informant's testimony and therefore deny the motions.
Rule 17(c) Subpoenas
Altieri has also requested this Court to authorize certain third-party subpoenas duces tecum that he would like to serve on DoubleClick and EDP Entities pursuant to Fed. Crim. R. 17(c).See Altieri Mem. filed 6/27/05 at 12-14. As currently drafted, the requests set forth in the proposed subpoenas are excessively broad and burdensome and some of the requests seek documents that duplicate materials already produced by the Government. For these reasons, Altieri's motion is denied. If Altieri decides to submit more narrowly-tailored subpoenas, we will certainly consider the application.
The proposed subpoena for DoubleClick requests: (1) original vendor files from 1999 to 2002; (2) auditors' records from 1999 to 2002; (3) documents "embodying or otherwise reflecting DoubleClick's accounts payable policies and procedures"; (4) "DoubleClick's vendor approval process from 1999 to 2002"; (5) employee guidelines concerning gifts from vendors for the years 1999 to 2002; (6) organizational charts; (7) Altieri's performance appraisals; (8) copies of all e-mails DoubleClick exchanged with the government concerning the allegations set forth in the indictment; and (9) "copies of all e-mails relating in any way to the allegations set forth in the indictment." See Altieri Mem. filed 6/27/05.
The schedule attached to the proposed subpoena for the EDP Entities requests: (1) all invoices issued by the EDP Entities to DoubleClick; (2) all documents reflecting payments made by DoubleClick to the EDP Entities; and (3) all documents reflecting payment of the kickback referenced in paragraph 67 of the Indictment.
In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court held that a party seeking to enforce a subpoenaduces tecum must show that: (1) the documents are evidentiary and relevant; (2) the documents are not otherwise reasonably procurable in advance of trial by exercise of due diligence; (3) the party cannot properly prepare for trial without the production and inspection and the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) the application is made in good faith and is not intended as a general "fishing expedition." See id. at 699-700. Fed.R.Crim. 17 (c) (2) provides that "[o]n motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive."
IX. In Limine Motions
Admissibility of Statements Contained in Eavesdropping Applications, Line Sheets and Progress Reports under Rule 801(d) (2)
Christopher Columbo requests that this Court rule that statements contained in eavesdropping warrant applications and supporting affidavits, comments made by investigators in line sheets, and progress reports submitted to state courts will be admissible against the Government in this case under Fed.R.Evid. 801(d). See C. Columbo Mem. at 55-61. We decline Columbo's invitation to abstractly rule on this evidentiary issue and agree with the Government that the motion is premature. See Gov't Mem. at 127-29.
References to "Other Crimes" and Uncharged Misconduct
Anthony Columbo requests an Order from this Court "instructing the attorney for the Government, his representatives and witnesses to refrain from making any direct or indirect reference, whatsoever, at a trial before the jury of any other extraneous crimes, convictions, or misconduct by the defendant or other defense witnesses . . . until a hearing has been held outside the presence of the jury[.]" A. Columbo Omnibus Mot. at 53. The Government has not specifically responded to this motion.
As an initial matter, this Court encourages all parties to seekin limine rulings on evidentiary issues. However, we find that the order requested by Columbo is unnecessary. The pretrial schedule requires the Government to provide notice of 404(b) evidence and an exhibit list more than a month before trial, and this Court will resolve evidentiary issues before trial as appropriate. To the extent that defense counsel are concerned about the introduction of specific evidence against contemplated defense witnesses under Fed.R.Evid. 609 and believe that an in limine ruling would be beneficial, they should bring the specific issue to the attention of this Court at the earliest practicable time.
See 4 Joseph M. McLaughlin, Jack B. Weinstein Margaret A. Berger, Weinstein's Federal Evidence § 609.22 (2d ed. 2006) (observing that the admissibility of criminal convictions should be determined before trial whenever possible to facilitate tactical decisions, but recognizing that trial courts retain discretion to defer rulings).
Motion to Exclude Evidence or Testimony Concerning Cooperation Agreements
In a Letter Memorandum dated March 13, 2006, Clemenza requested that this Court hold a hearing to determine whether to exclude portions of any cooperation agreement stating that the witness is required to give truthful information to the Government before trial and that the cooperator will be subject to prosecution for all crimes of which the Government is aware if he fails to give truthful testimony at trial. Clemenza's fundamental concern appears to be that the introduction of these portions of the cooperation agreement would amount to improper bolstering of the Government's witnesses. The Government opposed Clemenza's motion in a letter to this Court dated June 6, 2006.
As an initial matter, we note that defense counsel has cited no case law whatsoever to support his arguments. Moreover, Clemenza appears to overlook the fact that guidelines for the introduction of the challenged cooperation agreement provisions are well-established in the Second Circuit. In the absence of an attack on the credibility of the witness, the Government is limited to referring to the existence of the cooperation agreement and "related impeachment facts, but may not raise bolstering aspects of the agreement such as truth telling provisions, charge reinstatement provisions or penalties."United States v. Cosentino, 844 F.2d 30, 34 (2d Cir. 1989). However, once the credibility of a testifying cooperator is attacked, the Government may introduce evidence to bolster the credibility of its witness and this may include references to the type of cooperation agreement provisions challenged by Clemenza. See United States v. Carr, 424 F.3d 213, 228 (2d Cir. 2005); United States v. Arroyo-Angulo, 580 F.2d 1137, 1146-47 (2d Cir. 1978). Clemenza's motion is denied.
Instead, counsel's arguments are supported in part with a self-authored article.
CONCLUSION
While defendants' submissions contain arguments and motions beyond those discussed in this opinion, we find, after careful review, that none of the additional points merit further discussion. To summarize, we have granted defendants' motions to join in the motions of their co-defendants. We have also granted in part the defendants' motions for pretrial disclosures, but only to the extent the requests are consistent with the pretrial schedule set forth in this decision. In all other respects, the defendants' motions are denied.
IT IS SO ORDERED.