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finding that defendants had not met their "heavy burden" of establishing actual prejudice, because even though they were unable to call unavailable witnesses, they did not provide "any details as to how the witnesses would exculpate them"
Summary of this case from Velez v. LeeOpinion
S4 02 CR 743 (RCC)
January 5, 2004
MEMORANDUM OPINION ORDER
Defendants Louis Vallario, Frank Fappiano, and Edward Garafola (together, "Moving Defendants"), along with three other codefendants, are charged in an eight-count indictment alleging various violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c)-(d). Moving Defendants move: (1) to dismiss certain charges in the indictment, (2) to sever certain charges, and (3) to compel the Government to provide a bill of particulars and discovery. In addition, Moving Defendants move to strike all references to "organized crime" in the indictment and move to inspect jury lists. Defendant Vallario also moves to compel the Government to provide him with a bill of particulars and to sever the charges against him from those against his codefendants. The Court DENIES the motions with the exception of the motion to inspect jury-selection materials, which the Court GRANTS IN PART AND DENIES IN PART.
Since Moving Defendants filed their motions, the grand jury has returned a fourth superseding indictment. In a letter to the Court dated October 23, 2003, Moving Defendants renewed their motions as applied to the fourth superseding indictment. All references to "the indictment" are to the fourth superseding indictment.
This Memorandum Opinion Order does not address Moving Defendants' request to reserve their right to move for leave to file additional, unspecified motions. The Court will deal with such requests at the appropriate time.
I. Challenges to Count One: Pattern of Racketeering
Count One consists of fifteen acts constituting a pattern of racketeering. Moving Defendants challenge the indictment with regard to Racketeering Acts One through Four, and Eight through Ten. Racketeering Act One of the indictment charges Moving Defendants with: (a) conspiracy to murder Frederick Weiss, and (b) the murder, and aiding and abetting the murder, of Weiss. Racketeering Act Two charges Fappiano with the murder, and aiding abetting the murder, of Frank Parasole. Racketeering Acts Three and Four charge Fappiano with witness tampering. Racketeering Act Eight alleges that Vallario and Fappiano engaged in a loansharking business by (a) financing extortionate extensions of credit, (b) conspiring to make extortionate extensions of credit, and (c) conspiring to collect extensions of credit through extortionate means. Acts Nine and Ten charge Garafola with operating a loansharking business by (a) conspiring to make extortionate extensions of credit, and (b) conspiring to collect extensions of credit through extortionate means.
A. Racketeering Act One: Murder of Frederick Weiss
Moving Defendants argue that: (1) the allegations of murder or aiding and abetting the murder of Frederick Weiss must be dismissed because the facts proffered do not constitute the crimes charged; (2) all the allegations with regard to Weiss's murder should be dismissed due to prejudicial pre-indictment delay; and (3) the charge of conspiring to murder Weiss should be dismissed because there is no allegation of an overt act.
1. Sufficiency of Murder and Aiding and Abetting Charges
The grand jury indicted Moving Defendants for the September 11, 1989 murder of Frederick Weiss. The indictment states that Moving Defendants and others, "unlawfully, intentionally, and knowingly did commit an act involving murder and aided and abetted the murder" of Frederick Weiss in violation of New York State Penal Law, sections 125.25 and 20.00. (Fourth Superseding Indictment ("Indict.") ¶ 13.) According to Moving Defendants, the Government has claimed elsewhere that members of the New Jersey-based DeCavalcante family murdered Weiss on the order of John Gotti because members of the Gambino family, Moving Defendants included, could not get close enough to Weiss. Moving Defendants note that members of the DeCavalcante family have also been prosecuted for Weiss's murder.See United States v. Riggi, S8 00 Cr. 118 (MBM). Their argument is essentially that the Government does not possess sufficient evidence to convict them of murdering or aiding and abetting the murder of Weiss. They assert that the Government's own position in this case is diametrically opposed to the position it took in prosecuting members of the DeCavalcante family for Weiss's murder. This argument is premature and must be rejected.
The Government need not reveal all its evidence in an indictment but must simply (a) state the elements of the offense, (b) give notice to the defendant of the charges, and (c) provide sufficient information to protect the defendant against double jeopardy. United States v. Bailey, 444 U.S. 392, 414 (1980); see also United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998). The Court must look to the indictment itself to determine whether it is sufficient, but no further. Alfonso, 143 F.3d at 777. Here, the indictment need only track the language of the New York murder and accessorial liability statutes. See United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir. 1975 ("[A]n 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 crimes.").
New York Penal Law section 125.25 provides that a person is guilty of murder in the second degree when, "with intent to cause the death of another person, he causes the death of that person or a third person." N.Y. Penal Law § 125.25. New York Penal Law section 20.00, the state accessorial liability statute, makes a person guilty of the underlying offense if that person acts with the required mental culpability and "solicits, requests, commands, importunes, or intentionally aids" another to commit the offense. N.Y. Penal Law § 20.00. The indictment charges Moving Defendants with acting intentionally in murdering and aiding and abetting the murder of Weiss. The indictment's charges of murder and aiding and abetting the murder of Weiss are therefore facially valid. The indictment adequately informs Moving Defendants of that which they are accused and enables them to avoid double jeopardy. See Alfonso, 143 F.3d at 776.
Moving Defendants will have other opportunities to contest the sufficiency of the Government's evidence, but a pretrial motion to dismiss part of the indictment is not the time nor the proper occasion.Id. at 777 (holding that "sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment"). If the Government fails to introduce sufficient evidence to sustain a conviction on the Weiss murder, Moving Defendants may move for a judgment of acquittal at the close of the Government's case or after the close of all evidence. Fed.R.Crim.P. 29(a). Rule 29 is the proper mechanism to guard against unsubstantiated charges going to the jury. See United States v. Heredia, No. 02 Cr. 1246, 2003 WL 21524008, at *5 (S.D.N.Y. July 3, 2003); United States v. Luguis, 166 F. Supp.2d 776, 779 (S.D.N.Y. 2001). Thus, Moving Defendants are not deprived of the chance to assert that the Government has insufficient evidence to convict them for the Weiss murder based on the Government's position in prosecuting the DeCavalcantes or on any other argument. Therefore, the motion to dismiss Racketeering Act One relating to the murder of Weiss is denied.
2. Prejudicial Pre-Indictment Delay
Moving Defendants assert that all of Count One should be dismissed due to prejudicial pre-indictment delay. A defendant claiming a Fifth Amendment due process violation for pre-indictment delay bears a "heavy burden" of demonstrating "actual prejudice" to his right to a fair trial and "unjustifiable Government conduct." United States v. Elsbery, 602 F.2d 1054, 1059 (2d Cir. 1979). The defendant must show that the delay violated "fundamental conceptions of justice." United States v. Lovasco, 431 U.S. 783, 790 (1977).
"[T]he applicable statute of limitations is the primary guarantee against bringing overly stale criminal charges." United States v. Marion, 404 U.S. 307, 321 (1971) (citations omitted). Timely brought criminal prosecutions are only rarely dismissed. See United States v. Lawson, 683 F.2d 688, 694 (2d Cir. 1982). An indictment brought within the time constraints of the statute 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." Marion, 404 U.S. at 324.
In the instant case, Moving Defendants do not argue that the statute of limitations has expired, but that the Government delayed indicting them for a 1989 murder to gain a strategic and unfair advantage at trial. They also argue that they are prejudiced because, by virtue of the Government's delay, they are unable to call as trial witnesses John Gotti, who died in 2002, and Salvatore Gravano, who has since been convicted of federal drug offenses.
First, Moving Defendants have not shown that the Government intentionally delayed to gain a tactical advantage. Moving Defendants assert that the Government had knowledge of the Weiss murder since 1989 when it was committed, and that "it is inexplicable why the defendants herein would not have been prosecuted for the Weiss murder a decade ago, unless there was an illegitimate reason for the delay." (footnote omitted) (Defendants' Joint Memorandum of Law in Support of Pretrial Motions ["Defs. Joint Mem."] at 15.) According to Moving Defendants, the Government learned that Gravano was involved in the Weiss murder soon after it occurred, and so it delayed prosecution for the murder in order to preserve Gravano's credibility when he testified against John Gotti. Alternatively, Moving Defendants suggest that Gravano never implicated them in the Weiss murder and that this testimony would have come out at an earlier trial because Gravano was obligated to testify truthfully under a cooperation agreement with the Government. However, when Gravano was indicted on federal drug charges, he was relieved of his obligations under the cooperation agreement.
Neither of these arguments establish that the Government acted intentionally to gain a tactical advantage over Moving Defendants. The contention that the Government delayed charging Moving Defendants with the Weiss murder to preserve the case against John Gotti says nothing about the Government's intent to disadvantage Moving Defendants, but rather is an argument that the Government intended to disadvantage John Gotti. In addition, Moving Defendants fail to convince the Court that the Government did not seek to indict them immediately after the murder because somehow the Government knew that Gravano would commit federal drug offenses and thus break the cooperation agreement under which Gravano was compelled to testify truthfully. The fact that Gravano may now, as a result of his actions after testifying in various trials in the 1990s, lack some incentive to tell the truth if called to the stand suggests nothing about the Government's alleged decision in the early 1990s to delay charging Moving Defendants with Weiss's murder. It is the Government's decision not to seek an indictment against Moving Defendants earlier than it did that is relevant in this analysis.
Second, Moving Defendants fail to meet their heavy burden of establishing actual, as opposed to possible, prejudice. Moving Defendants speculate that if Gotti or Gravano were to testify, they would pro vide exculpatory testimony. However, Moving Defendants do not provide any details as to how the witnesses would exculpate them and therefore do not offer any particularity as to how they have been prejudiced. It is Moving Defendants' burden to establish how the lack of Gravano's or Gotti's testimony deprives them of a fair trial. See United States v. Walker, No. 99 Cr. 379, 1999 WL 777885, at *2 (S.D.N.Y. Sept. 29, 1999) (denying motion to dismiss based on pre-indictment delay when defendants did not show how unavailability of witness deprived them of fair trial). Moving Defendants offer no explanation for what exculpatory testimony Gotti might have provided, and only suggest that Gravano might have testified that they were not involved in the Weiss murder if he were still subject to the cooperation agreement. Such speculation, utterly devoid of a factual or legal basis, cannot satisfy Moving Defendants' "heavy burden."See Elsbery, 602 F.2d at 1059.
Moreover, Moving Defendants have not argued that Gravano is unavailable to testify; they merely state that his credibility will be easily undermined given his federal drug conviction, or that he would likely assert his Fifth Amendment privilege against self-incrimination if called to testify. Even if Gravano were to be unavailable, the Supreme Court has instructed that dimmed memories, inaccessible witnesses, and lost evidence are not enough to prove substantial prejudice. Marion, 404 U.S. at 325-26 (emphasis added). Again, Moving Defendants offer no explanation as to why they cannot receive a fair trial or why they are entitled to dismissal of the indictment. This motion is accordingly denied.
3. Overt Act Requirement for Conspiracy Charge
Moving Defendants assert that the indictment fails to allege an overt act regarding the conspiracy to murder Weiss, and that therefore the conspiracy charge must be dismissed. In so moving, they rely on United States v. Carillo, 229 F.3d 177 (2d Cir. 2000). However, Carillo does not support Moving Defendants' argument. The Carillo court confronted the question whether the district court erred in not charging the jury that the Government had to prove an overt act as an element of conspiracy under New York law as part of a federal RICO prosecution. Id. at 182. This issue is different than whether an overt act must be alleged in a RICO indictment, a difference that the Carillo court recognized. See id. at 183 ("[T]he proposition that the indictment need not recite all elements of the state law offense . . . does not, without further explanation, lead to the conclusion that the government is excused fromproving those elements."). Indeed, the Carillo court itself noted that the Government is not required to allege an overt act in a conspiracy charge that forms the basis for a predicate crime under RICO. Id. (citingUnited States v. Orena, 32 F.3d 704, 713-14 (2d Cir. 1994)). Moving Defendants somehow overlook Orena despite the fact that it is cited and discussed in Carillo, on which they rely. Because there is no requirement that an indictment allege an overt act as part of a conspiracy charge, this motion is denied.
B. Racketeering Act Two: Murder of Frank Parasole
Moving Defendants maintain that Count Two must be dismissed because the alleged conduct cannot constitute murder or aiding and abetting murder, and because the New York depraved indifference statute under which Fappiano is charged is unconstitutionally vague and denies equal protection of the laws.
1. Sufficiency of Allegations
Moving Defendants' argument on Racketeering Act Two is identical to their argument regarding the Weiss murder charge; both fail for the same reason. The indictment charges that in January 1997, Fappiano, in the Southern and Eastern Districts of New York, "unlawfully, recklessly, and knowingly murdered, and aided and abetted the murder, of Frank Parasole in violation of New York Penal Law, Sections 125.25(2) and 20.00, by recklessly engaging in conduct creating a grave risk of death . . . under circumstances evincing a depraved indifference to human life." (Indict, ¶ 14.) The indictment goes on to accuse Fappiano of ordering associates in the Gambino family to physically assault and injure Parasole, and alleges that the assault resulted in Parasole's death. (Id.)
According to Moving Defendants, this charge is invalid because the Government alleges that Fappiano ordered Parasole beaten, while Parasole's death actually resulted from a gunshot wound. Moving Defendants ask the Court to look beyond the indictment, make findings of fact and then conclusions of law, all of which are improper on a motion to dismiss the indictment. See Alfonso, 143 F.3d at 776-77 (holding that district court improperly looked beyond face of indictment when government did not make full proffer of evidence it intended to introduce at trial). The charge against Fappiano is facially valid; it fairly tracks the language of the New York State reckless murder and accessorial liability statutes, and generally states the time and place of the offense. See United States v. Grossman, 843 F.2d 78, 84 (2d Cir. 1988). Thus, the motion to dismiss Racketeering Act Two on the grounds of insufficient allegations is denied.
2. Constitutionality of New York Depraved Indifference Statute
Moving Defendants next maintain that the New York State statute under which Fappiano is charged for the murder of Parasole is unconstitutionally vague and that it denies equal protection of the laws. New York Penal Law section 125.25(2) states that a person is guilty of second degree murder when, "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." N.Y. Penal Law § 125.25(2). A law denies due process if it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." Richmond Bros. Gun Club, Inc. v. City of New York, 97 F.3d 681, 684 (2d Cir. 1996). Moving Defendants argue that New York Penal Law section 125.25(2) fails to meet this standard because the law has been construed by New York courts in such a way as to threaten defendants with conviction for depraved indifference murder when their conduct only constitutes the lesser offense of "reckless manslaughter." (See Defs. Joint Mem. at 21.) While the Court has serious doubts as to the merit of this argument, it denies the motion because it is prematurely made.
Moving Defendants must challenge the New York depraved indifference statute as it applies to the facts of this case, rather than on its face. See Chapman v. United States, 500 U.S. 453, 467 (1991) (noting that vagueness challenges to statutes not implicating First Amendment rights must be as applied to facts of case) (citing United States v. Powell, 423 U.S. 87, 92 (1975)). Arguments that a statute is unconstitutionally vague as applied to the facts of the case necessarily must be made after those facts emerge. See United States v. Bastian, 112 F. Supp.2d 378, 380 (S.D.N.Y. 2000). The Bastian court rejected an as-applied challenge on vagueness grounds to a federal firearms statute made in a pre-trial motion to dismiss. Id. The court there stated, "Heeding the Supreme Court's admonition that a vagueness challenge to a statute may only be examined in light of the facts of the case at hand, this Court cannot conduct a proper examination of the application of . . . [the statute] on the basis of the indictment alone." Id. Similarly, the only facts before this Court are those presented by the indictment, which are insufficient to carry out the required fact-intensive analysis. Thus, the Court denies the motion to dismiss the charges against Fappiano for the murder of Parasole on the ground that it is prematurely made.
Moving Defendants also assert that the New York statute violates the Equal Protection Clause of the Fourteenth Amendment, although they do little more than raise the issue. They quote statements in an unpublished opinion by Judge Brieant suggesting his view that "allowing a grand jury to indict for either [depraved indifference murder or reckless manslaughter] is a clear denial of equal protection." Jones v. Keane, 02 Civ. 1804 (CLB), at 9 (Memorandum Order, May 22, 2002). Judge Brieant issued a writ of habeas corpus because the defendant's "conviction for depraved indifference murder as applied to the facts of the case as the jury must have found them violated" the defendant's equal protection and substantive due process rights. Id. at 10. This conclusion was made after a thorough review of the facts that came out at trial, on an as-applied challenge to the New York statute. Thus, the equal protection challenge is also premature, and is accordingly denied.
C. Severance of Racketeering Acts Three and Four: Witness Tampering
Moving Defendants also seek to sever Racketeering Acts Three and Four alleging witness tampering relating to the investigation and prosecution of the Parasole murder. According to Moving Defendants, trying Fappiano on the witness tampering charges in the same proceeding as he is tried for the murder of Parasole would be unduly prejudicial. They seek this severance pursuant to Federal Rule of Criminal Procedure 14, which gives the Court discretion to order separate trials of counts if a defendant is prejudiced by the joinder of offenses in a single indictment. Fed.R.Crim.P. 14.
Fappiano claims that the witness tampering charges would unduly prejudice him with regard to his defense of the murder charges. Due to an asserted "spillover effect" on their own cases, Vallario and Garafola also move to sever the witness tampering charges from the rest of the indictment.
Moving Defendants explain that a jury might be unduly influenced to believe that Fappiano murdered Parasole if the jury hears evidence that Fappiano tampered with witnesses who were going to testify regarding Parasole's murder, especially because the indictment charges Fappiano with attempting to persuade witnesses to withhold truthful testimony. Moving Defendants argue that the use of the term "truthful" will unduly influence a jury because it suggests "that a grand jury has already found the testimony . . . concerning the death of Parasole to be truthful," and thus the jury trying Fappiano would be more likely to think that Fappiano is guilty of Parasole's murder (Defs. Joint Mem. at 43.) This argument is without merit.
First, the witness tampering charges are properly joined in this indictment. See Fed.R.Crim.P. 8(a). Charges are properly joined when they are based on "acts or transactions connected together or constituting parts of a common scheme or plan." Id. Here, the indictment accuses Fappiano of participating in Parasole's murder and then attempting to cover it up by tampering with witnesses. In addition, the witness tampering charges are predicate acts in the overarching RICO prosecution, involving allegations that all of the defendants possessed a common criminal purpose as members of the Gambino family. See United States v. Bagaric, 706 F.2d 42, 69 (2d Cir. 1983), overruled on other grounds by Nat'l Ore, of Women, Inc. v. Scheidler, 510 U.S. 249, 259-60 (1994) ("[Virtually] by definition, the pattern of racketeering . . . constituted a `series of acts or transactions' sufficiently intertwined to permit joinder of defendants."). Thus, the murder and subsequent witness tampering charges are part of the same scheme or plan involving all of the defendants in this case.
Second, the Court rejects the argument that there will be undue prejudice to Fappiano, and prejudicial spillover effect on Garafola and Vallario, if the witness tampering and murder charges are tried together. The Court shall instruct the jury on the elements of each crime charged and is confident that a proper limiting instruction would cure any danger of prejudice. See United States v. Nunez, No. 00 Cr. 121 (RCC), 2001 WL 91708, at *3 (S.D.N.Y. Feb. 1, 2001). Therefore, the motion to sever the witness tampering charges is denied.
D. Racketeering Acts Eight, Nine, and Ten: Loansharking
Moving Defendants argue that Acts Eight and Nine must be dismissed because the loansharking allegations are so devoid of facts as to violate their right to notice of the charges against them. According to Moving Defendants, the indictment fails to contain any factual particularity, such as the names of the victims. (See Defs. Joint Mem. at 26.) Moving Defendants rely on United States v. Tomasetta, 429 F.2d 978 (1st Cir. 1970), in which the court dismissed an indictment because it failed to name the victims of a single act of extortion. Id. at 979. This case is inapposite for several reasons.
Tomasetta was decided over thirty years ago, has never been relied on by the Second Circuit in dismissing an indictment, and appears at odds with the Second Circuit's decision in Alfonso. See 143 F.3d at 776. The Alfonso court held an indictment was sufficient when it did no more than accurately state the elements of the crime and provide an approximate date and location of the alleged robbery. Id. The fact that the indictment in Alfonso did not allege what the defendants conspired to steal did not render it insufficient. Id. The information in the indictment was adequate to protect the defendants against any threat of double jeopardy. Id.
Indeed, the First Circuit has asserted that in Tomasetta, "the Court noted that it is not always fatal to omit information concerning location, type of threat, or even the name of the victim." United States v. Sedlak, 720 F.2d 715, 719 (1st Cir. 1983).
The indictment in this case alleges that Moving Defendants were members of the Gambino family, an organization that engaged in widespread criminal activity. The indictment provides a detailed factual recitation of the grand jury's findings regarding the Gambino enterprise, its means, purposes, and the role of each defendant in it. (See Indict, ¶¶ 1-10.) Thus, the allegations in the indictment are more detailed than they were in Tomasetta, in which the indictment lacked such factual allegations.See 429 F.2d at 979.
In addition, the challenge here is to the sufficiency of predicate-act allegations that, taken with the other racketeering charges, constituted a pattern of racketeering activity in violation of RICO. See 18U.S.C. § 1961(1)(B) (defining "racketeering activity" to include violations of federal statutes relating to extortionate credit transactions). InTomasetta, however, the defendants were charged with direct violations of the federal statute prohibiting extortionate credit transactions. See 429 F.2d at 979. Other courts have noted the difference between direct charges of violations of federal and state laws and RICO indictments alleging those crimes as predicate acts. See, e.g., Orena, 32 F.3d at 714; Bagaric, 706 F.2d at 62-63; United States v. Reale, No. 96 Cr. 1069, 1997 WL 580778, at *7-8 (S.D.N.Y. Sept. 17, 1997); United States v. Triumph Capital Group, Inc., 260 F. Supp.2d 444, 456 (D. Conn. 2002). The court in Reale held that "generic references" to predicate crimes in a RICO indictment are sufficient. See 1997 WL 580778, at *7 ("It is well established that an indictment charging RICO offenses need only define the underlying predicate state crimes `genetically.'"). This is so because references in the RICO statute to predicate state and federal crimes serve a definitional purpose, that is, to generally identify the illegal activities covered under RICO. See id. (citing Bagaric, 706 F.2d at 62-63). Thus, the allegations for a RICO predicate act need not be more than generic references to the proscribed activity.
To be sufficient, the loansharking charges only need be facially valid; there is no requirement that the indictment supply sufficient evidence to convict. See Alfonso, 143 F.3d at 776-77. Here, the loansharking charges are facially valid both because they track the language of the applicable federal statutes relating to extortionate extensions of credit and because they are only predicate acts that are part of an overarching pattern of racketeering activity adequately detailed in the indictment. Therefore, the motion to dismiss Racketeering Acts Eight, Nine, and Ten of the indictment is denied.
Moving Defendants, in a sentence appended to their arguments regarding the loansharking charges, implore that other charges in the indictment also should be dismissed because they are insufficiently pled. The Court denies the motion to dismiss these charges as well.
II. Demand for Bill of Particulars and Discovery
Moving Defendants argue that they are entitled to a bill of particulars and to disclosure of evidence pursuant to Federal Rule of Criminal Procedure 16, Federal Rule of Evidence 404(b), and Brady v. Maryland, 373 U.S. 83 (1963).
Defendant Vallario submitted a separate motion requesting a bill of particulars as to the charges specific to him. The Court considers Vallario's demand together with the other Moving Defendants' similar demand for a bill of particulars.
A. Bill of Particulars
Moving Defendants, in their motions and in subsequent letters to the Court, contend that they are entitled to a bill of particulars providing, among other things, the identity of alleged co-conspirators, witnesses, and victims, the dates and locations of certain acts, and specific false and fraudulent statements alleged.
Federal Rule of Criminal Procedure 7(f) permits a district court to order a bill of particulars. "A bill of particulars should be required only where 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) (quoting United States v. Feola, 651 F. Supp. 1068, 1132 (S.D.N.Y. 1987)) (internal quotation marks omitted). "A bill of particulars is not a general investigative tool, a discovery device or a means to compel the government to disclose evidence or witnesses to be offered prior to trial." United States v. Gibson, 175 F. Supp.2d 532, 537 (S.D.N.Y. 2001). Instead, its purpose is to supplement the facts contained in the indictment when necessary to enable defendants to identify with sufficient particularity the nature of the charges against them. See United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987) (per curiam); Gibson, 175 F. Supp.2d at 536.
In exercising its discretion to grant a demand for a bill of particulars, the Court must examine the totality of the information available to the defendants, including the indictment and pretrial discovery, and view the demand in light of the charges that the defendants must meet. See United States v. Bin Laden, 92 F. Supp.2d 225, 233 (S.D.N.Y. 2000). Here, the indictment: is facially sufficient to advise Moving Defendants of the conduct with which they are charged. It contains a detailed description of the allegations that Moving Defendants were active participants in the Gambino Organized Crime Family, including a description of the structure of that organization, its purposes, and the unlawful means by which it allegedly met its goals. (Indict, ¶¶ 1-11.) In addition, the Government proffers that it has made available to Moving Defendants substantial discovery, including documents and audio tapes related to wiretaps; consensual recordings of conversations; surveillance photographs and videos; documentation relating to pen registers and caller identification devices; and bank and telephone records. Moving Defendants do not dispute that they have received this discovery. Thus, Moving Defendants have more than just the facts provided to them in the indictment to aid them in preparing their defense and in avoiding any possibility of double jeopardy.
The particulars that Moving Defendants request primarily pertain to the identity of individuals. Moving Defendants are not entitled, at this time, to the names of co-conspirators, witnesses, and victims. See United States v. Kevin, No. 97 Cr. 763, 1999 WL 194749, at *12 (S.D.N.Y. Apr. 7, 1999) (holding defendants not entitled to names of witnesses when charged with violent crimes because witnesses might be endangered). The Government has a legitimate concern about the safety of those individuals it intends to call at trial, a factor that this Court takes into consideration. See United States v. Sindone, 01 Cr. 517, 2002 WL 48604, at *1 (S.D.N.Y. Jan. 14, 2002). As Judge Mukasey noted in Sindone, "The stakes in a criminal case are high, and temptations of perjury, subornation and intimidation are ever present. The government is not required to turn over information that will permit a defendant to preview the government's case and tempt him . . . to see to it that the government's proof is not presented." Id. This is especially the case here, as the indictment includes acts such as murder, attempted murder, and witness tampering, allegedly in order to prevent individuals from cooperating with the Government. Therefore, the Court declines to exercise its discretion to order that the names of any individual co-conspirators, witnesses., or victims be turned over to Moving Defendants. The motion for a bill of particulars is denied.
B. Discovery
Moving Defendants ask the Court to order the Government to provide them with discovery on a number of grounds. First, they move for discovery under Federal Rule of Criminal Procedure 16, including disclosure relating to expert opinion testimony. Second, they ask the Court to set a date by which the Government must disclose any evidence it intends to offer under Federal Rule of Evidence 404(b) relating to other crimes or wrongful acts allegedly committed by the defendants. Finally, Moving Defendants request any evidence in the possession of the Government that is favorable to them, pursuant to Brady v. Maryland, 373 U.S. 83 (1963).
Federal Rule of Criminal Procedure 16 provides various grounds on which the Government must disclose evidence. Moving Defendants ask the Court to order the Government to disclose information to which they are entitled under Rule 16 to the extent that the Government has not yet done so. The Government submits that it turned over substantial discovery on August 2, 2002, and that it recognizes its ongoing duty to provide discovery as it becomes available. Therefore, the Court declines to issue an order regarding Rule 16 material at this time.
Moving Defendants also request that the Government disclose, or that the Court set a deadline for disclosure of, evidence that it plans to introduce under Federal Rule of Evidence 404(b). Rule 404(b) permits evidence of prior crimes, wrongs, or acts to show, among other things, motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Fed.R.Evid. 404(b). The Government responds that it intends to make detailed motions concerning Rule 404(b) evidence, and assures the Court that it will provide sufficient notice in advance of trial as required by Rule 404(b). See ID. (requiring reasonable notice in advance of trial of the general nature of such evidence). The Court therefore denies Moving Defendants' motion as it has no reason to doubt the sincerity of the Government's assurances.
Finally, Moving Defendants' motion for disclosure under Brady is now moot. Since these motions were filed, the Court ordered the Government to produce two Federal Bureau of Investigation ("FBI") Reports under Brady.See Order of Nov. 17, 2003. This Order addresses most of Moving Defendants' concerns expressed in their motion. Therefore, the Court declines to inquire if the Government possesses any arguably favorable evidence, as requested by Moving Defendants. The Court does, however, remind the Government of its continuing Brady obligations.
III. Motion to Strike Term "Organized Crime"
The indictment alleges that the Moving Defendants were part of a criminal organization known as the "Gambino Organized Crime Family." Moving Defendants argue that the term "organized crime" should be stricken from the indictment as mere surplusage because (1) there is no evidence that Moving Defendants or their alleged co-conspirators referred to themselves by this term, (2) the term was invented by law enforcement officials, and (3) the term is inherently prejudicial. None of these reasons are grounds for striking the term under Federal Rule of Criminal Procedure 7(d).
"Motions to strike surplusage from an indictment 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. DePalma, 461 F. Supp. 778, 797 (S.D.N. Y. 1978)). Moving Defendants must meet an "exacting standard" to be successful in their motion. Id. The Second Circuit in Scarpa held that the term "Colombo Organized Crime Family" was relevant when used in an indictment to identify the criminal enterprise and the means by which its members committed criminal acts. Id. Moving Defendants' attempt to distinguish Scarpa is unavailing. Here, the indictment alleges that Moving Defendants were members of the "Gambino Organized Crime Family," just as in Scarpa the indictment referred to the defendants' participation in the "Colombo Organized Crime Family." Moving Defendants offer no persuasive explanation for how the term "Organized Crime" is irrelevant and prejudicial as used in reference to the Gambino Family when the Second Circuit held that it was neither when referring to the Colombo Family. Thus, Moving Defendants have failed to meet their burden, and this motion is denied.
IV. Motion to Inspect Juror Lists
Moving Defendants request to inspect the lists from which the grand jury was selected and from which the petit jury in this case will be selected pursuant to 28 U.S.C. § 1867(f). That statute provides in relevant part:
The contents of records or papers used by the jury commission or clerk in connection with the jury selection process shall not be disclosed, except . . . as may be necessary in the preparation or presentation of a motion (challenging compliance with selection procedures) under . . . this section. . . . The parties in a case shall be allowed to inspect, reproduce, and copy such records or papers at all reasonable times during the preparation and pendency of such a motion. . . .28 U.S.C. § 1867(f). The plain language of the statute suggests that the Court may only permit juror lists to be disclosed when "necessary in the preparation or presentation of a motion" to challenge compliance with juror-selection procedures. Id.; see also Test v. United States, 420 U.S. 28, 30 (1975). In Test, the Supreme Court held that litigants have an unqualified right to access jury lists "to aid parties in the `preparation' of motions challenging jury-selection procedures." 420 U.S. at 30. Moving Defendants state that they need access to the records to determine whether "because of race, gender, ethnic background, religion, or other immutable characteristic, persons were systematically and disproportionately excluded from the grand jury . . . or will be [so] . . . excluded from their prospective petit jury." (Defs. Joint Mem. at 41-42.) However, no jury list yet exists for the petit jury in this case. Therefore, the motion to inspect the jury lists from which the petit jury will be selected is denied as premature.
Moving Defendants do not have an absolute right of access to all materials relating to the grand jury selection; numerous courts have held that only the Master List from which the grand jury was selected need be turned over, not the names of specific jurors selected from the grand jury pool. See, e.g. United States v. Davenport, 824 F.2d 1511 1515 (7th Cir. 1987); United States v. Harvey, 756 F.2d 636, 642-43 (8th Cir.), cert. denied 434 U.S. 831 (1985); United States v. McLernon, 746 F.2d 1098, 1123 (6th Cir. 1984); United States v. Nichols, 248 F. Supp.2d 1027, 1034 (D. Kan. 2003); United States v. Van Pelt, Nos. 92-40042-01-SAC through 92-40042-07-SAC, 1993 WL 23730, at *8 (D. Kan. Jan. 13, 1993); United States v. Carlock, 606 F. Supp. 491, 493 (W.D. La. 1985). The Master List is sufficient to comply with the Supreme Court's decision in Test because "[i]t is not the actual selection of the grand jury which would constitute the violation but whether the jury was selected `at random from a fair cross section of the community.'" Nichols, 248 F. Supp.2d at 1034 (quoting 28 U.S.C. § 1861).
Additionally, the Government has an interest in maintaining the secrecy and sanctity of the grand jury proceeding. See Davenport, 824 F.2d at 1515; United States v. Swan, No. Grim. 03-36-01 B, 2003 WL 21799915, at *1 (D.N.H. July 22, 2003); United States v. Shapiro, 994 F. Supp. 146, 148 (E.D.N.Y. 1998). This is especially so in cases involving allegations of violent crimes. See Shapiro, 994 F. Supp. at 148. The Second Circuit has held that a district court may deny access to the names and personal information of grand jurors without violating the defendant's right to challenge the grand jury-selection process. United States v. Hansel, 70 F.3d 6, 8 (2d Cir. 1996).
Therefore, the Court orders that Moving Defendants shall have access to the materials from which the grand jury that returned the fourth superseding indictment in this case was selected. They are denied access to the names and addresses of individuals on the Master List and on the grand jury itself. See Harvey, 756 F.2d at 643 (holding district court did not err by allowing access to "data relating to the constituency and method of the grand jury selection," without the names and addresses of the jurors on master list).
V. Vallario's Motion for Severance
Vallario moves to sever his prosecution from that of his codefendants because they will be presenting substantially antagonistic defenses. Federal Rule of Criminal Procedure 14 gives district courts the discretion to sever a properly joined defendant if it appears that the defendant or the government is prejudiced by joinder. Vallario carries a heavy burden to succeed on this motion. See United States v. Rosa, 11 F.3d 315, 341 (2d Cir. 1993). As the Supreme Court has explained, district courts should order severance "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 539 (1993). Thus, the existence of mutually antagonistic defenses does not automatically require severance. Id.
Vallario argues that he will seek to use at trial the contents of an FBI report recording the statements of Dominic Borghese, a cooperating witness and someone, according to the Government, with personal knowledge of the Weiss murder. According to Vallario, Borghese does not mention Vallario in his statements to the FBI, although he does name some of Vallario's codefendants. Therefore, Vallario intends to use Borghese's statements to demonstrate that his codefendants were involved in killing Weiss, but that he was not.
The Court does not believe that Borghese's failure to name Vallario creates mutually antagonistic defenses between Vallario and his codefendants. Vallario can present this evidence to exculpate himself without reference to his codefendants' role in the murder. Vallario need not argue that his codefendants actually committed the murder to show that Borghese's statements are exculpatory as to him.
Vallario states that, if the trials were severed, he "would inform the jury at the very earliest opportunity that a conspiracy to murder Fred Weiss in fact existed. . . . The acknowledgment of this murder conspiracy as part of Mr. Vallario's defense is of no consequence to the defendant." (Memorandum of Law in Support of Louis Vallario's Pre-Trial Motions at 19.) (emphasis added). Vallario's actual defense, judging from his arguments, is that the Government does not possess the evidence to prove that Vallario was a member of a conspiracy to kill Weiss. Thus, there are no mutually antagonistic defenses: Vallario can certainly point out the deficiency of evidence without pointing the finger of accusation at his codefendants. Vallario admits as much when he says the existence of a conspiracy is of no consequence to his defense. If admitting it is of no consequence, then it logically follows that denial, or not opposing his codefendants' denial, of its existence also has no effect on Vallario's defense.
Vallario's reliance on United States v. Serpoosh, 919 F.2d 835 (2d Cir. 1990), is misplaced. The Serpoosh court held that severance was warranted when the codefendants "each characterized the other defendant as a liar who concocted his story to escape blame." Id. at 838. In that case, the defenses were mutually antagonistic because one defendant argued that the other framed him and that the codefendant was the one who actually committed the crime. Id. The Government responded by arguing that both defendants were not telling the truth, and that both were in fact guilty. See id. Here, in contrast, Vallario's asserted defense will be that he did not participate in any conspiracy to murder Weiss, whether or not such a conspiracy actually existed. To argue his innocence he need not make liars out of his codefendants, unlike the situation inSerpoosh.
The other arguments Vallario proffers similarly fail. He maintains that other Government cooperating witnesses told the FBI that other members of the Gambino family conspired to murder Weiss, but that Vallario only knew about the murder after it occurred. Vallario demonstrates no link, however, between this argument and the contention that the trials must be severed. Again, Vallario can argue to the jury that the failure of the FBI witnesses to implicate him in the Weiss murder is exculpatory evidence without needing to argue that those witnesses' naming his codefendants is evidence of their guilt. Thus, the jury will not have to disbelieve the testimony offered by the codefendants to believe the testimony offered on Vallario's behalf. See United States v. Potamitis, 739 F.2d 784, 790 (2d Cir. 1984). Nor will the jury infer that all the defendants are guilty due to the conflict that Vallario claims to exist.See Serpoosh, 919 F.2d at 838 (quoting United States v. Herring, 602 F.2d 1220, 1225 (5th Cir. 1979)). Therefore, Vallario's motion to sever is denied.
VI. Conclusion
For the foregoing reasons, Moving Defendants' motions are DENIED, except for the motion to inspect jury-selection materials which is GRANTED IN PART AND DENIED IN PART.
SO ORDERED.