U.S.A v. Basciano, No. 05-CR-060 (NGG)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtNICHOLAS G. GARAUFIS
PartiesUNITED STATES OF AMERICA v. VINCENT BASCIANO, Defendant.
Docket NumberNo. 05-CR-060 (NGG)
Decision Date12 January 2011

UNITED STATES OF AMERICA
v.
VINCENT BASCIANO, Defendant.

No. 05-CR-060 (NGG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

Dated: January 12, 2011


MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Defendant Vincent Basciano ("Basciano") is charged in a superseding indictment with various crimes stemming from his alleged participation in the activities of the Bonanno organized crime family. (See S-9 Superseding Indictment ("S-9 Indictment") (Docket Entry # 464).)1 The Government seeks the death penalty. On June 26, 2009, the court heard five-and-a-half-hours of oral argument on the dozens of pretrial motions made by the Defendant. (See ("Arg. Tr.") Docket Entry # 723.) The motions fall into three broad categories: general pretrial motions, discovery motions, and penalty-phase specific motions.2 As set forth below, Basciano's motions are granted in part and denied in part.

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I. BACKGROUND

For the purpose of these motions, the current criminal action against Basciano is referred to as "Basciano II." United States v. Basciano, 05-CR-060 (NGG) (E.D.N.Y.). Basciano was also a defendant in an earlier criminal action before this court, which is referred to throughout this opinion as "Basciano I." United States v. Basciano, No. 03-CR-929 (NGG) (E.D.N.Y.). The fact that Basciano was previously tried and convicted in Basciano I is relevant to a number of the Basciano II motions addressed herein.

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In the current operative indictment, the S-9 Indictment, Basciano is charged with numerous criminal acts arising from his actions as the "acting boss" of the Bonanno organized crime family. (See S-9 Indictment.) The charges in the S-9 Indictment relate to Basciano's continued involvement in the Bonanno crime family during his incarceration, following his arrest in Basciano I on November 19, 2004. (See Memorandum & Order of Oct. 14, 2008 ("Double Jeopardy Order") (Docket Entry # 540) at 6.)

In Basciano I, Basciano was twice tried and convicted by jury. The charges in that case stemmed from his participation in the Bonanno organized crime family from 1979 through 2004. (See Double Jeopardy Order at 2-3.) On May 9, 2006, a jury found Basciano guilty of a racketeering conspiracy in violation of 18 U.S.C. § 1962(d), including predicate acts of illegal gambling and the attempted murder of David Nunez. (See Jury Verdict, Basciano I (Docket Entry # 749).) Under a superseding indictment, Basciano was re-tried on charges for which no verdict had been reached in the first trial. A second jury found him guilty of substantive racketeering, including predicate acts of illegal gambling, conspiracy to distribute marijuana, solicitation to murder Salvatore Vitale and Dominick Martino, and conspiring to murder and murdering of Frank Santoro. (See Basciano I, Jury Verdict (Docket Entry # 981).) The jury also found Basciano guilty of three counts of illegal gambling and one count of conspiracy to distribute marijuana. (Id.) The various charges in the indictments in Basciano I related to Basciano's "expansive involvement in the livelihood of the Bonanno organization." (See Double Jeopardy Order at 11; see also id. at 2-3.) On April 7, 2008, the court entered judgment against Basciano, sentencing him to a term of life imprisonment. (See Basciano I, Docket Entry # 1073.) Basciano is designated by the Bureau of Prisons to serve his life sentence in the Administrative Maximum Facility of the Florence Federal Correctional Complex ("Florence Supermax").

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(Docket Entry # 889.) The Second Circuit has thus far upheld Basciano's conviction. See United States v. Basciano, 384 F. App'x. 28 (2d Cir. 2010); (Basciano I, Docket Entry # 1075, 1164).

Here, in Basciano II, the indictment was first filed on January 26, 2005. (Indictment (Docket Entry #1).) Over the course of this case, the indictment has been superseded several times. The current operative indictment, the S-9 Indictment, charges Basciano with four separate crimes. Counts Three and Four of the S-9 Indictment charge Basciano with allegedly conspiring to murder and murdering Randolph Pizzolo in aid of racketeering in violation of 18 U.S.C. § 1959(a). (Id ¶¶ 52-56.) Pizzolo was killed on or about November 30, 2004. (Id ¶ 56.) The Government has filed a Notice of Intent to Seek the Death Penalty ("Notice of Intent") against Basciano, should he be convicted of murdering Pizzolo in aid of racketeering under Count Four.3(See Docket Entries ## 284, 294, 938; S-9 Indictment ¶¶ 73-74.) The Eighth Superseding Indictment ("S-8 Indictment"), which was filed on November 15, 2007, was the first indictment to include the Notice of Special Findings, which sets forth the Statutory Aggravators and Gateway Factors that must be found by the jury at the penalty phase of the capital trial. (Docket Entry # 358.) Count Five charges Basciano with knowingly and intentionally possessing a firearm in relation to the crimes of violence charged in Counts Three and Four, in violation of 18 U.S.C. § 924(c). (See S-9 Indictment ¶ 57.) Finally, Count Nine charges Basciano with conspiring to murder Patrick DeFilippo in aid of racketeering in violation of 18 U.S.C. § 1959(a)(5). (See id ¶¶ 63-64.)4

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Basciano previously moved to dismiss several of the charges against him in this case on double jeopardy grounds, claiming that they "constitute a second prosecution for offenses already tried by the Government" in Basciano I. (See Double Jeopardy Order at 1.) On October 14, 2008, the court denied Basciano's motion, concluding that "double jeopardy does not raise a bar" to the charges in this case. (Id.) The court later denied Basciano's motion to reconsider its decision (see Docket Entry # 607), and Basciano took an interlocutory appeal to the Second Circuit. (See Docket Entry ## 612, 613; United States v. Basciano, No. 09-0281-cr (2d Cir.).) Basciano subsequently cited this appeal as a basis for postponing his trial date in this matter, which was scheduled to begin in September 2009. (See Order of Apr. 24, 2009 (Docket Entry # 671) at 1, 3.) To avoid "dual jurisdiction" between this court and the Court of Appeals, the court granted Basciano's continuance request and postponed the trial until "no sooner than 30 days after a decision by the Second Circuit in the pending appeal." (Order of June 4, 2009 ("June 4 Order") (Docket Entry # 708) at 1, 3.)5 The Court of Appeals affirmed this court's denial of Basciano's motion to dismiss Counts Three and Nine of the S-9 Indictment (conspiracy to commit murder in aid of racketeering) but reversed this court's denial of dismissal of Count One of the S-9 Indictment (charging substantive racketeering), finding it to be barred on double jeopardy grounds. See United States v. Basciano, 599 F.3d 184 (2d Cir. 2010).

II. GENERAL PRETRIAL MOTIONS

The motions addressed in this section cover five challenges made by Basciano: (1) the disqualification of the United States Attorney's Office for the Eastern District of New York, and various other issues relating to alleged prosecutorial misconduct; (2) issues relating to the inclusion of the "AUSA Andres solicitation" in the S-9 Indictment; (3) Basciano's request to

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admit evidence relating to a list of names he wrote (the "List"); (4) a request to suppress conversations and tapes of conversations between Basciano and former Bonanno family crime boss Joseph Massino; and (5) renewed requests relating to the conditions of Basciano's confinement. The court addresses each issue in turn.

A. Alleged Prosecutorial Misconduct

Several of the issues raised by Basciano are based on what the court previously referred to as "free-wheeling theories of sinister prosecutorial motives." (See Double Jeopardy Order at 13-14 n.4.) The following facts are essential to understanding Basciano's prosecutorial misconduct arguments.

In Basciano I, Assistant United States Attorney Greg Andres ("AUSA Andres") served as the lead prosecutor. The court takes judicial notice that over the course of Basciano I and much of the history of Basciano II, AUSA Andres served in senior positions in the United States Attorney's Office for the Eastern District of New York (the "Office"), including Chief of the Criminal Division. The reason that AUSA Andres is relevant to these motions is that prior to Count One of Basciano II being stricken from the Indictment on double jeopardy grounds, Basciano was charged with a racketeering predicate act of solicitation to murder AUSA Andres. (S-9 Indictment ¶ 32.) The alleged solicitation to murder AUSA Andres occurred on or about November 23, 2004, following Defendant's November 19, 2004 arrest in Basciano I. (Id ¶¶ 20, 22, 32.) Then, in May 2006, the Government alleges, though it did not charge Basciano in any version of the Basciano II indictment, that Basciano authored the List in prison which contained my name, the name of AUSA Andres, and the names of three cooperating witnesses. The Government asserts that the List was a hit list, and that Basciano had solicited the murder of those named on the list. Basciano claims that it was a "Santeria" list. Basciano's prosecutorial

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misconduct arguments rely upon these facts to challenge the impartiality of the Office and the role AUSA Andres played in the Basciano II prosecution.

1. Request to the Disqualify U.S. Attorney's Office

Basciano moves for the court to disqualify the Office from prosecuting this case. (See Def.'s...

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