U.S. v. Bellomo
| Decision Date | 13 March 2003 |
| Docket Number | No. 02 CR 140 LLG.,02 CR 140 LLG. |
| Citation | 263 F.Supp.2d 561 |
| Parties | UNITED STATES of America, Plaintiff, v. Liborio BELLOMO, et al. Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Flora Edwards, Dublirer Haydon Straci & Victor, New York, NY, for Plaintiff.
Paul Schoeman, U.S. Attorney's Office Criminal Division, Brooklyn, NY, for U.S.
Eight defendants named in a fourteen count indictment have moved this Court to issue orders granting them broad relief, entitlement to which they claim is warranted by Statute, Rule or precedent. The motions of each will be addressed separately with the exception of those in which two or more defendants have joined.
Count One: Racketeering in violation of 18 U.S.C. § 1962(c) (hereafter RICO). He is then named in the following Racketeering Acts (hereafter RA):
RA One: Extortion Conspiracy in violation of 18 U.S.C. § 1951.
RA Two: Extortion in violation of 18 U.S.C. § § 1951 and 2.
RA Six (A) and (B): Obstruction of Justice in violation of 18 U.S.C. § 1512(b)(1); 1503 and 2.
Count Two: Racketeering Conspiracy in violation of 18 U.S.C. § 1962(d). Count Three: Extortion Conspiracy in violation of 18 U.S.C, § 1951.
Count Four: Extortion in violation of 18 U.S.C. § § 1951 and 2.
Count Six: Obstruction of Justice in violation of 18 U.S.C. § 1512(b)(1).
Count Seven: Obstruction of Justice in violation of 18 U.S.C. § 1503 and 2.
Rule 12(b)(2) permits a party to raise, pretrial, "any defense, objection, or request that the court can determine without a trial" and his motion to dismiss Counts One and Two are appropriately made in accordance with that Rule. Before discussing the basis for making it, an understanding of the backdrop against which it is made is crucial.
The Counts of the indictment are preceded by sixteen introductory paragraphs which are surely familiar to courts, prosecutors and the criminal defense bar in cases in which the RICO enterprise is alleged to be an organized crime family. The enterprise alleged here is the Genovese Organized Crime Family whose leaders, members and associates engaged in a variety of racketeering activities defined in 18 U.S.C. § 1961(1), some of which are identified as illustrative. The structure of that enterprise is then described and hardly needs elaboration beyond simply referring to the boss, the underboss, the consigliere, captains of crews, members and associates. The principal purpose of this enterprise is alleged to be making money for its members and associates through racketeering activity.
Vincent Gigante is alleged to be and since the 1980's has been the boss of the Genovese Organized Crime Family. Liborio "Barney" Bellomo is alleged to have been the acting boss of the Family between 1988 and 1996. Ernest Muscarella is alleged to have been the acting boss of the Family between the fall of 2000 and the date of filing this indictment, February 1, 2002, and prior thereto was a captain. Charles Tuzzo is alleged to be a captain, Pasquale Falcetti and Michael Ragusa are alleged to be members and Thomas Cafaro and Andrew Gigante are alleged to be associates of the Family.
The bases upon which the motion is made are (1) RAs Six (A) and (B), the Obstruction of Justice charges, fail to satisfy the requirements of the "relatedness" necessary to sustain a RICO charge given that the purpose of the enterprise is alleged to be to make money for its leaders, members and associates, and (2) RAs One and Two, the Extortion and Extortion Conspiracy charges, "for purposes of racketeering activity, actually amount to one inseparable act." Defs. Mem. at 2. Each of those bases will be discussed in turn.
(a) The "relatedness" issue:
Section 1962(c) provides, in a nutshell, that it is unlawful for a person associated with an enterprise to participate in conducting the affairs of the enterprise through a pattern of racketeering activity. It is one thing to put § 1962(c) in a nutshell, it is another thing to keep it there. Every word of that statute—"affairs," "participate," "conduct," "through," "pattern," has been the subject of microscopic scrutiny, judicial and extrajudicial, which already fills volumes and will, confidently, fill still more. This exploration of the etymological derivation of each of those words and the semanticism surrounding them have given birth to a dizzying array of sophisticated rules qualified by subtle nuances and Talmudic distinctions which have provided grist for the searching minds of judges, lawyers and commentators all with a view towards divining an assumed intent in the mind of the legislative draftsman of the statute. A cursory view of a computerized "Shepard's" of that statute revealed upwards of 10,000 reported cases.
To collect and recite even a minute sampling of those cases which either announced or grappled with proclaimed prerequisites such as "nexus," "horizontal relatedness," "vertical relatedness," "continuity," "pattern of racketeering activity," "conduct or participation in the affairs of," would be an ambitious exercise if not an exercise in intellectual frustration and provide such guidance as the Court may wish them to provide in arriving at a decision.1
A realistic, common sense appraisal of the allegations of the indictment and the assertion advanced by this defendant for the relief he seeks, uncluttered by a variegated string of citations, will more directly and swiftly lead to a conclusion.
(b) His view is that "given the specific purpose of the enterprise alleged, which is to make money, it is clear that the claimed obstruction of justice [RAs 6A and B] fails to satisfy the requisite criteria of relatedness, both to the enterprise and to the remaining acts of racketeering." Def s. Mem. at 2. This view is as unpersuasive as it is disingenuous.
The introductory paragraphs of this indictment allege that Vincent Gigante was the boss of the Genovese family from the 1980's through the filing of it. Par. 5. It alleges that the boss sets policy, resolves disputes between members of the Genovese family and members of other criminal organizations and approves all significant actions by members of the Genovese family. Par. 4. Even while imprisoned, Vincent Gigante remained the boss although the day to day leadership of the family passed to a committee (the "Administration") with whom Vincent Gigante communicated through intermediaries and whose approval was required in administering the affairs of the family. Pars. 5 and 6.
It requires no leap of logic to conclude that if Vincent Gigante had succeeded in obstructing justice and thus avoided a conviction of the serious crimes with which he was charged, he would have been able to continue to function as the hands-on boss of the Genovese family, unimpeded by the bars of a prison cell and the other limitations imprisonment imposes upon the free, unfettered and unsupervised conduct of one's affairs. That the presence of every conceivable prerequisite for a RICO violation whether it be "relatedness," "nexus," "continuity," "participation in the affairs of," which his obstruction of justice would have satisfied requires no elaboration simply because every facet of the affairs of the enterprise are dominated by the boss and that attempt to avoid prosecution was inter-related horizontally, vertically and diagonally, should that be added to the list of prerequisites on another day.
(c) He contends that RAs One and Two, Extortion Conspiracy and Extortion, are acts "which, as a result, at least for purposes of racketeering activity, actually amount to one inseparable act" citing United States v. Long, 917 F.2d 691, 698 fn. 7 (2d Cir.1990). Assuming that RAs One and Two are deemed one inseparable act, it would follow that there would remain just one RA and, therefore, the "pattern" requisite would not be satisfied and the dismissal of Counts One and Two would be compelled.
Having concluded that the predicate acts of Obstruction of Justice satisfy all the necessary prerequisites, the "pattern" prerequisite is also satisfied. The alleged status of Vincent Gigante as boss of the Genovese Organized Crime Family makes him the sun around which all the planetary criminal activities revolve and makes Counts One and Two viable.
(d) His request for relief in the alternative, namely, that RA 6 should be stricken, is premised upon the inability to prove that Vincent Gigante "would have agreed to commit at least two racketeering acts which are `vertically related' to the theorized enterprise—a clear prerequisite to a valid RICO conspiracy charge ... Count Two also cannot stand" and "Alternatively for the same reasons, ... Racketeering Act Six should be stricken from the RICO charges." This assertion is unpersuasive and meritless. The assertion of precisely what the government will be unable to prove is as much wishful as it is premature.
For the reasons given, this motion is denied.
Count Six incorporates the introductory paragraphs and charges that:
In or about and between May 1990 and December 18, 1997, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendant VICENT GIGANTE, also known as "Chin," knowingly and intentionally engaged in misleading conduct toward other persons, to wit: doctors evaluating his mental competence, with intent to influence the testimony of such doctors in official proceedings, to wit: United States v. Vincent Gigante, 90 Cr 446 and 93 Cr 368.
(Title 18, United States Code, § § 1512(b)(1) and 3551 et seq.)
Count Seven incorporates the introductory...
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