U.S. v. D'amico

• Decision Date: 10 August 2010
• Docket Number: No. 09 Cr. 62(CM),09 Cr. 62(CM)
• Citation: 734 F.Supp.2d 321
• Parties: UNITED STATES of America, v. John D'AMICO, a/k/a "Jackie the Nose," and Joseph Watts, a/k/a "Joseph Russo," a/k/a "Joseph Pietruszka," Defendants.
• Court: U.S. District Court — Southern District of New York

734 F.Supp.2d 321

UNITED STATES of America,

v.John D'AMICO, a/k/a "Jackie the Nose," and Joseph Watts, a/k/a "Joseph Russo," a/k/a "Joseph Pietruszka," Defendants.

No. 09 Cr. 62(CM).

United States District Court,

S.D. New York.

Aug. 10, 2010.

Arlo Devlin-Brown, Chi T. Steve Kwok, U.S. Attorney's Office, New York, NY, for Plaintiff.

Elizabeth Edwards Macedonio, Elizabeth E. Macedonio, P.C., Bayside, NY, Gerald Lawrence Shargel, Law Offices of Gerald L. Shargel, Joel Winograd, Winograd & Winograd P.C., New York, NY, for Defendants.

DECISION AND ORDER ON DEFENDANT'S PRETRIAL MOTIONS

McMAHON, District Judge.

INTRODUCTION

Defendant Joseph Watts ("Watts"), an alleged associate in the "Gambino OrganizedCrime Family" (or "Gambino Family"), is charged in the Superseding Indictment (S1 09 Cr. 62 (the "Indictment")) with: (1) conspiring to participate in the conduct of the affairs of a criminal enterprise through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations ("RICO") statute, 18 U.S.C. § 1962(d) (Count One); and (2) killing and aiding and abetting others in killing Frederick Weiss ("Weiss"), a potential witness in a then-pending trial in this District, in violation of 18 U.S.C. § 1512(a) (Count Three).¹

Watts has filed two sets of pretrial motions asking the Court to (1) dismiss Count One of the Indictment as unconstitutionally vague or, "[a]t a minimum," order the Government to provide a bill of particulars (Mem. in Supp. of Watts' Second Set of Pretrial Mots., Oct. 23, 2009 ("Watts' Second Mem."), at 6); (2) dismiss Count Three-the Weiss murder count (which was Count Two in the original indictment)-as time-barred; (3) dismiss Count Three as barred by double jeopardy and/or res judicata; (4) dismiss Count Three as barred by a plea agreement that Watts entered into in 1996 with the U.S. Attorney's Office ("USAO") for the Eastern District of New York ("EDNY"); (5) dismiss Count Three because the Government is estopped from claiming that Watts murdered Weiss or aided and abetted the murder because that claim is factually inconsistent with the position taken by the Government in prior prosecutions of other organized crime associates; and (6) suppress the fruits of the search of the Manhattan office of a company called American Blast, Ltd. ("American Blast").

For the reasons set forth below, Watts' motions are denied.

BACKGROUND

I. The Indictment

The Government alleges that Watts was part of the Gambino Organized Crime Family from about 1980 through March 2009. (Superseding Indictment ¶ 13.) The Gambino Family allegedly constituted a RICO "enterprise," 18 U.S.C. § 1961(4), whose members and associates engaged in numerous violent and other crimes, including murder, obstruction of justice, extortion, "loansharking," money laundering and illegal gambling. (Superseding Indictment ¶¶ 1-2.) The Indictment alleges that the Gambino Family, which was based in New York City, was part of a nationwide criminal organization known as the "Mafia" or "La Cosa Nostra" ("LCN"). ( Id. ¶¶ 2-3.) Five other organized crime families allegedly operated in the New York City area, including the "DeCavalcante Organized Crime Family" (or "DeCavalcante Family"). ( Id. ¶ 3.)

The Indictment alleges that the Gambino Family operated through groups of individuals known as "crews" and "regimes," each of which had as its leader a man known as a "Caporegime," "Capo" or "Captain." ( Id. ¶ 4.) The crews allegedly consisted of " 'made' members," sometimes called "Soldiers," who were aided in their criminal endeavors by other trusted individuals, known as "associates" (an associate, such as Watts, could not become a "made" member because his father was not Italian). ( See id.) Above the Capos was the "Administration"-the highest-ranking members of the Gambino Family, including its head, the "Boss." ( Id. ¶ 6.)

A. Count One: RICO Conspiracy

Count One of the Indictment charges Watts with conspiring-from 1980 into2009-"to conduct and participate, directly and indirectly, in the conduct of the affairs of [the Gambino Family] enterprise through a pattern of racketeering," in violation of 18 U.S.C. § 1962(d). (Superseding Indictment ¶ 13.) The Indictment specifies Watts' alleged position in the Gambino Family: Watts was an associate, but a "close associate" of Boss John A. Gotti, and "was afforded the status of a Gambino Family Capo." ( Id. ¶ 10.)

Count One alleges that in order to protect and expand the Gambino Family's business, members of the Family and their co-conspirators murdered and attempted to murder persons who engaged in activities that threatened the Family's power and criminal operations. ( Id. ¶ 12(a).) The Government alleges that "Frederick Weiss was killed by ... WATTS and [his] co-conspirators because Weiss was believed to be cooperating with law enforcement." ( Id. 12(c).) According to the Government, Watts "plotted the murder." ( Id.)

Count One further alleges that Watts and his co-conspirators generated income for the Gambino Family through loansharking, gambling, extortion and fraud. ( Id. ¶ 12(d).) In particular, the Government alleges that Watts and others extorted "protect[ion]" payments from individuals and businesses seeking to "avoid harm from" the Gambino Family; that Watts ran a loansharking operation centered in Staten Island; and that Watts defrauded business partners by misrepresenting himself as "Joseph Russo." ( Id.)

Members and associates of the Gambino Family allegedly "laundered" the proceeds of their criminal activities through various means. ( Id. ¶ 12(e).) Watts, for example, allegedly used such criminal proceeds to purchase and renovate properties and other assets in Florida through straw buyers. ( Id.) Watts and others also allegedly created an energy drink company called American Blast in 2007, which was used to launder Gambino Family proceeds. ( Id.) ²

Count One further alleges that members and associates of the Gambino Family misrepresented the nature of their income and financial transactions to obstruct judicial proceedings brought against them. ( Id. ¶ 12(h).) Watts allegedly paid a witness $625,000 to create a false defense to criminal charges pending against Watts. ( Id.)

In the section of Count One titled "The Pattern of Racketeering," paragraph 15 of the Indictment alleges that the pattern of racketeering through which Watts and his co-conspirators agreed to participate in the conduct of the affairs of the enterprise consisted of:

multiple acts and threats involving:

(a) Murder, in violation of New York Penal Law, Sections 125.25, 105.15, and 110.00;

(b) Gambling, in violation of New York State Penal Law, Sections 225.00 and 225.10; and

(c) Commercial bribery, in violation of New York Penal Law § [sic]180.03[;]

and multiple acts indictable under:

(d) Title 18, United States Code, Section 1951, involving extortion;

(e) [18 U.S.C. § 892], involving the making of extortionate extensions of credit;

(f) [18 U.S.C. § 1512], involving obstruction of justice, and witness tampering;

(g) [18 U.S.C. § 1955], involving the operation of an illegal gambling business;(h) [18 U.S.C. § 1952], involving the use of interstate facilities to commit commercial bribery;

(i) [18 U.S.C. §§ 1956 and 1957], involving money laundering; and

(j) [18 U.S.C. §§ 1341 and 1343], involving mail fraud and wire fraud.

(Superseding Indictment ¶ 15.)

B. Count Three: Murder of a Witness

Count Three of the Superseding Indictment charges Watts under 18 U.S.C. § 1512 with the 1989 murder of Frederick Weiss, a potential witness in the then-pending trial of United States v. Angelo Paccione, et al., 89 Cr. 446(CBM). (Superseding Indictment ¶ 21.) The Government alleges that:

From in or about September 1, 1989 to in or about September 11, 1989, in the Southern District of New York, the Eastern District of New York, and elsewhere, ... JOSEPH WATTS, ... with malice aforethought, willfully, deliberately, maliciously and with premeditation killed and aided and abetted others in killing, Frederick Weiss with intent to (a) prevent the attendance and testimony of Frederic [sic] Weiss in an official proceeding, and (b) prevent the communication by Frederick Weiss to a law enforcement officer or Judge of the United States information relating to the commission and possible commission of a Federal offense ....

( Id.)

II. The Prior Prosecution of Watts in the EDNY

In the mid-1990s, Joseph Watts was prosecuted in the EDNY for, inter alia, conspiring to murder Frederick Weiss. Watts argues that the EDNY prosecution, which ended in a mid-trial plea agreement, bars the Weiss murder count in the current Indictment.

In 1993, the EDNY USAO charged Watts with nine counts of racketeering-related offenses. See United States v. Joseph Watts, 93 Cr. 294(S-2)(CPS) (the "EDNY Indictment"). One of the counts in the EDNY Indictment charged Watts under 18 U.S.C. § 1959 with conspiring to murder Weiss in aid of racketeering. The EDNY Indictment read, in relevant part, that:

In or about and between August 1989 and September 11, 1989, within the Eastern District of New York and elsewhere, the defendant JOSEPH WATTS, together with James Failla, Dominick Borghese, John Gotti, Salvatore Gravano and others, for the purpose of gaining entrance to and maintaining and increasing position in the Gambino Family, an enterprise engaged in racketeering activity, conspired to murder Fred E. Weiss ....

In addition, the EDNY Indictment charged Watts with a substantive RICO violation under 18 U.S.C. § 1962(c). The third of the five predicate acts alleged in the RICO count was conspiracy to murder Weiss in violation of state law.

In 1996, after his trial had begun, Watts pleaded guilty to one count (conspiracy to murder Thomas Spinelli) of the nine-count EDNY Indictment. See Plea Agreement, United States v. Watts, 93 Cr. 294(CPS), Feb. 15, 1996 (the "Plea Agreement" or "Agreement"), attached as Ex. A to the Aff'n of Gerald L. Shargel, dated Apr. 29, 2009 ("Shargel Aff'n")....