U.S. v. Urso, 03 CR 1382(NGG).

• Decision Date: 03 May 2005
• Docket Number: No. 03 CR 1382(NGG).,03 CR 1382(NGG).
• Citation: 369 F.Supp.2d 254
• Parties: UNITED STATES of America v. Anthony URSO, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

369 F.Supp.2d 254

UNITED STATES of America v. Anthony URSO, et al., Defendants.

No. 03 CR 1382(NGG).

United States District Court, E.D. New York.

May 3, 2005.

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Edward P. Jenks, Mineola, NY, Patrick V. Parrotta, Law Offices of Patrict V. Parrotta Staten Island, NY, James R. Froccaro, Port Washington, NY, Larry Bronson, Bronson & Bronson, LLP, Ronald P. Fischetti, Michael Rosen, Law Office of Michael Rosen, Lisa Scolari, Martin R. Stolar, Alan S. Futerfas, Law Offices of Alan S. Futerfas Esq., New York, NY, Richard J. Shanley, Brooklyn, NY, Ellen B. Resnick, Law Offices of Alan S. Futerfas, New York, NY, Richard A. Rehbock, Jericho, NY, Marvyn M. Kornberg, Kew Gardens, NY, Oliver A. Smith, Law Office of Oliver A. Smith, Esq., New York, NY, Gerard M. Marrone, Gerard Marrone Attorney at Law, Rego Park, NY, Michael O. Hueston Cardinale, Hueston & Marinelli, Brooklyn, NY, Neil Bruce Checkman, Law Office of Neil Checkman, New York, NY, Allen Lashley, Joseph Mure, Jr., Mure & Carone, Brooklyn, NY, Richard Ware Levitt, Law Offices of Richard W. Levitt, New York, NY, Alan M. Nelson, Alan Nelson Esq., Lake Success, NY, Harry Conrad Batchelder, Jr., Law Offices of Harry C. Batchelder, Jr., Louis R. Aidala, Flora Edwards, Richard I. Rosenkranz, Richard I. Rosenkranz, Esq., Joel Winograd, Winograd & Winograd, P.C., New York, NY, Mark Steven DeMarco, Law Offices of Mark S. DeMarco, Bronx, NY, Lewis D. Cohen, Offices of Lewis D. Cohen, Great Neck, NY, Gail E. Laser, New York, NY, Vito Giannola, Law Offices, Brooklyn, NY, Ronald Rubinstein, Rubinstein & Corozzo, Sarita Kedia, Joyce C. London, Law Office of Joyce London, New York, NY, for Defendants.

Greg D. Andres, United States Attorneys Office Criminal Division, Brooklyn, NY, for Plaintiff.

MEMORANDUM & ORDER

GARAUFIS, District Judge.

Oral argument was heard on April 8, 2005 on the pre-trial motions of defendants Baldassare Amato, Anthony Basile, Michael Cardello, Peter Cosoleto, Joseph Desimone and John Palazzolo. These defendants have been slated for joint trial under the Government's proposed grouping of the remaining twelve defendants under the instant indictment, which charges each of the remaining defendants with violations of 18 U.S.C. § 1962(d), the RICO conspiracy statute, among other counts. The motions filed by the defendants in this trial group can be roughly divided between substantive challenges to the indictment on one hand, and discovery-related motions on the other. For the reasons set forth below, the substantive motions made by the defendants are granted in part and denied in part. The defendants' discovery-related motions are likewise granted in part and denied in part, with consideration of several of the defendants' discovery-related motions held in abeyance until a definitive trial date is set.

SUBSTANTIVE MOTIONS

I. Baldassare Amato

Amato moves to dismiss of Count One of the indictment, which charges RICO Conspiracy, and to sever Racketeering Acts 32 and 43 from the indictment.¹ These motions for pretrial relief are denied for the reasons set forth below.

(A) Amato's Motion to Dismiss

Amato's motion to dismiss is denied because in each of its facets, it contests the factual sufficiency of the government's case. A defendant may not contest the sufficiency of the government's proof in a pre-trial motion "[u]nless the government has made what can fairly be described as a full proffer of the evidence it intends to present at trial." United States v. Alfonso, 143 F.3d 772, 776-77 (2d Cir.1998) (quoting United States v. Doe, 63 F.3d 121, 125 (2d Cir.1995)) (internal citations and quotation marks omitted).

Here, the government has made only a limited proffer of its evidence. That limited proffer was made in a memorandum submitted in support of the government's motion for pre-trial detention of a number of the defendants in this indictment. With respect to Amato, the memorandum briefly summarizes, typically in a single sentence, the testimony that each of a string of cooperating witnesses is expected to give, and the physical evidence that the government expects to present to the jury. This brief preview of the government's evidence cannot be fairly characterized as a "full proffer." To the contrary, it is clear that the government's memorandum was submitted for the sole purpose of supporting its motion for pre-trial detention, and thus was tailored to satisfy the detention analysis set forth in the Bail Reform Act, 18 U.S.C. § 3142(g), without revealing further details of the government's case not necessary for that purpose. Accordingly, Amato's motion to dismiss must be denied to the extent that it challenges the sufficiency of the government's evidence.

Even a cursory review of Amato's motion to dismiss reveals that he is challenging the sufficiency of the government's proof at every turn. Amato variously argues that the indictment must be dismissed because it "fails to allege a sufficient structure" (Amato Br. at 4), that certain predicate acts were committed on behalf of other, unrelated, enterprises (Id. at 5), that the acts which Amato is alleged to have committed were not meaningfully related, and therefore do not constitute a pattern of racketeering activity (Id. at 6), that he was not involved in illegal gambling (Id. at 7), and that he did not conduct or participate in the Massino family enterprise. (Id.). These claims all present direct challenges to the sufficiency of the government's proof, and therefore are premature under Alfonso. Indeed, Amato's papers are replete with assertions that "the facts... show that the murders of Sebastian DiFalco and Robert Perrino were committed for personal and other reasons unrelated to the Massino family, ... that the murders were committed by [persons other than Amato and] that the shootings ... conflicted with [the] Massino family's rules and interest." (Amato Br. at 2-3) (emphasis added). Amato also argues that the government's "post hoc racketeering theory ... is belied by the established facts," and that "the facts show that [Racketeering Acts 32 and 43] were actually committed by a separate `enterprise' called the Ridgewood Boys." (Id. at 3, 5) (emphasis added).

Amato makes several attempts to circumvent the bar against pre-trial evidentiary sufficiency challenges, each of which is ultimately fruitless. First, he suggests that "the established facts set out in the transcripts" of several criminal proceedings in the Eastern District demonstrate that the Bonnano family is not an enterprise. (Id. at 3). However, the sole trial cited by Amato for this proposition is United States v. Joseph Massino, 02 Cr. 307 (E.D.N.Y.) (NGG). The jury empaneled for that trial clearly accepted the government's contention that the Bonnano crime family exists, and agreed that it constitutes an enterprise within the meaning of the RICO statute in finding Massino guilty of both racketeering conspiracy and a substantive RICO offense. This court is therefore at a loss to understand how the evidence presented at that trial supports Amato's contention that the government has insufficiently alleged a structure in the present indictment.

Amato next argues that his motion should be entertained notwithstanding the prohibition against pre-trial sufficiency challenges because "six years ago the Government posited a theory concerning the murder of Sebastian DiFalco, which is inconsistent [with] its present claim that DiFalco was murdered in support [of] the aims of the Massino Family." (Amato Reply Br. at 4-5). This assertion is without merit. The statement cited by Amato is the following assertion made by a government prosecutor during a bail hearing: "[A]lthough Mr. Amato was charged only with the conspiracy and not the substantive murder, clearly there is a Pinkerton theory there on which the Government may seek to supercede the indictment." (Exhibit 1 to Amato Reply Br. p. 7:13-22). According to Amato, this statement demonstrates that "in 1999 the Government advocated the position that Mr. Amato was not involved [in] the substantive murder of DiFalco, but was, at best a conspirator" who could be held liable as a principal for foreseeable acts of his co-conspirators. (Amato Reply Br. at 4). The government's 1999 position is not in conflict with its present position. In 1999, the government suggested that Amato might be liable as a principal for the DiFalco murder because of his role in the conspiracy to kill DiFalco. Today, the government alleges that Amato violated New York's murder statute through his involvement in that murder, and thus committed a racketeering act within the meaning of 18 U.S.C. § 1961(1)(A). The government has now done what it intimated six years ago that it was entitled to do. Amato's assertion that the government's current prosecution is inconsistent with the theory that it suggested six years ago is therefore without merit, even assuming arguendo that an individual prosecutor's conjecture at a bail hearing as to whether the government would pursue a superceding indictment is at all relevant here.

Finally, Amato refers to another statement made by the government at the same 1999 bail hearing in suggesting that the government has proffered sufficient evidence such that his claims can be considered on a motion to dismiss. At the hearing, the government asserted that it would produce witnesses at trial who would testify "about Mr. Amato's direction that they murder Mr. DiFalco, in sum and substance, because of a dispute that Mr. Amato had with Mr. DiFalco." (Exhibit 1 to Amato Reply Br. p. 7:23-8:1). Amato now asserts that the foregoing statement proves that "the murder occurred because of a dispute unrelated to the Massino Family." (Id. at 4.) (emphasis added). The problem for Amato, of course, is that the government merely stated that the murder occurred "because of a dispute." Just how Amato divines the phrase ...