United States v. Castellano
| Citation | 610 F. Supp. 1359 |
| Decision Date | 06 June 1985 |
| Docket Number | No. SSS 84 Cr. 63 (ADS).,SSS 84 Cr. 63 (ADS). |
| Parties | UNITED STATES of America v. Paul CASTELLANO, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
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Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for the U.S.; Walter S. Mack, Jr., Mary Lee Warren, Michael Kellogg, Mark Feldman, New York City, of counsel.
LaRossa, Cooper, Axenfeld, Mitchell & Bergman, New York City, for defendant Paul Castellano; James M. LaRossa, Edward M. Chikofsky, New York City, of counsel.
Michael Rosen, New York City, for defendant Anthony Frank Gaggi.
Herald Price Fahringer, New York City, for defendant Joseph Carmine Testa, Jr.
Gustave H. Newman, New York City, for defendant Patrick Testa; Deborah A. Schwartz, New York City, of counsel.
Robert L. Ellis, New York City, for defendant Henry Borelli.
Joel Winograd, New York City, for defendant Peter LaFroscia.
Jay Goldberg, New York City, for defendant Anthony Michael Senter.
Lawrence Hochheiser, New York City, for defendant Ronald Ustica.
Richard S. Berne, New York City, for defendants Judith May Hellman and Wayne Hellman.
Larry J. Silverman, New York City, for defendant Sol Hellman; Vivian Shevitz, New York City, of counsel.
Jerry L. Tritz, New York City, for defendant Paul Dordal.
Gerald L. Shargel, New York City, for defendant Richard Mastrangelo; Jonathan J. Silbermann, New York City, of counsel.
David S. Greenfield, New York City, for defendant Ronald Turekian.
Leon Port, Brooklyn, N.Y., for defendant Herman Weisberger.
Jay M. Zerin, New York City, for defendant Edward John Rendini.
Irwin Rochman, New York City, for defendant Douglas Rega.
Thomas H. Nooter, New York City, for defendant Pedro Luis Rodriguez.
Clapp & Eisenberg, Newark, N.J., and Evseroff & Sonenshine, Brooklyn, N.Y., for defendant Gus Kalevas; Salvatore T. Alfano, Newark, N.J., of counsel.
Melvin M. Lebetkin, Kew Gardens, N.Y., for defendant Salvatore Mangialino; Joseph W. Ryan, Jr., Kew Gardens, N.Y., of counsel.
Peter Shelley Zeiler, New York City, for defendant Carlo Profeta.
The seventy-eight count indictment in this case names twenty-four defendants, twenty-one of whom are before the court and scheduled for trial. Count 1 of the indictment names all the defendants, along with others, and alleges that they participated in a racketeering enterprise of extensive scope and variety. 18 U.S.C. § 1962(c) (1982) ("RICO"). The enterprise alleged is termed a "crew," of which Roy DeMeo acted as "street leader" until he was murdered, and over which the defendants Anthony Frank Gaggi and Paul Castellano acted respectively as "captain" and "boss." These leaders and the other defendants are alleged to have engaged in eighty acts of racketeering in furtherance of the enterprise, including twenty-six murders, bribery, extortion, narcotics violations, thefts from interstate shipments, mail and wire fraud, obstruction of justice, transportation of stolen property, and transportation of women for purposes of prostitution. The enterprise is alleged to have existed from on or about January 1, 1972 until February 28, 1983, in the Southern District of New York and elsewhere. The acts of racketeering include several alleged conspiracies and schemes.
Count 2 alleges a "racketeering conspiracy," 18 U.S.C. § 1962(d) (1982), in which all the defendants, and others, conspired to conduct or participate in the enterprise alleged in count 1. Count 2 incorporates by reference virtually all of the allegations and racketeering acts described in the first count. The remaining seventy-six counts include substantive offenses and conspiracies, all of which are either charged as, or are claimed by the government to be related to, the racketeering acts charged in count 1.
Defendants jointly filed a 21-point Omnibus Motion. In addition, fourteen defendants filed individual motions. These challenges to the indictment are grouped into four broad categories. Part I of this opinion addresses jurisdictional challenges to the indictment which, if granted, would result in dismissal of counts. Part II examines the government's use of RICO with respect to both the sufficiency of its theory of the case and to its decision to join all these defendants for trial. Part III concerns motions to dismiss particular counts or strike specific acts of racketeering. Part IV addresses evidentiary claims and other, miscellaneous individual motions.
The general federal statute of limitations bars prosecution of a noncapital offense unless an indictment is found within five years of its commission. 18 U.S.C. § 3282 (1982) ("section 3282"). Defendants claim that section 3282 prevents the government from prosecuting a violation of the substantive RICO provision, 18 U.S.C. § 1962(c), by proving the commission of acts of racketeering that occurred more than five years prior to a RICO indictment. Second, they claim that section 3282 bars the prosecution of other, unenumerated counts of the indictment. Finally, defendants argue that the due process clause should preclude proof of certain acts of racketeering in connection with the RICO substantive count, and should preclude the prosecution of various other counts, even if prosecution is not barred by section 3282.
The first indictment in this case, captioned United States v. Richard DiNome and Ronald Ustica, 84 Cr. 63, was filed on January 20, 1984. That indictment charged only one of the defendants named in the present indictment, Ronald Ustica, and concerned only offenses relating to automobile thefts. (Current acts of racketeering 55-71 and counts 31-47 can be traced back to the first indictment.) On March 29, 1984, the first superseding indictment, captioned United States v. Paul Castellano et al., S 84 Cr. 63, was filed. That indictment added twenty defendants and deleted one defendant, Richard DiNome, because he had been murdered in early February 1984. It also added thirty-three counts. Among those counts were two multidefendant RICO counts, one for a violation of the substantive RICO provision, section 1962(c), and one for conspiracy to violate RICO, section 1962(d). Seventy-three acts of racketeering were specified in count one of the first superseding indictment; these appear as acts of racketeering 1-27, 29-36, 38-48, 52-74, and 77-80 in the present indictment. In addition to the two main RICO counts, twenty-nine other offenses were charged; with two exceptions, discussed in the next paragraph, these appear as counts 3-4, 7-22, 30-53, 55-56, and 66-69 of the present indictment.
On September 19, 1984, a second superseding indictment was filed. United States v. Paul Castellano et al., SS 84 Cr. 63. This second superseder added three additional defendants—Carlo Profeta, Dennis Testa, and Abdullah Mohammad Hassan Hussain—who were all named in counts 1 and 2. It also added acts of racketeering 28, 37, 49-51, and 75-76 to the substantive RICO count; named additional defendants with respect to acts of racketeering 3, 29, 41, 54-72, and 77-78; changed the dates of acts of racketeering 38, 41, 44-48, 53-55, 72, 74, 77, and 78; and removed defendant Patrick Testa's name from acts of racketeering 16 (where the name of the victim was changed from Vincent Ragucci to Dominick Ragucci) and 78. In addition, the second superseder added counts 5-6, 23-29, 54, 57-65, and 70-78, and changed count 68 from a substantive count to a conspiracy count; named additional defendants in connection with counts 7-8, 30-48, 55-56, and 66-68; and changed the dates alleged in counts 7-8, 30, 48, 55-56, and 66-69. Finally, it deleted count 39 of S 84 Cr. 63, which charged a conspiracy to transport stolen property involving fourteen of the defendants.
The pending indictment was filed on October 4, 1984. United States v. Paul Castellano et al., SSS 84 Cr. 63. It apparently made one change, adding defendant Profeta to act of racketeering 27, and it is the indictment in reference to which the current motions have been made.
Each of the seventy-six non-RICO counts of the current indictment stands alone as an independent charge, which the government seeks to join at trial pursuant to Fed.R.Crim.P. 8. Each one must satisfy the time limitation of section 3282.
Normally, "once an indictment is brought, the statute of limitations is tolled as to the charges contained in that indictment." United States v. Grady, 544 F.2d 598, 601 (2d Cir.1976). If a superseding indictment is brought while the original indictment is still validly pending, the superseder can adopt the original indictment's date of filing, "if and only if it does not broaden the charges made in the first indictment...." Id. at 602. In this case, four possible dates exist for establishing the outside limit under section 3282: January 30, 1979; March 29, 1979; September 19, 1979; and October 4, 1979, five years, respectively, before the filing of each of the indictments.
The January 30, 1979 limitation date is appropriate only as to defendant Ustica, and only with regard to counts 31-47 of the present indictment. No other present defendant was named in the first indictment, and no other criminal activity was then charged against Ustica. The changes made in the first superseding indictment therefore cannot be viewed as "trivial" or "innocuous." Grady, 544 F.2d at 602 (...
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