United States v. Known

• Decision Date: 15 December 2015
• Docket Number: 14-CR-556 (WFK) (VMS)
• Court: U.S. District Court — Eastern District of New York
• Parties: UNITED STATES OF AMERICA, v. GENNARO BRUNO also known as "Jerry," Defendant.

UNITED STATES OF AMERICA, v. GENNARO BRUNO also known as "Jerry," Defendant.

14-CR-556 (WFK) (VMS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

December 15, 2015

REPORT AND RECOMMENDATION

Scanlon, Vera M., United States Magistrate Judge:

Defendant Gennaro Bruno (the "Defendant") moves, in an omnibus motion, for a bill of particulars, to compel discovery, to dismiss several counts of the indictment¹ and to inspect the grand jury minutes. See generally 8/12/2015 Def.'s Mot. for Bill of Particulars, Mot. for Discovery, Mot. to Dismiss for Lack of Jurisdiction, Mot. to Dismiss on Speedy Trial, and Mot. to Inspect Grand Jury Minutes (hereinafter "Def.'s Mot."), ECF No. 53. The Honorable William F. Kuntz, II, referred the motions to this Court for a report and recommendation. 8/18/2015 Order, ECF No. 55. Oral argument was held before this Court. See generally 10/22/2015 Tr. of Oral Arg. (hereinafter "10/22/2015 Tr."), ECF No. 72. At oral argument, Defendant withdrew his motion for discovery. 10/22/2015 Minute Entry, ECF No. 69. For the reasons stated herein, this Court respectfully recommends that the District Judge deny Defendant's remaining pretrialmotions in their entirety.

I. Background

A. Defendant's Current Indictment

On October 16, 2014, a grand jury in the Eastern District of New York returned a fifteen-count indictment charging Defendant with:

Racketeering conspiracy and racketeering in or about and between 2000 and October 2014 (Counts One and Two);

Conspiracy to import and conspiracy to distribute marijuana in or about and between 2000 and 2011 (Counts Three and Four);

Using, carrying, and possessing a firearm in connection with violent and drug trafficking crimes in or about and between 2000 and 2011 (Count Five);

Causing the death of Martin Bosshart through the use of a firearm on or about January 2, 2002 (Count Six);

Murder of Martin Bosshart in aid of racketeering on or about January 2, 2002 (Count Seven);

Murder of and conspiracy to murder Martin Bosshart on or about January 2, 2002 while engaged in narcotics trafficking (Counts Eight and Nine); and

Various counts of obstruction of justice in or about and between 2009 and October 2014, including:

Conspiracy to prevent testimony (Count Ten);

Attempt to prevent testimony (Count Eleven);

Conspiracy to prevent communication of information to a law enforcement officer (Count Twelve);

Attempt to prevent communication of information to a law enforcement officer (Count Thirteen);

Conspiracy to obstruct an official proceeding (Count Fourteen); and

Attempt to obstruct an official proceeding (Count Fifteen).

10/16/2014 Indictment (hereinafter "EDNY Indictment" or the "Indictment") ¶¶ 16-60, ECF No. 1.

The racketeering and racketeering conspiracy charges allege that Defendant is a member of the enterprise, the "Corozzo Faction within the Gambino organized crime family of La Cosa Nostra." EDNY Indictment ¶ 1. The enterprise operated within the Eastern District of New York and elsewhere. Id. The Indictment describes in detail the highly organized hierarchy of the Gambino Crime Family. The head of the family was known as the "boss," who was assisted by an "underboss" (or "consigliere") that administered the supervision, support, protection and discipline of the lower-ranking members of the crime family. Id. ¶ 4. Beneath this administrative level were numerous "crews" (also known as "regimes" or "decinas") headed by "captains" (also known as "skippers," "caporegimes," or "capodecinas"). Id. ¶ 5. The crews were comprised of "soldiers" and "associates." Id. Each "captain was responsible for supervising the criminal activities of his crew and providing the crew with support and protection." Id. In return, captains received a portion of their crews' earnings. Id. The enterprise consisted of multiple associates, members and crews of the Gambino family who maintained an alliance with Joseph Corrozzo ("Mr. Corrozzo") and other associates, members and crews under Corozzo's oversight and control. Id. ¶ 6.

As described in the EDNY Indictment, associates were sometimes recruited from loosely structured crews of young men which often operated under the control or with the acquiescence of the Gambino Crime Family, but which did not constitute lower levels of authority within the Gambino Crime Family and were outside the Gambino Crime Family hierarchy and structure. Id. ¶ 8. One of these crews, referred to as the "Young Guns" or "Liberty Posse," operated in Ozone Park, Queens, and was controlled by Ronald Trucchio, who was at various times anassociate, soldier and captain of the Gambino Crime Family. Id. ¶ 9. Yet, the Young Guns functioned self-sufficiently and without oversight. Id. ¶ 8. The Young Guns crew was not associated with the enterprise and no longer exists. Id. ¶ 9.

The purpose of the enterprise was to generate money via various criminal activities, including drug trafficking, robbery, extortion, illegal gambling and loansharking. Id. ¶ 11. The enterprise "also furthered [its] activities by threatening economic injury and using and threatening to use physical violence, including murder." Id. Defendant was a Young Guns member in the 1990s and then became an associate after serving a prison term from 1997 to 2000. Id. ¶ 15.

The racketeering conspiracy charge in Count One and racketeering charge in Count Two allege that Defendant participated in a pattern of racketeering in furtherance of the enterprise's affairs. Id. ¶ 18. Specifically, Counts One and Two charge that Defendant, together with others, conspired to commit or actually committed the following acts:

1. Conspiracy to import marijuana and importation of marijuana, a Schedule I controlled substance, in or about and between 2000 and 2010 within the Eastern District of New York and elsewhere in violation 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1)(G) and 963 and 18 U.S.C. § 2. Id. ¶¶ 19-21.

2. Conspiracy to distribute marijuana and distribution of marijuana, a Schedule I controlled substance, in or about and between 2000 and 2011 within the Eastern District of New York and elsewhere in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii) and 846 and 18 U.S.C. § 2. Id. ¶¶ 22-24.

3. Conspiracy to distribute and distribution of Valium, a Schedule IV controlled substance, in or about and between 2000 and 2003 within the Eastern District of New York and elsewhere in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(2) and 846 and 18 U.S.C. § 2. Id. ¶¶ 25-27.

4. Conspiracy to murder and murder of Martin Bosshart on or about January 2, 2002 in the Eastern District of New York and elsewhere in violation of New York Penal Law ("N.Y.P.L.") §§ 125.25(1), 105.15 and 20.00. Id. ¶¶ 28-30.5. Conspiracy and attempted Hobbs Act extortion of a waste carting company in Queens, New York in or about and between 2000 and 2003 within the Eastern District of New York and elsewhere in violation of 18 U.S.C. §§ 1951(a) and 2. State law extortion and attempted state law extortion in or about and between 2000 and 2003 within the Eastern District of New York and elsewhere in violation of N.Y.P.L. §§ 155.40(2), 155.05(2)(e)(i), 155.05(2)(e)(ii), 110.00 and 20.00. Id. ¶¶ 31-35.

6. Conspiracy and attempt to prevent testimony of John Doe #2 in an official proceeding in or about and between 2009 and October 2014 within the Eastern District of New York in violation of 18 U.S.C. §§ 1512(b)(1), 1512(k) and 2. Conspiracy and attempt to prevent communication of information to a law enforcement officer in or about and between 2009 and October 2014 within the Eastern District of New York in violation of 18 U.S.C. §§ 1512(b)(3), 1512(k) and 2. Conspiracy and attempt to obstruct an official proceeding in or about and between 2009 and October 2014 within the Eastern District of New York in violation of Title 18 U.S.C. §§ 1512(c)(2), 1512(k) and 2. Id. ¶¶ 36-42.

As stated above, Defendant filed an omnibus motion on August 12, 2015. Def.'s Mot. In his motion, Defendant moves:

(1) for a bill of particulars for Counts One through Five and Ten through Fifteen (id. at 6-9);

(2) for disclosure of the recordings the Government intends to use at trial (id. at 10-12);

(3) to dismiss Count One (racketeering conspiracy) as barred by double jeopardy (id. at 12-20);

(4) to dismiss Counts One through Nine as barred by Defendant's 2004 Southern District of Florida plea agreement (id. at 20-28);

(5) to dismiss Counts Six through Nine due to pre-indictment delay (id. at 28-31); and

(6) for the Court to examine the grand jury minutes incamera to determine if the grand jury was misled with regard to Counts Six through Nine (id. at 31-37).

The Government opposes the omnibus motion for the reasons discussed below. See generally Gov't's Mem. of Law in Opp'n to Def.'s Mot. (hereinafter "Gov't's Opp'n"), ECF No. 59. As previously stated, at oral argument, Defendant withdrew his motion for Government disclosureof the recordings it intends to use at trial because the Government agreed to turn over transcripts of the recordings as they are available and have been reviewed. 10/22/15 Tr. at 19-20.

As two of Defendant's motions to dismiss involve an indictment of Defendant presented by, and plea agreement by Defendant entered into with, the United States Attorney's Office ("USAO") for the Southern District of Florida ("SDFL"), the Court first discusses the SDFL Indictment and plea agreement before addressing the merits of the parties' arguments.

B. Defendant's Previous Indictment And Guilty Plea In The Southern District Of Florida

In 2004, Defendant was charged by the USAO for the SDFL with racketeering conspiracy in a one-count indictment. SDFL Third Superseding Indictment, Ex. 3 to Def.'s Mot. (hereinafter "SDFL Indictment"). He ultimately pled guilty to the count of racketeering conspiracy in violation of Title 18, United States Code, Section 1962(d). SDFL Plea Agreement, Ex. 4 to Def.'s Mot.

In the SDFL Indictment, the charged enterprise in the racketeering conspiracy was a crew "operating under the...