United States v. Persico

Decision Date02 October 1985
Docket NumberNo. S 84 Cr. 809 (JFK).,S 84 Cr. 809 (JFK).
Citation621 F. Supp. 842
PartiesUNITED STATES of America v. Carmine PERSICO, a/k/a "The Snake," a/k/a "Junior," Gennaro Langella, a/k/a "Gerry Lang," Thomas DiBella, a/k/a "The Old Man," Alphonse Persico, a/k/a "Little Allie Boy," Dominic Montemarano, a/k/a "Donny Shacks," John J. DeRoss, a/k/a "Jackie," Frank Melli, a/k/a "Beansie," Anthony Scarpati, a/k/a "Scappy," Andrew Russo, a/k/a "Andy Mush," Dominic Cataldo, a/k/a "Little Dom," Frank Falanga, a/k/a "Frankie The Beast," Hugh McIntosh, a/k/a "Apples," Vito Pitta and Ralph Scopo, Defendants.
CourtU.S. District Court — Southern District of New York







Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., for United States; Bruce A. Baird, Aaron R. Marcu, Frank H. Sherman, Asst. U.S. Attys., New York City, of counsel.

Frank A. Lopez, Brooklyn, N.Y., for defendant Carmine Persico.

David A. DePetris, New York City, for defendant Gennaro Langella.

Slotnick & Cutler, P.C., New York City, for defendant Thomas DiBella; Bruce Cutler, of counsel.

DePetris, Meyer & Diesenhouse, New York City, for defendant Alphonse Persico; Stanley M. Meyer, of counsel.

Harold J. Boreanaz, Buffalo, N.Y., for defendant Dominic Montemarano.

Dennis J. Peterson, Staten Island, N.Y., for defendant John J. DeRoss.

Charles L. Emma, Brooklyn, N.Y., for defendant Frank Melli.

Jacob R. Evseroff, Brooklyn, N.Y., for defendant Anthony Scarpati.

Santangelo & Cohen, New York City, for defendant Andrew Russo; George L. Santangelo, of counsel.

Michael F. Coiro, Jr., Bellmore, N.Y., for defendant Dominic Cataldo.

Bryan F. Levinson, Kew Gardens, N.Y., for defendant Frank Falanga.

Susan G. Kellman, New York City, for defendant Hugh McIntosh.

Stillman, Friedman & Shaw, P.C., New York City, for defendant Vito Pitta; Edward M. Shaw, of counsel.

Slotnick & Cutler, P.C., New York City, for defendant Ralph Scopo; Barry I. Slotnick, of counsel.


KEENAN, District Judge:

The fourteen defendants are alleged to be members and associates of the Colombo Family of La Cosa Nostra ("Colombo Family"). The Colombo Family allegedly is a criminal enterprise that systematically engaged in a wide-range of criminal activities including payoffs, embezzlement and extortion in connection with its control and domination of local labor unions; theft; sale of stolen goods; loansharking; illegal distribution of naroctics; operation of an illegal gambling business; bribery of public officials; and, intimidation by threats, beatings and murder. Counts one and two of the 51-count indictment, which constitute the heart of the government's case, charge all fourteen defendants with substantive violations of, and conspiracy to violate, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. ? 1962(c) and (d).

In connection with the indictment, defendants have filed a wide variety of motions. Each shall be dealt with below.1

A. Joinder/Severance

Defendants Langella, Scarpati and Melli contend they are improperly joined in this indictment under Rule 8(b) of the Federal Rules of Criminal Procedure ("F.R.Cr.P."). In the alternative, these defendants, together with defendants Alphonse Persico, Russo, McIntosh, Pitta and Scopo, seek a severance pursuant to F.R.Cr.P. 14. Defendants Carmine Persico, Langella and Scopo move for an order pursuant to F.R. Cr.P. 13 severing a portion of the indictment and joining it for trial with the indictment in United States v. Salerno, S 85 Cr. 139 (RO). For the reasons stated below, these motions are denied.

1. Misjoinder

Rule 8(b) of the Federal Rules of Criminal Procedure governs joinder in multiple defendant cases, e.g., United States v. Turbide, 558 F.2d 1053, 1061 n. 7 (2d Cir.), cert. denied, 434 U.S. 934, 98 S.Ct. 421, 54 L.Ed.2d 293 (1977). It provides:

Two or more defendants may be charged in the same indictment ... if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

Rule 8(b) permits joinder of crimes arising out of a common scheme or plan. See, e.g., United States v. Weisman, 624 F.2d 1118, 1129 (2d Cir.), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 91 (1980); United States v. Ricco, 549 F.2d 264, 271 (2d Cir.), cert. denied, 431 U.S. 905, 97 S.Ct. 1697, 52 L.Ed.2d 389 (1977); United States v. Bernstein, 533 F.2d 775, 789 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976); United States v. Scott, 413 F.2d 932, 935 (7th Cir.1969), cert. denied, 396 U.S. 1006, 90 S.Ct. 560, 24 L.Ed.2d 498 (1970); United States v. Clemente, 494 F.Supp. 1310, 1324 (S.D.N.Y.1980). It applies to substantive offenses, as well as to conspiracies. Two or more conspiracies may be joined under Rule 8 so long as they are related as part of a common scheme. United States v. Borelli, 336 F.2d 376, 387 (2d Cir.1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). A conspiracy charge "provides a common link and demonstrates the existence of a common plan" for purposes of Rule 8(b). Bernstein, 533 F.2d at 789. Joinder of otherwise separate acts may be allowed when the acts are properly linked by means of a conspiracy charge. United States v. Welch, 656 F.2d 1039, 1051 (5th Cir.1981), cert. denied, 456 U.S. 915, 102 S.Ct. 1768, 72 L.Ed.2d 173 (1982); United States v. Luna, 585 F.2d 1, 4 (1st Cir.), cert. denied, 439 U.S. 852, 99 S.Ct. 160, 58 L.Ed.2d 157 (1978); United States v. Adams, 581 F.2d 193, 197 (9th Cir.), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978).

In much the same way, a RICO charge provides the unifying link among the substantive crimes making up a pattern of racketeering activity for purposes of their joinder under Rule 8(b). United States v. Tashjian, 660 F.2d 829, 833 (1st Cir.), cert. denied, 454 U.S. 1102, 102 S.Ct. 681, 70 L.Ed.2d 646 (1981); Welch, 656 F.2d at 1051; see Weisman, 624 F.2d at 1129; United States v. Napolitano, 552 F.Supp. 465, 478 (S.D.N.Y.1982). The racketeering counts almost by definition constitute "a `series of acts or transactions' sufficiently intertwined to permit a joint trial of all defendants" under Rule 8(b). United States v. Bagaric, 706 F.2d 42, 69 (2d Cir. 1983). The Second Circuit has observed:

If ... the predicate acts could properly be considered part of a "pattern of racketeering activity," we see no reason why they could not similarly constitute part of a "series of acts or transactions constituting an offense" within the meaning of Rule 8(b). Indeed, a construction of Rule 8(b) that required a closer relationship between transactions than that necessary to establish a "pattern of racketeering activity" under RICO might possibly prohibit joinder in circumstances where Congress clearly envisioned a single trial.

Weisman, 624 F.2d at 1129.

All the defendants are charged in the RICO substantive and conspiracy counts (counts one and two) and all are charged with participating in the affairs of the same illegal enterprise, to wit, the Colombo Family. Accordingly, joinder appears proper in this case.

Concededly, each defendant is not charged in every count of the indictment. Rule 8(b), however, expressly provides that "all defendants need not be charged in each count." See United States v. Barton, 647 F.2d 224, 239-40 (2d Cir.), cert. denied, 454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981); United States v. Scotto, 641 F.2d 47, 58 (2d Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3109, 69 L.Ed.2d 971 (1981); Weisman, 624 F.2d at 1129. Nor is it significant that each defendant is not charged with committing or agreeing to commit every predicate act in the RICO counts. Even in the case of a non-racketeering conspiracy, an indictment need not allege that every defendant participated in each act or transaction, Scott, 413 F.2d at 934-35, and joinder is proper even if different defendants participate in different parts of an overall scheme or conspiracy. United States v. Perez, 489 F.2d 51, 62 (5th Cir.1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974); Borelli, 336 F.2d at 387; United States v. Mandel, 415 F.Supp. 1033, 1047 (D.Md.1976).

Accordingly, defendants' motion for dismissal or severance based on misjoinder under Rule 8(b) is denied.

2. Severance

It is well settled that "persons jointly indicted may be jointly tried.... `to conserve judicial resources, alleviate the burdens on citizens serving as jurors, and avoid the necessity of having witnesses reiterate testimony in a series of trials.'" United States v. Lyles, 593 F.2d 182, 191 (2d Cir.) (quoting United States v. Borelli, 435 F.2d 500, 502 (2d Cir.1970), cert. denied, 401 U.S. 946, 91 S.Ct. 963, 28 L.Ed.2d 229 (1971)), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979); see United States v. Ventura, 724 F.2d 305, 312 (2d Cir.1983); Weisman, 624 F.2d at 1129-30. This presumption in favor of joint trials is particularly strong where, as here, "the crimes charged involve a common scheme or plan." United States v. Girard, 601 F.2d 69, 72 (2d Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979).

Defendants argue that the danger of "prejudicial spillover" and "guilt by association" counsel in favor of abandoning the general joint indictment-joint trial rule. The Court does not dispute that there exists some risk of prejudicial spillover in any multi-defendant trial. The degree of risk depends on the particular facts and circumstances of the case. In a case such as this, where all the defendants are charged with substantive racketeering offenses and participation in a racketeering conspiracy, the government would be entitled to offer...

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