United States v. Vasta

• Citation: 649 F. Supp. 974
• Decision Date: 28 October 1986
• Docket Number: No. SSS 86 Cr. 60 (RLC).,SSS 86 Cr. 60 (RLC).
• Parties: UNITED STATES of America, v. Philip VASTA, Edward Margiotta, Oreste Abbamonte, Jr., Michael Paradiso, Arnold Squitieri, Angelo Amen, Richard Romano, Angelo Meli, Mark A. Deleonardis, Michael Deleonardis, Sr., Michael Deleonardis, Jr., Oreste Abbamonte, Sr., Catherine Abbamonte, Patricia Toron, Defendants.
• Court: U.S. District Court — Southern District of New York

649 F. Supp. 974

UNITED STATES of America, v. Philip VASTA, Edward Margiotta, Oreste Abbamonte, Jr., Michael Paradiso, Arnold Squitieri, Angelo Amen, Richard Romano, Angelo Meli, Mark A. Deleonardis, Michael Deleonardis, Sr., Michael Deleonardis, Jr., Oreste Abbamonte, Sr., Catherine Abbamonte, Patricia Toron, Defendants.

No. SSS 86 Cr. 60 (RLC).

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

October 28, 1986.

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Rudolph W. Giuliani, U.S. Atty., for S.D. N.Y., New York City, for U.S.; Michael R. Bromwich, Annmarie Levins, Steven A. Standiford, Robert L. Ullman, Asst. U.S. Attys., of counsel.

Gerald L. Shargel, New York City, for Philip Vasta; Steven Reiss, of counsel.

Murray Richman, Bronx, N.Y., for Edward Margiotta.

Jonathan N. Boxer, Burns, Burger & Boxer, Westbury, N.Y., for Oreste Abbamonte, Jr.

Howard L. Jacobs, New York City, for Michael Paradiso.

Lawrence H. Schoenbach, New York City, for Angelo Amen.

Arthur Miller, Farber and Miller, Brooklyn, N.Y., for Richard Romano.

Ruth M. Chamberlin, The Legal Aid Society, Federal Defender Services, New York City, for Angelo Meli.

Michael Hurwitz, New York City, for Arnold Squitieri.

Michael P. Joseph, Joseph & Stalonas, New York City, for Mark A. DeLeonardis.

Daniel Noble, New York City, for Michael DeLeonardis, Sr.

Howard Mulholland, New York City, for Michael DeLeonardis, Jr.

John Jacobs, New York City, for Patricia Toron.

Richard Rehbock, New York City, for Oreste Abbamonte, Sr. and Catherine Abbamonte.

ROBERT L. CARTER, District Judge.

This case charges 14 defendants in a 23-count indictment with various violations of the federal narcotics laws and defendant Vasta with several firearms infringements. The indictment charges all defendants with conspiring to distribute heroin. Defendants Philip Vasta and Oreste Abbamonte, Jr. are charged with operating a continuing criminal enterprise for the distribution of narcotics. Defendants Arnold Squitieri and Michael Paradiso are charged with aiding and abetting Abbamonte in his continuing criminal enterprise activities; and various defendants are charged with possession and distribution of narcotics. In addition, criminal forfeiture of $5.8 million in cash seized by Drug Enforcement Administration ("DEA") agents from Vasta is sought.

Defendants have filed a multitude of pretrial motions including motions to sever, dismiss, transfer to the Eastern District of New York, for bills of particulars, to suppress various intercepted conversations, post-arrest statements and seized property on the grounds that several searches were unlawful. The court of necessity has spent considerable time and effort studying the voluminous papers submitted in connection with these motions. However, many of the claims are supported only by conclusory allegations or are otherwise wholly without merit, warranting dismissal out of hand. The court deals, hereafter, only with those of defendants' various claims that require discussion. Any motion not expressly discussed is, therefore, to be considered summarily dismissed.

A. Venue

We start with the motions to dismiss the indictment on venue grounds. The government concedes that venue is improper in this district in respect of counts 5, 6, 9, 10, 11, 14, 15 and 17-23. The motions to dismiss those counts are granted. As to the remaining counts 1-4, 7-8, 12-13, the government contends that its proof will show the occurrence of numerous acts in this district to satisfy venue requirements.

The government charges the existence of a continuing criminal enterprise and expects to show defendants' participation in the enterprise, various overt acts in furtherance of the conspiracy charge, and various acts in this district supporting the substantive counts. Venue, of course, is appropriate in this district if any part of the crime charged took place here. United States v. Panebianco, 543 F.2d 447, 455 (2d Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1128, 51 L.Ed.2d 553 (1977) ("Venue turns on whether any part of the crime was committed within the district, and the government need only prove venue by a preponderance of the evidence."). Where Congress has made no specific provisions for venue, proper venue is determined on the basis of "the nature of the offense and the location of the acts constituting it." United States v. Chestnut, 533 F.2d 40, 46 (2d Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976). "The constitutional standards for venue concern the locality of the substantive offense rather than the location of the offender at the time of the offense." Id. at 47.

The motions by various defendants to transfer the case to the Eastern District are patently frivolous. Such a motion has substance only where the movant shoulders the burden of establishing that the transfer serves the needs of justice and the convenience of the parties and witnesses. United States v. Aronoff, 463 F.Supp. 454, 461 (S.D.N.Y.1978) (Cannella, J.). Obviously, these factors can not be better served by a trial being moved a distance of a mere couple of miles from this courthouse. Accordingly, motions for change of venue as to counts 1-4, 7-8 and 12-13 are denied.

B. Motions to Sever

Various defendants contest their joinder in this single indictment, but these claims uniformly lack substance. Rule 8(b), F.R.Cr.P. authorizes the joinder of two or more defendants in an indictment when they have "participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." The rule has been interpreted to allow joinder where the offenses are the product of a common criminal scheme or plan. 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). The fact that all the defendants are not charged in each count of the indictment is of no moment since Rule 8(b), F.R. Crim.P. specifically permits joinder in cases where individual defendants are charged in some but not all counts as long as the offenses have a common nexus. Id.; 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) ("joinder of a conspiracy count and the substantive counts arising out of the conspiracy is proper since the charge of conspiracy provides a common link and demonstrates the existence of a common plan").

Here, as in United States v. Lane, ___ U.S. ___, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), "the indictment ... charges all the defendants with one overall count of conspiracy, making joinder under Rule 8 proper. ... Once the Rule 8 requirements were met by the allegations in the indictment, severance thereafter is controlled entirely" by Rule 14, F.R.Cr.P., "which requires a showing of prejudice." Id. at 731. Indeed, a defendant must demonstrate far more than that severance would create a better chance of acquittal, United States v. Bagaric, 706 F.2d 42, 69 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983), but even that much has not been shown.

A party seeking to have his case severed and tried separately pursuant to Rule 14, F.R.Cr.P. must sustain an extremely heavy burden of persuasion. United States v. Cunningham, 723 F.2d 217, 230 (2d Cir.1983), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984). Joint trials, in avoiding the necessity of separate proceedings, conserve judicial, juror and witness resources, United States v. Lyles, 593 F.2d 182, 191 (2d Cir.), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979), and to warrant severance where joinder is appropriate, a defendant must show such prejudice as to constitute a miscarriage of justice. United States v. Wilkinson, 754 F.2d 1427, 1435 (2d Cir.), cert. denied, 472 U.S. 1019, 105 S.Ct. 3482, 87 L.Ed.2d 617 (1985); accord United States v. Cunningham, 723 F.2d 217, 230 (2d Cir.1983), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984). That the government's case may be weaker against the moving defendants than against other defendants or that there may be an adverse spillover effect as to less culpable defendants, as is urged, e.g., by defendants Catherine and Oreste Abbamonte, Sr., Michael Paradiso, Richard Romano and Patricia Toron, does not per se warrant severance. United States v. Panza, 750 F.2d 1141, 1149 (2d Cir.1984). There is always the reasonable expectation that the jury will follow the court's instructions to weigh the evidence as to each defendant separately and independently. United States v. Campanale, 518 F.2d 352, 359 (9th Cir.1975) (per curiam), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976). Indeed, the instant indictment lends support to that expectation since the charges against each defendant are definitive enough that there is little reason to fear that a jury will be confused as to what evidence to consider in determining the guilt or innocence of each defendant. Moreover, it is not unusual in multi-defendant joint trials for the jury to find individual defendants guilty on some charges and not guilty on others or even to fail to agree on some counts while disposing of others. At any rate, severance would not solve the spillover effect and similar problems since the government would be able in separate trials to introduce the same evidence it is prepared to adduce at a joint trial.

The senior Abbamontes, the mother and father of Oreste Abbamonte, Jr., one of the principal defendants, seek a severance on the grounds that their son would provide exculpatory testimony for them at a severed trial. In United States v. Finkelstein, 526 F.2d 517, 523-525 (2d Cir.1975), cert. denied, 425 U.S. 960, 96 S.Ct. 1742, 48 L.Ed.2d 205 (1976), the Court of Appeals set forth the following factors for a trial judge to consider when faced with motions for severance based on claims of the exculpatory testimony of a...