US v. Bonanno Organized Crime Family
| Decision Date | 30 September 1988 |
| Docket Number | No. CV-87-2974.,CV-87-2974. |
| Citation | 695 F. Supp. 1426 |
| Parties | UNITED STATES of America, Plaintiff, v. The BONANNO ORGANIZED CRIME FAMILY OF LA COSA NOSTRA, Joseph Bonanno, Philip Rastelli, Joseph Massino, Anthony Spero, Louis Attanasio, Alfred Embarrato, Gabriel Infanti, Frank Lino, Nicholas Marangello, Anthony Riella, Michael Sabella, Anthony Graziano, Benjamin Ruggiero, Ignatius Bracco, James Vincent Bracco, William Rodini, Vito Gentile, International Brotherhood of Teamsters, Local 814 Van Drivers, Packers and Furniture Handlers, Warehousemen's and Appliance Home Delivery Union, Executive Board of International Brotherhood of Teamsters Local 814 Van Drivers, Packers and Furniture Handlers, Warehousemen's and Appliance Home Delivery Union, International Brotherhood of Teamsters Local 814 Van Drivers, Packers, and Furniture Handlers, Warehousemen's and Appliance Home Delivery Union Welfare Fund, International Brotherhood of Teamsters Local 814 Van Drivers, Packers and Furniture Handlers, Warehousemen's and Appliance Home Delivery Union Pension Fund, International Brotherhood of Teamsters Local 814 Van Drivers, Packers, and Furniture Handlers, Warehousemen's and Appliance Home Delivery Union Annuity Fund, Defendants. UNITED STATES of America, Plaintiff, v. CERTAIN BUILDINGS AND PROPERTIES LOCATED AT 58-23 58TH ROAD, MASPETH, NEW YORK, 405 Myrtle Avenue, Brooklyn, New York, 78-80 East 4th Street, New York, New York, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Peter R. Ginsberg, Asst. U.S. Atty., Judd Burstein, P.C., New York City, for Anthony Spero.
Joseph R. Benfante, New York City, for Gabriel Infanti.
Gerald B. Lefcourt, P.C., New York City, for Anthony Riela.
Gustave H. Newman, P.C., New York City, for Michael Sabella.
Benjamin Ruggiero, Memphis, Tenn., pro se.
Robert M. Simels, New York City, for Nicholas Marangello and William Rodini.
Richard Ware Levitt, New York City, for Joseph Bonanno.
Michael J. Coyle, Stanley A. Teilter, P.C., New York City, for Philip Rastelli.
Ronald P. Fischetti, Fischetti & Pomerantz, New York City, for Joseph Massino.
Wallace Musoff, New York City, for Louis Attanasio.
John J. Pollok, Todtman, Hoffman, Epstein, Young, Goldstein, Tunick & Pollok, P.C., New York City, for Alfred Embarrato, Frank Lino and Anthony Graziano.
Joel A. Pisano, Schwartz, Pisano, Simon & Edelstein, Livingston, N.J., for Belleville Motor Lodge, Inc.
Sharon A. Flood, New York City, for James Vincent Bracco.
Ronald M. Kleinberg, Richard A. Finkel, Meissner, Kleinberg & Finkel, New York City, for claimants, Joseph and Carmela Castelli.
Defendants Sabella, Riela, and Bonanno have moved to dismiss the Second Amended Verified Complaint ("the complaint"), and Massino has moved to dismiss some portions of the complaint and to strike others. By Memorandum and Order of this court dated March 24, 1988 ("March 24 order"), the earlier complaints in this action were dismissed entirely against Sabella, Riela, and Bonanno and in part against Massino. These defendants challenge the complaint on various grounds including failure to plead two acts of racketeering for a particular defendant, failure to plead a pattern of racketeering, statute of limitations, improper venue, violation of the prohibition against ex post facto laws, violation of Riela's and Bonanno's due process rights, failure to plead the False Claims Act claims with particularity, res judicata, failure to plead aiding and abetting adequately, and failure sufficiently to allege a claim against Massino under 18 U.S.C. § 1962(b). For the reasons set forth below, the motions are granted in part and denied in part.
Defendant Joseph Bonanno moves to dismiss on several grounds including the insufficient allegation of predicate acts and pattern of racketeering, failure to plead a relationship between the predicate acts and the Bonanno Family enterprise, improper venue, statute of limitations, unavailability of the relief requested, and violation of Bonanno's due process rights. It is only necessary to address one of Bonanno's arguments since it disposes of the complaint as against Bonanno.
Bonanno argues that the complaint must be dismissed as against him because the only two predicate acts which the government alleges that Bonanno committed were violations of a statute which did not exist at the time the acts complained of occurred. Bonanno's argument is well taken. The only predicate acts alleged against Bonanno are contained in paragraphs 54 and 55 of the complaint which allege that, in February 1979, Bonanno used intimidation or misleading conduct to influence the testimony of two people in grand jury proceedings in California in violation of 18 U.S.C. § 1512, thus committing an act of racketeering under 18 U.S.C. § 1961(1)(B).1
Section 1512 of Title 18, which the complaint accuses Bonanno of violating, was not enacted until 1982, and the acts which the complaint alleges Bonanno committed occurred in 1979. The acts therefore did not constitute acts which were "indictable" under 18 U.S.C. § 1512 as required by the definition of "racketeering activity" in 18 U.S.C. § 1961(1)(B).
The government argues that § 1961(1) was intended to refer to "generic types of activities proscribed, and whether a particular statute was in effect at the time certain conduct defined as a predicate act occurred is irrelevant." (Government Brief at 26-27) The government, however, overlooks the fact that, although § 1961(1)(A) lists generic categories of state law offenses (not including obstruction of justice or tampering with grand jury witnesses), § 1961(1)(B) does not list generic categories of federal offenses but instead lists specific statutes, including § 1512, the one on which the government relies. The offense alleged must be indictable under that statute. Courts have construed this requirement strictly. For example, conspiracy to violate one of the listed statutes does not constitute an act of racketeering unless it is actually indictable under the statute as opposed to under 18 U.S.C. § 371, the general conspiracy statute. See United States v. Ruggiero, 726 F.2d 913, 920 (2d Cir.), cert. denied sub nom. Rabito v. United States, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 60 (1984).
The cases cited by the government do not support its position. United States v. Forsythe, 560 F.2d 1127 (3d Cir.1977), and the other cases cited by the government in its brief at 27-29 all involve the state law offense category of § 1961(1)(A), and most of the cases involve the issue of whether the conduct alleged must currently be chargeable under state law (for example, if the defendant has already been acquitted or the statute of limitations has run) and not whether it was chargeable at the time it occurred.
The Second Amended Verified Complaint thus fails to allege at least two RICO acts of racketeering against Bonanno and will be dismissed as against him. In view of the fact that this is the government's third complaint, the second complaint naming Mr. Bonanno, and Mr. Bonanno's second successful motion to dismiss, the complaint as against Bonanno is dismissed with prejudice.
By letter dated July 12, 1988, counsel for Michael Sabella informed the court that Sabella had died on July 11, 1988. The government has yet to move to substitute Sabella's estate under Rule 25, Fed.R. Civ.P. The court will defer decision on Sabella's motion to dismiss pending expiration of the ninety day period under Rule 25 and dismissal of the action against Sabella or the filing of a motion to substitute by the government.
The predicate acts alleged against defendant Riela are contained in paragraphs 23, 46, 47, and 52 of the complaint. Riela alleges that the government has inadequately pleaded these predicate acts and failed to plead a pattern of racketeering.
Paragraph 23 alleges that Riela has participated in the conduct and ownership of a gambling business at the 4th St. Cafe, 78-80-82 East 4th Street, New York, New York. Riela was not mentioned in connection with the 4th St. Cafe in the original complaints and maintains his inclusion now in paragraph 23 is "specious." Riela's accusation, however, cannot provide a basis for a motion to dismiss, and he has not moved for summary judgment. The court will not assume that the government has no basis for its allegations in this verified complaint; the allegations of paragraph 23 will therefore not be stricken.
Paragraphs 46 and 47 concern the extortion scheme in United States v. Balistrieri, 778 F.2d 1226 (7th Cir.1985), cert. denied, 477 U.S. 908, 106 S.Ct. 3284, 91 L.Ed. 2d 573 (1986), and the alleged extortion of Government Agent Gail Cobb at Casa Bella Restaurant in New York. Although Riela argues that the nature of his role as an aider and abettor is not sufficiently pleaded, paragraph 46 alleges Riela aided and abetted the extortion scheme by arranging meetings between organized crime families for which he was paid. Paragraph 47 alleges that Riela acted as both a principal and as an aider and abettor.
Paragraph 52 alleges that Riela violated the Travel Act, 18 U.S.C. § 1952, in travelling from New Jersey to New York at least three times in aid of the extortionate activities alleged in paragraphs 46 and 47.
Paragraph 47 alone sufficiently alleges two or more predicate acts and a pattern of racketeering. Paragraph 47 alleges that Sabella, Ruggiero, and Riela extorted, attempted to extort, and aided and abetted the extortion of Agent Gail Cobb on twenty different occasions in 1978 and 1979. Riela maintains that the acts alleged in paragraphs 46 and 47 in reality constitute one offense involving the same defendants, same statute, same time period, and same victim. Riela contends that the payments alleged in paragraph 47 were merely ministerial acts in furtherance of the extortion scheme alleged in...
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