US v. Carrozza

• Decision Date: 11 January 1990
• Docket Number: No. SSSS89 Cr. 239 (GLG).,SSSS89 Cr. 239 (GLG).
• Citation: 728 F. Supp. 266
• Parties: UNITED STATES of America, v. Anthony CARROZZA, Dominick Fava, Rocco DiMatteo, and Jusuf Cekic, Defendants.
• Court: U.S. District Court — Southern District of New York

728 F. Supp. 266

UNITED STATES of America, v. Anthony CARROZZA, Dominick Fava, Rocco DiMatteo, and Jusuf Cekic, Defendants.

No. SSSS89 Cr. 239 (GLG).

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

January 11, 1990.

Otto G. Obermaier, U.S. Atty., S.D.N.Y. (Lisa M. Smith, of counsel), White Plains, N.Y., for U.S.

David Lenefsky (David Lenefsky, of counsel), New York City, for defendant Carrozza.

Edward S. Panzer (Edward S. Panzer, of counsel), New York City, Vincent W. Lanna (Vincent W. Lanna, of counsel), Yonkers, N.Y., for defendant DiMatteo.

Brian J. Stone (Brian J. Stone, of counsel), Chappaqua, N.Y., for defendant Fava.

Salvatore Canonico (Salvatore Canonico, of counsel), Brooklyn, N.Y., for defendant Cekic.

OPINION

GOETTEL, District Judge:

This action already possesses a well-worn procedural history. Suffice it to say that four defendants remain named in a single thirty-six count indictment, with various other previously named defendants having already pled or agreed to plead guilty. Presently before this court are motions to sever brought by each of the remaining defendants. Additionally, Anthony Carrozza has moved to dismiss certain counts of the indictment based on multiplicity.¹ At this juncture, we note that the government has consented to sever Jusuf Cekic from the action. Consequently, we will not address the merits of his application.²

I. FACTS

The government's primary allegations are rather straightforward. Principally, it claims that Carrozza was engaged in various gambling activities and that he, as well as the other defendants, was also involved in extortionate extensions and collections of credit. There is substantial disagreement and confusion, however, as to whether the defendants' activities were part of a common scheme or merely independent, albeit similar, actions.

The government alleges the existence of only one conspiracy involving each of the three defendants. It claims that Dominick Fava arranged for an extension of credit to Walter Sprague and Sprague's friends ("the Sprague group") at an interest rate of four percent per week. When defaults in payment occurred, Fava allegedly threatened Sprague. At a later meeting held with Sprague, Fava apparently brought Rocco DiMatteo along with him. DiMatteo, in turn, is claimed to have made additional threats to Sprague.

At the same time as these activities were occurring, Peter Sgrulletta, who has since pled guilty to various offenses, began his attempt to enforce outstanding loans made to Fava. When Fava failed to pay, Sgrulletta allegedly sought the advice of Carrozza, with whom he ran a numbers gambling business. Carrozza allegedly recommended that Sgrulletta use Anthony Carr, who also has pled guilty, to enforce the debt. Carr previously had been used by Carrozza to enforce debts resulting from Carrozza's sports gambling business, which, we note, the government claims is distinct from the numbers gambling business.³ Carrozza then introduced Sgrulletta to Carr and Carr subsequently met with Fava. Fava then began paying. Fava was apparently so impressed with Carr's collection methods that he requested permission from Sgrulletta to use Carr to collect his debt from Sprague. Sgrulletta and Carrozza discussed the matter and agreed that Carr could collect from Sprague.

Carr then began enforcing the debt against Sprague. Carr remained, however, under the control of Carrozza and Sgrulletta since they feared he might turn against them. In fact, Carr and Carrozza allegedly spoke about Sprague on thirty-seven separate occasions. Moreover, while Carr was actually collecting for Fava with respect to Sprague, at various times Fava was able to directly repay his debt to Sgrulletta by allowing Carr to collect from Sprague and turn the money over to Sgrulletta, thereby eliminating the middleman.

The government alleges that the foregoing facts permit the joinder of Carrozza, Fava, and DiMatteo in one indictment. Based on these facts, the three defendants are named in counts four and five of the indictment, one count for the substantive offense of extortion under 18 U.S.C. § 894 (1988), and one count for conspiracy under the same statute. These are the only counts of the indictment naming each of the defendants. The other thirty-four counts are joined based on the government's contention that they are part of a common scheme. Specifically, it is alleged that besides the Sprague conspiracy, the various defendants, either individually or, in certain instances, with Fava and DiMatteo acting concertedly, made usurious loans followed by illicit collection activities. The purported link between these acts is that each of the defendants always used Carr to collect on the debts.

Carrozza is not named in conjunction with either of the other defendants in any counts besides counts four and five noted above. Of the nineteen additional counts against him, one count is for sports gambling and one for numbers gambling, both under 18 U.S.C. § 1955 (1988). The crimes are linked to the extortion crimes because many of the debts Carrozza was using Carr to collect on resulted from these enterprises. The remaining counts against Carrozza relate to extensions and collections of credit, along with conspiracies underlying these activities. Of the twenty-one counts naming Carrozza, he is sole named defendant in nineteen of them.

Fava, in turn, is named in fourteen counts of the indictment. All the counts against him relate to either extensions or collections of credit, in addition to related conspiracies. He, however, in addition to being named with Carrozza and DiMatteo in counts four and five, is named with DiMatteo in five additional counts. Therefore, of the fourteen counts in which Fava is named, he is named with Carrozza and DiMatteo together in two counts and with DiMatteo alone in five counts. Moreover, we note that two of the counts in which he is named independently concern further loans to the Sprague group.

Finally, DiMatteo is named in ten counts of the indictment. Each of the counts against him also alleges either illegal extensions or collections of credit, along with related conspiracies. Of these ten counts, DiMatteo is named with Carrozza and Fava in the aforementioned counts four and five, and with Fava alone in five of the remaining eight counts. Therefore, he is independently named in three counts. One of these independent allegations, however, relates to the illegal extension of credit to a party who is later subjected to the illegal collection efforts of DiMatteo and Fava acting concertedly.

With these facts before us, we now turn to the merits of the defendants' motions. We will first discuss the severance issues and then turn to the question of multiplicity raised by Carrozza.

II. DISCUSSION

A. Severance

The parties are joined under rule 8(b) of the Federal Rules of Criminal Procedure, which states:

Two or more defendants may be charged in the same indictment or information 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.

Fed.R.Crim.P. 8(b). As each party recognizes, the crucial question in applying this rule is the meaning of "same series of acts or transactions constituting an offense or offenses." This clause has been interpreted to permit joinder of defendants where the crimes charged arise from a common plan or scheme. United States v. Ricco, 549 F.2d 264, 271 (2d Cir.1977) (quoting 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)), cert. denied, 431 U.S. 905, 97 S.Ct. 1697, 52 L.Ed.2d 389 (1977); see also United States v. McLain, 823 F.2d 1457, 1467 (11th Cir. 1987) (need "common thread"). The government proffers two arguments with respect to this clause. First, it contends that all of the defendants conspired with respect to the Sprague group as noted by counts four and five of the indictment. Moreover, it argues that the persistent use of Carr by each defendant links them in a common scheme.

1. Carrozza

With respect to defendant Carrozza, we disagree with the government's contention and hereby order that he be severed entirely from this indictment.

Generally, a conspiracy charge will facilitate the establishment of the necessary common scheme or plan. 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). Thus, the defendants probably could be joined in one indictment based on counts four and five alone. However, when additional counts that are unrelated to the general conspiracy are alleged, the government must show they are part of a common plan to properly join them. The government attempts to establish this link by implicitly suggesting that a "wheel conspiracy" exists, with Carr at the hub and the various defendants connected to him by the wheel's spokes. Since the defendants were joined in one conspiracy and since they each used Carr in their individual activities, it is suggested that, a fortiori, a common scheme exists.

The problem with the government's argument is that while Carr is located at the center of the wheel and is joined to each of the defendants, there is virtually no outer rim connecting Carrozza to the other defendants. In United States v. Turoff, 853 F.2d 1037 (2d Cir.1988), the court discussed rule 8 generally, reasoning that while rule 8(a) permits the joinder of unrelated offenses against a single defendant if they are of a similar character, rule 8(b), which deals with the joining of defendants and is at issue in the case at bar, permits no such joinder. Id. at 1043. Rule 8(b) requires a common scheme or plan and the mere existence of similarities between some of the actors or some of the crimes committed will not...