US v. Gambino

Decision Date25 January 1990
Docket NumberNo. 6th "S" Cr. 919 (PKL).,6th "S" Cr. 919 (PKL).
Citation729 F. Supp. 954
PartiesUNITED STATES of America v. Giuseppe GAMBINO, a/k/a "Joe," Rosario Naimo, a/k/a "Saro," a/k/a "Don Saro," a/k/a "Sarino," a/k/a "Sal," a/k/a "Casimiro DiLorenzo," a/k/a "Barry Beiner," Lorenzo Mannino, a/k/a "Lore," Francesco Inzerillo, a/k/a "Frank," a/k/a "Ciccio," Matteo Romano, Emanuele Adamita, a/k/a "Manuele," a/k/a "Mario DiLorenzo," a/k/a "Stephan Milazzo," Joseph LaRosa, a/k/a "Little Joe," a/k/a "Cardillo," Salvatore LoBuglio, a/k/a "Toto," a/k/a "the engineer," Giuseppe D'Amico, a/k/a "Pino," a/k/a "Joe," Salvatore D'Amico, Francesco Cipriano, a/k/a "Frank," a/k/a "Ciccio," a/k/a "Francino," Salvatore Candela, a/k/a "Toto," Paolo D'Amico, Carmelo Guarnera, and John Doe, a/k/a "Sasha," Defendants.
CourtU.S. District Court — Southern District of New York

Otto G. Obermaier, U.S. Atty., S.D. New York, New York City (Frances M. Fragos, Andrew C. McCarthy, of counsel), for U.S.

Judd Burstein, Edward Panzer, New York City, for defendant Gambino.

Charles Carnesi, Salvatore Russo, Brooklyn, N.Y., for defendant Mannino.

Ira J. Friedman, Brooklyn, N.Y., for defendant Inzerillo.

Gerald L. Shargel, Gail E. Laser, New York City, for defendant Romano.

Martin G. Fogelson, New York City, for defendant Adamita.

Golub & Dunn, New York City, Mitchell A. Golub, for defendant LaRosa.

Edward M. Kratt, New York City, for defendant LoBuglio.

Martin Geduldig, Hicksville, N.Y., for defendant Giuseppe D'Amico.

Thomas D. White, New York City, for defendant Cipriano.

Culleton & Marinaccio, Bronx, N.Y., James Culleton, for defendant Candela.

Brown, Berne & Serra, Bronx, N.Y., Wesley M. Serra, for defendant Guarnera.

ORDER & OPINION

LEISURE, District Judge:

On December 14, 1989, the Grand Jury returned the sixth superseding indictment (hereinafter, the "indictment," the "pending indictment," or the "1989 indictment") against the defendants in this case.1 The evidence presented to the Grand Jury was the result of a long-term investigation by the federal government into an international organization known as "the mafia" or "la cosa nostra." According to the government, this organization, or system of organizations, is responsible for the importation and distribution of large quantities of narcotics in violation of federal law. To supplement its income from the narcotics trade, the organization also allegedly participates in gambling, loansharking, and extortion. The government charges that murder and other acts of violence are carried out by members of the organization to facilitate its operations.

Certain of the defendants have moved the Court to dismiss the charges against them under the double jeopardy clause of the fifth amendment to the U.S. Constitution, to block the government from introducing specific evidence to the jury under the principle of collateral estoppel, to sever the defendants into separate trials, to dismiss certain counts of the indictment as being duplicitous or multiplicitous, and to suppress physical evidence seized by government agents from the homes of the defendants.2 Rather than burden the record with an overview of the alleged facts uncovered by the government investigation, the Court will discuss specific facts in regard to the motions made by each particular defendant. First, however, a brief summary of the charges in the pending indictment is in order.

The first count of the sixth superseding indictment charges that all defendants participated in a fourteen-year conspiracy to import heroin and cocaine into the United States in violation of Sections 802, 812, 951, 952, 960(a)(1), 960(b)(1)(A) and (B), and 963 of Title 21, and Section 2 of Title 18, of the U.S. Code. This conspiracy existed and functioned from January 1, 1975, to the date of the filing of the indictment. The Grand Jury charges that responsibilities in the importation conspiracy—such as investment, international smuggling, domestic reception, storage, and primary and secondary wholesale distribution of the narcotics — were divided between defendants. Count one lists 172 alleged overt acts which refer to specific narcotics transactions, meetings and communications between defendants and other co-conspirators.

Count two of the indictment incorporates the overt acts and alleged methods employed by the conspiracy as set out in count one, and charges all defendants with a conspiracy to distribute or to possess with intent to distribute heroin and cocaine in violation of Sections 802, 812, 841(a)(1) and (b)(1)(A), and 846 of Title 21, and Section 2 of Title 18, of the U.S.Code.

Count three of the pending indictment charges defendant Giuseppe Gambino with the organization and supervision of a continuing criminal enterprise in violation of 21 U.S.C. § 848(a) and (b). The indictment alleges numerous substantive violations of the narcotics laws and incorporates the violations set out in counts one and two. Defendant Gambino allegedly supervised this continuing criminal enterprise from January 1, 1975 to the date of the indictment. In count four of the indictment, defendant Rosario Naimo is charged under Section 848 in a similar fashion. Defendant Naimo is a fugitive at this time.

Count five of the indictment charges defendants Gambino, Naimo, LoBuglio, and Salvatore D'Amico with a single substantive distribution of over 100 grams of heroin on March 15, 1988. Count six charges defendants Gambino and Mannino with obstruction of justice in violation of Sections 1512 and 2 of Title 18. During the period from December 1, 1988 up through the filing of the indictment, defendants Gambino and Mannino allegedly took action to intimidate and interfere with the testimony of a government informant, Giovanni Zarbano.

Count seven of the indictment charges all defendants with participating in a criminal enterprise in violation of the RICO statute, 18 U.S.C. §§ 1961-62. This enterprise allegedly existed from January 1, 1970 up to the date of the indictment. The Grand Jury charges that defendants engaged in a pattern of racketeering activity consisting of forty-two predicate acts. These acts describe alleged narcotics transactions, bribery of public officials, violations of the Travel Act, extortion, gambling, murder, and obstruction of justice.

This order and opinion is divided into three parts. First, the Court will consider the unique and complex motions of defendants Gambino, Romano, and Adamita based on the double jeopardy clause of the fifth amendment to the U.S. Constitution and the principle of collateral estoppel. Second, the Court will turn to the severance motions brought by certain of the defendants, and will discuss how the group of defendants should be divided up for trial purposes. Third, the Court will consider several motions brought by individual defendantsdefendant LoBuglio's motion to suppress physical evidence, and LoBuglio's and defendant LaRosa's motions to dismiss the first two counts of the indictment as being duplicitous and multiplicitous.

I. DOUBLE JEOPARDY AND COLLATERAL ESTOPPEL

The double jeopardy clause of the fifth amendment to the U.S. Constitution provides that "no person ... shall be subject for the same offence to be twice put in jeopardy of life or limb." Courts should grant a motion for double jeopardy and thus bar the subsequent prosecution when the offenses charged appear in fact and law the same. United States v. Nersesian, 824 F.2d 1294, 1319 (2d Cir.), cert. denied, 484 U.S. 958, 108 S.Ct. 357, 98 L.Ed.2d 382 (1987).

The Second Circuit has held that a court must examine the totality of the circumstances in ruling on a double jeopardy motion regarding successive conspiracy prosecutions. The following factors should be considered:

(1) the criminal offenses charged in successive indictments; (2) the overlap of participants; (3) the overlap of time; (4) similarity of operation; (5) the existence of common overt acts; (6) the geographic scope of the alleged conspiracies or location where overt acts occurred; (7) common objectives; and (8) the degree of interdependence between alleged distinct conspiracies.

United States v. Reiter, 848 F.2d 336, 340 (2d Cir.1988); United States v. Korfant, 771 F.2d 660, 662 (2d Cir.1985) (per curiam).3 The Second Circuit has applied similar factors in determining whether successive RICO prosecutions violate the double jeopardy clause. United States v. Russotti, 717 F.2d 27, 33 (2d Cir.), cert. denied sub nom. Manino v. United States, 465 U.S. 1022, 104 S.Ct. 1273, 79 L.Ed.2d 678 (1984).

The nature of the crime of conspiracy complicates the double jeopardy inquiry. Whether the object of the conspiracy is to commit one or many crimes, it is the unlawful agreement between co-conspirators that the federal statutes punish. Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942). A court must keep in mind that the same conspiracy may be established by different aggregations of proof. United States v. Mallah, 503 F.2d 971, 985 (2d Cir.1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975). While overt acts may be the most concrete clues in an indictment as to the nature of the underlying conspiracy, too much reliance on overt acts may confuse the proper aims of the judicial inquiry. See id. (citing Short v. United States, 91 F.2d 614, 624 (4th Cir.1937)). The government should not be permitted to divide overt acts stemming from the same conspiracy into different conspiracy prosecutions. See United States v. Papa, 533 F.2d 815, 820 (2d Cir.), cert. denied, 429 U.S. 961, 97 S.Ct. 387, 50 L.Ed.2d 329 (1976).

The moving defendant bears the burden of proof that a subsequent government prosecution violates the double jeopardy clause. However, the burden may switch to the government to prove distinct conspiracies if the defendant makes a sufficient showing of overlap.

Where the Government alleges that defendants conspired with others, and there is evidence that participants of
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  • US v. Gatto
    • United States
    • U.S. District Court — District of New Jersey
    • September 4, 1990
    ...and the public. Id. The United States District Court for the Southern District of New York applied these criteria in United States v. Gambino, 729 F.Supp. 954 (S.D.N.Y.1990). In Gambino, the district court severed the trial of fifteen defendants, ten of whom were before the court, into two ......
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    • United States
    • U.S. District Court — Eastern District of New York
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    ...is "particularly true" where — as in the case at bar — the crimes charged involve a common scheme or plan. United States v. Gambino, 729 F.Supp. 954, 970 (S.D.N.Y.) (citing Turoff, 853 F.2d at 1042-43), aff'd in part and rev'd in part on other grounds, 920 F.2d 1108 (2d Cir.1990); see also ......
  • US v. Gambino
    • United States
    • U.S. District Court — Southern District of New York
    • December 21, 1992
    ...tried at later dates and who can benefit from knowledge of the contents and weaknesses of a witness's testimony. United States v. Gambino, 729 F.Supp. 954, 970-71 (S.D.N.Y.1990) (footnote omitted), aff'd on other grounds, 968 F.2d 227 (2d Cir.1992). The filing of the ninth superseding indic......
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    • U.S. District Court — District of Colorado
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1 books & journal articles
  • Contemplating the successive prosecution phenomenon in the federal system.
    • United States
    • Journal of Criminal Law and Criminology Vol. 85 No. 3, January 1995
    • January 1, 1995
    ...prosecuted substantive offense then obtained conspiracy indictment alleging that offense as an overt act); United States v. Gambino, 729 F. Supp. 954, 959 (S.D.N.Y.), aff'd in part and rev'd in part, remanded, 920 F.2d 1108 (2d Cir. 1990), vacated, 112 S. Ct. 1657 (1992) (in light of United......

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