US v. Giovanelli

• Decision Date: 01 May 1989
• Docket Number: No. S 88 Cr. 954 (CBM).,S 88 Cr. 954 (CBM).
• Citation: 747 F. Supp. 875
• Parties: UNITED STATES of America v. Federico GIOVANELLI, a/k/a "Fritzy," Steven Maltese and Carmine Gualtiere, a/k/a "Buddy," Defendants.
• Court: U.S. District Court — Southern District of New York

747 F. Supp. 875

UNITED STATES of America v. Federico GIOVANELLI, a/k/a "Fritzy," Steven Maltese and Carmine Gualtiere, a/k/a "Buddy," Defendants.

No. S 88 Cr. 954 (CBM).

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

April 26, 1989.

Supplemental Opinion May 1, 1989.

COPYRIGHT MATERIAL OMITTED

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Benito Romano, U.S. Atty., S.D.N.Y. by Adam S. Hoffinger, J. Gilmore Childers, Asst. U.S. Attys., New York City, for U.S.

Lawrence Hochheiser, Hochheiser & Aronson by Vivian Shevitz, Georgia J. Hinde, New York City, for defendant Federico Giovanelli.

Ira S. Cooper, Zerin & Cooper by Neil Rothfeld, New York City, for defendant Steven Maltese.

Robert M. Baum, The Legal Aid Soc., Federal Defenders Services Unit by Roland Thau, Robert E. Precht, New York City, for defendant Carmine Gualtiere.

OPINION

MOTLEY, District Judge.

In an indictment filed on December 20, 1988, and a superseding indictment filed on February 27, 1989, the Government charges defendants Federico Giovanelli, Steven Maltese and Carmine Gualtiere with conspiring to violate (Count I) and substantive violation (Count II) of the Racketeer Influenced and Corrupt Organizations statute ("RICO") through a pattern of racketeering activity and collection of unlawful debt. 18 U.S.C. §§ 1962(c), (d). The RICO counts of the superseding indictment allege six predicate acts of racketeering including the murder of police Detective Anthony Venditti, the attempted murder of his partner, Detective Kathleen Burke, the murder of Charles Bentivegna, a loansharking conspiracy, conduct of an illegal gambling enterprise and travel in aid of the racketeering enterprise. In charging that defendants also participated in the conduct of the enterprise's affairs through the collection of unlawful debts, the superseding indictment enumerates three such collections.¹

In addition to the RICO and RICO conspiracy counts, the superseding indictment charges defendants with the conduct of an illegal gambling business in violation of 18 U.S.C. § 1955 (Count III), conspiracy to make extortionate extensions of credit in violation of 18 U.S.C. §§ 891 and 892 (Count IV), transmission of wagering information in violation of 18 U.S.C. § 1084 (Count V), travel in aid of the racketeering enterprise in violation of 18 U.S.C. § 1952 (Count VI) and conspiracy to defraud the United States in violation of 18 U.S.C. § 371 (Count VII). Not all defendants are named in each substantive count and racketeering act.

This opinion sets out the court's decisions on the various pretrial motions made by defendants Giovanelli, Maltese and Gualtiere. Each motion will be addressed in turn and the defendant bringing that particular motion will be indicated. The court notes that each defendant has joined in the motions of the others to the extent applicable to him.

Discussion

Motion to Dismiss Indictment for Alleging an Improper Time Frame as to the RICO Conspiracy Charge (Giovanelli)

Count I of the superseding indictment alleges that the defendants conspired to violate 18 U.S.C. § 1962(c) ("RICO") "from in or about January, 1970 up to and including the date of the filing of this Indictment." Since the RICO law did not become effective until later in that year — on October 15, 1970 — Giovanelli moves to dismiss Count I as charging a conspiracy to violate a law which did not exist at the start of the alleged conspiracy.

Language in an indictment charging that crimes were committed "on or about" a certain date is taken only as an approximation and is not to be strictly construed. See United States v. Nersesian, 824 F.2d 1294, 1323 (2d Cir.1987), cert. denied, 484 U.S. 957, 108 S.Ct. 355, 98 L.Ed.2d 380 (1987). Since the precise starting date of the alleged RICO conspiracy "is not an essential element of the offense charged," Id., defendant's motion to dismiss Count I of the indictment is denied.

Motion to Dismiss Count VI as Outside the Statute of Limitations (Giovanelli)

Giovanelli moves to dismiss Count VI of the superseding indictment — alleging travel in aid of the racketeering enterprise in violation of 18 U.S.C. § 1952 (the "Travel Act") — because it violates the statute of limitations for that offense. Defendant points out that Count VI charges misconduct from May, 1982, through January 21, 1986 (the day of the Burke/Venditti shootings), while the parallel Travel Act predicate—racketeering act five — charges misconduct only from May, 1982, through November, 1982. While defendant concedes that the statue of limitations is no bar to proving a RICO predicate, he suggests that the Government improperly expanded the time period in Count VI to ensure that the misconduct alleged occurred within the applicable statute of limitations for a substantive violation of the Travel Act. See 18 U.S.C. § 3282 (Travel Act has a five year statute of limitations).

Since the indictment was handed down on December 20, 1988, any substantive violation of the Travel Act must have occurred within the previous five years in order to satisfy the statute of limitations for that offense. Id. Thus, while defendant's motion may have some merit, it is premature. To avoid dismissal of Count VI at the close of its direct case, the Government must elicit sufficient evidence to support a conclusion that the alleged substantive violation of the Travel Act conforms to the time frame set out in the indictment. If it fails to do so, or only proves misconduct within the time frame alleged in the parallel racketeering act, Count VI will be dismissed. Defendant's motion is therefore denied without prejudice and with leave to renew at the close of the Government's case.

Motion to Conduct a Pretrial Hearing to Control the Use of Alleged Co-Conspirator Statements (Giovanelli)

Defendant moves for a hearing to establish, in limine, the existence of a conspiracy and its membership before alleged co-conspirator statements can be admitted at trial against all defendants pursuant to Fed.R.Evid. 801(d)(2)(E).

Commonly referred to as a "James hearing" after a Fifth Circuit case establishing the practice, United States v. James, 576 F.2d 1121, 1127-32 (5th Cir.1978), modified en banc, 590 F.2d 575 (5th Cir.1979), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), this type of pretrial hearing is neither required nor generally convened in this Circuit. Instead, the functional equivalent of a James hearing is provided by a court's determination — at the close of the Government's case — that a preponderance of the evidence demonstrates "that there was a conspiracy, that both the declarant and the party against whom the statements are offered were members of the conspiracy, and that the statements were made in furtherance of the conspiracy." United States v. Daly, 842 F.2d 1380, 1386 (2d Cir.1988), cert. denied, 488 U.S. 821, 109 S.Ct. 66, 102 L.Ed.2d 43 (1988); see United States v. Geaney, 417 F.2d 1116 (2d Cir.1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970); see also United States v. Margiotta, 688 F.2d 108, 136-7 (2d Cir.1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983); United States v. Mastropieri, 685 F.2d 776, 786-90 (2d Cir.1982), cert. denied, 459 U.S. 945, 103 S.Ct. 260, 74 L.Ed.2d 203 (1982). Moreover, "in making these preliminary factual determinations, the court may take into account the proffered out-of-court statements themselves if those statements are sufficiently reliable in light of independent corroborating evidence." Daly, supra (citing Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 2781-82, 97 L.Ed.2d 144 (1987). Called a "Geaney" ruling, the procedure described above for admitting co-conspirator statements at trial is the norm in this Circuit and we see no reason to depart from it in the instant case.

Consequently, as is the practice in this Circuit, defendants' hearsay statements will be admitted in the Government's case "subject to connection" and without the need for a pretrial hearing on the sufficiency of the evidence concerning each defendant's participation in the alleged conspiracy. United States v. Stanchich, 550 F.2d 1294, 1298 (2d Cir.1977); see also United States v. Mastropieri, 685 F.2d at 788; United States v. Geaney, 417 F.2d at 1120. This court will, of course, make the required Geaney ruling at the close of the Government's case. The motion for a pretrial hearing to control the use of alleged co-conspirator statements is denied.

Motion to Dismiss Multiplicitous Charges (Giovanelli/Gualtiere)

Defendants argue that effectively multiplicitous charges in the superseding indictment should be dismissed. Giovanelli claims that most of the charges in the superseding indictment are all variations on a theme of gambling, while Gualtiere objects to the fragmentation of the gambling activity into multiple acts of collecting unlawful debt. Defendants' argue that the Government has impermissibly split unitary criminal conduct into multiple acts in a contrived effort to use the RICO statute against them.

The long standing test for multiplicity of charges in an indictment was set down by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Under Blockburger, two charges are not multiplicitous if each requires "proof of an additional fact which the other does not." Id. Using this test, as Giovanelli himself admits, see Memorandum of Law of Defendant Giovanelli in Support of Omnibus Motion for Pretrial Relief at 79-80 ("Giovanelli Memorandum"), it is clear that none of the counts in the superseding indictment are multiplicitous.

Defendants' reliance on the recent Second Circuit decision in United States v. Indelicato, 865 F.2d 1370 (2d Cir.1989) is misplaced. As the en banc court in Indelicato wrote:

... though we would disapprove of any attempt by the Government or a private plaintiff to go beyond Congress's intent and fragment an act that is plainly unitary into multiple

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