The opinion of the court was delivered by: BROTMAN
Presently before the court are a voluminous set of pretrial motions. Oral argument was heard on the Brady motion of defendants Levy and Fisher on June 12, 1987, and the remainder of the motions were argued on July 10, 1987. This case is based on a 114-count indictment naming 21 defendants. Ten defendants are named in counts alleging violations of the Racketeering Influenced Corrupt Organization Act ("RICO"), 18 U.S.C. § 1961, et seq. Count 1 alleges a § 1962(c) violation based on a "pattern of racketeering activity." Count 2 alleges a § 1962(c) violation based on "collection of unlawful debt." These two counts are referred to throughout the opinion as substantive RICO counts. Count 3 alleges a § 1962(d) violation based on a RICO conspiracy. This count is referred to as the RICO conspiracy count. The remaining counts fall into the following categories of criminal activity: narcotics, usury and extortion, mail ("bust-out") fraud, wire ("Western Union") fraud, copyright (video "bootlegging") fraud, insurance fraud, bankruptcy fraud, gambling, and firearms.
The pretrial motions are grouped into categories and discussed in parts II-V of this opinion: Part II, motions to dismiss, to strike, and to force the government to elect between charged offenses and counts; Part III, motions to sever; Part IV, motions for pretrial hearings and discovery; and Part V, motions to suppress. The order follows the opinion.
II. MOTIONS TO DISMISS, TO STRIKE AND TO FORCE THE GOVERNMENT TO ELECT BETWEEN CHARGED OFFENSES AND COUNTS
A. Defendants' Joint Motion to Dismiss Counts 1 and 3; or in the Alternative to Dismiss Acts 1, 17, 18, and Count 1, para. 5 Because Multiple Conspiracies are Plead as Predicate Acts
Defendants move to dismiss counts 1 and 3 because they include conspiratorial acts as predicate offenses. This is allowed by the plain language of the statute. 18 U.S.C. § 1961(1). The government cites second circuit law endorsing this practice. See United States v. Ruggiero, 726 F.2d 913, 923 (2d Cir.), cert. denied, 469 U.S. 831, 105 S. Ct. 118, 83 L. Ed. 2d 60 (1984); United States v. Santoro, 647 F. Supp. 153, 177-78 (E.D.N.Y. 1986). It appears that the Third Circuit Court of Appeals has not directly faced the question. The defense asserts that third circuit law, under Gomberg, requires that such pleading not be allowed. See United States v. Gomberg, 715 F.2d 843 (3d Cir. 1983). However, Gomberg is not squarely on point. It addresses a duplicity question and holds that a single conspiracy count can allege multiple crimes. 715 F.2d at 846. The alleged RICO conspiracy (count 3) has multiple objects contained in the pattern of racketeering and the collection of unlawful debt. At trial the government will have to prove beyond a reasonable doubt that there existed a unified agreement to participate in the affairs of the "Vastola enterprise" through a pattern of racketeering or through the collection of unlawful debt. See United States v. Boffa, 513 F. Supp. 444, 475 (D.Del. 1980). The multiple conspiracy doctrine requires that all RICO enterprise defendants be shown to have a nexus "which signals the existence of a truly unified agreement." Id. at 474; see also United States v. Smith, 789 F.2d 196, 200 (3rd. Cir. 1986), cert. denied, 479 U.S. 1017, 107 S. Ct. 668, 93 L. Ed. 2d 720 (1986)(In commenting on a mail fraud conspiracy indictment, the court stated, "a finding of a master conspiracy with sub-schemes does not constitute a finding of multiple, unrelated conspiracies and, therefore, would not create an impermissible variance."). One district court judge in New Jersey has explicitly rejected the second circuit approach. See United States v. Local 560, Int'l Brotherhood of Teamsters, 581 F. Supp. 279, 332 (D.N.J. 1984)("I conclude that proof of a state of mind apart from that required for the commission of the predicate offenses must be demonstrated for each alleged conspirator."). This court adopts the reasoning of Teamsters. If the evidence at trial shows unrelated multiple conspiracies, defendants will be entitled to acquittal on the RICO conspiracy charges. Boffa, 513 F. Supp. at 475 ("If the evidence offered at trial presents a variance in proof demonstrating multiple conspiracies, which affects the substantial rights of the defendants, they will be entitled to acquittal on Count I [RICO conspiracy count]."). Therefore, defendants' motion is denied without prejudice to renewal at the close of the government's case.
B. Defendants' Joint Motion to Compel the Government to Elect Between the Two Substantive RICO Counts (1 and 2)
"'Multiplicity' is the charging of a single offense in several counts." 1 C. Wright, Federal Practice and Procedure Criminal 2d § 142 at 469. Count 1 alleges among other predicate acts, certain extortionate acts under 18 U.S.C. § 892 (extortionate extension of credit and related conspiracy), and § 894 (extortionate collection of debt and related conspiracy). Count 2 alleges collection of unlawful debt. These counts do not charge the same criminal conduct. Extortion is defined in 18 U.S.C. § 1951(b)(2) as "the obtaining of property from another, with his consent, induced by the wrongful use of actual or threatened force, violence or fear . . . ." Unlawful debt is defined in pertinent part under RICO as "a debt . . . which is unenforceable under state or federal law in whole or in part as to principal or interest because of the laws relating to usury . . . ." 18 U.S.C. § 1961(6). The count 2 charge does not require proof of extortionate actions. In order to determine if these counts charge separate criminal conduct, one must inquire as to "whether proof of one offense charged requires an additional fact that proof of the other offense does not necessitate." United States v. Carter, 576 F.2d 1061, 1064 (3d Cir. 1978); see also Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932). In the RICO context, a number of circuits have adopted a five-point test to determine if "pattern of racketeering" counts are multiplicious. United States v. Ruggiero, 754 F.2d 927, 932 (11th Cir.), cert. denied, 471 U.S. 1127, 86 L. Ed. 2d 277, 105 S. Ct. 2661 (1985)(Counts are multiplicious if they involve: (1) same time period, (2) same place, (3) same persons, (4) same statutes, and (5) same nature and scope of activities.); see also United States v. Russotti, 717 F.2d 27, 33 (2d Cir. 1983), cert. denied, 465 U.S. 1022, 104 S. Ct. 1273, 79 L. Ed. 2d 678 (1984); United States v. Dean, 647 F.2d 779 (8th Cir.), modified on other grounds, 667 F.2d 729 (8th Cir. 1982), cert. denied, 456 U.S. 1006, 102 S. Ct. 2296, 73 L. Ed. 2d 1300 (1982). It is clear that the nature of extortion activities requires a showing of additional proof to the showing required for unlawful debt collection activities.
Defendants argue in their reply brief that the "same evidence" test is not determinative and instead, point to the "allowable unit of prosecution" of § 1962(c). They assert that the unit is "the conduct of the enterprise." Reply MOL at 23. However, the court reads § 1962(c) as containing three elements. The first is a person associated with an enterprise, the second is an enterprise involved in interstate or foreign commerce, and the third is participation in such conduct through one of two prongs: a pattern of racketeering or collection of an unlawful debt. All three elements make up the unit of prosecution. See generally United States v. Turkette, 452 U.S. 576, 583, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981).
The defense's reliance on Sanabria v. United States, 437 U.S. 54, 69, n.24, 57 L. Ed. 2d 43, 98 S. Ct. 2170 (1978), is misplaced. Sanabria addresses a single violation of a single statute. This court's review of the indictment in this case shows that counts 1 and 2 charge different violations, one for a pattern of racketeering and one for collection of unlawful debt. Cf. United States v. Dean, 647 F.2d at 788 (Determination in a given case of the number of patterns or agreements requires examination of the four corners of the charges.). Defendants' motion is denied.
C. Defendants' Joint Motion to Strike Surplusage from the Indictment
Defendants move to strike as surplusage portions of the indictment including the preamble (5 pages preceding count 1), the use of the words "racketeering" and "loansharking," and the use of aliases. In addition, at oral argument defendants moved to strike phrases such as "and with others" and "and other criminal means."
A motion to strike surplusage from an indictment is addressed to the sound discretion of the District Court and should be granted only where it is clear that the allegations contained therein are not relevant to the charge made or contain inflammatory and prejudicial matter.
Dranow v. United States, 307 F.2d 545, 558 (8th Cir. 1962); see also United States v. DeFabritus, 605 F. Supp. 1538, 1546 (S.D.N.Y. 1985). The court will apply the above articulated standard to language challenged by defendants.
The indictment contains a five-page preamble including a descriptive paragraph on each of the twenty-one defendants. They appear to be arranged in an order of importance in terms of criminal culpability - defendant Gaetano Vastola, the alleged "boss," is first, followed by the nine other RICO defendants, who are in turn followed by the eleven non-RICO defendants.
The government characterized the preamble as a "roadmap" at oral argument and asserted that it "modifies" the 114 counts of the indictment. The court is not opposed to the idea of the use of a roadmap-type preamble in a complex multi-defendant case. However, the particular preamble in question raises several serious concerns.
First of all, it contains additional narrative which is not contained in the counts of the indictment. The preamble is not simply a roadmap indicating which defendants are indicted for which crimes. It contains information which may be meaningful to a jury's consideration of the guilt of the defendants. For example, the paragraph describing defendant Vastola states that he was the "boss of the Vastola Organization," that he "represented his Organization in its dealings with other criminal groups," and that he was in a "position of ultimate authority." The paragraph describing defendant Brocco, a RICO defendant, states that he was a "cousin and close associate of Vastola," that he "frequently directed the illegal conduct of other members," and that he participated in "most of the criminal activities of the organization." The paragraph describing defendant Uris, a non-RICO defendant, states that he was "actively involved in the operation of the Vastola Organization's illegal bookmaking facility on Staten Island." The court is concerned that the jury's deliberations will be unduly influenced by the preamble (the jurors have a copy of the indictment while deliberating), yet the jury will not explicitly be required to evaluate the probativeness of this information. Since the information is not specifically confined within any particular count or counts, the court is concerned that the jury could refer to it and consider it in evaluating counts to which it does not apply. For example, defendant Vastola's "dealings with other criminal groups" as described in the preamble may be considered by the jury in evaluating each and every charge against him, when only some of those charges involve such dealings. The preamble lacks any instructive device to link the narrative information contained in it with the particular charges it is meant to modify. The danger is particularly acute for the non-RICO defendants who are included in the same preamble listing as the RICO defendants. Each non-RICO defendant is described as carrying out a criminal activity of the "Vastola Organization" or the "Vastola enterprise." The references in the narrative to the organization or enterprise are relevant to the RICO allegations and thus not necessarily unduly prejudicial to the RICO defendants. The content of the narrative on the non-RICO defendants along with the location in the same preamble listing as the RICO defendants may lead the jury to infer that the non-RICO defendants are accused of RICO crimes. Anything in the indictment that allows the jury to infer involvement with uncharged crimes (whether the inference is based on the location of narrative descriptions or the content of such descriptions) is improper. DeFabritus, 605 F. Supp. at 1547; United States v. Hubbard, 474 F. Supp. 64, 82-83 (D.D.C. 1979); United States v. Brighton Bldg. and Maintenance Co., 435 F. Supp. 222, 230 (N.D. Ill. 1977), aff'd 598 F.2d 1101 (7th Cir.), cert. denied, 444 U.S. 840, 62 L. Ed. 2d 52, 100 S. Ct. 79, 100 S. Ct. 80 (1979).
In addition to the court's concern that narrative information in the preamble will be used to modify charges to which it does not apply, the preamble contains irrelevant and vague language which may imply guilt by association or insinuate unalleged facts. For example, defendant Brocco is described as a "cousin" of Vastola who "frequently directed illegal conduct" and who participated in " most of the criminal activities." (emphasis added). Although the government's evidence may turn out to prove these allegations, they are not specifically relevant to all the crimes alleged and allow improper inferences.
The words "various," "including but not limited to the following," "among other things," "and related matters," "on a number of occasions," "at least," "other illegal and improper activities," "and elsewhere," and "besides the defendants" shall be stricken from the indictment as irrelevant and prejudicial.
Hubbard, 474 F. Supp. at 82.
In addition to this court's apprehension of the prejudicial effect of the preamble on jury deliberations, the court is concerned with the prejudicial effect on the jury of listening to the judge recite this preamble at the opening of the case. The court in no way is ruling that the government is prohibited from properly introducing these allegations in opening to the jury.
The court has considered various alternative means to remedy its above described objections to the preamble. The prejudice to the non-RICO defendants is the most serious objection and the most difficult to remedy. If the court were to strike the narrative as to the non-RICO defendants and the objectionable language (described later in subparts 2-4) as to the RICO defendants, the resulting preamble would be so tortured that it would be of little use. Therefore, the court will strike the entire preamble.
As alluded to earlier, this court is not opposed to the use of a preamble per se. However, its function should be to serve as a guide to what is alleged in the counts that the jury will actually evaluate. It should not contain additional information to what is alleged in the counts, nor should it contain terminology that carries with it connotations of culpable behavior. The court notes in dicta that the problem of the inference of uncharged crimes bearing on the non-RICO defendants could be cured either by striking references to the RICO enterprise in the narrative following each non-RICO defendant's name, or by confining such references to the count charging the RICO enterprise.
(2) "Racketeering" and "Loansharking"
The defendants also challenge the use of the word "loan-sharking," which is not a statutory term. The term is used on numerous occasions; in count 1 for example, "loansharking and extortion" and "loanshark victims." See counts 1, 1(b), and 2(c). In addition, the chart in count 1 entitled "Pattern of Racketeering Activity - Racketeering Acts" includes a category of "Loansharking and extortion" acts which correspond to counts 30, 31, 35, 36-39, 40, 95, and 97. The court is concerned that the term "loansharking" as used is redundant and will have an inflammatory effect on the jury. The word "loansharking" is defined as "the practice of lending money at exorbitant rates of interest," Websters' New Collegiate Dictionary 674 (1975), yet the court is concerned that the word has connotations of threatening behavior. To the extent that the word is used to suggest threatening behavior, it is redundant because "extortion," a statutory term, already accompanies it. ("Extort" is defined as "to obtain from a person by force or undue or illegal power of ingenuity." Id. at 406). To the extent that the term "loansharking" is used to describe "criminally usurious loans" the term is prejudicial because these activities are not necessarily violent or threatening. See United States v. Hubbard, 474 F. Supp. at 83 ("The Court finds that the use of such colorful words [e.g. infiltrate, burglary . . .] to describe the allegations in the indictment is improper where less colorful and more accurate words would suffice."). The court is aware that other courts have found such colorful terms appropriate where the government will attempt to prove their relevance to the counts charged, United States v. Gambale, 610 F. Supp. 1515, 1544 (D. Mass. 1985), but the court finds for the above-stated reasons that in the context of this indictment the term "loansharking" serves no useful purpose. Therefore, the government may elect between striking the terms "loansharking" and "loanshark" or replacing them with a form of the more objective terms noted above.
The defendants have moved to strike the use of aliases in the indictment. The government has argued that the pleading and proof of aliases is necessary to identify the defendants' illegal actions. United States v. Persico, 621 F. Supp. at 861. Although this point was not specifically addressed at oral argument, the court assumes from the government's representations that it plans to introduce at trial such proof as to each alias used in the indictment. The court will request such a representation on the record from the government when the government next makes a pre-trial appearance before the court. The defendants' motion is denied without prejudice to their right to renew the motion if the government fails to make such a representation, or if the government fails to introduce such proof in the presentation of its case at trial. Id. at 861.
(4) "And with others" and "and others" and "and other criminal means"
At oral argument, defendants moved to strike the terms "and with others" and "and others" and "and other criminal means." See e.g. counts 30, 37. These types of terms "may encourage the jury to draw inferences that the defendants are believed to be involved in (illegal) activities not charged in the indictment." Hubbard, 474 F. Supp. at 82; see also DeFabritus, 605 F. Supp. at 1547; Brighton, 435 F. Supp. at 230-231 (striking "among others") (the government may not use the indictment to "persuade the jury that the crime alleged has great and hidden implications") (footnote omitted). The terms "and with others" and "and others" and "and other criminal means" are to be struck from the indictment. In conclusion, the court notes that by striking the language described above, it does not foreclose the government from presenting any proof relevant to the charges at trial. See e.g. DeFabritus, 605 F. Supp. at 1547. These alterations do not broaden or materially alter the charging terms of the indictment. United States v. Athisa, 804 F.2d 920, 927 (6th Cir. 1986), cert. denied, 479 U.S. 1067, 107 S. Ct. 955, 93 L. Ed. 2d 1003 (1987); United States v. Dawson, 516 F.2d 796, 804 (9th Cir.), cert. denied, 423 U.S. 855, 46 L. Ed. 2d 80, 96 S. Ct. 104 (1975). Defendants' motion to strike surplusage is granted in part and denied in part.
D. Defendant Farone's Motion to Dismiss Counts 1 and 3
Defendant Farone argues that RICO counts 1 and 3 against him must be dismissed for failure to plead a pattern of racketeering. A "pattern of racketeering activity" requires at least two acts of racketeering activity. 18 U.S.C. § 1961(5). Farone is indicted under five counts other than the RICO counts (28, 30, 31, 33, 34). Count 28 alleges extortion related to a 1.25 million dollar purchase of "cut-out" records from MCA Records, Inc. ("MCA transaction"), in violation of 18 U.S.C. § 894. Counts 30 and 31 allege the making of extortionate extensions of credit and the collection of such credit pertaining to seven individuals, including a $ 50,000 credit to John LaMonte. Counts 33 and 34 allege interference with commerce by threats or violence by means of extortion in the MCA transaction and usurious interest payments on the $ 50,000 LaMonte loan. The "Pattern of Racketeering-Racketeering Acts" chart in the indictment lists multiple counts with each act. The acts relevant to Farone are associated with the counts indicated as follows: Act 17-counts 28, 33, 34; Act 18-counts 30, 31. The test for determining whether two acts constitute a pattern has been succinctly articulated as follows:
RICO "pattern" requires separate criminal transactions or events, but all these acts can comprise one fraudulent scheme and still form a "pattern" provided that the transactions share common perpetrators, victims or motives, extend over a substantial period of time, and that the transactions do not simply involve ministerial acts.
United States v. Freshie Co., 639 F. Supp. 442, 445 (E.D. Pa. 1986), (citing Graham v. Slaughter, 624 F. Supp. 222, 224-25 (N.D. Ill. 1985). The Freshie court found that Sedima did not require two different criminal episodes. Id. (discussing Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, n.14, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985)) (The Sedima discussion of the RICO legislative history points out that a mere showing of two acts is not sufficient. Instead, the Court requires a showing of "continuity plus relationship." "Criminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events." 18 U.S.C. § 3575(e)."). In applying Sedima, the second circuit has stated that "when a person commits at least two acts that have the common purpose of furthering a continuing criminal enterprise . . .," the Sedima requirement is met. United States v. Ianniello, 808 F.2d 184, 192 (2d Cir. 1986). These two transactions allegedly share common perpetrators, victims, and motive, and extend over a significant period of time. Therefore, they are plead properly under the two act pattern test articulated in Freshie and Ianniello.
Farone challenges the pattern of racketeering allegations against him on the grounds that he is only charged with a single act of extortion against John LaMonte. The court's review of the indictment shows this not to be the case. Count 28 is for extortion related to the 1.25 million dollar MCA transaction, and Counts 30 and 31 pertain to a $ 50,000 extortionate extension and collection of credit from LaMonte.
In addition, counts 30 and 31 list six other extortion victims. A finding of guilt as to any one of these victims amounts to an act. The indictment includes all seven victims in the same RICO act and the same count, but a special verdict sheet accompanied by a jury instruction can elicit factual findings on each victim for each defendant named in the count. United States v. Louie, 625 F. Supp. 1327, 1339 (S.D.N.Y. 1985), appeal dismissed, 787 F.2d 65 (2d Cir. 1986). Defendants' challenge does raise the possibility that Farone could be convicted of two counts among 30 or 31, and 33, for the sole act of extorting or conspiring to extort John LaMonte on an interest payment on the $ 50,000 loan. This assumes Farone would be acquitted on the MCA transaction allegation in counts 28, 33, and 34, and allegations under 30 and 31 pertaining to all alleged extortion victims except LaMonte. This possibility raises the question whether such convictions could support a pattern of racketeering count. Sufficient proof of an extortionate interest payment on the $ 50,000 loan to LaMonte could support a conviction on count 30 or 31, (extortionate extension of credit and collection) and count 33 (extortionate interference with commerce) because the "unit of prosecution" under each statute is different. See United States v. Provenzano, 334 F.2d 678, 684 (3d Cir.), cert. denied, 379 U.S. 947, 13 L. Ed. 2d 544, 85 S. Ct. 440 (1964). However, it would not support a conviction of a RICO pattern. This would violate the Sedima continuity requirement designed to prevent "one transaction sliced into a series of facts." Freshie, 639 F. Supp. at 444. Such proof would not demonstrate acts which are "sufficiently differentiated," to make up a RICO pattern. Id. at 445, (quoting Kredietbank, N.V. v. Joyce Morris, Inc., No. 84-1903, slip op. at 5 (D.N.J. January 9, 1986). Therefore, a special verdict sheet will be necessary for counts 28, 29, 30, 31, and 34. Appropriate jury instructions will insure that, in the event of a RICO conviction, such conviction is supported by a unanimous jury finding of guilt on two separate acts. Counts 33 and 34 will require a special verdict sheet indicating whether a conviction is based either on the MCA transaction or the interest payment on the $ 50,000 loan. Cf. United States v. Dansker, 537 F.2d 40, 51 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977)(Where defendants were indicted in a conspiracy count which was submitted to the jury on alternative theories (bribing of two different officials), and the court ruled that the government failed to prove bribery on one of the theories, a general verdict of guilty on the conspiracy count was vacated: "In the instant case, the possibility thus remains, albeit slim, that the jury found that the defendants engaged in a conspiracy to bribe Serota alone . . . .")(emphasis added). The indictment properly pleads a pattern of racketeering against Farone. Defendant Farone's motion is denied.
E. Defendants' (Levy and Fisher) Motion to Dismiss Counts 33 or 34 as Duplicitous or in the Alternative to Force the Government to Elect Between Charges Alleged
Counts 33 and 34 charge the same nine defendants with interference with commerce by threats or violence, 18 U.S.C. § 1951. Count 33 is a conspiracy count. Each count alleges that the means of such interference were related to the MCA transaction extortion and collection of usurious interest payments on separate loans. Defendants challenge each count on the basis of duplicity.
Duplicity is the joining in a single count of two or more distinct separate offenses. United States v. Starks, 515 F.2d 112, 116 (3d Cir. 1975). The "unit of prosecution" under the Hobbs Act, 18 U.S.C. § 1951, is "interference with commerce." Provenzano, 334 F.2d at 685. The jury can base its determination on any one of the enumerated acts that the statute allows, (i.e. robbery, extortion, conspiracy) and that the indictment alleges. The fact that the government has conceded that Levy and Fisher "are not to be alleged to be involved in the collection of the $ 50,000 loan," MOL of United States in Opposition at 43 n.*, is not grounds to dismiss either count. The counts contain other adequate allegations against Levy and Fisher.
The alternate theories in the case at bar, as discussed by counsel at oral argument and apparent from the indictment, are (1) a theory based on the 1.25 million dollar MCA transaction, and (2) one based on the $ 50,000 loan to LaMonte. A special verdict sheet and jury instruction can ensure that the $ 50,000 loan not be considered against Levy and Fisher (and others if necessary). This will prevent the possibility of problems associated with duplicity. United States v. Alsobrook, 620 F.2d 139, 142 (6th Cir.), cert. denied, 449 U.S. 843, 66 L. Ed. 2d 51, 101 S. Ct. 124 (1980); Starks, 515 F.2d at 116 (such problems include double jeopardy, prejudice at sentencing and on appeal, conviction on less than a unanimous determination, and prejudice of evidentiary rulings). Therefore, defendants' motion is denied.
It became evident at oral argument that counsel for Levy, Fisher, and Canterino, are particularly concerned about the prejudicial effect of being associated with the alleged beating of John LaMonte on May 18, 1985. That alleged beating is the subject of count 32, which names only Vastola, Brocco, and Saka. Various defendants argue that the evidence will show this to be the only violent act carried out by defendants. Therefore, they wish to distance themselves from allegations of violent acts. Counts 33 and 34 link the $ 50,000 loan to LaMonte with the 1.25 million dollar extortionate MCA transaction involving LaMonte, as an alternate factual basis for an 18 U.S.C. § 1951 conviction. However, the court notes that the nine defendants named in counts 33 and 34 are also named in a number of other counts involving extortion. In any event, the court will not speculate on the probativeness of this evidence, nor the prejudicial effect of the evidence, at this time. The court is obligated to test the indictment against the defense challenges on the basis of those allegations contained on the face of the document. Hamling v. United States, 418 U.S. 87, 117, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974); United States v. Boffa, 513 F. Supp. at 471, 474. In doing so, the court finds that counts 33 and 34 are properly pled.
F. Defendant Harris' Motion to Dismiss Counts 41, 48, and 75 as Insufficient Pleadings and For a Bill of Particulars
Defendant Harris is indicted in three counts: count 41, conspiracy to commit wire fraud pertaining to a "bust-out scheme"; count 48, conspiracy to commit fraud pertaining to use of a Western Union authorization code; and count 75, substantive fraud pertaining to use of an authorization code. Defendant moves for dismissal, arguing that the indictment fails to provide adequate notice to enable him to prepare a defense.
Allegations in a conspiracy count need not be stated with the specificity required of a substantive count. See e.g., United States v. Clark, 649 F.2d 534, 539 (7th Cir. 1981). The count is sufficient if it pleads the statutory language and contains an adequate statement of an overt act to carry out the conspiracy. United States v. Sterkel, 430 F.2d 1262, 1263 (10th Cir. 1970). Only one member, not each member, of the conspiracy need commit an overt act. United States v. Flaherty, 668 F.2d 566, 580 n.4 (1st Cir. 1981), cert. denied, 479 U.S. 930, 107 S. Ct. 398, 93 L. Ed. 2d 351 (1986). Counts 41 and 48 adequately describe a conspiracy in violation of 18 U.S.C. § 1343 and include the required listing of an overt act. They also include a full statement of all the elements necessary to constitute the offense. Russell v. United States, 369 U.S. 749, 765, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962). Wire fraud, 18 U.S.C. § 1343, requires the existence of a scheme to defraud by means of false pretenses and the use of interstate wire communications in furtherance of the scheme. United States v. Brien, 617 F.2d 299, 307 (1st Cir.), cert. denied, 446 U.S. 919, 100 S. Ct. 1854, 64 L. Ed. 2d 273 (1980). Conspiracy, 18 U.S.C. § 371, requires the showing of an agreement to commit a crime. United States v. Borelli, 336 F.2d 376, 384 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S. Ct. 647, 13 L. Ed. 2d 555 (1965). Count 41, para. 4, articulates Harris' specific role in the "bust-out" scheme, to attend trade shows and place orders intending not to pay for the orders. The count, at para. 1, also alleges an agreement among five conspirators and describes a scheme to defraud. Count 48 alleges a scheme to defraud Western Union Telephone subscribers, a time frame in which the scheme was enacted, and a list of conspirators. In order to prove a violation by Harris in counts 41 and 48, the government must show Harris was a knowing participant in the conspiracy. United States v. Abrams, 539 F. Supp. 378, 383 (S.D.N.Y. 1982). Count 75 specifically identifies Harris' alleged substantive Western Union crime. As a matter of pleading, the indictment is adequate on all three counts. Roberts v. United States, 226 F.2d 464, 466 (6th Cir. 1955); cert. denied, 350 U.S. 935, 100 L. Ed. 817, 76 S. Ct. 307 (1956). However, the court finds in its discretion that the defendant is entitled to a more detailed factual description of his alleged role in the bust-out and Western Union conspiracies in order to avoid prejudicial surprise at trial. United States v. Burgio, 279 F. Supp. 843, 846 (S.D.N.Y. 1968). Defendant's motion to dismiss is denied. His motion for a bill of particulars as to counts 41 and 48 is granted, as incorporated into the bill of particulars ruling at part IV-F of this opinion.
G. Defendant Majuri's Motion to Dismiss Counts 3 and 98
Majuri is indicted in four counts: count 3, RICO conspiracy; counts 98 and 99, gambling conspiracy and gambling; and count 108, possession of firearms. At oral argument Majuri argued for dismissal of the RICO conspiracy count. Majuri points out that neither of the "substantive" RICO counts, pattern of racketeering and collection of unlawful debt (which are incorporated by reference into the RICO conspiracy count), so much as mentions Majuri's name.
The conspiracy count is sufficient if it pleads the statutory language and contains an adequate statement of an overt act. Sterkel, 430 F.2d at 1263. A RICO conspiracy defendant must only agree to the commission of the predicate acts and need not agree to commit those acts personally. United States v. Adams, 759 F.2d 1099, 1116 (3d Cir. 1985). "The element of knowingly and willfully combining, conspiring and agreeing to conduct and participate in the affairs of the enterprise is a sufficient allegation to withstand a motion to dismiss or sever." United States v. Salerno, No. 586 Cr. 245, slip op. at 11 (S.D.N.Y. March 10, 1987). In order to prove a violation the government must show Majuri was a knowing participant in the conspiracy. United States v. Abrams, 539 F. Supp. at 383. The indictment adequately pleads the conspiracy. The fact that Majuri is not indicted under counts 1 and 2 is not a fatal flaw to his being named in count 3. However, the indictment lacks enough particularized information to allow Majuri to do pretrial investigation in support of a defense to this count. Burgio, 279 F. Supp. at 846. The motion to dismiss count 3 is denied. The motion for a bill of particulars as to count 3 is granted, as incorporated into the bill of particulars ruling at part IV-F of this opinion.
Majuri also challenges count 98, arguing that it charges multiple conspiracies instead of a single conspiracy. Count 98 on its face charges only a single conspiracy. The allegation is of a single agreement involving multiple offenses. United States v. Maker, 751 F.2d 614, 625 (3d Cir. 1984), cert. denied, 472 U.S. 1017, 87 L. Ed. 2d 614, 105 S. Ct. 3479 (1985); Boffa, 513 F. Supp. at 474. The ultimate question of whether there was a single conspiracy, multiple conspiracies, or no conspiracy at all, will be resolved at trial. United States v. Smith, 789 F.2d at 200. Majuri's motion to dismiss count 98 is denied.
The defendants move jointly for severance under Fed. R. Crim. P. 8 and 14, and several defendants file motions to sever individually (Levy and Fisher also rely on Rule 2 as an authority in support of severance). For the reasons stated below, the motions to sever are granted in part and denied in part. Rule 8 is not permissive; the rule requires severance as a matter of law based on the pleadings. United States v. Somers, 496 F.2d 723, 729 (3d Cir.), cert. denied, 419 U.S. 832, 95 S. Ct. 56, 42 L. Ed. 2d 58 (1974). In a multi-defendant case, Rule 8(b) applies. 1 C. Wright, Federal Practice and Procedure Criminal 2d § 144 at 494 & n.1 (citing United States v. Perry, 235 U.S. App. D.C. 283, 731 F.2d 985, 989 (D.C. Cir. 1984)). Rule 8(b) has been read as independent and exclusive of Rule 8(a). Wright, § 144 at 495. Therefore, the "common scheme or plan language" of Rule 8(a), which is broader than the 8(b) language, is not applicable under Rule 8(b).
When similar but unrelated offenses are jointly charged to a single defendant, some prejudice almost necessarily results, and the same is true when several defendants are jointly charged with a single offense or related offenses. Rule 8(a) permits the first sort of prejudice and Rule 8(b) the second. But the Rules do not permit cumulation of prejudice by charging several defendants with similar but unrelated offenses.
Cupo v. United States, 123 U.S. App. D.C. 324, 359 F.2d 990, 993 (D.C. Cir. 1966), cert. denied, 385 U.S. 1013, 17 L. Ed. 2d 549, 87 S. Ct. 723 (1967). Separate and unrelated conspiracies, not related as elements of a RICO enterprise, cannot be joined together in the same prosecutions. See e.g. United States v. Weisman, 624 F.2d 1118, 1129 (2d Cir.), cert. denied, 449 U.S. 871, 66 L. Ed. 2d 91, 101 S. Ct. 209 (1980)(if offenses are adequate to be plead as RICO predicate acts, they can be joined under Rule 8(b)).
Rule 14 allows the court in its discretion to sever on the basis of prejudicial joinder of defendants or offenses. A severance is not required merely because one would improve a defendant's chances of acquittal. United States v. Rucker, 586 F.2d 899 (2d Cir. 1978). A defendant must show that joinder would result in a manifestly unfair trial. United States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981).
The defendants have made a joint severance suggestion as follows:
Trial No. 1 Extortion/Loansharking Offenses (Counts 28-40)
Trial No. 2 Frauds (Credit, Western Union, Insurance, Bankruptcy), and Copyright Infringement (Counts 41 & 97)
Trial No. 3 Gambling Offenses (Counts 98-106)
M.O.L. in Support of Defendants' Substantive Motions (this proposal omits counts 1-27 and 107-114). This proposal drew widespread support from various defense counsel at oral argument. The government opposed any severance.
For the reasons stated below, the court will sever this matter into several separate trials. Trial of the RICO defendants will be severed from non-RICO defendants for purposes of case management. The non-RICO defendants will be tried in a series of separate trials under the requirements of Rule 8(b). The trials will include the following offenses:
1. Extortion -- Counts 28, 33, 34. (Defendants Canterino, Levy, and Fisher)
2. Bust-Out Fraud -- Counts 41, 46, 47. (Defendants Howard and Harris)
3. Western Union Telephone Fraud -- Counts 48, 75, 80, 81, 82. (Defendants Howard, Harris, Brennan, Marino, and Sanzaro)
4. Insurance Fraud -- Count 91. (Defendant Marino)
5. Gambling -- Counts 98-106. (Defendants D'Alessio, Sr., D'Allessio, Jr., and Uris)
6. RICO enterprise charges and all charges against 10 defendants named in count 3 (counts 1-45, 48-74, 76-79, 83-106, and 111-114). Counts 107-110 to be tried in the second stage of a bifurcated trial. (Defendants Vastola, Brocco, ...