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UNITED STATES v. GIAMPA

August 17, 1995

UNITED STATES, Plaintiff,
v.
JOSEPH GIAMPA, GENNARO VITTORIO, a/k/a "Gerry Giampa," JOSEPH GAITO, JAMES MCMANUS, BENJAMIN SEGARRA, ELLIOT PORCO and JOHN CAPRA, a/k/a "Johnny Hooks," Defendants.



The opinion of the court was delivered by: LECHNER

TABLE OF CONTENTS

 Facts

 The Redacted Superseding Indictment

 A. Background

 B. The Defendants

 1. Giampa

 2. Vittorio

 3. Gaito

 4. McManus

 5. Segarra

 6. Porco

 7. Capra

 C. Count One: Conspiracy to Engage in Racketeering

 D. Count Two: Substantive RICO

 E. Count Three: Conspiracy to Distribute Narcotics

 F. Count Four: Distribution of Heroin

 G. Count Five: Conspiracy to Import Narcotics

 H. Count Six: Conspiracy to Deal in Firearms

 I. Count Seven: Transfer of Machine Gun

 J. Count Eight: Selling Firearm to a Felon

 K. Count Nine: Selling Firearm to a Felon

 L. Count Ten: Shipping Gun with Altered Serial Number

 M. Count Eleven: Transferring Unregistered Machine Gun

 N. Count Twelve: Conspiracy to Steal and Transport Stolen Property

 O. Count Thirteen: Transportation of Stolen Property

 P. Count Fourteen: Possession of Stolen Property

 Q. Count Fifteen: Conspiracy to Transport Stolen Vehicles

 R. Count Sixteen: Conspiracy to Establish Gambling Operations

 S. Count Seventeen: Conspiracy to Make Extortionate Loan

 T. Count Eighteen: Conspiracy to Deal in Counterfeit Money

 U. Count Nineteen: Conspiracy to Conceal Evidence

 V. Count Twenty: Attempt to Conceal Evidence

 W. Counts Twenty-One Through Forty-Six: Travel/Telephone Use in Aid of Racketeering

 X. The Jury Verdict

 1. Giampa

 2. Vittorio

 3. Gaito

 4. McManus

 5. Segarra

 6. Porco

 7. Capra

 Discussion

 I. Pre-Trial Matters

 A. Severance

 1. Joinder Pursuant to Rule 8

 2. Severance Pursuant to Rule 14

 3. Severance From the Trial of McManus

 B. Motion to Dismiss the Redacted Superseding Indictment for "Outrageous" Government Conduct

 C. Motions to Dismiss the Redacted Superseding Indictment for Failure to Properly Allege the Crimes Charged

 D. Motions to Strike Surplusage

 E. Motion by McManus to Suppress the Second Redacted McManus Statement

 1. Miranda

 2. Voluntariness of Statement

 F. In Limine Motions to Suppress the Second Redacted McManus Statement

 G. Motion to Dismiss the Redacted Superseding Indictment for Failure to Bring McManus Before a Magistrate Judge Without "Unnecessary Delay"

 H. Motion to Suppress the Fruits of the Lanteri Wiretap.

 I. Requests for a Bill of Particulars

 J. Pretrial Disclosure of Brady and Giglio and Jencks Act Material

 1. Brady Material

 3. Jencks Act Material

 K. FRE 404(b) Material

 1. Timing of FRE 404(b) Disclosure

 2. Pre-Trial Determination of Admissibility of FRE 404(b) Evidence

 L. Co-Conspirator Statements

 1. Pre-Trial Disclosure of Co-Conspirator Statements

 2. Hearing on Admissibility of Co-Conspirator Statements

 M. Disclosure of the Identity of Confidential Informants

 N. Access to Grand Jury Materials

 O. Date Certain for Production of Transcripts

 P. Preservation of Rough Notes and Reports

 Q. Request for Leave to File Additional Motions

 R. Reciprocal Discovery

 S. Jury Selection Procedures

 T. Hearings on Objections to Audio and Video Taped Evidence

 U. In Limine Motions Concerning the Admissibility of 404(b) Material

 1. Past Charged and Uncharged Criminal Activity

 2. Accidental Shooting of Gaito

 3. Racial Epithets

 4. Drug Use

 II. Trial Motions and Objections

 A. Objections to Explanation of Taped References

 B. Motions for Mistrial

 1. Giampa's Motions for Mistrial

 2. Vittorio's Motions for Mistrial

 3. Segarra's Motion for Mistrial

 4. Capra's Motion for Mistrial

 C. Gaito's Request for an Entrapment Defense Charge

 1. The Entrapment Defense

 a. Inducement

 b. Non-Predisposition

  2. Inappropriateness of an Entrapment Charge in the Instant Case

  3. Gaito's Initiation of Contact With Sabol

  4. Motion for Reconsideration

  D. Motions for Judgment of Acquittal Under Rule 29(a)

  1. Count One: Conspiracy to Engage in Racketeering

  a. Giampa's Rule 29 Motion on Count One

  b. Vittorio's Rule 29 Motion on Count One

  c. Gaito's Rule 29 Motion on Count One

  d. McManus' Rule 29 Motion on Count One

  e. Segarra's Rule 29 Motion on Count One

  f. Porco's Rule 29 Motion on Count One

  g. Capra's Rule 29 Motion on Count One

  2. Count Two: Substantive RICO

  a. Giampa's Rule 29 Motion on Count Two

  b. Vittorio's Rule 29 Motion on Count Two

  c. McManus' Rule 29 Motion on Count Two

  The Narcotics Counts (Counts Three through Five)

  3. Count Three: Conspiracy to Distribute Narcotics

  a. Vittorio's Rule 29 Motion on Count Three

  b. Gaito's Rule 29 Motion on Count Three

  c. McManus' Rule 29 Motion on Count Three

  4. Count Four: Distribution of Heroin

  a. Gaito's Rule 29 Motion on Count Four

  b. McManus' Rule 29 Motion on Count Four

  5. Count Five: Conspiracy to Import Narcotics

  a. Giampa's Rule 29 Motion on Count Five

  b. Vittorio's Rule 29 Motion on Count Five

  c. McManus' Rule 29 Motion on Count Five

  d. Porco's Rule 29 Motion on Count Five

  The Firearms Counts (Counts Six through Eleven)

  6. Count Six: Conspiracy to Deal in Firearms

  7. Count Seven: Transfer of Machine Gun

  8. Count Eight: Selling Firearm to a Felon

  9. Count Nine: Selling Firearm to a Felon

  10. Count Ten: Shipping Gun with Altered Serial Number

  11. Count Eleven: Transferring Unregistered Machine Gun

  a. Vittorio's Rule 29 Motion on the Firearms Counts

  b. Gaito's Rule 29 Motion on the Firearm Counts

  c. McManus' Rule 29 Motion on Firearms Counts

  d. Segarra's Rule 29 Motion on Firearms Counts

  The Stolen Fur Counts (Counts Twelve Through Fourteen)

  12. Count Twelve: Conspiracy to Steal and Transport Stolen Property

  13. Count Thirteen: Transportation of Stolen Property

  14. Count Fourteen: Possession of Stolen Property

  a. Giampa's Rule 29 Motion on the Stolen Fur Counts

  b. Vittorio's Rule 29 Motion on the Stolen Fur Counts

  c. Gaito's Rule 29 Motion on the Stolen Fur Counts

  15. Count Fifteen: Conspiracy to Transport Stolen Vehicles

  a. Giampa's Rule 29 Motion on Count Fifteen

  b. Vittorio's Rule 29 Motion on Count Fifteen

  c. Segarra's Rule 29 Motion on Count Fifteen

  d. Porco and Capra's Rule 29 Motions on Count Fifteen

  16. Count Sixteen: Conspiracy to Establish Gambling Operations

  a. Giampa's Rule 29 Motion on Count Sixteen

  b. Vittorio's Rule 29 Motion on Count Sixteen

  c. Porco's Rule 29 Motion on Count Sixteen

  d. Capra's Rule 29 Motion on Count Sixteen

  17. Count Seventeen: Conspiracy to Make Extortionate Loan

  a. Giampa's Rule 29 Motion on Count Seventeen

  b. Vittorio's Rule 29 Motion on Count Seventeen

  18. Count Eighteen: Conspiracy to Deal in Counterfeit Money

  Vittorio's Rule 29 Motion on Count Eighteen

  The Concealing Evidence Counts (Counts Nineteen and Twenty)

  19. Count Nineteen: Conspiracy to Conceal Evidence

  20. Count Twenty: Attempt to Conceal Evidence

  a. Giampa's Rule 29 Motion on Counts Nineteen and Twenty

  b. Vittorio's Rule 29 Motion on Counts Nineteen and Twenty

  c. McManus' Rule 29 Motion on Counts Nineteen and Twenty

  The Travel/Telephone Counts (Counts Twenty-One through Forty-Six)

  21. Counts Twenty-One Through Forty-Six:

  Travel/Telephone Use in Aid of Racketeering

  a. Giampa's Rule 29 Motion on the Travel/Telephone Counts

  b. Vittorio's Rule 29 Motion on the Travel/Telephone Counts

  c. Gaito's Rule 29 Motion on the Travel/Telephone Counts

  d. McManus' Rule 29 Motion on the Travel/Telephone Counts

  e. Segarra's Rule 29 Motion on the Travel/Telephone Counts

  f. Porco's Rule 29 Motion on the Travel/Telephone Counts

  III. Post Trial Motions

  A. Declaration of Mistrial as to Deadlocked Counts

  B. Motions for Judgment of Acquittal Under Rule 29(c)

  C. Motions for Bail Pending Sentencing

  1. 18 U.S.C. § 3143(a)

  a. Risk of Flight

  b. Danger to the Community $2. Inappropriateness of Bail in the Instant Case

  a. Giampa

  b. Gaito

  c. McManus

  d. Porco and Capra

  Conclusion

  LECHNER, District Judge

  A fifty-one count indictment (the "Indictment") was filed on 10 August 1994 against defendants Joseph Giampa ("Giampa"), Gennaro Vittorio (a/k/a "Gerry Giampa") ("Vittorio"), Joseph Gaito ("Gaito"), James McManus ("McManus"), Guy Fatato ("Fatato") *fn1" , Benjamin Segarra ("Segarra"), Louis Dorval (a/k/a "Louie") ("Dorval") *fn2" , Elliot Porco ("Porco") and John Capra (a/k/a "Johnny Hooks") ("Capra").

  The Indictment charged violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961(1), (5), 1962(d), conspiracy to import and distribute heroin and cocaine, 21 U.S.C. §§ 963, 846, distribution of heroin, 21 U.S.C. §§ 963, 846, distribution of heroin, 21 U.S.C. §§ 841(a)(1), 846, conspiracy to deal in firearms, 18 U.S.C. § 922(a)(4), (d)(1), (k), 26 U.S.C. § 5861(e), dealing in firearms, 18 U.S.C. § 922(a)(4), (d)(1), (k), 26 U.S.C. § 5861(e), conspiracy to steal and transport stolen property, 18 U.S.C. §§ 2, 659, 2314, 2315, transportation and possession of stolen property, 18 U.S.C. §§ 2, 2314, 2315, conspiracy to transport stolen vehicles, 18 U.S.C. § 2312, conspiracy to establish an illegal gambling business, 18 U.S.C. § 1955, conspiracy to make an extortionate loan, 18 U.S.C. §§ 892, 2, conspiracy to deal in counterfeit money, 18 U.S.C. § 473, conspiracy to conceal evidence, 18 U.S.C. §§ 1512(b), 2, and travel and telephone use in aid of racketeering, 18 U.S.C. §§ 1952, 2.

  On 8 February 1995, a superseding indictment (the "Superseding Indictment") was filed. The Superseding Indictment eliminated Dorval who is deceased. Aside from eliminating references to Dorval, the Superseding Indictment is identical to the Indictment in most respects. The United States (the "Government") submitted a redacted version of the Superseding Indictment (the "Redacted Superseding Indictment"), on 12 July 1995, which eliminated references to Fatato. *fn3"

  This opinion addresses the rulings made prior to, during the course of and after trial in this matter.

  Facts

  The Redacted Superseding Indictment

  A. Background

  According to the Redacted Superseding Indictment, the Lucchese Crime Family (the "Lucchese Crime Family") "was a wholly illegal entity consisting of individuals associated in fact as an enterprise," as defined in 18 U.S.C. 1961(4), "which was engaged in, and the activities of which affected, interstate commerce." Count 1, P 1(a). The Redacted Superseding Indictment alleges the Lucchese Crime Family was a criminal enterprise *fn4" which was highly structured and had a well defined chain of command. Count 1, P 1(b).

  The Redacted Superseding Indictment alleges that at the top of the Lucchese Crime Family's hierarchy was the "Boss" who exercised absolute control over the operation of the Lucchese Crime Family. Id. The Redacted Superseding Indictment further alleges that subordinate to the Boss were the "Underboss," and "Consigliere" or "Advisor." Id. Below the Boss, Underboss and Consigliere were "Captains," also known as "Caporegimes" or "Capos" or "Skippers." Id.

  According to the Redacted Superseding Indictment each of the Captains was in charge of one or more groups or "Crews" of individual "Soldiers" or "members of the [Lucchese Crime Family] who had been formally initiated or 'made' as members of the enterprise." Id. The Redacted Superseding Indictment alleges these Soldiers then recruited and controlled the activities of various associates, each of whom sought the protection and economic benefits such association afforded. Id.

  The Redacted Superseding Indictment alleges the object and purpose of the Lucchese Crime Family

  
[were] to make money for those associated with it through the conduct of diverse criminal activities including, but not limited to, loansharking, extortion, illegal gambling, and trafficking in stolen property, narcotics and firearms.

  Id., P 1(c). Additionally, the Redacted Superseding Indictment alleges individuals associated with the Lucchese Crime Family were required to pay to their superiors a percentage of the proceeds from criminal activity in which they or their subordinates participated. Id.

  B. The Defendants

  1. Giampa

  According to the Redacted Superseding Indictment, Giampa "was a made member and a high ranking 'Caporegime' in the Lucchese Crime Family." Id., P 2(a). The Redacted Superseding Indictment alleges he was the leader of a group of "made" members and associates of the Lucchese Crime Family (the "Giampa Crew"). Id. The Redacted Superseding Indictment further alleges Giampa reported to the Boss and Underboss of the Lucchese Crime Family "for any transgression against the fundamental rules of the [Lucchese Crime Family] by those members below him in the chain of command." Id.

  The Redacted Superseding Indictment charges Giampa with violating RICO, Counts 1, 2, Conspiracy to Import Narcotics, Count 5, Conspiracy to Steal and Transport Stolen Property, Count 12, Transporting Stolen Property, Count 13, Possession of Stolen Property, Count 14, Conspiracy to Transport Stolen Vehicles, Count 15, Conspiracy to Establish a Gambling Operation, Count 16, Conspiracy to Make an Extortionate Loan, Count 17, Conspiracy to Conceal Evidence, Count 19, Attempt to Conceal Evidence, Count 20, and Travel/Telephone Use in Aid of Racketeering. Counts 34, 36, 37, 40, 42.

  2. Vittorio

  The Redacted Superseding Indictment alleges Vittorio was associated with Giampa and was a member of the Giampa Crew. Count 1, P 2(b). According to the Redacted Superseding Indictment, Vittorio, who reported directly to Giampa, supervised other associates including Gaito, McManus and Fatato. Id.

  Vittorio is charged in the Redacted Superseding Indictment with violating RICO, Counts 1, 2, Conspiracy to Distribute Narcotics, Count 3, Distribution of Heroin, Count 4, Conspiracy to Import Narcotics, Count 5, Conspiracy to Deal in Firearms, Count 6, Transfer of Machine Gun, Count 7, Selling Firearms to a Felon, Counts 8, 9, Shipping a Gun with an Altered Serial Number, Count 10, Transferring an Unregistered Machine Gun, Count 11, Conspiracy to Steal and Transport Stolen Property, Count 12, Transporting Stolen Property, Count 13, Possession of Stolen Property, Count 14, Conspiracy to Transport Stolen Vehicles, Count 15, Conspiracy to Establish a Gambling Operation, Count 16, Conspiracy to Make an Extortionate Loan, Count 17, Conspiracy to Deal in Counterfeit Money, Count 18, Conspiracy to Conceal Evidence, Count 19, Attempt to Conceal Evidence, Count 20, and Travel/Telephone Use in Aid of Racketeering. Counts 21-27, 29, 30, 37, 43.

  3. Gaito

  The Redacted Superseding Indictment alleges Gaito was associated with Giampa, to whom he reported, and Vittorio. Count 1, P 2(c). Gaito is charged in the Redacted Superseding Indictment with violating RICO, Count 1, Conspiracy to Distribute Narcotics, Count 3, Distribution of Heroin, Count 4, Conspiracy to Deal in Firearms, Count 6, Transfer of Machine Gun, Count 7, Selling Firearms to a Felon, Counts 8, 9, Shipping a Gun with an Altered Serial Number, Count 10, Transferring an Unregistered Machine Gun, Count 11, Conspiracy to Steal and Transport Stolen Property, Count 12, and Travel/Telephone Use in Aid of Racketeering. Counts 22-25, 27.

  4. McManus

  According to the Redacted Superseding Indictment, McManus was associated with Vittorio, to whom he reported, Porco and Capra. Count 1, P 2(d). The Redacted Superseding Indictment charges McManus with violating RICO, Count 1, 2, Conspiracy to Distribute Narcotics, Count 3, Distribution of Heroin, Count 4, Conspiracy to Import Narcotics, Count 5, Conspiracy to Deal in Firearms, Count 6, Transfer of Machine Gun, Count 7, Selling Firearms to a Felon, Counts 8, 9, Shipping a Gun with an Altered Serial Number, Count 10, Transferring an Unregistered Machine Gun, Count 11, Conspiracy to Steal and Transport Stolen Property, Count 12, Transporting Stolen Property, Count 13, Possession of Stolen Property, Count 14, Conspiracy to Transport Stolen Vehicles, Count 15, Conspiracy to Establish a Gambling Operation, Count 16, Conspiracy to Conceal Evidence, Count 19, Attempt to Conceal Evidence, Count 20, and Travel/Telephone Use in Aid of Racketeering. Counts 27-32, 37, 38, 41, 44-46.

  5. Segarra

  The Redacted Superseding Indictment alleges Segarra was associated with Porco, to whom he reported, McManus and Capra. Count 1, P 2(e). Segarra is charged in the Redacted Superseding Indictment with violating RICO, Count 1, Conspiracy to Deal in Firearms, Count 6, Transfer of Machine Gun, Count 7, Selling Firearms to a Felon, Count 9, Transferring an Unregistered Machine Gun, Count 11, Conspiracy to Transport Stolen Vehicles, Count 15, Conspiracy to Establish a Gambling Operation, Count 16, and Travel/Telephone Use in Aid of Racketeering. Count 33.

  6. Porco

  The Redacted Superseding Indictment alleges Porco, who reported to Capra, was an associate of the Lucchese Crime Family and a member of "a different crew than the Giampa Crew." Count 1, P 2(f). Porco is charged in the Redacted Superseding Indictment with violating RICO, Count 1, Conspiracy to Import Narcotics, Count 5, Conspiracy to Transport Stolen Vehicles, Count 15, Conspiracy to Establish a Gambling Operation, Count 16, and Travel/Telephone Use in Aid of Racketeering. Counts 29, 30, 33, 35, 39.

  7. Capra

  According to the Redacted Superseding Indictment, Capra was a "made" member of the Lucchese Crime Family and "a member of a different crew than the Giampa Crew." Count 1, P 2(g). Capra is charged in the Redacted Superseding Indictment with violating RICO, Count 1, Conspiracy to Import Narcotics, Count 5, Conspiracy to Transport Stolen Vehicles, Count 15, and Conspiracy to Establish a Gambling Operation. Count 16.

  C. Count One: Conspiracy to Engage in Racketeering

  The Redacted Superseding Indictment charges that from on or about 21 October 1992, through on or about 11 August 1994, in the District of New Jersey, and elsewhere, the Defendants,

  
employed by and associated with Lucchese Crime Family, an enterprise which was engaged in, and the activities of which affected, interstate commerce, did knowingly and wilfully conspire with each other and with others to conduct and to participate, directly and indirectly, in the conduct of the affairs of the Lucchese Crime Family through a pattern of racketeering activity....

  Count 1, P 3.

  Manner and Means

  According to the Redacted Superseding Indictment, in order to extend the power and influence of the Lucchese Crime Family and to increase profits, the Defendants took steps to expand the geographical control of the Lucchese Crime Family into New Jersey. Count 1, P 5. The Redacted Superseding Indictment alleges this was done by, among other things, "the establishment of, and attempts to establish, a multi-kilogram heroin and cocaine distribution network[,] contacts for the sale and distribution of stolen property, firearms and counterfeit money[,] an import-export company for the importation of narcotics[,] and exportation of stolen vehicles and illegal gambling operations." Id.

  Count One alleges Defendants "did agree, together, with each other and with other co-conspirators, that members and associates of the Lucchese Crime Family would commit and aid, abet, counsel, command, induce, procure and willfully cause the commission of at least two racketeering acts," as set forth in 18 U.S.C. § 1961(1). Id., P 160. Count One describes eight acts of racketeering committed by Defendants: (1) a conspiracy to import and distribute narcotics, 21 U.S.C. §§ 963, 846, (2) the distribution of heroin, 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2, (3) a scheme to steal and transport stolen property, 18 U.S.C. §§ 2, 659, 2314, 2315, (4) a scheme to export stolen vehicles, 18 U.S.C. § 2312, (5) a scheme to establish an illegal gambling business, 18 U.S.C. § 1955, 1955(b) (1), (6) a conspiracy to establish import/export company through extortionate loan, 18 U.S.C. §§ 892, 2, (7) a scheme to deal in counterfeit money, 18 U.S.C. § 473, and (8) a scheme to conceal evidence, 18 U.S.C. §§ 1512(b), 2. Id., PP 161-68.

  D. Count Two: Substantive RICO

  Count Two re-alleges the "allegations contained in paragraphs 1, 2, 4 through 159, 161 through 163, 166 and 168 of Count 1 ... [and] incorporate[s] [those allegations] by reference...." Count 2, P 1.

  Count Two charges that from on or about 21 October 1992, through on or about 11 August 1994, in the District of New Jersey, and elsewhere, Giampa, Vittorio and McManus

  
employed by and associated with the Lucchese Crime Family, an enterprise which was engaged in, and the activities of which affected, interstate commerce, did knowingly and wilfully conduct and participate, directly and indirectly, in the conduct of the affairs of the Lucchese Crime Family through a pattern of racketeering activity, as defined in Title 18, United States Code, Section 1961(1) and (5)....

  Count 2, P 2.

  Count Two alleges Giampa, Vittorio and McManus "committed and aided and abetted, counseled, commanded, induced, procured and willfully caused the commission of the racketeering acts set forth below." Id., P 3. Count Two lists five racketeering acts, which are described in Count One, allegedly committed by Giampa, Vittorio and McManus in violation of 18 U.S.C. § 1962(c): (1) a conspiracy to import and distribute heroin and cocaine, (2) the distribution of heroin, (3) a scheme to steal and transport stolen property, (4) a scheme to establish import/export company through extortionate loan, and (5) a scheme to conceal evidence. Id., P 3

  E. Count Three: Conspiracy to Distribute Narcotics

  Count Three re-alleges the allegations "contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporate[s] [those allegations] by reference...." Count 3, P 1. Count Three charges that from on or about 21 October 1992, through on or about 11 August 1994, in the District of New Jersey, and elsewhere, Vittorio, Gaito and McManus

  
knowingly and intentionally did combine, conspire, and agree with each other, and with others, to distribute, and to possess with intent to distribute, more than 5 kilograms of heroin, a Schedule I narcotic drug controlled substance, and more than 5 kilograms of cocaine, a Schedule II narcotic drug controlled substance, contrary to Title 21, United States Code, Section 841(a)(1). In violation of Title 21, United States Code, Section 846.

  Count 3, P 2.

  F. Count Four: Distribution of Heroin

  Count Four re-alleges the allegations "contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporate[s] [those allegations] by reference...." Count 4, P 1. Count Four charges that on or about 22 November 1993, in the District of New Jersey, and elsewhere, Vittorio, Gaito and McManus "knowingly and intentionally did possess, with intent to distribute, one ounce of heroin, a Schedule I narcotic drug controlled substance" in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count 4, P 2.

  G. Count Five: Conspiracy to Import Narcotics

  Count Five re-alleges the allegations "contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporate[s] [those allegations] by reference...." Count 5, P 1. Count Five charges that on or about 21 October 1992, through on or about 11 August 1994, in the District of New Jersey, and elsewhere, Giampa, Vittorio, McManus, Porco and Capra

  
knowingly and intentionally did combine, conspire, and agree with each other, and with others, to import more than 5 kilograms of heroin, a Schedule I narcotic drug controlled substance, and more than 5 kilograms of cocaine, a Schedule II narcotic drug controlled substance, from a place outside the United States, contrary to Title 21, United States Code, Section 952. In violation of Title 21, United States Code, Section 963.

  Count 5, P 2.

  H. Count Six: Conspiracy to Deal in Firearms

  Count Six re-alleges the allegations "contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporate[s] [those allegations] by reference...." Count 6, P 1. Count Six charges that on or about 21 October 1992, through on or about 11 August 1994, in the District of New Jersey, and elsewhere, Vittorio, Gaito, McManus, and Segarra

  
knowingly and willfully did combine, conspire, confederate and agree with each other, to:
  
a. transport in interstate commerce a fully automatic RPB Industries .9mm submachine gun, contrary to Title 18, United States Code, Section 922(a)(4);
  
b. sell and otherwise dispose of a firearm and ammunition, to a person, knowing, and having reasonable cause to believe that such person has been convicted in a court of a crime punishable by imprisonment for a term exceeding one year, contrary to Title 18, United States Code, Section 922(d)(1);
  
c. knowingly transport, ship and receive in interstate commerce a firearm which had the manufacturer's serial number removed, obliterated and altered, contrary to Title 18, United States Code, Section 922(k);
  
d. to transfer unregistered firearms in violation of Title 26, United States Code, Section 5841, namely a fully automatic RPB Industries .9mm submachine gun and silencer, contrary to Title 26, United States Code, Section 5861(e).

  Count 6, P 2.

  The Redacted Superseding Indictment alleges that in furtherance of the conspiracy Vittorio, Gaito, McManus and Segarra committed nineteen overt acts, in violation of 18 U.S.C. § 371, in the District of New Jersey, and elsewhere. Id. at 51. The Redacted Superseding Indictment lists the overt acts, each with a corresponding paragraph in Count One that describes it: (i.e. the first overt act is described in Count 1, P 23, the second overt act is described in Count 1, P 24, ... the nineteenth overt act is described in Count 1, P 41.) Id.

  I. Count Seven: Transfer of Machine Gun

  J. Counts Eight and Nine: Selling Firearms to a Felon

  Counts Eight and Nine re-allege the allegations "contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporate[s] [those allegations] by reference...." Counts 8-9, P 1. Counts Eight and Nine charge that on or about the dates listed below, in the District of New Jersey, and elsewhere, Vittorio, Gaito, McManus and Segarra "knowingly and willfully did sell and otherwise dispose of a firearm and ammunition to a person, knowing, and having reasonable cause to believe, that such person has been convicted in a court of a crime punishable by imprisonment for a term exceeding one year." Counts 8-9, P 2. Count Eight alleges that on 13 December 1993, Vitrorio, Gaito and Segarra sold a Rossi .38 caliber revolver and hollow tip bullets. Id. Count Nine alleges that on 15 December 1993, Vitrorio, Gaito, McManus and Segarra sold a RPB Industries .9mm submachine gun, ammunition and a silencer. Id. The Redacted Superseding Indictment alleges that these sales were in violation of 18 U.S.C. §§ 922(d)(1) and (2). Id.

  K. Count Ten: Shipping Gun with Altered Serial Number

  Count Ten re-alleges the allegations "contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporate[s] [those allegations] by reference...." Count 10, P 1. Count Ten charges that on or about 13 December 1993, in the District of New Jersey, and elsewhere, Vittorio, Gaito and McManus "did knowingly and willfully transport, ship and receive in interstate commerce a firearm, namely a Rossi .38 caliber revolver, which had the manufacturer's serial number removed, obliterated and altered. In violation of Title 18, United States Code, Sections 922(k) and 2." Count 10, P 2.

  L. Count Eleven: Transferring Unregistered Machine Gun

  Count Eleven re-alleges the allegations "contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporate[s] [those allegations] by reference...." Count 11, P 1. Count Eleven charges that on or about 15 December 1993, in the District of New Jersey, and elsewhere, Vittorio, Gaito, McManus and Segarra "knowingly and willfully did transfer unregistered firearms in violation of Title 26, United States Code, Section 5841, namely a fully automatic RPB Industries .9mm submachine gun and silencer. In violation of Title 26, United States Code, Section 5861(e) and Title 18, United States Code, Section 2." Count 11, P 2.

  M. Count Twelve: Conspiracy to Steal and Transport Stolen Property

  Count Twelve re-alleges the allegations "contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporate[s] [those allegations] by reference...." Count 12, P 1. Count Twelve charges that on or about 21 October 1992, through in or about January 1994, in the District of New Jersey, and elsewhere, Giampa, Vittorio, Gaito and McManus

  
knowingly and willfully did combine, conspire, confederate and agree with each other, and with others, to:
  
a. embezzle, steal and unlawfully take and carry away and conceal, and by fraud and deception did obtain, from a storage facility, with intent to convert to his own use, goods and chattels moving as, and which were a part of and which constituted, an interstate shipment of freight, express and property, contrary to Title 18, United States Code, Section 659.
  
b. transport, transmit and transfer in interstate commerce goods, wares and merchandise having a value of more than $ 5,000, knowing that the goods, wares and merchandise was stolen, converted and taken by fraud, contrary to Title 18, United States Code, Section 2314.

  Count 12, P 2.

  The Redacted Superseding Indictment lists twenty-one overt acts committed by Giampa, Vittorio, Gaito and McManus in the District of New Jersey, and elsewhere. Id. at 57. The Redacted Superseding Indictment alleges that these overt acts were committed in violation of 18 U.S.C. § 371 and were "in furtherance of the conspiracy and in order to effect its objects." Id. Each overt act is listed with a corresponding paragraph in Count One that describes it: (i.e. the first overt act is described in Count 1, P 42, the second overt act is described in Count 1, P 43, ... the twenty-first overt act is described in Count 1, P 62). Id.

  N. Count Thirteen: Transportation of Stolen Property

  Count Thirteen re-alleges the allegations "contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporate[s] [those allegations] by reference...." Count 13, P 1. Count Thirteen charges that from on or about 22 December 1993, through in or about January 1994, in the District of New Jersey, and elsewhere, Giampa, Vittorio and McManus

  
knowingly and willfully did transport, transmit and transfer in interstate commerce goods, wares and merchandise having a value of more than $ 5,000, namely, fur coats from Filenes Basement, knowing that [the] fur coats were stolen, converted and taken by fraud. In violation of Title 18, United States Code, Sections 2314 and 2.

  Count 13, P 2.

  O. Count Fourteen: Possession of Stolen Property

  Count Fourteen re-alleges the allegations "contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporate[s] [those allegations] by reference...." Count 14, P 1. Count Fourteen charges that from on or about 22 December 1993, through in or about January 1994, in the District of New Jersey, and elsewhere, Giampa, Vittorio and McManus

  
knowingly and willfully did receive, possess, conceal, store, barter, sell and dispose of goods, wares and merchandise having a value of more than $ 5,000, which have crossed a state boundary after being stolen, unlawfully converted and taken, and knowing that the goods, wares and merchandise was stolen, unlawfully converted and taken. In violation of Title 18, United States Code, Sections 2315 and 2.

  Count 14, P 2.

  P. Count Fifteen: Conspiracy to Transport Stolen Vehicles

  Count Fifteen re-alleges the allegations "contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporate[s] [those allegations] by reference...." Count 15, P 1. Count Fifteen charges that from on or about 6 January 1994, through in or about January 1994, in the District of New Jersey, and elsewhere, Giampa, Vittorio, McManus, Segarra, Porco and Capra "knowingly and willfully did combine, conspire, confederate and agree with each other, and with others, to transport, in interstate and foreign commerce, motor vehicles, knowing that the motor vehicles were stolen, contrary to Title 18, United States Code, Section 2312." Count 15, P 2.

  The Redacted Superseding Indictment lists twelve overt acts committed by Giampa, Vittorio, McManus, Segarra, Porco and Capra in the District of New Jersey, and elsewhere. Id. at 60-61. The Redacted Superseding Indictment alleges that these overt acts were committed in violation of 18 U.S.C. § 371 and were "in furtherance of the conspiracy and in order to effect its objects." Id. Each overt act is listed with a corresponding paragraph in Count One that described it: (i.e. the first overt act is described in Count 1, P 79, the second overt act is described in Count 1, P 80, ... the twelfth overt act is described in Count 1, P 90). Id.

  Q. Count Sixteen: Conspiracy to Establish Gambling Operations

  Count Sixteen re-alleges the allegations "contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporates [those allegations] by reference...." Count 16, P 1. Count Sixteen charges that from on or about 20 December 1993, through on or about 11 August 1993, in the District of New Jersey, and elsewhere, Giampa, Vittorio, McManus, Segarra, Porco and Capra "knowingly and willfully did combine, conspire, confederate and agree with each other, and with others, to conduct, finance, manage, supervise, direct and own all of and part of an illegal gambling business," as defined in 18 U.S.C. § 1955(b)(1), and contrary to 18 U.S.C. § 1955. Count 16, P 2.

  The Redacted Superseding Indictment lists twenty-eight overt acts committed by Giampa, Vittorio, McManus, Segarra, Porco and Capra in the District of New Jersey, and elsewhere. Id. at 62-63. The Redacted Superseding Indictment alleges that these overt acts were committed in violation of 18 U.S.C. § 371 and were "in furtherance of the conspiracy and in order to effect its objects." Id. Each overt act is listed with a corresponding paragraph in Count One that describes it: (i.e. the first overt act is described in Count 1, P 91, the second overt act is described in Count 1, P 92, ... the twenty-eighth overt act is described in Count 1, P 118). Id.

  R. Count Seventeen: Conspiracy to Make Extortionate Loan

  Count Seventeen re-alleges the allegations "contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporates [those allegations] by reference...." Count 17, P 1. Count Seventeen charges that on or about 24 January 1994, in the District of New Jersey, and elsewhere, Giampa and Vittorio "knowingly and willfully did conspire to make a $ 10,000 extortionate extension of credit. In violation of Title 18, United States Code, Section 892." Count 17, P 2.

  S. Count Eighteen: Conspiracy to Deal in Counterfeit Money

  Count Eighteen re-alleges the allegations "contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporates [those allegations] by reference...." Count 18, P 1. Count Eighteen charges that from on or about 24 January 1994, through on or about 11 August 1994, in the District of New Jersey, and elsewhere, Vittorio

  
knowingly and willfully did combine, conspire, confederate and agree with others, to buy, sell, exchange, transfer, receive and deliver false, forged, counterfeited and altered obligations of the United States with the intent that such obligations be passed, published and used as true and genuine, contrary to Title 18, United States Code, Section 473.

  Count 18, P 2.

  The Redacted Superseding Indictment lists four overt acts committed by Vittorio in the District of New Jersey and elsewhere. Id. at 65. The Redacted Superseding Indictment alleges that these overt acts were committed in violation of 18 U.S.C. § 371 and were "in furtherance of the conspiracy and in order to effect its objects." Id. Each overt act is listed with a corresponding paragraph in Count One that describes it: (i.e. the first overt act is described in Count 1, P 143, the second overt act is described in Count 1, P 144, ... the fourth overt act is described in Count 1, P 146). Id.

  T. Count Nineteen: Conspiracy to Conceal Evidence

  Count Nineteen re-alleges the allegations "contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporates [those allegations] by reference...." Count 19, P 1. Count Nineteen charges that from on or about 25 January 1994, through on or about 11 August 1994, in the District of New Jersey, and elsewhere, Giampa, Vittorio and McManus

  Count 19, P 2.

  The Redacted Superseding Indictment lists thirteen overt acts committed by Giampa, Vittorio and McManus in the District of New Jersey and elsewhere. Id. at 66-67. The Redacted Superseding Indictment alleges that these overt acts were committed in violation of 18 U.S.C. § 371 and were "in furtherance of the conspiracy and in order to effect its objects." Id. at 66. Each overt act is listed with a corresponding paragraph in Count One that describes it: (i.e. the first overt act is described in Count 1, P 147, the second overt act is described in Count 1, P 148, ... the thirteenth overt act is described in Count 1, P 159). Id. at 67.

  U. Count Twenty: Attempt to Conceal Evidence

  Count Twenty re-alleges the allegations "contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporates [those allegations] by reference...." Count 20, P 1. Count Twenty charges that from on or about 25 January 1994, through on or about 11 August 1994, in the District of New Jersey, and elsewhere, Giampa, Vittorio and McManus

  
did knowingly and willfully corruptly persuade [Sabol], and engage in misleading conduct toward Sabol, with intent to 1) influence, delay and prevent Sabol's testimony in an official proceeding; 2) cause and induce Sabol to conceal an object, namely, $ 10,000 in U.S. currency, with intent to impair the integrity and availability of the currency for use in an official proceeding; and 3) hinder, delay, and prevent the communication to a law enforcement officer of information relating to the commission of a Federal offense. In violation of Title 18, United States Code, Section 1512(b) and 2.

  Count 20, P 2.

  W. Counts Twenty-One Through Forty-Six: Travel/Telephone Use in Aid of Racketeering

  Counts Twenty-One through Forty-Six re-allege the allegations "contained in Paragraphs 1 and 2 and 4 through 159 of Count 1 ... [and] incorporates [those allegations] by reference...." Counts 21-46, P 1. Counts Twenty-One through Forty-Six charge that on the dates listed below, in the District of New Jersey, and elsewhere, the defendants named below

  
knowingly and willfully did travel in interstate commerce and use a facility in interstate commerce, and caused the travel in interstate commerce and use of a facility in interstate commerce, with the intent to promote, manage, establish and carry on, and facilitate the promotion, management, establishment and carrying on, of an unlawful activity, and thereafter did perform, attempt to perform, and cause the performance of, an act to promote, manage, establish, carry on and facilitate the promotion, management, establishment and carrying on of such unlawful activity.... In violation of Title 18, United States Code, Sections 1952 and 2.

  Counts 21-46, P 2.

  The Redacted Superseding Indictment then lists, for Counts Twenty-One through Forty-Six, the date, the defendant or defendants charged, whether travel or telephone use was employed in aid of racketeering and the unlawful activity involved. Id. at 69-71.

  X. The Jury Verdict5

  1. Giampa

  2. Vittorio

  The jury was unable to reach a unanimous decision as to Vittorio on Counts One, Two, Seventeen and Eighteen. Id. at 4857-65. Vittorio was found not guilty on Counts Nineteen through Twenty-Two and Thirty. Id. at 4865-67. Vittorio was found guilty on Counts Three, Four, Five, Six, Seven through Eleven, Twelve, Thirteen through Sixteen, Twenty-Three through Twenty-Seven, Twenty-Nine, Thirty-Seven and Forty-Three. Id. at 4858-68.

  3. Gaito

  The jury was unable to reach a unanimous decision as to Gaito on Count One. Id. at 4857. Gaito was found not guilty on Count Twenty-Two. Id. at 4866. Gaito was found guilty on Counts Three, Four, Six, Seven through Eleven, Twelve, Twenty-Three through Twenty-Five and Twenty-Seven. Id. at 4858-66.

  4. McManus

  The jury was unable to reach a unanimous decision as to McManus on Counts One and Two. Id. at 4857-58. McManus was found not guilty on Counts Six, as to paragraph A, C and D, Seven through Eleven, Nineteen, Twenty and Thirty. Id. at 4859-62, 4865, 4867. McManus was found guilty on Counts Three, Four, Five, Six, as to paragraph B, Twelve, Thirteen through Sixteen, Twenty-Seven through Twenty-Nine, Thirty-One, Thirty-Two, Thirty-Seven, Thirty-Eight, Forty-One and Forty-Four through Forty-Six. Id. at 4858-64, 4866-69.

  5. Segarra

  Segarra was found not guilty on Counts One, Six, Seven, Nine, Eleven, Fifteen, Sixteen and Thirty-Three. Id. at 4857-65, 4867.

  6. Porco

  The jury was unable to reach a unanimous decision as to Porco on Counts One, Five, Sixteen, Twenty-Nine, Thirty-Three, Thirty-Five and Thirty-Nine. Id. at 4857-59, 4864-65, 4867-68. Porco was found not guilty on Count Thirty. Id. at 4867. Porco was found guilty on Count Fifteen. Id. at 4864.

  7. Capra

  The jury was unable to reach a unanimous decision as to Capra on Counts One, Five, and Sixteen. Id. at 4857-59, 4864-65. Capra was found guilty on Count Fifteen. Id. at 4864.

  Because of the interrelatedness of the evidence and arguments, notwithstanding the acquittals and deadlocked counts in the instant case, *fn6" all motions are addressed to provide the appropriate background and a complete understanding of this case. Without doing so, it would be difficult to understand how the evidence fits together and how relationships were developed and trust gained between and among the Defendants and with Sabol.

  Discussion7

  I. Pre-Trial Matters

  The Defendants made the following pre-trial motions: *fn8" Giampa sought: (1) disclosure of material pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) ("Brady "), (2) a bill of particulars, (3) disclosure of the identity of any confidential informant, (4) disclosure of any agreement between the United States Justice Department and any Government Witness, (5) disclosure of prior criminal records, pending criminal offenses and/or ongoing investigations of Government witnesses, (6) disclosure of co-conspirator statements the Government intended to introduce pursuant to Federal Rules of Evidence ("FRE") 801(d)(2)(E), (7) leave to join in appropriate motions filed on behalf of his co-defendants, (8) severance pursuant to Rule 14 of the Federal Rules of Criminal Procedure ("Rule 14"), (9) disclosure of discovery pursuant to the Jencks Act, 18 U.S.C. § 3500 (the "Jencks Act"), *fn9" and (10) disclosure of the grand jury minutes.

  Vittorio sought: (1) an order striking from the Redacted Superseding Indictment any reference to a prior conviction and other "scandalous" and highly prejudicial material, (2) access to the grand jury minutes, (3) suppression of the contents and fruits of a wiretap on Michael L. Lanteri (the "Lanteri Wiretap"), (4) an order compelling Government agents to preserve notes and reports, (5) disclosure of information discoverable pursuant to the Jencks Act in advance of trial, and (6) a date certain for production by the Government of final transcripts of recorded conversations. *fn10"

  Gaito sought: (1) dismissal of the Redacted Superseding Indictment for outrageous conduct by the Government, (2) disclosure of other crimes evidence pursuant to FRE 404(b), (3) an order compelling Government agents to preserve notes and reports, (4) an order compelling the Government to both comply with the discovery order (the "Discovery Order") and disclose all Brady material, and (5) leave to join in the applicable motions filed by his co-defendants.

  McManus sought: (1) suppression of custodial statements pursuant to Rule 12(b)(3) of the Federal Rules of Criminal Procedure ("Rule 12(b)(3)"), *fn11" (2) dismissal of the Redacted Superseding Indictment or suppression of all evidence based on the failure to bring him before a magistrate judge without "unnecessary delay" pursuant to Rule 5(a) of the Federal Rules of Criminal Procedure ("Rule 5(a)") and 18 U.S.C. § 3501, (3) suppression of evidence obtained from a search of his automobile or a hearing on the propriety of such search, (4) preclusion of evidence seized from his automobile pursuant to FRE 404(b) and 403, *fn12" (5) leave to join in the applicable motions of his co-defendants, and (6) to reserve his right to make further motions as they became appropriate.

  Segarra sought: (1) dismissal of the Redacted Superseding Indictment for failure to allege sufficient facts to establish the crimes charged, (2) an order striking from the Redacted Superseding Indictment any reference to "scandalous" and highly prejudicial material, (3) severance of his trial from that of Mcmanus pursuant to Bruton, (4) severance pursuant to Rule 14, (5) an order compelling disclosure of Brady material, (6) an order requiring Government agents to preserve notes and reports, (7) a bill of particulars, (8) notification of other crimes evidence, and (9) leave to join in appropriate motions by his co-defendants.

  Capra and Porco sought: (1) severance of the trial of Capra from McManus pursuant to Bruton, (2) severance of their trial from the trial of their remaining co-defendants pursuant to Rule 12(b)(5) and Rule 14, (3) a bill of particulars, (4) dismissal of the Redacted Superseding Indictment because it does not allege a crime, and (5) leave to file further motions, as they became appropriate.

  According to the Government, Fatato by letter, dated 13 February 1995, formally joined in the motions of his co-defendants. Government Brief at 13 n.3. In light of Fatato's 27 April 1995 guilty plea, pre-trial motions, to the extent they relate to Fatato, are not addressed. *fn13"

  Additionally, the Defendants made the following motions in limine : *fn14" Giampa moved in limine to suppress and require the redaction from all audiotapes, videotapes and transcripts any references: (1) to Giampa's prior criminal history, including all references to his 1992 trial, (2) to uncharged and alleged criminal activity, (3) to any unproven conclusions, opinions, and/or allegations of wrongdoing or association made by Sabol, (4) to any conversations by Sabol, and/or alleged co-conspirator's or other uncharged individuals with respect to allegations of criminal conduct for which Giampa is charged, (5) to the purchase of his automobile and its cost, (6) to fees paid to attorneys in the past for any type of criminal matter, and (7) to his owning a social club.

  Gaito moved in limine to suppress and require the redaction from all audiotapes, videotapes and transcripts any references: (1) to his prior criminal history, (2) to the accidental shooting of him, (3) to any unproven conclusions or allegations of wrongdoing or association made by Sabol, and (4) to racial epithets uttered by him.

  McManus moved in limine : (1) to redact from the transcripts references to his uncharged criminal activity, (2) to permit him to file additional in limine motions as may become appropriate, and (3) to permit him to join in the in limine motions of any co-defendant which are applicable to him.

  Segarra moved in limine : (1) for a pre-trial ruling on the admissibility of alleged co-conspirator statements concerning Segarra as the source of firearms, (2) to strike from the Redacted Superseding Indictment references to him made by McManus as an "assassin" and on the "lam," and (3) to redact from the transcripts references to a pending case in the Southern District of New York in which Segarra is charged with importation of heroin into the United States.

  Capra moved in limine : (1) to preclude admission of the custodial statements of McManus, (2) to redact and exclude from all audio tapes, video tapes and transcripts any reference to Capra's prior criminal history, (3) to redact and eliminate any attributions contained in the transcription of any and all video tapes referring to Capra as "Hooks," *fn15" (4) to permit him to file additional in limine motions as may become appropriate, and (5) to permit him to join in the in limine motions of any co-defendant which are applicable to him.

  By letter, dated 7 April 1995, Porco requested leave to join in the in limine motions of his co-defendants, as appropriate. Accordingly, analysis of the motions in limine will similarly apply to Porco. *fn16"

  Another pre-trial matter addressed in this opinion is a request which was made by the Government to limit the amount of information, regarding prospective jurors, provided during the jury selection process. *fn17"

  A. Severance

  Giampa, Segarra, Capra and Porco requested severance of their trials from the trial of their co-defendants pursuant to Rule 14. Giampa Brief at 10-16; Segarra Brief at 9-12; Capra and Porco Brief at 5-7. Additionally, Segarra, Capra, Porco and Vittorio requested severance of their trials from the trial of McManus pursuant to Bruton. Segarra Brief at 7-8; Capra and Porco Brief at 2-4; 22 February 1995 Vittorio Letter.

  1. Joinder Pursuant to Rule 8

  Rule 8 of the Federal Rules of Criminal Procedure ("Rule 8") permits joinder of offenses and defendants. *fn18" Joinder of offenses and defendants promotes economy of judicial and prosecutorial resources, as well as the public interest in avoiding expensive and duplicative trials. United States v. Lane, 474 U.S. 438, 449, 88 L. Ed. 2d 814, 106 S. Ct. 725, reh'g denied, 475 U.S. 1104, 89 L. Ed. 2d 907, 106 S. Ct. 1507 (1986); United States v. Gorecki, 813 F.2d 40, 42 (3d Cir. 1987); United States v. Jackson, 649 F.2d 967, 973 (3d Cir.), cert. denied, 454 U.S. 1034, 70 L. Ed. 2d 479, 102 S. Ct. 574 (1981). "There is a preference in the Federal system for joint trials of defendants who are indicted together." Zafiro v. United States, 506 U.S. 534, 113 S. Ct. 933, 937, 122 L. Ed. 2d 317 (1993). When distinct offenses have both a logical and temporal relationship, joinder permits the Government to present its evidence in an efficient manner. See United States v. Eisenberg, 773 F. Supp. 662, 696 (D.N.J. 1991).

  Rule 8(b) "provides substantial leeway to prosecutors who would join racketeering defendants in a single trial." United States v. Eufrasio, 935 F.2d 553, 567 (3d Cir). cert. denied, 502 U.S. 925 (1991). It permits joinder of defendants alleged to have participated in the "same series of acts or transactions constituting an offense or offenses." Fed. R.Crim. P. 8(b). Acts or transactions have been considered part of the "same series" when they are performed "pursuant to a common scheme or plan." United States v. Curry, 977 F.2d 1042, 1049 (7th Cir. 1992), cert. denied, U.S. , 122 L. Ed. 2d 737, 113 S. Ct. 1357 (1993); United States v. Bledsoe, 674 F.2d 647, 656 (8th Cir.) (Although conspiracy need not be alleged, "facts must be alleged which at least suggest the existence of an overall scheme encompassing all the defendants and all the charged offenses."), cert. denied, 459 U.S. 1040 (1982); Natanel, 938 F.2d 302 at 307 (joinder proper as long as some common activity binds objecting defendant with all other indictees and that common activity encompasses all charged offenses).

  Similarly, "when the facts underlying each offense are so closely related that proof of such facts is necessary to establish each offense, joinder of defendants and offenses is proper. ... By contrast, when there is no substantial identity of facts or participants between the offenses, there is no 'series' of acts in the Rule 8(b) sense." United States v. Coppola, 788 F.2d 303, 306 (5th Cir. 1986); see also Curry, 977 F.2d at 1049-50 & n.1 ("logical relationship" between counts insufficient for joinder pursuant to Rule 8(b), however, overlap of evidence tends to show "same series"); United States v. Wilson, 894 F.2d 1245, 1253 (11th Cir.) ("Government must demonstrate that the acts alleged are united by some substantial identity of facts and/or participants.") (citation omitted), cert. denied, 497 U.S. 1029 (1990).

  Unlike the requirements of Rule 8(a), the requirements of Rule 8(b) are not met by a mere similarity of offenses committed by two or more defendants.

  
Rule 8(b) requires that there be some common activity involving all of the defendants which embraces all the charged offenses even though every defendant need not have participated in or be charged with each offense.

  Bledsoe, 674 F.2d at 656 (citing United States v. Ford, 632 F.2d 1354, 1372-73 (9th Cir. 1980), cert. denied, 450 U.S. 934 (1981)).

  When the literal requirements of Rule 8 are met, a presumption arises in favor of joinder. See United States v. Swift, 809 F.2d 320, 322 (6th Cir. 1987) (Rule 8(b) "can, and should, be 'broadly construed in favor of initial joinder'...."). Indeed, there is a presumption against severance because it is "assumed that closely related charges are being tried together ...." United States v. Velasquez, 772 F.2d 1348, 1355-56 (7th Cir. 1985), cert. denied, 475 U.S. 1021, 89 L. Ed. 2d 323, 106 S. Ct. 1211 (1986); see United States v. Serubo, 604 F.2d 807, 819 (3d Cir. 1979); United States v. Wofford, 562 F.2d 582, 585 (8th Cir. 1977) ("Ordinarily, if defendants are jointly indicted and similar evidence from the related series of events is used to convict each defendant, the defendants should be tried together."), cert. denied, 435 U.S. 916, 55 L. Ed. 2d 507, 98 S. Ct. 1471 (1978).

  If offenses or defendants have been improperly joined, however, severance is required as a matter of law under Rule 8. United States v. Andrews, 765 F.2d 1491, 1496 (11th Cir. 1985) ("Misjoinder under Rule 8(b) is prejudicial per se...."), cert. denied, 474 U.S. 1064 (1986); Bledsoe, 674 F.2d at 654 (misjoinder is inherently prejudicial); United States v. Vastola, 670 F. Supp. 1244, 1261 (D.N.J. 1987) (citing United States v. Somers, 496 F.2d 723, 729 (3d Cir.), cert. denied, 419 U.S. 832, 42 L. Ed. 2d 58, 95 S. Ct. 56 (1974)).

  When determining whether joinder is appropriate, a court generally looks to the indictment. Eufrasio, 935 F.2d at 567; Curry, 977 F.2d at 1049; Wilson, 894 F.2d at 1253. Nevertheless, "trial judges may look beyond the face of the indictment to determine proper joinder in limited circumstances. Where representations made in pretrial documents other than the indictment clarify factual connections between counts, reference to those documents is permitted." McGill, 964 F.2d at 242 (court referred to proffer by Government of evidence it would adduce at trial).

  In the instant case, Giampa contended "it is clear from the [Redacted Superseding Indictment] that the different conspiracies [were] not, and cannot, be linked to a common transaction which would justify a joint trial of the Defendants." Giampa Brief at 10. Giampa argued that the Redacted Superseding Indictment alleges numerous conspiracies and transactions to which Giampa is not a party. Id. Additionally, Giampa argued the Redacted Superseding Indictment fails to allege that he had any relationship with his co-defendants other than Vittorio and Gaito. Id.

  According to Giampa, the Redacted Superseding Indictment alleges his stepson, Vittorio, knew the other co-defendants and reported to Giampa. Id. at 11. Nonetheless, Giampa argued discovery had not revealed any independent proof that Vittorio or Gaito reported to Giampa, nor that Giampa conspired or acted in concert with any of his other co-defendants. Id. Giampa contended "a joint trial would result in an incurable, prejudicial effect upon his defense. A lengthy trial would undoubtedly focus on the alleged activities of ... Vittorio, Gaito, McManus, Porco, Fatato, Segarra, Dorval and Capra and would have a 'spill over' effect with respect to ... Giampa." Id. at 11-12.

  The Government pointed out, however, that Count One of the Superseding Indictment

  
alleges facts which demonstrate that each defendant was associated with a criminal enterprise known as the "Lucchese Crime Family," and that each defendant committed or agreed to commit predicate acts in furtherance of the conspiracy. Thus, the [Redacted Superseding] Indictment, on its face, alleges facts which are sufficient to support an inference of a single agreement -- which is all that is required to sustain joinder under Rule 8(b).

  Government Brief at 23.

  Indeed, as indicated, Rule 8(b) permits joinder of defendants alleged to have participated in the "same series of acts or transactions constituting an offense or offenses." Fed. R.Crim. P. 8(b). Further, acts or transactions have been considered part of the "same series" when, as here, they were allegedly performed "pursuant to a common scheme or plan." Curry, 977 F.2d at 1049; Natanel, 938 F.2d at 307; Bledsoe, 674 F.2d at 656. Accordingly, joinder of the Defendants in the Redacted Superseding Indictment is proper pursuant to Rule 8(b).

  2. Severance Pursuant to Rule 14

  Rule 14 provides in relevant part:

  
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.

  Fed.R.Crim.P. 14.

  Severance under Rule 14 is within the discretion of the trial court. United States v. McGlory, 968 F.2d 309, 340 (3d Cir.) (citing United States v. Sandini, 888 F.2d 300, 305-06 (3d Cir. 1989), cert. denied, 494 U.S. 1089 (1990)), cert. denied, U.S. , 113 S. Ct. 1388 (1993); United States v. Boyd, 595 F.2d 120, 125 (3d Cir. 1978). Rule 14 authorizes a trial court to sever counts or defendants where, despite an indictment's technical compliance with Rule 8, joinder would result in a "manifestly unfair trial." Vastola, 670 F. Supp. at 1261 (citing United States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981)). In Zafiro, the Supreme Court stated:

  
We believe that, when defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.

  Zafiro, 113 S. Ct. at 938.

  Defendants bear a "heavy burden" when moving for severance under Rule 14. See Eufrasio, 935 F.2d 553 at 568; Sandini, 888 F.2d at 305; United States v. Friedman, 854 F.2d 535, 563 (2d Cir. 1988), cert. denied, 490 U.S. 1004 (1989); United States v. De Peri, 778 F.2d 963, 983 (3d Cir. 1985), cert. denied, 475 U.S. 1110 (1986); United States v. DiPasquale, 740 F.2d 1282, 1293 (3d Cir. 1984), cert. denied, 469 U.S. 1228 (1985). Mere allegations of prejudice are insufficient to meet this burden. Defendants must "pinpoint 'clear and substantial prejudice' resulting in an unfair trial." *fn19" McGlory, 968 F.2d at 340 (quoting Eufrasio, 935 F.2d at 568); see also Gorecki, 813 F.2d at 43; United States v. Wright-Barker, 784 F.2d 161, 175 (3d Cir. 1986). Defendants are not entitled to severance "merely because they may have a better chance of acquittal in separate trials." Zafiro, 113 S. Ct. at 938; see McGlory, 968 F.2d at 340.

  Frequently, where there is a risk of prejudice, it may be cured by proper jury instructions. *fn20" Zafiro, 113 S. Ct. at 939. "'Juries are presumed to follow their instructions.'" Id. (quoting Richardson v. Marsh, 481 U.S. 200, 211, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987)). Accordingly, the question is "whether the jury can reasonably be expected to compartmentalize the evidence against each defendant." McGlory, 968 F.2d at 340 (citing Eufrasio, 935 F.2d at 568). As the jury verdicts reflect, the jury was able to and did in fact compartmentalize the evidence and used the evidence as instructed.

  In the instant action, Giampa, Segarra, Capra and Porco argued severance was proper because a single trial would result in a prejudicial "spillover effect." Giampa Brief at 12; Segarra Brief at 11; see Capra and Porco Brief at 7. Giampa, Segarra, Capra and Porco argued they would be prejudiced because the jury would be unable to compartmentalize the evidence against them while evidence was presented which implicates their co-defendants. Giampa Brief at 12, 15-16; Segarra Brief at 11-12; Capra and Porco Brief at 7.

  The Government argued severance was inappropriate because the Defendants were involved in a single conspiracy and were employed by or associated with the Lucchese Crime Family; an enterprise which was engaged in racketeering activity. Government Brief at 27. According to the Government:

  
Although many of the substantive offenses in the [Redacted Superseding] Indictment charge only some of the Defendants, all of those counts are charged as schemes in connection with the RICO conspiracy. Thus, although each defendant may have had a different role in the RICO conspiracy, all defendants were centrally involved in the conspiracy.

  Id. at 27-28; see United States v. Lane, 474 U.S. 438, 447, 88 L. Ed. 2d 814, 106 S. Ct. 725 (1986)(explaining that joinder of multiple defendants in a single trial is proper under Rule 8 when an indictment "charges all the defendants with one overall count of conspiracy"); United States v. Price, 13 F.3d 711, 719 (3d Cir. 1994) (holding that there was a sufficient basis for joinder of seven defendants in a single trial where "all the defendants were charged with participation in a single overarching drug conspiracy"), cert. denied, U.S. , 115 S. Ct. 1372 (1995); United States v. Thornton, 1 F.3d 149, 152-53 (3d Cir.) (same), cert. denied, U.S. , 126 L. Ed. 2d 433, 114 S. Ct. 483 (1993); United States v. Boylan, 898 F.2d 230, 245 (1st Cir.) ("We have squarely held joinder to be proper where, as here, a single RICO count 'embraces all of the acts and transactions upon which the other ... counts [are] based.'") (quoting United States v. Tashjian, 660 F.2d 829, 833 (1st Cir.), cert. denied, 454 U.S. 1102 (1981)), cert. denied, 498 U.S. 849 (1990).

  As indicated, the Redacted Superseding Indictment charges all Defendants with violations of RICO in Count One. Superseding Indictment, Count 1, P 3. In support of their motions, Giampa, Segarra, Capra and Porco essentially contended that severance was proper because the Defendants were not similarly charged in each count of the Redacted Superseding Indictment. As such, they did little more than make conclusory allegations of prejudice and, accordingly, failed to meet their burden of pinpointing clear and substantial prejudice which would result from a joint trial. McGlory, 968 F.2d at 340.

  In this case, the danger of a possibly prejudicial "spillover effect" was avoided by an appropriate instruction. The jury was instructed to consider separately the evidence against each defendant on each count. Trial Tr. at 3268. This case was not one where "the risk that the jury [would] not, or [could not], follow instructions [was] so great, and the consequence of failure so vital to the defendant, that the practical and human limitations cannot be ignored." Bruton, 391 U.S. at 135. Because there was not a risk that a joint trial would compromise a specific trial right or prevent the jury from making a reliable judgment about guilt, Zafiro, 113 S. Ct. at 937, the motions for severance, pursuant to Rule 14, by Giampa, Segarra, Capra and Porco were denied. *fn21"

  Segarra, Capra, Porco and Vittorio requested severance of their trials from the trial of McManus pursuant to Bruton. Segarra Brief at 7-8; Capra and Porco Brief at 2-4; 22 February 1995 Vittorio Letter. The requests for severance from the trial of McManus stemmed from a statement McManus gave to Agents of the United States Customs Service (the "Customs Agents") on 31 March 1994, which referenced certain of his co-defendants. Segarra Brief at 7; Capra and Porco Brief at 3.

  In Bruton, the Supreme Court held that a defendant's rights under the Confrontation Clause of the Sixth Amendment are violated when a non-testifying co-defendant's confession names him or her as a participant in a crime, despite a jury instruction that the confession was only to be considered against the declarant. 391 U.S. at 137. The Court explained:

  
There are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a co-defendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.

  391 U.S. at 135-36 (citations omitted).

  The statement at issue is different from the one faced by the Court in Bruton. The statement from McManus was redacted by the Government (the "First Redacted McManus Statement") so that McManus' co-defendants were each referenced by a random letter of the alphabet. See Exhibit A to the Government Brief. Nonetheless, Segarra, Capra and Porco argued the Government's redaction was inadequate to protect their Sixth Amendment right of confrontation as articulated in Bruton. Segarra Brief at 7 ("Even a redacted statement would still create an inevitable association with [Segarra] which in this case is compelling in that all Defendants are charged in a RICO conspiracy. The ease with which a jury could fill in the blanks compels a severance."); Capra and Porco Brief at 3 ("If any reference in McManus's statement to Capra and Porco is omitted, when linked to any other evidence the effect upon the jury would be the same as if no redaction had occurred at all.").

  As the Government pointed out, the Supreme Court in Richardson, 481 U.S. at 206-07, explained that Bruton was a "narrow exception" to the assumption that juries can and generally do follow limiting instructions. Government Brief at 29-30 & n.9. The Richardson Court explained:

  
The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process. On the precise facts of Bruton, involving a facially incriminating confession, we found that accommodation inadequate.... The calculus changes when confessions that do not name the defendant are at issue.... We hold that the Confrontation Clause is not violated by the admission of a non-testifying co-defendant's confession with the proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.

  Richardson, 481 U.S. at 211.

  According to the Richardson Court, when faced with a statement which, like the statement at issue, is not "facially incriminating," but is potentially incriminating by inference, a jury instruction

  
may well be successful in dissuading the jury from entering onto the path of inference in the first place.... While it may not always be simple for the ... jury to obey the instruction that they disregard an incriminating inference, there does not exist the overwhelming probability of their inability to do so that is the foundation of Bruton's exception to the general rule.

  Id. at 208. Nevertheless, the Court "expressed no opinion on the admissibility of a confession in which the defendant's name has been replaced with a symbol or neutral pronoun." Id. at 211 n.5.

  The Circuits have, however, held redacted statements, which do not on their face incriminate the defendant, can be admitted with a limiting instruction. See, e.g., United States v. Chrismon, 965 F.2d 1465, 1472-73 (7th Cir. 1992) (holding that admission of statement with references to "we" or "they," which did not directly implicate defendant, did not violate defendant's confrontation rights); United States v. Washington, 293 U.S. App. D.C. 208, 952 F.2d 1402, 1405 (D.C. Cir. 1991) (holding that when "all references to the defendant in a co-defendant's statement are replaced with indefinite pronouns or other general terms, the Confrontation Clause is not violated by the redacted statement's admission if, when viewed together with other evidence, the statement does not create an inevitable association with the defendant, and a proper limiting instruction is given"), cert. denied, 503 U.S. 1009 (1992); United States v. Donahue, 948 F.2d 438, 444 (8th Cir. 1991) (holding that two or three references to "everyone" and "they" in testimony about confession did not violate Bruton because testimony did not implicate the defendant expressly, nor was it incriminating on its face); United States v. Williams, 936 F.2d 698, 701 (2d Cir. 1991) ("If the confession, when ... viewed [in isolation from other evidence], does not incriminate the defendant, then it may be admitted with a proper limiting instruction even though other evidence in the case indicates that the neutral pronoun is in fact a reference to the defendant."); United States v. Vasquez, 874 F.2d 1515, 1518 (11th Cir. 1989) ("[A] redacted confession only violates Bruton if it compels a direct, rather than indirect, implication of the complaining defendant."), cert. denied, 493 U.S. 1046, 107 L. Ed. 2d 840, 110 S. Ct. 845 (1990).

  Segarra relied on United States v. Long, 900 F.2d 1270, 1279 (8th Cir. 1990), United States v. Petit, 841 F.2d 1546, 1550 (11th Cir.), cert. denied, 487 U.S. 1237 (1988) and United States v. Pendegraph, 791 F.2d 1462 (11th Cir.), cert. denied, 479 U.S. 869 (1986). These cases, however, are distinguishable from the instant action. They involve situations where the jury was either invited to speculate as to the identity of the referenced individual or despite the redaction the jury could easily identify the defendant. Further, more recent cases in the Eight and Eleventh Circuits, have approved the admission of redacted statements such as the one at issue.

  The Eighth Circuit explained in Donahue, that in Donahue unlike Long, "there was no improper linkage between the statement and [defendant], nor was there an improper invitation to speculate." Donahue, 948 F.2d at 444. In Petit, although references in a confession to "unloaders" and to a "friend" did not directly implicate the defendant, the court held that, based on other evidence, the reference to a "friend" "could reasonably be understood only as referring to [the defendant]. 841 F.2d at 1556 (emphasis added). According to the Petit court, such references "sufficiently inculpated [the defendant] so as not to fall under the clear exception to Bruton provided by the Court's decision in Richardson." Id. Moreover, the Eleventh Circuit in Vasquez, citing Pendegraph, explained: "The standard in this circuit, which is consistent with [Richardson ], is that a redacted confession only violates Bruton if it compels a direct, rather than indirect, implication of the complaining defendant." Vasquez, 874 F.2d at 1518.

  As mentioned, the First Redacted McManus Statement did not directly implicate any of McManus' co-defendants. It replaced named individuals with letters of the alphabet ("A" through "F") which had no direct connection to the Defendants. Moreover, by letter, dated 25 April 1995, the Government submitted a further redaction of the First Redacted McManus Statement (the "Second Redacted McManus Statement"). The Second Redacted McManus Statement only made reference to an "individual" or "individuals." *fn22"

  Neutral references in a statement can be admitted without offending a defendant's confrontation rights. United States v. Evangelista, 813 F. Supp. 294, 300 (D.N.J. 1993) (adopting the reasoning of the Second Circuit in Williams). This appears to be an appropriate approach and is consistent with Bruton and Richardson. In addition, the jury in this case heard evidence of other individuals with whom McManus was involved. This further distanced his co-defendants from the Second Redacted McManus Statement. See, e.g. 294 TR at 13-15 (McManus explaining some of the hierarchy in the Lucchese Crime Family and mentioning individuals other than the Defendants). Accordingly, the motions for severance from the trial of McManus, pursuant to Bruton, were denied.

  Segarra also moved for severance of his trial from the trial of McManus because he alleged McManus had exculpatory testimony to offer on his behalf. Segarra Brief at 7-8. The Third Circuit has articulated four factors which should be analyzed in determining whether a defendant should be granted severance: "(1) What is the likelihood that co-defendants will testify? (2) What is the degree to which such testimony would be exculpatory? (3) What is the degree to which the testifying co-defendants could be impeached? (4) What is the effect on judicial economy?" United States v. Gonzalez, 918 F.2d 1129, 1137 (3d Cir. 1990) (citing United States v. Boscia, 573 F.2d 827, 832 (3d Cir.), cert. denied, 436 U.S. 911 (1978)), cert. denied, 498 U.S. 1107 (1991).

  "'Bare assertions that co-defendants will testify are insufficient.'" Id. (quoting Boscia, 573 F.2d at 832). In the instant action, Segarra had offered "nothing more than a bare, unattributed assertion that ... McManus might testify...." Government Brief at 29; see Segarra Brief at 8 ("McManus can exculpate [Segarra] and would testify at a separate trial that [Segarra] was not involved in the firearm related offenses charged in the [Redacted Superseding] Indictment."). Segarra failed to demonstrate the "likelihood" of McManus testifying if a severance was granted. Boscia, 573 F.2d at 832.

  As for the exculpatory nature of the testimony, it was weak at best. Segarra relied upon a statement made by McManus, that "he had no direct knowledge that [Segarra] supplied the MAC-10 passed to ... Giampa." Segarra Brief at 8 (citing Exhibit A of the Culleton Aff.). The full sentence, which Segarra relied upon states: "McManus said that [Segarra] was the person to contact for firearms, but he had no direct knowledge that [Segarra] supplied the MAC-10 passed to ... Giampa." Culleton Aff., Exhibit A. Also, it appeared that Segarra had similarly failed to make any showing regarding the degree to which McManus may be subject to impeachment nor had he adequately shown how separate trials would further judicial economy. Boscia, 573 F.2d at 832.

  Segarra had failed to make a proper showing that severance of his trial from the trial of McManus was warranted. Accordingly, his motion for severance of his trial from the trial of McManus was denied.

  Gaito moved for dismissal of the Redacted Superseding Indictment because of allegedly "outrageous" conduct on the part of the Government. Gaito Brief at 1-4. Gaito alleged he was not involved in illegal activity when approached by Sabol, but instead was digging ditches to support his family. Id. at 1. Gaito alleged he began selling, at the urging of Sabol and a Federal agent, "distressed merchandise," and was "repeatedly reassured ... [that it] was a legitimate enterprise." Id. at 2.

  Gaito further alleged that after becoming financially dependent on Sabol, Gaito began running errands for Sabol. Id. "Some of these errands were innocuous ... other errands, the Government contends, were not...." Id.

  According to the Government:

  
Although Gaito portrays himself as merely a receiver and vendor of 'distressed,' viz., stolen, merchandise, the record is clear that it was Gaito who, acting alone, or in concert with other Defendants, 1) accepted $ 5,000 from Sabol on November 19, 1993, for the purchase of one ounce of heroin; 2) delivered one ounce of heroin to Sabol on November 22, 1993; 3) accepted $ 1400 from Sabol for silencer-equipped weapons on November 24, 1993; 4) delivered a .38 caliber revolver to Sabol on December 13, 1993; 5) delivered a .9mm machine gun to Sabol on December 15, 1993; and attended a meeting with Sabol to discuss trafficking kilogram quantities of heroin and cocaine on December 15, 1993.

  Government Brief at 15.

  "In certain extreme cases it is possible that 'the conduct of law enforcement agents [may be] so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction.'" United States v. Gonzales, 927 F.2d 139, 144 (3d Cir. 1991) (quoting United States v. Russell, 411 U.S. 423, 431-32, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973)). The Circuit explained, however, that "we must not be quick to find government conduct that outrageous for, ... 'we must necessarily exercise scrupulous restraint before we denounce law enforcement conduct as constitutionally unacceptable....'" Gonzales, 927 F.2d at 144 (quoting United States v. Jannotti, 673 F.2d 578, 607 (3d Cir.), cert. denied, 457 U.S. 1106, 73 L. Ed. 2d 1315, 102 S. Ct. 2906 (1982)).

  In Gonzales, the Circuit rejected a claim of "outrageous" governmental conduct stemming from the use of a paid informant in a 'reverse sting' operation in which Government agents posed as sellers of narcotics. Id. Notwithstanding Gaito's allegations, the observation of the Gonzales Court is just as apt in the instant motion: "We are at a loss to understand what the government did that was outrageous...." Id. Gaito's motion to dismiss the Redacted Superseding Indictment for "outrageous" governmental conduct was denied.

  C. Motions to Dismiss the Redacted Superseding Indictment for Failure to Properly Allege the Crimes Charged

  Segarra, Capra, Porco and Vittorio sought dismissal of the Redacted Superseding Indictment because it did not properly plead the crimes charged. Segarra Brief at 2-3; Capra and Porco Brief at 8-12; 22 February 1995 Vittorio Letter.

  Capra and Porco conceded that in the Third Circuit, "to be convicted of a RICO conspiracy, the defendant need only to agree to the commission of the predicate acts and need not agree to commit those acts personally." Capra and Porco Brief at 9 (citing United States v. Adams, 759 F.2d 1099, 1116 (3d Cir.), cert. denied, 474 U.S. 971, 88 L. Ed. 2d 321, 106 S. Ct. 336 (1985)). Nonetheless, Segarra, Capra and Porco requested a departure from Third Circuit law: "It is respectfully submitted that the requirement that the defendant must agree to personally commit the predicate acts is the more well reasoned dictate." Id. ; see Segarra Brief at 3. Such departure from Circuit precedent was not appropriate.

  A criminal indictment serves the limited function of putting a defendant on notice of the offenses he or she is charged with and protecting him or her against further prosecution for the same crime. Hamling v. United States, 418 U.S. 87, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974); United States v. Sebetich, 776 F.2d 412, 427 (3d Cir. 1985), cert. denied, 484 U.S. 1017, 98 L. Ed. 2d 673, 108 S. Ct. 725 (1988); United States v. Michael, 456 F. Supp. 335, 346 (D.N.J. 1978), aff'd, 605 F.2d 1198 (3d Cir. 1979), cert. denied, 444 U.S. 1032, 62 L. Ed. 2d 667, 100 S. Ct. 702 (1980).

  The Circuit has held an indictment is sufficient if

  
it includes the elements of the offense intended to be charged, apprises the defendant of what he or she must be prepared to meet at trial, and enables the defendant to show with accuracy to what extent he or she may plead an acquittal or conviction as a bar to subsequent prosecution. ... "No greater specificity than [tracking] the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution."

  United States v. Shirk, 981 F.2d 1382, 1389 (3d Cir. 1992) (quoting United States v. Olatunji, 872 F.2d 1161, 1166 (3d Cir. 1989)), vacated on other grounds, U.S. , 114 S. Ct. 873 (1994); see also United States v. Debrow, 346 U.S. 374, 377-78, 98 L. Ed. 92, 74 S. Ct. 113 (1953) (indictment sufficient when the charges "followed substantially the wording of the statute, which embodies all the elements of the crime, and such charges clearly inform the defendants of that with which they were accused, so as to enable them to prepare their defense and to plead the judgment in bar of any further prosecutions for the same offense.")

  In the instant action, the Redacted Superseding Indictment tracks the relevant statutory language of the crimes charged and includes sufficient facts to enable the Defendants to prepare their defense. See Debrow, 346 U.S. at 377-78; Shirk, 981 F.2d at 1389; Olatunji, 872 F.2d at 1166. The Redacted Superseding Indictment "includes the elements of the offense[s] ... charged, apprises the Defendant[s] of what [they] must be prepared to meet at trial, and enables the Defendant[s] to show with accuracy to what extent [they] may plead an acquittal or conviction as a bar to subsequent prosecution." Shirk, 981 F.2d at 1389. Accordingly, the motions to dismiss the Redacted Superseding Indictment for failure to plead the crimes charged were denied.

  D. Motions to Strike Surplusage

  Vittorio and Segarra moved to strike language from the Redacted Superseding Indictment pursuant to Rule 7(d) of the Federal Rules of Criminal Procedure ("Rule 7(d)"). Vittorio Brief at 3-6; Segarra Brief at 5-6.

  "The court on motion of the defendant may strike surplusage from the indictment or information." Fed.R.Crim.P. 7(d). "The purpose of [this rule] is to protect a defendant against prejudicial allegations that are neither relevant nor material to the charges made in the indictment." United States v. Gatto, 746 F. Supp. 432, 455 (D.N.J. 1990), rev'd on other grounds, 924 F.2d 491 (3d Cir. 1991); see United States v. Fahey, 769 F.2d 829, 841-42 (1st Cir. 1985).

  "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 or prejudicial matter." Gatto, 746 F. Supp. at 455; see Eisenberg, 773 F. Supp. at 700; Vastola, 670 F. Supp. at 1254. "It is an exacting standard which is met only in rare cases." Eisenberg, 773 F. Supp. at 700; see United States v. Wecker, 620 F. Supp. 1002, 1006 (D.Del. 1985); United States v. Fischbach and Moore, Inc., 576 F. Supp. 1384, 1398 (W.D.Pa. 1983).

  "If the Government intends to properly prove a matter at trial, then it is proper for the indictment to include those matters, even if they are not 'essential elements' of the crime charged." United States v. Hill, 799 F. Supp. 86, 89 (D.Kan. 1992). Furthermore, language in an indictment will not be stricken where, "while not essential to the charges," it is "in a general sense relevant to the overall scheme charged in the indictment." Wecker, 620 F. Supp. at 1006; see Hill, 799 F. Supp. at 89 ("It is proper for the indictment to contain relevant background information.").

  Vittorio sought to strike references in the Redacted Superseding Indictment concerning the existence of a prior weapons charge, his presence in jail for such charge and McManus' statement that he "shoots people." Vittorio Brief at 3, 6. Segarra sought to strike statements by McManus in the Redacted Superseding Indictment that he "was an assassin who did a lot of work," *fn23" that he was on the "lam" and that he "loved silencer-equipped handguns." Segarra Brief at 5-6; Count One, P 35.

  The Government contended the language which Vittorio and Segarra sought to strike was "highly relevant and [would] constitute an essential part of the Government's proof [] at trial." Government Brief at 40. According to the Government, the challenged language "speaks directly to the RICO conspiracy; it shows the relationship between the Defendants and ... Sabol and it evidences a willingness on the part of defendants to engage in illegal acts with Sabol." Id. The Government also argued that the challenged language provides important background information concerning "knowledge, experience and familiarity with unlawful weapons. *fn24" Id. at 41.

  The language Vittorio and Segarra sought to strike from the Redacted Superseding Indictment was "relevant to the overall scheme charged in the [Redacted Superseding] Indictment." Wecker, 620 F. Supp. at 1006; see Hill, 799 F. Supp. at 89. Additionally, it appeared the Government would attempt to prove the matters contained in the challenged language at trial. Furthermore, a jury instruction stating the Redacted Superseding Indictment was not evidence against Defendants, and afforded no inference of guilt, protected against improper reliance by the jury on the Redacted Superseding Indictment.

  In light of the apparent relevance of the challenged language to the Redacted Superseding Indictment, it was not deemed as surplusage. Accordingly, the motions to strike surplusage were denied.

  E. Motion by McManus to Suppress the Second Redacted McManus Statement

  McManus moved to suppress the Second Redacted McManus Statement which he gave to the Customs Agents on 31 March 1994. McManus Brief at 3-7; Affidavit in Support of Pre-Trial Motions of McManus (the "McManus Aff."), attached as Exhibit A to the Stiso Aff. McManus contended that he never was apprised of his Miranda25 rights, and even if given the appropriate language, he did not voluntarily waive such rights. McManus Brief at 4-5.

  McManus alleged that on 31 March 1994 at approximately 4:00 o'clock p.m., while driving in Bronx, New York, he was pulled over by two vehicles. McManus Aff., PP 2-3. McManus alleged he was 'swarmed by 8 to 10 [Customs] Agents, all of whom, to the best of [his] recollection had there (sic) weapons drawn." Id., P 4. McManus alleged he was dragged from his vehicle while a gun was pressed against his head, was thrown against the trunk of his automobile and handcuffed by three to four Customs Agents. Id., P 6.

  According to McManus he was then thrown into a van, together with four Customs Agents. Id., P 6. McManus alleges two Customs Agents drove off in his automobile. Id., P 7. After the van traveled approximately one quarter of a mile, McManus alleged Customs Agents told him he was free to leave. Id., P 8. According to McManus, the Customs Agents

  
actions [of the Customs Agents] were not consistent with their words. I asked for my vehicle and they refused to give it back, stating 'we don't know where it is.' I asked them to remove the cuffs and they refused. In fact, none of the [Customs] Agents exited the vehicle, so as to clear a path for my alleged departure, ... two [Customs] Agents were seated next to me blocking the only exit from the rear seat of the van. The door of the van was never opened.

  Id.

  McManus alleged the van was then driven and he was taken to the Cross Bronx Expressway, on the way to New Jersey. Id., P 9. Throughout the trip, McManus alleged he was "verbally attacked" by the Customs Agents. Id., PP 9-10. McManus alleged he was taken to a building in New Jersey, and placed in a conference room with approximately twelve Customs Agents. Id., P 12.

  McManus alleged:

  
I repeatedly asked the [Customs] Agents to release me, I was laughed at and told 'you're not going anywhere.' . . . One [Customs] Agent placed a stack of papers in front of me and said the only way I was leaving was if I signed the papers. This was approximately 2 1/2 hours after my arrest. I did not read these papers nor were they explained to me. I was never read my Miranda warnings.

  Id., P 13. According to McManus, "some seven hours after [his] arrest [he] was finally allowed to leave the building." Id., P 14.

  1. Miranda

  The Miranda Court held that an individual questioned by law enforcement officers after being "taken into custody or otherwise deprived of his [or her] freedom of action in any significant way" must first "be warned that he [or she] has a right to remain silent, that any statement he [or she] does make may be used as evidence against him [or her], and that he [or she] has a right to the presence of an attorney, either retained or appointed." 384 U.S. at 444; accord, e.g., Stansbury v. California, U.S. , 128 L. Ed. 2d 293, 114 S. Ct. 1526, 1528 (1994) (per curiam); Berkemer v. McCarty, 468 U.S. 420, 428-29, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984).

  "[The] obligation to administer Miranda warnings attaches, however, 'only where there has been such a restriction on a person's freedom as to render him [or her] "in custody."'" Stansbury, 114 S. Ct. at 1528 (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977) (per curiam)) ; see also, e.g., Illinois v. Perkins, 496 U.S. 292, 296, 110 L. Ed. 2d 243, 110 S. Ct. 2394 (1990) ("Miranda was meant to preserve the privilege [against self-incrimination] during 'incommunicado interrogation of individuals in a police-dominated atmosphere.' ... 'Miranda reqiures that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.'" (citations omitted)); Roberts v. United States, 445 U.S. 552, 560, 63 L. Ed. 2d 622, 100 S. Ct. 1358 (1980) (" Miranda 's requirement of specific warnings ... does not apply outside the context of the inherently coercive custodial interrogations for which it was designed."); Beckwith v. United States, 425 U.S. 341, 345, 48 L. Ed. 2d 1, 96 S. Ct. 1612 (1976) ("The narrow issue before the Court in Miranda was ... 'the admissibility of statements obtained from an individual who is subjected to custodial police interrogration.' [Miranda F. Supp.] 384 U.S. at 439.... In subsequent decisions, the Court specifically stressed that it was the custodial nature of the interrogation which triggered the necessity for adherence to the specific requirements of ... Miranda...." (citations omitted)); United States v. Walton, 10 F.3d 1024, 1028 (3d Cir. 1993) (explaining "this is not a Miranda case" because the conversation the defendant had with Federal agents "occurred in a noncustodial setting").

  According to McManus "assuming arguendo that [he] was read his Miranda warnings, it must further be established that any statements made were voluntary." *fn26" McManus Brief at 5.

  2. Voluntariness of Statement

  
When a confession challenged as involuntary is sought to be used against a criminal defendant at his [or her] trial, he [or she] is entitled to a reliable and clear cut determination that the confession was in fact voluntarily rendered. Thus, the prosecution must prove by at least a preponderance of the evidence that the confession was voluntary.

  Lego v. Twomey, 404 U.S. 477, 489, 30 L. Ed. 2d 618, 92 S. Ct. 619 (1972); see Colorado v. Connelly, 479 U.S. 157, 169, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986).

  Where voluntariness is concerned, "the question in each case is whether the defendant's will was overborne at the time he [or she] confessed." Haynes v. Washington, 373 U.S. 503, 513, 10 L. Ed. 2d 513, 83 S. Ct. 1336 (1963); see Lynumn v. Illinois, 372 U.S. 528, 534, 9 L. Ed. 2d 922, 83 S. Ct. 917 (1963). "Whether a confession is a product of coercion may only be determined after a careful evaluation of the totality of all the surrounding circumstances.... " United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991); See Miller v. Fenton, 796 F.2d 598, 604 (3d Cir.) ("To determine the voluntariness of a confession, the court must consider the effect that the totality of the circumstances had upon the will of the defendant."), cert. denied, 479 U.S. 989 (1986).

  The factors to be considered include:

  
the youth of the accused; his [or her] lack of education or his [or her] low intelligence; the lack of any advice to the accused of his [or her] constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment such as the deprivation of food or sleep.

  Miller, 796 F.2d at 604 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973)); see Anderson, 929 F.2d at 99 (listing among factors to be considered: "the accused's characteristics, the conditions of interrogation, and the conduct of law enforcement officials").

  The Circuit has emphasized

  
that the test for voluntariness is not a but for test: we do not ask whether the confession would have been made in the absence of the interrogation. Few criminals feel impelled to confess to the police purely out of their own accord, without any questioning at all.

  Miller, 796 F.2d at 604; see Stein v. New York, 346 U.S. 156, 186, 97 L. Ed. 1522, 73 S. Ct. 1077 (1953) ("Of course, these confessions were not voluntary in the sense that petitioners wanted to make them or that they were completely spontaneous.... But in this sense, no criminal confession is voluntary.).

  "It is well established that an involuntary confession may result from psychological, as well as physical, coercion." Miller, 796 F.2d at 603; see Arizona v. Fulminante, 499 U.S. 279, 287, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991) ("Coercion can be mental as well as physical.... "). The Supreme Court, however, has stated, with respect to its involuntary confession jurisprudence: "While each confession case has turned on its own set of factors justifying the conclusion that police conduct was oppressive, all have contained a substantial element of coercive police conduct." Connelly, 479 U.S. at 163-64. Moreover, "while a per se involuntariness rule applies when an interrogation is accompanied by physical violence, no such rule applies when the alleged coercion is psychological." Miller, 796 F.2d at 604 (citations omitted); see Stein, 346 U.S. at 182, 184.

  "That a law enforcement officer promises something to a person suspected of a crime in exchange for the person's speaking about the crime does not automatically render inadmissible any statement obtained as a result of that promise.... It is clear that the voluntariness of a confession does not depend solely upon whether it was made in response to promises. Instead, we must determine voluntariness by judging the totality of the circumstances." Walton, 10 F.3d at 1028 (citing Fulminante, 499 U.S. at 284-85).

  "The real issue is not whether a promise was made, but whether there was a causal connection between [the officer's] assurance and [the defendant's] statement." 10 F.3d at 1029.

  
Causation in this sense is not "but for" causation ... but requires an inquiry into "whether [the agent's] statements were so manipulative or coercive that they deprived [the defendant] of his ability to make an unconstrained, autonomous decision to confess." Again, the focus of our inquiry is on the totality of the circumstances....

  Id. at 1029-30 (quoting Miller, 796 F.2d at 605).

  In Walton, the Third Circuit found the defendant's statement to Federal agents was not voluntary because the defendant was "assured ... in advance that his statement would not be used against him." 10 F.3d at 1031.

  In this case, the Government contended it

  
will prove, through the testimony of law enforcement personnel, that [McManus] was advised of his constitutional rights and knowingly and voluntarily waived them. Furthermore, the Government will demonstrate that [the Customs] Agents who interviewed McManus did not coerce him to make any statements. The facts will show that [McManus] voluntarily waived his rights, chose to speak to [the Customs] Agents, and chose to cooperate with [the Customs] Agents.... Although [McManus] initially declined to sign a Miranda Waiver Form, he soon changed his mind and waived his Miranda rights in writing.

  Government Brief at 34-35.

  At the 26 April Hearing, Customs Agent James Delia ("Agent Delia") testified that on 31 March 1994, after conducting surveillance of McManus, the Customs Agents planned to stop his automobile while McManus was in route to work. 26 April Hearing Tr. at 94. Agent Delia testified that the plan was to approach McManus, briefly detain him, handcuff him and search him for weapons. Id. at 94-95. When it was determined that McManus was not a threat to his or the other Customs Agents' safety, Agent Delia testified he would then attempt to recruit McManus as an informant. Id. at 93-95.

  Agent Delia testified that after stopping McManus in his automobile, McManus was handcuffed and driven five blocks to a restaurant parking lot, which was the first available place where he could speak to McManus. Id. at 104. Agent Delia explained that it was necessary to move McManus from the initial location because some twenty-five to thirty youths in a park across the street began approaching the scene. *fn27" Id. at 99.

  Agent Delia testified that once at the restaurant parking lot, and informed that McManus was unarmed, he instructed the Customs Agents to remove McManus' handcuffs. Id. at 105. Agent Delia instructed McManus that he (Agent Delia) had been involved in an investigation of McManus, Vittorio and others and that McManus was not under arrest and was free to leave at anytime. Id. at 106. Agent Delia testified that he repeated that McManus was free to leave at anytime at least three times during their conversation. Id.

  Agent Delia testified he informed McManus that he had McManus recorded on some videotapes and audio tapes and would like for him to come back with the Customs Agents to the Newark Office of the United States Customs Service (the "Newark Office") to review such tapes. Id. Agent Delia testified he explained to McManus that he did not have to say anything in regard to the audio or videotapes and if McManus wished he could review the tapes and leave. Id. McManus agreed to go with the Customs Agents to the Newark Office. Id.

  Agent Delia began conducting the interview of McManus, which was summarized in the Second Redacted McManus Statement. Id. at 116. At some point the interview was stopped and McManus was asked for his consent to search his automobile. Id. at 116-17. Agent Delia testified he read McManus a consent to search form, marked as exhibit SH-2, which McManus signed. Id. at 117. Agent Delia testified that, before resuming the interview, McManus agreed to initial the Miranda waiver form to indicate he was informed of his rights. Id.

  McManus presented one witness, John DeCelestino ("DeCelestino"), a friend of McManus, who testified he viewed the Customs Agents stop of McManus' automobile from approximately fifteen to twenty feet away. Id. at 168-71. DeCelestino's version of the events surrounding the stopping of McManus' automobile and movement from the scene was akin to the account alleged by McManus in his affidavit requesting a hearing. See supra at 66.

  Even assuming, however, that McManus was initially placed in custody, when his automobile was stopped, McManus offered no evidence to challenge Agent Delia's testimony that he was thereafter repeatedly informed that he was free to leave. *fn28" McManus provided no evidence, through cross examination or otherwise, that his statement was anything but voluntary. Further, McManus provided no evidence, nor did it appear to be the case, that, after a review of the totality of the circumstances, his "will was overborne," Haynes, 373 U.S. at 513, or that he was deprived "'of his ability to make an unconstrained, autonomous decision.'" Walton, 10 F.3d at 1030 (quoting Miller, 796 F.2d at 605).

  The initialling of the Miranda waiver form by McManus and his signing of the consent to search form were inconsistent with a finding that his will was overborne. Similarly, after an initial brief period of detention, McManus was never again handcuffed and was repeatedly told that he was free to leave. Based on the totality of the circumstances, it appeared that McManus had the "ability to make an unconstrained, autonomous decision." Walton, 10 F.3d at 1030 (quoting Miller, 796 F.2d at 605). Moreover, it appeared that there was no "substantial element of coercive ... conduct," that the Supreme Court explained is always present in cases which find involuntariness. Connelly, 479 U.S. at 163-64 (explaining that with respect to its involuntary confession jurisprudence: "While each confession case has turned on its own set of factors justifying the conclusion that police conduct was oppressive, all have contained a substantial element of coercive police conduct.").

  Based on a review of the totality of the circumstances, it appeared that McManus' "will was [not] overborne" when he gave the statement to the Customs Agents. Haynes, 373 U.S. at 513. The Government established by a preponderance of the evidence that the statement was given by McManus voluntarily. Walton, 10 F.3d at 1028. Accordingly, the motion by McManus to suppress the Second Redacted McManus Statement was denied.

  Vittorio and Capra moved in limine to exclude the Second Redacted McManus Statement. Vittorio In Limine Brief at 15; Capra In Limine Brief at 1-2. Vittorio argued: "To date, the Government has provided no proposed redaction of [McManus'] statement. The Confrontation Clause of the United States Constitution bars the admission at a joint trial if the statement of a non-testifying defendant which incriminates another defendant." Vittorio In Limine Brief at 15 (citing Cruz v. New York, 481 U.S. 186, 193-94, 95 L. Ed. 2d 162, 107 S. Ct. 1714 (1987) and Bruton). Additionally, Capra argued "in an attempt to exculpate himself, [McManus] implicated others, including ... Capra and ... Porco." Capra In Limine Brief at 1 (citing Williamson v. United States, U.S , 114 S. Ct. 2431 (1994) and attaching to brief an unredacted version of McManus' statement).

  It appeared, however, that at the time of Vittorio's submissions, dated 31 March 1995, and Capra's submissions, dated 7 April 1995, they were already in possession of the First Redacted McManus Statement. As mentioned, the First Redacted McManus Statement was attached as Exhibit A to the Government Brief, which is dated 17 February 1995. Moreover, as discussed, the Government had since made further redactions of the Statement given by McManus to the Customs Agents, as demonstrated by the Second Redacted McManus Statement.

  In light of the Second Redacted McManus Statement, there was no basis for either Vittorio or Capra to challenge its admission. The Second Redacted McManus Statement makes no references, either directly or indirectly, to any of McManus' co-defendants. The Second Redacted McManus Statement only refers to "individual(s)." See supra note 22. As discussed, such redaction eliminates any Bruton argument that might be advanced. See supra at 51-57. Further, because it could no longer be said that by his statement McManus had inculpated his co-defendants, arguemnts based on Williamson, were similarly misplaced. Accordingly, the in limine motions of Vittorio and Capra to exclude the Second Redacted McManus Statement were denied.

  G. Motion to Dismiss the Redacted Superseding Indictment for Failure to Bring McManus Before a Magistrate Judge Without "Unnecessary Delay"

  McManus moved to dismiss the Redacted Superseding Indictment or in the alternative to suppress any evidence seized by Customs Agents on 31 March 1994 because he was not brought before a magistrate judge in a timely manner. McManus Brief at 9. Rule 5(a) provides: "An officer making an arrest under a warrant ... or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available Federal magistrate judge....": Fed.R.Crim.P. 5(a).

  McManus contended the Customs Agents never brought him before a magistrate judge. McManus Brief at 9. McManus argued: "Instead the [Customs] Agents decided to 'un-arrest' him, despite the seizure of incriminating evidence, because the Government thought they had 'turned' [him] into a cooperating witness." McManus Brief at 9.

  The Government argued that although the Customs Agents had probable cause to arrest McManus, and even though McManus may have briefly been in the custody of the Customs Agents on 31 March 1994, "he was neither placed under arrest nor charged with any crime at that time." Government Brief at 36. According to the Government, " shortly after McManus was approached and detained ... [the Customs] Agents repeatedly advised McManus that he was not under arrest, and was free to leave at any time." *fn29" Id. (emphasis in original). The Government argued, therefore, that Rule 5(a) was inapplicable and McManus' motion should be denied.

  At the 26 April Hearing Agent Delia testified that, as per his instructions, McManus was never placed under arrest on 31 March 1994. 26 April Hearing Tr. at 94, 102. McManus provided no evidence at the 26 April Hearing that he was ever placed under arrest. Accordingly, McManus' motion to dismiss the Redacted Superseding Indictment for failure to bring him before a magistrate judge without "unnecessary delay," pursuant to Rule 5(a), was denied.

  H. Motion to Suppress the Fruits of the Lanteri Wiretap

  Vittorio moved to suppress evidence obtained through the use of the Lanteri Wiretap. Vittorio Brief at 10-13. Vittorio argued an order entered by Judge Harold A. Ackerman ("Judge Ackerman"), on 13 February 1994 (the "13 February 1994 Order"), authorizing the Lanteri Wiretap, was improper because it was in violation of the procedure outlined in 18 U.S.C. § 2518(3). Id. at 10.

  Section 2518(3) of Title 18 permits a Federal judge to enter an ex parte order authorizing the interception of wire communications "within the territorial jurisdiction of the court in which the judge is sitting.... " 18 U.S.C. § 2518(3). Vittorio argued the 13 February 1994 Order was improper because Judge Ackerman, sitting in Newark, New Jersey, authorized the interception of a telephone line originating in the Southern District of New York. Vittorio Brief at 10.

  As the Government pointed out, however, Vittorio conceded that the Federal courts which have addressed the issue have held that interception of wire communications, for the purposes Section 2518(3), occurs not only where the wiretapped telephone is located, but also where law enforcement agents monitoring conversations are located. United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir.), cert. denied, 506 U.S. 847, 113 S. Ct. 140 (1992); United States v. Burford, 755 F. Supp. 607, 611 (S.D.N.Y. 1991).

  In the instant action, law enforcement agents who intercepted and monitored the Lanteri Wiretap were located in New Jersey. Government Brief at 57. The Lanteri Wiretap was monitored in New Jersey by employing a "slave line" which transmitted the intercepted communications to New Jersey. Id. The Government argued, therefore, that the 13 February 1994 Order was proper because the employment of a "slave line" was held by the Rodriguez court to be consistent with 18 U.S.C. § 2518(3). Id. ; See Rodriguez, 968 F.2d at 136 ("For the purposes of § 2518(3)'s jurisdictional requirement, a communication is intercepted not only where the tapped telephone is located, but also where the contents of the redirected communications are first to be heard.").

  Vittorio argued Section 2318(3) should be read to limit the jurisdiction of a wiretap order to the district in which the authorizing judge sits. Vittorio Brief at 11-13. Vittorio, however, did not cite a Federal court opinion which has so held. Moreover, there appeared no reason to depart from the Second Circuit's interpretation of this issue in Rodriguez. Accordingly, the 13 February 1994 Order was found to be consistent with the territorial limitations of Section 2318(3) and Vittorio's motion to suppress the evidence obtained through the use of the Lanteri Wiretap was denied.

  I. Requests for a Bill of Particulars

  Giampa, Segarra, Vittorio, Capra and Porco demanded a bill of particulars. Giampa Brief at 17-21; 22 February 1995 Vittorio Letter; Capra and Porco Brief at 8; Segarra Brief at 12-15. Giampa demanded that the Government set forth:

  
the time, place, date and the attendant circumstances of each Defendant's alleged entry in the conspiracy in the [Redacted Superseding] Indictment[;] ... the specific date on which the conspiratorial acts were alleged to have occurred in reference to each Defendant[;] ... the specific location or locations where the conspiratorial acts were said to have occurred as to each Defendant[;] ... each overt act which the Government intends to rely upon at trial against each Defendant[;] ... the words and conduct of each Defendant which the Government claims constituted the overt and conspiratorial acts of the said Defendant[;] ... the identity and addresses of all individuals whom the Government knows to have been present at the time that the overt and conspiratorial acts alleged in the [Redacted Superseding] Indictment occurred.

  Giampa Brief at 20-21.

  Segarra demanded the Government, as to racketeering act one, conspiracy to import narcotics, racketeering act four, scheme to export stolen vehicles, racketeering act five, scheme to establish an illegal gambling business and Count Six, conspiracy to deal in firearms

  
state and describe the date, time and place that it is alleged that ... Segarra agreed to [the crime charged][;] ... state whether it is alleged that ... Segarra agreed that others would [commit the crime charged] and state and describe the alleged date, time and place of said agreement[;] ... state any and all acts of ... Segarra, verbal and non-verbal that would entitle a trier of fact to infer that Segarra agreed that he or others would [commit the crime charged][;] ... state and describe the manner, method and means by which the Defendants would allegedly [commit the crime charged] pursuant to any agreement by ... Segarra.

  Segarra Demand For Bill of Particulars, attached as Exhibit B to the Culleton Aff.

  Capra and Porco demanded the Government, as to racketeering act one, conspiracy to import narcotics, racketeering act four, scheme to export stolen vehicles and racketeering act five, scheme to establish an illegal gambling business,

  
state and describe the date, time and place that it is alleged that ... Porco and Capra, agreed to [the crime charged][;] ... state whether it is alleged that ... Porco and Capra agreed that others would [commit the crime charged] and state and describe the alleged date, time and place of said agreement[;] ... state any and all acts of ... Porco and Capra, verbal and non-verbal that would entitle a trier of fact to infer that Capra and Porco agreed that they or others would [commit the crime charged][;] ... state and describe the manner method and means by which the Defendants would allegedly [commit the crime charged] pursuant to any agreement by Capra and Porco.

  Capra and Porco Demand For a Bill of Particulars.

  Federal Rule of Criminal Procedure 7(f) ("Rule 7(f)") *fn30" allows defendants, under certain circumstances, to obtain information through a bill of particulars. A bill of particulars serves a function analogous to an indictment by providing the defendant with notice of the charges against him. A bill of particulars

  
should be granted whenever an indictment's failure to provide factual or legal information significantly impairs the defendant's ability to prepare his defense or is likely to lead to prejudicial surprise.

  United States v. Rosa, 891 F.2d 1063, 1066 (3d Cir. 1989) (citing United States v. Addonizio, 451 F.2d 49, 62-63 (3d Cir. 1971), cert. denied, 405 U.S. 936, 30 L. Ed. 2d 812, 92 S. Ct. 949 (1972)); see United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 1988)(purpose is "'to identify with sufficient particularity the nature of the charge pending against [defendant], thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense'")(quoting United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987) (per curiam)); accord Adams, 759 F.2d at 1113.

  The purpose of a bill of particulars "is not to permit 'wholesale discovery of the Government's evidence.'" Eufrasio, 935 F.2d at 575 (quoting United States v. Armocida, 515 F.2d 49, 54 (3d Cir.), cert. denied, 423 U.S. 858 (1975)). It should be granted when, in the trial court's discretion, it appears the indictment is too vague to inform the defendant of the nature of the charges against him or her. Rosa, 891 F.2d at 1067; Addonizio, 451 F.2d at 63-64; United States v. Zolp, 659 F. Supp. 692, 706 (D.N.J. 1987).

  Although Rule 7(f) is construed liberally, it does not permit a defendant to receive wholesale discovery of the Government's evidence. Rosa, 891 F.2d at 1066; Addonizio, 451 F.2d at 64. The Third Circuit has stated:

  
Trial judges must be allowed to exercise broad discretion in order to strike a prudent balance between the defendant's legitimate interest in securing information concerning the Government's case and numerous countervailing considerations ranging from the personal security of witnesses to the unfairness that can result from forcing the Government to commit itself to a specific version of the facts before it is in a position to do so.

  Rosa, 891 F.2d at 1066.

  Segarra argued that the Redacted Superseding Indictment "fails to provide [him] with the minimal level of information needed for him to investigate the charges against him and to prepare his defense." Segarra Brief at 12. Giampa argued he needed the additional information requested in order to "understand the charges and properly prepare a defense." Giampa Brief at 20. Capra and Porco argued the information requested "is absolutely vital" to the preparation of their defense. Capra and Porco Brief at 8.

  Notwithstanding these contentions, the Redacted Superseding Indictment "provides more than simply a bare bones description of the charges against Defendants; it presents a detailed picture of the RICO conspiracy and the substantive counts charged therein." Government Brief at 43. In the instant case, the seventy-one page Redacted Superseding Indictment provides significant detail regarding the racketeering activity, the roles of Defendants, the means and manner in which the conspiracies were carried out and the predicate acts. In addition, the Government had provided substantial discovery. "The [Government] had disclosed and made available to Defendants hundreds of audiotapes and videotapes with corresponding transcripts recorded between October 10, 1992 and April 1, 1994.... In addition, defense counsel were notified of the opportunity to examine any tangible evidence in the Government's possession." *fn31" Id.

  Further, the Government represented it had provided all Brady material, and had and would continue to comply with the Discovery Order. See infra 1995 U.S. Dist. LEXIS 14145, *114. Accordingly, the motions for a bill of particulars were denied.

  J. Pretrial Disclosure of Brady and Giglio *fn32" and Jencks Act Material

  Giampa, Segarra, Gaito and Vittorio moved for pretrial disclosure of Brady, Giglio and/or Jencks Act material. Giampa Brief at 9, 24-26; Segarra Brief at 19-22; Gaito Brief at 7-8; Vittorio at 14.

  1. Brady Material

  In Brady, the Supreme Court held the Government's failure to disclose evidence favorable to the defendant who specifically requested it violated the accused's Due Process rights when the evidence was material to either guilt or punishment. *fn33" 373 U.S. at 87; United States v. Bagley, 473 U.S. 667, 674-75, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985). In Giglio, the Supreme Court held the Brady rule includes information that might be used to impeach the credibility of Government witnesses when the reliability of the witness could be determinative of guilt or innocence. Giglio, 405 U.S. at 154; accord Bagley, 473 U.S. at 676; United States v. Starusko, 729 F.2d 256, 260 (3d Cir. 1984); United States v. Higgs, 713 F.2d 39, 42 (3d Cir. 1983), cert. denied, 464 U.S. 1048 (1984).

  Ordinarily, Brady material must be disclosed "in time for its effective use at trial." Higgs, 713 F.2d at 44. A district court has general discretionary authority to order the pretrial disclosure of Brady material "to ensure the effective administration of the criminal justice system." Government of Virgin Islands v. Martinez, 847 F.2d 125, 127 (3d Cir. 1988); Starusko, 729 F.2d at 261; Higgs, 713 F.2d at 42. In exercising this discretion, the Circuit has indicated that district courts should "perpetuate [its] longstanding policy of encouraging early production." Starusko, 729 F.2d at 261 (citing United States ex rel. Marzeno v. Gengler, 574 F.2d 730, 739 (3d Cir. 1978); United States v. Kaplan, 554 F.2d 577, 578 (3d Cir. 1977); Government of Virgin Islands v. Ruiz, 495 F.2d 1175, 1179 (3d Cir. 1974)); United States v. Bethea, 787 F. Supp. 75, 77 (D.N.J. 1992).

  In the instant case, the Government stated that it was fully aware of its obligations to disclose all exculpatory material, pursuant to Brady. Government Brief at 47-48. With respect to Brady material, the Government stated it was "fully aware of its obligation to disclose all such exculpatory material under the ... Discovery Order. It has complied with [the Discovery Order] and fully intends to continue complying should exculpatory material come into its possession." Id. Also, the Government stated it was "aware of its obligation to disclose, at the appropriate time, information bearing directly on the credibility of its major witnesses." Id. at 48. The Government's representations were accepted. Accordingly, the motions for early disclosure of Brady material were denied as moot. *fn34"

  2. Giglio Material35

  With respect to Giglio material, the law of the Circuit indicates the Government is not obligated to disclose such material prior to trial. "Because Brady [and Giglio ] rest[] on the requirements of due process, focus must be on when disclosure is necessary to insure [the defendant] a fair trial." United States v. Higgs, 713 F.2d 39, 43 (3d Cir. 1983); see United States v. Kubiak, 704 F.2d 1545, 1549 (11th Cir.), cert. denied, 464 U.S. 852, 78 L. Ed. 2d 149, 104 S. Ct. 163 (1983). The Third Circuit has held that due process does not require Giglio material be disclosed prior to trial:

  
The Brady material in this case was information that [defendants] could use on cross-examination to challenge the credibility of Government witnesses. For that type of material, we think [defendants'] right to a fair trial will be fully protected if disclosure is made the day that the witness testifies. Disclosure at that time will fully allow [defendants] to effectively use that information to challenge the veracity of the Government's witnesses.

  Higgs, 713 F.2d at 44.

  The Higgs court held it was an abuse of discretion for the trial court to order disclosure of the Giglio material a week prior to trial. The purpose of requiring disclosure of impeachment information is not to assist the defense in a general pretrial investigation, but only to give the defense an opportunity to effectively cross-examine the Government's witnesses at trial. See Higgs, 713 F.2d at 44-45. In accordance with this holding, requests for pretrial production of Giglio material have consistently been denied. See United States v. Cannistraro, 800 F. Supp. 30, 92 (D.N.J. 1992); Eisenberg, 773 F. Supp. at 684-85; Vastola, 670 F. Supp. at 1267. Accordingly, under the Higgs principle, there is no requirement that the Government provide Giglio material to Defendants prior to trial.

  In the instant case, Defendants had not demonstrated that a special need existed for early disclosure of Giglio material. Nevertheless, the Government stated it "recognizes the interest of the court and all parties to conduct the trial efficiently and without interruptions. Accordingly the [Government] ... voluntarily disclosed all Giglio material in its possession three days before the testimony of each witness." Government Brief at 50.

  The Government's representation was accepted. See Cannistraro, 800 F. Supp. at 90; Eisenberg, 773 F. Supp. at 688. The motions for early disclosure of Giglio material were denied.

  3. Jencks Act Material

  Under the Jencks Act, *fn36" and Rule 26.2 of the Federal Rules of Criminal Procedure which incorporates the substance of the Jencks Act, a Federal criminal defendant may request the pretrial statements of a Government witness which relate to the testimony of that witness, once the witness has finished testifying on direct examination.

  The Jencks Act states: "No statement or report in the possession of the United States which was made by a Government witness ... shall be the subject of subpena (sic), discovery, or inspection until said witness has testified on direct examination in the trial of the case." 18 U.S.C. § 3500(a) (emphasis added). The Third Circuit has consistently explained that a district court cannot compel early production of Jencks Act material. See, e.g., Higgs, 713 F.2d at 44-45; United States v. Murphy, 569 F.2d 771, 773 (3d Cir.), cert. denied, 435 U.S. 955, 55 L. Ed. 2d 807, 98 S. Ct. 1588 (1978); United States v. Kenny, 462 F.2d 1205, 1212 (3d Cir.), cert. denied, 409 U.S. 914 (1972). As the Circuit stated in Murphy :

  
The blunt command of the statute together with the unequivocal legislative history has led to unbroken precedent in the Courts of Appeals denying to district courts the power to compel production of the statements of government witnesses until conclusion of direct examination at the trial.

  569 F.2d at 773.

  In this case, to avoid delays at trial, the Government volunteered to produce the Jencks Act material three days before the anticipated testimony of witnesses. Government Brief at 47. Earlier disclosure of Jencks material was not, and could not, be mandated. See Cannistraro, 800 F. Supp. at 91; Eisenberg, 773 F. Supp. at 685 n.15. Accordingly, the motions for early disclosure of Jencks Act material were denied.

  K. FRE 404(b) Material

  Gaito, Segarra and Vittorio requested immediate notification of "other crimes" evidence under FRE 404(b) which the Government intended to offer at trial. Gaito Brief at 5; Segarra Brief at 16-17; 22 February 1995 Vittorio Letter. They also sought a pre-trial determination of FRE 404(b) evidence. *fn37" Gaito Brief at 5; Segarra Brief at 16-17.

  FRE 404(b) provides, in pertinent part:

  
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

  Fed.R.Evid. 404(b) (emphasis added).

  FRE 404(b), as amended effective 1 December 1991, requires the Government "provide reasonable notice in advance of trial;" it does not, however, specify a time frame for such disclosure. The purpose of the pre-trial notice requirement of FRE 404(b) is "to reduce surprise and promote early resolution on the issue of admissibility." United States v. Williams, 792 F. Supp. 1120, 1133 (S.D.Ind. 1992) (quoting FRE 404(b), Notes of Committee on the Judiciary, Senate Report No. 93-1277). The determination of "what constitutes a reasonable request or disclosure will depend largely on the circumstances." Id. (quoting FRE 404(b), Notes of Committee on the Judiciary, Senate Report No. 93-1277); c.f. United States v. Kern, 12 F.3d 122, 124 (8th Cir. 1993) (notice fourteen days prior to trial is sufficient under FRE 404(b)); Evangelista, 813 F. Supp. at 302 (notice ten business days prior to trial is sufficient under FRE 404(b)); Williams, 792 F. Supp. at 1133 (creating general ten-day rule); United States v. Alex, 791 F. Supp. 723, 729 (N.D.Ill. 1992)(ordering notice seven days before trial).

  The Government represented it "intends to fully disclose [FRE 404(b)] evidence in advance of trial," in compliance with the "reasonable notice" requirement of the rule. Government Brief at 52 & n.18. There was no support for Gaito's and Segarra's request for immediate notification of what, if any, FRE 404(b) evidence the Government intended to offer at trial. Accordingly, the motions for then immediate notification of FRE 404(b) material were denied; the Government was directed to provide the Defendants with notice of the general nature *fn38" of the FRE 404(b) evidence two weeks prior to trial. *fn39"

  2. Pre-Trial Determination of Admissibility of FRE 404(b) Evidence.

  The Supreme Court in Huddleston v. United States, 485 U.S. 681, 99 L. Ed. 2d 771, 108 S. Ct. 1496 (1988), rejected the contention that a jury must not be exposed to similar acts evidence until "the trial court has heard the evidence and made a determination under [FRE] ...


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