Opinion
No. S5 02 Cr. 1237 (SWK).
April 6, 2005
OPINION ORDER
Pursuant to Rules 8(b) and 14 of the Federal Rules of Criminal Procedure ("Rule 8(b)" and "Rule 14"), several of the defendants move to sever certain counts and certain defendants. In addition, three defendants move for dismissal of Count 10 of the Indictment. Finally, several defendants make evidentiary and discovery-related applications. For the reasons set forth below, the motions are denied.
FACTUAL BACKGROUND
The charged offenses in the Indictment can be organized into four groups. The counts in Group One — Counts One through Eleven — all relate to an alleged broad scheme, involving all of the defendants, to extort money from a victim (the "Victim") during the Summer of 2001. The counts in Group Two — Counts Twelve and Thirteen — consist of charges against Angelo DiPietro for his alleged role in an attempted robbery of a home in Eastchester, New York on July 18, 2001. The count in Group Three — Count Fourteen — consists of a single charge against Angelo Capalbo for his alleged role in a burglary in Florida on July 18, 2001. Finally, the counts in Group Four — Counts Fifteen through Seventeen — consist of charges against DiPietro and Harold Bringman for their alleged participation in loansharking activities in 2002 and 2003. Because significant factual background is required to address the issues of joinder and severance, more detail on the allegations contained in each group of counts follows.
There are six defendants in this matter: Angelo DiPietro, Angelo Capalbo, Michael Pizzutti, Harold Bringman, Nicola Murdocca and Joseph Genua.
Counts One through Eleven (Group One)
According to the Government, the extortion conspiracies alleged in Group One involved a fraudulent Ponzi, or pyramid, investment scheme that was managed by the Victim. Government's Memorandum Of Law In Opposition To The Defendants' Pretrial Motions ("Gov't Memo") at 4. At the time the pyramid began to collapse in the Spring and early Summer of 2001, two of the defendants, Michael Pizzutti and Harold Bringman, had already received payments that exceeded their initial investments, but both men allegedly still expected additional payments. Id. at 5. Two other defendant investors, Angelo Capalbo and Maurizio Sanginiti, were at risk to possibly lose their entire investments. Id. One additional defendant investor, Nicola Murdocca, who had received initial payments on his investment with the Victim, was also concerned about the prospect of not receiving additional payments. Id. at 5.
According to the Government, each of the above defendants, throughout the Summer of 2001, put significant pressure on the Victim to make payments. Id. The Government alleges that this pressure involved both threats of physical violence and actual violence against the victim. Id. The Government also contends that the evidence will show that Bringman, Capalbo and Murdocca spoke regularly with Pizzuti about their efforts to obtain payments from the Victim. Id. at 5-6.
It is alleged that throughout the Summer of 2001, Pizzuti continued to obtain payments from the Victim. Id. at 6. In addition, he allegedly arranged with Bringman to keep the Victim under close surveillance in order to ensure that Pizzuti and Bringman would be the first to learn of any new money obtained by the Victim. Id.
The Government further alleges that Capalbo and Sanginiti believed that the Victim was giving too much money to Pizzuti.Id. Accordingly, Capablo and Sanginiti enlisted Angelo DiPietro, Joseph Genua and others to assist in their effort to obtain more money from the Victim. Id. Ultimately, the Government alleges that the Victim was kidnapped, stripped and tortured by a group of individuals including Capalbo, DiPietro, Sanginiti and Genua. Id.
In the following weeks, several confrontations allegedly occurred between the Pizzuti/Bringman group and the DiPietro/Capablo group regarding obtaining payments from the Victim. Id. at 7. In the end, the Government contends that these conflicts were amicably resolved and both groups agreed to work together to obtain and divide any money they received from the Victim. Id. Counts Twelve and Thirteen (Group Two)
The Government alleges that while Defendants DiPietro, Capalbo and Sanginiti were extorting the Victim, they were also planning burglaries in Westchester County. Id. at 9. According to the Government, DiPietro, Capalbo and Sanginiti enlisted CC-1 and CC-2 (who they had also recruited in the alleged extortion of the Victim) to assist them with the burglaries alleged in Counts Twelve and Thirteen. Id.
It is alleged that on July 18, 2001, CC-1, CC-2 and two others, at the behest of DiPietro, entered a home, carrying firearms, for the purpose of burglarizing it. Id. As it turned out, the home was occupied, the burglary went bad, and CC-2 and two others were arrested in the vicinity of the home. Id. at 10. CC-1 escaped, fled to Capalbo's restaurant, Angelina's, and arrangements were allegedly made for CC-1 to go to Florida. Id. The Government contends that there were two purposes of CC-1's trip to Florida: 1) to get out of Westchester County; and 2) to burglarize a home in Florida. Id. Count Fourteen (Group Three)
Defendant Capalbo allegedly believed that Al Mosiello, a now-deceased Yonkers attorney and former investor with the Victim, was hiding money that he received from the Victim in a safe in his home in Florida. Id. Accordingly, Capalbo allegedly arranged for CC-1 and another individual to fly to Florida and break into Mosiello's house. Id. Counts Fifteen through Seventeen (Group Four)
DiPietro and Bringman allegedly used threats of violence to extort loansharking payments from a government cooperating witness ("CW"). Id. at 11. The tactics DiPietro and Bringman allegedly used were similar to those allegedly used to extort the Victim. Id.
The following defendants move for severance of the trial of various defendants or counts in the Indictment on the grounds indicated. Angelo DiPietro
DiPietro moves for: 1) severance of DiPietro from Pizzuti and Bringman on all of the counts in Group One; 2) severance of Counts One through Eleven and Fourteen (Groups One and Three) from Counts Twelve, Thirteen, and Fifteen through Seventeen (Groups Two and Four); and 3) severance of DiPietro from Pizzuti, Capalbo and Genua on Bruton grounds. See generally DiPietro Sev. Memo.
Angelo Capalbo
Capalbo moves for: 1) severance of Capalbo from all other defendants; 2) severance of all counts that do not name Capalbo from all counts that do name Capalbo; and 3) severance of Capalbo from Pizzuti and Bringman. See Capalbo Sev. Memo at 7-13.
Michael Pizzuti and Harold Bringman
Pizzuti and Bringman move for: 1) severance of Counts One through Eleven (Group One) from Counts Twelve through Seventeen (Groups Two through Four); and 2) severance of Pizzuti and Bringman from all other defendants. See Pizzuti Sev. Memo at 2-18. Joseph Genua
Though Defendant Bringman did not file any motions, he joined in the motions of his codefendants to the extent such motions were applicable to him.
Genua moves for severance of Counts One and Three from Counts Two and Four through Seventeen. See generally Genua Sev. Memo.
DISCUSSION
I. Joinder is Proper Under Rule 8
"Joint trials play a vital role in the criminal justice system." Richardson v. Marsh, 481 U.S. 200, 209 (1987). Among other advantages, joint trials "conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial." Bruton v. United States, 391 U.S. 123, 134 (1968). Additionally, joint trials "serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." Richardson, 481 U.S. at 210.
Federal Rule of Criminal Procedure 8 provides for joinder of offenses and joinder of defendants: Rule 8(a) governs the joinder of offenses, while Rule 8(b) governs the joinder of parties.See Fed.R.Crim.P. 8. When multiple parties are charged with multiple offenses, joinder must be proper under the more restrictive test of Rule 8(b). United States v. Turoff, 853 F.2d 1037, 1043 (2d Cir. 1988). That is, "multiple defendants may be charged with and tried for multiple offenses only if the offenses are . . . part of a series of acts or transactions constituting . . . offenses." Id. Offenses and defendants are properly joined under Rule 8(b) where the criminal acts of two or more persons are "`unified by some substantial identity of facts or participants' or `arise out of a common plan or scheme.'"United States v. Attansio, 870 F.2d 809, 815 (2d Cir. 1989).
The Indictment in this case is properly joined under Rule 8(b). With respect to the counts contained in Group One, all of the offenses were part of an ongoing scheme to extort money from the Victim, all of the defendants allegedly participated in the scheme, all of the charged offenses occurred in Westchester County in the Summer of 2001, and all of the defendants allegedly believed they were entitled to recoup money from the Victim as a result of the same failed Ponzi scheme. Accordingly, the counts charged in Group One are properly joined.
Defendant Pizzuti concedes that with respect to the counts in Group One, "the logical nexus for joinder is readily established on the face of the indictment." Pizzuti Sev. Memo at 13.
The offenses charged in Group Two, i.e., the Eastchester Home Invasion, share a substantial commonality of participants with the offenses charged in Group One. First, both groups of offenses allegedly involved DiPietro, Capalbo, Sanginiti, CC-1, CC-2, and DiPietro's son, Anthony DiPietro. In addition, the offenses occurred in the same area of Westchester County during the same time period, July 2001, as the offenses charged in Group One. In both groups of offenses, meetings related to the charges allegedly took place at Capalbo's restaurant, Angelina's. As such, these offenses are unified by a substantial identity of facts and participants and joinder is appropriate.
The offense charged in Group Three is directly related to the offenses in Group One and Group Two; more importantly, the count in Group Three inextricably links the counts in Group One to the counts in Group Two. As discussed earlier, it is alleged that the motivation for the Florida burglary derived directly from the offenses charged in Groups One and Two. Specifically, Capalbo allegedly sent CC-1 to the Florida home of Al Mosiello for two reasons: 1) to get CC-1 out of town because the Eastchester attempted robbery went bad; and 2) to steal money from Mosiello that Capalbo believed Mosiello had received from the Victim. The first reason, getting CC-1 out of town, ties the count in Group Three directly to the counts in Group Two. The second reason, to steal from Mosiello's proceeds of the Victim's Ponzi scheme, directly ties the offense to the extortion charged in Group One. Accordingly, because they are unified by a substantial identity of facts and participants, the offenses charged in Groups One, Two and Three, Counts One through Fourteen, are properly joined.
The nexus is further bolstered by the fact that CC-1 was allegedly sent to Florida by Capalbo less than one day after the Eastchester attempted robbery.
The extortion allegations in Group Four share substantial commonality of participants with the offenses in Group One: DiPietro and Bringman are charged in both groups, while Sanginiti and Anthony DiPietro are also allegedly involved in both groups. In addition, the extortion charged in Group Four, like the extortion charged in Group One, occurred in Westchester County and, at times, at Capalbo's restaurant, Angelina's.
In sum, all of the offenses charged in the Indictment are unified by a substantial identity of facts and participants; joinder, therefore, is proper. II. Because The Defendants Have Not Shown Prejudice Sufficiently Severe To Outweigh The Judicial Economy Of Joinder, Severance Pursuant to Rule 14(a) Is Not Warranted
Because joinder in this case is appropriate under the more restrictive standard of Rule 8(b), it necessarily follows that it is also appropriate under Rule 8(a). Accordingly, DiPietro's request for severance pursuant to Rule 8(a), see DiPietro Sev. Memo at 9-10, is denied.
Fed.R.Crim.P. 14(a) permits the district court to "order separate trials of counts, [or] sever the defendants' trials" if it appears that a defendant or the government is prejudiced by the joinder of defendants or counts. Severance may be granted as a matter of the district court's discretion under Rule 14 even if joinder was proper under Rule 8; however, unless there has been a misjoinder, a defendant must show that the prejudice from a joint trial "is sufficiently severe to outweigh the judicial economy that would be realized by avoiding multiple lengthy trials."United States v. Walker, 142 F.3d 103, 110 (2d Cir. 1998).
A defendant seeking to sever his case from that of a co-defendant must shoulder an "`extremely difficult burden.'"United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir. 1989). To obtain severance, the defendant must satisfy the heavy burden of demonstrating that he is substantially prejudiced by joinder and that he will be denied a fair trial. United States v. Losada, 674 F.2d 167, 171 (2d Cir. 1982), cert. denied, 457 U.S. 1125, 102 S. Ct. 2945 (1982).
Several of the defendants move for severance under Rule 14. The Rule 14 motions are based on two separate grounds: 1) spillover prejudice; and 2) mutually antagonistic defenses.
A. The Potential For Spillover Prejudice Does Not Provide A Basis For Severance
Capalbo, Pizzuti, Bringman and Genua move for severance on the ground that a single trial of all of the defendants and counts in the Indictment will result in unfair spillover prejudice because evidence will be introduced by the Government against other defendants that is not related to charges brought against them.See Genua Sev. Memo ¶¶ 13-22; Pizzuti Sev. Memo at 15-18; Capablo Sev. Memo at 8-10. The Court disagrees.
"Joint trials involving defendants who are only marginally involved alongside those heavily involved are constitutionally permissible." United States v. Carson, 702 F.2d 351, 366-367 (2d Cir. 1983). Further, "differing levels of culpability and proof are inevitable in any multi-defendant trial and, standing alone, are insufficient grounds for separate trials." United States v. Scarpa, 913 F.2d 993, 1015 (2d Cir. 1990). Here, the defendants' conclusive assertions regarding potentially prejudicial spillover simply fail to satisfy their heavy burden of demonstrating substantial prejudice that will result in an unfair trial. Further, to the extent that Capalbo, Pizzuti, Bringman and Genua might be prejudiced by evidence admitted against other defendants — an outcome that, based on the allegations in the Indictment, seems unlikely — "less drastic measures, such as limiting instructions, . . . will suffice to cure the risk of prejudice." Zafiro v. United States, 506 U.S. 534, 539 (1993). Accordingly, Capalbo's, Pizzuti's, Bringman's and Genua's motions for severance based on incurable spillover prejudice are denied.
B. The Potential For Mutually Antagonistic Defenses Does Not Provide A Basis For Severance
Some of the defendants move for severance of various counts within Group One on the ground that they intend to present mutually antagonistic defenses. Specifically, DiPietro contends that at trial, the rival "factions" that are alleged to have extorted the Victim, "would assert completely antagonistic defenses," because DiPietro will argue that he was protecting the Victim from Pizzuti and Bringman at the Victim's request. See DiPietro Sev. Memo at 1, 4-5. DiPietro then speculates that the "Pizzuti and Bringman defense . . . will be that they were not extorting [the Victim], but rather were protecting him from Sanginiti, DiPietro, and Capalbo." Id. at 4-5.
DiPietro moves for severance based on mutually antagonistic defenses. See DiPietro Sev. Memo at 8-9. It is not entirely clear whether Capalbo also moves for severance on that ground, but since he mentions mutual antagonism in his papers, see Capalbo Sev. Memo at 9, the Court will assume that he does.
Even if DiPietro's speculation regarding his defense theory vis-à-vis his co-defendants' theories is correct, such defenses are not mutually antagonistic. In order to "make a showing of `mutually antagonistic' or `irreconcilable' defenses, the defendant must make a factual demonstration that acceptance of one party's defense would tend to preclude the acquittal of the other." United States v. Salameh, 152 F.3d 88, 116 (2d Cir. 1998) (per curiam). That is not the case here. The suggestion that some of the defendants may have been acting to "protect the Victim" is simply a denial of criminal intent; to the extent that two "factions" simultaneously deny criminal intent, such defenses are not mutually antagonistic. Furthermore, even if the alleged defense theories of the case were mutually antagonistic, which they clearly are not, such mutual antagonism would not result in an unfair trial or a miscarriage of justice. Therefore, the defendants' motions for severance based on mutually antagonistic defenses are denied. C. Bruton v. United States Does Not Provide A Basis For Severance
Defendant DiPietro claims that severance is appropriate pursuant to Bruton because "it is believed that none of the statements made by [co-defendants] Pizzuti, Genua, and Capalbo are capable of being redacted sufficiently to remove reference to Mr. DiPietro, and that their introduction at a joint trial will therefore violate Mr. DiPietro's Confrontation rights." DiPietro Sev. Memo at 11.
At the Court's request, pursuant to Fed R. Crim. P. 14(b), both unedited defendant statements and proposed Brutonized versions of those same statements were provided to chambers for in-camera review. While the Court understands that the parties are in the process of discussing the versions of the statements that will ultimately be introduced at trial, it is clear at this point that severance will not be necessary to ensure that DiPietro's Confrontation rights are preserved. As a result, DiPietro's motion to sever on Bruton grounds is denied.
The Government concurrently provided the original statements and their Brutonized versions to all defense counsel.
The contention in Capalbo's and Pizzuti's reply papers that the Government, through its opposition papers to the defendants' motions, has changed its theory of the case and severance is therefore warranted, is entirely without merit.
III. The Motion To Dismiss Count 10 Is Denied
Defendants Capalbo, Bringman and Pizzuti move to dismiss Count 10 of the Indictment.
Pursuant to Fed.R.Crim.P. 7(c), an indictment must contain a "plain, concise and definite written statement of the essential facts constituting the offense charged." To be legally sufficient, an indictment must: (1) adequately charge the elements of an offense; (2) fairly inform the defendant of the charges he must meet; and (3) contain enough detail to permit the defendant to plead double jeopardy in a future prosecution based on the same set of events. United States v. Walsh, 194 F.3d 37, 44 (2d Cir. 1999). Count 10 of the Indictment plainly satisfies both Rule 7(c) and Walsh; as such, Count 10 is valid on its face and the motion to dismiss is denied.
IV. Murdocca's Motion To Suppress Is Denied
Defendant Murdocca moves to suppress Government wiretaps and the tapes, CDs, notes and records of same. Murdocca Suppression Memo ("Murdocca Memo") at 1. Specifically, Murdocca moves to suppress the following categories of wiretaps: (a) those in which Murdocca was not a party to the conversations; (b) those in which personal conversations not related to discovery of any appropriate "evidence" were recorded; and (c) those which were done on telephones not belonging to the defendant. Id. Murdocca states that "this motion is made on the grounds that the constitutional and statutory rights of the defendant were interfered with and violated." Id.
Even if the Court were willing to infer which particular "constitutional and statutory rights" Murdocca may be referring to, which it is not, the fact remains that Murdocca, by his own admission, is without standing to challenge categories (a) and (c), since in category (a) Murdocca was not a party to the conversation and in category (c) the wiretaps were on phones not belonging to Murdocca. See United States v. Ruggiero, 928 F.2d 1289, 1303 (2d Cir.), cert. denied, 502 U.S. 938 (1991) (only individuals with a possessory or proprietary interest in the premises on which the subject telephone is located have standing to contest the lawfulness of the wiretaps). Murdocca's motion to suppress is denied.
V. The Motion For a Bill of Particulars Is Denied
Defendant Angelo Capalbo claims that he is entitled to a bill of particulars. Capalbo Sev. Memo at 2-4. Mr. Capalbo is wrong. His request has no legal basis and it is denied. VI. The Request For Early Production of 3500 and Brady / Giglio Material Is Denied
Several of the defendants have asked the Court to order the Government to identify the unindicted co-conspirators known to the Government. Pursuant to that request, on March 31, 2005, the Government provided all defense counsel with a list of individuals "who the Government may identify as co-conspirators of the defendants in the charged conspiracies . . ." The list included 24 names. In a letter to the Court, Capalbo claims that the list is "plainly insufficient." That contention notwithstanding, the list is more than adequate and the Court will not order any further production by the Government on this issue.
Several of the defendants move for early production of Brady, Giglio and 3500 material. The requests have no basis in the law and are hereby denied. As is common among the courts of this Circuit, the Court accepts the Government's representation that, consistent with its longstanding practice, it will make impeachment and 3500 material available on the Friday prior to trial. See, e.g., United States v. Numisgroup Intern. Corp., 128 F. Supp. 2d 136, 150 (E.D.N.Y. 2001).
VII. Defendants' Request To Compel The Government To Provide 404(b) Evidence 30 Days Prior to Trial Is Denied
Certain defendants have moved for the Government to produce all evidence it intends to offer pursuant to Rule 404(b) no later than 30 days prior to trial. These applications are denied. The Government represents, and the Court accepts, that the 404(b) evidence will be provided to defense counsel at least two weeks prior to trial.
SO ORDERED.