I. Background The Government's factual allegations and the evidence brought out at trial of this multidefendant case have been set out in three opinions, familiarity with which is assumed: United States v. Biaggi, 672 F. Supp. 112 (S.D.N.Y. 1987); United States v. Biaggi, 675 F. Supp. 790 (S.D.N.Y. 1987); and United States v. Biaggi, 705 F. Supp. 790 (S.D.N.Y. 1988). In the first of these opinions, this court denied defendant Simon's pretrial motions for severance.

The Court must accept as true allegations in an indictment made in good faith. See United States v. Biaggi, 672 F. Supp. 112, 116 n. 8 (S.D.N.Y. 1987); United States v. Jones, 652 F. Supp. 1561, 1564 (S.D.N.Y. 1986). Matera argues that the allegations were made in bad faith because the Government has now prosecuted him as both a member of the Colombo Family and as a member of the Gambino Family.

Defendant Betso's motion for dismissal of Counts One and Two, the RICO counts of the Indictment, was denied, as was his motion for severance of the substantive Counts Twenty-Five, Twenty-Eight, and Fifty, essentially for the reasons set forth in this court's earlier opinion denying similar relief to defendant Stanley Simon. United States v. Biaggi, 672 F. Supp. 112 (S.D.N.Y. 1987). Decision was reserved on Betso's motion for a bill of particulars.

Judge Motley initially denied Simon's motion for severance, ruling that Rule 8(a) governed and that these counts were of "the same or similar character," Fed.R.Crim.P. 8(a), as other extortion counts in the indictment. United States v. Biaggi, 672 F.Supp. 112, 124 (S.D.N.Y. 1987). Simon renewed his motion after this Court's decision in United States v. Turoff, 853 F.2d 1037, 1043 (2d Cir. 1988), which appeared to state that claims for severance of counts in a multi-defendant case are to be governed by the standards of Rule 8(b).

While it appears that at trial the government may not have adduced evidence to support each of the statements it discussed in the memorandum, we do not believe that such a failure, without more, constitutes prosecutorial misconduct. See Frazier v. Cupp, 394 U.S. 731, 736, 89 S.Ct. 1420, 1423, 22 L.Ed.2d 684 (1969) ("Many things might happen during the course of the trial which would prevent the presentation of all the evidence described in advance."); see also United States v. Garza, 664 F.2d 135, 142 (7th Cir. 1981) (defendant has burden of establishing prosecutorial bad faith), cert. denied, 455 U.S. 993, 102 S.Ct. 1620, 71 L.Ed.2d 854 (1982); United States v. Turkette, 656 F.2d 5, 8-9 (1st Cir. 1981) (same); United States v. Biaggi, 672 F.Supp. 112, 119 n. 14 (S.D.N.Y. 1987) (same). Having examined the record, we see no indication that the government's statements were deliberate misrepresentations.

) As it relates to media scrutiny, this Court is in no position to speculate about the nature of the media coverage of the upcoming trial or how it would implicate Defendants. Cf. United States v. Biaggi, 672 F. Supp. 112, 123-24 (S.D.N.Y. 1987) (declining to sever trial where defendant had argued that he would be prejudiced by a joint trial with a Congressman whose "national stature may result in more intense media coverage" but did not otherwise establish—beyond speculation—that coverage would be unfavorable to him specifically). Nor does it have any reason to doubt that jurors would be impartial, especially given the availability of voir dire and admonitions by the Court to avoid exposure to any news media about the trial.

However, as Judge Weinstein recognized, "[w]ith the enactment of RICO, Congress supplemented traditional 'chain' and 'wheel' theories with a new conspiratorial concept — the enterprise." United States v. Gallo, 668 F. Supp. 736, 747 (E.D.N.Y. 1987); see also United States v. Biaggi, 672 F. Supp. 112, 119 n. 15 (S.D.N.Y. 1987); United States v. Elliott, 571 F.2d 880, 900 (5th Cir. 1978). A RICO "enterprise" is defined as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity."

If the Government satisfactorily proves defendants' participation in or conduct of the enterprise's affairs through a pattern of racketeering activity as the statute requires, the Government will have satisfied the "associated with" requirement. U.S. v. Biaggi, 672 F. Supp. 112, 121 (S.D.N Y 1987) citing Alfaro v. E.F. Hutton Co., 606 F. Supp. 1100, 1116 (E.D.Pa. 1985). Whether or not defendants and their actions constituted an enterprise, or were associated with an enterprise, are matters of fact which the Government must prove at trial.

In addition, with respect to the remaining allegations under Section 1962, "conspiracy can properly be charged as a predicate act of racketeering under RICO, at least when it involves any of the substantive offences" [sic] listed under Section 1961(1). United States v. Ruggiero, 726 F.2d 913, 918 (2d Cir.), cert. denied, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 60 (1985), citing United States v. Weisman, 624 F.2d 1118 (2d Cir.), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 91 (1980); United States v. Biaggi, 672 F. Supp. 112, 122 (S.D.N.Y. 1987). To establish a 1962(c) violation where a conspiracy serves as a predicate act, plaintiff need only prove that defendant engaged in a conspiracy to commit a predicate act and that a co-conspirator actually engaged in a pattern of racketeering activities.

The court notes that since resting its case the Government has withdrawn Counts Thirty-Nine, Forty-Five, and Forty-Six. This court set out the facts alleged by the Government in the then-current indictments in United States v. Biaggi, 675 F. Supp. 790 (S.D.N.Y. 1987) (omnibus opinion on pretrial motions), and United States v. Biaggi, 672 F. Supp. 112 (S.D.N.Y. 1987) (denial of defendant Stanley Simon's severance motion), familiarity with which is assumed. When the second Biaggi opinion was filed the case was to be tried on a second superseding indictment.