United States v. Galasso

118 F. Supp. 2d 322, 2000 U.S. Dist. LEXIS 15277, 2000 WL 1553873
CourtDistrict Court, E.D. New York
DecidedOctober 7, 2000
DocketNo. 00-CR-122 (S-1)
StatusPublished
Cited by1 cases

This text of 118 F. Supp. 2d 322 (United States v. Galasso) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Galasso, 118 F. Supp. 2d 322, 2000 U.S. Dist. LEXIS 15277, 2000 WL 1553873 (E.D.N.Y. 2000).

Opinion

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

This complex criminal case involves allegations of racketeering, conspiracy, arson, mail fraud, and money laundering against various Defendants. Presently before the Court are motions by Defendant Saverio Galasso III to (i) sever his trial from his Co-Defendants pursuant to Fed. R. Crim. P. 14; (ii) to strike portions of the indictment pursuant to Fed. R. Crim. P. 7; and (iii) for a bill of particulars; by Defendant Pistone to (i) sever his trial from his Co-Defendants; (ii) for certain pre-trial discovery; and (iii) for suppression of statements and other evidence; by Defendant Misseri to (i) suppress evidence seized from his wallet and briefcase; (ii) for certain pretrial discovery; (iii) for a bill of particulars; (iv) for severance of his trial from his Co-Defendants; (v) for dismissal of Count Ten of the indictment, alleging a money laundering conspiracy, as being insufficient; and (vi) for dismissal of the arson conspiracy overt act alleged as racketeering act two for failure to allege the essential elements of the crime; and by Defendant Gary Hendrickson for (i) severance of his trial from his Co-Defendants; (ii) for certain pre-trial discovery; and (iii) for a bill of particulars.

BACKGROUND

The Defendants were charged in a seven-count indictment filed in this Court on February 10, 2000. On April 10, 2000, a superseding ten-count indictment was filed by the Government. According to the superseding indictment, Defendant Galasso is the head of a “crew” affiliated with the Colombo organized crime family, and his co-Defendants are members of this crew. Collectively, the Galasso crew is alleged to have engaged in numerous acts of racketeering and fraud.

[325]*325Count One of the superseding indictment alleges racketeering under 18 U.S.C. § 1961(1) and § 1961(5) against all five Defendants over a period from January 1993 until November 17, 1998. Among the overt acts alleged as part of the pattern of racketeering activity in Count One are: the August 1994 murder of Louis Dorval by Defendants Pistone and Misseri; the February 15, 1998 arson of the Hav-A-Home Kennel in Old Brookville, N.Y. by Defendants Galasso, Pistone, Misseri, and Hen-drickson; repeated acts of mail fraud under 18 U.S.C. § 1341, involving the fraudulent sale of pay telephone franchises between September 1994 and December 1996 by Defendants Galasso, Delucia, Misseri, and Hendrickson; and money laundering under 18 U.S.C. § 1956 between March 1996 and November 1996 by Defendants Galasso, Delucia, Misseri, and Hendrickson. Count Two of the indictment alleges a racketeering conspiracy against the five Defendants based on these alleged overt acts.

Count Three of the indictment charges arson against Defendants Galasso, Pistone, and Hendrickson relating to the incident involving the Hav-A-Home Kennel.

Count Four of the superseding indictment charges Defendants Galasso, Delucia, Misseri, and Hendrickson with conspiracy to commit mail fraud pursuant to 18 U.S.C. § 1341 relating to the fraudulent sale of pay phone franchises. Counts Five through Nine allege individual acts of mail fraud relating to specific transactions with the victims of the pay phone scheme.

Finally, Count Ten alleges a conspiracy to launder money pursuant to 18 U.S.C. § 1956(h) by Defendants Galasso, Delucia, Misseri, and Hendrickson, in which some $109,000 in proceeds from the pay phone scheme were deposited in a bank account at EAB Bank in Uniondale, New York.

DISCUSSION

A. As to the various motions for severance

All four moving Defendants seek to have their trials severed from their Co-Defendants pursuant to Fed. R. Crim. P. 14. Both Defendant Galasso and Hendrickson seek severance from Defendants Pistone and Misseri on the grounds that the evidence relating to the murder of Louis Dor-val would unduly prejudice the jury against them on the other counts. In addition, Defendant Galasso seeks severance from Defendants Delucia, Misseri, and Hendrickson on the grounds that he intends to assert a defense antagonistic to them on the mail fraud charges. Defendants Pistone and Misseri seek severance from Defendant Hendrickson, with Pistone arguing that Hendrickson implicated him in a plea allocution involving the arson, and with Misseri asserting that statements by Pistone and Hendrickson on the arson charge failed to mention him and thus, are exculpatory as to him. Accordingly, Pis-tone seeks severance based on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), while Misseri asserts an unusual “reverse-Bruton” argument that redaction of Hendrickson’s statements will not reveal the exculpatory nature of his omission.

(i) As to the claims of prejudice from evidence of the Dorval murder.

There is a preference in the federal system for joint trials of defendants who are indicted together, Zafiro v. U.S., 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), and the court should sever trials of co-defendants 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. Id. at 539, 113 S.Ct. 933; U.S. v. Rahman, 189 F.3d 88, 122 (2d Cir.1999).

Here, the evidence of the Dorval murder is relevant to establish the existence of the “Galasso Crew” RICO enterprise, and to establish a pattern of related [326]*326and continuous racketeering activity by that enterprise. See e.g. U.S. v. Diaz, 176 F.3d 52, 103 (2d Cir.1999) (no prejudice where defendant was charged with only one of the nine murders alleged against his co-defendants where evidence of all murders was necessary to prove existence and continuity of RICO enterprise); U.S. v. DiNome, 954 F.2d 839, 843-44 (2d Cir.1992). While both Galasso and Hendrick-son argue that they will be prejudiced by introduction of the Dorval murder, both base that claim of prejudice on the notion that the Dorval murder is not relevant to the charges against them. However, as both Diaz and DiNome demonstrate, the Dorval murder would be admissible to establish the existence and continuity of the RICO enterprise, even if the cases were severed. See Diaz, 176 F.3d at 104 (“Even though some of [the statements were] made prior to Roman’s joining of the Latin Kings, the result is the same. Such evidence was properly admitted against Roman. ..”).

While Galasso argues that DiNome

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Bluebook (online)
118 F. Supp. 2d 322, 2000 U.S. Dist. LEXIS 15277, 2000 WL 1553873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-galasso-nyed-2000.